Saturday, January 17, 2009

MORE GOLDBERG VARIATIONS. The recent Supreme Court decision in Herring v. United States weakens the exclusionary rule that forbids use of improperly obtained evidence in court. National Review's Jonah Goldberg doesn't know much about anything, but he knows what he doesn't like, and so emits a column that portrays the rule as a "get-out-of-jail-free card" for "the scum of the earth."

(He is eased in his task by a column by the Ole Perfesser that seems to defend the rule, but really just uses it as an opportunity to gripe about all the rules the rest of us are obliged to follow, the rebuttal of which extraneous argument allows Goldberg to also skirt the issue of the exclusionary rule's relevance to citizens who are not the scum of the earth, but nevertheless find themselves subject to fishing expeditions by cops and prosecutors looking to nail them for whatever they can find.)

Goldberg brags on his shoddy work at The Corner, inviting comment, some of which points out that weakening Fourth Amendment protections seems an odd mission for professed conservatives. Goldberg cheerfully responds that his illustrious National Review forebears also disliked the exclusionary rule, and Miranda warnings as well.

Understandably this doesn't satisfy his critics, and some direct his attention to the salient point. Now Goldberg has the option of bailing out, an option he frequently avails, but he's feeling bold and decides to tackle the issue head-on.

He begins by trimming shamelessly:
First, for the record, I'm not sure I would throw out every law and rule that falls under the heading of the exclusionary rule, never mind throw them out over night. I think Rehnquist was right to come around to supporting Miranda, for example. So I'm open to practical arguments about what to keep and what to reform or chuck in the garbage.
Apparently the scum of the earth, and the rest of us, yet have hope in the Republic of Jonah. He also seems dimly aware that other citizens have a right to these protections, and more keenly aware that he has to humorously minimize them in order to come out of this in one piece: "Cops shouldn't be able to kick down the doors of mattress-tag-rippers, even if they're sure of the perp's guilt."

Goldberg then wheels around from his walk-back and finds he doesn't have much left to defend, and is sufficiently dismayed that he resorts to tricks that have not worked well for him in the past. First he characterizes his opposition unflatteringly as lawyers and scriptwriters:
But lots of people, particularly defense attorneys, get very passionate about fudging the distinctions between justice and process. This sort of thinking is omnipresent in the culture, particulary on TV.
Maybe Goldberg has seen enough "Law & Order: We'll Get This Skel Yet" episodes to realize this is an unpropitious line of attack, so he turns to a poorly-thought-out metaphor:
It reminds me of complaints from teenagers who think their parents have "no right" to punish them if the mother or father found out about a particular transgression by invading their kids' privacy. If my kid shoplifts and I discover it by snooping around her room, the issue for discussion won't be the unfairness of my snooping, it will be what the appropriate punishment for her crime will be. Likewise, if a cop lacks the right paperwork...
So much for the nanny state! The denouement is, to paraphrase internet kids, an Epic Flail:
Now, of course, if a maximalist exclusionary rule is the only way to protect the rights of the innocent, then I'll hold my nose and take it. But I'm unconvinced. For starters, that argument pressuposes that every modern, just, society has an exclusionary rule. I know no such thing (but would like to be educated on the subject)...
Finally he retrenches to his original argument: "If a cop wrongly breaks down my door, I should be able to sue." Goldberg is clearly unaware that citizens can sue on those grounds. But, as actual libertarians never tire of reminding us, the high court has actually been making it harder, not easier, to win such cases. The energy has all been flowing in the direction of police discretion, which is why reasonable people worry about Herring.

Goldberg gives up and redirects readers to a colleague who argues that the exclusionary rule is itself the poisoned fruit of that dangerous radical Louis Brandeis.

The libertarian role in the future of the Sarah Palin party is clear.


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