January 16, 2006

"Legal gobbledygook."

After counting the minutes to get to the end of the Alito hearings last week, you might want to start off this week by counting words in the transcripts. Dana Milbank has this:
By the numbers, Judge Alito's language was painfully cautious. He mentioned "stare decisis" -- respect for precedents (i.e., Roe v. Wade ) 68 times. But he mentioned "abortion" only 23 times and hardly used the word "overturn" at all. Among his top three-word phrases: "I don't know" (29 times). Among his top four-word phrases: "I would have to" -- as in, "I would have to know the arguments that are made" before answering the question (21 times).

The nominee relied heavily on the language of law books, mentioning "Humphrey's Executor" (whoever he is) 10 times, "undue burden" 10 times, and "jurisdiction" 25 times.
"Humphrey's Executor" (whoever he is)... A thousand conlaw profs wring our hands. "Humphrey's Executor" (whoever he is)! As if that's just some obscurity Alito threw out to bamboozle us.

IN THE COMMENTS: Stiles defends Milbank:
For the politically interested layperson at home, Humphrey's Executor is "legal gobbledygook" and that is Milbank's audience, not the ConLaw community.
John Althouse Cohen responds to Stiles:
Stiles and others who are making this point are leaving out the fact that Alito thoroughly explained what Humphrey's Executor is and why it's important, in terms that should be comprehensible by a layperson.
I add:
They were too busy observing that it was all gobbledygook and that he wasn't saying anything to listen carefully enough to have a shot at understanding it. But yeah, it was quite comprehensible, even though... Senator Kennedy tried his best to fuzz it up because it had to do with the "unitary executive" issue that he was trying to alarm people about.
I include a long passage from the Thursday transcript that shows how Alito explained the case and Kennedy tried to make Alito look extreme.

UPDATE: This post is getting enough attention -- here and here and elsewhere -- that I want to add that I think Milbank is surely capable of understanding Humphrey's Executor and writing about it if he felt like it, that there is a place for lightweight pieces like this one, that "whoever he is" is an amusing locution, and that the main observation in the article -- that Alito talked about law and the Senators talked about politics -- is sound and worth making. I do bemoan the fact that the reporters covering the hearing stand at some distance from the legal issues under discussion and mostly only observe the dynamic among the participants. In doing this, they can miss the content of the discussion. If I'm a little harsh on Milbank on this score, it's because I heard him say this on "Reliable Sources" on Sunday:
I had a discussion through the week with my editors. They said, "We want you to write about Alito. He's the nominee." I said, "That's great, but the senators are doing all the talking."

So, I mean, he wasn't the story in the sense that he didn't say anything particularly interesting. You know, the fact is these hearings are entirely theatrical. There is no substance conveyed...

[I]f the picture [on camera at the hearing] zoomed out a bit there and you saw what was going on at the table, first of all, you would see that three- quarters of the tables were empty after about two hours of this....

They left. They were reading a newspaper. There's computer solitaire going on.

Fortunately, we had some wi-fi there in the chamber. You would have seen me weeping. Forget about Mrs. Alito. It was dreadful....

[From the moderator, Howard KURTZ: But this is dereliction of duty. There was legal substance being discussed.]

There was legal substance, but, as a matter of fact, I'm sure you could actually draw up an equation, every time you mention "due process" on the air you lose 5,000 viewers. Every time you mention "unitary theory," the executive, 20,000 viewers click off. And the same thing with the newspapers. It's not something that people can appreciate.
So he's ignoring the substance and dumbing things down because that's what the people want. Sorry, but this bugs me a little. He feels free to opine that nothing was said, wielding his authority as the Washington Post reporter on the scene, but I'm not convinced he ever engaged enough to know. And now there's this meme: Alito said nothing. I don't think that's fair.

60 comments:

brylin said...

Yeah, come on Milbank, everyone knows about Humphrey's Executor!

John R Henry said...

Ok LawProf,

How about explain to us non lawyers what it is in a paragraph or two?

John Henry

Ann Althouse said...

John: Brylin gave you the link. The lawprof's job is to tell you to read it. It's one of the main precedents about Congress's power to limit presidential authority.

bearbee said...

I, I, I, I wonder as I, I, I, I read this article... is there a glut of journalists.....I,I,I,I wonder??

Simon said...

I just can't begin to fathom why one would have someone who doesn't understand the issues before them - or at least, how to use Google - write a story about legal issues.

I can only conclude that the whole this is a fascetious attempt to reach out to people who are genuinely bemused, in a folksy kind of "hey, we didn't get it either" way.

I think it's also emblematic of how Roe continues to distort and corrupt public discourse: nobody actually believes that stare decisis is an inexorable command, least of all the party who supported Roper (overruled Stanford) and Lawrence (overruled Bowers). Instead, in the mind of the public who don't know better, stare decisis is a codeword for abortion: will the nominee overrule one particular case? Both sides must tiptoe through a minefield, the Democrats more so, because in their (and the nominee's) unwillingness to deal with Roe head on, they must engage in a hypocritical dance, demanding respect for one precedent without saying its name.

reader_iam said...

Darn, I'm just a lowly blogger in the Midwest, but I was able to google the "exact phrase" Humphrey's Executor in 2 seconds flat, bringing up 739 results (number 5 was a Jan. 12 article in WaPo).

Must be nice to be such a famous reporter that can't be bothered to do the same search.

Oh, wait--I'm being unfair. Milbank's just too busy--coming up with his famous cheap shots and all.

Bleccch.

Duffy Nichols said...

Imagine a Supreme Court nomination hearing where the term "jurisdiction" is used so many times. Can you believe it?

Palladian said...

Imagine a Supreme Court nomination hearing where there was so much legal gobbledygook! The nerve! Alito should have been talking about something sexy... after all, isn't the purpose of government to give the media sexy things to talk about to boost the ratings? Give us abortions and missing blonde teenagers and crying wives and pubic hairs in Cokes (hey, cool, product placement) ferchrissakes!

Brandon said...

Instead, in the mind of the public who don't know better, stare decisis is a codeword for abortion: will the nominee overrule one particular case?

The precedent that dare not speak its name!

XWL said...

I just can't begin to fathom why one would have someone who doesn't understand the issues before them - or at least, how to use Google - write a story about legal issues.

My view as to why things get spun the way they do by the likes of Washington Post's Dana Milbank is that they view the judiciary as politics by other means.

Their distrust of the people in the 'fly-over' states means that the only way to effect 'positive' social change is to shove it down people's throats through a liberal judiciary that acts as guiding 'philosopher kings' to an ignorant populace.

Mr. Milbank through dismissing actual precedent and refusing to offer citation hopes to perpetuate the self-same ignorance he derides.

(alternately he's a journalist cause he didn't want to do all the blasted studying expected of a law student).

That's what I take from his articles regarding the hearings.

The editors of the Washington Post are the one's who should be ashamed of themselves (but they are shameless) for treating this as 'mere' politics and media spectacle.

Simon said...

Re Palladian's comment above, I agree. A couple of weeks ago, I reacted with some frustration - almost certainly completely unwarrented, actually - to the assertion that Justice Ginsburg "rule[s] wrong 98% of the time." My beef is that so blithe an exaggeration can only come from someone who either himself doesn’t know what the Court spends the vast majority of its time doing, or who hopes the persons to whom he addresses himself does not. It could, on the other hand, simply be (as it was in this case) a gauche shorthand for "rules wrong 98% of the time in controversial cases," but it really does seem to me to be the case that you (Palladian) are right: the public just doesn't understand what the court does all day (and, on the evidence of the Milbank column, neither do some newspaper columnists), and this naturally tends to lead to a corruption of the kind of nominees they want. If one thinks that the court just sits there on Olympus, handing down weighty pronouncements on the death penalty, abortion, other hot button social issues, then I suppose the Harriet Miers nomination makes a degree of sense: I don't think you learn anything at harvard law school that you can't learn in the outside world about making up new constitutional provisions and deleting old ones. It's only when you understand what the court spends its time doing that the need for the right nominee makes sense; the realization that practically every case is of immense importance to one group or another, of some size, but many of these cases simply aren't sexy. They are often dry as all hell, and not even Our Hero can make a case like Eli Lilly & Co. v. Medtronic, Inc., 496 U.S. 661 (1990), for example, read as anything other than spectacularly dry. To get these cases right, you need a justice with a demonstrable commitment to a certain process, and the intellect to absorb and make sense of the factors in each case, not just someone who can preen in front of the judiciary committee.

Bruce Hayden said...

Not everyone knows of the case. I had to refresh myself, not really having had to deal with the case since Con Law. But I am not surprised at all the references to the case, given that many of the Senators, esp. the Democratic ones, had the NSA evesdropping on their minds. (I haven't read the transcripts to see where he cited the case, so that is just conjecture).

That said, there seems to be a move away from the actual case, in a realization that the ideal of the perfect decision maker, independent of politics, is utopian. With problems like Agency Capture and the extreme amount of agency rulemaking being done (some w/o political oversight given Humphrey), this is not so surprising.

Bruce Hayden said...

I am not surprised though about Judge Alito's references to "undue burden" and "jurisdiction". Both seem to fit well into his jurisprudence.

I do have a question though for all those who see him as being an improvement over Justice O'Connor. One complaint about her jurisprudence is that she was the Justice who seemed most in love with multi-part balancing tests, instead of bright line tests (which is where I think Justice Thomas is). Judge Alito seems to be of that school too - most comfortable when balancing multiple factors and applying different standards to slightly different situations. Is is possible that he might follow in her footsteps? Fine for him, but is that realistic for uniformity, esp. for judges who aren't as smart and legal nerdy as he?

Simon said...

" Not everyone knows of the case. I had to refresh myself, not really having had to deal with the case since Con Law."

I don't think anyone's complaining that Milbank didn't recall the specifics of the case. The problem is that he was too dumb - or is claiming to have been too dumb - to have taken the trouble to look the case up, or failing to recognize that it was a case, at least googling it.

Bruce Hayden said...

Simon pointed out some interesting things. But one thing it reminded me of is that I was a strong supporter of Ms. Myers. But after this week's hearings, I see that I was wrong. Yes, maybe she would have been able, eventually, to do the job. I think she would have. But Judge Alito, as with CJ Roberts, will hit the ground running full speed. I see him being fully able to carry his own weight from the day he is sworn in. Ms. Myers would not have been able to.

Simon said...

I have great hopes that Justice Alito (as opposed to Judge Alito) will show far less of a proclivity for balancing tests than his predecessor, and even if he doesn't, a far greater commitment to textualism and originalism. Alito is no Clarence Thomas where precedent is concerned, and he is no Antonin Scalia where bright line rules are concerned, but he is a Sam Alito, and I think that's pretty good.

Simon said...

Bruce-
Regarding Miers, another thing to consider. Imagine the Alito (or Roberts, for that matter) hearings inside out: imagine that instead of the nominee being the knowledgable one, politely talking down to Senators who knew far less about the law than he did; imagine a hearing where, relatively speaking, it was the Senators who came off looking reasonable, and the nominee ill-informed. Such is how I imagine the Miers hearings would have gone.

SippicanCottage said...
This comment has been removed by the author.
AJD said...
This comment has been removed by a blog administrator.
Stiles said...

Blogger seems to have placed my first comment into limbo, so here's a second try. Old Blue loyalty compels me to weigh in defending Dana Milbank, and I'd do the same for a conservative like Jon Adler.

This was not a legal analysis article, it was the Post's attempt to analyze the use of language in the hearings. Not surprisingly, the Post found that Alito tended to use legal terms and the Committee political terms, with Democrats and Republicans having different high frequency terms.

Dana Milbank does not cover the Supreme Court like a Linda Greenhouse or Dahlia Lithwick. He's a political reporter and would not claim any special legal expertise. Given that the article didn't delve into any legal issues, but focused on the use of language, perhaps the assignment wasn't so badly done by the editors.

For the politically interested layperson at home, Humphrey's Executor is "legal gobbledygook" and that is Milbank's audience, not the ConLaw community. Granted, Google brings up the citation quickly, but the same could be said of most field-specific terminology and it would have been surprising given column space to see that described in the article.

Dana Milbank went straight into professional journalism (Wall Street Journal) after graduation and does not have a JD. His formal instruction in constitutional law would have been PolSci 232 (Con Law) with Rogers Smith. I think we both took it as sophomores. I do not believe Professor Smith covered Humphrey's Executor v. United States in that undergradute course, it certainly wasn't high profile. Nor would it have been covered in Civil Rights and Civil Liberties, which Dana may or may not have taken.

Whether or not one agrees with his politics, Dana Milbank is a successful political reporter because he is a good writer who doesn't try to completely shroud his biases. That makes it easier for the reader to account for that stance when reading his writing. YMMV.

I have not seen Dana in many years, but he is certainly not dumb. And the Dana Milbank I know is not distrustful of people in the "fly-over" states.

ChrisO said...

Well, Stiles beat me to it, but I have to second his or her point. It wasn't an article about the law, it was an article about a political proceeding. I read "whatever that is" as a bemused nod to the extent that laypeople can be confused by some of the case references thrown around during the hearing. I've seen a certain snobbery on this board from lawyers and (I presume) law professors regarding these hearings. Like it or not, those of us who are not lawyers have a right to an opinion on a nominee to the Supreme Court, as imperfect as our knowledge might be. That is why we try to get a sense of a nominee's general phiolosophy, rather than just his or her decisions. That may be frustrating to lawyers who feel like this is their special time and the laypeople should just shut up, but it's our Supreme Court, too.

And I didn't see a lot of Alito supporters scoffing at the fact that his wife's tears have nothing to do with his ability to serve on the court.

bearbee said...

As part of the general public stare decisis meant nothing to me and certainly not as code for abortion. Not until I began following the Roberts proceedings primarily through articles as well as the discussions here, and the Alito proceedings by then having discovered the beauty of live viewing at C-SPAN.org (no cable), did I become aware of that term as well as others.

Legal thingy concepts require s-l-o-w s-t-e-p b-y s-t-e-p explanation for me to absorb. I had little difficulty in following Judge Alitos' explanations.

vbspurs said...

Imagine a Supreme Court nomination hearing where there was so much legal gobbledygook! The nerve! Alito should have been talking about something sexy...

Ah well, but you see, it wasn't a patch on the Roberts' hearings.

John Roberts set the gold standard for confirmation hearings for SCOTUS justices.

In them, he used the words, sexed up (29) combover (7), dumbass (13) times.

Cheers,
Victoria

Elliott said...

He could have written that sentence:

The nominee relied heavily on legal gobbeledy gook to avoid directly answering any questions that would have revealed his radical agenda.

But Dana was toopolitically correct to do so.

Ross said...

Y'all are aware that Milbank writes this sort of thing -- the bemused observer of the scene -- professionally, and that other reporters cover the "just the facts, ma'am" side of things, right?

Ann Althouse said...

Stiles: I agree that Milbank's article is about what it's about. I even think it's funny to say ""Humphrey's Executor" (whoever he is)." I was on "Reliable Sources" with Milbank yesterday and was struck by how little interest he had in the law side of things. You're right that he's about the politics. Where I have a problem is at the point where the assertion is made that Alito was saying nothing or saying only "gobbledygook." Also, Milbank, who has the job of covering the hearings, like many of the other reporters with this important assignment, did not seem to take seriously the potential for thinking about the legal issues. He commented on the show yesterday that most of the reporters, if they didn't walk out of the room altogether, were doing things like playing computer solitaire or surfing the web. If they did the latter, I wonder if they encountered the bloggers who were acually simulblogging and following the issues -- unpaid.

Ruth Anne Adams said...

Sippican: are you an eager young lad? a roue? a cad?

Brilliant song parody. Loved it.

reader_iam said...

Stiles and ChrisO:

Your defense doesn't answer why the man couldn't do a quick google (see my earlier comment).

There's no excuse for not doing that.

And there are links that come up which can give enough info for a layperson to understand, or for a journalist to present information that a layperson can use to understand. That's a journalist's job, dontcha know (I do, because I've been one).

Or don't we believe that journalists serve the public anymore? I mean, that's why they get the special mention and protection in the Constitution, isn't it?

But then, maybe I'm hopelessly naive and idealistic.

SteveR said...

Ann: His comment about the disinterest of reporters struck me in a similar way. Why do we (or should we) bother with them? Not only are they pretending to be unbiased when clearly they aren't, they don't care enough to pay attention. I'm fine with being biased and not caring but let's be up front about it.

bearbee said...

Sorry but for this layperson the article was just another brick of useless verbiage in a universe tottering under a rubble heap of useless verbiage...nothing more...

ChrisO said...

reader_iam

The point I was making is that he didn't bother to Google the term because he was never going to write an explanation of it in this particular article. He may actually have Googled it. But a writer trying to emphasize the (relatively) arcane nature of something will share his audience's bewilderment, not offer a dictionary definition. I suspect Milbank knows how to use Google, and probably does with some frequency.

But the point of the article as I read it was to contrast the difference in approach between the different parties in the hearing. Alito stuck to a somewhat dry, legalistic way of speaking, avoiding hot button terms. The Democrats used charged terms, hence the number of Vanguard and CAP references. And the Republicans used a lot of soft and complimentary terms.

And Ann, I don't know what Milbank might have said to you in the green room, but I never got the sense in the article that he was condemning Alito for using gobbledygook. He was just doing a rough analysis of the linguistic approach, if you will, to the hearings. I think you were being just a little too sensitive there. I'm sure all the lawyer jokes must get old.

SippicanCottage said...
This comment has been removed by the author.
John Althouse Cohen said...

For the politically interested layperson at home, Humphrey's Executor is "legal gobbledygook" and that is Milbank's audience, not the ConLaw community.

Stiles and others who are making this point are leaving out the fact that Alito thoroughly explained what Humphrey's Executor is and why it's important, in terms that should be comprehensible by a layperson.

Ann Althouse said...

John: 'Stiles and others who are making this point are leaving out the fact that Alito thoroughly explained what Humphrey's Executor is and why it's important, in terms that should be comprehensible by a layperson."

They were too busy observing that it was all gobbledygook and that he wasn't saying anything to listen carefully enough to have a shot at understanding it. But yeah, it was quite comprehensible, even though, in Senator Kennedy tried his best to fuzz it up because it had to do with the "unitary executive" issue that he was trying to alarm people about. From the transcript of 1/12:

SENATOR EDWARD KENNEDY (DEMOCRAT

Just to initially follow up on the last area of questioning by Senator Leahy about the unitary presidency, I, I've asked you questions about this earlier in the week and my colleagues have. I'm not going to get back into the speech that you gave at the Federalist Society. One aspect, well, I'll mention just the one part of it that is of concern: 'If the administrative agencies are in the federal government, which they certainly are, they have to be in one of those branches, legislative, executive, judicial, and the logical candidate is the executive branch."

SENATOR EDWARD KENNEDY (DEMOCRAT

'And the president," it continues, 'the president has the power and the duty to supervise the way in which the, to which the board and the executive branch officials exercise the president's power, carrying federal law into execution." So we, we asked you about that power and that authority. And you responded, as I think you just repeated here, that the Humphrey case was the dominating case on this issue. Am I roughly correct? I'm trying to get through some material.

JUDGE SAMUEL ALITO (US SUPREME COURT JUSTICE NOMINEE)

It was that, yes. It was the leading case. It was followed up by Morrison cases.

SENATOR EDWARD KENNEDY (DEMOCRAT

Followed up by the Morrison case as the controlling case on these administrative agencies. But what you haven't mentioned to date is that the theory, what you, you haven't mentioned to date is your dissent from the Morrison case. We've been trying to gain your view about the unitary presidency. Most people believe we have an executive, legislative, and judicial, and now we have this unitary presidency which many people don't really kind of understand and it sounds a little bizarre.

SENATOR EDWARD KENNEDY (DEMOCRAT

We want to know about, you've indicated support for it. You've commented back and forth about it. You've indicated the controlling cases that establish the administrative agencies. You refer to the Morrison case as being guiding, the authority. This in the Morrison, at, at, your comments about the Morrison, you say, you then proceed to outline a legal strategy for getting around Morrison. This is what you said: 'Perhaps the Morrison decision can be read in a way that heeds, if not the constitutional text that I mentioned, at least the objectives for setting up a unitary executive.

SENATOR EDWARD KENNEDY (DEMOCRAT

'That could lead to a fairly strong degree of presidential control over the work of the administrative agencies in the area of policy-making." Our questions in this hearing is: What is your view of the unitary presidency? You've responded in a number of our people, but we were interested in your view and your, your comments on the, on the Morrison case, which you say is the controlling, but we want to know your view.

SENATOR EDWARD KENNEDY (DEMOCRAT

And it includes these words: 'That could lead to a fairly strong degree of presidential control over the workings of the administrative agencies in the areas of policy-making." Now, that would alter and change the balance between the Congress and the president in a very dramatic and significant way, would it not?

JUDGE SAMUEL ALITO (US SUPREME COURT JUSTICE NOMINEE)

I don't think that it would, Senator. The administrative agencies, the term administrative agencies is a broad term, and it includes...

SENATOR EDWARD KENNEDY (DEMOCRAT

The Federal Reserve?

JUDGE SAMUEL ALITO (US SUPREME COURT JUSTICE NOMINEE)

It, it includes agencies that are, that are not regarded as so-called independent agencies. The agencies, it includes agencies that are within, that are squarely within the executive branch under anybody's understanding of the term, agencies where, that are headed by a presidential appointee whose term of office is at the pleasure of the president.

JUDGE SAMUEL ALITO (US SUPREME COURT JUSTICE NOMINEE)

And that's principally what I'm talking about there, the ability of the president to control the structure of the executive branch, not agencies, the term administrative agencies is not synonymous with agencies like the FTC, which was involved in the, the Humphrey's Executor case where the agency is headed by a commission and the commissioners are appointed by the president for a term of office and there are conditions placed on the removal of the agency, of, of the commissioners.

SENATOR EDWARD KENNEDY (DEMOCRAT

Well, the, the point, Judge, the answers you gave both to my colleagues, Senator Leahy, Durbin and to me, in the quote, 'The concept of a unitary executive does not have to do with the scope of executive power," really was not accurate. You're admitting now that it has to do with the administrative agencies and this would have a dramatic and important reconsideration of the balance between the executive and the Congress.

SENATOR EDWARD KENNEDY (DEMOCRAT

I haven't got the, the time to go through. But we're talking about the Federal Reserve, Consumer Product Safety, the Federal Trade Commission, a number of the agencies that would be directly considered and that have very, very important independent strategy.

JUDGE SAMUEL ALITO (US SUPREME COURT JUSTICE NOMINEE)

Senator, as to the, the agencies that are headed by commissions, the members of, of which are appointed for terms, and there are limitations placed on removal, the precedents, the, the, the leading precedent is Humphrey's Executor. And that is reinforced, and I would say very dramatically reinforced, by the decision in Morrison, which did not involve such an agency. It involved an officer who was carrying out what I think everyone would agree is a core function of the executive branch, which is the, the, the enforcement of the law, taking care that the laws are faithfully executed.

SENATOR EDWARD KENNEDY (DEMOCRAT

But the, the point here is you take exception to Morrison. You're very clear about, we're interested in your views. We understand the Humphrey's and Morrison are the guiding laws. But we've talked about stare decisis and other precedents. But you have a different view with regards to the role of the executive now, an enhanced role, what they called the unitary presidency. And that has to do, as well, with the balance between the executive and the Congress in a very important way, in terms of the use of administrative agencies.

SENATOR EDWARD KENNEDY (DEMOCRAT

I haven't got the time to go over through. But we did have, but we did have some discussion about those agencies and how it would alter, how it would alter the balance of authority and power between the Congress and the executive. That's very important. I mean, I, I don't, it's a, it's enormously interesting. We've had Professor Calabresi from Harvard University spelled this out in great detail now.

SENATOR EDWARD KENNEDY (DEMOCRAT

And I know you've separated yourself a bit from his thinking, to the extent that he would go in terms of administrative agencies. The point is, it would be a different relationship if your view was the dominant view in the Supreme Court between the executive and the Congress. And that, that's really the point. I want to...

JUDGE SAMUEL ALITO (US SUPREME COURT JUSTICE NOMINEE)

Well, Senator Kennedy, what I've, what, what I've, I've tried to say is that, that I, I regard this as a line of precedent that is very well developed, and I have no quarrel with it. And it culminates in Morrison in which the Supreme Court said that even as to an inferior officer who's carrying out the core executive function of taking care that the laws are faithfully executed, it is permissible for Congress to place restrictions on the ability of a president to remove such an officer, provided that in doing so there is no interference with the president's authority. And they found no interference with that authority there.

JUDGE SAMUEL ALITO (US SUPREME COURT JUSTICE NOMINEE)

And that's a, and that, that is a, that is a, an expression of the Supreme Court's view in, in, on an issue that's, where the, where the claim for, where the claim that there should be no removal restrictions imposed is far stronger than it is with respect to an independent agency like the one involved in Humphrey's Executor.

SENATOR EDWARD KENNEDY (DEMOCRAT

Well, the, the point is that you've differed with the Morrison and outlined a different kind of a strategy. I want to move on.

Lou Wainwright said...

I'd never heard of Humphrey's Executor until now, but I must say that the opinion was very interesting to read. I'm surprised that the issue of congress empowering independent agents hadn't been ruled on until 1935! I also found it facinating that such a significant case reached the court through a mundane request for back-pay. I love cases like that.

Al said...

I have to agree with Stiles and Chris O. It seems to me that Ann Althouse is completely missing the point of the article - which was, to my mind, to describe what the hearing sounded like to an average layperson who has zero versing in Constitutional law. To that person, "Humphrey's Executor" IS gobbledygook, even while it may be vitally important to a law professor. If Ms. Althouse had attended hearings of the American Physics Society, she could aptly describe the discussion of quantum loop gravitational theory as "gobbledygook" too, since that's what they sound like to a lay person in physics.

Accordingly, it is beside the point to point out that Humphrey's executor is on Google. The average layperson who happened to tune into CNN and happened to catch a couple of minutes of the hearings isn't going to go straight to Google to conduct an hour's research into the case.

In sum, if the story were written as a legal analysis of Alito's testimony, Ms. Althouse's comment would be correct. But it wasn't.

Al said...

I'll add - in response to John Althouse Cohen's point - yes, it may not have been gobbledygook if you listened to the entire testimony and happened to catch the couple of minutes in which Alito explained it. But's what the real likelihood that an average person happened to tune into that little segment?

And, is it really that bad if some of the testimony was "gobbledygook" to some people (i.e., those laypeople who missed the explanation Alito gave)? I think that most people understand that Alito is an expert testifying about some pretty advanced materials here, and that average people therefor may not always understand everything that's going on (and that's OK!).

Palladian said...

"I have to agree with Stiles and Chris O. It seems to me that Ann Althouse is completely missing the point of the article - which was, to my mind, to describe what the hearing sounded like to an average layperson who has zero versing in Constitutional law. To that person, "Humphrey's Executor" IS gobbledygook"

So, do we need a highly paid reporter telling us how we don't understand it? Isn't the ideal reporter's job to inform, to lift up the people, to be able to take these raw, complicated legal and political events and transform them into a comprehensible narrative? I realize that the answer is no in many cases, but that's just sad.

Ann Althouse said...

Alex: YOU'RE missing that I've acknowledged that Milbank's article is what it is. I'm pointing out something it ISN'T. So you're missing the point of my post. I appreciate the article for what it is, a humorous, light reflection on things. I even said I thought the crack about Humphrey's Executor was funny. I'm sure Milbank can understand the case. The thing is that Humphrey's Executor is SUCH an important case and it was central on one of THE main issues discussed at the hearings, the charge that Alito had an extreme view of presidential power. It's kind of like saying Roe v. Wade, whatever that is. That could be a wisecrack, but it would also be a way to say I don't care about the legal issues. And, as I've said, Milbank made a point yesterday of saying that Alito didn't say anything!

Alec Rawls said...

I read the case and it is a rotten ruling, allowing Congress to set up executive arms independent of the executive branch, without even considering whether this is constitutional. All it says is that, because this is what Congress is doing, the executive branch does not have power over the created arm. It's not just incompetent, it's malfeascent.

cantremember said...

Sippican Cottage and Ruth...lovely exchange and just the sort of thing I come to blogs to read! And the lovely hostess's writings as well, of course! And the question of why these people get paid to bloviate about stuff they don't care about and can't be bothered to research is a good one.

Or maybe,...where do I get one of those jobs?

Stiles said...

For those decrying the lack of context Milbank provided for Humphrey's Executor, I invite you to rewrite that section to show us how you would explain the decision within the space constraints of the article. Terms like stare decisis and Vanguard were described economically. Can that be done with this decision?

As I read it, the article was about looking at how language was used in the hearing. In a sense, the analysis has two zingers. We've gone over the "legal gobbledygook" zinger pretty thoroughly. I tend to agree with Alex that we expect content experts to use terminology in specialized discussions that is remote to a lay audience and that the zinger was not necessarily disparaging Judge Alito.

The second zinger was for the Committee, noting that they used "I" much more than the nominee. There is little that is not disparaging to the Senate in that, although it is richly deserved. It has been well observed in both the old and new media that the hearings are a platform where the professional politicos posture, preen, and generally look in their mirrors of political vanity.

If anything, we should be disappointed that the Committee, with a majority of lawyers, did not engage Judge Alito more in a dialogue using "legal gobbledygook" instead of the speechifying.

TallDave said...

How dare he "rely heavily on the language of law books" and use "legal gobbledygook!" Why, you'd think he was at a Senate hearing discussing his qualifications for the Supreme Court, or something! Truly, America has become a fascist police state under Bushitler.

The horror. My God, the horror.

Stiles said...

And, Ann, I recognize that you appreciate the article for what is is, both the good and the bad.

One positive is that the article and the ensuing discussion here have almost certainly caused many readers to Google Humphrey's Executor and we are better informed for it!

Al said...

"The thing is that Humphrey's Executor is SUCH an important case and it was central on one of THE main issues discussed at the hearings, the charge that Alito had an extreme view of presidential power. It's kind of like saying Roe v. Wade, whatever that is. That could be a wisecrack, but it would also be a way to say I don't care about the legal issues."

The fact that the case is very, VERY important does not go to whether it is understandable to a lay person. So your analogy to Roe doesn't work either - Roe ALREADY IS understood by most lay people. In terms of understandability, Roe is nothing at all like Humphrey's Executor. Again, that's not to say either or both are or are not important.

Perhaps I am just missing the point of your post. If you're saying that Milbank should explain the case because it's important even though explaining cases (even where they are important) has nothing to do with the point of his article, then I'll politely disagree.

Sigivald said...

Alex: Actually, I'd say most laypeople don't seem to really understand Roe either; they think "it made abortions legal!", when that's not strictly accurate either, is it?

Etc. Etc.

Quo Vadis said...

I think the real point one may draw from the confirmation proceedings is that some of those involved view the proceedings as a forum for the public debate of specific issues and others believe that the purpose is to evaluate the candidate's judicial qualifications.

The former requires the understanding of the general public and the latter pretty much precludes it.

TallDave said...

It's another sign of the fascist police state under Chimpy McHitlerBurton that his appointees refuse to make statements that laypeople can instantly understand.

I think that alone is grounds for for filibustering the nominee, if not for impeaching the President for having the gall to nominate someone who tries to befuddle our beloved laypeople with legal jargon.

Sic semper tyrannis!

Charlie (Colorado) said...

I just can't begin to fathom why one would have someone who doesn't understand the issues before them - or at least, how to use Google - write a story about legal issues.

I agree, but considering the way they treat military issues, science, mathematical issues, or pretty much any other kind of domain knowledge, why be shocked that they don't know anything about law either?

ChrisO said...

TallDave

Really, this is getting a little old. I take it your "Chimpy McHitlerBurton" stuff and "we should impeach him" is supposed to be some devastating takeoff on liberal posting. Well guess what? It stopped being funny about the 500th time somewhat posted it on a conservative blog. It's like you cut and pasted that comment from any one of a hundred web sites. What is it that makes you keep thinking that's amusing? I bet you yell "Git 'er done" at comedy shows, too.

I don't mind a little intelligent skewering of liberals, but really, if that weak, unoriginal s**t is all you have to offer, perhaps you could keep it to yourself.

Quadraginta said...

I think Mr. Alito is a good guy, and will make a great justice, but I'm with Alex. If an astrophysicist gave testimony in front of a Congressional subcommittee charged with deciding whether to appoint him as director of a national agency with a budget of $100 billion, and charged to defend the Earth against an asteriod impact, and Mr. Astrophysicist stuck to even such mildly technical terms as "kinetic energy," "impact parameter," "orbital elements," and so forth, I wouldn't be surprised to see lots of law bloggers complaining that he avoided speaking plainly, making it harder for ordinary citizens to decide whether to trust him with so important a responsibility.

I understand why he did it, of course, given the highly charged nature of answering plainly about the legal issues facing the Supreme Court. But I find it regrettable. Unlike some members of the legal monestary, I don't think the Constitution was meant to need brains the size of a planet to fully comprehend. It's meant to be something that makes plain sense to any ordinarily intelligent and ordinarily educated man or woman. If we have come to the point where we need an aristocracy of priest-interpreters to tell us what our basic governing document says, and we reg'lar folks are incapable without a glossary of even following the discussion of whether a given candidate is suitable for admission to their august ranks, we're screwed.

Kevin L. Connors said...

I see a big part of the problem here that Washingtonpost.com is hobbled by being nothing more than an online version of the dead tree WaPo.

Were it edited and produced to take advantage of the power of the internet, Humphrey's Executor could have included a hyperlink, rather than the idiotic "whoever he is."

I have to admit, that case is a new one on me. But I prefer to be challenged and enlighted by my reading, not simply entertained. Had there been a link there, the article might have served that purpose, rather than being just so much "journalistic goobledygook."

Simon said...

"your analogy to Roe doesn't work either - Roe ALREADY IS understood by most lay people. "

I don't agree. Certainly, they've heard of Roe, and they may well think they understand it, but I would be willing to bet that if you asked "most lay people" what Roe v. Wade did, they would say something along the lines of "it's the decision that legalized abortion." It might have also done that, but that is the least of what Roe actually says and does, and an understatement of it, at that.

ac0222 said...

I dont think there was a problem in Alito's lack of clear cut answers. Based on the "super-duper Ginsberg precedent," shouldn't the Dems know it is "settled law" that no nominee should have to answer any question that might compromise their judicial integrity? Funny how that excuse works for them, but not anyone else.

vnjagvet said...

In Humphrey's Executor, a unanimous Supreme Court held that when Congress creates an agency (there the FTC) and prescribes how the the president appoints the agency's commissioners, for how long, and that the President may fire them for only three specific reasons, the president may not fire them for any reason but the three specified reasons.

FDR had fired Humphrey from the FTC because he did not like his political philosophy. SCOTUS said that was not proper because it was not one of the premissible reasons for firing Huphrey. It held the executor of Humphrey's estate could recover his salary from the date of his illegal firing until the time of his death.

SCOTUS also held that Congress's limitations on such firing did not encroach unconstitutionally on the President's executive powers.

This holding made clear that the President does not fully control all agency heads outside the legislative or the judicial branches. It has not been seriously questioned since it was decided seventy some years ago by the "nine old men".

It also established that even FDR during the height of his domestic powers was not above the law.

This was a big deal even to political scientists, politicians and other students of government.

It took up two days of class in my sophomore year American Government class in 1958.

TallDave said...

"It stopped being funny about the 500th time somewhat posted it on a conservative blog."

No, actually it started being funny the 500th time someone posted it on a lefty blog, and it will continue to be funny as long as lefties continue to sound like that.

Which, from the look of things, is a while.

AST said...

It strikes me that doing a word/phrase count is a lazy way to write about a confirmation hearing.

I thought that it was a lot of legalese for most viewers to understand, but what did Milbank do to clarify anything? The Senators who went beyond CAP used a lot of gobbledygook, too.

What struck me as ludicrous was the variety of ways they tried to get him to say whether he would vote to overrule Roe v. Wade. If he'd said yes, what would that prove? And if he'd said no, they wouldn't have felt obligated to vote for him.

Is lying about your views on Supreme Court precedents an impeachable offense? And how would you prove it if it were?

What I would have told the Democrats is to forego any questioning except, perhaps, to test how bright he is. Then make the arguments on the floor, which is what they'll do anyway. It's a lot easier to falsify a man's image when he's not sitting in front of you.

Simon said...

"I thought that it was a lot of legalese for most viewers to understand, but what did Milbank do to clarify anything? "

Worse yet, not only did he fail to clarify things, he actually made them murkier.

JLR said...

Myers v. United States

What would have been daring, had any of the Democratic Senators or their staffs wanted to truly test Judge Alito's ability to speak off the cuff about con law, would have been to ask a follow up question on Humphrey's Executor. Namely, would Judge Alito agree with the holding in Myers v. United States (272 U.S. 52; 1926), which was modified by the ruling in Humphrey's Executor nine years later. Myers ruled that the President could fire postmasters general without consent of the Senate, but the principle that was articulated in the holding was quite broad. Chief Justice Taft wrote:

"The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates. This view has since been repeatedly affirmed by this court. ... As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws. The further implication must be, in the absence of any express limitation respecting removals, that as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible."

Humphrey's Executor, in Justice Sutherland's opinion, distinguishes FTC Commissioners from postmasters general; Justice Sutherland writes:

"The office of a postmaster is so essentially unlike the office now involved that the decision in the Myers case cannot be accepted as controlling our decision here. A postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The actual decision in the Myers case finds support in the theory that such an officer is merely one of the units in the executive department, and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aid he is. Putting aside dicta, which may be followed if sufficiently persuasive but which are not controlling, the necessary reach of the decision goes far enough to include all purely executive officers. It goes no farther; much less does it include an officer who occupies no place in the executive department, and who exercises no part of the executive power vested by the Constitution in the President."

This is an eminently reasonable distinction to make, one that Judge Alito has (given his statements in support of Humphrey's Executor) implied he agrees with as a matter of precedent. But it would have been interesting if those Senators concerned about Judge Alito's views about the scope of judicial power had pressed him about Myers, and whether he agreed with the ways that Humphrey's Executor narrowed the scope of the implications of Myers.

JLR said...

The last sentence of my above comment should say "scope of executive power," not "scope of judicial power."