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June 25, 2012

All juvenile defendants get narrow procedural Eighth Amendment win in Miller

Though I am still trying to figure out all the opinions in today SCOTUS Eighth Amendment ruling in Miller v. Alabama (opinion here, basics here), I think I am correct to assert that the ruling is a (surprising?) big win for any and all older juveniles sentenced to LWOP under a mandatory sentencing scheme, while also appearing to be a (surprising?) potential loss for anyone hoping or expecting the Supreme Court to declare unconstitutional any and all LWOP sentences for any and all juvenile offenders.

Here are the paragraphs from the start and end of the majority opinion in Miller per Justice Kagan which lead me to the conclusion that the Miller ruling is pretty limited and narrow as a win for juvenile defendants:

The two 14-year-old offenders in these cases were convicted of murder and sentenced to life imprisonment without the possibility of parole.  In neither case did the sentencing authority have any discretion to impose a different punishment.  State law mandated that each juvenile die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence (for example,life with the possibility of parole) more appropriate.  Such a scheme prevents those meting out punishment from considering a juvenile’s “lessened culpability” and greater “capacity for change,” Graham v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 17, 23), and runs afoul of our cases’ requirement of individualized sentencing for defendants facing the most serious penalties.  We therefore hold that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.”...

Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.  By requiring that all children convicted of homicide receivelifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemesbefore us violate this principle of proportionality, and sothe Eighth Amendment’s ban on cruel and unusual punishment.  We accordingly reverse the judgments of the Arkansas Supreme Court and Alabama Court of Criminal Appeals and remand the cases for further proceedings notinconsistent with this opinion.

I am very much drawn to this procedural approach to the issues in Miller and Jackson, in part because this was the way I urged the Court to resolve these cases in this amicus brief I filed along with my students.  But, until I have a full chance to review the holding and dicta in the Miller opinions, I am not quite yet ready to praise without reservations this new important Eighth Amendment decision.

June 25, 2012 at 10:40 AM | Permalink


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hack judges hooking up vicious criminals--what does one expect?

Funny how Kagan digs so deeply here, but she was too dumb to figure out that when she decided to treat military recruiters like second-class citizens that the military had no choice in the DADT policy, since it came from Congress. Gotta love it--someone who will treat military recruiters like dirt, but give succor to a bunch of vicious criminals. Sums up a big part of the Democratic Party.

Posted by: federalist | Jun 25, 2012 10:49:29 AM

Kagan didn't "decide" -- she followed law school practice & the actual members of the military who wrote in her support is more convincing than the smear job provided in that first comment. As is actual practice, in when the military was required to follow the same rules as everyone else. Congress than gave recruiters a special privilege and the USSC upheld it.

Let's see. Fourteen years olds cannot be mandatorily put in jail for life though via individualized treatment can be there for years on end. This is "hooking up" criminals. Knee-jerking can take out eyes. Just a kind warning.

Posted by: Joe | Jun 25, 2012 11:00:53 AM

Federalist, your hatred of Kagan blinds you to her brilliance and humanity and detracts from your crabbed arguments. Could it be envy?? Sexism? Fess up!

Posted by: onlooker | Jun 25, 2012 11:11:04 AM

Joe, the bottom line is that Kagan treated individual military recruiters like second-class citizens, despite the fact that they had nothing to do with the DADT policy. You can spin that all you like, but it was an affront--such is the patriotism of a leading light of the Democratic Party.

As for juveniles, the victims' families, who had every right to expect that LWOP was good to go, now get a lifetime of uncertainty. Many of these murderers will find a way out, and the blood that results from that--on the hands of our five lawless justices.

Posted by: federalist | Jun 25, 2012 11:14:43 AM

Federalist: although Elena Kagan wrote for the Court, four other Justices joined her opinion in full. If you want to argue that they’re all dumb, then go ahead. But to apply the argument to Kagan alone makes no sense. Supreme Court cases require five votes for a result, not one.

Posted by: Marc Shepherd | Jun 25, 2012 11:18:45 AM

She wrote it. She owns it. And last I checked, the other four justices didn't victimize people who had nothing to do with a policy she didn't like. The capriciousness of these people knows no bounds. Kagan was either too stupid to know that she was slighting the military recruiters for something the military was powerless to stop or she was just an unpatriotic evil person. Which is it? As for the opinion, it pretty much dovetails with her stupidity and capriciousness.

Posted by: federalist | Jun 25, 2012 11:48:01 AM

I'm wondering whether this holding could be extended to functional LWOP sentences.

Here, in California, almost everybody convicted of first or second degree murder, including juveniles, gets a functional LWOP sentence. In name, they receive sentences of 15-to-life or 25-to-life. But, over the past few decades, almost none of these people get dates, i.e. release on parole dates. Thus, life with possibility of parole sentences are ending up to be the same, in almost all cases, as LWOP sentences.

Seems like this holding should apply to a 16-year-old who receives a functional LWOP sentence, even though it is not nominally an LWOP sentence.

Posted by: Calif. Capital Defense Counsel | Jun 25, 2012 11:56:53 AM

I think the alleged narrowness of this opinion doesn't take into consideration Apprendi. How does one separate LWOP from LWP in cases that are long since adjudicated. Another jury? Another sentencing hearing?

Posted by: federalist | Jun 25, 2012 11:59:21 AM

Federalist, you're allowing politics and ideology to interfere with common sense. Justices are not shy about writing dissents and concurrences. When five justices sign an opinion, it means they join it in full. Go ahead and disagree with it, but to pretend that the other four votes don't exist is irrational.

Posted by: Marc Shepherd | Jun 25, 2012 11:59:34 AM

I dont see how I am pretending anything. Remember, I call Ginsburg, Sotomayor, Breyer and Kagan the reconstituted Gang of Four. Kennedy is just a useful idiot sometimes. My point is that Kagan's capriciousness and stupidity have precedent in her treatment of military recruiters. No one seems to be able to dispute that Kagan treated these guys shabbily and for something that the military had no control over (remember, the military follows the civilian laws). She gave military recruiters the back of her hand just as she does to victims' families here. This decision isn't law in any real sense of the word. It's just the raw exercise of naked power. Given that we know that Kagan is a moral pygmy already, I'd just as soon not having her imposing her warped morality on the rest of us.

To be blunt, I don't really care if people's reaction is that I am over the top. I am right about her treatment of military recruiters, and I am right about this. That Ms. Kagan is seen to be fit to be in polite company says more about her Democratic Party backers than my comments say about me. I am a rude person: I call a spade a spade.

Posted by: federalist | Jun 25, 2012 12:15:11 PM

Federalist, Kagan may be alot of things, butI don't think "dumb" is the correct adjective. I found the following on Wikipedia which I've shortened and edited:

"After graduating from high school, Kagan attended Princeton University, where she earned an A.B., summa cum laude in history in 1981.. She wrote a senior thesis under historian Sean Wilentz Wilentz called Kagan "one of the foremost legal minds in the country, she is still the witty, engaging, down-to-earth person I proudly remember from her undergraduate days." As an undergraduate, Kagan also served as editorial chair of the Daily Princetonian. Kagan graduates from Harvard Law School in 1986. She received Princeton's Daniel M. Sachs Class of 1960 Graduating Scholarship, one of the highest general awards conferred by the university, which enabled her to study at Worcester College, Oxford. She earned a Master of Philosophy at Oxford in 1983.[15] She received a Juris Doctor, magna cum laude, at Harvard Law School in 1986, where she was supervisory editor of the Harvard Law Review. Friend Jeffrey Toobin recalled Kagan "stood out from the start as one with a formidable mind. She's good with people. At the time, the law school was a politically charged and divided place. She navigated the factions with ease, and won the respect of everyone."[16] Kagan was a law clerk for Judge Abner J. Mikva of the United States Court of Appeals for the District of Columbia Circuit in 1987 and for Justice Thurgood Marshall of the U.S. Supreme Court in 1988. Marshall nicknamed the 5 foot 3 inch Kagan "Shorty".[7] She later entered private practice as an associate at the Washington, D.C., law firm of Williams & Connolly. K agan joined the faculty of the University of Chicago Law School as an assistant professor in 1991 and became a tenured professor of law in 1995. While at Harvard, she authored a law review article on United States administrative law, including the role of aiding the President of the United States in formulating and influencing federal administrative and regulatory law, which was honored as the year's top scholarly article by the American Bar Association's Section on Administrative Law and Regulatory Practice, and is being developed into a book to be published by Harvard University Press. ]In 2001, she was named a full professor and in 2003 was named Dean of the Law School by Harvard University President Lawrence Summers.[25] In 2009, Kagan was confirmed by the U.S. Senate as Solicitor General , by a vote of 61 to 31, becoming the first woman to hold the position."

If only I were as smart as she!

Posted by: Texas prosecutor | Jun 25, 2012 12:39:19 PM


Got to agree with Mark Shepard on this one. She might have been the one to write it but it would carry no legal force whatsoever if the other four were not willing to go along with it in full.

Posted by: Soronel Haetir | Jun 25, 2012 12:54:55 PM

"Joe, the bottom line is that Kagan treated individual military recruiters like second-class citizens"

Novel use of "second class" here -- not giving them special privileges.

Anyway, I'll take the word of a "a captain in the Marine Corps and 2008 graduate of Harvard Law School, is serving as a legal adviser to a Marine infantry battalion in southern Afghanistan."


But, then, when Bill Otis in a companion post didn't think the ruling as bad as all that, federalist might just be wrong here in the usual jeremiads based on how horrible judges are. Again, all this for individualized treatment that bars mandatory life imprisonment for fourteen year olds but in practice can result in them being in prison for decades all the same. The shame of it all!

Posted by: Joe | Jun 25, 2012 1:38:06 PM

Joe --

"Bill Otis in a companion post didn't think the ruling as bad as all that..."

I believe what I said was that the case is likely to have only a very limited practical effect, since, in my experience, juries are not shy about handing out LWOP sentences and can see through the psychobabble, phony "syndromes," and excuse-making that is the heart of defense allocution.

On the merits, I thought Alito's opinion the sharpest analytically.

Posted by: Bill Otis | Jun 25, 2012 2:10:12 PM

Yeah, Joe, because on guy agrees with Harvard's position on gays in military, it was appropriate to subject all military recruiters to second-class status. And the shame of it---well, we could start with the lawlessness of it, whether or not you like the policy result.

Bill, there will be ineffective rep claims aplenty from this one.

Posted by: federalist | Jun 25, 2012 2:14:43 PM

Texas prosecutor, if she's so smart then how come she punished military recruiters for a policy that the military was required to follow by law? That doesn't seem all that bright to me--unless you want to concede that she's an evil unpatriotic woman.

Posted by: federalist | Jun 25, 2012 2:15:58 PM

Federalist, Texas prosecutor above has demolished your assertion that Kagan is "dumb." You are equally off base in calling Kennedy a "useful idiot."

Kennedy is graduate of Stanford University. He spent his senior year at the London School of Economics. He earned an LL.B from Harvard Law School, graduating cum laude in 1961. From 1965 to 1988, he was a Professor of Constitutional Law at McGeorge School of Law, at the University of the Pacific. He remains Pacific McGeorge's longest-serving active faculty member.

On March 3, 1975, upon Reagan's recommendation,President Gerald Ford nominated Kennedy to the seat on the Ninth Circuit. Kennedy was unanimously confirmed by the United States Senate.

A "useful idiot"? I don't think so.

Posted by: anon2 | Jun 25, 2012 2:16:47 PM

federalist --

"Bill, there will be ineffective rep claims aplenty from this one."

No doubt about that, since, among other things, IAC claims have become a boutique (if large) industry among a segment of the defense bar. This will no doubt add to a huge pre-existing inventory.

Fortunately, there's a big difference between making an IAC claim and winning it.

Posted by: Bill Otis | Jun 25, 2012 2:40:11 PM

"useful idiot" is an expression . . . . it doesn't quite mean idiot.

and anon2, perhaps you could explain why the military was the target of Ms. Kagan's ire when the military had no choice but to follow DADT. Sounds pretty dumb to me.

Posted by: federalist | Jun 25, 2012 2:59:40 PM

Again, federalist is proof that conservatives never resort to ad hominem attacks or take non-sequitur pot shots. Very different from liberals.

Posted by: Res ipsa | Jun 25, 2012 4:06:18 PM

Why does everyone seem to think that you cannot be an idiot AND educated? The two are not mutually exclusive.

According to Texas prosecutor and anon2's line of thinking, they must believe that GW Bush was a pretty smart guy. I just kind of doubt that the same defense would have been offered if the justice in question was Alito or Thomas.

Posted by: TarlsQtr | Jun 25, 2012 4:24:36 PM

It is funny--for all the claims that I am engaging in ad hominem, no one seems to be able to come out and say that Kagan was right to treat military recruiters the way she did. And the idea that a mandatory LWOP for a 17 1/2 year old is somehow now, after all these years, unconstitutional, despite its availability in 29 states, is, to be blunt, a joke. 10 short years ago, this idea would have been laughed out of court, but now it's the diktat of the land.

Posted by: federalist | Jun 25, 2012 4:25:50 PM

Res ipsa --

About 24 hours ago, the following appeared on a thread about the guilty verdicts against Sandusky:

"so otis, who really gives a shit who you were, are or still think you are the point is we're all just voicing opinions here whether valid or not if you could just work more on getting your head out of your ass maybe you wouldn't come off sounding like such a jerkin asshole most of the time."

In addition, CCDC, with his reliably barnyard "manners," said this:

"It seems fairly evident that Sandusky is a foul pederast who deserves what he has coming. Bill Otis, however, is in many ways more repugnant than Sandusky."

Neither you nor any liberal poster voiced any objection to either entry. But you and others are quick to get on federalist for comments that don't even approach this sort of stuff.

And this is not to get into the time three people called Kent Scheidegger a Nazi because -- are you ready -- the CJLF website contains a picture of him standing in front of the Supreme Court in a business suit.

That the Left uses more foul language and rotten manners than the Right is not even subject to rational argument. Your critical attention to federalist seems more than a little selective and willfully blind.

Posted by: Bill Otis | Jun 25, 2012 5:01:48 PM

Federalist, forgive my ignorance, but would you kindly spell out for a non-lawyer what exactly you think Kagan did wrong when she was the Dean at Harvard Law regarding military recruiters? I understood that she banned them because she thought the military discriminated against homosexuals? Are you saying that she couldn't legally do this? Or that she shouldn't have done this? I understand that once the supreme court (or some court) ruled that Harvard could not ban military recruiters as long as Harvard took federal funds, she allowed them back in.

Posted by: onlooker | Jun 25, 2012 5:27:05 PM

Banning them to start with was, of course, unpatriotic and unworthy of someone acceptable in polite society. Once SCOTUS unanimously held that the Solomon Act was constitutional, Ms. Kagan allowed them back begrudgingly and did not afford them the same access as other entities. In other words, guests to her campus were, for their military association, treated like second-class citizens. It was a nauseating display--since, as we all know, the military was simply following DADT orders. Kagan's beef was with Congress and the President, yet she treated the recruiters with less dignity than she did representatives of law firms who represented terrorists. I'm sure she felt proud of herself, just as she feels proud today of giving murderers a chance to get out, damn the law and the victims' family. I feel for the family of Ms. Troup, who now must deal with the possibility of one of her killers walking free.

The arrogance of this Court in this case is truly breathtaking.

Posted by: federalist | Jun 25, 2012 5:43:02 PM

personaly marc i think her and most of the rest on the bench from them right down to the local courts are so ignorant as to the CONSTUITON you could slap them in the fact with it and they would not recognize it!

They are also traitors to their oath of office to uphold it!

Posted by: rodsmith | Jun 25, 2012 6:24:56 PM

TarlsQtr --

"Why does everyone seem to think that you cannot be an idiot AND educated?"

Because they've never been tortured by going to an Ivy League school.

Posted by: Bill Otis | Jun 25, 2012 7:01:55 PM


I did not comment on those prior postings because I did not read them--I am about a week behind on this site unfortunately. But I do agree with you that personal attacks are out of bounds regardless of who says them, on either side. In fact, I believe I have previously expressed that same view with respect to a personal attack on you by one of the usual suspects. What I have come to recognize is that some folks just aren't going to change their stripes no matter how many times you denounce them.

For my own conduct, I specifically recall a time where I apologized to you shortly after making a post for what I agreed in hindsight was an unfair statement (and you graciously accepted). Your beef about personal attacks certainly isn't with me, and I think you know me to be someone who tries to stick to reasoned argument, or smart-ass but good-natured jokes when I'm bored with reasoning.

My own post for federalist was meant to lampoon his prior statements about "The Left" or "Democrats" consistently resorting to dodges and ad hominem attacks. Of course, people on the left engage in those tactics (regrettably), just as people on the right do. Perhaps on this forum the more "liberal" posters are generally more guilty of it (though I won't even concede that, as I suspect that several of the posters are merely sock puppets), but I would not agree that's generally true--I'd say that each side has their fair share of cantankerous children, and it's hard to quantify them.

As for picking on federalist generally...well, it's somewhat deserved, no? I don't always agree with you (sometimes I think you're absolutely dead wrong--drug issues being a prime example), but I still believe that you consistently bring meaningful and reasoned discussion into this forum. Federalist does not--instead, we hear the same trite statements about any decision he dislikes being the product of "hacks," "wusses," and/or "criminal coddlers," which he then generalizes to "Democrats" or "lefties."

I myself am a registered Democrat, and yet you'll probably notice I end up agreeing with you and Kent more than any other posters on here, especially on death penalty issues. So much for gross generalizations from resident bomb-thrower federalist.

So, to sum up, I agree with you that personal attacks are not warranted, and consider this my continuing objection to it. But that means everyone's personal attacks--"they do it more" is not a defense.

Posted by: Res ipsa | Jun 25, 2012 7:19:07 PM

Res ipsa, what party is responsible for foisting Kagan upon us all? The Democratic Party. Presidents of which party typically (though not always) appoint the federal judges who blow off AEDPA. The Democratic Party. Which party generally has politicians who seem to less than tough on crime? The Democratic Party. That's just the reality. So if you're upset that I tag the party with the actions of judges appointed by Dems, well, that's just too bad. If you're upset that I provide analysis (quotes even) to show that Judge Frost is a dim bulb, well, sorry that your tender sensitivities are hurt.

As for Kagan, the GOP, at least the non-neutered portion of the GOP, wouldn't think Elana Kagan fit for polite society. That President Obama elevated her to such a high position says a lot about his patriotism or lack thereof. No one here defends her actions with respect to military recruiters, and there is precious little defense of this truly awful decision--other than Joe's "it's not so bad."

This was a lawless decision, and no amount of snide nonsense from Kagan's sneering footnotes can hide that. 10 years ago, this case was laughable, and now it's the diktat. I hope Alito et al. spend years shoving Kagan's "unintentional" characterization of legislation up her rhetorical behind. How much of ACCA is "intentional" legislation?

Posted by: federalist | Jun 25, 2012 8:24:39 PM

Federalist, correct me if I'm wrong. But is it not true that Kagan wasn't the one who barred the recruiters? I have read that the military was barred from the Harvard law school’s Office of Career Services under its antidiscrimination policy since 1979. If so, this would have been long before Kagan had even entered Harvard Law School, much less taken the job as dean. So why blame her?

Second, is it not the case that military recruiters were barred just as any employer that systematically rejected students on the basis of race, gender, or sexual orientation would have been because of the military's "don't ask, don't tell" (DADT) policy?
What's unpatriotic about that? If you like DADT, that's your problem, not hers. Also I understnd that the "banning" was vitually symbolic and did not actually hamper the military’s attempts to recruit at Harvard. If that's he case, what's your beef?

I also understand that in 2002, the Pentagon threatened to pull federal funding for all of Harvard if the law school did not allow military recruiters back in. I undertand futher that the law school received no money from the federal government, but the medical and other faculties received $400 million a year. In 2003, Kagan became dean and had to respond. An appeals court ruled in 2004 that the Pentagon's threats were unconstitutional, but in the meantime Kagan did allow the recruiters back in while encouraging students to protest DADT on campus. So, what's your beef with that?

Is it not also true that a group of law schools continued challenging the Pentagon’s threats in court, but Kagan and Harvard declined to join the lawsuits? Instead, Harvard Law School filed a brief coauthored by Kagan with the Supreme Court, arguing that it treated the military the same as any discriminatory employer. According to the brief, Goldman Sachs, the ACLU, or any other employer would have been banned if they had a stated policy of not hiring individuals based on their race, gender, or sexual orientation. Doesn't sound unpatriotic to me? What's your beef with that?

Kagan argued Harvard was providing the “equal access” the Pentagon demanded. Kagan's brief did not argue, as some other schools did, that the Pentagon was acting unconstitutionally. What's your beef with that?

As I understand from reading an article "Kagan, then, did not put students seeking to serve in the military at a disadvantage in any way. Before the Pentagon’s initial threat, the military recruited on campus just as any other employer did. So long as Harvard exercised its antidiscrimination policy and limited recruitment that violated it, the administration ensured gay students would have their support." So, what's your beef?

Are you not the one who inists that the military should be allowed to play by special rules?

In fact, I've read that "if anything, Kagan could have done a lot more to stick it to the U.S. government "had she been the unpatriotic "dumb" person you want to characterize her as. Instead, she simply enforced antidiscrimination policies fairly and universally. As stated bby one pundit, "Taking that obligation seriously says only good things about her willingness to stand up for minorities against government discrimination. The Supreme Court is supposed to be a bulwark for individual rights, and Kagan’s record on military recruitment shows an eagerness to serve that purpose."

So, instead of carping and holding a grudge, I suggest you celebrfate the fact that we have someone so brilliant and emiment on the court.


Posted by: onlooker | Jun 25, 2012 8:27:53 PM

onlooker, you can spin all you like, but the bottom line is that the US military's recruiters did not get the same level of access as law firms that represented terrorists. They were shunted to different places on campus. How offensive. Remember, onlooker, the military with respect to DADT simply followed orders. And instead of calling out Congress and Clinton, Kagan chose to subject junior officers to shabby treatment--some real moral courage there. No amount of spin in the world is going to change that reality.

That sort of arrogance was on display today. She made a choice. Who cares about the victims' families-they're just props in a play where arrogant asses violate their oaths of office.

Posted by: federalist | Jun 25, 2012 8:59:33 PM

Res ipsa --

I look forward to your posts and wish you posted more often, because you're one guy who has his head on straight and calls it without bias.

My only point was that it seems incongruous to go after federalist for relatively mild stuff, while federalist's critics (and mine) have gone way, way beyond any sins of his.

I could not agree more that this blog would do better if its commenters directed their remarks to issues rather than persons, in particular other commenters. But this would require a sense of responsibility and restraint that can barely be encouraged, much less enforced.

Good to see you back on-line.

Posted by: Bill Otis | Jun 25, 2012 9:27:18 PM

If only I were as smart as she!

Posted by: Texas prosecutor | Jun 25, 2012 12:39:19 PM

It is so refreshing to read such a sentence. It has been over 65 years since my mother explained why such sentences are grammatically correct.

Thank you Texas prosecutor.
[email protected]
☺ All rights reserved ▬ All wrongs denied ☺

Posted by:  They call me —►Mister Blank◄— | Jun 26, 2012 7:11:15 AM

▬► A L L

We have no need for ad hominem attacks.

IMLO, they detract from the poster’s point of view.

Posted by:  They call me ▬►Mister Blank◄▬ | Jun 26, 2012 7:17:48 AM


As other posters have requested, please identify the following:

(1) The relationship between Kagan's Harvard action (singular) and her ability to be a judge on unrelated cases.

(2) Evidence that Kagan is "dumb" (as opposed to wrong, which is altogether different).

(3) Any analysis you provided of the Miller case in any one of your 12 posts above.

Also, now that you have accused our President of not being patriotic (or maybe it's just that he hates this country...I can't tell the right-wing shorthand apart these days), please provide evidence of that.

Also, please explain why Kagan hates victims' families for categorically prohibiting LWOP for minors in Miller, but Scalia does not hate victims' families for reversing a murder conviction in Giles v. California, and voting to reverse a rape conviction in Williams v. Illinois.

This is the part where I'm proven right.

Posted by: Res ipsa | Jun 26, 2012 10:40:55 AM


Thank you for the kind words. Believe it or not, it actually means a lot to me to be complimented by someone with an exemplary public service record as yourself.

You make a fair point with the incongruity. I think the difference, however, is that a lot of your more rabid critics have never even made a pretense of being civil. Federalist, however, has on more than one occasion attacked posters for engaging in non-sequiturs or unwarranted personal attacks. Hence my noting the irony.

But you are correct, the attacks on you, Kent, et al. have certainly been far more nefarious and out of bounds--some days it would seem to be an improvement if you were referred to as hacks and idiots. I will try to keep that in mind in the future.

Posted by: Res ipsa | Jun 26, 2012 10:51:26 AM

"Federalist, however, has on more than one occasion attacked posters for engaging in non-sequiturs or unwarranted personal attacks. Hence my noting the irony."

Not bloody often. I attack for a lack of logic, and I will mention lame ad hominem argumentation. But I don't really care about the personal attacks. Someone like you thinks it's fine and dandy that, during wartime no less, we give a high government perch to a moral pygmy who, like a boor on a night out, punishes the waitress because he had to wait for a table. Only with Kagan it was an insult to military members. And a public one at that. That you think her worthy of defense says a lot about you, and quite frankly, I don't really care what you have to say about me. She's an unpatriotic lout, and you're cool with her being on the Supreme Court. That makes you contemptible, just like Obama is for appointing this woman in the first place. And you see, that's the difference between me and some of the others here--I don't particularly care for your mealy-mouthed online persona, and I won't hesitate to tell you. That's a little more than calling you a Nazi.

As for your other questions, here goes.

1 + 4) In an of itself, there is no relationship, other than the fact that one would like to see judges be more than moral pygmies. However, Kagan's opinion shows the same sort of arrogance that her actions at Harvard showed. She shabbily treated military members who were personally innocent. This showed an astounding amount of arrogance. And stupidity (unless you want to concede that she deliberately chose the wrong target for her infantile and unpatriotic acts). DADT was found in Title 10 of the US Code, and last I checked my constitution, the military was subordinate to civilian authority. So how in the world was it proper for Kagan to shunt military people through the figurative back door? The answer is that it wasn't. You can spin all you want to, but the bottom line is that this woman did what she did. This carries over to her decision here--as you know, the 8th Amendment "jurisprudence" now contemplates the Supreme Court bringing its own moral judgment to bear--thus Kagan's conspicuous lack of moral courage (easier to treat military recruiters shabbily than tell students at Harvard to write their Congressmen if they don't like DADT). Notably absent from Kagan's haughty opinion is ANY consideration of the victims' families--certainly, in the moral calculus, they count for something. Kagan chose to put these families through more hell--and for what, because she thinks that the judgment of 29 states is simply wrong (or, even more arrogantly, that these states inadvertently created mandatory JLWOP?). With respect to Scalia's decisions, he (apparently anyway) believes that the result is dictated by law. With Kagan, there's no possible argument that this result is dictated any more than by the personal policy preferences of five judges. And where she's gonna do that, maybe, just maybe, the feelings of those who, after all, did not choose to commit murder or be the member of a murder victim's family).

2) As noted above, unless you want to assume that Kagan is just out and out a bad person because she would deliberately hurt completely innocent people, there has to be some ignorance of the fact that DADT was a Congressional policy. That she would lash out against the military, which was just following civilian orders, shows, shall we say, a certain lack of sophisticated thought. That counts as dumb when you're on the Supreme Court.

3) As for analysis, there isn't much needed. This is a position that would have been ridiculed 10 short years ago. I've made that point. There aren't many others to be made. This is ipsedixitism. What else is there really to talk about?

Posted by: federalist | Jun 26, 2012 11:41:00 AM

"but she was too dumb to figure out that when she decided to treat military recruiters like second-class citizens that the military had no choice in the DADT policy, since it came from Congress."

Came from Congress ... you mean, like the the ACA?

Posted by: C | Jun 26, 2012 11:54:33 AM

Res ipsa --

Thanks for your response. Re-reading my first posting to you, I think it sounded more antagonistic than I intended it to, or than was warranted. Every now and again, the contrast between what this forum could be, and what, with so much juvenile mud-slinging, it is, brings out the sourpuss in me. But that was no reason to take it out on you, and I shouldn't have.

One thing I have noticed about federalist is that he has a quality liberals say they value -- empathy -- but he gets no credit for it because it's empathy for victims. The other thing I have noticed about him is that he is more interested in actual law (e.g., cases), and in brass-tacks legal analysis, than the great majority of his critics.

Again, I wish you posted more often.

Posted by: Bill Otis | Jun 26, 2012 12:35:17 PM

I think a lot of sentencers (judges and juries) will not need "psychobabble" or excuses to conclude that a 15 or 16 year old murderer, while deserving severe punishment, should be left some hope of rehabilitation and a life outside of prison, several decades on.

Posted by: Anon | Jun 26, 2012 1:54:04 PM

Federalist, your anti-Kagan comments have degenerated into screed and diatribe. Every judge you disagree is an idiot, a wuss. Kagan is, according to you, a moral pygmy, unpatriotic, and dumb. Is it possible that you are projecting onto her what you see in yourself?
You tout patriotism, the last refuge of a scoundrel, but tell us did you sereve in the military? If so what unit, where? when? Also please tell us at what University you are a tenured law professor?
Oh and also please tell us the year you graduated magna cum laude from Harvard Law School? And tell us the year you becam Solicitor General of the United States? How about the year you became a Suprme Court Justice?

You attack her decision, but it makes eminent sense to me that 14 year old should not receive an automatic sentence of life without parole. I find her reasoning persuasive and compelling.

Posted by: anaon 14 | Jun 26, 2012 2:33:51 PM

"That you think her worthy of defense says a lot about you, and quite frankly, I don't really care what you have to say about me. She's an unpatriotic lout, and you're cool with her being on the Supreme Court. That makes you contemptible, just like Obama is for appointing this woman in the first place....That's a little more than calling you a Nazi."

Apparently I can predict the future, because as anticipated, your response proves my point. I attack your comments, you respond by personally attacking me with vague generalities rooted in assumptions that you pulled from your ass. (Did I ever say that I supported Kagan's nomination? Did I ever say that I believed Kagan was right in the one action you've tarred and feathered her for? Did I ever say I agreed with Miller?)

I'd suggest anger management--this hatred you seem to have for anyone who might conceivably disagree with you can't be good for your lifespan.

I don't think you've questioned my love for America yet, and you haven't accused me of loving criminals, so if you'd like to drop those further insults feel free if it'll make you feel better. As much as you may be trying to get a rise out of me with ridiculous personal insults, you aren't. I'm an attorney now and was a 12-year baseball umpire before that. I've been called far worse than "contemptible" and a "Nazi" by folks who at least had the decency to give a name before doing so, and sometimes a business card.

And here's a bonus...I'll even promise not to respond any further in this thread, so you can cheer that I didn't defend my patriotism when attacked the next time you mudsling in another thread.

Posted by: Res ipsa | Jun 26, 2012 3:12:39 PM

"You attack her decision, but it makes eminent sense to me that 14 year old should not receive an automatic sentence of life without parole. I find her reasoning persuasive and compelling."

Perhaps you're right, anon, and in a country governed by law not diktat, you would be making those arguments to a legislature.

And anon, I am a Desert Storm veteran.

As for you res ipsa, I took your questions about Kagan as supporting--if you don't support her, fine, say so. And you can question the strenuousness of my views all you like, but the bottom line is that no one here can defend Kagan, nor can they argue that it really doesn't reflect on her morality. And since morality is a big part of the 8th Amendment jurisprudence of these guys . . . .

You bring up the criminal coddling charges--did you read the comments made by those enlightened Dem twits who repealed the death penalty in Connecticut?

I have responded to your points and if you want to stand mute, that's fine.

Posted by: federalist | Jun 26, 2012 3:39:03 PM

"You attack her decision, but it makes eminent sense to me that 14 year old should not receive an automatic sentence of life without parole. I find her reasoning persuasive and compelling."

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