by Kieran Healy on June 10, 2007

The entertaining and oft-chonicled tradition of bitchy footnotes and sarcastic asides from the bench becomes strangely puzzling and difficult to understand when your friends are on the sharp end of it.



otto 06.11.07 at 12:51 am

It’s almost as if Volokh Conspiracy was a crank right-wing blog, blind to the obvious insiders-scratch-insiders-backs going on here, rather than a distinguished gathering of libertarian scholars, whose concern is often that government is corrupted or captured by favoured insiders…


Floyd 06.11.07 at 12:58 am

Some of the filers undoubtedly have ‘political’ motives, but it is also plausible that some are merely taking advantage of the media attention to promote their political/scholarly views on the law. Isn’t that the primary reason for amicus briefs, particularly on constitutional issues?


omar shanks 06.11.07 at 1:04 am

In what strange moral universe is Alan Dershowitz considered a liberal? I’m sorry, but liberalism, at least to my limited understanding, requires a certain universalism with respect to human rights, and brooks no exception for perceived threats to one’s homeland, whether native or adopted. In fact, his liberal “credentials” consist largely, if not entirely, of defending the wealthy and powerful from the due application of the criminal justice system. I’m sorry, but if liberalism is to be a meaniful term, even to those who consider it anathema, it has to consist of more than a willingness to go to bat for OJ.


otto 06.11.07 at 1:04 am

I think you’d do better to see the amicus brief as the legal equivalent of Fouad Ajami’s WSJ piece “Fallen Soldier”:



harry b 06.11.07 at 2:38 am

I’ve heard him described as a liberal a couple of times before, and am also curious why. Does anyone know? (I don’t care much, but enough to read wikipedia which, if accurate, does nothing to sovle my puzzlement).


Tony 06.11.07 at 2:53 am

Let’s not forget Dershowitz’s justification of torture. What a dirty fucking hippie!


Glenn 06.11.07 at 3:04 am

The bumbling “Who me?” is possibly the most irritating of rhetorical tactics. Just steadfastly refuse to get the point and then act disappointed and confused when people call you on your bullshit.

My question is whether Volokh is actively using this technique or is merely so autistic that he stumbled into it by accident.


Kieran Healy 06.11.07 at 3:05 am

Oh yeah, “Needles Under the Nails”:https://crookedtimber.org/2005/03/15/needles-under-the-nails/ Dershowitz.


Tom T. 06.11.07 at 3:33 am

Barnett, of course, represented the Oakland Cannabis Buyers Cooperative before the Supreme Court, and also authored an amicus brief in Lawrence v. Texas arguing against the sodomy law at issue. He has written in opposition to the War on Drugs and the Rehnquist Court’s deference to state lawmaking. Whatever other disagreements one might have with his politics, it strikes me as unfair for the court to suggest that he only chooses to write on behalf of wealthy or connected clients.

Dershowitz takes many cases pro bono, particularly involving indigent criminal defendants. Again, there may be plenty to disagree with in other aspects of his politics, but there’s not really a basis for the court to suggest that he lends his name only to cases involving rich or powerful defendants.

Harry B, Dershowitz is also the author of such books as “Supreme Injustice: How the High Court Hijacked Election 2000” and “Blasphemy: How the Religious Right is Hijacking the Declaration of Independence.”


The Blue Flautist 06.11.07 at 4:56 am

tom t,
I am glad you raised the advocacy of Prof Barnett on those issues. I generally respect his views and have found him to be an usually fair and interesting writer in his posts on the Volokh blog. I think this is why I found it disappointing that he joined in this letter. Surely, the timing of this brief, however well intentioned on the part of at least some of the authors, is poor. The issues regarding the appointment of the special prosecutor could very well have been brought up by Libby’s attorney, or otherwise at an earlier juncture in the trial, not *after* Judge Walton discussed this very issue on June 5 in his sentencing hearings.

It seems to me that given how experienced and expert these twelve people are in the law, that this brief is a means to lay the grounds for Libby’s appeal in the higher courts.


rd 06.11.07 at 5:07 am

I hadn’t known Eugene Volokh was any particular friend of Scooter Libby. Or perhaps “friend” is just meant as being the same side of the left/right divide. In which case I guess authors of this blog won’t complain about being tied to their “friend” Fidel Castro, etc.

In any case, the point of the post is comprehensible enough. Several law professors, on the left and right, raised a constitutional issue about the appointment of special prosecutors like Fitzgerald. What’s puzzling about Walton’s response is *not* its snideness but its utter unresponsiveness to the argument. Walton just threw off a jibe implying the law professors wouldn’t have bestirred themselves for an ordinary criminal defendant. But of course the constitutional issue they raise won’t be present for ordinary criminal defendants, just the vanishingly small subset targeted by special prosecutors. (And as others pointed out upthread, Dershowtiz has represented dozens of death row inmates.)


clyde mnestra 06.11.07 at 5:12 am

As to the “entertaining and oft-chonicled tradition of bitchy footnotes and sarcastic asides from the bench,” you happen to know of other examples in which professioral amici were bench-slapped this way? I think that’s the source of the objection, whatever its merits.

You’re right that there’s more than a little self-interest in objecting to it. But I suppose you’re equally vigilant to call attention to all the footnoted sarcasm you’ve witnessed . . . or is it only a narrow class of instances that bear ention, when a certain class of conspirators are on the sharp end of it? I think there’s a selectiveness about both commentaries, and if anything I find the obsession with the other blog the more puzzling.


John Quiggin 06.11.07 at 6:55 am


The Blue Flautist 06.11.07 at 9:23 am

Did you read Judge Walton’s statements during the sentencing hearing before the amicus brief? He did address the issue, though on mostly pragmatic grounds, i.e if the grounds on which the brief is based were accepted, then prosecuting attorneys general and other cabinet officials would become pretty much impossible. I also doubt that any of the authors could be considered liberal in the sense used on blogs like this.


Alex R 06.11.07 at 10:40 am

rd, I strongly suspect that the “friends” of Volokh that Kieran refers to are some of the law professors signing the amicus — such as Volokh Conspiracy blogger Randy Barnett — rather than Scooter Libby himself. I rather doubt that Libby is a friend of Volokh’s, though what do I know?


Tom T. 06.11.07 at 12:28 pm

John Q, why do you believe that Barnett is a “high-powered advocate[] of the unfettered power of the law”?


Barry 06.11.07 at 12:59 pm

Posted by harry b: “I’ve heard him described as a liberal a couple of times before, and am also curious why. Does anyone know? (I don’t care much, but enough to read wikipedia which, if accurate, does nothing to sovle my puzzlement).”

Taking you at face value:

1) Dershowitz opposed torture, and denied that Israel tortured. Until the gov’t of Israel admitted that it did, at which point Dershowitz supported torture.

2) Dershowitz proposed ‘torture warrrants’ after 9/11.

3) Dershowitz supported the Israeli bombing of Lebanon, and stated a philosophy which could be summarized as ‘kill them all and let God sort them out’.

Now, liberals tend to feel that this is not liberalism; right-wingers seem to feel that it fits in perfectly well. Except when they’re d*mning liberals for being unwilling to do such things. But I’ve never understood right-wing logic.


Barry 06.11.07 at 1:01 pm

One thing that most are missing (and Eugene *must* deliberately be missing, if he’s an actual libertarian) is that Scooter Libby has acquired an actual bipartisan circle of defenders. People suspicious of cronyism feel that this represents the insiders rushing to the defense of one of their own. Particularly as Scooter’s crimes are those which they feel should only apply to outsiders (like Clinton).


engels 06.11.07 at 1:15 pm

I share Harry’s puzzlement. I remember reading this strapline in the Independent last year.

The United States’ Supreme Court has ruled that military tribunals at Guantanamo Bay breach the human rights of inmates. But in an age of suicide bombings and mass civilian casualties, do our laws themselves need to be rewritten? Are we just ignoring the unpalatable truth: that the survival of our society may depend on the legalised torture of terror suspects? Here, America’s leading liberal lawyer, Alan Dershowitz, presents the case for radical reform



engels 06.11.07 at 1:21 pm

“Byline” would be the right word, rather than “strapline”…


Ken C. 06.11.07 at 1:37 pm

Isn’t it time to torture Scooter Libby? How else can the proper authorities discover what he knows about the high-level plot to destroy our atom spies? They might strike again at any moment!


bj4k 06.11.07 at 2:34 pm

This guy is in the trenches, and he’s saying, why don’t all these grandstanders do something useful and provide an amicus brief for a more worthy defendant? And he has a point. They are grandstanders, and the defendant is not particularly worthy, nor does he lack adequate representation.


Anderson 06.11.07 at 3:06 pm

But of course the constitutional issue they raise won’t be present for ordinary criminal defendants

But of course, plenty of other constitutional issues *do* arise for ordinary criminal defendants.

EV’s being almost deliberately obtuse; the remark in the footnote about people with limited financial means is the key. Libby can afford all the counsel he needs; he doesn’t *need* an amicus brief.


Barry 06.11.07 at 5:07 pm

IMHO, the best summing up of EV was maday by Jim Henley (http://www.highclearing.com/index.php/archives/2004/06/30/3505):
“It’s not like Eugene Volokh thinks much of me, either, but I’ve always considered his specialty to be showy moral handwringing on the way to siding with Power anyway. The further you get from standard Republican issues like guns and university speech codes, the more likely he is to arrive, with exquisite regret, at the conclusion that the State, particularly when helmed by George W. Bush, must have its way.”


John Quiggin 06.13.07 at 9:52 am

#16 I meant to write “unfettered power of the executive”, and the reference was to Bolton et al. But I think Barry sums up the VC crowd pretty well at #24

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