The Paper Chased: So, imagine the following: you're a serious, well-respected journalist, who is invited to the World Economic Forum in Davos, not as a spectator, but as a participant. Breaking, perhaps, the usual rules of confidentiality, you write an e-mail to your friends, describing various aspects of the conference and a few personal details about the "5,000 bickering, sometimes charming, usually arrogant, mostly male people who are accustomed to living in either phenomenal wealth, or great personal power" in attendance. You send the e-mail, go have brunch with Joaquim Chissano, do a little skiing, and generally forget about it.

Then it shows up in about a thousand mailboxes worldwide.

Laurie Garrett, author of The Coming Plague and other works, lived through that particular nightmare, with her e-mail being parsed to shreds on the community blog Metafilter. Garrett can be forgiven for being taken a bit aback by many of the posts (which attempted to prove her e-mail a fake by pointing to grammatical errors and what one poster called a "naive" tone), but she managed to set off a bit of controversy when she pointedly asked, "Do you actually believe, as you type your random thoughts in such Internet settings, that you are participating in Civilization? In Democracy? In changing your world?"

Without addressing that particular issue (though there's something grating about her saying, essentially, "I'll go to Davos; you stay home and teach your child algebra"), there's a deeper issue here. Little of Garrett's e-mail consists of factual revelations; its real value, aside from being chatty insider chismis, is showing which issues and views many world leaders are placing emphasis on. Nonetheless, that in itself is reasonably valuable and interesting information for those who are addicted to politics.

At the same time, Garrett did have her confidentiality violated. The WEF is private, but not secretive; many people (such as the always-fascinating Joi Ito) are happy to discuss issues raised at the various symposia and meetings held at Davos. But that openness from other sources means that Garrett's e-mail only added a small amount of context to what we already know. By disseminating that e-mail very widely, the total stock of valuable data increased only slightly but, as James Grimmelmann points out at LawMeme, there's at least one contributor who will no longer directly contribute to the online increase of that data:

When Laurie Garrett's experience with "this CLICK-FORWARD electronic world" leads her to threaten to take her ball and go back to longhand, it's hard not to feel that something has been lost. ...

It's easy to claim that the "problem" is an author who doesn't believe in democracy, or a community that doesn't value privacy. But I don't think every of these claims is the case. There's something deeper and more troubling at work. The populace, by the very act of informing itself, has cut off a source of its information.

I'm of mixed feelings about this. On one hand, the Internet has proven a boon for many political and social groups; perhaps unsurprisingly, conservatives, who were so quick to see the value of think tanks, C-SPAN, talk radio and cable news networks, have been quick to take advantage of the medium. On the other, there's a significant loss of privacy and a blurring of the bounds. To follow Grimmelmann, it seems that, when there is confusion as to which set of norms is to control online communications, we tend to choose the least restrictive. Over time, that can only drive people into smaller, more private boxes, and we will eventually lose the anarchic "party line" of the current Web. If we want to keep that freedom, perhaps we need to consider exercising it more cautiously.

 
Ill Will: George Will in the Post today displays a perhaps willful ignorance of Constitutional law, arguing that, "[i]f Senate rules, exploited by an anti-constitutional minority, are allowed to trump the Constitution's text and two centuries of practice, the Senate's power to consent to judicial nominations will have become a Senate right to require a 60-vote supermajority for confirmations."

That judicial appointments may be blocked by the Senate, even for nonjudicial reasons, is nothing new; Washington's nominee for Chief Justice, John Rutledge, was rejected because he opposed the 1794 Jay Treaty with Britain, a political issue not reserved to the Supreme Court. (Even more striking is that Rutledge, a recess appointment, was a sitting Justice at the time of his rejection.) Even more serious is the case of Andrew Johnson, who simply couldn't get a single nominee past a mistrustful and alienated Senate.

Of course, the power of the President to appoint members of the judiciary is in Article II, Section 2 of the Constitution, which states that:

[H]e shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

In turn, Article I, Section 5, states that:

Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

So, under the Constitution, the Senate has the power to determine the process by which it arrives at that Constitutionally-mandated "consent." Indeed, by claiming a "president[ial] power to shape the judiciary," Will is himself trampling across the delicate lines of power that uphold our Constitutional system.

During the Constitutional Convention, one early proposal to govern appointments was put forth by Madison, who believed that the President should have the sole power to appoint judges "unless disagreed to by 2/3 of the 2d. branch of the Legislature [i.e., the Senate].” That proposal was voted down, and the actual instructions sent to the Committee of Detail were to establish a Supreme Court, with judges appointed by the Senate alone. It was only after recognition of the split in the delegates, and in a specially-convened subcommittee, that the current terms of appointment were established: a compromise between those who wanted the efficiency of an Executive-led system, and the worries of those who wanted a Legislative check on personal power.

Under Article II, Section 2, only "inferior officers" are not subject to the advice and consent rules; even judges over inferior courts can be forced to confront Senate nomination hearings (see, e.g., Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 881–82 (1991), holding that tax court judges hold "powers [that] are quintessentially judicial in nature" and thus their offices fall under advice and consent rules). Under the Constitution, there is a strong role for the Senate to play in the appointment of officers.

What there is not, pace Will, is a Presidential right to automatic approval of his nominees when his party controls the Senate. Such a suggestion is repugnant to the tripartite balance of powers laid out in the Constitution; unless the Senate chooses to change its rules to prevent filibusters and other minority-party tools from being used in nominations, the President will have no choice but to defer to the quite plenary power of Congress to manage its own rules. Any suggestion that he should do otherwise is, to quote the columnist, a coup against the Constitution.

 
Pushy polls: CNN today reports "Support for Bush's re-election falls below 50 percent." From the article:

Asked their choice for president, 47 percent of the registered voters polled said they would support Bush in 2004 -- compared with 51 percent in December.

From the poll results (posted at USA Today's website):

For results based on the sample of 866 registered voters, the maximum margin of sampling error is ±4 percentage points.

I suppose that "Support for Bush's re-election within margin of error of 50 percent" wouldn't have sounded as good.

 
John Ashcroft, call your office: "The constant and continuous evaluation of the factors that go into the development of [the terror] threat level have not changed in a way significant enough for the threat level to be changed." (John Ashcroft, Monday, Feb. 25)

"The national terror alert will be lowered from orange to yellow, administration officials said Thursday, suggesting the threat of a terrorist attack on U.S. soil has eased somewhat." (Washington Post, Thursday, Feb. 27)

 
Injudicious Activism: It could be the juridical equivalent to the steel-cage deathmatch: Law & Economics founder Richard Posner against the most famed exponent of legal realism, William O. Douglas. Posner upbraids the controversial Supreme Court justice as "a liar to rival Baron Munchausen ... a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, [and] a terrible father to his two children." Yet those seem mere peccadillos compared to his modern-day legal reputation, which Posner succinctly, and perhaps not entirely without malice, summarizes as "a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice."

It has been said of the late Justice Sutherland that "Just because he writes clearly, one must not suppose that he thinks clearly." Douglas, on the other hand, neither thought nor wrote clearly. One interesting piece of dicta is that Posner was an attorney on the winning side of Udall v. Federal Power Commission, a tangled and unreadable Douglas opinion that makes Griswold's "penumbras formed by emanations" a model of judicial clarity. In Udall, the actual merits of the case are approached obliquely, if at all, prompting Justice Harlan to dissent, "I can only conclude that the Court ... has, in its haste to give force to its own findings of fact on the breeding requirements of anadromous fish and on the likelihood that solar and nuclear power will shortly be alternative sources of supply, substituted its own preferences for the discretion given by Congress to the Federal Power Commission."

Posner admittedly has an ideological axe to grind: though his Law & Economics movement owes a glancing debt to legal realism, one cannot imagine two philosophies more severely divided, in methodology and intent. But the slow unraveling of Douglas' confabulations and reputation should stand as a warning to those who would attain power without concomitant wisdom.