# Delay: "Judges shouldn't use the Internet--that's outrageous!" **URL:** \ **Category:** The BBQ Pit\ **Created:** [April 20, 2005, 1:49pm UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222 "2005-04-20T13:49:55Z")\ **Posts on this page:** 20\ **Page:** 10
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 21, 2005, 6:03pm UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/181 "2005-04-21T18:03:00Z")
> [@Metacom](#): > > You may have better luck conjuring **Hamlet** , who has participated in this thread and never mentioned that has being a problem when he gave his opinions on the issue. I didn’t mean to slight **Hamlet** – didn’t know he was a pro. But I went back to his first post, #7 in this thread, and he does kind of bring up the issue \*\*LHoD \*\*mentioned in #144. If you read **Hamlet’s** subsequent posts, he does flesh out the argument a bit more. At any rate, it does appear that this Pit thread was jumping the gun, although DeLay surely doesn’t help himself by his poorly worded statement. Unless one is a lawyer, it’s very hard to see what point he was trying to make. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [April 21, 2005, 7:15pm UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/182 "2005-04-21T19:15:06Z")
> [@John Mace](#): > > Unless one is a lawyer, it’s very hard to see what point he was trying to make. DeLay isn’t a lawyer. Why you you expect him to be making a nuanced point that only a lawyer can interpret? ---
**Author:** ![dropzone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dropzone/32/7515_2.png) [@dropzone](https://boards.straightdope.com/u/dropzone)\ **Post date:** [April 21, 2005, 7:27pm UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/183 "2005-04-21T19:27:17Z")
I’m assuming John meant that only a lawyer, whose job is to cut through obfuscation and crap while creating some of his own, has the professional background to interpret DeLay’s statement. But as IANAL, I could be wrong. 😉 ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 21, 2005, 7:44pm UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/184 "2005-04-21T19:44:30Z")
> [@Homebrew](#): > > DeLay isn’t a lawyer. Why you you expect him to be making a nuanced point that only a lawyer can interpret? Since when does “poorly worded” mean “nuanced”? I didn’t mean to imply that he was speaking as a lawyer, but only to remark, after the fact, that it would be hard for a non-lawyer to infer that Delay wasn’t off his rocker with his comment. ---
**Author:** ![Scott\_Plaid](https://avatars.discourse-cdn.com/v4/letter/s/258eb7/32.png) [@Scott\_Plaid](https://boards.straightdope.com/u/Scott_Plaid)\ **Post date:** [April 21, 2005, 7:57pm UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/185 "2005-04-21T19:57:20Z")
Left Hand of Dorkness, I do not understand why you are responding to these idiots. You have a valid point, and a weekend is coming up. I am sure that if you wait a while, you can respond to people who either defend delay, or pit him, such as myself. I believe that is what most people here have been trying to do, but since these idiots can not find anyway to defend such a statement as dalays, but can find no way to defend such a statement, they are cricizing you. If you simply do not pay attention, then there will be no fuel for their fire. I mean really, how can anyone defend his statements? ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [April 21, 2005, 8:03pm UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/186 "2005-04-21T20:03:17Z")
> [@John Mace](#): > > I didn’t mean to imply that he was speaking as a lawyer, but only to remark, after the fact, that it would be hard for a non-lawyer to infer that Delay wasn’t off his rocker with his comment. I misunderstood your point, then. I don’t think even a lawyer other than Johnnie Cochran could rationalize those comments, despite how effective the Chewbacca Defense seems to have been in this and a few other threads. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 21, 2005, 8:42pm UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/187 "2005-04-21T20:42:32Z")
> [@John Mace](#): > > If you read post 144 of this thread, it may turn out that the operative phrase is not “the internet”, but “does his own research”. What we really need is one of our resident lawyers to weigh in on this. > > Can someone conjure up **minty** , \*\*bricker \*\*or **dewey**? If “doing his own research” means finding existing, relevant case law - typically through Lexis or Westlaw - then Delay’s comment is idiocy. There’s nothing at all inapproriate about a judge – even a Justice of the Supreme Court - doing his own research. In fact, arguably, he should be checking the work his clerks produce; that’s HIS name on the opinion, not theirs, and his name that the President nominated and the Senate confirmed. If, however, “doing his own research,” means uncovering information to resolve a factual dispute, then the judge is way out of line, and Mr. Delay’s comment is on the mark. For example, let’s say the case before the Court involves abortion, and the record indicates that 50% of all abortions are done in the first sixty days of pregnancy (let’s assume that, for whatever reason, this fact is relevant). If Justice Kennedy were to go online, check reference sources, discover that the actual figure is 80%, and use that fact as part of his decision, he’d be horribly out of bounds. The key thing here is not “the Internet.” He’d be just as out of bounds if he visited his public library, or if he called the head of the AMA to get the information. It’s unclear to me which Mr. Delay was referring to. ---
**Author:** ![dublos](https://avatars.discourse-cdn.com/v4/letter/d/f08c70/32.png) [@dublos](https://boards.straightdope.com/u/dublos)\ **Post date:** [April 21, 2005, 9:13pm UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/188 "2005-04-21T21:13:06Z")
> [@Metacom](#): > > Incorrect. Toaster ovens are the best way to reheat individual slices of leftover pizza, and are worth their value for that function alone. 😛 You reheat leftover pizza? That just seems so… wrong… left over pizza should be eaten staight from the refrigerator, just peeling back the foil/plastic wrap and stuffing one’s face is my prefered method. ---
**Author:** ![Harborwolf](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Harborwolf](https://boards.straightdope.com/u/Harborwolf)\ **Post date:** [April 21, 2005, 10:03pm UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/189 "2005-04-21T22:03:54Z")
IIRC, Rush Limbaugh was going to ask Tom DeLay about the quote today. Don’t suppose anybody listened to find out? ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [April 21, 2005, 10:17pm UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/190 "2005-04-21T22:17:12Z")
> [@Bricker](#): > > If “doing his own research” means finding existing, relevant case law - typically through Lexis or Westlaw - then Delay’s comment is idiocy. > … > If, however, “doing his own research,” means uncovering information to resolve a factual dispute, then the judge is way out of line, and Mr. Delay’s comment is on the mark. > … > It’s unclear to me which Mr. Delay was referring to. Thanks, **Bricker**! While it’s still unclear to me what he’s referring to, this at least gives me some options as to what he could have meant. Am I right in thinking that this is (to your ears, at least) a novel criticism of Kennedy–that you’ve never heard him taken to task before for performing factual research for a case? At this point, I’ll assume that DeLay’s error was in atrocious wording of the comment–not really pittable, unless it turns out to be false. But I’d still like to know what Kennedy’s in-session claim was that sparked this criticism. Daniel ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [April 21, 2005, 10:29pm UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/191 "2005-04-21T22:29:25Z")
There’s nothing at all wrong with a judge doing his own legal research. Most of them do so, to greater or lesser degrees. Law clerks are invaluable, but they are not the judge. I must, however, disagree to a certain extent with **Bricker** : > [@Bricker](#): > > If, however, “doing his own research,” means uncovering information to resolve a factual dispute, then the judge is way out of line, and Mr. Delay’s comment is on the mark. > > For example, let’s say the case before the Court involves abortion, and the record indicates that 50% of all abortions are done in the first sixty days of pregnancy (let’s assume that, for whatever reason, this fact is relevant). If Justice Kennedy were to go online, check reference sources, discover that the actual figure is 80%, and use that fact as part of his decision, he’d be horribly out of bounds. I disagree. (See, I told you I was going to disagree.) There are any number of reasons for which a judge may properly do factual research outside the record. Most notably, judges may, even on their own initiative, take judicial notice of certain facts, so long as they’re easily verfiable and not subject to actual dispute. If it’s a verifiable, uncontested fact that the real number is 80%, the judge is not obligated to take some litigant’s word that it’s really 50%. And hey, even if the number really is disputed, there’s nothing wrong with a judge noting that dispute in the course of issuing an opinion. Similarly, a judge may take judicial notice of the law of other jurisdictions even when it hasn’t been presented in court. This may be what is getting DeLay’s panties all tied up in a knot, since the Supremes have taken to noticing the fact that the U.S. is sometimes very lonely when it comes to sanctioning certain kinds of laws. Moreover, let’s not lose sight of the fact that the Supreme Court in particular makes some awfully important policy decisions that go well beyond the dispute that happens to be in front of it at the time. It seems appropriate to me for the Court to consider the impact of its potential decisions in making up its mind, and if that requires some factual research outside the record, I’m not going to be too terribly perturbed if they take such matters into consideration. What is clearly out of bounds is independent research into the core facts that are before the judge in the pending case. A judge may not go out and independently investigate whether, for instance, the defendant murdered the victim, or whether ToxiChemCo’s products cause cancer in pregnant women. For those kinds of adjudicative facts, it would be entirely improper to go outside the record. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [April 21, 2005, 11:07pm UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/192 "2005-04-21T23:07:10Z")
Finally, this seems worth pointing out: > [@](#): > > Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. (U.S. Constitution, Article III, Section 2; underscoring added by your 'umble poster.) ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [April 21, 2005, 11:19pm UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/193 "2005-04-21T23:19:44Z")
An easy out for a judge concerning judicial notice is to not just toss it into the reasons, but to first tell the parties that they should present arguments on it. That way the parties have the opportunity to test. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [April 21, 2005, 11:24pm UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/194 "2005-04-21T23:24:50Z")
> [@minty green](#): > > Similarly, a judge may take judicial notice of the law of other jurisdictions even when it hasn’t been presented in court. This may be what is getting DeLay’s panties all tied up in a knot, since the Supremes have taken to noticing the fact that the U.S. is sometimes very lonely when it comes to sanctioning certain kinds of laws. **minty** , might I impose on you to review and comment on my discussion of binding and advisory precedent in [the related GQ thread](http://boards.straightdope.com/sdmb/showthread.php?t=312906) (post #7 there)? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [April 22, 2005, 1:13am UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/195 "2005-04-22T01:13:08Z")
> [@](#): > > _Originally quoted by Polycarp_ In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. That just means that the Court may review lower courts’ and juries’ factual determinations to determine whether the evidence is capable of sustaining the finding. It has not been interpreted to mean that the Court can, on appeal, go out and round up its own evidence to use in reviewing the case. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [April 22, 2005, 1:18am UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/196 "2005-04-22T01:18:23Z")
> [@Polycarp](#): > > **minty** , might I impose on you to review and comment on my discussion of binding and advisory precedent in [the related GQ thread](http://boards.straightdope.com/sdmb/showthread.php?t=312906) (post #7 there)? I have never heard of “advisory precedent,” but I understand how you’re using it, and your post appears to be pretty much correct. Courts in one jurisdiction look to laws and decisions of other jurisdictions to guide their reasoning all the time, and there’s nothing unusual or improper about it. Laws of other jurisdictions may or may not be _persuasive_ authority, but they are not _binding_ authority. ---
**Author:** ![dropzone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dropzone/32/7515_2.png) [@dropzone](https://boards.straightdope.com/u/dropzone)\ **Post date:** [April 22, 2005, 3:08am UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/197 "2005-04-22T03:08:44Z")
Aw FUCK! This thread was bad enough when it was Elvis and UncleBeer bickering like an old married couple but now the LAWYERS are here? AND the CHAPLAIN? That does it. I’m gonna find a different thread to follow. I hear there’s some more arguing about the Mormons going on in the Staff Reports forum. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [April 22, 2005, 1:16pm UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/198 "2005-04-22T13:16:04Z")
Thanks, **minty** and **Bricker** and **Polycarp**. I’m off to see if anyone’s dug up the in-session comments to which DeLay was referring. … Okay, [Rush Limbaugh’s site is mum](http://www.rushlimbaugh.com/home/daily/site_042105/content/truth_detector.guest.html), at least on the page analogous to 4/20’s page. On the “foreign law” issue, O’Connor [said yesterday:](http://msnbc.msn.com/id/7598231/) > [@](#): > > On another issue, O’Connor dismissed growing criticism about the Supreme Court’s use of international law in its opinions, saying it makes sense for justices to look at foreign sources when a point of law is unclear. > > She said if there is no controlling U.S. precedent or the viewpoint of states is unsettled, “of course we look at foreign law.” > > “This is much ado about nothing,” she said in response to a question by moderator Tim Russert, the host of NBC’s “Meet the Press.” “Our Constitution is one that evolves. What’s the best way to know? State legislatures — but it doesn’t hurt to know what other countries are doing.” Scalia responded: > [@](#): > > I don’t agree it’s much ado about nothing,” Scalia said in response to O’Connor. Regarding the death penalty case, he said the majority led by Kennedy “contradicted the view of the majority of the states.” > > “I don’t see how international law is relevant. I don’t know what a South Africa court will tell you about American law,” he said. The best indication of what DeLay’s full comment may have meant is from [The Washington Times](http://washingtontimes.com/upi-breaking/20050421-084946-7394r.htm): > [@](#): > > This week DeLay intensified his criticism of federal courts, attacking Supreme Court Justice Anthony Kennedy’s work in a Fox News Radio interview as “incredibly outrageous” because he has referenced international law in his decisions and done research on the Internet. > > “I was talking about the Supreme Court using foreign law to make their decisions,” DeLay said Wednesday. “This is an important issue that will be taken on by the Judiciary Committee.” While in this case the WaTimes may have given a poor quote-attachment (his quote sounds more like it’s talking about the foreign-law part and not the Internet part), it may also be that he’s backing away from the Internet Research thing, having realized how goofy it sounds to almost anyone who hears it. I can’t find that Wednesday quote anywhere else online, and I’m guessing it means he’s not gonna clarify his previous comments any more. Daniel ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [April 22, 2005, 1:30pm UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/199 "2005-04-22T13:30:15Z")
I think we can take Rush Limbaugh’s silence as an admission that DeLay is an idiot. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 22, 2005, 2:19pm UTC](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222/200 "2005-04-22T14:19:05Z")
> [@spoke-](#): > > I think we can take Rush Limbaugh’s silence as an admission that DeLay is an idiot. No, we can take your post as an indication that YOU are an idiot. I looked on Rush’s web site yesterday, and it was clear that the posting there was an excerpt of the interview, not the whole interview. But so what if the full interview doesn’t contain an explanation? The fact that a person didn’t comment further in one particular forum is neither here nor there. [Previous page](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222.md?page=9) [Next page](https://boards.straightdope.com/t/delay-judges-shouldnt-use-the-internet-thats-outrageous/300222.md?page=11)