Bench Memos

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Re: Kerry’s Follies


I wouldn’t have thought that the strongest appeal to American values would come from a liberal Massachusetts billionaire, just off his jet from Davos, quoting the hyperbolic, demagogic rhetoric of a Berkeley law professor. But here’s how Kerry wrapped up his screed:

Perhaps Professor Liu put it best of the Berkeley law school when he wrote this: he said, “Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse, where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance, where the FBI may install a camera where you sleep on the promise that they won’t turn it on unless the informant is in the room, where a black man may be sentenced to death by an all-white jury for killing a white man absent any kind of multiple regression analysis or other analysis of potential discrimination and where police may search — I paraphrased on that last sentence, it reads precisely, absent multiple aggression analysis showing discrimination — and where police may search and define what a warrant permits and then some.”
I’ll stand by what I said about Liu’s remarks a couple weeks ago:

Liu’s concluding remarks are patently demagogic and assume a constitutional scheme in which judges, and only judges, make policy on everything: Liu states that “Alito’s record envisions an America” where police “may” do all sorts of things that Liu (in some instances reasonably, in others less evidently so) doesn’t like. What Liu obscures is that Alito’s approach would enable the political processes to establish reasonable policies on all these matters.


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