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The WSJ’s Jess Bravin has an interesting article on a debate within Democratic circles over President Obama’s next Supreme Court pick.

Democrats gearing up for a possible Supreme Court vacancy are divided over whether President Barack Obama should appoint a prominent liberal voice while their party still commands a large Senate majority, or go with someone less likely to stoke Republican opposition.

One thing found interesting about the story was its characterization of various prospective nominees.  Specifically, Bravin reports that the President’s lagging approval ratings could prompt a “less-controversial” nominee, such as D.C. Ciruict Judge Merrick Garland or Solicitor General Elena Kagan.  I certainly agree that Judge Garland would be a relatively uncontroversial choice, as Garland has a well-deserved reputation as an exceptionally intelligent, moderate judge.

SG Kagan also commands wide respect, and is highly qualified even if she lacks judicial experience, but I wonder whether she would be a “less-controversial” choice than some prospective alternatives.  As Ed Whelan notes, 31 Republicans voted against her confirmation to SG, suggesting she her nomination would start with a significant base of GOP opposition.  Given the prevailing political winds, I also wonder whether some Republicans will be more willing to fight against a nominee picked from within the administration.

I was also struck by the article’s suggestion that Judge Diane Wood would spark greater opposition than Kagan, largely due to her opinions in abortion cases.  As I’ve noted before, I’ve long thought Judge Wood was an obvious Democratic choice, and is so well-qualified that she would be safely confirmed.  I would also think that, right now, it would be easier to confirm a highly regarded appellate judge from the midwest than an administration insider.  But what do I know, I’m just a midwestern academic who’s old-fashioned enough to believe the Senate should be relatively deferential to a President’s judicial picks.

UPDATE: Justice Clinton? Color me skeptical.

UPDATE: More speculation here.

The Politico reports:

Senate Majority Leader Harry Reid used to consider recess appointments “an end run around the Senate and the Constitution” — so much so that he kept the chamber open during breaks to prevent President George W. Bush from making any more of them.

But with a Democrat in the White House, and Republicans blocking executive branch nominees, Reid and his allies are starting to sing a different tune.

Reid said last week that he’s “tried hard” to avoid the need for President Barack Obama to make recess appointments, but he added: “What alternative do we have? . . .

While Obama has so far shied away from using recess appointments, the Constitution gives presidents the power to install appointees to vacant positions when the Senate is on a recess.

Such appointments last only until the beginning of a new session of the Senate, meaning any Obama recess appointment would hold their posts until next year — when Republicans are likely to have more seats in the chamber.

Bush made 179 recess appointments, and President Bill Clinton made 139, according to the nonpartisan Congressional Research ServiceSen.

Reid’s change of heart appears motivated, in part, by Senator Richard Shelby’s blanket hold on some 70 pending nominees.  Yet as Politico also reports, Sen. Reid imposed a blanket hold of his own in 2004 to get a federal appointment one of his advisors.

The Constitution authorizes recess appointments, even if modern use of the power is more expansive than the Constitution may have contemplated.  As I see it, recess appointments are an appropriate response to the Senate’s persistent refusal to confirm nominees with strong majority support, particularly if that support is bipartisan.  As a practical matter, recess appointments risk political backlash, particularly if they are overused.  In this regard it is notable that President Bush made only four recess appointments after Democrats retook the Senate in 2006, after having made 175 during his first six years.

UPDATE: The NYT reports Senator Shelby has lifted his holds on all but three nominees whose positions are related to the Defense projects he’s seeking to advance.

Now that the National Tea Party Convention is over, where should the tea party movement go from here?  I could be completely wrong, but from what I’ve gleaned from the little actual news of the convention’s happenings I can find, it seemed like it was mostly about organizing, wack-a-doos, and red meat.  And while the first and third (and not so much the second) are good for rallying the support of your ideological base and attempting to get your favored politicians elected, those things do little to to get an agenda passed.

The trouble with many protest movements – and I’d consider the tea party movement, at least until the convention, to be one – is that they’re great for expressing what they don’t like.  Take the anti-war protesters of the Bush years.  They were against the War in Iraq (and some were against Afghanistan), but when it came time to discuss what to do about terrorism, they had few answers.  This is perhaps why protesting is a political activity that Americans tend to look down upon: they are seen as whiners.  In a nation of doers, we don’t like whiners.  We like people who get stuff done, and for the most part, those groups have not been protesters.

Now, I understand that tea partiers are not necessarily politicians, but they are certainly political actors, and supposedly have an idea of what kind of agenda they’d like to see for America, beyond “limited government” and “no universal health care.”  After all, I’ve seen the competing plans for health care written by the conservative think tanks.  It seems to me that the tea party movement is well situated to make their voice heard about these ideas.  By using their numbers to put a bug in the ear of their legislators the tea party movement has the opportunity to create the change they’d like to see.

It will take organizing.  Yes, the tea partiers must work together.  I understand the whole point behind the movement is a bottom-up approach, but that does not mean the citizens cannot band together to get things done.  It will be necessary because politics simply cannot be done effectively in any other way.  Interest groups, 527s, and other political organizations do it all the time.  Anyway, strength in numbers, right?

The next convention will happen in July.  This first one had breakout sessions, and I think that is exactly the kind of setting that would be perfect for debating where to go on policy.  I would urge the convention organizers to coordinate with people on the ground to create sessions that will allow attendees to find their common interests, and perhaps even start to get an agenda in order.  Then the attendees can go back home and bug their Congresspersons and Senators, state legislators, and local councilpeople to get those things passed.  If they don’t, those sessions about getting people registered to vote will provide the next step.

The tea party movement is quickly coming out of its infancy, and in order to move forward the activists will have to work together to actually get a conservative agenda passed in local, state, and federal legislatures. The tea party’s future will depend on whether its supporters can be doers rather than just whiners.

©2010 PoliGazette. All Rights Reserved.

So suggests John Avalon, in a Daily Beast column “The Secret History of the Birthers.” He traces birtherism to a Texas woman named Linda Starr, who was a Hillary Clinton delegate to the 2008 Texas state Democratic Convention. Avalon writes that Starr “was also cited as a key source for CBS’ discredited election year investigation into George W. Bush’s National Guard records that led to Dan Rather’s replacement after 24 years as the evening news anchor.” Avalon links to the Thornburgh/Boccardi report, which was conducted at the request of CBS News to examine CBS’s conduct in producing the infamous 60 Minutes story about Bush supposedly evading National Guard service and then having the records scrubbed. As the report details, Starr made the claim about Bush in an article on her website, three days before the 2000 presidential election. She also played a key role in serving as an intermediary for CBS to obtain the document which purported to be National Guard memo regarding the removal of NG records about Bush. The Thornburgh/Boccardi report does not claim that Ms. Starr knew that the document  was a clumsy fabrication.

At the very least, however, the fiasco of the Bush National Guard story shows that Ms. Starr did not provide her Internet readers, or CBS, with a story which could withstand factual scrutiny. Accordingly, if Avalon’s reporting is correct, he has provided yet another reason for people to disbelieve the (already-implausible) assertion that President Obama was not born in the United States. In contrast to the way the mainstream media initially handled the 2004 Bush National Guard story, the mainstream media did a better job in 2008 by not embracing a story about a presidential candidate which could not be supported by solid, verifiable facts.

This is a very fast note on the question of European political economy raised in my last post.  It’s not intended to be exhaustive, and yes, it is pretty conclusory.  My impression over many years as an international law professor who bridges the public and private law divides; not a specialist in EU law but someone watching closely from the outside ...  the movement toward ever closer union in the EU seemed to me always to have a double drive.

On the one hand, the Erasmians — the true believers, the ones who thought you just marched toward political union because it was, well, what civilized people did.  These folks included many of the non-economist professors, the law professors particularly.  I have long been struck by the astonishing levels of intellectual and ideological production — prodigious, really — by EU professors well-funded by the EU itself to come up with theories about why the EU was going to be such a dandy thing.  I long thought of it as a perfect instance of creating your own demand.

The result of all this prodigious activity was the marvelous elaboration of a vast edifice of constitutional structure, most of it aimed at saying that the EU could not go wrong as a project of union, if it just kept at it.  Go onto SSRN and see how much stuff continues to be cranked out in the category of constitutional theory about the EU itself.  What an observer on the outside might have thought was a pretty historically contingent project is made to look like the Unfolding of History as It Must Unfold.

I mean, of course it might work out that way.  But if so, it hardly seems like it on the basis of the theories offered by academics at institutions sponsored by the edifice presumably under study.  (This phenomenon of funders creating their own demand for ideological product is, of course, just as ordinary in the United States.)  Anyway, these are the Erasmian true believers.  They seem to be mostly law professors.

On the other side are the realists and skeptics who might, slightly paradoxically, still favor ever closer union — but for the opposite reason.  Many of them are economists.  They see the whole thing as a bicycle about to fall over.  It has to get up to speed to keep going.  Far from “naturally” unfolding according to a special Natural Law that God has especially enacted for the benefit of the EU, on the contrary, the bike is wobbly, unnatural, lacking in balance, and only forward momentum can save it.  The present moment is the worst, because it represents precisely the gap between currency union and fiscal/political union.

These two are not mutually exclusive positions, of course.  One can have some of both.  It’s simply my perception of the divide, as someone who reads the literature from each.  The easy money years underwrote the feeling that maybe it was possible to have monetary union without fiscal/political union, but the artificial supports have dropped away and everything is wobbling again.  The one thing I can predict with utter certainty as a law professor is that the EU will put up funding to produce yet a new iteration of constitutional theory to show how all this, too, will lead to ever closer union.  Look for the wave of papers over the next four years on SSRN.

My skepticism is about ideology, by the way — I am mostly an admirer of the EU and what it has done in many things, starting with the long term transformations in Spain, Portugal, and Greece, to start with, let alone the expansion eastwards.  But that does not lead me to any belief that it has worked out the deep internal contradictions in the political governance project, and less still any view that the EU points the way to some genuinely new kind of governance structure in human affairs.  It might, I suppose — I’m not ruling it out.  But let’s give it, say, a hundred years to see if it has staying power before we draft up too many theories of its historical inevitability.

In any case, how much does it matter? I’m not referring to myself — I mean simply that the Obama administration’s pooh-bahs seem to have written off Europe as the past, Asia is the future.  The irony is that it is precisely on account of striving so desperately, so mightily, to become a Western European democratic socialist state that the Obama administration feels no need any longer to look to Europe.  It has already priced-in internally anything of ideological value Europe might have to offer, on account of the transformations under way in the US.  We’ve now got — thanks to the decension of Bush and the inclension of Obama –anything of value Europe might offer in the way of values, so why pay attention to those losers?  What could Europe possibly teach President Obama about community, fraternite, welfare, socialism, social safety nets, unions, public sector employment, all the rest of the stuff in which Europe ideologically specializes?  This is President Obama, after all — on all of these things, O Europe, you should learn from him.  And from Rahm Emanuel.

Of course, the one missing piece of that puzzle is how it is that Europe went into decline, and whether that lesson for the US has been priced-in ....

We Atlanticists should all have paid greater attention to Raymond Aron.

In the New York Times, Adam Liptak has a Sidebar column on the remarkable story of Shon Hopwood. I have particular reasons to find the story compelling, as I’ve had the pleasure of working closely with Shon on briefs and I was clerking the Term that the Supreme Court decided Fellers. But it’s a really cool story either way: Sometimes a second chance makes all the difference.

(Update.)  Thanks, Glenn, for the Instalanche!  Let’s add this front page article in the Financial Times today, Tuesday, February 9, 2010, “Traders in Record Bet Against the Euro.”

(You might also want to see my more general discussion in a post above on the directions of the EU regarding the unstable position of currency union without political/fiscal union.  Some people have raised some objections particularly to that post’s closing paragraphs regarding how the Obama administration views Western Europe — essentially losers in the globalized world, and no one worth paying attention to because anything of value that might have been learned from the internal European social democratic model has already been absorbed and priced into Obamism.  But I think it’s right — and I think that is the conclusion that European leaders have been drawing about what, not just Obama, but his senior cadre of intellectuals and elites think about Europe.

That’s quite apart from thinking that the Obama administration has so thoroughly absorbed the European lesson that a massive internal democratic socialist welfare state means geopolitical decline, that Obama is not just a weak leader in foreign policy — personally weak, as Sarkozy clearly thinks — but structurally weak as well, meaning that the foreign policy weakness is built into the structure of domestic policy shifts to a massive social democratic state.  These European leaders know better than anyone on the planet how the shift to their domestic social model implies geopolitical decline.  So they have no doubt as to where Obama is taking the US in foreign affairs.  As I said in the later post, we Atlanticists should have read Aron more recently.)

From the FT:

Traders and hedge funds have bet nearly $8bn (€5.9bn) against the euro, amassing the biggest ever short position in the single currency on fears of a eurozone debt crisis ...  The build-up in net short positions represents more than 40,000 contracts traded against the euro, equivalent to $7.6bn. It suggests investors are losing confidence in the single currency’s ability to withstand any contagion from Greece’s budget problems to other European countries.

The WSJ’s ‘Heard on the Street’ has an interesting item today comparing California and Greece from the standpoint of the bond markets.  Bottom line is that California fares far better than Greece in investors’ minds.  It’s a question, of course, how much of that is attributable to how investors see the underlying economies of each place and, instead, how investors are pricing the sugar daddi, er, the US government and EU-Eurozone institutions that might be called upon to offer a bailout.  But in terms of spreads, take a look at this chart from the story:

It is important to bear in mind that these kind of spreads can turn very quickly — indicators of short term sentiment concerning something that is basically a political and so, these days at least, a volatile issue.  These spreads for California could turn tomorrow, depending upon how investors read signals from Washington DC, or several other places.  Thus the WSJ article notes with respect to Greece’s dire situation:

Adoption of the euro, by removing the threat of currency fluctuations, encouraged yield-hungry investors to bid up Greek bonds. Leverage allowed Greece to run big current account deficits, despite low productivity growth. The result, once the credit bubble burst, is today’s crisis. There is no easy European fix.

Greece has two main options to restore competitiveness and narrow its current-account deficit: Withdraw from the euro and devalue, or win large and ongoing transfers from European states with surpluses like Germany.

Leaving the euro looks unpalatable. Bilateral transfers to Greece, even dressed up as loans, would be hard to sell to German voters. And such aid wouldn’t address Greece’s lack of competitiveness. Only grinding domestic deflation, with the risk of social unrest, or withdrawal from the euro could do that.

The imposition of EU “discipline” on Greece in return for transfers would represent creeping political union of an undesirable kind – one forced by Germany for fiscal reasons rather than one negotiated by member states. But Greece’s saving grace may be a default there would likely drag down Spain and Portugal. Such a risk will concentrate minds in Europe to find a solution, even if a bailout would not answer the question of the euro’s suitability for uncompetitive Mediterranean economies.

I’ll take up separately the question of California.  Likewise the question of political economy in the Eurozone — currency union without political or fiscal union?  But the article essentially thinks that California is saved not by a better internal structural economy, but instead because of its place deep in the heart of its guarantor.  California has better political hold-up.  It’s got better positioning to be able to force the US as a whole to internalize its difficulties, in ways (according to the article) that Greece will likely not be able to do with German voters.

One last quote from the FT quoted in the update:

Thomas Stolper, economist at Goldman Sachs, said: “ Behind this intense focus on Greece obviously is the long-standing unresolved issue of how to enforce fiscal discipline in a currency union of sovereign states.”

My class in private equity and venture capital doesn’t know it yet, but I think I might have them read Harvard Law School’s John Coates’ new empirical paper on the effects of ownership on M&A, or at least some important sections of it.  I’ve just been through it and think it’s terrific, with robust implications for differences between private and public targets.  (Plus, in the context of my class, it’s a good follow-on the some material from Larry Ribstein’s new book The Rise of the Uncorporation.)  You can find the full abstract and the paper at SSRN, but the one-sentence description is:  The paper “shows in a variety of ways how important M&A for private targets is to the economy, how different private target M&A is from public target M&A, and how important law is in creating those differences.”

(My class will have lots and lots of time to read, as class has been canceled and school closed — here in DC, the university hasn’t been open since last Thursday!  So I assume that my students are virtuously all snuggled up with texts on private equity, reading aloud with furrowed brows and cups of hot cocoa in one hand and yellow highlighter in the other.)

From Ware v. South Texas Family Planning & Health Corp. (S.D. Tex. Jan. 26), a case in which a father sued a clinic for giving a “morning-after” contraceptive pill to his 14-year-old daughter without the parents’ permission:
Plaintiff contends that Defendants are a public nuisance because the “activity” that Defendants engage in interferes with a “parent’s right to guide his child in a moral fashion” and interferes with “the moral standards of the community.” Under Texas law, a public nuisance “is maintained by act, or by failure to perform a legal duty, intentionally causing or permitting a condition to exist which injures or endangers the public health, safety or welfare.” Neither in his complaint nor during the initial pretrial conference was Plaintiff’s counsel able to allege the factual basis on which Defendants’ activities could be said to constitute a public nuisance. In fact, Plaintiff’s counsel, when asked during the initial pretrial conference to explain his public nuisance claim, was unable to name the elements of a public nuisance....

Plaintiff bases his third cause of action, his parental rights claim, on the grounds that Defendants failed to obtain parental consent before allegedly providing the morning-after pill to Plaintiff’s daughter. Plaintiff offers no other factual basis for this claim. Further, Plaintiff provides no legal basis for this claim. Indeed, when Plaintiff’s counsel was asked at the initial pretrial conference to provide authority for this cause of action, he stated, “I thought it was so basic I didn’t bother to do research.” Plaintiff has thus failed to state a claim for which relief can be granted for each of the three causes of action asserted, pursuant to Federal Rule of Civil Procedure 12(b)(6).

Not good.

Here’s a draft of the new section on Writing an Abstract, to be published in the fourth edition of my Academic Legal Writing book. There’s still plenty of time to improve it, so I’d love to get feedback. (By the way, the abstracts I give as examples are my own, but I’d prefer to use someone else’s abstracts, especially if they are very effective. So if you have any recommendations for very good abstracts, please pass them along.)

* * *

An abstract is a short summary — one to three paragraphs — of an article. Some journals include an abstract at the start of the article, or put all the abstracts from an issue on the issue’s table of contents, or put the abstracts on the journal’s Web site. These journals will either require you to write the abstract, or will offer to write it for you. Reject their offer, and write the abstract yourself: It’s your article, and you’ll know better how to summarize it effectively.

But even if the journal doesn’t publish an abstract, you should write one anyway. Services such as the Social Science Research Network (see p. 265) maintain e-mail distribution lists through which hundreds or thousands subscribers get abstracts of forthcoming articles. These distribution lists are invaluable tools for you to get readers for your work.

Whether in a law review or on a distribution list, the abstract is an advertisement for your article. True, you don’t want money from your “customers” (the audience) — you want their time and attention. But their attention is scarce, and lots of authors are competing for it. You want readers to “buy” your article in one of two ways:

1. by reading the article (or at least the Introduction) right away, or
2. by remembering it (even if just vaguely) for the future, so that when the underlying issue becomes important to them, they can find and read the article then.

And the audience for your advertisement is quite demanding. They’ve generally found the abstract just through a quick skim of an SSRN e-mail or a law review table of contents. (People who find the article through a citation or a Westlaw or Lexis search are probably more likely to skim the Introduction, which is immediately available to them, rather than starting with the abstract.) Readers of your abstract therefore aren’t at all sure the article will be of any value to them.

You need to quickly show them this value. You need to clearly and tersely tell the reader (1) what problem the article is trying to solve, and (2) what valuable original observations the article offers. Naturally, the abstract can’t go into much detail. But it has to at least give the reader a general idea of what the article contributes.

Here, for instance, is an adequate abstract, adequate because it quickly captures the essence of the value added by the article:

People often argue that symbolic expression — especially flag burning — isn’t really “speech” or “press,” and that the Court’s decisions protecting symbolic expression are thus illegitimate.

But it turns out that the original meaning of the First Amendment likely includes symbolic expression. Speech restrictions of the Framing era routinely treated symbolic expression the same as literal “speech” and “press.” Constitutional speech protections of that era did so as well, though the evidence on this is slimmer. And the drafting history of the phrase “the freedom of speech, or of the press,” coupled with the views of leading commentators from the early 1800s, suggests that the First Amendment’s text was understood as protecting “publishing,” a term that at the time covered communication of symbolic expression and not just printing. Though the Court has never relied on this evidence, even originalists ought to accept the Court’s bottom line conclusion that the First Amendment covers symbolic expression.

The first sentence does three things. First, it notes the general topic of the article — the First Amendment and symbolic expression generally. Second, the sentence identifies the specific focus of the article, which is whether the text of the First Amendment must be read as protecting only “speech” and “press” and not symbolic expression. Third, the sentence very quickly provides a concrete illustration (flag burning) for the abstraction (symbolic expression).

The second sentence explains the article’s claim: The original meaning of the First Amendment likely covers symbolic expression. Readers who stop reading there will at least remember something like “There’s an article that says that even originalists should approve of the Court’s flagburning decisions.”

That would be an oversimplification of the article’s claim, but that’s fine — any one-sentence summary that lingers in people’s minds will inevitably be an oversimplification. The important thing is that if the issue comes up for readers in the future, they might well search for the article, find it, read it, and use it. And, if the author is lucky, maybe some readers will be interested enough to actually read the article right away, or at least move from reading the abstract to reading the Introduction.

The next three sentences quickly summarize the main arguments that the article uses to support its claim. These arguments — here, historical assertions, though for another article they might be normative arguments or empirical findings — are part of the contribution that the article offers. Again, the summary is an oversimplification, and as a result may not be entirely clear to all readers. But it should at least give the reader a glimpse of the observations that the article makes.

Finally, the last sentence ties the argument to the caselaw: The sentence explains that this is an article that offers historical support for the Court’s precedents, rather than arguing against the Court’s precedents.

Many authors try to fit an abstract into one paragraph, and some journals seem to prefer that. I advise against this, unless the abstract is very short. Shorter paragraphs tend to be more readable, and longer paragraphs tend to be alienating to many readers. And the reader of the abstract will likely be the sort of reader who is especially unmotivated to read further. The more you can do to make the abstract appealing, within the space constraints you’re given, the better.

Likewise, I like including numbering, for instance in this abstract:
How should state and federal constitutional rights to keep and bear arms be turned into workable constitutional doctrine? I argue that unitary tests such as “strict scrutiny,” “intermediate scrutiny,” “undue burden,” and the like don’t make sense here, just as they don’t fully describe the rules applied to most other constitutional rights.

Rather, courts should separately consider four different categories of justifications for restricting rights: (1) Scope justifications, which derive from constitutional text, original meaning, tradition, or background principles; (2) burden justifications, which rest on the claim that a particular law doesn’t impose a substantial burden on the right, and thus doesn’t unconstitutionally infringe it; (3) danger reduction justifications, which rest on the claim that some particular exercise of the right is so unusually dangerous that it might justify restricting the right; and (4) government as proprietor justifications, which rest on the government’s special role as property owner, employer, or subsidizer.

I suggest where the constitutional thresholds for determining the adequacy of these justifications might be set, and I use this framework to analyze a wide range of restrictions: “what” restrictions (such as bans on machine guns, so-called “assault weapons,” or unpersonalized handguns), “who” restrictions (such as bans on possession by felons, misdemeanants, noncitizens, or 18-to-20-year-olds), “where” restrictions (such as bans on carrying in public, in places that serve alcohol, or in parks, or bans on possessing in public housing projects), “how” restrictions (such as storage regulations), “when” restrictions (such as waiting periods), “who knows” regulations (such as licensing or registration requirements), and taxes and other expenses.

Though it’s unusual to number individual clauses in normal prose, here the numbering quickly shows the hurried reader how the sentence is structured, and what the four elements of the proposed framework are. It might have even been helpful to do something similar in the last paragraph. But on the other hand too much numbering might have annoyed readers — a bit of departure from standard prose style is fine, but too much would make the abstract look odd. And the quotation marks surrounding the key items in the last paragraph probably provide some internal delimiters that can serve as alternatives to numbering.

Paul Krugman writes:

The truth is that given the state of American politics, the way the Senate works is no longer consistent with a functioning government. Senators themselves should recognize this fact and push through changes in those rules, including eliminating or at least limiting the filibuster. This is something they could and should do, by majority vote, on the first day of the next Senate session.

Don’t hold your breath. As it is, Democrats don’t even seem able to score political points by highlighting their opponents’ obstructionism.

It should be a simple message (and it should have been the central message in Massachusetts): a vote for a Republican, no matter what you think of him as a person, is a vote for paralysis.

Actually, I think that this was the central Republican message in Massachusetts.

That’s the odd result of Haskell v. Brown, decided a month ago by Judge Charles Breyer of the Northern District of California. Judge Breyer (not to be confused with Justice Stephen Breyer, his brother) refused to preliminary enjoin the collection of cheek swab samples from arrestees, largely because he thought that the searches are likely consistent with the Fourth Amendment. But wait: The Ninth Circuit had held, in Friedman v. Boucher that such cheek swabs of pretrial detainees are generally unconstitutional. (We’re talking here about the taking of DNA just because someone is arrested or detained; if there’s probable cause to believe the DNA will reveal evidence of some crime — for instance, if there’s probable cause to think that this person is guilty of a rape, and the DNA is to be compared against DNA left at the scene of the rape — and a warrant based on probable cause, that’s clearly constitutional.)

Here’s the district judge’s explanation:
Plaintiffs will argue that so holding conflicts with the Ninth Circuit’s decision in Friedman. However, Friedman did not engage in a thorough totality of the circumstances test: it did not consider government interests beyond supervision, nor did it examine the extent of Friedman’s privacy interest. See 580 F.3d at 862–65 (Callahan, J., dissenting) (dissent, instead, conducted balancing analysis between individual’s privacy interests and government’s legitimate interest in identification). Though Friedman warns that “[n]either the Supreme Court nor our court has permitted general suspicionless, warrantless searches of pre-trial detainees for grounds other than institutional security or other legitimate penological interests,” the Court finds that doing so here — certainly at this stage of the litigation — is proper under the totality of the circumstances test required by Rise, Kincade and Kriesel [earlier cases upholding forced DNA swabs of people convicted of a crime].

But I don’t see how this can be right: Part III-C of Friedman expressly considered whether the search was justifiable under a general Fourth Amendment “reasonableness” analysis — the same analysis that is often described as a “totality of the circumstances” test — and held that it wasn’t justifiable. It also did consider “the extent of [the claimant’s] privacy interest,” holding that “We have long recognized that pre-trial detainees retain greater privacy interests, for the purposes of Fourth Amendment analysis, than do persons who are incarcerated pursuant to a valid conviction” (thus distinguishing Friedman’s claim — and by extension the plaintiffs’ claim in Haskell — from the Rise, Kincade, and Kriesel precedents). And it also considered, in the “special needs” discussion, the asserted “government interest asserted by Nevada in taking Friedman’s DNA was to help solve ‘cold cases,’” certainly a “government interest[] beyond supervision.”

Now perhaps the district judge thinks that Friedman’s analysis of this was too sketchy; and maybe he’s right. (I’m not sure what the right Fourth Amendment analysis should be here, either as a matter of Fourth Amendment first principles, or under the emerging Fourth Amendment “reasonableness” test.) But it seems pretty clear that Friedman is the most on-point precedent, and that under it the testing of arrestees’ DNA — especially for purposes that include solving crimes, and not just identifying this particular arrestee — is unconstitutional. Or am I missing something here?

Over at The Faculty Lounge, there are some pictures of sit-ins from the early 1960s.  Regarding a 1963 sit-in in Jackson, Mississippi, TFL writes: “By one account, members of the all-White Jackson police force stood guard outside, while several FBI agents (the guys in back wearing shades) ‘observed’ from inside. That White guy at the counter, that’s Tougaloo professor and community activist Hunter Gray (John R. Salter) who helped organize the Jackson sit-ins.  And that’s blood on his shirt.  All of the protesters had been covered in slop, and some were beaten with brass knuckles and broken bottles.”

The non-violent Civil Rights protesters allowed themselves to be beaten in public while the media watched; the images helped win sympathy for the Civil Rights Movement in the North, and proved to be crucial in developing the political will for the passage of the Civil Rights Act of 1964.

In a limited sense, the media’s presence provided some protection for the protesters; there was never a case in which a civil rights protester was murdered in front of media cameras. At night, when everyone had gone home, things were very different. As Salter later explained:

I was beaten and arrested many times and hospitalized twice. This happened to many, many people in the movement. No one knows what kind of massive racist retaliation would have been directed against grassroots black people had the black community not had a healthy measure of firearms within it.

When the campus of Tougaloo College was fired on by KKK-type racial night-riders, my home was shot up and a bullet missed my infant daughter by inches. We received no help from the Justice Department and we guarded our campus — faculty and students together — on that and subsequent occasions. We let this be known. The racist attacks slackened considerably. Night-riders are cowardly people — in any time and place — and they take advantage of fear and weakness.

Later, I worked for years in the Deep South as a full-time civil rights organizer. Like a martyred friend of mine, NAACP staffer Medgar W. Evers, I, too, was on many Klan death lists and I, too, traveled armed: a .38 special Smith and Wesson revolver and a 44/40 Winchester carbine.

The knowledge that I had these weapons and was willing to use them kept enemies at bay. Years later, in a changed Mississippi, this was confirmed by a former prominent leader of the White Knights of the KKK when we had an interesting dinner together at Jackson.

In the 1970s, I was Southside director of the large, privately-funded Chicago Commons Association. Our primary focus involved assisting minority people in developing sensible community organizations — vis-a-vis schools, city services, anti-crime.

We were opposed by white racist organizations (e.g., Nazi Party) and various youth gangs of many sorts. My staff and I received countless death threats, there were arson attacks on our offices, and, on one occasion, men with weapons came to my home and told my wife and children that they intended to kill me. (I happened to be at work.)

Again, I was glad I had many firearms and, again, we guarded our home and let this be known. We responded to hate calls on the telephone by telling the callers we were quite prepared for them.

For Salter, the right to own a handgun was apparently a crucial part of his ability to exercise his right to defend himself and his family, which was a sine qua non of his ability to stay alive in order to exercise his First Amendment rights to advocate for enforcement of the Fourteenth Amendment.

Yet in modern Chicago, decent law-abiding citizens are forbidden to own handguns. As I detailed in my amicus brief  in McDonald v. Chicago (pages 39–45), many people find that a handgun is best choice for family defense, especially in urban areas such as Chicago. As the history of the Civil Rights Movement demonstrates, the denial of the constitutional right to own a handgun could endanger other constitutional rights, particularly the rights of community organizers.