Scalia takes aim at balancing

[daviwag]

Guess there are lots of eligible "favorite line" in Crawford.  For me,
it's a toss-up between "Raleigh, after all, was perfectly free to
confront those who read Cobham's confession in court" and "The
Constitution prescribes a procedure for determining the reliability of
testimony in criminal trials, and we, no less than the state courts,
lack authority to replace it with one of our own devising."  The Supreme
Court lacks authority...!  What a concept!

David M. Wagner
Regent University School of Law



> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of 
> Michael MASINTER
> Sent: Monday, March 08, 2004 7:03 PM
> To: Michael Froomkin - U.Miami School of Law
> Cc: Discussion list for con law professors
> Subject: Re: Scalia takes aim at balancing
> 
> 
> 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
> > +1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
> >                          -->It's warm here.<--
> > 
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