[Goglog] Fwd: Sosa...and a bigger issue...

[Steve Gruenwald]

Mark Hagerman says:  

> The U. S. has been drifting further from "law" every year, in the direction of "personal conscience".  

Hardly.  
 
In a general way, as Dave says it's cyclic - not to say regular, but comes and goes.  
 
On a long-term view, we have had FAR more lawless periods at almost any level - in fact, most of our history.  Over roughly the past century especially, the trend has been fairly continually toward MORE law instead of reliance on personal conscience.  Look at antitrust laws, civil rights laws, consumer protection laws, environmental protection laws, securities trading laws, child protection laws, labor laws, education law, public safety laws, media laws, etc.  A huge number of areas formerly left to personal conscience are  now deemed matters requiring Federal control.  Personal conscience is being taken more and more out of the picture.  In some cases this is a good thing, in others arguably not, but it is clearly the trend.  
 
On a short-term view, also clearly incorrect.  The most recent administration flouted the laws left and right.  It refused to comply with court and Congressional subpoenas, did not (and openly stated that it would not) adhere to some treaties, and evaded the law in surreptitious ways when it was unwilling to do so openly.  
 
The perception that this incident, of some unknown individuals alleged to be lawyers giving out limited snippets of information from drug tests of professional baseball players, is particularly egregious and newsworthy, comes of nothing but (a) our incredible national preoccupation with sports figures, and (b) out increasingly low tolerance for violations of privacy specifically - not all law, but privacy.  
 
In this regard, look at the substance of the issue and the news reporting.  Everyone says it's outrageous that this information was given out: 
 
(a) because it was done by lawyers.  Of course no one knows this for sure, because the sources have been kept strictly confidential.  If they were in fact lawyers, which lawyers?  As far as I know in this context "lawyers" could mean anything from a District Court judge to a lawyer for MLB or the players' union, or a Department of Justice prosecutor who may have breached Grand Jury secrecy, or a lawyer for the drug lab, or a lawyer hired by the New York Times to negotiate with a computer technician who had access to the files.  All the New York times said in explaining its source was "according to lawyers with knowledge of the drug-testing results from that year."  
    Yet despite no one knowing which lawyers - if any - were involved, the public outcry focuses on this.  Never before have I seen any such general public shock that some lawyers are no more scrupulously honest than the average person.  Should they be?  Yes.  But when did anyone ever suggest before that they are or express outrage that some unknown ones of them aren't?  I don't get it.  
 
(b) because it was subject to a court order.  What court order?  Has anyone told you what it was?  I can find no explanation of how the disclosure violated a specific court order except a highly speculative one.  The only relevant one I know of was in the context not of the compilation of the records themselves, but a seizure of them by DOJ.  
    Apparently there was a grand jury subpoena, resulting in a search warrant authorizing seizure of records on tests of ten specific players from the testing lab.  The search resulted in a seizure of a computer file containing the test results on all 104 players who participated.  The lab, and/or other affected parties, challenged the seizure.  The courts issued a series of orders relating to how the file should be handled, whether it needed to be returned untouched, data on the 10 extracted, etc.  In this context there was a court order that the file constituting the return on the search warrant - i.e., the stuff seized - be sealed.  That order would (I assume) have been directed to the Department of Justice and the attorneys for the Baseball league, and only covered those files and only in that context.  No one else in the world who happened to have access to the original test data would have been addressed by that order.  
    The possibility that the leak came from the search warrant files and someone subject to that order is being investigated.  The judges involved say if there was a leak in violation of the order, action will be taken.  
    The implication of the news stories I've seen (and I've read a sampling only because of the discussion here) is that the original deal between MLB, the players, and their union to do the test and collect data was somehow assured of confidentiality by a court order.  I'll believe that when I see it.  
 
It is amazing to me that people are so up in arms about this, in view of the thousands of instances of fraud and misconduct by people in the legal profession that we've all heard of, or, FTM, assuming the worst, that this was actually done by someone in DOJ in clear violation of a court order that actually applied to him/her, in view of the far worse misconduct by people in DOJ in the past and in recent years.  If anything this is an example of how, despite all the evidence of history, people always seem to think past violations were an aberration, and from now on of course our Government and everyone in it will always obey the law.  
 
Where is the outrage over the past unauthorized disclosures of personal travel documents showing misuse of public funds?  Where was the outrage over the unauthorized disclosures by "Deep Throat" leading to the Watergate investigation?  Who is going to be held accountable for leaking documents revealing a conspiracy to commit kidnapping and torture?  Drug use by baseball players! - and someone dared reveal the facts! - now there's a scandal that shakes the roots of our democracy.  

> Look at the current Supreme Court nominee 

Aha, that's different.  You don't mean "look at the current Supreme Court nominee" as one example of how "the U. S. has been drifting further from law every year," but only as an example of Supreme Court nominees.  

> her past statements, and Obama's reasons for nominating her, demonstrate (to me) that she has no interest in the text of the Constitution, nor in the original intent of the writers.  

I think you need to read her actual opinions rather than the political characterizations of her views.  But in any event, this is in no way new either.  The entire history of the Supreme Court - from its earliest days - is replete with far more egregious examples of Justices who wanted to follow their own consciences or even strictly their own political preferences than the words of the Constitution.  As a general principle I don't like this,* but you can't point to any decision of Sotomayor that is half as "political" or based on personally held values as many of those in history. 
 
And BTW, not that it helps, note that many of our most important and time-honored decisions are hard to justify on the basis of  strict reading of the Constitution.  No, I'm not suggesting that this means it's OK, but it's a hard problem.  

And BTW, how would "Obama's reasons for nominating her" be particularly good evidence of what she does or doesn't have interest in?  

> She just wants to make the world a better place, even if that means gutting the Constitution. 

Any actual examples of "gutting the Constitution"?  You mean like the Hayden voting rights case, where the majority ignored the plain text of the Voting Rights Act and the minority judges - including Sotomayor, very explicitly - relied on a strict reading of both?  Or the Ricci firefighters' discrimination case, in which ruling either way could as rationally be viewed as permitting race-based discrimination, and the question was which had the better factual support?  What?  Is there anything?  

> Look at the recent "bonuses for executives of failed banks" brouhaha. Those bonuses were a matter of contractual obligation, but our Congresscritters don't care a damn about keeping contractual promises. 

I know of no instance in which Congress has overridden a contract.  This was a high-stakes negotiation and the companies had choices.  If the companies or other contractual parties (the executives, I gather) wanted to object they could have gone to court - and would have won.  (And BTW, why should Congress care about keeping someone else's contractual promises?  Contractual promises are often unconscionable.  There is a legitimate (although not absolute) limit on Congress' power to "impair the obligation of contracts," i.e. to preclude the parties from carrying them out, and I know of a few instances over the years (including recent decades) in which Congress has foolishly gone ahead and done that.  As far as I know this isn't one.  

> These lawyers doubtless "felt" that a "higher purpose" was being served by releasing confidential information. 

Maybe, or maybe greed, or a thirst for notoriety, or maybe they were just dumb.  Again, what has this to do with the statement "the U. S. has been drifting further from law every year"?  Whoever it was who gave out confidential information - whether they turn out to be lawyers, or judges, or union officials, or laboratory technicians, or someone else - are you under the impression that this is something like a new low?   Where have you been?  
 
              - Steve G