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.
DeLay isn’t a lawyer. Why you you expect him to be making a nuanced point that only a lawyer can interpret?
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. 
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.
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?
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.
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.
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.
IIRC, Rush Limbaugh was going to ask Tom DeLay about the quote today. Don’t suppose anybody listened to find out?
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
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:
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.
Finally, this seems worth pointing out:
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.
minty, might I impose on you to review and comment on my discussion of binding and advisory precedent in the related GQ thread (post #7 there)?
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.
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.
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.
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, at least on the page analogous to 4/20’s page.
On the “foreign law” issue, O’Connor said yesterday:
Scalia responded:
The best indication of what DeLay’s full comment may have meant is from The Washington Times:
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
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.