Sorry to be silent for a while, gang. I’m catching up on some long-pending questions from my All-Request post from a few weeks ago.
1. PG asks, “What, if any, are good reasons for a government attorney not to include all non-frivolous arguments on his client (the government)’s behalf?” Well, ideally, if justice (or the constitution) is better served by not raising them. I think the opportunities for that are myriad, but too varied to speculate on here. (To give one, the Solicitor General’s position in Dickerson, abandoning the position that section 3501 overruled Miranda. I think reasonable minds could differ on whether that was proper; certainly, the arguments in favor of 3501 weren’t frivolous.) But I also think simple efficiency is a good one, too. For example, you might be able to split hairs on whether precedent covers a given situation, but the easier thing to do is to assume it away or even concede it and argue good faith or harmlessness or some other error-saving doctrine. Plus, usually the government is responding to the defendant’s arguments, so the government’s brief really only needs to answer the arguments the defendant has raised, as opposed to any non-frivolous argument for affirmance.
2. PG also asks, “[W]here do you think Sotomayor would have come down in this mess?” The case she links to is Polar Tankers, Inc., v. City of Valdez, Alaska. You’d almost have to pay me to bone up on this one. Basically, the city passed a local tax applying to ships using its harbor. The Supreme Court struck down the tax in a terribly fractured set of opinions. Most of the Justices relied on the little-litigated Tonnage Clause of the Constitution, which restricts local duties on access to harbors. Honestly, without knowing much of anything about this case, I’d have to suspect that a Justice Sotomayor would be a pragmatist and join the Tonnage Clause decision, without going out of her way to reach the Commerce Clause issues. I haven’t seen any real indication that Judge Sotomayor is eager to stake out constitutional positions she hopes the Court will visit in years to come, the way Justice Thomas enjoys.
3. Sebastian asks, “If you started your own brewery/winery, what would you name it? What would be the name of your signature drink?” Hm. I dunno. Something with a legal hook, I guess, like Bar Exam Brewery or Amendment XXI Vineyards. Signature drink? How about a beer called Drunk In Public? And for the lite version, you could plead down to Disorderly Conduct.
4. Sebastian also asks a wonderful question: “Without naming the channel you watch the most, describe who that network thinks you are based solely on the commercials. For instance, are you an energy drinking, mountain hiking, person who is in need of a great many razors? Or perhaps you are an AARP member with a Life-Alert bracelet, poor denture cream and are in desperate need of a Hover-round?” Come to think of it, I do see a lot of razor commercials. I guess they’re recession-proof. But given that it’s the summer and virtually everything is in hiatus, pretty much the only tv I watch these days is “Conan O’Brien” and “Magnum, p.i.” reruns. “Conan” I watch on my dvr, so I end up fast-forwarding through a lot of fast food commercials and ads for whatever movie the guest is promoting. “Magnum” shows on one of those channels where every commercial is for, yes, the Life-Alert and the Hover-round, peppered liberally with those “You can’t be turned down!” insurance spots and lawyer ads for various class action lawsuits. So, apparently, the networks see me as a junk food-eating fatass who needs the wide seat at the movie theater, gets by on my disability check, and will only dance to the Wilford Brimley Diabetes Remix. For the record, only part of that is accurate.