Scalia takes aim at balancing

[Michael MASINTER]

I thought Crawford was an exceptional opinion, but I'm not sure why it
would bear on the Mobbs declarations since those declarations were not
submitted in criminal trials and therefore would not be subject to the
confrontation clause.  That said, I hope the Court is skeptical of the
claims of executive power advanced in Hamdi and Padilla.  Though not
technically relevant to Hamdi/Padilla, my favorite excerpt from Crawford
was this:

"Dispensing with confrontation because testimony is obviously reliable is
akin to dispensing with jury trial because a defendant is obviously
guilty."


Michael R. Masinter			3305 College Avenue
Nova Southeastern University		Fort Lauderdale, Fl. 33314
Shepard Broad Law Center		(954) 262-6151
masinter at nova.edu			Chair, ACLU of Florida Legal Panel

On Mon, 8 Mar 2004, Michael Froomkin - U.Miami School of Law wrote:

> I was very struck by this passage in today's Crawford v. Washington
> decision, in which Justice Scalia, writing for seven Justices, states,
> 
> "By replacing categorical constitutional guarantees with open-ended
> balancing tests, we do violence to their design. Vague standards are
> manipulable, and, while that might be a small concern in run-of-the-mill
> assault prosecutions like this one, the Framers had an eye toward
> politically charged cases like Raleigh's--great state trials where the
> impartiality of even those at the highest levels of the judiciary
> might not be so clear."
> 
> If taken seriously, this anti-balancing rule would seem to be one
> with far-reaching effects reaching well beyond the Confrontation Clause.
> 
> The decision itself seems fairly remarkable, and one with potential
> implications for upcoming terrorism-related cases, especially those in
> which the government relies on "Mobbs" declarations...
> 
> Am I reading too much into this?
> --
> http://www.icannwatch.org   Personal Blog: http://www.discourse.net
> A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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