DeLay says internet research is "outrageous"


I'm not sure what he meant by this, but in a salvo against Justice Anthony Kennedy, Tom DeLay supposedly said

"We've got Justice Kennedy writing decisions based upon international law, not the Constitution of the United States? That's just outrageous," DeLay told Fox News Radio on Tuesday. "And not only that, but he said in session that he does his own research on the Internet? That is just incredibly outrageous."

(emphasis added)

Full story at CNN


Turns out that, in this case, Kennedy AND Thomas were talking about Westlaw. Westlaw is the "internet resource" that Tom DeLay is so outraged at Kennedy (but not Thomas) for using.

Yay! Its the begining of yet another exciting Fang-Face/GregS* pissing match(tm). What's the over/under on this thread going to sixty posts?

oooo he's toast.

"Tom Delay is an outright asshole."

"Molly Ivins did a piece on him..."

Yeah, you screwed yourself right there.

Molly Ivins did an piece on him just yesterday that you can find at Working For Change or at Delay is just engaging in an ad hominem attack against a judge because he's all pissy about the courts keeping the playing field level instead of letting the religio-political get away with their temper tantrums. Not to mention diverting attention away from his own soiled laundry that is exposed to public view. This vile and despicable piece of unethical trash is in no position to lecture anybody about anything.

LOLOL.. I'm not defending or attacking the court. Like everyone else, I generally do it on a case by case basis. Which is my point. "Judicial Activism" is really more about the court not deciding the way someone wants it to. When that activism works in their favor, you don't hear a word about it. When the courts decide differently, they are accused of running amok. What tickles me is that, by this time, a majority of those judges out there have been appointed by Conservatives. Maybe, just maybe, they are out of sync with the Constitution. Perhaps all those Conservatively Appointed Justices (The Clinton appointments, of course, are assumed to have been die hard Libs) are interpreting the Constitution. Perhaps many of them have shed their politics at the doors to the Chamber, and are addressing the issues on their merits. That is not a point of view you ever see the anti-Court Conservatives addressing.

sorry, on this page

We caught the interview, Justices Kennedy AND Thomas were referring to Westlaw online and the value of having it. I don't know if Delay was aware of this or not, but the quote above gets it wrong. real audio here

In so far as armed conflict goes, they have because the Supreme Court says so. I thought you were the one defending the court?


Perhaps you aren't looking.
Do some research.

Was Molly drunk or was she plagiarizing the piece?

I'll put my money on 47.

No, citechecking is not an area where you should be using free services. You use Lexis (Shepardizing) or Westlaw (KeyCiting), or you're not doing your job.

But you and I both know (or should know) two other things:

1. The are many instances where free resources are an extremely useful source of supplementary information, and some, such as those US patent assignment histories I mentioned, where the free resources are actually better.

2. Lexis and Westlaw are also "internet resources", and a lawyer who isn't using them is not doing his job.

From the story that was linked to, it was impossible to tell what "internet resources" Kennedy had referred to and DeLay was so outraged that Kennedy was using. However, note Jessamyn's response--she saw the whole interview, and Kennedy and Thomas were both referring to Westlaw, talking about its usefulness. So now, the most charitable interpretation we can put on DeLay's "outrage" is that he's too ignorant to know what Westlaw is, and that using it is part of the normal, responsible practice of law and jurisprudence.

One wonders why his outrage was directed solely at Kennedy's use of the internet, and not at Thomas' use of it also. Or no, rather, sadly, one does not wonder. It's perfectly clear.

I would give Gorman credit for actually understanding and having experience with the internet, but even with this knowledge, I think you are right that Gorman draws the wrong conclusions. At least the ALA presidency only lasts for a year...

Jessamyn, Thanks for the link, is there a transcript anywhere by the way?

Yeah, you screwed yourself right there.

Well, Greg, if I lowered myself to use your irrational line of logic, I'd say: you're kissing up to him proves that he's an asshole, because, after all, what else would you kiss?

Thank you for proving once again, at any rate, that you have no capacity to examine cold, hard reality with honest assessments and analysis.

Here's some more on him from another non-right-wing nut, Arianna Huffington, whom you can dismiss as a crank because her politics have a grounding in reality:

Unfortunately for Blunt--and of course for DeLay--the Majority Leader's ethical rap sheet is longer than the list of prepubescent boys who have shared Michael Jackson's bed. It's a profusion of unprincipled line-crossings and shady dealings. A primer on "How to Play the Washington System for Fun, Profit and Political Power." And it's left DeLay's foes far better armed than his friends. Their weapon of choice is the Joe Friday special: Just the facts, ma'am.

These facts start with dodgy fundraising tactics; take a long detour through Russia, Britain and South Korea on lavish trips paid for by lobbyists; stop for a beer with seedy pals like Jack "Indian Taker" Abramoff; include the misuse of a federal agency for political advantage; and plow on through the familiar Beltway muck of nepotism and the funneling of campaign money into the pockets of family members. All in a day's work for the former pest exterminator from Sugar Land.

But of all DeLay's transgressions, the one I find most repulsive is the way he has shamefully--and shamelessly--used charitable organizations to fill his political coffers and boost his political clout.

DeLay's preferred mechanism for gathering donations is the DeLay Foundation for Kids--a charity that assists children, especially in foster care, but which also conveniently allows lobbyists and corporations to buy access to DeLay and his GOP cronies without having to deal with those pesky campaign-finance laws. For instance, at a 2003 fundraiser for the DeLay Foundation for Kids, a celebrity golf tournament held at the Ocean Reef Club in Florida, corporate sponsors were afforded the opportunity to play golf with key Republican lawmakers like DeLay and his ol' buddy Roy Blunt--all nominally in the name of a good cause.

I know this might be a bit unfair, but Delay's comments on Justice Kennedy and the internet remind me a bit of some comments made in recent months by our incoming ALA president, Michael Gorman, on internet, for example the piece he wrote denouncing Google's plan to digitalize books, or his comments on bloggers.

There is no point in criticizing Kennedy for using internet, if he is using Westlaw. In fact, I don't think there is much sense to Delay's comment even if Kennedy was just researching the free internet. I would presume if the latter were the case he would be using this as kind of background information not as the main body of his legal reserach.

LOL.. I have done as much as I can stomach. I can only read so much whining before I have to move on.

Do we count Pompano's comments? Or is it limited to Fang and Greg?

I would use the term "broad reading" as the same as "making it up". Even if Congress has approved it, since when has Congress had the power to strip US Citizens of their rights?

Are you speaking of Jose Padilla or Yaser Hamdi?

It could be like the Justice Department making shit up out of thin air and granting the President authority and powers that never existed before

I am not sure this is an accurate statement on either the Hamdi or the Padilla case. I believe the Supreme Court (in Hamdi) and even the United States District Court for the District of South Carolina (in Padilla) have both held that the
the President (an elected branch of government) can hold a United States citizen as an enemy combatant if Congress (another elected branch of government) authorizes the President to do so. In Hamdi, he was a US citizen who was captured in Afghanistan with a weapon fighting against US Forces. In Hamdi, the Administration said that Congress authorized (via the Authorization for Use of Military Force Joint Resolution, Pub.L. 107-40) the President to detain US citizens as enemy combantants. The US Supreme Court agreed with that in regards to the specific situation in which Hamdi was captured (on the battlefield).

In Padilla, he was the "dirty bomber" who was caught on a flight from Europe to Chicago. The Administration once again claimed that Congress authorized (via the Authorization for Use of Military Force Joint Resolution, Pub.L. 107-40) the Administration to detain Padilla as an enemy combatant. The Federal District Court in South Carolina held in Feb 2005 that under Padilla's circumstances, the Administration could not.

So in both cases, the power of the President to detain US citizens as enemy combatants is not something that was dreamed up. It is just that the Administration takes a broad reading of the Authorization for Use of Military Force Joint Resolution, Pub.L. 107-40 which was passed by Congress.

Really. You mean the part about "Congress shall make NO law"? It could be worse. It could be like the Justice Department making shit up out of thin air and granting the President authority and powers that never existed before. You know, like locking up American citizens in military brigs. Fighting their right to an attorney, that sort of thing.

I think your comment is great. But we can't presume what DeLay is talking about (or for that matter, Justice Kennedy). The article doesn't specify if they are talking about free resources or licensed resources. My guess is that Tom doesn't know his FTP from his RFP. That is, I bet Justice Kennedy is using the licenced resources that you mentioned in your post, but DeLay is just ignorant about the availability of scholarly materials on the internet. I bet he thinks only non-scholarly materials are available, or he thinks the internet is inadequate for some other illegitimate reason (eg. it provides access to porn, and thus is not suitable for legal research). Basically, I suspect that DeLay is ignorant about the internet.

See my post above your post.I think the free Internet is a terrible tool when it comes to most (if not all) legal research. There are so many other print and electronic resources that are worlds (universes) better than the free stuff on the Internet.

I should have been clear on my question: Why does DeLay think that it is "outrageous" for a Supreme Court justice to conduct research on the internet? What is outrageous about that?

Does he think the internet only has bad data? Does he think it is liberal? Does he think it represents international perspectives at the expense of US perspectives? Is he not aware that there are many scholarly resources on the web?

There is something fishy about his quote and his point of view, but he doesn't go into detail about his beef with the internet. I'm curious, and I hope major new outlets follow up on this.

Aside from Delay's criticism, why is Justice Kennedy doing his research on the Internet? To begin with, I am assuming Delay is talking about the free Internet and not paid subscription databases that are available through the Internet(a big if, considering the story I read didn't really say much). In addition, we don't know if he is finding primary authority (statutes, rules & regualtions or case law) or secondary authority (not the law but commentaries on the law) on the Internet.When it comes to most legal research, the free Internet is a completely inferior product. As a Supreme Court Justice, Kennedy has access to the US Supreme Court Library which within reason has access to just about everything in print and/or electronic for foreign, international and domestic legal research. They either subscribe to it or the Library of Congress is pretty close by. In addition, Kennedy probably has access to just about every database and/or file/library on Lexis.Also understand that Westlaw is owned by Thomson (a Canuck Company) and it has lots and lots of foreign and international databases (Canadian, English, French, Austrailian, EU, UN, etc...). In addition, Lexis is owned by Reed Elsevier (a Dutch-UK Company) and they have just as many foreign and international libraries/files.Additionally, the private publishers add value to the legal materials and have better quality control. They also publish things in a much more timely manner (especially primary authority). If you don't believe me, just look for the latest supplement of the US Code and compare it with the USCA (published by West) or the USCS (published by Lexis).Sure, some of the free sites include government sites and that might be great; however, for my money I'd use the for-fee materials.So, with that said, why would one use the free stuff on the Internet when they had access to better materials in print or electronically?

Yeah but certain Supreme Court Justices (Breyer, Ginsburg and, sadly, Kennedy) believe that international or foreign law should be used in interpreting the United States Constitution. See Lawrence v. Texas, 539 U.S. 558 at 560.

Maybe Tom is mad because Kennedy got to some donor$ before he could?

I have to agree with Greg there. The ICJ decisions cannot be used stare decisis. Thus decisions of foreign courts cannot and should not be used as the basis for decisions in US Courts.

While the manifest fairness or justice demonstrated by decisions of foreign courts certainly can be taken into consideration, the decisions themselves are not based on US law and cannot be the foundation of decisions made in the States.

Exceptions are made for treaties, that's not what the debate is about.

My own inclination is to side with DeLay only because I'd prefer to not have Supreme Court Justices venturing out into what usually winds up being a brain-sucking experience. They each have staff to do this kind of legwork for them. That said there's a decent defense for Kennedy here

You sure are presuming and assuming a lot. He may be or he may not be ignorant about materials on the Internet. I don't know and I don't have all the facts nor do I know the context of the statement.Then again, it is certainly not unheard of for someone to get misquoted as something is repeated.

We have no idea whatsoever what Kennedy is using or whether DeLay even knows the difference between licensed commercial sources accessed via the internet, and the free internet which DeLay imagines to be wholly given over to porn.

In any case, while the free internet is not a sufficient tool for serious legal research, it is an extremely useful adjunct. Especially with some government resources, some things are actually available more quickly and reliably on those "free sites" you dismiss (e.g., want a complete assignment history for a US patent? avoid pay sources and go directly to the USPTO assignments database; it's more complete and more current). Depending on what the issue and the question is, the lawyer who ignores the free internet is as much a fool as the lawyer who relies on it either too heavily or inappropriately.

Justice Kennedy is demonstrating that he's learned to use new tools; Tom DeLay is demonstrating his usual level of ignorance and belligerance.

So sorry. Simply replace intern with judicial clerk. I would still want them viewing porn if they are gong to address censorship, etc..., of porn.

No thanks, we already have too many justices who just make shit up out of thin air.

A judicial clerk is not an intern.

Hey, if the SCOTUS is going to put limits on porn, I want the justices, rather than some intern, viewing the material in question. Back in the day, when the Justices would view some porn films to determine their legality, William O Douglas would not go to the viewing. His assumption was that it was protected by the First Amendment (these were non-Child porn films). I wish we had Douglas on the bench again.

Except, if you're studying the issue of porn on the internet, I would hope that he is surfing the sites. Before a justice would make such a decision, I'd hope that the justice would see exaclty what it is they are judging.

Perhaps there are elements of popular culture that he wants to research. The internet would be perfect for that. I think it is up to DeLay to specify exactly what it is that Kennedy is researching on the interent that he finds so horrible. I'll agree, if he is doing legal citation work using wikipedia, that would be a legitimate complaint.

You and I know (or should know) that for most legal research situations, the commercial materials are superior to the free things on the Internet.Show me anything available for free on the Internet that will do the equivalent of Shepardizing or KeyCiting a case from any US jurisdiction.

Taking all the politics and personalities out of it, this argument may boil down to library research v. web surfing. As librarians we bitch and moan about students not using the library or the for-fee electronic resources and instead using the generally unrealiable and questionable free Internet.As an attorney and librarian who works in an academic environment, I am completely amazed that law students choose to use the free Internet as opposed to books or even Westlaw and/or Lexis. When it comes to most legal research, you get what you pay for when you use the free Internet. Go ahead, drive around in that stripped-down Ford Pinto rather than that Lexus.I understand that price is a factor for non-lawyers and my discussion does not at all focus on those situations.

Article VI, sec. 2:


Too bad for Tom that the Supremes are bound to obey international laws implementing treaties ratified by the government.