SharksWithLasers -- Seth Cooper

A CUTTING-EDGE BLOG FOR THE WORLD OF THE 21st CENTURY, Currently operated by Seth L. Cooper, a 27 year-old attorney in Seattle (sethlcooper at comcast dot net)

Friday, April 15, 2005

KERR ON THE CONTINUANCE OF THE PATRIOT ACT. Today I had the good fortune to attend a small, brown bag lunch at the offices of Davis Wright Tremaine—across the street from my own office—to hear Professor and Volokh Conspirator Orin Kerr give a talk: “The Renewal of the Patriot Act: What Should Congress Do? What Will They Do?”

I won’t attempt any sort of comprehensive summary of Kerr’s talk or provide any quotes. But I will say that I found it informative and...refreshing. For there was an actual discussion about the Patriot Act without a resort to hysterics!

Kerr noted that there are, in a sense, two Patriot Acts: 1) the Patriot Act that was actually passed by the Congress and signed by the President; and 2) the Patriot Act as portrayed through certain media outlets, the ACLU and like-minded, outspoken critics. He pointed out that there is a wide gap between these respective versions.

One might say there is now a convergence of these two versions in Congress, as many provisions of the Patriot Act are set to expire under it sunshine provisions. Congress has the task of examining such provisions, with an eye toward renewal. The differences between the Patriot Act's opponents and propoenents are smaller than commonly perceived through media accounts, and those differences will be dealt with accordingly. One should not expect all sides to come away with everything they want, but some compromises will be made on the differences.

Kerr did say that there are two provisions of the Patriot Act for which some legitimate objections have been raised, (and for which there is some acknowledgement by the Department of Justice). Specifically, Kerr cited the “sneak and peek” provision concerning the execution of warrants and delayed notice. Such delayed notice procedures are nothing new to American law, but in times past the reasonable delay in executing such warrants was set by judicial decision and was of a much shorter time period than allowed under the statute. Look for an alteration of this provision.

Another objectionable provision of the Patriot Act that Kerr mentioned is Sec. 215—the so-called “library provisions.” Kerr stated that there is DOJ acknowledgment that the provision was terribly written. But on the other hand, the provision did not serve as the monstrosity proclaimed by opponents. Governments run public libraries, and one has to ask whether there is any expectation of privacy concerning the books one checks out at public libraries.

There is far less attention being paid to the renewal of the Patriot Act, according to Kerr. He attributed this, in large measure, to the fact that there is far less of a wide-ranging disagreement over what should be in the law. In fact, much of the Patriot Act was taken from pre-existing reform proposals which had a general consensus of support.

All in all, it was one worthwhile talk by one sharp legal scholar. It will be interesting to listen to the public debate as the Patriot Act renewal process goes forward.

(Downtown Seattle, WA)

Thursday, April 14, 2005

MESSAGE TO SENATE REPUBLICANS: DON'T BE AFRAID OF WINNING. My favorite read of the day comes from Hugh Hewitt in Daily Standard. "Lead the Way," is the title of his column, with a subtitle that says it all. Namely: "Senate Republicans may not understand the true stakes in the coming judicial showdown."

In the article, Hewitt discusses some recent discussions he had from left-of-center leaders who would demand a Democratic filibuster if faced with the prospect of a Judge Michael McConnell, Judge Michael Luttig nomination to the U.S. Supreme Court. They'd also demand filibuters for John Roberts and Miguel Estrada.

The Senate Democrats' have been hurt by their obstructionism. Election results in 2002 and 2004 are proof positive. The Senate Dems have been hurt by their racially-motivated attaks on Estrada and their religiously-motivated attacks on Judge William Pryor. The Senate Dems, including FORMER Minority leader Tom Daschle, are apparently so far out of it on this matter that they not only continue in the same vein but now threaten to escalate things by shutting down the government.

Given this state of affairs, the Republicans will be snatching defeat from the jaws of victory if they do not wake up and realize the American people want President Bush's judicial nominees confirmed. The last two elections spell this out.

So read Hewitt's column. If the Republicans push ahead the Democrats will face a choice: concede to the majority part and the majority of the people, or engage in further obstruction and risk relegating themselves into oblivion in 2006.

(North Seattle--Green Lake, WA)

Wednesday, April 13, 2005

DON'T CLONE AROUND. As Timothy Goddard notes on his blog, he and I co-authored an op-ed that appears in today's edition of The Herald (Snohomish County, WA). I'll have more on this soon.

(North Seattle--Green Lake, WA)

Tuesday, April 12, 2005

IS IT JUST ME, OR ISN'T IT A BIG NEWS STORY WHEN A FORMER NATIONAL SECURITY ADVISER PLEADS GUILTY TO CHARGES OF REMOVING AND DESTROYING CLASSIFIED DOCUMENTS FROM THE NATIONAL ARCHIVES? Just last Friday, former Clinton National Security Adviser Sandy Berger plead GUILTY to charges brought against him by the Justice Department. But I've heard little on this matter--even from center-right media. In contrast, I have heard many more stories about Rep. Tom DeLay and House ethics rules.

Of course, some Old Media/Legacy Media folks did provide some coverage, some of which "The Scrapbook" (at Weekly Standard) quotes as follows:

The New York Times--which often disapproves of lawbreaking, document destruction, and cover-ups by high government officials--went notably easy on Berger. "Ex-Clinton Adviser to Admit Taking Classified Papers," read their headline. (The Washington Post headline made the more obvious point: "Berger Will Plead Guilty.") According to Times reporter Eric Lichtblau, Berger had "agreed" to plead guilty, had "agreed" to "give up his security clearance for three years," and would pay a $10,000 fine. Lichtblau's walk-up piece bent over backward to minimize Berger's criminal activities, while stressing his reputation as "a respected figure in foreign policy circles for years."


Despite the claims by many former big-shots in the Clinton Administration and by some prominent Kerry campaign officials that the Berger mess was entirely contrived by dishonest Republicans, one should not expect Republicans to be exhonerated. To the contrary, notes "The Scrapbook:

Don't hold your breath waiting for any reporters to notice that Berger's Republican critics have been vindicated. As the Washington Post went out of its way to note, Berger "did not put it in his socks or underwear, as was alleged by some Republicans last summer."


David Limbaugh has a column from last week on this matter--entitled "The Burger Wrist Slap: A Dangerous Precedent." It is suggested reading on this matter. One cannot easily dismiss Limbaugh's observation about Berger that:

His actions -- even if you naively believe they weren't in furtherance of a Clinton cover-up -- grossly undermined the integrity of our investigative process and national security in general.


Besides raising public consciousness about this matter, perhaps the best option available to Republicans was laid out by Robert Moran in NRO, yesterday. In "The Sandy Berger Bind," he recommends that the penalties be increased to reflect the severity of the sort of offense that Berger committed. In the time since 9/11 we have scrutinized our nation's intelligence system, and increasing the penalty for removing and destroying classified information is entirely consistent with our heightened concern over our nation's security.

(North Seattle--Green Lake, WA)

Monday, April 11, 2005

VOLOKH'S 101 ON BLOGS & BLOG-READING. Prof. Eugene Volokh offers a short list of points about what blogs have to offer, at Volokh Conspiracy. I notice the post a few days ago, and I do recommend it.

(North Seattle--Green Lake, WA)
A NEW CONSTITUTION? I LIKE THE ONE WE HAVE NOW. This past weekend Powerline had a couple posts (here and here) on a recent Yale Law School conference called "The Constitution: 2020," in which some prominent left-of-center legal eagles chimed in on the ways they'd either like to amend the constitution or de facto amend it through judicial decree.

The speakers included Cass Sunstein, Bruce Ackerman, David Boise, Walter Dellinger, John Podesta, and Kathleen Sullivan. When I was in law school I would frequently hear talk about how the Constitution needs to be updated and how we can't be stuck in the past, or other such canards. These "progressives" emphasized their dissatisfaction with the Constitution that Madison, Hamilton, Wilson, Morris and others gave us and think themselves wise enough to give us a new one. (The Powerline post contains links to the conference's web site.)

While it is not exactly fair to compare ANY contemporary legal scholars or statesmen to our Founding Fathers, I will say that the amount of trust I place in the Constitution given us by the Founders is INFINITELY greater than what I would place in the work of ANY present-day group of legal elites. The original Constitution did not serve to overcome the scourge of slavery--THAT took a Lincoln, a bloody Civil War, and constitutional amendments. But I wouldn't ever compare ANY contemporary legal scholars to Linclon, either.

(North Seattle--Green Lake, WA)
THE COMMON SENSE CONSTITUTION. Arthur Herman has an OUTSTANDING article today at NRO. Entitled “The Jury of the Country," Herman discusses our much-neglected Founding Father James Wilson and the tradition of Reidian Common-Sense Realism. Remember, Wilson, James Madison and Gouvernor Morris spoke at the Constitutional Convention more than any of the other delegates. And Wilson later became a Justice of the original U.S. Supreme Court--appointed by President George Washington, no less.

Going back to the Scottish Enlightenment thinking that so influenced Wilson (and so many other great thinkers in early America), Herman succintly summarizes Reid's ideas:

Reid taught that all human beings come equipped with a fundamental understanding of reality called common sense. Common sense enables us to judge the world and make our most important decisions about up and down, right and wrong, truth and falsehood. It is the enemy of moral relativism and intellectual pretension, and both Reid and Wilson believed that it was by expanding the reach of common sense through experience, and gaining confidence in our own intellectual powers, that we become truly and morally free.


Even more interesting is Herman's analysis of the Reidian-influenced, Wilsonian understanding of constitutional authority and the role of the judiciary in constitutional interpretation and adjudication:

...the Supreme Court was supposed to give American democracy a power it would desperately need, the power to use its common-sense judgment in a reflective way. By looking at a particular law, judges would decide whether it fit into the essential framework of the constitution, or not. This power of judging what is or is not constitutional was not something reserved for legal experts: It belonged to any ordinary citizen...


In short, notes Herman, Wilson viewed the Supreme Court as "the jury of the country."

I have little to add to Herman's piece other than to note that the whereas the written constitution probably implies a kind of judicial review that goes beyond Wilson's expectations, Wilson most certainly never advocated judicial supremacy--the idea that the Constitution is whatever the Supreme Court says it means.

Since the Constitution was written, adopted, ratified and subsequently amended, by and for the American people, all concerned citizens would do well to remember Wilson.

(North Seattle--Green Lake, WA)
HUMAN CLONING BILL NEARS FINAL PASSAGE. The Senate’s vote on EHB 1268—promoting human cloning in the State of Washington—is now imminent. The bill has been placed on Third Reading and is awaiting a vote on the Senate floor. Unless key aspects of the bill are amended, EHB 1268 will enshrine human cloning in our State’s law.

Dr. Sharon Quick recently sounded the alarm on this bill in an op-ed from last Thursday’s Seattle P-I. Notes Dr. Quick:

Passage of this bill would give Washington the deplorable distinction of allowing manufacture of human embryos purely for destructive research, a practice typically scorned by supporters of embryonic stem cell (ESC) research.

Remember, this is the bill that purports out outlaw the cloning of human beings…and then re-defines the cloning of human beings to mean the growing of human life all the way to birth. In reality, the bill specifically provides for somatic cell nuclear transfer (SCNT). By its terms, the legislation allows for fetal farming and the creation of animal-human hybrid species.

Senator Val. Stevens (a Republican representing rural Snohomish County), has offered an important amendment that could correct EHB 1268’s serious ethical shortfalls.

Specifically, Sen. Sevens’ amendment would offer a more honest definition of human cloning. The amendment states, in pertinent part:

"Cloning of a human being" means human asexual reproduction,
accomplished by introducing nuclear material from one or more human somatic cells into a fertilized or unfertilized oocyte whose nucleus has been removed or inactivated to produce a living organism at any stage of development with a human or predominantly human genetic constitution that is genetically virtually identical to an existing or previously existing human organism.

Sen. Stevens’ amendment gets it right. The amendment would ban the creation of human life for the sole purpose of harvesting it as raw material. Further, the amendment would still permit adult stem cell research.

This amendment is also realistic. It does not prohibit ESC research altogether. Leftover embryos that had been stored for in vitro procedures, for instance, might still be used for ESC research. Even Dr. Leon Kass of the President’s Council on Bioethics has not advocated an outright ban on all ESC research, which he considers impractical and difficult to enforce. But Dr. Kass has strongly insisted that life should NOT be created specifically for the purpose of ESC research. Sen. Stevens’ amendment is in line with this principled and practical view.

In present form, EHB 1268 is unacceptable. But Sen. Stevens’ amendment offers a solution. Simply put, the Senate should amend it or end it. Concerned citizens should contact their Senators ASAP. Their contact information is available online, and the legislative hotline is: 1-800-562-6000.

UPDATE (1:00pm): EHB 1268 was DEFEATED by a vote of 23-26 in the Senate. One Senator gave notice for reconsideration of the bill on Third Reading, however. So it is not officially dead.

(Cross-blogged at Sound Politics.)

(Downtown Seattle, WA)