Terrible lawprof commentary on NPR, and a blogging note

National Public Radio this morning had a terrible commentary by law professor Douglas Kmiec on the wiretapping issue, and I thought it was terrible even before I realized he was a conservative prof.

The first thing that struck me was his saying it was inappropriate for Congress to bring up extreme hypothetical examples. A basic tool of legal analysis is to use hypothetical examples, and "fighting the hypothetical" is a classic mistake for law students in their first-ever classes. If your legal principle can't handle hypothetical examples at all levels you intend to apply it, that means there's something wrong with your principle. If your legal principle is butting up against other legal principles, that's fine - acknowledge the potential conflict and draw boundaries as best you can. In Bush's case, he isn't acknowledging any countervailing principle to stand up to the "unitary executive power," so he has even less excuse - if you take an extreme position, let's see you defend it.

Second was his saying that he purposefully gave a vague answer to a vague question, leaving it to his congressional audience to think about nuances. You're the expert, man, you provide the nuance and use it to demonstrate what legal principles are in play.

Third was telling Congress to ignore the majority opinion in a Supreme Court case examining executive power and listen to the concurring opinion instead. Majority opinion = the law, while concurring opinion = not the law.

Fourth was his emphasis on the concurring opinion statement that they shouldn't examine hypotheticals. That MIGHT be reasonable advice to a court that's supposed to limit itself to a particular case or controversy, but it's ridiculous to apply it to a Congress that's supposed to set broad policy covering a range of issues.

Fifth, and the only overtly political issue, was his saying Congress and the President need to show mutual resolve. It was Bush that refused to seek Congressional authorization for his wiretapping, and given what over-broad latitude he's being allowed now, his inaction must be because he wanted no real oversight at all. In other words, Kmiec is lecturing to the wrong side on the issue of working together.

Very unimpressive, but probably the best that the pro-wiretappers could come up with.

And now my completely different note - I haven't been blogging much lately. My interest ebbs and flows between blogging myself and commenting on other peoples' blogs, and I've also been busy. I'm very glad and grateful that some folks want to hear what I've got to say. I do expect to blog from time to time, but at a reduced rate, so you might want to use an RSS feed as a more efficient way to see if I've posted instead of checking the website itself. Regardless, thanks for stopping by!