March 19, 2007

Time To Rethink America's Domestic Intelligence Paranoia

In today's Wall Street Journal, Richard Posner has an excellent piece on the recent revelation that the FBI may have improperly issued national security letters. Those eager to blame the Bureau may wish to pause, however, before they rush to judgment and define the problem:

The FBI came under heavy criticism last week when it was reported that the agency had failed properly to supervise the issuance of national security letters, a form of administrative subpoena used in terrorist investigations. The bureau, it turns out, was unable even to determine how many such subpoenas it has issued.

Just weeks earlier, it was discovered that the FBI had been misreporting the statistics that it uses to track its intelligence activities. The bureau attributed that lapse to its continued struggle -- five and a half years after the 9/11 attacks -- to master modern information technology. The FBI also inflates its counterterrorist statistics by defining terrorism to include the acts of obnoxious but minor political criminals, such as white supremacists, animal-rights extremists and makers of idle (but frightening) phone threats.

Is it the case that the FBI is "incapable of effective counterterrorism," as an editorial in this newspaper wondered? Does the country need "to debate again whether domestic antiterror functions should be taken from the FBI and given to a new agency modeled after Britain's MI5"?

The answer to both questions is yes.

But is the problem really FBI inefficiency/incompetence? Or is it, more accurately, a question of using the wrong tool for the job? Unsurprisingly, Posner has an opinion:

The FBI is a detective bureau. Its business is not to prevent crime but to catch criminals. The Justice Department, of which the FBI is a part, knows only one way of dealing with terrorism, and that is prosecution. (Mr. Mueller is a former prosecutor.)

For prosecutors and detectives, success is measured by arrests, convictions and sentences. That is fine when the object is merely to keep the crime rate within tolerable limits. But the object of counterterrorism is prevention. Terrorist attacks are too calamitous for the punishment of the terrorists who survive the attack to be an adequate substitute for prevention.

Detecting terrorist plots in advance so that they can be thwarted is the business of intelligence agencies. The FBI is not an intelligence agency, and has a truncated conception of intelligence: gathering information that can be used to obtain a conviction. A crime is committed, having a definite time and place and usually witnesses and often physical evidence and even suspects. This enables a criminal investigation to be tightly focused. Prevention, in contrast, requires casting a very wide investigative net, chasing down ambiguous clues, and assembling tiny bits of information (hence the importance of information technology, which plays a limited role in criminal investigations).

America has long been hostile to what many view as 'domestic spying', but it wasn't always that way. After Pearl Harbor, Harry Truman recognized the need for heightened vigilance and established the Central Intelligence Agency. For two decades there was little legislative oversight over domestic intelligence gathering, but in the 1970s, alarmed by reports of rogue CIA activity the pendulum swung the other way and the Church and Pike Committees sought to reign in what Truman had wrought. This climate of hostility to home-grown intelligence persisted until 2001 when America again experienced an attack on our own soil, reinforcing the need for domestic intelligence gathering that virtually every large democratic nation except the United States accepts as a matter of course. Unfortunately, the brief recognition that we continue to be ill-prepared to defend ourselves from terrorists didn't last much longer than it took the dust to settle from the collapse of the World Trade Center. Almost six years after 9/11, we still haven't gotten it right:

Every major nation (and many minor ones), except the United States, concluded long ago that domestic intelligence should be separated from its counterpart to the FBI. Britain's MI5 is merely the best-known example. These nations realize that if you bury a domestic intelligence service in an agency devoted to criminal law enforcement, you end up with "intelligence-led policing," which means orienting intelligence collection and analysis not to preventing terrorist attacks but to assisting in law enforcement.

MI5 and its counterparts in other nations are not law-enforcement agencies and do not have arrest powers. Their single-minded focus is on discovering plots against the nation. Knowing that arrest and prosecution should be postponed until a terrorist network has been fully traced and its methods, affiliates, financiers, suppliers and camp followers identified, they do not make the mistake that the FBI made last year in arresting seven Muslims in Miami on suspicion of plotting to blow up buildings there, along with the Sears Tower in Chicago.

Civil libertarians worry about abuses of domestic intelligence. But an agency that had no powers of arrest or prosecution, and that conceived its primary role to be to prevent the alienation of Americans who have religious or family ties to nations that harbor terrorists, rather than to run up arrest statistics, would be less likely than the FBI to engage in the promiscuous issuance of administrative subpoenas.

...In 2004, Congress created the post of Director of National Intelligence, hoping to plug the gaps in our multi-agency intelligence system. The biggest gap is domestic intelligence, yet the FBI director and his staff have largely ignored it. They have no background in domestic intelligence. No senior official is assigned full time to it. So turf wars between the FBI and the Department of Homeland Security have been allowed to rage, and the nation's hundreds of thousands of local police have not been knitted into a comprehensive national system of domestic intelligence collection.

We need an agency that will integrate local police and other information gatherers (such as border patrol police, customs officials and private security personnel) into a comprehensive national intelligence network, as MI5 has done in Britain -- and as the FBI has failed to do here, in part because of deeply rooted tensions that have long inhibited cooperation between the bureau and the rest of the law enforcement community. The bureau does not want the local police to steal its cases, and vice versa. Moreover, it is a self-consciously elite institution whose stars -- the special agents -- look down on local police and are reluctant to share information with them. Lacking police powers or a law enforcement function, a domestic intelligence agency separate from the FBI would be an honest broker among all the institutions that gather information of potential significance for national intelligence.

America's more enlightened deep thinkers eagerly cite the value of learning from the international community yet, like hummingbirds, they seem astonishingly finicky about which examples they choose to sample from. As no enumerated Constitutional right to privacy yet exists outside the perfervidly penumbral pratings of the pro-choice crowd, this seems an area in which we could readily open ourselves to the vaunted "international perspective" without doing violence to the literal text of our own Bill of Rights. Now, if we can just get the advocates of our living, breathing Constitution to take their own oft-given advice.

Posted by Cassandra at 05:44 PM | Comments (13) | TrackBack

March 01, 2007

It's A Miracle!

Sacre bleu! How can this be? Have the NYTimes and Associated Press misled us all this time?

Terror suspect Jose Padilla suffers from anxiety and personality disorders but is competent to stand trial, a government psychologist testified Monday in Miami federal court.

The testimony from Bureau of Prisons psychologist Rodolfo Buigas came during the second day of a hearing to determine whether Padilla is mentally fit for his trial. Buigas said Padilla refused to submit to psychological testing and would not answer many of his questions, including basic ones such as when he was born.

Still, Buigas said he diagnosed Padilla as having a "not otherwise specified" anxiety disorder and antisocial personality disorder. Buigas said he made the diagnoses by reviewing several documents, including court filings and the evaluations of two mental health experts hired by the defense. Those mental health experts concluded Padilla suffers from post-traumatic stress disorder, rendering him unfit for trial.

Buigas, however, said there were flaws with the testing those experts carried out and with the conclusions they reached. He said although his diagnosis did not rule out post-traumatic stress disorder, he did not see indications that Padilla suffered from it.

"I saw this individual happy," he said. "I saw this individual joking."

Padilla, 36, a former Broward resident, and two other men are charged with taking part in a terror cell that sent money, supplies and recruits to support violent Islamic groups overseas. Padilla was arrested in May 2002 and imprisoned by the military for more than three years without charges as an "enemy combatant." If found guilty of pending charges, Padilla could get a life sentence.

This morning, three military officials from a Navy brig where Padilla was detained are scheduled to testify. Defense attorneys have argued his mental health issues stem from his military captivity.

And then there are those who would argue that only those with a few screws loose in the old brain housing group conspire with Islamic extremists to attack their own countrymen.

But what do I know?

Posted by Cassandra at 08:38 AM | Comments (3) | TrackBack

February 21, 2007

Judicial Smackdown

Once again, the federal Courts have sided with the Odious Shrub in his ongoing attempts to shred the Bill of Rights and feed it to Barney, the White House Terrier:

Writing for the court in today’s decision, Judge A. Raymond Randolph said that the arguments put forward by the lawyers for the detainees “are creative but not cogent” and that Congress clearly meant to preclude the federal courts from considering the detainees’ cases. He said that there were no cases in which the habeas corpus could be used by foreign nationals held at an overseas military base and that the constitution “does not confer rights on aliens without property or presence within the United States.”

Fortunately for the Republic, Senator Patrick Leahy (affectionately known from his days on the Senate Intelligence Committee as "Leaky Leahy") quickly offered a more enlightened view of the Constitution:

Democrats now in control of Congress said they would move quickly to introduce legislation that would unambiguously give federal courts the right to consider habeas petitions by detainees.

“The Military Commissions Act is a dangerous and misguided law that undercuts our freedoms and assaults our Constitution by removing vital checks and balances designed to prevent government overreaching and lawlessness,” said Senator Patrick Leahy, the Vermont Democrat who heads the Senate Judiciary Committee.

And here we thought the issue was the "Constitutional" rights of non-US citizens - enemy combatants - not being held on US soil during wartime. But then the Democratic party thinks illegal aliens have rights under the Constitution too, so perhaps we should not be surprised. In recent years, that document seems to have acquired a life of its own, miraculously spawning emanations from mere penumbras of nuances hidden in past participles of dependent clauses of precedents set by the Great Courts of Europe. From such gossamer stuff, shiny new "rights" are constantly being discovered without the tiresome necessity of having to consult the American people as set forth in the actual text of the Constitution itself; literal meaning being so last century, doncha know.

But when one is charged with carrying out the Will of the People, one cannot afford to shrink from stern measures, can one? After all, the DNC has their mandate... don't they?

* 57% believe “The Iraq War is a key part of the global war on terrorism.”

* 57% “support finishing the job in Iraq, that is, keeping the troops there until the Iraqi government can maintain control and provide security for its people.

* 50% want our troops should stay and “do whatever it takes to restore order until the Iraqis can govern and provide security to their country” while only 17% favor immediate withdrawal

* 56% believe “Even if they have concerns about his war policies, Americans should stand behind the President in Iraq because we are at war.”

* 53% believe “The Democrats are going too far, too fast in pressing the President to withdraw the troops from Iraq.”

The editorial staff cries for her country. Where, oh where is Keith Olbermann?

Will no one rid us of this Turbulent Twig?

Posted by Cassandra at 06:44 AM | Comments (13) | TrackBack

February 03, 2007

Poetic Justice...

...is a thing of beauty:

J.H. GILLIS, Judge.

We thought that we would never see
A suit to compensate a tree.
A suit whose claim in tort is prest
Upon a mangled tree’s behest;
A tree whose battered trunk was prest
Against a Chevy’s crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must uphold the court’s decree.

Affirmed.1

Would that all legal writing showed such brevity and wit.

Posted by Cassandra at 02:40 PM | Comments (1) | TrackBack

January 22, 2007

At Last We Obtain Shangri La...

Long suffering time readers of VC who have wallowed in the dubious pleasures of our Law Archives may have observed that a favorite subject of the half vast editorial staff is none other than one Clarence Thomas, Supreme Court Justice:

We confess the very sight of Justice Thomas makes us feel warm and fuzzy all over. But oddly, he seems to inspire our Lefty friends to flights of hyperbole.

Thomas. Mein Gott Im Himmel!, who would have guessed it! That pudgy, avuncular-looking little man, suddenly rising up in his black robes like the Lord of the Nazgul. Stooping to pick at the flesh of a Woman's Right To Choose and grabbing welfare dollars from the hands of baby-Daddies all over this great nation! Sure, he may look like a teddy bear, but he's [[[shudder]]] worse than Scalia!

Back in July we wondered whether our favorite Justice would ever get the respect he deserved? Happily for us, the ever-observant mr rdr paused from his Herculean labors lobbying Heathens in the Stygian fields and peeling the Commerce Clause like an onion to send us the following glad tidings of our hero:

Clarence Thomas has borne some of the most vitriolic personal attacks in Supreme Court history. But the persistent stereotypes about his views on the law and subordinate role on the court are equally offensive -- and demonstrably false. An extensive documentary record shows that Justice Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years.

That's not the standard storyline. Immediately upon his arrival at the court, Justice Thomas was savaged by court-watchers as Antonin Scalia's dutiful apprentice, blindly following his mentor's lead. It's a grossly inaccurate portrayal, imbued with politically incorrect innuendo, as documents and notes from Justice Thomas's very first days on the court conclusively show. Far from being a Scalia lackey, the rookie jurist made clear to the other justices that he was willing to be the solo dissenter, sending a strong signal that he would not moderate his opinions for the sake of comity. By his second week on the bench, he was staking out bold positions in the private conferences where justices vote on cases. If either justice changed his mind to side with the other that year, it was Justice Scalia joining Justice Thomas, not the other way around.

Much of the documentary evidence for this comes from the papers of Justice Harry Blackmun, who recorded the justices' votes and took detailed notes explaining their views. I came across vivid proof while reading the papers as part of my research for a book about how the Rehnquist Court -- a court with seven justices appointed by Republican presidents -- evolved into an ideological and legal disappointment for conservatives.

Over and over again through the years we have been impressed with Thomas' quiet reasoning. He seeks not to dazzle with his wit but to carefully, sensibly step through the law crafting well grounded opinions written in spare language that is accessible to ordinary citizens. It is not that, as Harry Reid so baldly put it, he cannot express himself eloquently; for we have heard him do so on several occasions. It is, rather, that he strives for brevity and clarity in his legal writing: qualities that are all too rare in judicial opinions. In this, as in so many other areas, Thomas shows his determination to do things his own way:

From the beginning, Justice Thomas was an independent voice. His brutal confirmation hearings only enforced his autonomy, making him impervious to criticism from the media and liberal law professors. He'd told his story, and no one listened. From then on, he did not care what they said about him.

Clarence Thomas, for example, is the only justice who rarely asks questions at oral arguments. One reason is that he thinks his colleagues talk too much from the bench, and he prefers to let the lawyers explain their case with fewer interruptions. But his silence is sometimes interpreted as a lack of interest, and friends have begged him to ask a few questions to dispel those suggestions. He refuses to do it. "They have no credibility," he says of critics. "I am free to live up to my oath."

But the forcefulness and clarity of Justice Thomas's views, coupled with wrongheaded depictions of him doing Justice Scalia's bidding, created an internal dynamic that caused the court to make an unexpected turn in his first year. Justice O'Connor -- who sought ideological balance -- moved to the left. With the addition of Chief Justice John Roberts and Associate Justice Samuel Alito, the court now is poised to finally fulfill the hopes of the conservative movement. As George W. Bush told his legal advisers early in his presidency, he wanted justices in "the mold of Thomas and Scalia." Interestingly, on President Bush's marquee, Justice Thomas got top billing.

Interestingly enough, Justice Thomas got top billing in another marquee recently. Go figure.

Posted by Cassandra at 09:11 PM | Comments (5) | TrackBack

January 21, 2007

FISA, NSA, and Executive Authority

Over at Q&O, Dale Franks continues to argue that the recent move to bring the NSA Terrorist Surveillance Program under FISA supervision amounts to a surrender of the President's claim to Article II authority.

This argument continues to make absolutely no sense to the editorial staff if for no other reason than that it has been flatly contradicted by the administration. But if that weren't enough, there are significant logical reasons to doubt it; not the least of which are that one can assert a power yet for political or pragmatic reasons find it convenient not to exercise that authority in one or more real world situations. Such a decision does not bar one (nor, we might add, subsequent administrations) from ever exercising that authority again. It is as if one possessed a sledgehammer, yet decided the far less intimidating ball peen hammer was the right tool for a particular purpose. One is hardly barred for all eternity from ever again using the more forceful instrument. It is just that in this case, the task could be accomplished with less force and less risk of collateral damage using a less blunt instrument.

On close examination, Dale's argument fails on several points:

I think that, for my part, the problem is that the Bush Administration has been arguing:

1) Such searches were absolutely vital to national security.
2) That the President has the inherent wartime authority to conduct such warrantless searches, because it is an inseparable part of his warmaking powers, which kicked in when the AUMF was passed.
3) No statutory limitation, such as FISA, can repeal that inherent authority.
4) The FISC itself could not be used, because its procedures for obtaining warrants was unsuitable.
5) In any event, FISA doesn't apply because there is a generalized power to conduct warrantless searches on communications leaving and entering the country, much in the same way as the Customs Service has the power to conduct—and routinely does conduct—warrantless searches on persons or property entering or leaving the country.

Now, even if we assume that Mr. Kerr is correct, and the FISC has revised its procedure to allow the use of anticipatory warrants, and the speed with which they can be obtained has been increased, the fact that item 4 above has now changed does not approach the other arguments the Administration put forth. The fact that the Administration has abandoned the other claims indicates to me that they were never sincere in those arguments. They were simply window dressing to disguise the Administration's unhappiness with the FISC procedures.

This argument doesn't stand up well to the historical record. From the Justice Department's briefing (via PW), the Justice Department both reaffirms the President's assertion of his Article II authority and states that this program has been in the works for two years, which rather makes a hash of "the speed with which this argument has been surrendered":

QUESTION: What has changed here? What has changed that allows you now allows the FISA court to approve this on whatever basis?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: I don’t know that anything has changed. First of all, let me say that we continue to believe as we’ve always said and as we’ve explained at length that the President has the authority to authorize the terrorist surveillance program, that he has that authority under the authorization for the use of military force and under Article II of the Constitution. That’s not changing.

These orders, however, are orders that have taken a long time to put together, to work on. They’re orders that take advantage of use of the use of the FISA statute and developments in the law. I can’t really get into developments in the law before the FISA court. But it’s a process that began nearly two years ago, and it’s just now that the court has approved these orders.

Now for a trip in the wayback machine. What could have happened two years ago to trigger this process? According to NY Times reporters James Risen and Eric Lichtblau, the Times met with the administration to talk about a classified wiretapping program: a program the Times unilaterally chose to "declassify" one year later. So it would seem that, warned that a confrontation was inevitable, the administration began working to fix the timeliness problems described here.

And as this post from SCOTUSblog makes clear, it's a good thing the administration acted promptly:

The Sixth Circuit is scheduled to hold a hearing Jan. 31 on a broad challenge to the prior surveillance program, in the wake of a federal District Court order striking down that program as unconstitutional.

With the surveillance program now apparently within the supervisory control of the FISA Court, the prospects for Supreme Court review of any challenges to it appear to have declined. Under the existing FISA law, only the government is authorized to pursue any appeals from the FISA Court, either to the mid-level appeals court known as the Foreign Intelligence Surveillance Court of Review, or to the Supreme Court. No one whose communications are monitored by the program has any right to appeal to make any challenge; such individuals or groups, in fact, are not told that their communications have been monitored. The FISA Court considers only one-sided requests for surveillance -- those submitted by the Justice Department. Those orders are never made public.

One issue that now arises is whether the existing case in the Sixth Circuit will go forward, and whether a long list of other challenging lawsuits in a federal District Court in California and in an interim appeal in the Ninth Circuit will proceed. Part of the reason that those courts were involved is because the government had previously bypassed the FISA Court in conducting the so-called Terrorist Surveillance Program.

All of which begs the question: does anyone bother to think?

As we remarked before, we are fighting a larger war here and there are more important things at stake than petty partisan warfare with the grand prize being the right to say, "I'm the boss of you". We, for one, are glad the administration seems capable of seeing this issue as something more than some sort of Article II pissing contest. What possible difference does it make if the administration agrees to run the program under judicial purview, so long as its integrity is not compromised? How is that not a gain, rather than a loss, for the rule of law and democratic governance?

The larger principle here is this: the President's Article II authority is a sledgehammer of which citizens in a democratic republic are rightly wary. It should be used sparingly and only in those situations where there is no other reasonable means of accomplishing the same end. If the President chooses to negotiate a mutually acceptable solution with the FISA courts for whatever reason: be it to increase the perception that his administration is doing business openly and within the law, to free it from fighting a battle in the Courts that can only tie up valuable resources during wartime which need to be devoted elsewhere, or to safeguard a valuable program from further exposure in the media, this should be a cause for rejoicing rather than consternation on both the right and the left. Conservatives do him (and this nation) no favors by complaining that he "let them down" simply because he had the foresight to be a few steps ahead of the opposition for once.

And those on the Left who are still criticizing the program have a lot of soul searching to do, for the adminsitration's deft move has neatly exposed their hypocrisy. They refused to amend the FISA law when Senator Arlen Specter gave them the chance last year. If they didn't care for his bill, they could have countered with legislation of their own.

Instead they demanded that the White House bring TSP under FISA supervision.

What will they do now that it appears the White House has been negotiating with FISA for TWO YEARS to eliminate the timing roadblocks that threatened national security and do that very thing? Short answer: if they're honest, they'll have to admit that oversight was never the issue.

They'll have to admit that what they object to is the very existence of the TSP program itself.

And then they'll have to explain why, if they believe the program itself is unconstitutional, the FISA court has upheld it and they haven't put their money where their mouths are and cut the funding. But you see there's just one little problem with all of this: the average American just doesn't think all that much about these issues and our so-called "investigative" journalists in the media aren't about to ask any of these questions.

Are they?

Only in America: asymmetrical journalism at its finest.

Posted by Cassandra at 10:30 AM | Comments (1) | TrackBack

January 17, 2007

Behold The Power Of The Unfounded Allegation

Yesterday the half vast editorial staff addressed Cully Stimson's ill thought out suggestion that corporate CEOs think twice about doing business with law firms who represent terrorists. In response, commenter Actus made the following remark:

When you were reading the findlaw article, didn't you notice that the complaint was not about the FOIA request, or this info being known? the complaint is about the blacklisting or boycotting of these lawyers. I would think that for those still unconvinced on this whole matter, Charles Rried's pronouncements would be sufficient.

The FindLaw article specifically cited the Wall Street Journal's FOIA request as evidence of "a coordinated strategy" to attack large law firms who defend Gitmo inmates. Thus it was not just the suggestion that CEOs boycott law firms, but the release of this information that was objected to in the article we cited. When two authors use an event as evidence of some sort of conspiracy, it becomes fair game for discussion and analysis.

As they say, reading is fundamental. From yesterday's FindLaw article:

Here's the evidence that Stimson's January 11 comments in the radio interview appear to be part of a coordinated strategy to initiate an attack on "big firm" lawyers who were volunteering their time to detainees at Guantanamo Bay:

Just three minutes into an interview with the Federal News Radio, the conversation stalled out -- after a desultory discussion of the wildlife now occupying the empty portions of Camp X-Ray. After a pause, and not in response to any question, Stimson volunteered the following: "I think the news story that you are really going to see is this: As a result of a FOIA request through a major news organization, somebody asked, 'Who are the lawyers representing detainees down there?' And the results are shocking."

On January 12, the Wall Street Journal ran an Op Ed by Robert L. Pollock, a member of its editorial board, entitled, "The Gitmo High Life." Pollock noted that "a list of lead counsel released this week in response to a Freedom of Information Act request reads like a who's who of America's most prestigious law firms," and reported that "A senior U.S. official I spoke to speculates that this information might cause something of scandal, since so much of the pro bono work being done . . . appears to be subsidized by legal fees from the Fortune 500."

We suspect that the "major news organization" to which Stimson referred in his interview was the Wall Street Journal, and we suspect that the "senior U.S. official" to whom the Wall Street Journal's Robert Pollock spoke was Stimson.

Moreover, we suspect that all of this was part of an attempt by the White House to tell companies that they might want to consider taking their business to other firms that do not represent suspected terrorists.

Not only does this entire sequence of events have a transparently stage-managed aspect to it, the whole FOIA business was largely unnecessary, since the identity of the firms doing these cases is not a secret. The firms are justifiably proud of their work, and are trumpeting their involvement, rather than hiding it from their current and future clients.

Enter Actus, who takes us to task for mentioning the FOIA request at all:

Its not about the FOIA issue. I don't know why you blogged that. How did you come to that conclusion? How did you come to the conclusion that the problem is publicizing this information?

Perhaps that question is more properly directed to Mssrs. Waller and Sebok since they brought the subject up. We merely addressed what they wrote. The salient point here is that Waller and Sebok advanced several unfounded allegations in their article:

1. Allegation #1: Rather than making a rogue comment, as the Pentagon's disavowal suggests, it seems Stimson revealed an ongoing endeavor in which others have joined with him.

- An ongoing endeavor? Is there any evidence this "endeavor" is still "ongoing"? If so, bring it on.

- One public servant made a suggestion that was quickly disavowed. End of story... or at least it would be if the legal community weren't still circulating outraged petitions and editorials in an effort to keep a story alive which should long ago have withered into well deserved obscurity. Does anyone really see corporate America marching in hypnotized lockstep to the sinister machinations of a Deputy Assistant Secretary of Defense for Detainee Affairs? Until all this fuss began, who had even heard of Cully Stimson?

- Any apparent authority possessed by Stimson vanished when a Pentagon spokesman disavowed his comments. If a military wife bristles at being told what to do with her business, the idea that American CEOs would meekly fall in line with comments made on a radio show is not just insulting, but ludicrous.

- In any event the government has no power to coerce private corporations who would, in any case, remain entirely free to do as they pleased.

- The real irony here is that most corporate CEO's would have remained blissfully unaware of Stimson's suggestion but for the huge fuss made over it by the legal community, who have gotten their collective pantyhose in a wad over an idiotic comment by an obscure public servant on a radio show. No matter how distasteful or inappropriate they may find his words, mere spittle-flecked references to the Shade of Joe McCarthy (who, as the authors with almost palpable irony are forced to recognize, lent his name to an era "when the government was creating *real* blacklists") can't conjure McCarthy-esque persecution out of thin air.

Putting aside the hysteria for a moment, let's take a sober look at the reality of the situation:

- Even had Stimson's inappropriate suggestion been adopted (which is extremely unlikely) it is not illegal, nor will it ever be, for private citizens to boycott firms whose practices or affiliations they disagree with. Surely the CEOs of America are smart enough to recognize the merit in the arguments made by these legal lights. Or do they contend their clients are narrow minded, ignorant bigots who can be easily buffaloed by a minor government functionary? Exactly what is the fear here? If their argument is inherently sound, any fool should be able to see it. If it is lacking on the merits then perhaps they do have something to fear. But then maybe in that case their clients have a right to know what they're doing and judge for themselves. You can't have it both ways: information is a good thing. Let people judge for themselves: that is the American way.

Allegation # 2: Second, we want to argue that this kind of blacklisting is always wrong, and not just when the government writes the list.

- What a dishonest argument for two lawyers to make. The government did not make, nor did it have plans to make, nor did it suggest making itself, any official list.

3. Allegation #3 (This one is a beauty - the 'White House' is behind it all): Third, and finally, we want to offer an illustration from the McCarthy era of another elite firm that offered legal representation when the government was creating real blacklists. Our history, we argue, shows us that the firms attacked by Stimson should be celebrated--and the White House should be ashamed of itself.

- What "others"? Do Waller and Sebok have the guts to openly name these "others" or are we just to understand they mean the White House? What is the ethical standard for throwing around accusations of this nature in a professional legal publication? Is any real standard of proof required, or is sliming by implication in the absence of any concrete evidence considered sufficient? Inquiring minds want to know.

- Where is the evidence the "White House" is behind all this? It's obvious - Stimson was an employee of the Pentagon. Right. And the White House has time to directly supervise and coordinate the radio interviews of every deputy undersecretary of every Cabinet-level department in the federal bureaucracy... because we all know that the Bush administration is a miracle of efficiency. Just ask its critics.

It's difficult to persuade anyone that a mere Deputy Assistant Secretary for detainee affairs speaks for the White House after the Pentagon has said his words "...do not represent the views of the Department of Defense or the thinking of its leadership" and the Attorney General of the United States has said, "Good lawyers representing the detainees is the best way to ensure that justice is done in these cases." ... unless of course you happen to be two members of the legal community who require zero evidence to try and convict a sitting President in absentia, in the Court of FindLaw, without benefit of the excellent counsel they so ardently remind the American public is the right of even accused terrorists who aren't American citizens.

Two wrongs don't make a right, and the legal community does itself no credit with disingenuous rhetoric like that of Harvard Professor Charles Fried:

It is the pride of a nation built on the rule of law that it affords to every man a zealous advocate to defend his rights in court, and of a liberal profession in such a nation that not only is the representation of the dishonorable honorable (and any lawyer is free to represent any person he chooses), but that it is the duty of the profession to make sure that every man has that representation. So, for instance, it is only the ideologically blinded who would criticize the great John W. Davis for having presented the case for school segregation to the Supreme Court in Brown v. Board of Education, or the ignorant who did not know that he had denounced the Ku Klux Klan and, as Solicitor General, had defended the voting rights of African-Americans.

It may just be that Mr. Stimson is annoyed that his overstretched staff lawyers are opposed by highly trained and motivated elite lawyers working in fancy offices with art work in the corridors and free lunch laid on in sumptuous cafeterias. But it has ever been so; it is the American way. The right to representation does not usually mean representation by the best, brightest and sleekest. That in this case it does is just an irony -- one to savor, not deplore.

Yes, Professor Fried. Perhaps that is it.

Or perhaps he has just noticed what I (and many other military people) have noticed: that accused terrorists in Guantanamo Bay are being represented by the best and the brightest of the American legal community.

How many of those same firms represent, pro bono, American servicemen and women accused of violating the rules of engagement while fighting on our behalf? Don't they deserve "zealous advocates" who are the "best, brightest and sleekest"?

Apparently not. Well, don't worry. As Professor Fried remarks, thanks to America's military men and women (who the elite law firms of America decline to defend pro bono), this is a free country and so he is entirely free to savor the fact that non-American citizens accused of trying to destroy our way of life enjoy the very best representation money can buy while those who volunteer to risk their lives in our defense do not.

That is, in and of itself, as eloquent a statement of the values of America's legal elite - the very folks who torture the rhetoric of free speech to bar military recruiters from speaking to their own students - as any we could name.

Update: More evidence that this was all a nefarious White House plot:

A Pentagon official who criticized large U.S. law firms for representing terrorism suspects at the U.S. detention facility at Guantanamo Bay, Cuba, has apologized for his comments, saying that his discussion on a local radio program does not reflect his "core beliefs."

Get a rope.

Nevertheless, the piling on continues here, here, here, here,...

Gosh. We hope we didn't miss any of the outrage. We'll leave you to Google Senator Arlen Specter's furious denunciation.

Under the circumstances, we feel it only right to reissue our own Blanket Denunication Policy:

This Blog proactively denounced, spat upon, deplored, reviled, abhorred, and otherwise distanced itself in the strongest possible terms from all utterances, stances, or actions Known or Unknown (whether committed prior to your reading this, contemporaneously, or at times to be determined in the future) long before whatever may or may not have caused you to read this statement of policy either did, or did not, occur.

If we knew of it at the time, we now choose to ignore it. Such matters are really Beneath Contempt and we think it best not to encourage such uncouth behavior. If it occurred without our knowledge, we tried to exercise moral suasion. But "They" refused to listen and as little "L" libertarians we saw no force or fraud argument for forcibly stepping in to control Their behavior.

We only bring it up now because it is the duty of all reich-leaning blogs to constantly monitor everything said by all other reich-leaning folks. We are a community, and when even the smallest sparrow falls from grace we must all peck at it mercilessly lest we, too succumb to the fearsome rhetorical powers of Glenn Greenwald.

Posted by Cassandra at 05:05 AM | Comments (27) | TrackBack

January 16, 2007

We're All For Freedom Of Information...

...Except when it's about us. Fire up the Outrage-ometer.

The half vast editorial staff has been watching, with a fair amount of amusement and no little degree of schadenfreude, various blawgs go have conniption fits over this admittedly disturbing story:

Last Thursday, January 11, Charles "Cully" Stimson, the Deputy Assistant Secretary of Defense for Detainee Affairs, suggested in a radio interview that U.S. companies should boycott law firms that represent detainees held at the U.S. military prison at Guantanamo Bay, Cuba.

The comments evoked instant criticism from almost every part of the American legal community, and were disavowed on Saturday, January 13, by the Pentagon.

In this column, we want to look at three interrelated issues. First, we want to look more carefully at how Stimson's comments came about, and suggest that they were actually the first steps in an effort to create a "blacklist" of elite law firms doing work in Guantanamo Bay. Rather than making a rogue comment, as the Pentagon's disavowal suggests, it seems Stimson revealed an ongoing endeavor in which others have joined with him.

Second, we want to argue that this kind of blacklisting is always wrong, and not just when the government writes the list.

Third, and finally, we want to offer an illustration from the McCarthy era of another elite firm that offered legal representation when the government was creating real blacklists. Our history, we argue, shows us that the firms attacked by Stimson should be celebrated--and the White House should be ashamed of itself.

Yes. Shame... shame on the Wall Street Journal for publicizing information that, according to Mssrs. Seebok and Waller:

...is not a secret. The firms are justifiably proud of their work, and are trumpeting their involvement, rather than hiding it from their current and future clients.

If the firms involved are, indeed, already "trumpeting their involvement" then where is the perceived harm from releasing a formal list of firms who defend Gitmo detainees on a pro bono basis? By the authors' own admission, publication of such information should be not only "largely unnecessary" but redundant. One might even argue these firms should regard it as free advertising, but such an argument requires one to swallow the authors' disingenuous premises whole: something that strains the credulity of even the most naive reader.

The answer is simple: these firms may be "trumpeting their involvement", but not to their corporate clients. Otherwise they should have no reason to fear disclosure of their activities. In fact, if they deem this work to be a public relations bonus they should welcome the government's efforts to publicize activities they believe will enhance their reputation in the eyes of their corporate clients.

To shore up a shaky argument, the authors seque into an anecodote that, upon inspection, proves to have little relevance other than the now-obligatory invocation of the McCarthy bogeyman. The hero is not a prestigious law firm (as the firms representing today's Gitmo detainees are) but a small, struggling one. It refuses to represent admitted communists, nor those who will take the Fifth against their country: in short, it is interested in defending only those who maintain they are innocent and profess loyalty to their country.

These are hardly trivial differences. But in the world of prestigious law firms (and apparently the one the authors of this article inhabit), the ethics of their prospective counsel are a matter far too complicated for mere clients to contemplate. Therefore, even information "trumpeted" by big law firms must be concealed from foolish clients lest they make ill-advised decisions that negatively impact the bottom line.

Pro bono work always has a cost, and if such work must be done in a secretive manner to avoid the risk of losing valuable clients then perhaps that cost should be figured into the risk-benefit calculation. The authors seem to argue, paradoxically, that it is already widely known that these firms are defending Gitmo detainees. They argue, quixotically, that these prestigious firms are "trumpeting" this joyous news because they value this good work and are genuinely proud of it.

If this is so, and it is already widely known by their corporate clients, there would seem to be little risk attached to further publication of the "good news". But the more likely story is that these prestigious law firms have publicized their pro bono work only within legal circles where such news will be well received, and not at all within the vastly more conservative business world where it will not be greeted as warmly. Otherwise, why object to what amounts to free advertising of an activity they maintain is a mitzvah?

Don't get us wrong. The half vast editorial staff finds the spector of public servants appearing to apply economic pressure to private entities as unsavory as the next person, and the Pentagon was right to distance itself from Herr Stimson's latest folly. But the authors' argument is absolutely ludicrous and we're not buying it. Corporate American has no need to be "protected" from information about the law firms it hires. Check your patronizing snootiness at the door - if defending accused terrorists is important to you, do it and accept the risks, but don't blame others if they don't condone your behavior and don't want to do business with you. People are dying every day to ensure the right to freedom of information and other Americans have just as much a right to their opinions as you do to yours.

Via Howard Bashman

Posted by Cassandra at 07:31 AM | Comments (25) | TrackBack

January 07, 2007

Damned If You Do....

The controversy over the President's signing statement asserting the power to open U.S. mail without a warrant in an emergency provides a perfect example of the combination of almost willful ignorance and "gotcha politics" that continue to characterize the debate over the war on terror:

President George W. Bush has created more controversy over his domestic intelligence gathering policies with a previously unnoticed "Signing Statement" attached to a postal reform bill which claims federal officials can open U.S. mail without a warrant.

The law as passed by the House and Senate requires government agents to get warrants to open first-class letters.

But the presidential statement, signed on December 20, added that sealed mail can be searched in "exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence."

The White House said the president is not claiming any new authority and that the statement does not change the scope of current law.

Spokeswoman Emily Lawrimore told CBS News White House correspondent Mark Knoller, "The signing statement merely recognizes a legal proposition that is totally uncontroversial: that in certain circumstances – such as with the proverbial 'ticking bomb' – the Constitution does not require warrants for reasonable searches."

But CBS News legal analyst Andrew Cohen questioned why the president felt it necessary to attach the language to the bill if nothing has changed.

"I don't think the White House would have included this language into a signing statement unless the feds were either already searching mail without a warrant or planning to do so," Cohen said. "And if the legal right to do so were as clear as the White House now says it's hard to believe that there was a need to remind everyone of the fact in a bill about the postal service."

You have to love this reasoning: according to Cohen these searches are not legal. So an overly secretive White House with contempt for the law is... deliberately calling attention to the fact that it is performing them? That makes sense.

Apparently the Executive branch is damned if it does assert its powers in an open and aboveboard manner and damned if it doesn't. Mr. Cohen's argument essentially amounts to this: There must be something wrong with what you're doing -- otherwise, why would you publicly assert your right to do it?

Is this not the way we want the Executive branch to operate? When did transparency suddenly become grounds for suspicion rather than a desireable good faith attribute of responsible government? But perhaps the ACLU would prefer the White House behave in a secretive manner:

"The signing statement raises serious questions whether he is authorizing opening of mail contrary to the Constitution and to laws enacted by Congress," said Ann Beeson, an attorney with the American Civil Liberties Union. "What is the purpose of the signing statement if it isn't that?"

She said the group is planning to file request for information on how this exception will be used and also asking whether it has already been used to open mail.

Postal Vice President Tom Day said Thursday: "As has been the long-standing practice, first class mail is protected from unreasonable search and seizure when in postal custody. Nothing in the Postal Accountability and Enhancement Act changes this protection. The president is not exerting any new authority."

Question for Ms. Beeson: would you even be filing this request for information if the President hadn't made his intentions known by signing statement?

The presumption that warrantless searches are inherently unconstitutional is both an ignorant and uninformed one; there are many, many instances where warrantless searches are perfectly legal. Andrew McCarthy elaborates:

As usual, this turns out to be a tempest in a teapot — notwithstanding the tut-tutting from Senators Susan Collins, Chuck Schumer and Hillary Clinton, as well as NYC Mayor Michael Bloomberg.

To reiterate, the Fourth Amendment prohibits unreasonable searches, not warrantless searches. Consequently, the courts have recognized for years that exigent circumstances justify agents in conducting a search without a judicial warrant.

Furthermore, the president has inherent authority under Article II of the constitution to conduct warrantless searches for national security purposes — at least when the nation is threatened by a foreign power. Thus, for example, did Clinton administration Deputy Attorney General Jamie Gorelick quite correctly insist, in 1994 testimony before Congress, that the president maintained the power to conduct warrantless national security searches even though Congress was then expanding FISA (the Foreign Intelligence Surveillance Act which governs national security wiretaps) to cover physical searches.

The Constitution protects us from unreasonable search and seizure - it most emphatically does not require a warrant for all searches: a fact some critics would do well to keep in mind.

Posted by Cassandra at 11:32 AM | Comments (41) | TrackBack

December 28, 2006

Ooh. Another Victory for "Art"

Here's an interesting defense:

In light of the U.S. Supreme Court's 2002 decision in Ashcroft v. The Free Speech Coalition, are provisions of Ohio's statutes banning possession and transmission of child pornography unconstitutionally vague or overbroad by failing to require the state to prove (1) that pornographic computer images depict real children rather than computer–generated virtual images, and (2) that a defendant knew pictures in his possession depicted real children rather than computer-generated virtual images?

BACKGROUND: After Roger Tooley of Portage County was implicated in a hacking incident in which he obtained confidential student information from the Kent State University computer system, police obtained a warrant to seize and search the hard drive of Tooley's computer. During that search, they discovered hundreds of files containing pornographic images, including some that appeared to depict children in the nude and/or engaged in sexual activity. Tooley was charged with 16 counts of illegal use of a minor in nudity-oriented material or performance, and nine counts of pandering sexually oriented material involving a minor.

At trial, the state produced an expert witness who identified by name and date of birth specific minors pictured in three of the images on Tooley's computer from a national database of child victim information. Tooley introduced expert testimony demonstrating that new technologies have made it possible to “morph” and merge digital images of actual persons and computer-created virtual images so effectively that it is virtually impossible for a viewer of such images to determine whether they are viewing actual persons, or computer-generated virtual images, or some combination of the two.

At the close of the state's case, Tooley moved for dismissal of all charges on the basis that the Ohio statutes under which he was charged were unconstitutional under the U.S. Supreme Court's 2002 Ashcroft decision. In Ashcroft, the Court struck down federal statutes that criminalized possession of virtual computer images that appeared or claimed to depict pornographic images of children even when it was established that no real children were actually depicted in those images.

The trial court dismissed several counts of the indictment and subsequently acquitted Tooley on others, but found him guilty on two counts of illegal use of a minor in nudity-oriented material and three counts of pandering sexually oriented material involving a minor. All of the counts on which convictions were returned involved the three images that the state's expert had identified as portraying specific real children.

Tooley appealed, and the 11th District Court of Appeals vacated his convictions and sentence. The appellate panel held that the Ohio child pornography statutes under which Tooley was charged were unconstitutionally vague and overbroad in light of Ashcroft because the Ohio laws did not require actual proof that pornographic pictures depicted real children (as opposed to virtual images), but rather allowed trial courts to infer that images were depictions of real children based on promotional claims, labels or titles representing those images to be depictions of actual children. The 11th District certified that its holding in this case was in conflict with rulings by several other Ohio court of appeals districts that had affirmed the constitutionality of the same child pornography statutes. The Supreme Court accepted the case in order to resolve the conflict among appellate districts.

Appearing for the state, the Portage County prosecutor's office argues that the 11th District's ruling in this case is contrary to holdings in every other appellate district that has reviewed the Ohio pornography statutes in the aftermath of the Ashcroft decision. They assert that Ashcroft did not endorse the claim asserted by Tooley that technology has made it impossible for a judge or jury to distinguish between actual and virtual child pornography simply by viewing it. They argue that the provision of Ohio law allowing trial courts to “infer” actual child pornography based on labels or claims of such content is not the same as the federal statute struck down by Ashcroft, which criminalized any images which “appeared to depict” minors in the nude or engaging in sexual conduct.

The state asserts that if the 11th District's reading of the law is affirmed, it will become virtually impossible for prosecutors to enforce state child pornography laws because defendants will be able to claim that they believed pornographic materials in their possession were virtual rather than real and lacked the expertise to distinguish between actual images of children and manufactured or “morphed” images that were created without victimizing or exploiting real children.

Pardon me. I think I'm going to be violently ill.

But then I'm sure there's a virtual market for that on the Internet too, somewhere. Sickos.

Posted by Cassandra at 08:25 AM | Comments (22) | TrackBack

NSA Rulings Upheld? Hmmm....

Via TigerHawk, we observe with no little snark that to date at least 17 "unusually consistent rulings" by federal judges have quashed efforts to gain access to NSA wiretapping records. The goal: to rule government evidence against criminal suspects inadmissible because it was obtained without a warrant, thus preventing or overturning conviction.

In at least 17 criminal cases, federal district judges nominated to the federal bench by presidents Reagan, George H.W. Bush, Clinton, and George W. Bush have ruled against requests to force the government to tell defendants, most accused of terrorism-related crimes, whether the NSA eavesdropped on them without a court warrant.

Defense attorneys claim they are entitled to such information and that evidence obtained from warrantless wiretaps is tainted and inadmissible at trial. In many, but not all instances, the motions were filed after a conviction.

The interesting question is what all this means? Do such requests constitute a formal challenge to the constitutionality of the NSA program? Looking at the facts in these cases provides an interesting glimpse into the judges' so-far unanimous reasoning:

Individually, the judges' orders, often very brief and rarely providing explanations, indicate little. Taken together, however, they signal that the judges are unwilling to permit defense attorneys to use prosecutions to force disclosures about the [classified] program.

Defense attorneys acknowledge ...these motions for disclosure are made routinely, even without any evidence to suggest that their clients were targeted by the NSA program.

Judges must carefully weigh the cost of disclosure against the legal consequences to a possibly innocent client. But exactly what are those consequences?

The legality of the NSA program is being litigated in several civil lawsuits across the country. In one case, a district judge in Detroit, Anna Diggs Taylor, ruled in August that the program was unconstitutional, a decision that the government has appealed. Legal observers dispute whether even a ruling by the Supreme Court that the program is unconstitutional would lead to the overturning of criminal convictions in which the program played a role in securing evidence or targeting the defendants.

... even in cases in which the NSA program is believed to have played a role, it is not clear that judges would rule any differently. Officials in the Bush administration have credited the NSA program with helping uncover the terrorist plot of an Ohio truck driver, Iyman Faris, to topple the Brooklyn Bridge, according to a New York Times report. In October a federal judge in Alexandria, Va., Leonie Brinkema, declined Faris's request for government documents about the NSA program's role in the case. Last month, Judge Brinkema upheld Faris's guilty plea from 2003, ruling that Faris did not have standing to bring his challenge even if "electronic surveillance" had first led the government to him.

In only one case has a federal appeals court looked at the relationship of the NSA program to criminal prosecutions. The 4th Circuit Court of Appeals in Richmond, Va., in April remanded a separate case to Judge Brinkema, questioning whether the government possessed "undisclosed intercepts" that should have been turned over. The case involved a Muslim cleric, Ali al-Timimi, who was found guilty last year of encouraging Muslims to join the Taliban's war efforts.

Timimi's attorney, Jonathan Turley, said he believes that NSA intercepts may contain exculpatory evidence that could have benefited Timimi, rather than incriminating evidence used to target him.

A court filing by the Justice Department in the case against Lynne Stewart, the New York lawyer who was convicted of criminally helping her terrorist client communicate with his followers, listed 17 criminal cases in which judges have denied motions for disclosure about the NSA program. The New York Sun reviewed 14 of them. In those orders, the judges, excluding Judge Brinkema, did not state any reason for denying the defense motions, except to indicate that they had considered the secret briefs of the government. In one written order, a judge implied that his willingness to sentence a defendant without further hearings was on the condition that the government's secret brief said no evidence came from the NSA program.

Interestingly the 4th Circuit, which has been a bulwark for the Bush administration in terrorism cases, is now at risk of falling into the hands of more moderate and liberal judges who may be less inclined to issue rulings favorable to the administration:

A growing list of vacancies on the federal appeals court in Richmond is heightening concern among Republicans that one of the nation's most conservative and influential courts could soon come under moderate or even liberal control, Republicans and legal scholars say.

A number of prominent Republican appointees have left or announced plans to leave the U.S. Court of Appeals for the 4th Circuit, which has played a key role in terrorism cases and has long been known for forceful conservative rulings and judicial personalities.

Republican concerns also are fueled by the pending Democratic takeover of Congress, as several of President Bush's 4th Circuit nominees were already bottled up in the Senate when Republicans ran it. From the GOP's perspective, the situation now will worsen.

"I think everyone is concerned because the 4th Circuit literally hangs in the balance here," said Jay Sekulow, chief counsel for the conservative American Center for Law and Justice, who has advised the White House on judicial nominees. "With the nature of the cases the court has been taking, especially on the terrorism issue, its direction is really critical."

It would be truly ironic if, just as many liberal privacy and civil liberties experts are concluding the NSA wiretapping program was conducted using appropriate safeguards, our court system were to flip in the direction of Anna Diggs Taylor. But then, as Andy McCarthy so trenchantly observed last summer, the public's trust in the judiciary as a watchguard of our collective liberty is deeply misplaced:

Judge Taylor obviously remains every bit the innovator she was when she creatively contorted the rules for impartial assignment of cases to steer that little school admissions matter away from a judge who, she apparently fretted, was not an ideological fellow traveler. (She backed down when the judge complained publicly about her “highly irregular” gambit.)

After all, who knew that lurking in the penumbras, unnoticed lo these two centuries, has been a First Amendment right to communicate privately overseas, in wartime, with enemy operatives plotting to murder Americans?

To arrive at this novel (ahem) discovery, Judge Taylor simply needed to blow past the long-settled law of standing-to-sue, as well as about 150 years of precedent — reaffirmed by the Supreme Court only a year ago — which holds that lawsuits may not go forward if they run an undue risk of impairing the national defense by publicly revealing our intelligence gathering capabilities.

For a moment, though, let’s leave aside standing. And state secrets. And the bizarre construction of free speech principles. And even Judge Taylor’s preposterous assertion that the Fourth Amendment “requires prior warrants for any reasonable search, based on probable cause” (compare, for example, here, for some of the zillion or so types of searches for which judicial probable-cause warrants are not required). What is truly galling here is Judge Taylor’s stern lecture about “separation of powers,” over which President Bush is portrayed as having run roughshod.

In the real system of separated powers devised by the Framers, the courts of the United States had no role — none — in defending this nation from foreign threats. That was to be the job of the president and the Congress, which is to say, the officials actually accountable to the citizens whose lives were at stake.

While Judge Taylor bleats about the need to respect “checks and balances,” the check our system has designed for national-security matters is political, not judicial. It implicates the right of all citizens collectively — the body politic — to self preservation. It is not concerned with such comparative trifles as the insatiable idio-obsessions of “activists” and gadflies — however theatrically petrified they may seem over the possibility that, for example, their “right” to shoot the breeze with Ayman Zawahiri might be “chilled” if the NSA lends its ears … along with an audience that already includes every foreign intelligence service on the planet.

The standing rules that Judge Taylor shunned are there for a reason. It is not a legalism. It is not some abstruse jurisprudential technicality that you’d need an Ivy League law degree to decipher. It is about the right of the American people to govern themselves.

Courts are not there to tell us how to live and tell the other branches how to do their jobs. They are there to redress concrete injuries that directly and uniquely affect individuals. If there is a government policy — such as monitoring al Qaeda’s international communications — that affects all of us more or less the same way, that is not a legal problem. It is a political issue.

Political issues get resolved by political actors. Here, the Framers trusted Americans, not judges. If a president tilts too far in the direction of either civil liberties or national security, the Americans who are consequently imperiled or intimidated have the final check. They can vote him out of office. If the president really shreds the Constitution (as opposed to using his daunting Article II powers to quell enemies and save American lives), citizens can spur congress to impeach him.

Congress, meanwhile, can convene hearings, summon experts, make findings, and enact laws which balance liberty and security. If legislators believe a national security initiative goes too far, they can end it by de-funding it … and face the wrath of their constituents who may well decide that increased safety is worth sacrificing some privacy — hypothetical privacy, by the way, as most Americans aren’t all that interested in chatting privately with Zawahiri.

Democratic self-determination and political accountability — that is the Framers’ gift to us.

Now, here’s what we’ve traded it in for: In the role of Everyman, meet the American Civil Liberties Union, the Council on American-Islamic Relations, Greenpeace, the National Association of Criminal Defense Lawyers, and other self-styled “public interest” groups which, in reality, have very different ideas from the public about how our government should prosecute a war it is in our nation’s vital interest to win.

And in the role of decision maker, meet Judge Taylor — worse than her sponsor, President Carter, because we are powerless to vote her out of office when she enters the political arena and renders us defenseless.

The president of the United States needing Judge Anna Diggs Taylor’s permission to penetrate the communications of a hostile alien terrorist network scheming to slaughter Americans. That was not exactly what Madison had in mind.

What a difference a year makes. It is interesting that despite all the hoopla and hysteria beginning last December in the media, despite multiple illegal releases of classified national security documents by the NY Times and Washington Post justified (they said) by excessive Executive Branch secrecy and the need to force Congress to act, Congress has concluded it needs to do exactly.... nothing. The Democrats, after issuing dire threats to impeach the President and retake Congress so they could finally bring accountability and oversight back to Washington have decided in their infinite wisdom that they, too will do exactly .... nothing.

Privacy experts and civil liberties groups have examined the program and decided that they need to do... nothing:

Former Clinton liberals and privacy experts have been briefed on the program and have pronounced themselves "impressed by the government's concern for our liberties":

"If the American public, especially civil libertarians like myself, could be more informed about how careful the government is to protect our privacy while still protecting us from attacks, we'd be more reassured," said Lanny Davis , a former Clinton White House lawyer who is the board's lone liberal Democrat.

Alan Raul, a former Reagan White House lawyer and the board's vice chairman, said he also was impressed.

"We found there was a great appreciation inside government, both at the political and career levels, for protections on privacy and civil liberties," said Raul, author of a book of civil liberties. "In fact, I think the public may have an underappreciation for the degree of seriousness the government is giving these protections."

And the federal courts have looked at the issue again and again and again and have done....

Nothing.

But then, as I observed last year, this has always been a tempest in a teapot and all the cries of Help! I'm being violated! are beginning to look very shabby indeed in light of the alarmists' actual willingness to do anything about the supposed problem. Are we really living in a fascist police state, where all dissent is ruthlessly repressed and naysayers are immediately carted off to Gitmo to have their inner Korans joyously flushed by the jackbooted minions of the evil BushHitler whilst the harsh strains of Christina Aguilera reverberate in the moonlight?

Just ask Keith Olbermann. He'll tell you all about it, every night on MSNBC at the top of his lungs. You can't make this stuff up.

But he'll keep on trying.

Posted by Cassandra at 07:12 AM | Comments (1) | TrackBack

December 09, 2006

Constitutional Interpretation: Must Watch

90 minute video of Supreme Court Justices Scalia vs. Breyer, in A Conversation on the Constitution: Perspectives from Active Liberty and A Matter of Interpretation, courtesy of the Federalist Society.

Yes, I'm weird. Get over it.

An alternative to BarneyCam, for those of you who haven't decided I'm incurably insane.

Posted by Cassandra at 12:21 PM | Comments (6) | TrackBack

December 03, 2006

Coffee Snorters: The Other Shoe Drops Edition

I don't know about any of you, but I don't want to live in an America where reporters don't have the freedom to compromise major counterterrorism investigations. Once we've lost the freedom to tamper with federal investigations of terrorist funding, we've lost everything... I blame John Ashcr... er, Roberto Gonz... I mean John Yoo! Yes, I blame John Yoo!

Al Maviva, Volokh Conspiracy commenter

Long-suffering Long time readers of VC will no doubt recall (since the HVES bring it up nearly every chance we get) that NY Times reporter Judy Miller, when not defying federal grand juries or idly funnelling quarters into the Snickers machine at the Alexandria Detention center, has a history of tipping off terrorism suspects:

On Dec. 3, 2001, Times reporter Judith Miller telephoned officials with the Holy Land Foundation for Relief and Development, a Texas-based charity accused of being a front for Palestinian terrorists, and asked for a comment about what she said was the government's probable crackdown on the group.

U.S. officials said this conversation and Miller's article on the subject in the Times on Dec. 4 increased the likelihood that the foundation destroyed or hid records before a hastily organized raid by agents that day.

Well, that's one federal raid blown by a Times reporter.

On Dec. 13, Times reporter Philip Shenon called the Illinois-based Global Relief Foundation and asked for comment about the government's intention to freeze its assets because of allegations it had ties to terrorists. "FBI personnel learned that some of the targets [of the investigation] may be destroying documents," and agents "hastily assembled" a raid on the charity on Dec. 14, according to a report by the commission that investigated the Sept. 11, 2001, attacks.

What is the Unitary Editor's view of his wayward reporters' highjinks? If you were, by any chance, feeling the first stirring of concern; perhaps even wondering who watches the watchdogs of our public servants to make sure they aren't abusing their power or violating the law, well, you can just put those silly thoughts right out of your head. It seems that according to the flexible urban viewpoint of the New York Times, the Fourth branch of government is above the law!

That's right folks! No bothersome checks and balances needed here. And if there isn't a federal shield law extant to protect the sacred right of reporters to alert terrorism suspects in time to destroy incriminating documents before law enforcement can seize them, well... they'll just assert the privilege anyway.

Only this time it didn't work:

Here it is in two sentences: The FBI was prevented from freezing terrorists' assets and catching terrorists because somebody leaked what they were about to do to the New York Times, and the NYT proceeded to warn the terrorists themselves! Now the NYT says that because it was just promoting the "public's right to know" and the First Amendment, its phone company should be immune from having to give evidence to permit a grand jury to decide whether any crimes were committed as part of this debacle.

And here it is in a mere ten words: Someone committed treason, and the NYT is okay with that.
*******

The Second Circuit, fortunately, wasn't okay with that. Even though the Supreme Court has never recognized one, the Second Circuit played along with the notion that there might be some sort of federal common-law privilege for reporters to conceal their "confidential sources." But like every other court (state or federal) to ever consider the question, it pointed out that the privilege is not absolute, but only "qualified" — meaning that sometimes it can be overcome. And it was here:

There is therefore a clear showing of a compelling governmental interest in the investigation, a clear showing of relevant and unique information in the reporters' knowledge, and a clear showing of need. No grand jury can make an informed decision to pursue the investigation further, much less to indict or not indict, without the reporters' evidence. It is therefore not privileged.

That's going to leave a mark.

Interestingly, the NYT's brazen attempt to tie up the case until the statue of limitations had expired (Dec. 3rd, 2006) was foiled by none other than Ruth Bader Ginsburg, who happened to be the Circuit Justice; a member of the U.S. Supreme Court possessing emergency supervisory authority over the Second Circuit. As such, she could justifiably have issued a ruling on her own.

She did no such thing. Beldar comments:

Whatever her personal inclinations may have been, in this case she obviously recognized that it just wouldn't be appropriate for her to make this ruling alone — even though she had the nominal power to do so. Instead, as yesterday's order recites, she referred the NYT's request to stay the Second Circuit's mandate to the full Supreme Court. And the full Supreme Court refused that request, without any dissents. So the Second Circuit's mandate will promptly issue (or may already have, as of yesterday), and Mr. Fitzgerald's FBI agents will be poring over those phone records toot sweet.

The case isn't over. The NYT will still ask the Supreme Court to review the merits of the Second Circuit's decision through a petition for a writ of certiorari. The Supreme Court might agree to hear the case — although that would surprise me very much. And yesterday's ruling doesn't necessarily mean that neither Justice Ginsburg nor any other member of the Supreme Court would vote to overturn the Second Circuit's ruling if cert were granted and the Supreme Court thereby agreed to review the Second Circuit's decision on its merits. In fact, if I had to guess, I'd guess that she and Justice Stevens almost certainly would. That there were no dissents yesterday — not even from Justices Ginsburg or Stevens — may only mean that there aren't five Justices who are dad-gummed eager to use this particular case to create a new federal common-law privilege for reporters to shield their confidential sources. But maybe four Justices can be persuaded to vote to grant certiorari, and maybe five can be persuaded to create a privilege that Congress has so far refused to. Or so Mr. Abrams and the NYT will hope.

Abrams may try to spin this decision any way he likes, but the fact of the matter is that every time one of these cases goes up on appeal, it goes against the press. Even the Washington Post is compelled to admit this:


The Supreme Court's action continues a losing streak for media organizations that are being challenged to reveal their sources and is the second involving Fitzgerald and Miller.

Acting as a Justice Department special counsel, Fitzgerald sought testimony from Miller and other reporters in his investigation into whether Bush administration officials revealed the identity of CIA operative Valerie Plame. Miller spent 85 days in jail before testifying to a grand jury, which indicted Vice President Cheney's then-chief of staff, I. Lewis "Scooter" Libby.

The Supreme Court in June 2005 declined to get involved in that case.

Both nuclear scientist Wen Ho Lee and former Army scientist Steven J. Hatfill, in civil suits, have convinced courts that journalists must answer questions about confidential sources who they say have damaged their reputation.

Lawyer Floyd Abrams, who represents the Times, said there is no doubt that "a number of recent decisions have gone against the press, particularly in areas where the government is using grand juries and had a national security claim of one sort or another."

But he contends there is a "significant split" among lower courts and an "enormous amount of confusion in the law" about whether journalists have a First Amendment privilege, which will have to be addressed by the high court or Congress.

This "confusion in the law" is precisely what the higher courts - whose decisions are binding on the "lower courts" Abrams seems to be counting on - are clearing up, and the direction of their reasoning, at least so far, seems clear and unequivocal.

If we were the Times, we'd be worried.

And if we were Thomas Ricks, we'd stop bragging about breaking the law in our news articles. Because if the spate of recent decisions is any indication of which way the judicial wind is blowing, there is very little hope that he will be allowed to shield sources which continue to illegally leak classified memoes during wartime.

Posted by Cassandra at 10:53 AM | Comments (13) | TrackBack

November 18, 2006

No, I Did *Not* Do It....

Dear God in heaven, Our Lady of Perpetual Death Threats is baaaaaack!!!!

A discussion of recent threats to judges’ safety, at a bar association conference in suburban Dallas last week, became startlingly specific when Sandra Day O’Connor, the retired Supreme Court justice, recounted that each justice had received in the mail “a wonderful package of home-baked cookies” that contained “enough poison to kill the entire membership of the court.”

Gather near my children, and listen to the chilling details!


Although the episode was not publicly disclosed when it occurred in April 2005, it had a public, although little-noticed, denouement last month when the sender of the poisoned cookies was sentenced in federal court here to 15 years in prison.

The sender, Barbara Joan March of Bridgeport, Conn., pleaded guilty to 14 counts of “mailing injurious articles.” The 14 recipients included the nine justices; the chiefs of staff of the Army, Navy, and Air Force; and the director and deputy director of the Federal Bureau of Investigation. The packages, containing either candy or baked goods, were laced with rat poison.

Luckily for the star-crossed former justice (whose job is apparently MUCH more dangerous than we ever guessed!) the would-be killer was the helpful sort:

The danger posed by the packages was immediately apparent. Each contained a typewritten letter stating either, “I am going to kill you,” or, “We are going to kill you,” and adding, “This is poisoned.”

The letters carried various return addresses of people who had earlier connections with Ms. March, including seven who attended college with her.

Alert readers may recall that Ms. O'Connor thrilled VC readers earlier this year with the startling details of her brush with death in an Internet chat room.

This country is going to hell in a handbasket.

Posted by Cassandra at 08:25 AM | Comments (3) | TrackBack

August 16, 2006

DimWittery Alert: Unclear On The Concept

"Better to remain silent and be thought a fool than to speak out and remove all doubt."
- Abraham Lincoln

slave.gif

It is a sad day for the American education system when a literate adult of voting age is not only blissfully unaware that the process for amending the United States Constitution is written right into Article V of that document, but feels the need to trumpet his ignorance before all the world. Unless the half vast editorial staff are missing something incredibly basic, according to Article V the process for amending the Constitution is part of the text of that document, making it something originalists would, by nature, be inclined to interpret strictly:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Would not, therefore, wiping all the Amendments from the Constitution violate everything originalists stand for?

We would say "Stop the Hate", but "Stop the Stupidity" seems more appropriate in this case. And we suspect Justice Thomas would have little difficulty defending himself against the kind of cretin who shows up at an intellectual knife fight armed with naught but racist drool.

Pathetic.

Via Betsy Newmark.

Posted by Cassandra at 06:53 AM | Comments (17)

August 11, 2006

The Worm Turns

Bill Keller, call your attorney.

Things may not be looking quite so rosy for Herr Keller and his Unitary Editor theory. Alert readers may recall in July the Blog Princess argued the press was wrongly citing the Pentagon Papers case as proof positive they were immune from prosecution under the Espionage Act:

...the Times persistently and disingenuously portrays the Pentagon Papers case as "proof" the Espionage Act cannot be used against journalists. But many, if not a majority, of the justices in that case opined that they would not entertain injunctive relief (i.e., the Act did not allow government to stop prior publication, but they may well have supported prosecution had the Times gone ahead and published). This is yet another inconvenient truth Bill Keller et al think the reading public ought to be shielded from, his much-ballyhoo'd ethic of complete disclosure notwithstanding.

That argument was neatly eviscerated yesterday by U.S. District Judge T.S. Ellis III:

U.S. District Judge T.S. Ellis III rejected defense efforts to dismiss the indictments against Steven J. Rosen and Keith Weissman, former employees of the American Israel Public Affairs Committee, or AIPAC. They are charged in what the government calls a conspiracy to obtain classified information and pass it to members of the media and the Israeli government.

Ellis acknowledged that the case "implicates the core values of the 1st Amendment" and that lobbyists and others in Washington pass along information every day that is "indispensable to the healthy functioning of a representative government.'' But he said Rosen and Weissman -- and others outside the government -- can be prosecuted if the government feels they disclosed information harmful to national security.

The decision alarmed First Amendment advocates who were already concerned about the unprecedented nature of the case. The lobbyists are the first nongovernment civilians charged under the 1917 espionage statute with verbally receiving and transmitting national defense information.

"This decision is breathtaking. It is a bold new interpretation of the Espionage Act that expands its reach dramatically,'' said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists.

As one basis for his decision, Ellis cited the landmark 1971 Pentagon Papers case, in which the U.S. Supreme Court allowed the New York Times, The Washington Post and others to publish a secret study of U.S. involvement in Vietnam. If the Nixon Administration had sought to prosecute the newspapers under the Espionage Act instead of blocking publication, Ellis said, "the result may have been different.''

Legal and privacy experts said Ellis may have opened the door to criminal prosecutions of reporters or newspapers for publishing classified information. The possibility of such prosecutions has swirled around Washington since the New York Times broke a story last December about the National Security Agency's surveillance of terrorist-related calls between the United States and abroad.

Kate Martin, director for the Center for National Security Studies in Washington, said the ruling "gives the Justice Department the green light to prosecute reporters and investigate them as potential criminal actors and not simply as witnesses.''

The language of Ellis' ruling, via Jonathan Adler, makes mincemeat of the most common arguments used by the press to defend their publication of classified information, namely:

1. All the press need do is assert some vague "compelling public interest" or "need to know" argument and they can unilaterally and without oversight or authority bypass the House Permanent Select Committee on Intelligence and release classified information directly to the public.

Wow. Can I do that too? Can anyone? How about Joe SixPack down the street? Or is a press pass required before one can make major national security decisions on behalf of the American public?

The arrogance implied in this assumption is, quite literally, breathtaking. I made this case before in my Unitary Editor post. It seems passing strange that Keller's entire justification for leaking classified information is that, in order to block what he views as an unsanctioned power grab by the Executive branch, an unelected and unappointed editor of a major newspaper has arrogated to himself the role of Decider. Question: who gets to check Bill Keller? Answer: because of his arbitrary and creative interpretation of the First Amendment, no one.

2. The press are entitled to ignore the Espionage Act because it is unconstitutional, outdated, has never been enforced, or does not apply to journalists. So much for the rule of law, or for the argument that we must reign in the Executive Branch because it isn't listening to Congress... by allowing the press to ignore laws passed by Congress.

3. Ensuring a "national debate, in and of itself, is a good enough reason for releasing classified information. Yet another stunner. We don't live in a pure democracy. We live in a Republic.

Not everything which occurs in our government is open to public debate. For instance, when my husband goes up for promotion, those records aren't open to the public because his social security number and private information are not part of the public record. If everything the government did had to be fully transparent, government would quickly grind to a halt. I suggest that if Mr. Keller is such an admirer of full transparency, let's start with the Times: let him reveal all the names of those anonymous sources the Times so loves to quote. Because the public has a right to know where the Times is getting all of this information from so we can have a public debate about it. Not a terribly compelling argument, is it? Sometimes there are good reasons for keeping things secret.

At any rate, Judge Ellis' opinion ought to sound alarm bells in more than a few editors' offices across this great nation:

both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.

...the government must . . . prove that the person alleged to have violated these provisions knew the nature of the information, knew that the person with whom they were communicating was not entitled to the information, and knew that such communication was illegal, but proceeded nonetheless. . . . [And] with respect only to intangible information, the government must prove that the defendant had a reason to believe that the disclosure of the information could harm the United States or aid a foreign nation, which the Supreme Court has interpreted as a requirement of bad faith.

...The conclusion that the [Ed. Note: Espionage Act] statute is constitutionally permissible does not reflect a judgment about whether Congress could strike a more appropriate balance between these competing interests, or whether a more carefully drawn statute could better serve both the national security and the value of public debate. . . . the time is ripe for Congress to engage in a thorough review and revision of these provisions to ensure that they reflect both these changes, and contemporary views about the appropriate balance between our nation’s security and our citizens’ ability to engage in public debate about the United States’ conduct in the society of nations.

Sometimes we get what we ask for, and it turns out not to be quite what we hoped. I think Bill Keller has gotten his public debate on national security, and I do believe he's about to find out that the American people don't share his flexible urban sensibilities.

Update: Patterico asks whether the scienter requirement might be problematic for the Justice Department. According to what we saw earlier, I'm not at all sure it would be:

According to Treasury and Justice Department officials familiar with the briefings their senior leadership undertook with editors and reporters from the New York Times and Los Angeles Times, the media outlets were told that their reports on the SWIFT financial tracking system presented risks for three ongoing terrorism financing investigations. Despite this information, both papers chose to move forward with their stories.

These were off the record meetings set up to dissuade them from reporting on SWIFT, and we thought the pressing nature of the investigations might sway them, but they didn’t,” says a Treasury official.

In fact, according to a Justice Department official, one of the reporters involved with the story was caught attempting to gain more details about one of the investigations through different sources. “We believe it was to include it in their story,” says the official.

Does this bring anything to mind? Perhaps Judy Miller's history of tipping off targets of terrorism investigations? Or perhaps the fact that, in the wake of the Times' revelation of classified programs, the government was forced to adopt a "pre-emptive" strategy of busting terror suspects earlier in the investigation process? Or perhaps this statement, from Stuart Levey, who pleaded with Bill Keller not to publish details of the SWIFT program:

I cannot remember a day when that briefing did not include at least one terrorism lead from this program. Despite attempts at secrecy, terrorist facilitators have continued to use the international banking system to send money to one another, even after September 11th. This disclosure compromised one of our most valuable programs and will only make our efforts to track terrorist financing --and to prevent terrorist attacks-- harder. Tracking terrorist money trails is difficult enough without having our sources and methods reported on the front page newspapers.

No, somehow I do not think it will be difficult to show that the Times (or any reasonable actor, for that matter) would have known full well what it was doing.

Posted by Cassandra at 07:39 AM | Comments (91)

August 09, 2006

Thankfully, The Octopus Was Unhurt...

As long suffering time readers of VC are no doubt aware, the HVES strives with the utmost imaginable fervor to keep the readership abreast of Items of Interest such as Gay Penguin Alerts and major cultural events like New York City's Underwear Day. It is through deeply sensitive offerings like this that we hope to gain your trust. In time, perhaps you will come to think of this humble little site as your Cultural Gateway to the Multiverse.

Naturellment therefore, this This Red-Hot Penguin Related Item set off alarm bells in our pretty little head:

Motorists dodged penguins on an East Texas highway today after a truck carrying the flightless birds overturned.

The rig was hauling penguins, exotic fish and one octopus to the Galveston Zoo when the accident happened on U.S. Highway 59, eight miles north of Marshall.

The Department of Public Safety says four penguins and some of the fish died. Another penguin suffered a broken wing.

lohan.jpg We need hardly point out depradations of the Bush administration's disastrous environmental policies on the biosphere. After just five years, the Texas penguin population has been decimated. Nor need we stress the glaringly obvious tie-in with this news story:

Everyone knows Al Gore stars in the global warming documentary "An Inconvenient Truth." But who created "Al Gore's Penguin Army," a two-minute video now playing on YouTube.com?

In the video, Mr. Gore appears as a sinister figure who brainwashes penguins and bores movie audiences by blaming the Mideast crisis and starlet Lindsay Lohan's shrinking waist size on global warming. Like other videos on the popular YouTube site, it has a home-made, humorous quality. The video's maker is listed as "Toutsmith," a 29-year-old who identifies himself as being from Beverly Hills in an Internet profile.

In an email exchange with The Wall Street Journal, Toutsmith didn't answer when asked who he was or why he made the video, which has just over 59,000 views on YouTube. However, computer routing information contained in an email sent from Toutsmith's Yahoo account indicate it didn't come from an amateur working out of his basement.

Instead, the email originated from a computer registered to DCI Group, a Washington, D.C., public relations and lobbying firm whose clients include oil company Exxon Mobil Corp.

But isn't this just more of the same for an administration that has had its sights on Hollywood from the outset? I think we all remember this vicious attack on the gay community, no doubt sponsored by more Republican proxies hoping to gain traction for their so-called "family values" agenda. Thankfully, informed Americans realize the First Amendment requires all speech to be officially registered with the federal government so it can be monitored and traced to its point of origin by the press - thus are our precious freedoms ensured.

The last thing we want is for paid political hacks to waste their money on amateurish videos ostensibly created by 29 year-olds in their basements.

These people must be protected from themselves.

More importantly, potential viewers of such videos aren't nearly sophisticated enough to evaluate content for themselves unless they know who paid for the video:

Mr. Wertheimer thinks videos like the Gore spoof, whose sponsorhip is vague, can be disingenuous. "They're coming in under false pretenses -- under the guise of being a clever video you might be interested in," he says.

How can anyone know whether they might be interested in something simply by listening to it? Whereas if you knew ahead of time who paid for the video, you could make the decision ahead of time not even to bother watching it. Or more importantly, you might watch it and think to yourself, "What a bunch of asshats - my teenaged son could have done a better job."

Though we suppose you could come to that conclusion without knowing who paid for the video at all, as we did last week when we watched about 1/3 of it before closing the little browser window in disgust. Boy howdy - that was ninety seconds of our life that we will never get back.

If only there had been some Federal Legislation protecting us against that massive waste of time.

All of which just goes to show you that what we need most in this country is more laws regulating speech. Only then will we be truly free to exercise our First Amendment rights without unnecessary and intrusive government interference.


Posted by Cassandra at 05:16 PM | Comments (7)

August 01, 2006

From The Belly Of The Whale

kennedy.jpg Well folks, it's official. Once more the august senior Senator from Massachusetts hath opened wide his stately blowhole and from it issued forth such glowing pearls of wisdom as would well adorn a dusky Ethiop's ear. In truth, his constituents are well served.

We often wonder, do they tag-team each other (Senators Kerry and Kennedy, we mean)? For it often seems each new day brings a feat of verbal prestidigitation to amaze and confuse a spellbound nation. Why only last week we were stunned to learn that Senator Kerry could, single-handedly, have prevented Hezbollah from attacking Israel. But if we thought that was a shocker, this week's Bay State revelation is guaranteed to knock America's socks off.

Not only were the SCOTUS confirmation hearings divisive, boring, and an utter waste of time, but radically out of the mainstream nominees John Roberts and Sam Alito were lying liars who lie!

Now that the votes are in from their first term, we can see plainly the agenda that Roberts and Alito sought to conceal from the committee. Our new justices consistently voted to erode civil liberties, decrease the rights of minorities and limit environmental protections. At the same time, they voted to expand the power of the president, reduce restrictions on abusive police tactics and approve federal intrusion into issues traditionally governed by state law.

The confirmation process became broken because the Bush administration learned the wrong lesson from the failed Bork nomination and decided it could still nominate extremists as long as their views were hidden. To that end, it insisted that the Senate confine its inquiry largely to its nominees' personal qualities.

The good citizens of Massachussetts must be proud to know their elected Senators - both from the Party of Disunity - speak with One Voice on the important issue of respecting the rules: both supported the practice before they were against it. Back when Thurgood Marshall ran the same gauntlet, Senator Kennedy thought it clearly inappropriate for a nominee to comment on cases that might come before him:

"We have to respect that any nominee to the Supreme Court would have to defer any comments on any matters, which are either before the court or very likely to be before the court," Kennedy said during a 1967 press conference. "This has been a procedure which has been followed in the past and is one which I think is based upon sound legal precedent."

Precedent, VC readers no doubt remember, is a word which came to be imbued with almost Otherworldy significance during the Roberts and Alito hearings. There was precedent, super-precedent, and even super-duper, cruelty-free precedent! (now with 20% more in every package). Democrat Senators were seen to perform the Thousand Prostrations at the mere mention of the exalted term, while conservatives in seedy watering holes all over this great nation killed off untold numbers of little grey cells when the play-at-home CSPAN Precedent Red State Drinking Game caught on like wild fire.

Now, of course, Ted Kennedy (whom VC readers no doubt recall solidly supported the Roberts nomination from Day One) has buyers' remorse. How could he have been so naive about these dangerously out of the mainstream candidates? All he wanted was to bury the hatchet.

Jeffrey Lord fondly remembers the stately Senator's stalwart efforts to mend bitter partisan divisions:

As documented in my book, it was you who delayed Judge Bork's hearing for a record breaking 77 days. Up until this point the average was 14 days. You launched this attack on checks and balances for one reason, which you later admitted to the Boston Globe: to galvanize dozens of liberal special groups so they could induce political mass hysteria designed to slander a heretofore universally well-respected man of considerable legal intellect. You are the one responsible for the first TV attack ad on a sitting federal judge and Supreme Court nominee. You are the one who created the circus-like atmosphere behind Court nominations, allowing an atmosphere where confidential FBI reports with unsubstantiated charges are leaked to favored liberal reporters. You are the one who created the notion that any nominee who once disagreed with a liberal is "out of the mainstream." You are the one who has allowed these very special interest groups to literally write the questions you and your Democratic colleagues ask or write so ostentatiously to nominees.

Stop here for a moment on this point of questions to nominees. Does it ever strike even a chord of sensibility with you that there's something wrong when one of your Democratic Committee colleagues -- Senator Russell Feingold -- submits 28 written questions to a nominee (Third Circuit nominee Smith), and it is later discovered that of those questions all but seven were supplied by two interest groups, sometimes word-for-word? You yourself submitted five questions through the formal system -- and three of those were traced back to the same interest groups. Suffice to say, you and Senator Feingold were not alone in this corruption of process, either. Literally, the nominee's law clerk had to inquire whether the Judge's answers should be sent to the "Senator" over whose signature the questions were sent or just sent to the head of the interest groups who were really the source of the questions.

The Founders intended SCOTUS to be above politics insofar as possible. This is why Supreme Court justices are appointed, not elected; and why they were given lifetime terms of office. The kind of shameless opinion shopping indulged in by the Senate was not only not desired by the Founders, but an evil they manifestly wished to avoid. Matthew Frank points out several of the inaccuracies in Senator Kennedy's shameful excuse for an Op-Ed, one of which (his misquote of Alito's "accept" vs. "respect" has already, we note, been corrected in today's online version of the article).

I have written before about the role of transparency in government. My personal belief is that, while some transparency is obviously needed the current emphasis on complete openness is not only misguided but actively harmful. There is a very real tradeoff between openness and efficiency, and malicious actors often insist on complete transparency as a means to impede efficient government and undermine their opponents. The real goal should not be complete transparency, but adherence to some objective standard of process that is in itself transparent and representative in nature.

It is obviously impractical for every Tom, Dick, and Harry to have his or her finger intimately involved in the inner workings of government. Nothing would ever get done. And for either the press or public servants to imply that any hint of secrecy or confidentiality amounts to de facto evidence of wrongdoing is simply shameless. Yet this happens every day. In a far better written essay the WaPo managed to bury in the B section of Sunday's paper, Benjamim Wittes argues that though the confirmation process is indeed broken, both sides are distorting the picture:

In conservative mythology, fierce, ideological Supreme Court confirmation battles began with Robert H. Bork's nomination in 1987 -- before which the Senate considered nominees with minimal regard for politics. In liberal lore, the issue is not the confirmation process but the right-wing packing of the courts by Republican presidents; liberal senators must become more aggressive as conservatives threaten a judicial takeover. Many liberals also complain that nominees can easily disguise their real views during their hearings.

Neither story line rings true. Certainly, the confirmation process has changed dramatically over the past half-century. Confirming judges, particularly for lower courts, now takes much longer, and party-line votes on nominees have become common. Presidents cannot even fill routine court vacancies without long fights.

But this evolution began long before the Bork hearings. In truth, there was no Golden Age in which senators evaluated nominees purely on their merits.

I'm not sure things are quite as evenly distributed as Mr. Wittes makes out, but he makes a good point. He wonders what would happen if we put an end to the televised hearings?

It would accomplish only one thing: It would remove that one televised moment when senators name the price of their votes. It would, in other words, remove what Sen. Joseph R. Biden Jr. (D-Del.) incorrectly called during the Alito hearings that "one democratic moment . . . before a lifetime of judicial independence when the people of the United States are entitled to know as much as we can about the person that we're about to entrust with safeguarding our future and the future of our kids."

The democratic moment is not the interrogation of the nominee. It is the point at which the people's representatives debate the nominee's record and cast their votes. Ironically, the hearings only obscure that moment. Many viewers probably remember Alito and Roberts demurring on how they would vote on abortion. But how many remember what a single senator said during the floor debate over either of them?

Why have judicial nominations become so tendentious? I think the answer depends on two concepts which are distinctly different, but became intertwined in people's minds: transparency and accountability.

As Bashman points out, of all the branches of government the judiciary, especially at the appellate level, is perhaps the most transparent branch:

The judicial branch, at least at the appellate level, has the potential to be the most open to public scrutiny of the three branches of the federal government. Not only do appellate judges have a practice of explaining in writing the reasons for their rulings in opinions that are widely available and open to public scrutiny, but increasingly the legal briefs that the parties file on appeal and the audio or written transcript of appellate oral arguments are also freely available online.

With the exception of private communications between appellate court judges as they work to decide pending cases, the rest of the federal appellate court process is increasingly conducted in a manner that is wide open to the public.

By contrast, no one reasonably expects President Bush to conduct his duties as chief executive in a manner that is open to public scrutiny at all times, nor is the president required to give public explanations for his decisions in heading the executive branch of government. And while the U.S. House and Senate do conduct most of their hearings and floor proceedings before the cameras, there is no public record of all the information that may influence legislators in how to cast their votes, nor are legislators obliged to explain why they are voting a certain way on any given matter.

But though the decisions of the federal appellate judiciary are transparent, the judiciary themselves are not terribly accountable to the public they serve, are they? Though in theory they may be removed from the bench for cause, how often does this happen in practice? When was the last time a sitting Supreme Court justice was removed? And unlike legislators or elected officers of the executive branch, they hold their offices for life rather than for an agreed-upon term. This, I suspect, is in large part why we scrutinize their records and their character so carefully during the nomination hearings.

Another reason for the politicization of judicial nomination hearings is the federalization of law. Now that the states have been effectively taken out of the federal equation, the choice of federal judges is an ever more pressing question. Law is, increasingly, a judge-made proposition. Judicial activism matters when judges begin to conjure rights out of thin air without consulting the people, or when the Constitution is effectively amended without resort to popular referendum. Judicial activism matters when the Commerce Clause is recklessly expanded to make every aspect of American life subject to federal oversight, for it is now nine unelected and unaccountable 'public servants' who make potentially far reaching decisions on our behalf. In this context, it is hardly surprising that Senator Kennedy is worried, yet it is his own party that has given away the keys to the candy store. The real irony is that he is taking issue with two nominees who favor judicial restraint.

Senator Kennedy complains that he and other Senators were misled, yet from the very beginning he maintained that if confirmed Justices Roberts and Alito would turn back the clock on over thirty years of liberal jurisprudence. Interestingly enough, under Chief Justice Roberts, 40% of the Court's opinions were unanimous, as opposed to only 30% last year and there were fewer close (5-4) decisions. This is hardly what we should expect from a court voting along rigid ideological lines.

It will be interesting, should a Democratic administration be elected in 2008, to see whether Senator Kennedy is willing to see a liberal nominee subjected to the same grilling. I rather suspect that, should that glorious day ever come, he will magically reaffirm the value of precedent and suddenly recall his long-ago words from 1967. The real irony is that history shows not even the nominees know how they will rule on future cases.

Over time, Supreme Court justices tend to develop their own unique philosophy and that is something not even they can accurately predict during the hearings - even to ward off another majestic fulmanation from the stately blowhole of the senior senator from Massachussets.

Posted by Cassandra at 07:25 AM | Comments (13)

July 24, 2006

[Mumble, Mumble....err...Nevermind]

Arlen Specter (R, CYAssylvania) tries to snatch victory from defeat:

My bill, the result of months of negotiation with the administration, accomplishes this goal by authorizing consideration of the program by the Foreign Intelligence Surveillance Court (FISC), the court created under FISA to consider warrant applications. The FISC has the expertise to handle this question. Its closed proceedings and unblemished record for not leaking would make full consideration both possible and secure. Not only would the bill permit a determination of the program's legality but if it were found unlawful in whole or in part, a framework would exist for modifying the program.

Critics complain that the bill acknowledges the president's inherent Article II power [AHEM!] and does not insist on FISA's being the exclusive procedure for the authorization of wiretapping. They are wrong. The president's constitutional power either exists or does not exist, no matter what any statute may say. [And notice that at no time during the making of this Bill did the Senator's actual fingers leave his hands] If the appellate court precedents cited above are correct, FISA is not the exclusive procedure. If the president's assertion of inherent executive authority meets the Fourth Amendment's "reasonableness" test, it provides an alternative legal basis for surveillance, however FISA may purport to limit presidential power. The bill does not accede to the president's claims of inherent presidential power; that is for the courts either to affirm or reject. It merely acknowledges them, to whatever extent they may exist.

From where the half-vast editorial staff is sitting, that smells like full-on, tail-between-the-legs, Article II-thumping retreat. As in the last time we checked, Congress does not possess the power to override the Constitution and Mr. Specter is perhaps belatedly realizing that SCOTUS is unlikely to conjure one from a few crumbs of Camembert and the leftovers of an unassuming little Fume Blanc.

Posted by Cassandra at 02:28 PM | Comments (3)

July 07, 2006

Clarence Thomas: Jurist For the Common Man

Long-suffering time VC readers know the half-vast editorial staff have long had a huge crush on dishy Supreme Court Justice Clarence Thomas, also known to our Democratic Brethren-in-Christ as Judge Dredd, Leader of the Black Five, Lord of the Nazgul, secret head of the ultra-sinister Constitution in Exile movement:

Membership in this clandestine Brotherhood must have been an awfully well-kept secret, for the arcane and conspiratorial nature of the plot was such that the rank and file apparently went about their business for decades, blissfully unaware they were engaged in a desperate struggle to overthrow the Republic...The fiendish members of this plot took the backward view that judges ought to try reading the actual verbiage penned by our Founding Fathers instead of haring off to nations like, say... France in search of a hand-rolled Gauloise and a Derrida primer (the better to deconstruct the Commerce Clause whilst staving off that annoying sense of anomie that comes from eating one too many confits).

We confess the very sight of Justice Thomas makes us feel warm and fuzzy all over. But oddly, he seems to inspire our Lefty friends to flights of hyperbole.

Thomas. Mein Gott Im Himmel!, who would have guessed it! That pudgy, avuncular-looking little man, suddenly rising up in his black robes like the Lord of the Nazgul. Stooping to pick at the flesh of a Woman's Right To Choose and grabbing welfare dollars from the hands of baby-Daddies all over this great nation! Sure, he may look like a teddy bear, but he's [[[shudder]]] worse than Scalia!

Well, Cohen's not quite that bad, but he comes darned close:

A minority [how dare the peasants contradict the majority! Don't they read the Constitution?] of the U.S. Supreme Court seems not to have been living in America for the past several years. The three -- Antonin Scalia, Clarence Thomas and Samuel Alito -- not only dissented from the majority's opinion that George W. Bush had confused himself with a monarch in establishing military tribunals at Guantanamo Bay, they also accused the other justices of "audacity" [!!!!] in second-guessing the president. Have these eminent jurists never heard of weapons of mass destruction?

If ever there was a president who begged to be second-guessed, it is the one we unaccountably now have. History will record him as the president who responded to a terrorist attack launched from Afghanistan by also going to war against Iraq. It will remember him as the one who insisted this be done so as to rid that foul nation of chemical, biological and atomic weapons, of which, when the smoke had cleared and the country was conquered, none could be found. It does not take audacity to second-guess Bush. It takes prudence.

But we have to be careful here. After all, the reason some in the Bush administration (and elsewhere) were so convinced that Saddam Hussein possessed WMD is that he once possessed WMD. If the weapons could not be found, it was because they were being cleverly and diabolically hidden -- not because they no longer existed. And when United Nations inspectors returned from Iraq with empty hands, they were vilified as fools and dismissed with contempt by such clear thinkers as Dick Cheney. The proof that Hussein had weapons of mass destruction was the very fact that he would not turn them over.

We here at VC just adore the faux populist rhetoric of the Cohen crowd. Just trust the media to protect you from those big, bad 'monarchists' in the Bush administration who keep "fear-mongering" to keep you "little people" in a state of terrified ignorance. Not that folks like Dick Cohen are trying to scare us with their portrayals of a Fourth Reich with a mad King George at the helm, mind you. Because that would be like... fear mongering, wouldn't it?

The irony is almost too delicious to contemplate at times.

There are so many things we of the great unwashed are not supposed to question in a free society. For instance, ignorant Red Staters should not question why UN inspectors were unable to find over 500 chemical munitions when they had free reign of a nation the size of California. Nossir. We are not supposed to wonder why they never got around to searching most of the suspected WMD sites before airily announcing that there were no WMDs. And above all, we are never to ask whether, just perhaps, not having found a thing after not having looked in most of the places it could have been hidden is really the best "proof" that it doesn't exist? That is, we are told, altogether the wrong sort of question, as we would know if we hadn't been brainwashed by the Bush administration. We should keep an open mind on the question of WMDs by accepting what the NY Times has told us unquestioningly.

We are not supposed to ask why informed deciders like Bill Keller (who assure us their default stance is always to inform the public first, even if this damages ongoing terrorism investigations) keep telling us there have never been any WMDs, but don't find it "in the public interest" to inform us when 500 of these munitions are found in Iraq. We are not to ask why he doesn't tell us that their contents, properly used, are just as deadly as the day they were manufactured, as even WWI-era weapons are known to be. Keller's defenders are quick to remind us: this is not news! It's all in the meaning of what "is", is, you see. These are not "real" WMDs, though Saddam was bound by UN sanctions to find and destroy them.

But Mr. Keller's determination to protect us from unpleasantness is not limited to non-news about non-existent WMDs. He also shields the public from non-news about non-existent non-terrorists! Apparently yesterday Mr. Keller did not find it "in the public interest" to inform his readers that the FBI had foiled a terrorist plot to place explosives in the Holland Tunnel. One might think, given the events at the WTC in September of 2001, this news might be of more than casual interest to the residents of New York City.

But one would be wrong. You see, this "is" not news either. It doesn't fit Mr. Keller's narrative. It isn't at all the type of complicated or inconvenient information with which the Times believes the public can be trusted.

Democrats like Harry Reid are quick to dismiss Clarence Thomas. He is, after all, a plain-spoken man. He is not given to the flights of rhetorical eloquence we've come to expect from an Antonin Scalia, but it is just this quality that makes me search out his dissents eagerly. He is a Justice for the Common Man. He returns law to each of us, distilling from a tangled and byzantine mess the essential rightness that the Founders intended: that we should be able to own and understand our Constitution. Cohen's elitist sentiments (that a minority dissent must somehow be intellectually wrong on the merits) is almost funny given that the Democrats have been complaining for ages about being drowned out by a conservative majority. Of course, now that liberals have the ascendancy, Cohen positively revels in majoritarian triumphalism. Got irony?

Mr. Cohen needs to abandon his partisanship and examine Judge Thomas' jurisprudence more closely. I think he would find much to admire. Unless they mean to repudiate all he stood for, the party that finds it convenient to selectively quote Thomas Jefferson, who favored a weak central government with most power reserved to the States, would surely approve of this statement by Judge Thomas:

“One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States.”

And Thomas' opinion in Hamdan is eminently sensible. He does not favor handing a blank check to the President. He merely observes that the Judiciary is neither charged with waging war nor negotiating treaties and foreign policy. Therefore he is alarmed at the Court's arbitrary treatment of the DTA passed by Congress. And he notes that the Court has ignored its own longstanding precedent in choosing not to defer to the President's equally reasonable interpretation of Article 3 of the Geneva Convention.

His reasoning makes perfect sense. The President, he notes, is charged by Article 2 with protecting the People and commanding our armed forces. The judiciary is not. If there are two equally reasonable interpretations of an ambiguous clause, and the Court itself has deferred to the President in the past in similar circumstances, wherein lies the rationale for departing from this practice now? Thomas notes that no one on the Court has experience in waging war or conducting foreign policy. No one on the Court is elected, nor are they responsible to the People if we are attacked. Therefore, the Court should defer to Congress and to the President in these matters and not overreach their Constitutional charter.

But to men like Richard Cohen, because Clarence Thomas doesn't eat brie and read Jacques Derrida whilst capriciously reinterpreting the Geneva Convention to include al Qaeda suspects among the class of persons to whom we should extend Geneva protections, he is "overreaching". Apparently, the Constitution, which intended the opinions of the minority as well as the majority to be respected, has no place for men like Clarence Thomas. They should simply go to the back of the bus.

Sometimes I wonder if this quietly gentle, compelling man will ever get the respect he deserves?

Posted by Cassandra at 03:40 PM | Comments (18)

July 02, 2006

The ADD Nation Concedes The War On Terror

TigerHawk reads Andrew Sullivan so you don't have to:

Is Bush A War Criminal?

The Hamdan decision certainly suggests that, by ignoring the Geneva Conventions even in Guantanamo (let alone in Iraq), a war crime has been committed. And in the military, the command structure insists that superiors are held accountable. I've been saying this for a long time now, and have watched aghast as the Bush administration has essentially dumped responsibility for war-crimes on the grunts at Abu Ghraib. The evidence already available proves [?]that the president himself ordered torture and abuse and the violation of the Geneva Conventions. Now he has been shown to be required to act within the law, and according to the Constitution, his liability for war crimes therefore comes into focus. Money quote from a useful Cato Institute Hamdan summary:

...the majority stresses that the Geneva Conventions 'do extend liability for substantive war crimes to those who "orde[r]' their commission" and "this Court has read the Fourth Hague Convention of 1907 to impose ‘command responsibility' on military commanders for acts of their subordinates." The Court’s emphasis on the liability that attaches to "orders" is significant, because trials in the military commissions are, of course, pursuant to a direct presidential order. Even so, it's difficult to imagine a circumstances in which charges under Section 2241 might actually be prosecuted.

What is it about Hamdan that gets the Hanes UltraSheers of both righty and lefty pundits all in a twist? The half-vast editorial staff had not even had our coffee this morning when we were assaulted by this breathless Dahlia Lithwick column, perhaps best summed up as [cue Valley Girl voice] The Best Supreme Court Decision Everrrrrrrrrr!!!!

Not since Ted Kennedy warned us a John Roberts court would repeal the 13th amendment, ban women from the workplace, and execute twelve year old black girls who bring french fries onto the Metro have we read such overheated analysis. This just confirms our first take on Hamdan:

Practical significance and political/symbolic significance are two different things...By ruling that we must follow Geneva when disposing of detainee cases, the Court has handed the Left and our enemies easily demagogable [is that a word?] talking points that will surely be used against us. What's more, the Court has, with its trademark arrogance, unilaterally and with no legal justification taken it upon itself to adopt an interpretation that violates the spirit, if not the letter, of an existing treaty. This is just one more example of judicial overreaching and the President and Congress would be wise to challenge it.

Whatever happened to judicial restraint? In a long-ago post on the topic, we mused that in medicine doctors are advised, "First, do no harm." This is a maxim the Court would have done well to consider before presuming to expand its charter from interpreting the Constitution to interpreting the provisions of the Geneva Convention. In his stinging dissent, Clarence Thomas noted there were two reasonable interpretations of Article 3 of the Geneva Convention:

The President’s interpretation of Common Article 3 is reasonable and should be sustained. The conflict with al Qaeda is international in character in the sense that it is occurring in various nations around the globe. Thus, it is also “occurring in the territory of” more than “one of the High Contracting Parties.” The Court does not dispute the President’s judgments respecting the nature of our conflict with al Qaeda, nor does it suggest that the President’s interpretation of Common Article 3 is implausible or foreclosed by the text of the treaty. Indeed, the Court concedes that Common Article 3 is principally concerned with “furnish[ing] minimal protection to rebels involved in. . . a civil war,” ante, at 68, precisely the type of conflict the President’s interpretation envisions to be subject to Common Article 3. Instead, the Court, without acknowledging its duty to defer to the President, adopts its own, admittedly plausible, reading of Common Article 3. But where, as here, an ambiguous treaty provision (“not of an international character”) is susceptible of two plausible, and reasonable, interpretations, our precedents require us to defer to the Executive’s interpretation.

Thomas goes on to note:

Those Justices who today disregard the commander-in-chief’s wartime decisions, only 10 days ago deferred to the judgment of the Corps of Engineers with regard to a matter much more within the competence of lawyers, upholding that agency’s wildly implausible conclusions that a storm drain is a tributary of the water of the United States. It goes without saying that there is much more at stake here than storm drains.”

Justice Thomas, at the least, seems still to believe in the separation of powers. During wartime, he notes:

...our duty to defer to the Executive’s military and foreign policy judgment is at its zenith; it does not countenance the kind of second-guessing the Court repeatedly engages in today. Military and foreign policy judgments “‘are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.’”

But the concept of judicial restraint is one the Court increasingly seems unwilling to adhere to, instead preferring to wade into the very political fray the Founders tried so hard to shield them from. As J. Harvie Wilkenson once noted, this nation deserves better:

"Americans deserve not a liberal court, not a conservative court, not even a wise or Solomonic court, but a court that respects the limits of its power and the place of others within the constitutional structure."

It is perhaps the ultimate irony that we have come to view the Supreme Court as the ultimate arbiter of Constitutional questions. It is certain the Founders themselves did not intend this to be so, as I noted in this attempt to place the signing statements controversy into historical context:

Thomas Jefferson, the eponymous source of so many oft-quoted if imaginary rebukes to the Bush administration, remarked:
To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps… and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all departments co-equal and co-sovereign within themselves.

James Madison also:

...doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution and whether it ought not to be limited to cases of a [j]udiciary [n]ature. The right of expounding the Constitution in cases not of this nature ought not to be given to that [d]epartment.

It is only historical ignorance which allows critics of the Bush administration to ignore the fact that it was the Supreme Court which unilaterally granted itself the right of judical review in Marbury v. Madison, an act which in many respects could be viewed as a dangerous and unconstitutional power grab. And indeed, the Court has used that power to unilaterally amend and expand the Constitution without a popular referendum. So could the practice of issuing Executive orders, yet time and longstanding tradition have retroactively ratified both practices.

With the rise of the cult of "international law", the importance of judicial restraint has never been more clear. When a Court originally intended to be one of three co-equal branches of government entrusted with guarding and interpreting the Constitution presumes to be the sole interpreter - not just of the Constitution but of treaties to which the United States is a signatory - it usurps the role of the Executive and Legislative branches.

It is interesting to note that if we ignore the Supreme Court's historical power grab in Marbury, the original intent of the Founders was for a weak judiciary well-insulated from the political sphere:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

How far we have come - from a system in which all three branches were meant to be co-equal and only by agreement of the People of the United States could the Constitution be altered or our laws be changed to a system where 9 men and women unilaterally change the course of history by citing foreign laws. And the true danger here is not so much that the legislative or executive branches may not still quite legally oppose the judiciary.

It is that, in a mass-media era with a public not well-versed in civics or American history, men like Andrew Sullivan will exploit decisions like Hamdan to suit their political agendas. Unfortunately, because decisions like Hamdan turn on fine points of long and dry documents, the general public will never bother to read the Geneva Convention. They will never bother to ask whether al Qaeda really fall under the class of persons that treaty was meant to protect, or more importantly whether the Court had the right to rule on the meaning of a foreign treaty rather than referring the matter to Congress.

Ignorance, cheap emotion, and America's short attention span are on the side of her enemies. The Left often admonishes the administration for not asking America to share the sacrifices of our troops. I often wonder, is anyone willing to put in the time to understand just who and what we are fighting? Given all that our troops have done on our behalf, that seems the least of the many things we owe them in return.

Posted by Cassandra at 08:27 AM | Comments (24)

June 25, 2006

The Presumption Of Innocence

Jerrilyn Merritt of Talk Left opines:

The message the public should learn from the investigation of Karl Rove is that innocent people fall prey to grueling and debilitating criminal investigations, that when the federal government decides to bring its awesome powers to bear down upon you, it wreaks havoc with your life and jeopardizes not only your freedom but your job, your reputation and your faith in justice. The grand jury should serve as both a sword and a shield. The truth is, it is too often a tool of the prosecution.

But that won't be the message because guilt sells in America and innocence remains relegated to the back pages.

Related thoughts here.

Posted by Cassandra at 12:23 PM | Comments (0)

June 23, 2006

Selective Outrage, Media Coverage As A Means Of Asymmetrical Warfare

Open a newspaper or turn on the nightly news and you'll see horrifying accusations of human rights violations by US troops. Though the Haditha investigations are far from incomplete, it is nearly impossible to find press coverage that omits the requisite head-scratcher from Jack Murtha. To hear Murtha tell it, there's "no question" these "cold-blooded killers" "snapped" due to "the strain of repeated deployments". Should we really be surprised when they deliberately “murder” innocent civilians in a fit of rage? Until recently, the media uncritically hyped Mr. Murtha's conviction that there had been an official cover up extending right up the chain of command. Oddly, there has been no mention that Murtha's statement was flatly contradicted by the only investigation completed so far.

So-called terrorists, on the other hand, benefit from scrupulously neutral coverage; that is, when their acts receive any coverage at all. In place of cold-blooded killers whose guilt is certain, we have unproven allegations against suspects targeted by domestic spying government surveillance:

Federal agents, including the FBI, launched a series of raids tonight targeting a suspected terror cell based in Miami, and federal law enforcement officials said seven people have been arrested over the past two days.

Among those arrested, five were U.S. citizens, one was a permanent legal resident, and one was a Haitian who was in the United States illegally on a visa overstay, federal officials told ABC News.

The group has been under surveillance for some time and was infiltrated by a government informant who allegedly led them to believe he was an Islamic radical, a Justice Department official said.

Sources say the arrests reflect the government's concern about so-called "homegrown terrorists."

Contrast this with the coverage of the Haditha incident, no account of which is complete without a reminder from Jack Murtha that there is "no question" about their guilt. Take his word for it - the conclusions of several still-unfinished investigations have already been revealed to him by military officials.

Unlike the accused Marines, their accusers are treated to the same lack of skepticism enjoyed by Murtha. Who are they? A 'young man' who sat on the tape for some time before giving it to Hammurabi Human Rights which is affiliated with the respected group Human Rights Watch. Unmentioned (except in a correction buried in the Times' archives) is the fact that this "young man" is, in fact, the 43 year old founder of Hammurabi. Never mind that he is one of two members of a 16 month old unregistered activist group with no previous record of investigating other human rights violations and no ties to Human Rights Watch. It's hardly worth mentioning that the accuser, who was interviewed by the media a mere three weeks after the Haditha killings, said not a word about the "massacre" at that time. So Time simply doesn't mention it at all.

Undoubtedly, Time regrets the error.

But the accuser is backed by a slew of impartial sources interviewed by email, isn't he?

For instance, there's the morgue doctor, who previously claimed to have been arrested and severely beaten by US troops.

There's the mayor of a terrorist citadel so cowed by the insurgents that only 150 of 900,000 residents voted in the October referendum.

And finally, we have the lawyer who is currently trying to get more blood money for several relatives he claims were murdered by Marines.

If all that weren't enough, there's "the most damning evidence" of all, a cell phone photo. After all, seeing is believing, isn't it?

In the original version of this story, TIME reported that "one of the most damning pieces of evidence investigators have in their possession, John Sifton of Human Rights Watch told Time’s Tim McGirk, is a photo, taken by a Marine with his cell phone that shows Iraqis kneeling — and thus posing no threat — before they were shot." While Sifton did tell TIME that there was photographic evidence, taken by Marines, he had only heard about the specific content of the photos from reports done by NBC, and had no firsthand knowledge.

No doubt Time regrets the error.

The press's laudable desire to avoid sitting in judgment of terrorists is, oddly enough, rarely extended to US servicemembers. This double standard makes them an easy patsy for anyone desiring to vex and annoy the US government with an endless series of accusations that are uncritically parroted by our own media.

But selective outrage is hardly unique to the press. Amnesty International is outraged over US human rights violations, yet all they offer the two US soldiers whose tortured and grotesquely mutilated bodies were found on a road are their sincerest condolences and a heartfelt plea to the killers: "Don't! Stop!" Though the two US soldiers were reportedly killed by Iraqi troops, there is no condemnation of the Iraqi government which failed to control them. Amnesty sees to need to investigate these men’s deaths.

The media are outraged by collateral damage of US attacks on terrorist strongholds, yet inexplicably they ignore deliberate strikes against innocent civilians by Iraq's “freedom fighters”:

Bomber hits Iraq old age home reports news 24, a South African news outlet.

The headline above is the only one I could find by Googling Basra, bomber, old age home.

The BBC hid the information in the last sentence of the article about the two American servicemen tortured to death by their Al Qaeda Iraq abductors. The rest of MSM followed the same pattern.

We are allowed to hear that terrorists booby-trapped the mutilated corpses of two US servicemembers. We are not told the insurgents regularly do the same thing to small children.

Despite evidence that terrorists feed on media coverage, the press continue to hype news of terrorist attacks (usually with repeated reminders that terror is working and we're losing the war) while declining to cover the military's success stories:

"Both the media and terrorists benefit from terrorist incidents," their study contends. Terrorists get free publicity for themselves and their cause. The media, meanwhile, make money "as reports of terror attacks increase newspaper sales and the number of television viewers."

What is the result of the markedly unequal treatment afforded to terrorists and accused servicemen? One indication is provided by Amnesty International, which is moving aggressively to declare human rights violators Hostis Humanii Generis; enemies of all mankind who can be prosecuted no matter where they try to hide:

Initially, a federal judge dismissed the Filartigas’ claims on the grounds that Paraguay’s treatment of its own citizens was not governed by international law. But the Court of Appeals rejected this reasoning. Specifically, the Court of Appeals found that torture was a violation of international law, and that torturers—like the pirates of the 18th century—were hostis humanii generis (enemies of all mankind) who could be brought to justice anywhere.

In the Filartiga v. Peña-Irala ruling, the appeals court relied on the 1975 United Nations Declaration Against Torture and All Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment, which the United Nations promulgated following Amnesty International’s first international campaign against torture. The relationship between human rights activism and success in the courtroom could not have been clearer.

Prosecuting tortures, at first glance, sounds entirely reasonable. But who will be prosecuted by Amnesty International?

Who exactly are the enemies of mankind? For Amnesty, they are mostly government officials -- which is a wise position, honestly, a wiser one than the United Nations system credits. The UN system believes that rights belong to states, and the "rights" of individuals are to be protected through the various nation states. This is why Cuba is now on the UN's Human Rights watchdog group.

Like the ICC at the Hague, Amnesty International reserves the bulk of its outrage for the United States and Israel while virtually ignoring far worse crimes from totalitarian states like China, North Vietnam, Cuba, Libya, and Sudan. Why does this happen?

It happens because democratic nations like the US and Israel do not tolerate such abuses. Their legal systems of these serial human rights abusers are exquisitely sensitive to the rights of alleged victims. Paradoxically, their greatest strengths of established democracies - the capacity for introspection, a free press, and respect for the civil rights of even non-citizens - are used against them. The likelihood of bringing human rights violators to justice in China or Cuba is virtually nil, but in America the slightest whiff of scandal brings on an avalanche of self-loathing from the press, with the attendant investigations and criminal charges, many of which (as in the case of Ilario Pantano or the British soldiers recently accused of war crimes in Basra) are eventually proven groundless.

Our adversaries in the war on terror have not been slow to take advantage of this. Hammurabi Human Rights Group, the accuser in the Haditha case, is (contrary to Time's blatant misrepresentation) a 16 month-old organization with only two members who never bothered to investigate a single human rights violation before Haditha. But an anti-war agenda and our own ideals allow due process to become a vehicle for asymmetrical warfare against established democracies. Asymmetrical, because Iraq's own human rights violators will never be prosecuted, nor will those of other despotic regimes. Our enemies have found a way to use our own ideals against us.

The selective outrage of the international community is well established. The same United Nations that condemns the US and Israel with astonishing regularity refuses to act against known abusers like Libya and Cuba. On the contrary; their crimes are rewarded by leadership positions on the UN Human Rights Committee, thus cleverly putting the foxes in charge of the henhouse. The ICC relentlessly pursues Israel while ignoring the plight of immigrants to Arab nations, whose passports are routinely seized on arrival allowing them to be literally enslaved without hope of reprieve.

Yet the US is condemned for resisting the demands of groups like Human Rights Watch and the ICC; for refusing to be prosecuted under agreements to which they are not a signatory.

In the name of human rights, we are condemned for refusing to knuckle under to unequal justice which leaves us defenseless against a ruthless enemy far more contemptuous of 'international norms' than we are. And yet, we continue to investigate and, where guilt has been proven, punish our own offenders. Is it surprising, then, that the number of accusations continues to increase? We cannot refuse to investigate without sacrificing every principle we hold dear. We are honor-bound not to turn away. Our own scruples become a knife the enemy can twist in our guts until at last the only nation willing to stand up to dicatators and terrorists is paralyzed into inaction.

Talk about your unintended consequences. But what else can we do, without sacrificing our own humanity?

Posted by Cassandra at 08:17 AM | Comments (4)

June 15, 2006

Next Time You Have A Thought... Let It Go

Army Lawyer has a great takedown of a very silly piece in Slate which contends that what the Army really needs is a special prosecutor. As he did a masterful job of identifying the inaccuracies in Umansky's piece, I shall confine my criticism to two rather stunning quotes. The first one is a near masterpiece of unintentional irony:

In case after case, low-level soldiers have been marched into a court martial as higher-ups get off scot-free—while those same higher-ups have usually faced nothing worse than a promotion.

… how can the system be improved?

What we need is an independent prosecutor's office, a place where a Patrick Fitzgerald-type can hang his hat and go after wrongdoing wherever it may be in the chain of command.

Wunderbar. How better to assist the Army in prosecuting criminal offenses? Create a new layer of bureaucracy and give it unlimited money, authority, and time. Presto! an unfolding train wreck. Mr. Umansky declines to consider one intriguing question: precisely what was actually produced in over two years of Fitzgerald's avid “special” (in the sense of the Special Olympics) prosecution?

Not a single indictment citing the charging statute.

The Big Fish in question (Karl Rove) walks away. Ditto Cheney and his staff. Wow. Fitz certainly nailed the major playahs, didn’t he?

One indictment of a minor administration official, not for violations of the IIPA mind you, but for obstructing the investigation; an offense committed by several witnesses (not least among them Judy Miller). PlameGate watchers no doubt remember how, after 85 days of funneling quarters into the Snickers machine at the Alexandria Detention Center, Miller suddenly “remembered” a prior meeting with Libby, who (quelle surprise!) had just added to his earlier general waiver of confidentiality a very specific waiver urging her to testify!

As a reward for her intransigence, Miller was then excused from further questioning about her sources, though she’d gone to jail on the pretext that her testimony was essential to the investigation. What a deal! Defy the prosecutor and get out of the very cooperation your confinement was designed to compel!

And please! Don't mention the disturbing fact that Fitzgerald never even bothered to establish that a crime had, in fact, been committed. Details are for the little people.

But it is unfair to rest an entire case on one unsatisfactory and time-wasting investigation. How have special prosecutors fared historically?

It began as way to check governmental abuses of power, and restore public confidence in the integrity of government. Over the next 20 years, however, it degenerated into a vehicle for partisan witch-hunts that consumed millions of tax dollars and prevented government from functioning efficiently, but rarely ferreted out the wrongdoing it was designed to punish.

So say critics of the Independent Counsel Act, enacted in 1978.

Well there's a ringing endorsement. And their success rate is hardly impressive. Experts have identified several shortcomings of the independent counsel system:

Scalia warned that the whole process of appointing an independent counsel, with its own jurisdiction and unlimited investigative scope, would alter the balance of power between the branches of government. It would be too easy to appoint political opponents to investigate the current administration, and "there would be no one accountable to the public to whom the blame could be assigned."

Few who have seen the fervor with which Democrats instigated investigations of the Reagan and Bush administrations, then witnessed the glee with which Republicans sought payback when Clinton was elected, would argue that Scalia was far from the truth.

Though the independent counsel law expired several years ago, the same problems have plagued modern-day special investigations:

First is what she calls the "witch hunt problem." With a single target to pursue, and an unlimited budget, timeframe, and jurisdiction with which to pursue him or her, the prosecutor could lose perspective.

As Scalia pointed out in his 1988 dissenting opinion, in traditional investigations, the prosecutor is assigned to investigate a specific crime and to find out who is involved.

However, the independent counsel was instructed to investigate a particular individual and find any crimes he or she may have committed, not just the most serious crimes or the crimes he or she was appointed to investigate. Furthermore, if an investigation was prolonged for several years, the investigator came under increasing pressure to bring charges for something, even if it is completely unrelated to the original investigation.

Sound familiar, or am I the only one experiencing déjà vu all over again?

Second, Sullivan asserts that partisanship was "an unavoidable temptation." Politics is all about cooperation and the threat of retribution, so politically motivated investigations tended to be repaid in kind. What more fitting quid pro quo for seven years of Iran/Contra investigations than at least an equal measure for Whitewater? Furthermore, when investigations were perceived to be unfair or politically motivated, those under investigation were more likely to seek protection by taking full advantage of any powers available, risking further allegations of abuse of power.

Third, the media's obsession with scandal made even the slightest indiscretion fodder for further investigation, even matters that would not be investigated or criminalized outside the political realm. Suddenly the threshhold for acceptable behavior was raised to the point at which almost no one would be deemed fit to hold office because of past sexual liaisons or financial dealings.

And this is an improvement over the current system? No one, watching the malicious glee with which the War on Terror has been turned into a political football seriously believes handing our enemies (not to mention two parties already at each other’s throats) yet another tool to bash each other and attack the President (via the military) is a good idea. Unless, of course, their ultimate goal is to paralyze both the government and the military. Which is, I suppose, an approach.

How long does Mr. Umansky think it will take, once our enemies find the most trivial accusation generates a huge, expensive witchhunt, for them to leverage this knowledge? What many people fail to understand is that leadership failures only rarely rise to the level of criminal offenses. But giving a virtual blank check to a special prosecutor neatly solves that particular problem, doesn't it? Why investigate the crime itself when you can go trolling through someone's record for other indictable offenses?

Only a fool would pass up the opportunity to neutralize high-ranking officers (who often have nothing to do with, let alone control over, the incident in question) by embroiling them in a messy and time-consuming investigation that ultimately produces little or nothing in the way of indictments. Considering the historical record of special investigations, this is hardly a far-fetched scenario.

Umansky closes with this thought:

The stench of a cover-up, coupled with the sense that higher-ups keep evading responsibility, does nothing for the United States' image. It reinforces a sense of hypocrisy and that can only hurt the United States in trying to win hearts and minds in Iraq and elsewhere.

When you combine the known problems with special investigations with their historical inability to produce results, the current military justice system (even with all its flaws) begins to look downright appealing. Umansky’s proposal appears to stem more from a desire to collect political shrunken heads than any real desire to punish the guilty. Despite their vaunted investigative skills, the media have always displayed a near-mythical inability to learn about or even attempt to understand how the military works. Their desire to collect high-ranking scalps whenever wrongdoing is alleged reveals a profound misunderstanding of a system in which highly-placed officers can never be everywhere at once, nor prevent those under their command from breaking the law.

While his desire to see the captain go down with the ship seems, on first impression, laudable, the sinking ship in question may well be the United States Armed Forces. Talk about winning the battle and losing the war.

But perhaps that was the real goal, all along?

Posted by Cassandra at 08:52 AM | Comments (6)

Major Schadenfreude Alert

What I wouldn't give to be a fly on that wall:

A criminal defense attorney for a Marine under investigation in the Haditha killings says he will call a senior Democratic congressman as a trial witness, if his client is charged, to find out who told the lawmaker that U.S. troops are guilty of cold-blooded murder. Attorney Neal A. Puckett told The Washington Times that Gen. Michael Hagee, the Marine commandant, briefed Rep. John P. Murtha, Pennsylvania Democrat, on the Nov. 19 killings of 24 Iraqis in the town north of Baghdad. Mr. Murtha later told reporters that the Marines were guilty of killing the civilians in "cold blood." Mr. Murtha said he based his statement on Marine commanders, whom he did not identify.

Mr. Puckett said such public comments from a congressman via senior Marines amount to "unlawful command influence." He said potential Marine jurors could be biased by the knowledge that their commandant, the Corps' top officer, thinks the Haditha Marines are guilty.

"Congressman Murtha will be one of the first witnesses I call to the witness stand," Mr. Puckett said yesterday.

Question: will Puckett question other Congressmen who were briefed that day to see how they summarize Hagee's words? Can't you just see Rep. Murtha squirming?

If he says Hagee told him the Marines were guilty, Murtha will have made it all but impossible to claim these "cold-blooded killers" got a fair trial.

If, on the other hand, it comes out that Hagee offered no opinion on the guilt of the accused Marines (as seems likely given his refusal to speculate on the matter), Murtha is revealed to be a liar.

Which choice do you think Murtha will make?

Posted by Cassandra at 08:13 AM | Comments (4)

June 06, 2006

Bias, Baseball, And The Burden Of Proof

In Slate, Richard Thompson Ford looks at what baseball can teach us about discrimination and racism:

Barry Bonds officially "broke" Babe Ruth's home run record over Memorial Day weekend. I put "broke" in scare quotes because, of course, that record hadn't been in one piece since 1974, when Hank Aaron broke it. Some baseball fans didn't want Aaron to break the Bambino's record—he received threats and hate mail from bigots who wanted to send black players back to the separate and unequal Negro Leagues.

More than 30 years later, with Bonds nearing Babe Ruth's career record, as many fans jeered as cheered. Bonds reports receiving threats and hate mail on a regular basis. And the press has not exactly written love letters. Is Bonds as much a victim of racism today as Aaron was in 1974? Anti-discrimination law offers a way to think about the question.

I can't help but be reminded of those moronic VW Jetta commercials in which an obviously ethnic person unfairly "stereotypes" a white guy. The commercials are meant to be amusing, but I find it a bit jarring to watch someone with a huge chip on his shoulder take violent offense at perfectly innocent remarks. I'm often left wondering whether the subliminal message (that perhaps the offense is more perceived than real) is an intended one?

Surely not! That would be racist.

Ford dissects a Supreme Court case in which a woman who admittedly performed well on the job, but had an abrasive and combative personality, sued for gender discrimination after being fired. Her employers cited her lack of 'interpersonal skills' as the reason for her dismissal. Even with a fairly clear-cut legal test in place for finding discrimination, however, the Court issued a split decision that perhaps reflected their personal biases as much as any ambiguity in the facts of the case:

As the split on the Supreme Court suggests, even the most experienced umpires can't agree on how to resolve such issues. The split also suggests that the differing answers involved the justices' personal ideological divisions as much as factual ambiguities. Just as sports fans reflexively back their favorite team on close calls, when the facts surrounding a claim of racism are inscrutable or ambiguous, people tend to fall back on ideological predispositions. Saying Bonds is a victim of racism becomes a way of saying racism is still a serious problem in our society. Saying he's just bellyaching becomes a way of saying too many black people are playing the race card.

Team spirit is good sport at the ballpark after a few beers, but it's foul play when it comes to race relations. So, I'll to try to resist my home-team liberal reflexes and call the Bonds controversy as I see it: I think racism remains a serious social problem, but I don't see much evidence of it here. When a black person is treated badly for no good reason, it's reasonable to suspect the reason was race. But this inference can't be justified when there is a good reason; then we need some other evidence that bias was a significant factor—like the evidence that partners at Price Waterhouse said Ann Hopkins was too "macho" and needed to be more feminine. And we don't have that kind of evidence here.

Bonds is right to say that blacks "go through a little more" because some people are racists: Hank Aaron was deluged with explicitly racist hate mail and death threats and needed police protection in the dugout as he closed in on Babe Ruth's record. No doubt some of those bigots are still out there, and unfortunately, new ones have been spawned since. Things have improved since the 1970s, but we haven't beaten racism yet. However, this general observation can't be enough to support a specific claim of bias in this case, just as workplace sexism generally wouldn't have been enough to support Ann Hopkins' claim that Price Waterhouse discriminated against her. Without more to back it up, the claim that Bonds is a victim of racism is just speculation. We can't assume that anytime a black person is treated badly we can or should blame racism—especially when he's done something to provoke the abuse.

Normally in a court of law, the party bringing suit must prove their case, with the defendant being assumed innocent until sufficient facts have been presented to prove his guilt. Thus it should stand to reason that when someone throws the race card, the burden of proof rests with them.

Yet so often in our society, subjective "feelings" and perceptions of bias are given equal weight with facts that suggest one or more perfectly rational explanations, other than racism. And all too often, as in the Duke lacrosse case, past "race guilt" is used to infer a present motive for specific offenses. This kind of "profiling" would be utterly abhorrent if it were used against a minority defendant.

The interesting question is why we are so willing to use an unacceptable tactic when the shoe is on the other foot?

Posted by Cassandra at 12:12 PM | Comments (12)

May 05, 2006

Justice Thomas

Thomas Sowell has written two very nice tributes to Clarence Thomas, my favorite SC Justice here and here. Sowell deftly explains all the reasons I admire Justice Thomas:

Anyone who takes the trouble to read the Supreme Court opinions of Justice Clarence Thomas will see a very different, and much more intellectually formidable, mind at work than what they might expect from reading media attempts to denigrate Justice Thomas.

One of the most gross distortions occurred early in Justice Thomas' career, when he refused to declare it a violation of the constitution when prison guards beat a handcuffed prisoner. He was called "the youngest and cruelest justice" in the media because he did not go along with others on the Supreme Court who considered that a violation of the 8th Amendment's ban on "cruel and unusual punishment."

What Justice Thomas understood, that the media either didn't understand or didn't want to understand, was that everything that is wrong, or even illegal, is not automatically a violation of the constitution.

It is not unconstitutional to assassinate the President of the United States. For most of our history, it was not even a federal crime.

That is why Lee Harvey Oswald was in the custody of the Dallas police, instead of the FBI. Oswald had violated no federal law when he shot President Kennedy.

Justice Thomas did not for one moment deny that the beaten prisoner had a right to take legal action against the guards who beat him. He even suggested that there were other laws, and perhaps other provisions of the constitution, that the prisoner could use, but that the 8th Amendment did not apply.

Why not? Because the word "punishment" in the constitution referred to "the penalty imposed for the commission of a crime," Justice Thomas pointed out. Therefore "judges or juries -- not jailers -- impose 'punishment.'"

It is this careful, thorough, and above all restrained approach: saying what the law is, not trying to twist the law or stretch the application of law to fact to bring about some desired outcome, that I so admire in him.

At any rate, two good reads.

Posted by Cassandra at 09:22 AM | Comments (5)

Wanted: Some Historical Perspective on Signing Statements

In the Washington Post, Michael Kinsley Speaks Power to Truthiness:

Last Sunday's Boston Globe carried an alarming 4,000-word front-page article about President Bush and the Constitution. It seems that Bush has asserted the right to ignore "vast swaths of the law" simply because he thinks that these laws are unconstitutional.

The article is specifically about "signing statements," in which the president offers his interpretation of an act of Congress as he signs it into law. This was an innovation of the Reagan administration, intended to give courts something other than a law's legislative history -- that is, Congress's side of the story -- in any future dispute. Bush often signs a law and at the same time says that parts of it are unconstitutional. Sneaky!

Essays like this are one reason I consider Michael Kinsley to be a must-read. Kinsley is no fan of the President, nor of conservatives. I often disagree with what he says, but for the most part I find his essays well reasoned and fairly impartial. As I noted yesterday much of the public debate over entirely normal tussles between our three branches of government is becoming inflammatory and overwrought. But more seriously, the debate is, in many quarters, also profoundly dishonest in that the participants are wholly ignoring the express powers given each branch by the Constitution.

The result, when dealing with an ill-informed and often lazy electorate, is misleading and serves to fuel irresponsible talk of impeachment for both SCOTUS and the Executive branch, when in reality the actions under debate are neither unprecedented in our history nor barred by the Constitution. As Kinsley observes,

The Globe does not report what it thinks a president ought to do when called upon to enforce or obey a law he or she believes to be unconstitutional. It's not an easy question. The power of judges to have the last word in constitutional interpretation is not explicitly in the Constitution. The logic is that every officer of the government has an obligation to follow the Constitution, and courts get the last word because their words literally come last in any dispute. The Constitution is like a hot potato, and the judges are holding it when the music stops.

He's right. Moreover, both the Founders and the delegates of the Constitutional Convention were well aware of the dangers of unchecked judicial review: this is, in fact, why they deliberately changed an initial provision in the Virginia Plan that called for a council of revision expressly giving the judiciary the power of judicial review, to a Presidential veto. Numerous examples of their reasoning survive in the historical record.

Thomas Jefferson, the eponymous source of so many oft-quoted if imaginary rebukes to the Bush administration, remarked:

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps… and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all departments co-equal and co-sovereign within themselves.

James Madison also:

...doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution and whether it ought not to be limited to cases of a [j]udiciary [n]ature. The right of expounding the Constitution in cases not of this nature ought not to be given to that [d]epartment.

Another delegate identified the dangers of judicial review in a statement that seems remarkably prescient:

[I]n their decisions they will not confine themselves to any fixed established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors or control their adjudications. From this court there is no appeal… They will be able to extend the limits of the general government gradually, and by insensible degrees… one adjudication will form a precedent to the next, and this to a following one.

But what the authors of our Constitution expressly and intentionally denied SCOTUS, it later granted to itself in Marbury vs. Madison. If this is not a sweeping arrogation of power from one branch to itself in defiance of original intent and without democratic amendment to the Constitution, it is difficult to say what is.

Kinsley notes another problem with the Globe's analysis:

What was dangerous about the Reagan administration's signing statements initiative was the claim that a president is entitled to govern according to his or her own interpretation of the Constitution even after the courts have ruled. This is a recipe for near-dictatorial executive power, not to mention governmental chaos in which no fundamental issue can ever be resolved. But the Globe does not even suggest that Bush is claiming the right to thumb his nose at the courts in this way.

The complications come when the courts haven't, or haven't yet, ruled on the subject at hand. In that situation, shouldn't the president -- who swears to "preserve, protect, and defend" the Constitution -- follow his own sincere beliefs about what the Constitution requires?

Critics of Presidential signing statements often suggest they are unconstitutional, yet even a cursory examination of the Constitution reveals that one of the checks of the Executive on the legislature is the power not to enforce laws it considers unconstitutional. Obviously this power can be abused, yet Presidents have a long history of aggressively asserting their power at the expense of the other two branches. Indeed, President Clinton was widely criticized for his sweeping use of Executive Orders to make law by fiat and even to overrule Congress:

The president has used that extraordinary power to revamp civil service rules for workers with psychiatric disabilities, ban discrimination against homosexuals in civilian federal jobs, halt dealings with federal contractors who use products made by foreign child labor, declassify vast stacks of old files, change contracting practices to give Asian-Americans and Pacific Islanders a bidding edge, revise food labeling, restrict smoking in government offices, revamp encryption export rules and intervene in a Philadelphia transit strike.

"Stroke of the pen, law of the land. Kind of cool," says former Clinton adviser Paul Begala, dismissing objections of critics who despise the process as unconstitutional lawmaking, no matter which president uses it.

To add insult to irony, like judicial review, the use of Executive Orders is justified by... an Executive Order. Here we have another case of one branch granting itself powers not expressly given it by the Constitution, which rather makes the current claims that Bush is the worst president ever as regards power grabs somewhat ridiculous:

Although the number of illegal executive orders issued by President Clinton does not constitute a large percentage of his total of 364, the pattern of illegal orders, often without any claim of statutory or constitutional authority, is still striking. The clearest example was Clinton's "striker replacement" executive order. The legal decision it spawned provides additional guidance in determining the legality of future executive orders and thus is worthy of a brief discussion.

In 1993, President Clinton urged Congress to enact a statute that would prohibit employers from hiring permanent replacements for workers who are on strike. The right to hire such permanent replacement workers was firmly established in the National Labor Relations Act (NLRA) and in decisions of the U.S. Supreme Court. Congress refused to authorize the change in law in 1993-1994. Shortly after Republicans gained control of Congress in 1995, the President issued Executive Order 12954 in an attempt to achieve through executive fiat what he could not achieve through legislation. Clinton claimed authority under the Federal Property and Administrative Services Act (the "Procurement Act")32 to require all large government contractors, which employed roughly 22 percent of the labor force, to agree not to hire permanent replacements for lawfully striking employees.

The United States Court of Appeals for the District of Columbia Circuit unanimously overturned the executive order and the implementing regulations that had been issued by the Secretary of Labor.33 The court first determined that it had jurisdiction over the case despite what the court described as President Clinton's "breathtakingly broad claim of non-reviewability of presidential actions." In short, the court said that it did not have to defer to the President's claim that he was acting pursuant to lawful authority under the Procurement Act. On the merits, the court ruled that since the NLRA "undoubtedly" grants an employer the right to hire permanent replacements for striking workers, it would not read the general purposes of the Procurement Act as trumping this specific right of employers. The court distinguished Executive Order 11246 (which guaranteed equal employment opportunities) and Executive Order 12092 (which restricted wage increases for government contractors) as not being in conflict with any other statute.

President Bush is using signing statements like a line-item veto, which he requested Congress grant the Executive by law. The proposed line item veto supposedly fixes the Constitutional conflicts which caused SCOTUS to strike down a law which granted his predecessor that power in Clinton vs New York. Clinton, somewhat remarkably, used the line item veto 82 times during its brief tenure, showing once again that he was no more inclined to defer to Congress than Mr. Bush. His own supporters characterized Clinton's use of executive power thusly:

Mr. Begala said that Mr. Clinton did not conceal his intent to make ample use of executive orders.

"Clinton is an activist, muscular president," Mr. Begala said in an interview, recalling that Mr. Clinton chided Mr. Bush in 1992 and said he intended to use the powers of the presidency to the fullest.

"If you won't use the powers of the presidency to help people, step aside. I will," Mr. Begala quoted the president as telling Mr. Bush.

It continues to be intensely ironic that President Bush is relentlessly characterized as outside the mainstream of Presidential authority in clear defiance of the historical record. As I noted back in December:

In the past few days, it has come out that President Clinton used warrantless domestic searches absent a foreign intelligence goal. In fact, he wanted to use them in public housing projects. Where was the Congressional outrage?

President Carter, in 1978, used warrantless searches against two men suspected of spying for the Vietnamese.

So as it turns out, the use of warrantless searches - even far more intrusive and individually-targeted physical searches - is hardly unprecedented. Democrat Presidents saw no Constitutional problem with using them in peacetime, even against US citizens. President Bush's "activist, muscular" use of Presidential authority in wartime is being mischaracterized as completely without historical precedent when that is clearly not the case.

History shows that tussles between the branches of our federal government are nothing new. Therefore, shouldn't any rational discussion of whether specific assertions of Executive, Judicial, or Legislative authority are worthy of concern or even impeachment include both a honest review of the relevent historical record and an acknowledgment of the checks and balances written right into our Constitution? People on both sides of the political aisle have legitimate concerns about overreaching, and these concerns are a vital part of our national debate. But let's try to keep that debate honest: those who object to specific practices should acknowledge similar power grabs in the past and either clearly distinguish them from what they perceive to be present abuses on legal grounds or state why we should be more concerned about present examples than ones in the past which did not (sacre bleu!) result in impeachment.

Posted by Cassandra at 07:00 AM | Comments (118)

May 04, 2006

An Imperial Court

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.

- Alexander Hamilton, Federalist 78

Ruth Bader Ginsburg and Sandra Day O'Connor, the only two female justices to have served on the Supreme Court, have been lobbying hard against what they see as unwarranted Congressional attempts to check the growing power of SCOTUS. Various liberal pundits, who see the Court as a means to sidestep Congress and the President (ironically, the two democratically elected branches of government) have avidly seized on their remarks as proof of some sinister conservative plot to control all three branches of government.

That liberals and conservatives should compete for political dominance is nothing new; indeed the Constitution provides for elections and appointments so the prevailing will of the people may be reflected as it currently is in the composition of all three branches of government. That respective branches may, through exercise of powers delegated to them, attempt to enlarge their powers beyond their Constitutional sway was likewise foreseen by the Founders. It was to this end the Founders instituted a system of checks and balances each branch may legimately exert upon the others.

To those unfamiliar with this system, the arguments of these two Justices may, on first impression, appear to have some merit. But a thorough examination of their words reveals both overweening arrogance and a stunning disregard for the system of separation of powers and checks the Court as interpreter of the Constitution is perhaps uniquely charged to understand and uphold.

Earlier this year, O'Connor suggested our elected officials should refrain from criticizing the Court, lest the nation slide into dictatorship:

Now that she's left the Supreme Court, Sandra Day O'Connor has a few things to get off her chest. One of the first was to warn that the nation could slide into dictatorship if harsh critiques of the judiciary – from the likes of Texas Sen. John Cornyn and Rep. Tom DeLay – go unanswered.

"We must be ever-vigilant against those who would strong-arm the judiciary," she said this month at a Georgetown University conference on corporate law. "It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings."

In Justice O'Connor's world, the First Amendment does not apply to one of the two branches empowered to check the Court's power. She finds it improper that either branch should dare to question any act of the Court. Justice Ginsburg went even farther, equating public debate over the use of foreign law to interpret the Constitution to the incitement of death threats:

Supreme Court Justice Ruth Bader Ginsburg assailed the court's congressional critics in a recent speech overseas, saying their efforts "fuel" an "irrational fringe" that threatened her life and that of a colleague, former justice Sandra Day O'Connor.

Are all who express opinions liable for the actions of the general public, who may hear them and commit some irrational act? If one accepts Ginburg's spurious logic, the press should be forcibly embargoed from all criticism of the President lest some deranged nut use their words as pretext for assassination. Her argument displays an alarming disregard for the value of debate in a free society. Do she and Justice O'Connor really contend all criticism of the Judicial branch threatens their independence? If so, they admit of no check to the Judicial branch and consequently, the concerted media attack on fellow Justice Scalia should fill them with like trepidation Yet strangely neither woman mentions this in her list of grievances. So it would appear that not all criticism which seeks to limit the freedom of the Court disturbs them; only that which targets their actions.

Justice Ginsburg proceeds to equate Congressional attempts to oversee the Court with Stalinist tactics:

Supreme Court Justice Ruth Bader Ginsburg said Tuesday that a Republican proposal in Congress to set up a watchdog over the federal courts is a "really scary idea."

"My sense now is that the judiciary is under assault in a way that I haven't seen before," she said.

As an example, she mentioned proposals by senior Republicans who want an inspector general to police judges' acceptance of free trips or their possible financial interests with groups that could appear before them.

"It sounds to me very much like the Soviet Union was .... That's a really scary idea," said Ginsburg, who was put on the court by President Clinton and is one of its liberal members.

Betsy Newmark suggests Ginsburg may have cause for alarm. She has failed to recuse herself in several cases where there was a conflict of interest:

Supreme Court Justice Ruth Bader Ginsburg may have violated federal law, as well as professional codes of judicial ethics, by participating in more than 20 cases in which one of the litigants was a publicly traded corporation in which her husband owned stock.

Reviewing Ginsburg's financial-disclosure reports and cases in West's Supreme Court Reporter, Insight found that since 1995, Ginsburg apparently did not disqualify, or recuse, herself from cases that directly affected eight companies in her husband's rollover individual-retirement account, or IRA. Martin Ginsburg owned between $15,001 and $50,000 worth of shares in NYNEX, American Home Products, Exxon, General Electric, American International Group, Procter & Gamble and Johnson & Johnson -- and $15,000 or less in AT&T -- at the time his wife appears to have adjudicated cases that may have affected the value of his portfolio.

And even if that had no effect on the companies' stock-market performance, Ginsburg still may have violated the federal statute governing judicial procedure, which provides that "Any judge, justice or magistrate shall disqualify himself in any proceeding" if "he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding" (28 U.S.C. [sections] 455). "Financial interest," according to the statute, "means ownership of a legal or equitable interest, however small."

If criticism of this type is unwarranted, why did Justice Ginsburg feel no alarm when Democratic members of Congress assailed Justice Alito over a single Vanguard case where his pecuniary interest was far more tenuous? Again, it would seem the principle at stake is less than universally applied.

Any examination of whether Congress' acts are improper must rest upon the notion that they exceed the checks and balances enshrined in the Constitution. Surely a Supreme Court Justice is familiar with these provisions? The legislature is empowered to exercise the following checks upon Judicial power:

- Sole Federal Agency with the power to pass Constitutional amendments (by two-thirds majority and with the consent of three-quarters of the states)
- Power to determine the size and structure of the courts
- Power to determine the budgets of the courts

- Responsibility for confirming judicial nominees
- Power to impeach and remove judges
- Power to determine courts' jurisdiction (except Supreme Court's original jurisdiction)

Yet the specific measures under attack by Justices O'Connor and Ginsburg propose to exercise precisely these Constitutionally-allowed checks:

Sen. Charles Grassley R-Iowa, said last week that the judiciary wasn't doing enough policing of itself. His plan would create an inspector general to oversee federal courts including the Supreme Court. The inspector general would be directed to report any judicial misconduct to the Justice Department.

If Congress is empowered to impeach and remove Justices from office upon proof of bad conduct, how is it they may not act to investigate such conduct? Does Justice Ginsburg perhaps rely on the Judges to report their own misdeeds?

Ginsburg said her concerns were about the legislative branch setting up a so-called guardian for the judicial branch. She also said there have been discussions in Congress about limiting the scope of courts.

American Bar Association President Michael Greco asked Ginsburg what lawyers could do. She said attorneys can speak up and "say these efforts are wrong." Judges, she said, cannot lobby on their own behalf.

But is not Congress empowered to determine the jurisdiction, budgets, size, and structure of the courts? Ms. Ginsburg's objections to proposed Congressional action (which must, by the way, garner the support of a majority in both houses to survive) would appear to be sourced not in the Constitution she is charged to uphold, but in some reading of foreign law she declines to reveal to lesser beings who may not dare to question the Court's authority to police itself.

The Founders clearly intended for each branch to both defend itself from unjust encroachments and exercise its Constitutionally-granted powers in opposition to the other two branches, yet both Ginsburg and O'Connor seem to suggest the Judiciary is somehow immune to the limits placed on it by the very Constitution it is sworn to uphold. Furthermore, they apparently believe the least accountable and only unelected branch should have more power than those selected by the People. But this is an interpretation not supported by both Hamilton and Madison, who clearly intended the Judiciary to be the weakest of the three branches:

But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.

- James Madison, Federalist 51

Arguments like O'Connor's and Ginsburg's rely on the ignorance of the average American, but more alarmingly they represent the growing tendency of the Court to view itself as a law unto itself and of various factions to use the Court to circumvent the will of our democratically elected representatives. As a matter of legal ethics, mere lawyers are enjoined not to offer misleading arguments. How then is it proper for judges, who should be held to a higher standard, to proffer an argument in public which can only succeed if the hearer is ignorant of the very law those judges are sworn to uphold?

Posted by Cassandra at 07:46 AM | Comments (28)

April 12, 2006

The Wisdom Of Solomon II

_studentprotest_LA4.jpg This is a repost of a piece I wrote almost a year ago. Since then much has happened. In Rumsfield v. FAIR, our boy Judge Roberts laid the judicial smackdown on the sneering elite of America's legal faculty who, despite their erudition, proved unable to interpret the clear and unequivocal language of the First Amendment or to distinguish conduct from speech.

But that decision will avail us little if our colleges cower before mobs of violent and unruly students determined to force their will on others in defiance of the law.

We no longer defend our borders.

We no longer honor our flag.

We no longer enforce our laws.

Instead, we kowtow to the angry voices of an unruly mob. How long can our freedoms be secure in such a country?

Our rights are not guaranteed by lofty sounding words on a two hundred year-old parchment, nor by laws, nor the decrees of judges. Words have meaning, but it is deeds which must give them force. If we lack the will to defend our rights, they will quickly vanish leaving only the will of those determined to force their will upon us through sheer numbers or force of arms.

And in that case may God have mercy on us, for we have only ourselves to blame for our plight. We were born free, and left our children in chains.

CWCID to California Conservative (via Malkin) for the photo above.

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This fell sergeant, death,
Is strict in his arrest.

- Hamlet, Act v. Scene 2

We are a nation of words. Once we were a nation of deeds.

Words are easy: they flow forth like water, always on tap. With them we honor the fallen, pay homage to the brave, occasionally marvel at some act of heroism beyond our ken. With words that sound heartfelt, we say "we support the troops".

And as we talk, and talk, and talk, half a world away there is little talk, but only the heavy quiet of a now-silent battlefield. Two days ago, it was anything but silent:

The explosion enveloped the armored vehicle in flames, sending orange balls of fire bubbling above the trees along the Euphrates River near the Syrian border.

Marines in surrounding vehicles threw open their hatches and took off running across the plowed fields, toward the already blackening metal of the destroyed vehicle. Shouting, they pulled to safety those they could, as the flames ignited the bullets, mortar rounds, flares and grenades inside, rocketing them into the sky and across pastures.

Gunnery Sgt. Chuck Hurley emerged from the smoke and turmoil around the vehicle, circling toward the spot where helicopters would later land to pick up casualties. As he passed one group of Marines, he uttered one sentence: "That was the same squad."

Among the four Marines killed and 10 wounded when an explosive device erupted under their Amtrac on Wednesday were the last battle-ready members of a squad that four days earlier had battled foreign fighters holed up in a house in the town of Ubaydi. In that fight, two squad members were killed and five were wounded.

In 96 hours of fighting and ambushes in far western Iraq, the squad had ceased to be.

Every member of the squad -- one of three that make up the 1st Platoon of Lima Company, 3rd Battalion, 25th Regiment -- had been killed or wounded, Marines here said. All told, the 1st Platoon -- which Hurley commands -- had sustained 60 percent casualties, demolishing it as a fighting force.

Miles away in the land of their birth, another hard-fought battle was being lost at Columbia University:

On Friday, the university senate voted by a 53-10 margin, with five abstentions, against a resolution to re-establish an ROTC program on campus. Prominent in this roll call of dishonor was President Lee Bollinger, who voted against, and Provost Alan Brinkley, who gave an impassioned speech comparing the military's "Don't Ask, Don't Tell" policy to a campus organization that allowed "African-Americans to join . . . only if they pass for white." Oddly, Mr. Brinkley abstained from voting, suggesting he lacked even the courage of these convictions.

The university's decision was remarkable for two reasons. The first is that, though it has obviously escaped their notice, we are at war. Moreover, Columbia's student body had previously voted 2-to-1 to bring back ROTC. The second is a federal law called the Solomon Amendment, which prohibits schools from discriminating against military recruiters. If they refuse, they must forfeit federal funding.

America's elite universities have cloaked their hostility to our armed forces in the language of civil rights. They portray this as a principled stand against the military's legal policy of discharging homosexuals ("don't ask, don't tell"). It's an interesting stance, since these colleges booted ROTC off campus long before "don't ask, don't tell" became official policy:

As it is, the military's policy on gays wasn't the reason Columbia originally expelled ROTC in 1969. Rather, it was opposition to the Vietnam War and, once that was over, reflexive hostility to all things military. On other campuses, that hostility has abated in recent years, particularly after 9/11; Princeton, Cornell, Dartmouth and the University of Pennsylvania, among Ivy League schools, have ROTC programs, while Harvard University President Larry Summers has been outspoken in his advocacy for ROTC's return to Harvard.

Universities claim that this is a First Amendment issue: that by forcing them to grant access to military recruiters, Congress is forcing them to tacitly express approval for a policy they disagree with. As I argue here, this argument is preposterous:

Universities can and do sponsor a wide variety of speakers, some of whom (Ward Churchill comes to mind) advocate extreme and morally offensive points of view. Allowing or facilitating speech does not constitute official endorsement of a speaker's viewpoint. If it did, robust debate would be impossible as only one side of an argument can be 'endorsed' by an institution at a given moment in time.

This line of reasoning is made even more laughable when you consider that colleges vigorously resist any attempt by students, alumni, or tuition-paying parents to limit their freedom to hire speakers (an affirmative action that requires a school to first choose and then compensate a speaker for expressing a given viewpoint), yet see no hypocrisy in refusing to passively allow access to military recruiters; an act which, especially if compelled by federal law, can in no way be reasonably construed to imply approval or acceptance.

In a far away country, a company of Marine Reservists from Ohio, citizen-soldiers, have paid the ultimate price for the freedoms Columbia's professors now take for granted. They were very likely, like most Marines, plain-spoken men. Men of deeds, not words.

Their families and the few members of "Lucky Lima" who survived will never forget the awful price of freedom, even when it is purchased for someone else. They will never forget what it costs to keep us secure here in our comfortable homes. They do not need to be lectured about civil rights, they who paid the ultimate price to bring the most basic of rights to others.

Rep. Charles Rangel, a man I despise, has often complained that the burden of defending this country is shared unequally. He says that when this nation takes the field, it is a rich man's war and a poor man's fight. There is this much truth to what he says: the elite universities of this country are determined to keep their students out of the military. Some join anyway. How many more would join, if military recruiters were not barred from elite American campuses?

We live in an imperfect world. During World War II, blacks and Asians and yes, even homosexuals were discriminated against in ways we would find unthinkable today, yet they answered the call of their country and defended it bravely. Opinions on the wisdom or rightness of "don't ask, don't tell" will vary, yet one thing is for certain: America needs the best and brightest to secure her future. She needs officers of the highest caliber to lead and train and inspire. And that burden should not be born only by those unable to afford an Ivy League education.

In defying the law of the land and by their refusal to support her armed forces, America's colleges send a disturbing message to those who defend her borders: "Our support of the troops is but lip-service, for when it comes time to take up arms, we take refuge in freedoms paid for with your blood".

Words are expensive. Freedom is expensive. How long will America's elite universities talk, and talk, and refuse to pay the bill?

UPDATES at Columbia:

The Columbia Spectator endorses the return of military recruiters and ROTC to Columbia in an excellent editorial called Opportunity Disguised.

Columbia adds military to its list of protected groups that cannot be subjected to discrimination or “discriminatory harassment”. (Now if we just enforced the law, would this even be necessary? But I digress.)

Thanks to Eric C. for the updates.

Posted by Cassandra at 07:42 AM | Comments (16)

April 03, 2006

Moussaoui Verdict

And it couldn't have happened to a nicer guy...

A federal jury on Monday al-Qaida conspirator Zacarias Moussaoui eligible to be executed for his role in the Sept. 11, 2001, terror attacks.

More from CNN...

FoxNews account:

Zacarias Moussaoui may be put to death for his role in the Sept. 11, 2001, attacks that killed nearly 3,000 people, a jury found Monday. The jury will consider in a second penalty phase whether to recommend death or life imprisonment for the Al Qaeda devotee.

The sentencing phase for Moussaoui, who pleaded guilty to six terror-related conspiracy charges last year, will involve the testimony of victims' family members and could be protracted. U.S. District Judge Leonie Brinkema will consider the jury's recommendation and ultimately decide whether Moussaoui will be executed or spend the rest of his life in a federal prison.

The jury had to find that Moussaoui was responsible for at least one death in the attacks in order for him to be death-penalty eligible. The case is a precedence-setting one in modern U.S. history, in that Moussaoui was not convicted of having a direct role in the Sept. 11 attacks or plot.

Moussaoui pleaded guilty last April to conspiring with Al Qaeda to commit acts of terrorism, use weapons of mass destruction and other terror-related crimes. Originally considered the "20th hijacker" when he was charged in December 2001, the intelligence community has since come to believe Moussaoui had no direct role in the attacks.


Posted by Cassandra at 04:16 PM | Comments (3)

March 31, 2006

More GestureGate

Dahlia Lithwick on GestureGate:

The editors at the Boston Herald then tried to amend their pleading, styling the late filing as within their right to "get the last word." Obliquely referencing the Fiore dissent, the Herald conceded that the gesture at issue may not have been obscene, but added—in what is surely dicta—"Maybe so, but it's still not something you'd do to your mother." They appended to the record the photographic evidence of the gesture in question and the testimony of the photojournalist who snapped the shot, to wit: "The judge paused for a second, then looked directly into my lens and said, 'To my critics, I say, 'Vaffanculo.' " The Herald helpfully translates, "(expletive) you."

Some folks on the political right are already in raptures about Scalia's "rare clarity." His kiss-off is even being spun, amazingly, as a justified response to an insulting attack on his religious beliefs. Scalia is once again the victim, it seems, of cunning liberal attempts "to make him into news." He is being stalked and baited by the liberal media in the hopes that he will say something that will result in a demand for his recusal in future cases. My God, but we liberal journalists are cunning bastards. We just won't stop hitting poor Scalia's fist with our enormous, spiteful chins.

Not exactly. You "liberal journalists" (your term, not mine), by the very questions you ask, betray your profound ignorance of our Constitutionally-guaranteed freedoms and your narrow-minded intolerance with every word you speak.

Let's look at the question that provoked this whole kerfuffle:

Smith was working as a freelance photographer for the Boston archdiocese’s weekly newspaper at a special Mass for lawyers Sunday when a Herald reporter asked the justice how he responds to critics who might question his impartiality as a judge given his public worship.

The last time we checked, the Constitution was quite clear on this point:

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

As dearly as some in the Democrat Party would love to be able to ignore the Constitution and make devout Catholicism a disqualifier for public office, there are still laws which prevent discrimination against people of faith in the United States. In light of Justice Scalia's oath to uphold the Constitution, the half-vast editorial staff, though we are more likely to be found worshipping at Our Lady of St. Mattress upon Springs on Sunday morn than celebrating the Holy Eucharist, finds the judicious use of ‘Vaffanculo’, whether or not it was in fact uttered, a not altogether unfitting riposte to a rather obscene suggestion.

In fact, we think the Founding Fathers, no slouches themselves when it came to standing up for their rights, might have cracked a smile or two.

Posted by Cassandra at 07:42 AM | Comments (5)

March 22, 2006

The Slippery Slope To Dictatorship

bob.jpg We may have celebrated too soon: CBWSTGJR may yet have cause to regret our support for the dashing young jurist with the impeccible taste in china patterns. Via that peripatetic buffet of manliness, we learn that a small group of extremists are once again trying to foist their narrow-minded world view on the rest of us.

We'll just bet you thought we were about to go off on another rant about judicial activism, didn't you? Well shame on you.

Because retired SC Justice Sandra Day O'Connor, may a lock of her silvery hair be enshrined in imperishable crystal forever as a token of America's great loss, has courageously come forth from hiding (you do know she was whisked off by the Secret Service to an undisclosed location after being threatened by a post in an Internet chat room, don't you?) to issue a stern warning to those who would threaten the basic freedoms we Americans hold dear:

Now that she's left the Supreme Court, Sandra Day O'Connor has a few things to get off her chest. One of the first was to warn that the nation could slide into dictatorship if harsh critiques of the judiciary – from the likes of Texas Sen. John Cornyn and Rep. Tom DeLay – go unanswered.

"We must be ever-vigilant against those who would strong-arm the judiciary," she said this month at a Georgetown University conference on corporate law. "It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings."

As a woman, I must say I'm just thrilled to see Ms. O'Connor demonstrate the sense of caring and concern for others that only women can bring to the bench - no doubt her well-considered, soothing words will go far to heal the partisan divisions that seem to be tearing this nation apart.

And it's so refreshing to see her avoid damaging gender stereotypes like the pervasive notion that women can't take the heat of modern-day political infighting. O'Connor's vocal advocacy of women's issues, combined with Justice Ginsburg's lucid and irrefutable legal rationale for using international law to interpret the Constitution, ("we can learn from others," "we can join hands with others, "we should "share our experience") present a compelling case for appointing more women to the federal bench.

But on to more important matters.

It appears that yet another of our Constitutional rights is under assault. If this isn't a crushing refutation to the dangerously extremist theory of originalism, I don't know what is:

History fails to attribute to patriot Patrick Henry the statement "Give me sex toys or give me death," so therefore it's not surprising that the legal battle continues over whether the right to obtain and use appliances intended for sexual gratification is included within the liberty protected under the U.S. Constitution.

Another case of the Founding Fathers being asleep at the wheel. Oh well, I'm sure some smart person has a theory in his hip pocket to deal with this national emergency.

Posted by Cassandra at 06:41 AM | Comments (3)

March 20, 2006

*Sigh*

Judge Richard Posner today in US v. Burton (CWCID, HBashman):

Contrary to popular belief, the Fourth Amendment does not require that a search be based on probable cause to believe that the search will yield contraband or evidence of crime. The amendment requires that warrants be based on probable cause, but forbids only unreasonable searches. What is unreasonable depends on circumstances, including how intrusive the search is—how costly, in other words, to the person searched.

There is a big difference between police ransacking a house in a search for evidence and stopping a pedestrian and asking him whether he’s seen a fleeing man in a Santa Claus costume. Even though “approaching a person on the street (or at work, or on a bus) to ask him a question causes him to stop for at least the time needed to hear the question and answer (or refuse to answer, the curtailment of the bystander’s mobility, privacy, and peace of mind is so slight that neither probable cause nor reasonable suspicion is required to justify the police action. No suspicion at all is required in such a case, or is present if the person stopped really is a bystander—the police do not suspect the bystander of being the Santa Claus imposter. The intermediate case is the Terry stop, that is, a stop and frisk; since people are averse to being frisked, the courts require reasonable suspicion, except in special circumstances, such as airport searches.

The principle that emerges from the cases is that the less protracted and intrusive a search is, the less suspicion the police need in order to be authorized by the Fourth Amendment to conduct it, and vice versa. As we explained years ago in United States v. Chaivez, It is “common sense that if the Fourth Amendment is intended to strike a balance between the interest of the individual in being left alone by the police and the interest of the community in being free from the menace of crime, the less the interest of the individual is impaired the less the interest of the community need be impaired to justify the restraint.”

Consideration of the extent of intrusion abounds in modern Fourth Amendment doctrine. Stops that do not entail detention need not be justified by any suspicion. Searches incident to arrest may be justified by the reduced marginal intrusion of searching a defendant already in custody. The Court based Terry itself on the fact that a protective search is a “brief, though far from inconsiderable, intrusion upon the sanctity of the person.”

Recently the Court upheld automobile checkpoints where the police made stops without any individual suspicion, in part because of the minimal “intrusion resulting from the brief stop at the sobriety checkpoint.” . . . The scale extends in both directions. If an intrusion is greater than a traditional arrest, probable cause is not enough. These cases describe a continuum in which the necessary degree of confidence increases with the degree of intrusion. A “stop” without limiting the suspect’s freedom requires no suspicion; a brief detention calls for reasonable suspicion; an arrest requires probable cause; invasive techniques such as surgery require more.

What if the intrusion lies somewhere between Terry and arrest, neither a “brief, investigatory” stop nor a traditional arrest, where the defendant is handcuffed, trundled into a paddy wagon, carted to
the station, fingerprinted, and held in a 12’ x 8’ cell?

One answer would be to deny that there is a “between” —to insist that all encounters must be either Terry stops or arrests. Yet circumstances defy such simple categorization, and if a line must nonetheless be drawn it will be arbitrary, with nearly identical cases
on opposite sides. Trying to force a continuous world into two categories is not only impossible but also unnecessary when the text of the Constitution calls for inquiry into “reasonableness”. Why abandon the search for reasonableness when the intrusion falls between arrest and stop?

I can't help but contrast this with the words of Justice Black in Katz v. US:

The Fourth Amendment says that
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The first clause protects "persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." These words connote the idea of tangible things with size, form, and weight, things capable of being searched, seized, or both. The second clause of the Amendment still further establishes its Framers' purpose to limit its protection to tangible things by providing that no warrants shall issue but those "particularly describing the place to be searched, and the persons or things to be seized." A conversation overheard by eavesdropping, whether by plain snooping or wiretapping, is not tangible and, under the normally accepted meanings of the words, can neither be searched nor seized. In addition the language of the second clause indicates that the Amendment refers not only to something tangible so it can be seized but to something already in existence so it can be described. Yet the Court's interpretation would have the Amendment apply to overhearing future conversations which by their very nature are nonexistent until they take place. How can one "describe" a future conversation, and, if one cannot, how can a magistrate issue a warrant to eavesdrop one in the future? It is argued that information showing what [389 U.S. 347, 366] is expected to be said is sufficient to limit the boundaries of what later can be admitted into evidence; but does such general information really meet the specific language of the Amendment which says "particularly describing"? Rather than using language in a completely artificial way, I must conclude that the Fourth Amendment simply does not apply to eavesdropping.

...With this decision the Court has completed, I hope, its rewriting of the Fourth Amendment, which started only recently when the Court began referring incessantly to the Fourth Amendment not so much as a law against unreasonable searches and seizures as one to protect an individual's privacy. By clever word juggling the Court finds it plausible to argue that language aimed specifically at searches and seizures of things that can be searched and seized may, to protect privacy, be applied to eavesdropped evidence of conversations that can neither be searched nor seized.

Few things happen to an individual that do not affect his privacy in one way or another. Thus, by arbitrarily substituting the Court's language, designed to protect privacy, for the Constitution's language, designed to protect against unreasonable searches and seizures, the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court's broadest concept of privacy. As I said in Griswold v. Connecticut, "The Court talks about a constitutional `right of privacy' as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the `privacy' of individuals. But there is not." I made clear in that dissent my fear of the dangers involved when this Court uses the "broad, abstract and ambiguous concept" of "privacy" as a "comprehensive substitute for the Fourth Amendment's guarantee against `unreasonable searches and seizures.'"

The Fourth Amendment protects privacy only to the extent that it prohibits unreasonable searches and seizures of "persons, houses, papers, and effects." No general right is created by the Amendment so as to give this Court the unlimited power to hold unconstitutional everything which affects privacy. Certainly the Framers, well acquainted as they were with the excesses of governmental power, did not intend to grant this Court such omnipotent lawmaking authority as that. The history of governments proves that it is dangerous to freedom to repose such powers in courts.

Yeah, I know. More flogging of dead equine flesh. Perhaps we should take the advice of Justices O'Connor and Ginsburg and adopt the enlightened law enforcement approaches of our cousins across the pond. After all, that original text is so dry and boring.

The Constitution is a living document and there is so much we can learn from each other if we just remain humble and above all, avoid being judgmental.

Posted by Cassandra at 03:13 PM | Comments (0)

March 18, 2006

The Arrogance of Ruth Bader Ginsburg

The half-vast editorial staff are shocked... shocked we tell you, to learn that Justice Ruth Bader Ginsburg, that ardent champion of progressive and enlightened values, has been marginalizing her ideological opponents and treating them as Other. Apparently the touching humility Ms. Ginsburg advocates ("we can learn from others," "we can join hands with others," we should "share our experience") applies only when dealing with tolerant and progressive nations like France:

Supreme Court Justice Ruth Bader Ginsburg assailed the court's congressional critics in a recent speech overseas, saying their efforts "fuel" an "irrational fringe" that threatened her life and that of a colleague, former justice Sandra Day O'Connor.

She then quoted from what she said was a "personal example" of this: a Feb. 28, 2005, posting in an Internet chat room that called on unnamed "commandoes" to ensure that she and O'Connor "will not live another week".

From this, we are to understand that anyone who disagrees with Ms. Ginsburg's judicial philosophy should refrain from saying so because it might encourage some deranged nut to grab an Uzi and begin mowing down Supreme Court Justices? Let's explore that thought. Perhaps environmentalists should just pipe down and stop trying to pass laws to limit logging. After all, this sort of thing just encourages eco-terrorists who spike trees.

Tempting as it was to take on Ms. Ginsberg's false conflation of speech with murder threats, this morning's coffee snorter (via Bashman) was a Richmond Times-Dispatch op-ed that rather thoroughly took the errant Justice to the woodshed:

Many people have disputed the idea that Justices should base their rulings on cues from foreign countries rather than the American Constitution. Ms. Ginsburg noted that one of them was Roger Taney, in his infamous Dred Scott decision. (Because Taney was wrong about slavery, and he also believed that 2 + 2 = 4, we evidently must conclude that mathematical equation also is incorrect.) She pointed out that defenders of Apartheid in South Africa, where she gave her talk, resisted calls from abroad to end the segregation system. Oh, and Justice Antonin Scalia disagrees with her, too. Those people are all alike.

Ms. Ginsburg's thinly veiled attempt to establish guilt by association is a shopworn technique. It was exploited most famously by Joseph McCarthy to intimidate those who disagreed with him. Joseph Stalin also used guilt by association to send potential resisters of Soviet Communist tyranny to the gulag. Recently an Italian commission concluded that the Soviet Union was behind the attempt to assassinate Pope John Paul II.

We are not, of course, in any way suggesting that people who share Ms. Ginsburg's approach are McCarthyite Communist mass-murdering anti-Catholic plotters of papicide. We wouldn't stoop to that level.

Ed Whelan has more on Ms. Ginburg's rather creative use of "logic" to characterize anyone who disagrees with her as some sort of lunatic extremist. In an April 2005 speech in which she extols the value of "comparative dialogue - on sharing with and learning from others", Ms. Ginsburg airily dismisses those who disagree with her viewpoints as racist extremists "frozen in time". Whelan comments:

The rhetorical centerpiece of Ginsburg's speech is a crude attack against originalists — those who adhere to the original understanding of the Framers' Constitution and of the various amendments to it. Here's the structure of her illogic:

(1) Chief Justice Taney in Dred Scott stated the originalist principle that no "change in public opinion or feeling . . . in the civilized nations of Europe or in this country should induce the [Supreme Court] to give to the words of the Constitution a more liberal construction . . . than they were intended to bear when the instrument was framed and adopted."

(2) This statement of originalist orthodoxy, Ginsburg asserts, is "extreme."

(3) Notwithstanding the fact that the Civil War and the post-Civil War Amendments reversed Dred Scott, Chief Justice Rehnquist and Justices Scalia and Thomas somehow continue to share Taney's "extreme" position that constitutional rulings should not be based on foreign developments. With this glaring non sequitur, Ginsburg absurdly insinuates that the [originalist] position espoused by her three colleagues has some special kinship with [the racist legacy of] Taney and Dred Scott.

Taney's opinion in Dred Scott is deservedly infamous, but not because of its recitation of originalist orthodoxy. Besides its overt racism, the main legal defect in Taney's opinion is that, while pretending to be faithful to originalist principles, it in fact marked the Court's first use of the modern judicial activist's favorite tool, "substantive due process," to invalidate a statute — the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories. Notably, the dissenters in Dred Scott invoked and properly applied the very originalist principles that Ginsburg finds abhorrent: "I prefer the lights of Madison, Hamilton, and Jay, as a means of construing the Constitution in all its bearings," wrote Justice McLean. "[I]f a prohibition of slavery in a Territory in 1820 violated this principle of [due process], the ordinance of 1787 also violated it," explained Justice Curtis in exposing Taney's deviation from originalism.

But this type of hyperbole and false equivalence is nothing new from the tolerant Left. Under the guise of inclusivity and humililty, they espouse behavior antithetical to these values: the suppression of opposing ideas. It must be noted that their ardent defense of diversity and tolerance extends only to those viewpoints which support their own. But then if one believes the end justifies the means, using judicial fiats to subvert the democratic process is nothing to be ashamed of:

In attacking originalism as "frozen in time," Ginsburg slights the genius of the Framers in setting up a system in which the people, through their elected representatives and within the broad bounds established by the Constitution, adapt the laws to changing times. She claims that judges "honor the Framers' intent 'to create [sic] a more perfect Union'" when they rewrite the Constitution to comport with their own understandings of the needs of the day. But it is "We the People of the United States," not judges, to whom the Constitution looks to "form a more perfect Union."

Justice Ginsburg's arrogant distain for the facts may lead her to believe it's fine to snooze through oral arguments, but she's liable to have a rude awakening if her own logic is applied against those on the Left who agree with her. There have been no end of death threats against the President since he took office five years ago.

Perhaps Justice Ginsburg thinks anyone who disagrees with the administration should be silenced too? After all, all this dissent just encourages the whackos out there.

She ought to know.

Posted by Cassandra at 10:06 AM | Comments (3)

March 17, 2006

Roe v. Wade for Men: The Wrong Choice?

No matter your political affiliation, it is hard to think of a more divisive and distressing issue than abortion. It looms in the background of every political race, every judicial confirmation hearing; forcing candidates to walk a gauntlet between zealots on both sides of the issue.

During the Roberts hearings abortion assumed such importance that the old euphenism, "a woman's right to choose", no longer served to mask the disproportionate time and attention devoted to this single issue. And so Senators suddenly discovered a longstanding love for precedent and stare decisis. Surely no judicial nominee in the history of the United States has been so closely questioned on what remains a fairly entrenched judicial practice: that of letting settled matters lie. The notion that SCOTUS is the highest court in the land (and therefore is not bound by precedent in the same way as lower courts), or that most Americans would consider decisions like Dred Scott well reversed, was lost in a welter of Senatorial genuflection at the altar of judicial inflexibility.

Was all this fuss about abortion much ado about nothing? It begins to seem that, surprisingly, the answer to that question may be "no". The South Dakota legislature has thrown down a challenge to existing abortion laws and now another suit, dubbed Roe v. Wade for Men, challenges the idea that women should have all the "choices" when it comes to parental rights. It would appear Ted Kennedy's worst nightmares have come true: the Roberts Court is well on the way to chaining women to their Easy Bake ovens.

On first glance, the Dubay case appears to have some merit. After all, as I have noted before, there is little doubt that the status quo regarding parental "choice" and responsibility is unfair to men:

As we are constantly reminded, the abortion debate is all about something called reproductive choice. Of what does this reproductive choice consist? If a man and a woman, married or unmarried, conceive a child together, both are on the hook financially to support that child until he or she is grown. But there are rules. If the woman decides to rid herself of a fetus that she does not want, but the man does, she may kill it and this is perfectly legal. If the man decides to rid herself of a fetus that he does not want (perhaps by slipping her an abortifact that does not otherwise harm her), but the woman does, this is murder and he will go to jail.

Thus, two utterly contradictory things occur at the moment of conception:

Legally, from the point of view of a woman: the fetus is a lump of tissue which may be excised at will if she subsequently regrets having conceived a child. It imposes no obligation or legal duty unless she chooses to accept it.

Legally, from the point of view of the man: the fetus is a human being which must be allowed to live, even if he subsequently regrets having conceived a child. It imposes an absolute and irrevocable legal duty, regardless of his wishes in the matter.

In other words, if you have a y chromosome you have no reproductive choice. Except, of course, to pay at least a half-share of whatever "choices" your sexual partner may make, whether you are married or single - it makes no difference. When one considers that women can have multiple orgasms (and that ours generally last longer), something tells me men are getting the short end of the stick.


Framed in this way, the conclusion seems inescapable: there can be no rights without responsibilities. Despite the overheated rhetoric of abortion advocates, the vast majority of abortions occur, not as a result of rape or incest, but from simple failure to exercise responsibility. Women are not helpless children: they possess an ability to prevent conception that is equal, if not greater, to that of their male partners. Why, then, does the law confer on them the sole right to evade their parental responsibilities once a child has been conceived?

It's a good question. Unfortunately, advocates of Roe for Men have subscribed to the same error as their supposedly "pro-child, pro-choice" opponents. In their unseemly squabble about who should have to pay the awful price of parenthood after they both failed to act like responsible adults, both Mom and Dad are once again ignoring the one person who never had a choice in the matter: the child.

Dubay's case is an interesting one:

Dubay says he has been ordered to pay $500 a month in child support for a girl born last year to his ex-girlfriend. He contends that the woman knew he didn't want to have a child with her and assured him repeatedly that -- because of a physical condition -- she could not get pregnant.

Dubay is braced for the lawsuit to fail.

"What I expect to hear [from the court] is that the way things are is not really fair, but that's the way it is," he said in a telephone interview. "Just to create awareness would be enough, to at least get a debate started."

State courts have ruled in the past that any inequity experienced by men like Dubay is outweighed by society's interest in ensuring that children get financial support from two parents. Melanie Jacobs, a Michigan State University law professor, said the federal court might rule similarly in Dubay's case.

Sadly, Mr. Dubay makes a poor representative for men's reproductive choice. Like the pro-choice movement he opposes, Mr. Dubay wants to have it both ways. In his mid-twenties, this well-educated professional wanted to have sex with a woman he wasn't married to and leave the hassle of preventing pregnancy entirely up to her. Living, apparently, in some impenetrable cocoon where TV, newspapers, and magazine articles could not warn him of impending doom, he remained blissfully unaware that doctors are sometimes wrong about women's fertility and [surprise!] women sometimes get pregnant even if they use contraception or their partners don't want a baby. All he wanted was a good time without responsibility, and now a promising life could well be ruined by the horrendous prospect of paying $500 a month for the next 18 years. A few boxes of condoms would have been a far cheaper alternative, but that was a "choice" Mr. Dubay was deprived of by society and an uncaring Bush administration... not.

Faced with the disturbing notion that actions have consequences, Mr. Dubay immediately lighted on what has become the Great American Pastime: con law litigation. The pretext for his case is even more laughable than that used in the recent Solomon Amendment debacle. Invoking the Equal Protection Clause, Mr. Dubay's argument is, apparently, that the Constitution should protect him against his own failure to exercise responsible birth control:

The gist of the argument: If a pregnant woman can choose among abortion, adoption or raising a child, a man involved in an unintended pregnancy should have the choice of declining the financial responsibilities of fatherhood. The activists involved hope to spark discussion even if they lose.

"There's such a spectrum of choice that women have -- it's her body, her pregnancy and she has the ultimate right to make decisions," said Mel Feit, director of the men's center. "I'm trying to find a way for a man also to have some say over decisions that affect his life profoundly."

"But", some will undoubtedly say, "the penumbral right to privacy in Roe does just that for women: it protects them against their own failure to prevent unwanted pregnancies!". And this is undoubtedly true.

But do two wrongs make a right? And once again the question must be asked, what about the interests of the child? And that is the heart of the matter, for Dubay's case really amounts to no more than "If my ex-girlfriend can get out of her responsibilities, why can't I?". He wants to punish an unborn child for daring to inconvenience him. He rationalizes this by saying her Mother had more "choices" than he did, and this is undoubtedly true. But we deal with life as it is, not as we'd like it to be and one thing is certain in all of this: both Matt Dubay and his girfriend had chances to shape their future.

Their unborn child has none.

The flaw in Dubay's suit is that it raises abortion as a red herring in what is essentially a paternity suit. Strangely, his suit does not challenge Roe as any true exposition of full "reproductive rights" for men must logically do, for therein lies the seed of his discontent: women may unilaterally "choose" whether a jointly-conceived child comes into the world and men may not. But unless and until Roe is overturned, a real child results from a woman's "choice" not to terminate her pregnancy and that child has two parents, each of whom had a chance to prevent its conception. That one partner had one more chance than the other is largely irrelevant to the question of legal responsibility, enticing as the prospect of slaying judical gnats with a rolled-up Constitution must be to organizations like The National Center for Men.

Dubay's suit asks a valid question: is Roe equitable under the Constitution, but questions the wrong premises:

"Roe says a woman can choose to have intimacy and still have control over subsequent consequences," he said. "No one has ever asked a federal court if that means men should have some similar say."

"The problem is this is so politically incorrect," Feit added. "The public is still dealing with the pre-Roe ethic when it comes to men, that if a man fathers a child, he should accept responsibility."

The right question is, as disturbing as it sounds, is this: given that both parents can prevent a child from being conceived, why do we allow either one to walk away from a failure to exercise their responsibilities? Roe, a decision that even liberal justices like Ruth Bader Ginsburg have said is bad law, removed that thorny question from public debate and allowed us to sweep it - and the ugly consequences of sexual immaturity and irresponsibility - under the carpet for far too long. Actions have consequences. It is time for society, as well as men and women who engage in unprotected sex, to do its duty and wrestle this issue to the ground.

I make no bones about being rather reluctantly pro-choice (though I find that term dishonest in the extreme), yet I believe this is one "choice" society can no longer duck. It's long past time for America, both its men and its women, to grow up and face the very real consequences of the sexual revolution.

Posted by Cassandra at 07:47 AM | Comments (20)

March 16, 2006

Thing Me A Thad, Thad Thong Offither....

The half-vast editorial staff finds itself simply speechless (well all right, no one really believes that, but humor us...) at this disturbing bit of news via How Appealing:

A group of young men who stripped down to thong underwear and formed a roadside pyramid to stage a protest when President Bush was visiting Lancaster County in July 2004 have lost their civil rights suit against the Pennsylvania state troopers who arrested them.

The protesters claimed in the suit that they were attempting to recreate one of the infamous photographs of abuse in the Abu Ghraib prison in Iraq, and that their simulation of nudity was therefore essential to their message.

But U.S. District Judge Paul S. Diamond found that the troopers had probable cause to arrest the protesters for “open lewdness” because they “appeared to be entirely naked” and “the thin material of their tight-fitting thongs unmistakably displayed the contours and movement of their genitals.”

Honestly, we don't know what is up with these dangerously activist judges. Personally we can see all sorts of public policy reasons for encouraging such vigorous demonstrations of an active and engaged Left.

On the otter heiny, we find this sort of thing way too disturbing.


Posted by Cassandra at 06:47 AM | Comments (3)

March 15, 2006

More Solomon Amendment

Via David Bernstein, this extremely amusing NYT analysis of why the nation's 'best and brightest' legal minds lost the Solomon Amendment case:

...if the result was not embarrassing enough, there was also the tone of the court's unanimous decision, written by Chief Justice John G. Roberts Jr. In patient cadences, the kind you use in addressing a slightly dull child, the chief justice explained that law students would not assume that their schools supported the military's "don't ask, don't tell" policy if they saw military recruiters on campus.

"High school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so," he wrote. "Surely students have not lost that ability by the time they get to law school."

Far be it from the HVES to say we toad you so, but apparently Ted Kennedy was right to warn us about the dangers of a Roberts Court. Our new Chief Justice appears to have eschewed the oppression of hapless arroyo amphibians for far easier pickings: Juris Doctoris IvyLeaguensia.

And to think we said nothing when they came for Angie Hedgepeth and her french fry. Now the Roberts Court wants to quarter troops in your home and steal your cornflakes too.

We must thank the Times, however, for gifting us with this morning's coffee-snorter, the Clueless Law Professor Theory:

Peter H. Schuck, a Yale law professor who thought the law schools' legal position was misguided, said that many professors were so indignant about the military's treatment of gay men and women and so scornful of the military itself that their judgment became clouded.

"There is often a feeling that if something is morally wrong it must be legally wrong and that clever arguments can bring those two things into alignment," Professor Schuck said.

The elite law schools have for decades been overwhelmingly liberal, Professor Schuck said, and that may have blinded professors to problems with their arguments. Only one law school brief, organized by members of the faculty of George Mason University School of Law, supported the military.

"If you put together a Vietnam legacy, a gay rights ideology, the idea that courts can solve all problems and the legal academy's echo chamber, you get this result, " said Joseph Zengerle, an adjunct professor at George Mason who helped write the brief.

That Other VC's Bernstein comments:

The most bizarre aspect of the whole litigation, in my opinion, was that the Third Circuit opinion ruling for the law professors failed to discuss or even cite the case most obviously on point, Grove City College v. Bell, which held in rather conclusory language that Congress has rather wide authority to encourage universities via threats of withholding funding to follow federal policy, even if direct legislation on such issues would violate the schools' First Amendment rights. It was as if the Third Circuit majority decided that conditional federal funding was okay when it operated in the interest of "civil rights," as in Grove City, but not when it was not in the interest of "civil rights" as in the FAIR litigation. In fact, however, as I've noted before, the Solomon Amendment was modeled directly after Title IX, the antidiscrimination provision at issue in Grove City. Instead of being forced to adhere to rules designed to ban discrimination against women, Solomon required law schools to adhere to rules designed to ban discrimination against military recruiters. No amount outrage over what is seen as Congress' moral obtuseness in analogizing discrimination against women to discrimination against military recruiters could obscure the fact that if the federal government could threaten Grove City College's funding for refusing to follow federal antidiscrimination dictates, it could do the same to Yale and Harvard.

More on that in this excellent piece by Mr. Bernstein, which ends with the prescient warning:

With the Solomon Amendment, liberal activists are learning the old lesson that whatever power you give the government to do things for you carries with it the equivalent power to do things to you.

Indeed...

Posted by Cassandra at 07:48 AM | Comments (4)

March 10, 2006

Legal News You Can Use

This is clearly a travesty of justice. I blame the patriarchy. This is obviously just another example of the Bush administration's War Against Womyn**.

**what’s really going on under the surface: The Patriarchy’s secret battle-plan calls for the complete annihilation of womyn. And once we’re all dead, we’ll be made into slaves.

UPDATE: Now *this* is Progressyve.... just the kind of active, engaged Left I've been hoping to see more of.

Posted by Cassandra at 07:23 AM | Comments (0)

March 09, 2006

The Roberts Court: An Early View

A spate of recent articles notes a disquieting lack of rancor on the Roberts Court. Is this the radical, out-of-the-mainstream jurisprudence we were warned about during the Roberts confirmation hearings?

Chief Justice John G. Roberts Jr., in less than six months as leader of the Supreme Court, has turned the famously quarrelsome justices, at least for now, into a surprisingly agreeable group that is becoming known for unanimous rulings.

Monday's decision rejecting a free-speech challenge to having military recruiters on college campuses marked the ninth consecutive ruling in which all of the justices agreed.

Oh do tell. In all fairness, though the Roberts Court has issued an unusual number of unanimous opinions (21 vs. 10 last year), the judicial honeymoon is not expected to last into the late session when more contentious cases traditionally hit the docket. Be that as it may, several of the court's early decisions have surprised observers:

The justices have joined to find compromise solutions in several cases. In others, they have found they could agree on a legal result, even if it did not fit a liberal or conservative mold.

And to a surprising degree, the justices — both liberal and conservative — have resisted the temptation to write dissents.

In a recent abortion case from New Hampshire, conservative Justices Antonin Scalia and Clarence Thomas signed on to an opinion that quoted Roe vs. Wade and said states could not restrict access to abortions when the health of the mother was at stake. The ruling revived a state law that requires minor girls to notify their parents before having an abortion.

Last week, in another abortion-related ruling, liberal Justice Stephen G. Breyer wrote the opinion saying that racketeering laws did not extend to abortion protests, even if they turned violent.

Two weeks ago, Roberts spoke for the court and gave a mild rebuke to the Bush administration for its refusal to allow a small Brazilian sect in New Mexico to serve hallucinogenic tea at religious services.

Within the court, this was known as the "high tea" case. But his opinion made an important statement about religious liberty. Federal authorities cannot infringe on religious practices unless they have a truly compelling reason for doing so, Roberts said.

So how has the new Chief Justice brought about comity and compromise on an oft-contentious Court? The half-vast editorial staff of VC, in its half-vast legal wisdom (gleaned from infrequent conversations with brilliant legal minds and a firm dedication to eschewing formal legal education of the type that caused the brightest minds of this nation to so tragically mistake the Court's intent in Solomon ) believes the answer can be found in the only legal philosophy Judge Roberts owned to during his confirmation hearings: judicial restraint.

The First Amendment Center finds support for this view in the Solomon case. Roberts deftly crafted a narrowly tailored ruling that carefully laid out potentially explosive First Amendment issues. His surgically precise summation made possible a remedy which aptly addressed the instant case without creating the kind of over-broad decision rightly feared by those on both sides of the political spectrum:

That kind of speech-celebrating sentiment, coupled with the formulation that the law at issue does not even regulate speech in the first place, may have been enough to draw in the likes of Justices David Souter and Stephen Breyer. During the arguments, Souter expressed concern about limitations on law schools’ speech rights, while Breyer on the other hand seemed to think that the law would in general promote more speech on campus — both by the military recruiters and those who object to the military.

In other parts of the ruling, Roberts listed other First Amendment doctrines that did not apply to the dispute at hand. The kinds of things law schools were required to do to comply with the law — such as alerting students about the time and place recruiters would be on campus — did not amount to coercing the universities to “speak the government’s message." Those speech-like activities are “plainly incidental” to the Solomon Amendment’s regulation of conduct, Roberts wrote.

As a result, he said the speech at issue is “a far cry” from, for example, laws compelling students to recite the Pledge of Allegiance, struck down in the landmark ruling West Virginia Board of Education v. Barnette.

As I explained earlier in this post, Roberts' restrained approach may also have done much to allay fears of the resurgence of that dread (if mythical) beast, conservative judicial activism:

Roberts also left untouched another line of cases involving government requirements that force one group to accommodate the unwanted message of another group — such as requiring a St. Patrick’s Day parade to include gay rights groups (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston) or requiring a newspaper to give aggrieved readers a right to reply (Miami Herald Publishing Co. v. Tornillo). In those cases, Roberts wrote, the unwanted message actually interfered with the speaker’s desired message.

This is reminiscent of his approach in Hedgepeth. A little judicial humility is not a bad thing, and one thing I have always liked about Roberts is his willingness to pass even on those matters with which he disagrees, if they lie within the purview of another branch of government. It is not up to SCOTUS to remedy all the ills of this vale of tears, and perhaps if they start realizing this startling fact, a few things will be returned to Congress and we can all get back to trying to govern ourselves instead of having nine Men in Black enshrine our future in imperishable stone forever.

Representative government.

What a concept.

Posted by Cassandra at 06:36 PM | Comments (0)

March 07, 2006

I Love My Big, Gay Judge

bob.jpg You go, girlfriend....

The half-vast editorial staff just knew we wouldn't regret our founding membership in the CBWSTGJR. And now our boy... err... girl... err....whatever has come through for us.

But then we always thought he was just fabulous. Our boy has laid the judicial smackdown on the elite of academia, who evidently are somewhat confused about what the Constitution has to say about speech:

Not just from Antonin Scalia, and not just from Clarence Thomas, rather, from a unanimous U.S. Supreme Court this week came the juicy rebuke to 36 law schools trying to bar military recruiters from their premises. The learned justices put the matter more elegantly, not to mention circumspectly, but basically they said to the law schools and law profs demanding to keep our government's recruiters at bay: Can't you guys read? Or is it that you don't want to?

The implications of the latter question lend poignancy to the case of Rumsfeld vs. Forum for Academic and Institutional Research (FAIR). [via spd rdr, another CBWSTGJR alumnus)

The legal factories demanding the right to protect students from exposure to the idea of a career in military justice thumb their noses at Main Street America. The Supreme Court had to settle this thing? Why couldn't common sense, tinged with some latent affection for our country, have done the job?

It's a good question. It's fairly remarkable when the nation's leading law schools receive this public a rebuke from a unanimous Court. It rather makes one wonder what our country's finest legal minds have been up to, when they can't summon up the correct answer to a seemingly elementary question like, "Doesn't freedom of speech imply the freedom to disagree with, express disapproval of, or even to hold points of view that may be repugnant to insular and overpaid law professors?".

Or perhaps these questions: "Is it possible for an institution of higher learning to accomodate divergent viewpoints?", "Having studied for three years at an elite school of law, shouldn't the students of Harvard, Yale, Princeton, Columbia, and other schools be able to spot a meretricious argument on its face and wrestle it to the ground?", and "If not, is it possible that they are wasting their money?" If the overprotective reactions of FAIR are to be believed, the answer, presumably, to all of the above was a resounding NO! Their students were presumed incapable of thinking for themselves.

At the merest exposure to "incorrect" ideas, they would crumble up and blow away: go over to the Dark Side, join the Enemy, grasp hands with Darth Rumsfeld and rule the universe as Father and Unrepentantly Heteronormative sons. Speaking with his usual dry wit, Our Boy heaped scorn on the ludicrous notion, advanced by both FAIR and some of the nation's brightest legal minds, that conduct somehow transmogrifies into speech when a military uniform enters the picture:

...writing for the court, Chief Justice John G. Roberts Jr. said that Solomon "neither limits what law schools may say nor requires them to say anything."

"Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy. . . . Nothing about recruiting suggests that law schools agree with any speech by recruiters and nothing in the Solomon Amendment restricts what the law schools may say about the military's policies," Roberts wrote.

The half-vast editorial staff found this particularly amusing since we ourselves expounded upon this theory several months ago here and here and here after reading on various learned blawgs what a preposterous argument it was.

This decision is bound to have far-reaching if not delicious effects on the Ivies. The weeping, wailing, and gnashing of teeth will be heard in the Land for aeons. The most interesting second-order effect is likely to be the wave of protests engendered by this "forced accomodation" of the hated military recruiter. The recent clash between a military student and protesters at Columbia was a object lesson in the intolerance shown by the so-called Tolerant Left, highlighting their complete distain for the free speech rights of others on federally-funded campuses. But those who long to suppress "diverse viewpoints" may have a few surprises coming. As Howard Bashman notes:

"Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds." At present, the Solomon Amendment allows institutions of higher education that are willing to forfeit federal funding to exclude military recruiters. Might the quoted language from today's U.S. Supreme Court ruling, which speaks of Congress's ability constitutionally to impose the access requirement directly, enable Congress to enact a new version of the Solomon Amendment mandating access for military recruiters that institutions of higher education could not refuse even if they were otherwise willing to turn down federal funding? The answer would seem to be yes.

An interesting prospect. Meanwhile, the WaPo is storming the ramparts:

The real problem, which this litigation has tended to obscure, is that the military, even while fighting two wars, continues to root out Americans who wish to help by maintaining a policy that bars anyone who is openly gay. It robs itself of much-needed talent by way of their humiliation and exposure while forcing those in uniform to hide who they are.

This would be distasteful even if their presence in the military posed some real problem. But there's no evidence of that. A combination of bigotry and inertia keeps the gay ban in place. Now that the military has proved it can constitutionally exempt itself from university nondiscrimination rules, Congress should decide whether it really wants a military that requires such an exemption.

Oh, we *do* love our big gay judge.

Posted by Cassandra at 08:51 AM | Comments (5)

March 03, 2006

The Court Was Shocked...Shocked, I Tell You

Hornby said that Reiner was deluding himself and called it a "bleak day" when a lawyer had to be sent to prison.

Like that's never happened before....

Posted by Cassandra at 08:36 AM | Comments (6)

February 28, 2006

NY TimesWatch: A Case About Nothing

More evidence that L'Affaire Plame is, as the half-vast editorial staff observed many moons ago, A Case About Nothing:

For months now, Fitzgerald has resisted turning over any documents that might show that Wilson's status was classified, or any assessment of the damage resulting from disclosure. At times, Fitzgerald has argued that he did not have the documents, that the documents were none of Libby's business, that the documents were irrelevant to the charges against Libby, and that he did not have any documents to show that Wilson's status was not classified, so that therefore Libby should assume that it was. Finally, in court Friday, Fitzgerald argued that it just does not matter one way or the other.

"Does the government intend to introduce any evidence of damage or her status?" Walton asked.

"We don't intend to offer any proof of actual damage," Fitzgerald responded, adding that he would have more to say on the subject this week in a sealed filing with the court.

Hmm... it must be super secret classified information...unlike the details of the NSA terrorist surveillance program, which the New York Times seeks to FOIA** from the DOD::

The Times wants a list of documents including all internal memos and e-mails about the program of monitoring phone calls without court approval. It also seeks the names of the people or groups identified by it.
The Times had requested the documents in December under the Freedom of Information Act but sued upon being unsatisfied with the Pentagon's response that the request was "being processed as quickly as possible," according to the six-page suit filed at federal court in New York.

David McCraw, a lawyer for the Times, acknowledged that the list of documents sought was lengthy but that the Pentagon failed to assert there were "unusual circumstances," [Such as, say, fighting a war] a provision of the law that would grant the Pentagon extra time to respond.

The Defense Department, which was sued as the parent agency of the NSA, did not immediately respond to the suit.

McCraw said there was "no connection" between the Justice Department probe and the Times' lawsuit.

Well gosh... there wouldn't be, would there?

Let's see: would this be the same outfit which broke the law in the first place by publishing information about a classified program rather than taking their concerns to the designated intelligence oversight committee as mandated by law?

The same organization which demanded an investigation into the "outing" of a "covert" agent which the federal government has even never bothered to prove was "covert"?

The same organziation which then supported the "right" of its own reporter to shield the "criminal leaker" from a grand jury investigation it had demanded? A reporter who, by the by, was never indicted by Mr. Fitzpatrick for her own 'misleading' statements or for obstructing said investigation?

Makes perfect sense to me.

**Verb-of-the-Day


Posted by Cassandra at 08:36 AM | Comments (2)

February 24, 2006

What Price Honor?

Good name in man and woman, dear my lord,
Is the immediate jewel of their souls:
Who steals my purse steals trash; ’t is something, nothing;
’T was mine, ’t is his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed.

- Othello. Act iii. Sc. 3.

Would you like your teenaged daughter's photo used with this article?

Four South Shore teenagers are packed into a new, parentally subsidized, white compact car, which is driving too fast down Route 53. They have plenty of gas, no homework, and a whole night to kill. The only problem is, they have no idea where they're going. It's vacation week, most of the popular kids from their high school are away on family vacations, and the social void left in that wake hangs over the speeding car like a humbling bad-hair day.

"There's never anything to do around here," complains Nicole, a pretty Keri Russell-look-alike riding shotgun and wearing a hooded Abercrombie & Fitch shirt. A chorus of amens (one "No shit" followed by a "Yeah, and it sucks") rises from the back seat. Thus bolstered, she goes on. "I mean, you know, tonight is, like, way worse and all that because there's really nothing to do. But there's never anything good or any fun. It's just like . . . uchh." She expels a sound that's half ennui, half disgust. "All we ever do is go hang out and get drunk, like, all the time, and, you know, hook up."

Hook up with whom? Boyfriends and girlfriends? "Not really . . ." she says, hesitating at first and turning to her peers for backup. "It's all pretty random. We just get together in small groups of kids and drink a lot and then hook up with whoever." Christine, a curly-haired pixie in the under-90 weight range, chimes in. "Sometimes we'll hook up for two or three months at a time with one person. But no one really ever goes steady. Dating is just really uncommon. No one wants that kind of responsibility, you know? Most of us just go out and get drunk and whatever — hook up at someone's house."

"Like the time I hooked up with Ryan," offers Christine. This earns her a wrinkle-nosed grin and a nod from Nicole. "Hey, I have to give you a big pat on the back if you hooked up with him," she says. "Because he is so hot."

As euphemisms go, "hooking up" is loaded and vague — not to mention ubiquitous. To the kids who use it, it can mean anything from sexual intercourse or oral sex to serious touching or just kissing. "No one I know considers oral sex to be sex at all," says Rob, a senior at an area private school who joins up with us later, after we crowd into a booth at a local restaurant for a snack. Dark-haired, clean-cut, and with high cheekbones, Rob looks the very picture of sweet innocence. "Oral sex just isn't what sex means," he says definitively, sounding distinctly reminiscent of Bill Clinton. "But I guess it's what hooking up can mean."

So what does Christine mean by it? "Oh, we didn't have sex," she says, shaking her brown curls slowly to add drama. "But we did come close. You know . . . ," she trails off deliberately. "Anyway, I don't think I could have sex with other people there."

"Like those two freshmen at the New Year's party that we walked in on?" asks Rob. "Remember that? They were totally going at it on the day bed, and we just walked in and they didn't care." He starts laughing. "And, meanwhile, this other girl was in the room, just using the phone, like, 5 feet away from them. Talking like they weren't even there. She didn't care at all. She was just, like, 'Whatever.'"

A District Court judge recently ruled that a teen whose photo was used by BostonMagazine.com to illustrate an article on teen sexuality was not defamed by the juxtaposition of her image with the racy article:

Stanton took issue with the fact that the article included a large photograph of her with four other students at a high school prom. Although Stanton was not mentioned anywhere in the article and the magazine's disclaimer included a statement that "the individuals pictured are unrelated to the people or events described in this story," Stanton claimed the juxtaposition of the photograph and the article "insinuated she was a person engaged in the activity described in the article."

Her suit alleged defamation and invasion of privacy, and Judge Saylor found both claims legally deficient.

Although Massachusetts courts have recognized a cause of action for intrusion into a person's "private sphere," state law does not recognize a cause of action for "false light" invasion of privacy, the judge said. Here, the plaintiff's failure to allege revelation of any private information doomed her privacy claim, he explained.

As for the defamation claim, the judge concluded that the defendant's disclaimer negated any defamatory connotations about the plaintiff, even though she was clearly identifiable in the photograph, the article contained potentially defamatory statements, and the juxtaposition of the article and photograph suggested that the plaintiff is sexually active.

This is an interesting case on many levels. I'm not sure what it says about both the law and societal mores.

There have been a couple of interesting discussions over at Grim's place lately. He wrote an interesting post about the concept of honor (to which I still owe him a reply), but he made two points that seem particularly applicable to this case:

We are talking about honor, though few use the word: about what kinds of things are honorable, and what are dishonorable, and who deserves to be considered a praiseworthy man....The average person seems not to understand the concept of honor at all...

And he is right. Few do seem to use, or even understand, the term anymore. When was the last time you saw someone - male or female - rise to defend a lady's honor? And is that a sign of progress, or a sign of our moral decay? Why is it that we are no longer prickly about our own honor; no longer quick to take offense when our reputations are impeached? Is the upright man (or woman, for that matter) hopelessly out of step with the modern world?

I would like to think that a young woman's reputation was so precious to her that it was still worth defending: that it was, in truth, this and not the lure of compensatory damages that set her on. And I can't help thinking that the judge was swayed by contemporary mores: by the thought that perhaps there was no "real harm" done here. Without knowing how much latitude judges have in these matters, I wonder if a more discerning jurist would not have dismissed the invasion of privacy case (which clearly lacked merit) but found for her on the defamation claim, yet awarded no damages?

Because it seems to me that notwithstanding the disclaimers, she was defamed. The vast majority of readers do not bother to read disclaimers, as BostonMagazine well knows. They were careless with the reputation of a young girl, and needlessly so. They could easily have used a professional model. Their negligence had the practical effect of casting her in a false light whether they intended that result or not, and as professionals they had sufficient experience to anticipate that result and prevent it. They simply did not care to.

This is one of those situations where money cannot make the plaintiff whole, but old-fashioned justice really demands that some price be exacted for the carelessness exhibited by the defendants, who robbed a young girl of that which enriched them not one whit, but made her poorer, indeed. I don't know how, other than making the magazine pay her legal fees, that effect can be accomplished without encouraging frivolous lawsuits? Considering her age, at the very least the judge might have ordered the magazine to publish a prominent clarification in their next issue. This might encourage them to be more careful the next time.

What value does society put on a young girl's honor? It would seem that nowadays, the answer is: no value at all.

Via Howard Bashman

Posted by Cassandra at 03:19 AM | Comments (24)

February 14, 2006

Don't Plame Me If This Backfires....

Former NY Times reporter Judy Miller may be getting more than she bargained for in court this week. Frustrated by her refusal to cooperate with his investigation into the Plame matter, special prosecutor Patrick Fitgerald has now subpoena'd her phone records:

In March 2005, Judge Sweet ruled that the government had not demonstrated that there were no alternative sources besides the phone records of the two reporters that would allow the investigation to proceed.

"This may be a case of be careful what you ask for," Mr. Fleissner said in court yesterday. "What that means is we should have subpoenaed the reporter directly."

Mr. Fleissner argued on behalf of the government that using phone records to identify a reporter's source is less intrusive than demanding that a reporter answer questions before a federal grand jury.

"The government acted on the premise that it's a lesser step," Mr. Fleissner said after court of the government's decision in the present case to seek records from the phone company rather than questioning reporters directly.

An attorney representing The New York Times, Floyd Abrams, rejected that argument. Mr. Abrams has called the government's request for weeks of phone records "overbroad" and said it would reveal the identities of dozens of sources of Ms. Miller and the second New York Times reporter involved, Philip Shenon.

"Telephone records are the extension of the journalist herself," said Mr. Abrams, arguing that telephone records deserve protection under the First Amendment. "Telephone records are the embodiment of the speech of the journalist."

That may be so, but the fact remains that had she simply complied with his original request, the government would not have needed to subpoena the phone records:

... Mr. Fleissner's warning to "be careful what you ask for" was viewed by some as a possible outline of how the government would proceed in future leak investigations.

"On a broader level it is a threat," Mr. Abrams said. "What he's saying is if you win maybe we will stop following a Mr. Nice Guy path. That is to say, maybe we won't go after phone records, we'll go after the journalists."

When are the media going to have to learn they cannot have their cake and eat it, too?

The media cannot demand the federal government punish parties who "leak" "secret information", then demand the "right" to shield the leakers from investigation.

They cannot refuse to answer reasonable questions and then fight subpoenas of their records in court.

One way or another, the questions they demanded are going to be answered. The only question is whether how long they are willing to go to jail before that happens.

Posted by Cassandra at 04:11 PM | Comments (1)

February 04, 2006

LA Times Thinks Child Molestion Not "Harmful"

More outright dishonesty from the mainstream media concerning a "woman's" right to choose. In an editorial piece ridiculously called "Spin the Bottle, go to Jail", the Times pompously intones:

IT'S HARD TO IMAGINE PARENTS who would want their teenage children arrested for confiding in a teacher or school nurse about French-kissing. Yet, taken to its extreme — and the Kansas attorney general is about as extreme as they come — that could happen under the contested interpretation of a wrong-minded state law.

The 1982 law prohibits sexual activity by people younger than 16 — even consensual activity between those that young. Intercourse isn't the only banned activity; practically anything beyond a chaste peck qualifies. It's hard to imagine what the Kansas Legislature intended by this, but it's doubtful lawmakers envisioned police raiding the back rows and balconies of movie theaters.

Among the more remarkable interpretations of the Times' opening salvo is the notion that the Attorney General is somehow wrong for trying to enforce a law that expresses the legislative intent of the citizens of Kansas. But according to the Times, anyone who considers a law "silly" ought to be free to disregard it - even those who are paid by the taxpayer to ensure compliance with the law.

But the Times really goes off the rails here:

Legally, the state of Kansas is staking out weird territory. Molestation has a predator and a victim. Under the Kansas teen-sex law, the predator is the victim and vice versa. The state law on reporting molestation specifies that the sexual act needs to have been harmful to the minor, giving doctors the leeway not to report a 15-year-old girl who seeks birth control because she's in a long-term relationship with her 18-year-old boyfriend.

It is difficult to imagine under what circumstances an unwanted pregnancy and a subsequent abortion could possibly be considered "not harmful to the minor". But wait - it gets even better:

Kline argues that all sexual activity by those younger than 16 is by definition harmful and therefore subject to the reporting requirements. He is entitled to his personal opinion, but this smacks of prosecutorial overreach. On a practical level, Kline's apparent intent is to scare teenagers out of seeking birth control and abortions.

No, Kline does not argue this. He argues that sexual activity between a minor and someone over the age of consent is against the law and when an abortion results, the minor has, in fact, been harmed. Furthermore, the Times conveniently "forgets" to mention that girls as young as 10 or 11 have obtained illegal abortions from the targets of the Kansas AG's investigation.

By what stretch of the imagination can a 10 year old girl either give informed consent or be considered unharmed by a pregnancy and subsequent abortion?

The Times conventiently does not tell us, preferring to shield child molesters behind the convenient rallying flag of a "woman's right to choose".

Posted by Cassandra at 12:16 PM | Comments (5)

January 26, 2006

Scandal Of The Century: Where Was Nino?

Once again, an ABC exclusive has alerted right-thinking citizens to a potentially huge scandal brewing on SCOTUS:

At the historic swearing-in of John Roberts as the 17th chief justice of the United States last September, every member of the Supreme Court, except Antonin Scalia, was in attendance. ABC News has learned that Scalia instead was on the tennis court at one of the country's top resorts, the Ritz-Carlton hotel in Bachelor Gulch, Colo., during a trip to a legal seminar sponsored by the Federalist Society.

Not only did Scalia's absence appear to be a snub of the new chief justice, but according to some legal ethics experts, it also raised questions about the propriety of what critics call judicial junkets.

Orin Kerr wades in with the kind of hard-hitting incisive legal analysis we've all come to expect:

It remains unclear whether Justice Scalia will have to step down from the Supreme Court or face impeachment, as no Justice has ever missed a hearing as critical as a swearing-in ceremony before. Some scholars argue that having missed Roberts' swearing-in ceremony, Scalia lacks the qualifications to vote on cases heard by the Roberts Court. A group of law professors are rumored to be circulating a letter demanding that in light of Scalia's absence from the critical ceremony, Scalia's vote should now be ignored, and the vote of Justice Ginsburg (who was present) should be counted twice.

Sean has the video of ABC fulminating about the "ethics" of "who gets access to the justices, and why"? Scalia's absence back in DC, ABC assures us, did not go unnoticed.

This is a historic moment. The lamestream media have reached a level of DimWittery I had previously thought unattainable by mere mortals.

This event was scheduled well in advance of the Roberts swearing in ceremony, but according to ABC, Scalia should have simply cancelled at the last minute, leaving everyone who had incurred travel expenses and non-refundable reservations in the lurch. The other concern is that Scalia may have violated the non-existent SCOTUS code of ethics.

Stay tuned: perhaps ABC can get his impeachment hearings scheduled with W's. Maybe we'll have a double ceremony.

Posted by Cassandra at 08:41 AM | Comments (4)

January 20, 2006

Clarence Thomas: Lord Of The Nazgul

Heh...

It appears my original theory was correct after all. Avid legal conspiracy-theorists may recall that just after Gonzalez v. Raich, Jeff Rosen was flogging Justice Thomas as the Dread Lord of the Constitution-in-Exile Movement:

The most radical dissenting opinion was written by Thomas. Thomas has proved to be the most reliable ally of the movement to resurrect what some conservatives call the Constitution in Exile, referring to limitations on federal power that have been dormant since the New Deal.

I was more-than-mildly surprised to find myself concurring with Herr Rosen's assessment:

Thomas. Mein Gott Im Himmel!, who would have guessed it! That pudgy, avuncular-looking little man, suddenly rising up in his black robes like the Lord of the Nazgul. Stooping to pick at the flesh of a Woman's Right To Choose and grabbing welfare dollars from the hands of baby-Daddies all over this great nation! Sure, he may look like a teddy bear, but he's [[[shudder]]] worse than Scalia!

With the latest decision from SCOTUS, Judge Dread has managed to confound just about everyone. In a transparent bid to win over the elusive Federalist Livid Terrier demographic, Thomas did a double-fake with a half-twist to throw the opposition off the scent:

...imagine my initial confusion, having not paid close attention to the case, when I learned the line-up. The 3 justices who voted to uphold the Federal government's power were Thomas, Scalia and Roberts.

Now, Roberts wasn't involved in Raich, so no conclusion can be drawn from that. And Scalia's and O'Conner's votes seemed consistent. O'Conner voted to overturn the Federal intrusion in Raich, as she did in Oregon. Likewise, Scalia's dissent is consistent with his vote in Raich, which was to uphold the Federal power.

But what was up with the other justices -- those who upheld the Feds in the Raich opinion and defeated the Feds in Oregon? And what of Thomas? Did he switch sides as well?

Several pundits misread Thomas' dissent as a churlish calling-out of both the majority opinion and fellow-conservative Nino Scalia's rulings in Raich, so far as I can tell, based on the following passage:

The majority's newfound understanding of the CSA as a statute of limited reach is all the more puzzling because it rests upon constitutional principles that the majority of the Court rejected in Raich. Notwithstanding the States' " 'traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens,' ", the Raich majority concluded that the CSA applied to the intrastate possession of marijuana for medicinal purposes authorized by California law because "Congress could have rationally" concluded that such an application was necessary to the regulation of the "larger interstate marijuana market." Here, by contrast, the majority's restrictive interpretation of the CSA is based in no small part on "the structure and limitations of federalism, which allow the States ' "great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons." According to the majority, these "background principles of our federal system ... belie the notion that Congress would use ... an obscure grant of authority to regulate areas traditionally supervised by the States' police power."

Here Thomas points out that a mere seven months ago the same Justices issued an utterly inconsistent precedent in Raich, saying that as long as Congress had some rational basis for doing so, it could use the Commerce Clause to regulate the wholly intrastate use of a controlled substance (marijuana) to relieve discomfort in terminal illnesses, trumping the State's Constitutional power to define criminal law and regulate the health and welfare of its citizens. Now, in Oregon, the majority admits the Attorney General's determination that the same law (CSA) prohibits the interstate** prescription and use of a controlled substance (morpheine) to end a terminal illness is "at least reasonable". Yet it somehow comes to the opposite conclusion: i.e., the State's power pre-empts that of the federal government, even when the drug involved is more addicting and interstate commerce is involved, where in Raich it was not. No wonder Thomas is peeved.

As a federalist, Thomas would clearly like to rule with majority:

Of course there is nothing "obscure" about the CSA's grant of authority to the Attorney General. Ante, p. ___ (Scalia, J., dissenting). And, the Attorney General's conclusion that the CSA prohibits the States from authorizing physician assisted suicide is admittedly "at least reasonable," (opinion of the Court), and is therefore entitled to deference. Ante, at 6-7 (Scalia, J., dissenting). While the scope of the CSA and the Attorney General's power thereunder are sweeping, and perhaps troubling, such expansive federal legislation and broad grants of authority to administrative agencies are merely the inevitable and inexorable consequence of this Court's Commerce Clause and separation-of-powers jurisprudence.

So he is relying on precedent. But why? Thomas has never been particularly awed by precedent. Is he, as his detractors claim, childishly rubbing his fellow jurists noses in their own hypocrisy? It begins to seem so. When he leads off in the next paragraph, citing his own dissents, you can almost hear take it up another notch, yelling out, "BAM!" after every cite, a la Emeril:

I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure. Raich, supra, at ___ (Thomas, J., dissenting); cf. Whitman, supra, at 486-487 (Thomas, J., concurring) (noting constitutional concerns with broad delegations of authority to administrative agencies). But that is now water over the dam. The relevance of such considerations was at its zenith in Raich, when we considered whether the CSA could be applied to the intrastate possession of a controlled substance consistent with the limited federal powers enumerated by the Constitution. Such considerations have little, if any, relevance where, as here, we are merely presented with a question of statutory interpretation, and not the extent of constitutionally permissible federal power. This is particularly true where, as here, we are interpreting broad, straightforward language within a statutory framework that a majority of this Court has concluded is so comprehensive that it necessarily nullifies the States' " 'traditional ... powers ... to protect the health, safety, and welfare of their citizens.' The Court's reliance upon the constitutional principles that it rejected in Raich--albeit under the guise of statutory interpretation--is perplexing to say the least. Accordingly, I respectfully dissent.

But remember that Thomas is a quiet kind of man. Solid, careful, methodical and painstaking. Not the kind of guy who is in love with the sound of his own voice. The italicized portion is the key to understanding the dissent in full. Read his footnotes:

Notably, respondents have not seriously pressed a constitutional claim here, conceding at oral argument that their "point is not necessarily that [the CSA] would be unconstitutional." Tr. of Oral Arg. 44. *****In any event, to the extent respondents do present a constitutional claim, they do so solely within the framework of Raich. Framed in this manner, the claim must fail. ******The respondents in Raich were "local growers and users of state-authorized, medical marijuana," who stood "outside the interstate drug market" and possessed " 'medicinal marijuana ... not intended for ... the stream of commerce.' Here, by contrast, the respondent-physicians are active participants in the interstate controlled substances market, and the drugs they prescribe for assisting suicide have likely traveled in interstate commerce. If the respondents in Raich could not sustain a constitutional claim, then a fortiori respondents here cannot sustain one. ****Respondents' acceptance of Raich forecloses their constitutional challenge.****

What is Thomas really saying? Had Oregon challenged the Controlled Substances Act on Commerce Clause grounds, he would have gladly taken their side. But they did not raise that issue. In his view, Raich may be wrong, but it is now law. If the Commerce Clause now allows the CSA to regulate the wholly intrastate use of marijuana then it certainly authorizes the Attorney General to regulate the use of morpheine that involves interstate commerce, little as Thomas likes that outcome.

He is not about to overrule a precedent that the parties did not take issue with, so he is forced to give broad deference instead to what the majority termed the Attorney General's "reasonable interpretation" of a broadly written statute. Once again, he has shown that he values principle and consistent application of law over the ability to engineer what he personally views as a desired outcome.

And in my view, that is good law. It must also be infuriating.

Now Scalia on the other hand....

Interestingly, this case could also be viewed as not being a federalism case, but perhaps as a separation of powers case. One wonders what would have happened if Congress had written a statute explicitly prohibiting assisted suicide? That would be an interesting vote. In that context, I see the Roberts/Scalia/Thomas split as upholding Executive branch power since it was the Attorney General interpreting a statute, and the majority reflexively resisting that exercise of authority. But I could be all wet on that one.

** because interstate commerce will definitely be involved in this instance

Posted by Cassandra at 06:53 AM | Comments (4)

October 07, 2005

Fear, Loathing, Suckitude

You know until this moment, I did not realize it was possible for a human being to suck this deeply and irredeemibly....

This means war.

Heh...

Posted by Cassandra at 02:51 PM | Comments (14) | TrackBack

Miers: A Pragmatic View

Thomas Sowell enunciates, better than anyone else I have seen, some of the practical reasons that very likely went into Harriet Miers' appointment:

Rush Limbaugh has aptly called this a nomination made from a position of weakness. But there are different kinds of weakness and sometimes the difference matters.

President Bush has taken on too many tough fights -- Social Security being a classic example -- to be regarded as a man who is personally weak. What is weak is the Republican majority in the Senate.

When it comes to taking on a tough fight with the Senate Democrats over judicial nominations, Senate Majority Leader Bill Frist doesn't really have a majority to lead. Before the President nominated anybody, before he even took the oath of office for his second term, Senator Arlen Specter was already warning him not to nominate anyone who would rile up the Senate. Later, Senator John Warner issued a similar warning. It sounded like a familiar Republican strategy of pre-emptive surrender.

Before we can judge how the President played his hand, we have to consider what kind of hand he had to play. It was a weak hand -- and the weakness was in the Republican Senators.

You say tomayto, I say tomahtoe. Weakness, or shrewdness? It sure looks manly to charge straight uphill into a nest of machine-gun fire and go down in a hail of bullets, but if the objective was to take the hill, that's really not terribly smart, now is it? For attempting a flanking manoever (classic tactics), the President has been called a coward by all the really smart set - the ones who know how the hill should be taken, having so much experience themselves. But then armchair quarterbacking is easy from the cheap seats. If your little suggestion doesn't fly, you don't get blamed and the nation doesn't have to live with the consequences. You just dash off another smartassed column. Sowell continues:

Does this mean that Harriet Miers will not be a good Supreme Court justice if she is confirmed? It is hard to imagine her being worse than Sandra Day O'Connor -- or even as bad.

Considering some of the turkeys that Republicans have put on the Supreme Court in the past, she could be a big improvement.

We don't know. But President Bush says he has known Harriet Miers long enough that he feels sure.

For the rest of us, she is a stealth nominee. Not since The Invisible Man has there been so much stealth.

That's not ideal by a long shot. But ideal was probably never in the cards, given the weak sisters among the Republicans' Senate "majority."

There has been an awful lot of hysteria about Miers' nomination: a veritable DU-like welter of hyperbole and hysteria accompanied by elite condescension, snobbery, personal attacks and strained logic accompanied by a total disregard for the facts.

There have also been a few good arguments posed, though I believe they are ultimately mistaken. One of these is made by Daniel Henninger, who asserts that the President's endorsement of a poster child for Federalism would have reinivigorated the conservative movement, giving them something to fight for. Unaddressed are the consequences of the almost inevitable Borking of such a candidate and the years of increasingly bitter partisan rancor that would follow another crushing defeat:

For nearly 25 years, conservative legal thinkers have been building an argument that liberalism transformed the Court into an instrument of national policymaking more appropriate to the nation's legislative institutions. Roe v. Wade is the most famous of those policy decisions. And the most famous dictum justifying judicial policy innovation is Justice William Douglas's "penumbras formed by emanations"--from Griswold v. Connecticut.

Across these many years conservatives have been creating a structured legal edifice to stand against a liberal trend toward aggrandized federal power that began in the 1930s. Chief Justice William Rehnquist's "New Federalism," which devolves many powers back to the states, was one such example. Harriet Miers may share these reformist views, but her contribution to them is zero. Conservatives are upset because they see this choice as frittering away an opportunity of long-term consequence.

If instead the Senate had been given the chance to confirm someone who had participated in this conservative legal reconstruction and who would describe its tenets in a confirmation hearing, that vote would stand as an institutional validation of those ideas. [Only if the nominee won] This would become a conservatism worth aspiring to. In turn, Congress's imprimatur would follow the nominee onto the Court, into the judiciary and the law schools. A Miers confirmation validates nothing, gives voice to nothing.

What Henninger fails to consider is that after the Roberts hearings, the Democrats

...cannot let a high-profile conservative get confirmed without putting up a dogfight to satisfy their left-wing special interest groups.

Perhaps that is why some Democrats seem to welcome this stealth nominee. Even if she turns out to vote consistently with Antonin Scalia and Clarence Thomas, the Democrats are off the hook with their base because they can always say that they had no idea and that she stonewalled them at the confirmation hearings.

The bottom line with any Supreme Court justice is how they vote on the issues before the High Court. It would be nice to have someone with ringing rhetoric and dazzling intellectual firepower. But the bottom line is how they vote. If the President is right about Harriet Miers, she may be the best choice he could make under the circumstances.

It's easy to lose sight of the forest for the trees, and our more-conservative-than-thou brethren are doing exactly that. It is worth remembering that those who deplore Harriet Miers' apppointment as an affirmative action hire raised exactly the same objection to the nomination of Justice Thomas, the nominee with the "Souteresque" appellate record who subsequently proved the most consistently originalist Justice on the current Court:

The misuse of racial politics for cynical court-packing is an old story, dating back to 1991, when the previous President Bush nominated Clarence Thomas to the top bench. Everyone understood that Mr. Thomas, a figure of no great distinction, had been hand-picked due to a happy coincidence of skin color and political coloration. Although he had benefited from affirmative action throughout his career, Mr. Thomas had since displayed his eagerness to deprive others of the means by which he had advanced.

At the time, columnist George Will confessed: "Trashing the truth is now so natural in Washington that there were only worldly smirks and shrugs when George Bush began the Thomas saga by saying two things he and everyone else knows are untrue—that Thomas is the person best-qualified for the Supreme Court, and that his race was irrelevant to his selection."

It would seem that if nothing else, Mr. Will is consistently petty. One suspects he will be proven consistently wrong as well.

Link via Xrlq, who ably takes Will behind the woodshed here. I'm sorely tempted to form a Coalition of Those Who Think Will And Frum Are Blithering Asshats, but I have a feeling the blogroll would prove unmanageably large.

Posted by Cassandra at 07:54 AM | Comments (72) | TrackBack

October 06, 2005

SCOTUS Nomination Caption Contest

Good God...

Go...go now.

barney-20040510.jpg
He hasn't commented yet, but we're damn sure he's smarter than Frum.

Posted by Cassandra at 10:14 AM | Comments (28) | TrackBack

October 04, 2005

More Contrariness

An excellent essay:

...the notion that one needs a judge to serve on the Court runs contrary to dozens of appointments stretching back to the beginning of the nation and forward to appointments as recent as Justice William Rehnquist. John Marshall was not a judge before going on the Court but went on to become one of the foundational figures in American jurisprudence. Robert Jackson wasn’t a judge before going to the Supreme Court. Nor were Louis Brandeis, Felix Frankfurter, William O. Douglas, Harlan Fiske Stone, or Earl Warren. Hugo Black had a year’s service as a police-court judge. Like or dislike what these men stood for, all left their mark on the Court and on the law. No one who looks back over the history of the Court, can say that these judges were less-influential, less-important, or less-capable justices than their colleagues who had prior judicial experience. The addition of a lawyer with experience in the corporate world (a serious deficiency on the current Court) as well as extensive experience with the legal issues that come across the president’s desk will make the Court a stronger, not a weaker, institution.

Second, there is a fatal conceit that we can and should look to ascertain a nominee’s personal views on a variety of specific issues that might come before the Court. That is exactly the opposite of the rule of law. The rule of law demands that judges adhere to legal rules that are set forth by others, that the job of the judge is to interpret and apply the law, not to promote personal visions of good law. The whole structure of our legal system — from life tenure to the nature of the briefing and decision process to the requirement of written decisions explaining the judges’ views — is designed to insulate judges from external pressures and to assure their fidelity to the law. We need to know that potential judges are competent to read, understand, and interpret the law and that they have the temperament to do so. We do not need to know their personal beliefs.

Third, the critics, both Left and Right, do an injustice to the president as well as to Miers. The constitutional design is that the president selects judges. He selects judges he has confidence in. We vote for the president we trust, and he gives us appointees he trusts. The president told us what sort of judges he was looking to appoint and the American people elected him — after his opponents made this a key campaign issue. The fact that the president has worked closely with Miers, knows her well, and has faith in her is a good thing. It is good for conservatives, as the president has made clear his own embrace of conservative principles, and we can expect that someone he has such great comfort with shares those principles. It is good as well because the president has made clear as well his commitment to judicial — as opposed to political — conservatism, to having judges respect their circumscribed role. The Constitution gives the president primacy on appointments of officers of the United States, including judges. It gives the Senate a far smaller role, following nomination, in safeguarding against misuse of the appointment power. It does not give the Senate an equal voice in appointments. As so ably stated in Federalist No. 76:

In the act of nomination, [the president’s] judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.

Posted by Cassandra at 09:02 AM | Comments (60) | TrackBack

Harriet Miers: A Little Perspective

Since I've already been accused of cheerleading for Harriet Miers (a meritless accusation, by the way, since I've formed no opinion on her nomination and will form none until I know far more about her) I've decided to follow my natural contrarian impulses and attempt to provide some small counterweight to The Howling that greeted yesterday's announcement. Call me vox clamantis in deserto if you want. Just don't call me late for dinner.

Do try to take this as what it is: a deliberate attempt to provide perspective rather than an endorsement. For the record, I don't much care whether she is confirmed or not. No doubt the Republic will somehow bravely soldier on.

Several objections have been raised regarding Ms. Miers' nomination. The most-often voiced seems to be that she is unqualified. John Tabin at the American Spectator takes this one on:

Miers would never have been considered if she weren't close to President Bush, but some commentators have been a bit unfair in declaring her totally unqualified. Miers was president of the Dallas Bar Association and then the State Bar of Texas, an accomplished corporate lawyer, and Counsel to the President. Yes, there were a number of short-listed candidates with records much more impressive than that, but her stats are comparable to several lawyers whose first judicial job was on the Supreme Court. Nixon nominee Lewis Powell's most impressive stat was that he'd been American Bar Association president. Byron White earned his nomination by serving as Deputy Attorney General after using his celebrity (he'd been a pro football player) to help John F. Kennedy get elected. Pierce Butler was a former Minnesota state's attorney and respected private-practice lawyer (he counted railroad tycoon James J. Hill among his clients) whose main claim to fame when President Harding nominated him was not his resume but his criticisms of University of Minnesota law professors.

I don't have time to research this (doubtless someone will eventually) but I recall hearing lots of talk about nominating a non-judge or even a non-lawyer before Miers' name came up. It seems passing strange to me that we have now nominated a lawyer and she is being described as "totally unqualified". What changed between then and now? The LA Times offers another clue to Bush's thinking on the nomination:

In addition, senators of both parties were urging Bush to consider a nominee who has never served as a judge. Such a candidate, they said, would bring different experiences and perspectives to a court whose members had risen through the ranks of the judiciary.

And we've all been just thrilled with the decisions handed down by the majority-conservative Court this year, haven't we?

Another objection is that somehow Miers is not "a real conservative". This seems to be the default complaint launched against anyone who fails to display proper Reich-Wing Ardor, the implied threat being that one's RNC card will be pulled if one strays too far off the ideological reservation. I have always found this line of 'reasoning' repugnant and will continue to fight it with every breath in my body. Again, one finds a few facts (amazing how facts often help to inform one's preconceived notions about life) instructive:

What do we know about what kind of justice Harriet Miers will make, if confirmed? Not much, though what we do know is somewhat encouraging.

We know that she's made reference, in a 1992 article for Texas Lawyer to "the right to bear arms" on a list of "precious liberties." "As far as I know," writes Second Amendment scholar Dave Kopel, "you have to go back to Louis Brandeis to find a Supreme Court nominee whose pre-nomination writing extolled the right of armed self-defense."

And we know that when she was active in the American Bar Association, she urged that organization to put its official stand in favor of legal abortion up to a vote among members. She donated to Texans for Life (then Texans United for Life) in 1989. She's a member of a conservative evangelical church. The signs point toward "pro-life," and a pro-lifer is unlikely to uphold Roe v. Wade.

The problem is that these are far from the only issues that will face the high court. What limits are there on executive power in wartime? To what extent do constitutional rights extend to non-Americans? Does the Commerce Clause grant the federal government unlimited power over practically any aspect of Americans' lives, as the Court's liberals believe? Or are there real limits to how much Washington can encroach on state and local territory? And what about stare decisis, the principle of leaving judicial precedent settled? Even Clarence Thomas and Antonin Scalia have different approaches there (Thomas is much more willing to reconsider precedent).

Those who know Miers well have no doubts about her conservatism:

Harriet Miers' lack of a judicial paper trail yesterday prompted anxious Republicans to express doubts about the Supreme Court nominee, but her supporters say the born-again Christian has a purebred conservative pedigree. "Those of us who know her know that she's a conservative," said Texas Supreme Court Justice Nathan Hecht. "She has supported a lot of conservative candidates here in Texas. She works for a conservative president. She attends an evangelical church, and has for 25 years, and she was a conservative leader in the American Bar Association," Justice Hecht, who has known Miss Miers for 30 years, told The Washington Times. Leonard Leo, executive vice president of the conservative Federalist Society, said Miss Miers "has been a forceful advocate of conservative legal principles and judicial restraint throughout her career. She led a campaign to have the American Bar Association end its practice of supporting abortion-on-demand and taxpayer-funded abortions." And Vice President Dick Cheney said, "I think you'll find that Harriet is rock-solid, from a philosophical standpoint. "I think she will, in fact, represent the conservative view of the court, the kind that the president has said he would, in fact, nominate if elected."

Some conservatives have questioned why she donated $1,000 to Al Gore's 1988 presidential campaign, but Justice Hecht said there's a simple explanation.

Mr. Cheney said yesterday that her law firm "apparently hosted an event for Gore when he was running for president the first time."

Said Justice Hecht: "The firm probably passed the hat and said, 'We're going to give money to everyone.' That's what law firms do."

But Miss Miers has a history of supporting conservative candidates and is active in her evangelical church, the Valley View Christian Church. Raised Catholic, she became a born-again Christian in June 1979.

"The church is pro-life, always has been, and that is consistent with her view," Justice Hecht said.

There are also clues to her philosophy in her personal life:

...what is known of her life and her career indicates that she shares many of the values of the president who turned his back on his Eastern antecedents and Yale-Harvard education to embrace the culture of his adopted state.

That in turn suggests that, when it comes to forming opinions, Miers may have little in common with O'Connor, who was appointed by President Reagan and turned out to be a closet moderate who sometimes rejected conservative positions.

Miers also has had a quiet and lasting companionship with Texas Supreme Court Justice Nathan L. Hecht, who was first elected to the state's highest court for civil affairs in 1988.

Before his close friend and protegee Priscilla Owen narrowly won confirmation to the federal bench this year, Hecht and Owen were the anchors of the conservative wing of the state Supreme Court, which consists entirely of Republicans.


Though Hecht has long rejected attempts to ascribe political labels to factions of the Supreme Court, his positions on everything from abortion to business law have made him a hero to social and religious conservatives... Because Hecht has been a judge for 25 years, his positions on political and social issues are far better known than those of Miers.

However, friends say the two share a passion; they are both, for instance, fierce advocates of "tort reform," the movement to limit lawsuits and large liability judgments, especially against corporations.

Another interesting quote from Hecht:

Hecht says about Miers' judicial philosophy: "She's an orginalist -- that's the way she takes the Bible," and that's her approach to the Constitution as well -- "Originalist -- it means what it says." He notes that her legal practice involved writing contracts rather than tort law, so she was always looking at the plain meaning of the words: "Originalist." He also says she's not a social butterfly who will be swayed by Washington dinner table conversation: "She goes to the dinners she's supposed to go to. She's not on the social circuit."

Yet another argument that seems to come up frequently is "the President is asking conservatives to trust him with this appointment, and he hasn't earned that trust". The OpinionJournal examines that argument:

If his track record on judges is a guide, Mr. Bush deserves some deference. His appellate nominees have been uniformly solid, and often distinguished. One of those nominees was John Roberts, who at 50 years old is now the Chief Justice. For five years Ms. Miers has been part of the President's judicial-selection committee that promoted those nominees, and for the last year was its chairman.

The fact that Mr. Bush has known Ms. Miers so well and for so long also makes it unlikely that she is another David Souter, who was sold to George H.W. Bush as a "conservative" by Warren Rudman but morphed into a liberal on the bench. Assorted Texans who have more political credibility than Mr. Rudman--such as state Supreme Court Judge Nathan Hecht--also speak highly of Ms. Miers as a legal mind and assert confidently that she is a conservative constitutionalist.

As does Hugh Hewitt:

James Dobson endorsed Harriet Miers today. Jay Sekulow endorsed Harriet Miers today. Add their endorsements to those of the president, Dick Cheney, Karl Rove and numerous other Administration officials. Yes, I wanted Judge Luttig or Judge McConnell, but the president wanted Miers, and I don't for a minute believe it is because of friendship, but because of W's understanding of the importance of the Court.

An even stronger argument from NRO's Richard Garnett, which, by the way, reflects my own thoughts:

...the claim that "[e]ven David Souter had a more compelling resume that Miers" strikes me as quite mistaken. So does the statement that "Miers was chosen for two reasons and two reasons alone: 1. she's a she; 2. she's a long-time Bush friend." There is, at least, a (3), namely, that President Bush and his advisors — his advisors who are, it should be remembered, entirely committed to constitutionalism in the courts — believe that Ms. Miers is a judicial conservative.

I yield to no one in my respect for the "farm team" — McConnell, Alito, Luttig, etc. — but I am also surprised that some are so quick to assume that this President, who fought hard to get home-run judges Pryor, Owen, Colloton, Brown, McConnell, Sutton, Roberts, etc., confirmed to the courts, would suddenly drop the constitutionalism-ball just to be nice to an old friend or to satisfy those demanding another female justice. This is a White House — and, more particularly, this is a White House Counsel's office — that is well stocked with very smart conservative lawyers, who understand that few things are as important to a President's sucess, and few tasks are as central to his constitutional obligations, as judicial nominations. Whatever our complaints might be about some of this President's decisions, I do not think he has ever given conservatives anything to complain about when it comes to judges and Justices.

It would, we all agree, have been a horrible betrayal and an epic blunder for this President to think that by nominating a woman to the Court — a woman without, arguably, battle scars from the "culture wars" in the courts, he could please the Left or guarantee an easy nomination process. It seems to me, though, that there is no reason to think that this President thought or thinks this. President Bush clearly believes that Harriet Miers is a conservative, who does share the commitment of Justices Scalia, Thomas, Rehnquist, and Roberts to a democracy-respecting understanding of the Constitution. This is not a case where those of us who believe strongly in the rule of law are being asked to rely on the vouching of Sununu and Rudman; this is a case where an Administration that has consistently — uniformly — picked solid judges is holding out a nominee who, the Administration reports, is every bit as solid. Frankly, I'm pleased by the fact that the White House Counsel who gave us Roberts, Pryor, Owen, and Brown has been nominated to join their ranks.

On the charge that she will take the Court Leftward:

I believe that is beginning to be rather thoroughly refuted by a look at the candidate's personal background and character. David Frum makes a rather condescending argument here:

The pressures on a Supreme Court justice to shift leftward are intense. There is the negative pressure of the vicious, hostile press that legal conservatives must endure. And there are the sweet little inducements--the flattery, the invitations to conferences in Austria and Italy, the lectureships at Yale and Harvard--that come to judges who soften and crumble. Harriet Miers is a taut, nervous, anxious personality. It is hard for me to imagine that she can endure the anger and abuse--or resist the blandishments--that transformed, say, Anthony Kennedy into the judge he is today.

Blog9 argues persuasively against Frum:

Harriet Miers 1)went to SMU law school, not Harvard or Yale; 2) worked for a nice solid Dallas corporate law firm for most of her career; and 3) lets be honest here, does not seem a particularly glamorous or fashionable sort. The pressures of the "left" are strongest on those that want what the left can provide, i.e. acceptance at fancy law schools and New York dinner parties. It doesn't seem like Miers (unlike John Roberts or Anthony Kennedy or Frum or Bill Kristol) has ever aspired to any of that stuff and my guess is her taut anxious self probably doesn't feel especially comfortable in that crowd. Why would she turn away from the people she has surrounded herself with all her life (conservative Christians from Dallas) in order to gain entry to an appreciative welcome at a Columbia Law School reception, where she'll probably never be progressive enough or cool enough anyways...

I have to agree. Looking at Miers' life, that's the last thing in the world I see happening. I see a hard-working, focused, introverted woman who is more concerned with doing her job and staying in touch with a small but close circle of friends than what a bunch of snooty elites think of her. I can't see her being in the least swayed by pressure from the press or flattery from anyone else. And I believe, in the end, that may be why the President picked her. She is the antidote to the attenuated, disconnected elite sort of justices that were capable of handing down a travesty like the Kelo decision - a horrible shocker that will continue to affect the lives of Americans for generations to come. And we got that wonderful decision from a bench full of "well-qualified" judges.

Maybe it's time for a difference perspective - a little common sense. Of all the voices on the Supreme Court this last term, the one who shone forth, in my opinion, was the one who was most often dismissed two years ago by all the so-called "real" conservatives: Clarence Thomas. He has been the Justice who has most ardently defended the original meaning of the United States Constitution. A few years back you never heard "Scalia and Thomas" - that is a recent development from people who have suddenly discovered something that was there all along. And for all the bashing of O'Connor, she voted with Scalia and Thomas 80% of the time, which in my book puts her firmly in the Scalia/Thomas camp vote-wise, if not ideologically. But we don't like to admit that when we're on our ideological high horse. I was no fan of O'Connor, but to all indications, Miers will be to the right of Justice O'Connor and "real conservatives" are still up in arms over a Justice who will most likely be to the right of a Justice who voted with Scalia and Thomas 80% of the time.

And if I sound angry, well I suppose I am. Why not lose the snobbery? Question away, but give this candidate a chance on the merits. She will either prove herself (and again, I don't care if she does or not) or go down in flames, but as "real conservatives" are so fond of saying, the President is allowed to appoint whomsoever he pleases. His choice is due deference...or was that statement true only when it suited the RNC?

Posted by Cassandra at 06:09 AM | Comments (6) | TrackBack

October 03, 2005

It's Miss Cleo!

Mom!

Bruce at GayPatriot just made me spit out my coffee...

None of us know much about her, but I have a couple of predictions to make based on this profile in the Washington Post…..

1 - DailyKos and the others on the Anti-Religious Left will seize on this paragraph and insist she must be a lesbian.

Miers, who is not married and does not have children, was active in professional organizations and eventually was elected head of the Dallas and Texas bar associations, where she was known for encouraging members to do pro bono work.

After all isn’t every strong, single woman with no kids a lesbian?

2 - Unless she accepts her obvious lesbianism, has or proves she has had an abortion, the Human Rights Campaign will oppose her nomination calling her a “threat to the future of mankind and future architect of the Montana Gay Concentration Camps.”

I had to stop reading here due to serious respiratory problems.

Go. Now.

CWCID: Confederate Yankee


Posted by Cassandra at 12:27 PM | Comments (5) | TrackBack

Heh...

I'll say this for the Shrub.

He can keep a secret... Karen darlin', I was pulling for you.

She's going to get chewed up and spit out by the confirmation committee.

Interesting background info.(via RedState) Not sure that it means anything.

More background here and here. Dan Riehl was on this several days ago.

Update: re: my initial reaction (b/c of her lack of judicial experience) "She's going to get chewed up and spit out by the confirmation committee."

Perhaps not. Bush describes Miers as 'a pit bull in size 6 shoes':

Miers, 60, has a string of firsts on her resume that track her quiet but steady march to the top echelons of power: first woman hired by her law firm in 1972, first woman president of the Dallas Bar Association in 1985, first woman president of the Texas State Bar in 1992, first woman president of her law firm in 1996.

"Harriet is not a person that gets frustrated easily," R. Bruce LaBoon, a former law partner, told Texas Lawyer. "She doesn't lose her temper. She is very cool and calm in a storm."

...she showed her readiness to take on difficult questions.

"Lawyers by nature are involved in controversy," she said. "We expect difficult issues and are prepared to deal with them."

Bush underscored her toughness, observing when he was governor, "When it comes to a cross-examination, she can fillet better than Mrs. Paul."


Posted by Cassandra at 08:20 AM | Comments (54) | TrackBack

September 30, 2005

SCOTUS Nominee Picks

John Hawkins at Right Wing News asked a small group of conservative bloggers who they thought Bush would nominate for SCOTUS.

The results are here. As usual, the Blog Princess was somewhat out in left field - we'll see if events prove me right or wrong :)

You can see my comments to John in the extended section.

Wow. Haven't been following this all that closely due to work commitments.

1. Michael Luttig or Karen Williams. Failing that, Diane Sykes or Priscilla Owens. I'm torn between Williams and Owens and Sykes - I'm leaning towards Williams if he goes with a woman because of the abortion thing. She has the most opaque record on Roe.

2. Luttig or Owens. But I'd have loved to see Janice Rogers Brown nominated. She'd have been slaughtered in committee though.

3. Gonzalez (he'll never make it). Don't hate him, but waste of a nomination and unecessarily polarizing. Hillary :)

Posted by Cassandra at 10:26 AM | Comments (10) | TrackBack

September 29, 2005

We Have Liftoff...

Party time over at CBWSTGJR...

Bring your own banana.

Posted by Cassandra at 04:25 PM | Comments (3) | TrackBack

September 20, 2005

Supersizing The Constitution

I am exhausted by the debate over John Roberts.

Never have we seen so much hand-wringing oratory, at such mind-numbing length, to so little effect. Throughout it all Roberts had, to use his own metaphor, a perfect innings:

Here's a man long accustomed to answering really hard questions from extremely smart people, suddenly faced with the almost-harder task of answering obvious questions from less-smart people. He finds himself standing in a batting cage with the pitching machine set way too slow.

But for all his brilliance, discipline, and restraint in the face of incompetent and insulting questioning, it seemed nothing Roberts did would satisfy his inquisitors.

One by one, outraged Senators demanded he rise above his narrow-minded political beliefs... then vowed to oppose him unless he promised to uphold their partisan beliefs on abortion, the environment, and civil rights.

Piously, they lectured him on the sacred trust between the People and their public servants ... then asked him to violate that trust by revealing his position on pending cases: a practice explicitly forbidden by the Code of Conduct for US Judges. How quickly we forget. Surely Senator Biden, a former Chair of a Senate Judiciary Committee himself, recalls his advice to Ruth Bader Ginsburg under similar circumstances?

CHAIRMAN JOE BIDEN: "[Y]ou Not Only Have A Right To Choose What You Will Answer And Not Answer, But In My View You Should Not Answer A Question Of What Your View Will Be On An Issue That Clearly Is Going To Come Before The Court In 50 Different Forms, Probably, Over The Next - Over Your Tenure On The Court." (Committee On The Judiciary, U.S. Senate, Hearing, 7/22/93)

Or his guidance to the Ginsburg committee on standards for questioning the nominee?

“the public is best served by questions that initiate a dialog with the nominee, not about how she will decide any specific case that may come before her, but about the spirit and the method she will bring to the task of judging. There is a real difference … between questions that focus on specific results or outcomes, the answers to which would risk compromising a nominee’s independence and impartiality, and questions on judicial methods and philosophy. The former can undermine the dispassionate and unprejudiced judgment we expect the nominee to exercise as a Justice. But the latter are essential and contribute critically to our public dialog.”

To all appearances, John Roberts' answers faithfully adhered to "the Biden standard". Yet Senate Democrats, who can hardly be unaware of it, were not mollified. Dahlia Lithwick comments:

Abandoning their efforts to win votes back home or to score cheap points off a constitutional superstar, Senate Democrats this morning come clean with their real fears about John Roberts: Confesses a frustrated Dianne Feinstein, D-Calif., "I don't really know what I'm going to do with respect to voting for you or voting against you. ... The impression that I have today is of this very cautious, very precise man." Chuck Schumer, D-N.Y., frets: "I, for one, have woken up in the middle of the night thinking about it, being unsure how to vote."
Schumer gives a remarkably candid rundown of the pros and cons of John Roberts. (Pros: brilliant, non-ideological, humble; cons: won't admit he was fascist under Reagan, won't disclose documents revealing he was fascist under Reagan, won't answer questions about the law.)

...So, is Roberts an ideologue? Roberts says no, and most of us are inclined to believe him. If he really is Scalia-without-the-anger, he's the most accomplished liar in world history.

But still the Dems press him. It's not good enough to be fair and humble and non-ideological. They want to know if he "gets it"—if he understands what the stakes are for women and minorities and the disabled. But there is no term of art in the law for "getting it." So, Dick Durbin, D-Ill., tries a different tack: Quoting the late Sen. Paul Simon, he asks, "Would you restrict freedom in America or would you expand it?" Roberts' response is eloquent: "I had someone ask me in this process—I don't remember who it was, but somebody asked me, you know, 'Are you going to be on the side of the little guy?' And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. That's the oath."

And that, right there, is the Crux of the Matter. Roberts sees his obligation as being to the Constitution, and the Democrats see his obligation as being to to the People. The rule of law, versus the rule of men. This is the true bone of contention. It's not enough, for them, that Roberts be fair and impartial: that he disregard his personal and religious beliefs and rule according to the law. Justice, for them, is not supposed to be blind.

They want a People's Judge: an advocate for The Little Guy. Someone who will, as John Kerry so often promised during his campaign, "Fight for Them". They are trying to turn the judiciary into a super-legislature, but one that is not accountable to the electorate. One that will "balance" the dangerously unreliable whims of those horrid Red states who seem, currently, to have seized entirely too much power. Dahlia Lithwick has a name for it, Law-Plus:

One witness says, "we cannot escape history," and another says that under a Justice Roberts, the "civil rights revolution wouldn't have happened." Back and forth the witnesses go—Roberts is great/Roberts doesn't get it—never really acknowledging that they are not disagreeing; that it's possible to be kind and smart and to believe in the rule of law and also not to get it.

Because the "it" in question has nothing to do with the rule of law. It's about something I might call "law-plus"—the idea that the rule of law, in and of itself, has not always made this country fair. Law-plus rejects Roberts' notion that law, applied neutrally, invariably leads to just results. Law-plus acknowledges that the federal courts have leveled the playing field in this country by broadly interpreting civil rights statutes to allow individual causes of action. Law-plus means federal courts have read the civil rights amendments broadly, in order to level the playing field. Law-plus means accepting a counter-majoritarian role for the courts when the other branches of government cannot or will not protect the weak.

John Roberts isn't a fan of law-plus. In fact, the unbounded nature of judicial power under law-plus is probably what drove him into the boiler room of the Reagan administration in the first place. Time and again he scolds the senators: If you want your statute to provide money damages, write it that way; if you want your legislation to implicate interstate commerce, write it that way. For Roberts, it is not the courts' responsibility to make statutes effective. It is not even the courts' responsibility to make the world fair.

Again, this is the heart of the liberal/conservative divide. So often we do not, really, disagree about what ought to be. We simply disagree about how best to get to the finish line.

Liberal ideology tends to be a results-oriented process in which the end is often adjudged to justify the means. But this entails doing violence to our legal system. It means substituting the rule of men for the rule of law. The danger with this approach is that once you start bending the rules, nothing means anything anymore and justice becomes an infinitely flexible concept that can be manipulated to reward whoever holds the whip hand (or whoever can deliver the most votes). SCOTUS' Kelo decision is proof positive of the danger of this approach to disregarding the clear meaning of the Constitution. In Kelo, an activist Court used their power to literally erase a plainly-stated enumerated right from the United States Constitution. Can anything be more clear on this point than Justice Thomas' dissent?

Long ago, William Blackstone wrote that "the law of the land ... postpone[s] even public necessity to the sacred and inviolable rights of private property." The Framers embodied that principle in the Constitution, allowing the government to take property not for "public necessity," but instead for "public use." Defying this understanding, the Court replaces the Public Use Clause with a " '[P]ublic [P]urpose' " (or perhaps the "Diverse and Always Evolving Needs of Society" Clause, a restriction that is satisfied, the Court instructs, so long as the purpose is "legitimate" and the means "not irrational,". This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a "public use."

I cannot agree. If such "economic development" takings are for a "public use," any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O'Connor powerfully argues in dissent. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion.

Power used, without accountability, becomes power abused - that is why the Founders set the job of making law to the legislature, who are elected by the People and are, therefore, accountable to them.

Over and over we are told that, had the Supreme Court had not stepped in, the civil rights era would never have happened. By this logic, had Marbury vs. Madison been decided differently the Civil War would never have been fought, women would never gained the vote, and australopithecus africanus would still be happily trailing his knuckles along the dusty transvaals of the Dark Continent.

Chains of causality can only be stretched so far without breaking. Is it so far-fetched to believe that when it issues landmark civil rights decisions, the Supreme Court may not be so much swimming against the tide of popular opinion as riding the crest of a sea change? It has oft been observed that, had Griswold been decided differently, the outmoded birth control laws it referenced would not long have survived the burgeoning Sexual Revolution which swept America in the 1960's.

Supreme Court decisions, unsurprisingly, reflect the times in which they are handed down. The arguments in Dredd Scott (1857) grate harshly on our modern ears, yet the abolition movement predated that decision. It did not take a Supreme Court Justice to launch the moral outrage which sent a nation spiralling into a bloody civil war. Hard as it may be to believe, there are other forces at work in the world that mediate for good. Fortunately, the ACLU was not present then to protect society from their pernicious influence.

This then, ironically, is the fundamental issue before the Democratic Party: they have trust issues with democracy. The rule of law is not enough for them. Our system of government as laid out by the Constitution: laws to be made by the people's representatives (the Legislature), interpreted only where insufficient or unclear by a Judiciary appointed by the people's elected President, and enforced by an elected Executive branch, is not good enough because the Democrats cannot be sure the people can be trusted to make wise decisions about who is elected to the Legislature and the Executive branch, and who the President is allowed to appoint to the Judiciary. We must allow unelected Judges to overrule the Legislature and remove contentious social issues forever from public debate. And we must preserve the filibuster to prevent any chance that the people's elected representatives might get to vote on judges appointed by the people's elected President. The Democrats do this, you understand, to protect the People from their own folly.

This is the argument we have heard posited ever since November. The Republicans now control all three branches of government: what are we going to do about it? Well, unless you're planning a bloodless coup or a complete overhaul of the Constitution by judicial fiat, I'm not sure there is anything you can do about it, my friends. Be patient: two of the three branches of government are elected and turn over every few years. That's the brilliance of the Founders' design. You'll have a chance to put your case before the American people again soon enough.

In the meantime, all you need do is play by the rules. But for Senators Biden, Reid, and Kennedy the rule of law isn't good enough. Roberts is willing to give them Law: fairly, without bias, interpreted (as pretty much everyone who has come in contact with him admits) brilliantly and in a way that is likely to move the court oh-so-slightly to the left of its current position, which ought to please them. But they don't want the law: they want law-plus, with all the trimmings.

They typify America's gluttinous fascination with conspicuous consumption - give me the Constitution, but Super-size it. And if they can't get the large fries with that, they don't want anything at all.

Posted by Cassandra at 10:38 AM | Comments (24) | TrackBack

September 18, 2005

Against Ignorance, The Gods Themselves...

Once more, EJ Dionne demonstrates his breathtaking ignorance of how the three branches of government are supposed to work:

"Where are you?"

That was the question Sen. Richard Durbin (D-Ill.) almost plaintively posed to Judge John Roberts as the Senate Judiciary Committee's hearings neared their conclusion. It is the right question.

No Mr. Dionne, it is not the right question, unless of course you are trying to issue-shop the way you do when you elect legislators. But this isn't the legislature, is it? Wrong branch. It's the judiciary. And Judge Roberts has stated over and over and over again the only fact germane to how he will rule: that his personal opinions on various issues do not matter. As a matter of fact, it would be highly improper for him to bring them to bear when ruling from the bench.

His job is to interpret the Constitution, not to impose conservative values on America. Not to "represent" the people or make law: that is what Congressmen and women do.

There is a reason Justice has always been portrayed as Blind. Think about it.

We have watched as Democratic Senator after Democratic Senator has publicly vowed not to confirm John Roberts unless he publicly swears to support their political position on abortion, end-of-life issues, or civil rights.

And then these same Senators demand that Roberts disregard his highly objectionable personal political positions when he rules from the bench.

Well, which is it? Is he only allowed to consider your political views when ruling? Oh... he's only allowed to take the correct political views into account. Liberal ones.

And it's absolutely unacceptible for him to remain neutral and leave his own (and your) political views out of the equation and focus on his job: interpreting the Constitution, because that would be.... gosh, I'm sorry, just what was the objection to that one again?

Oh. It's dishonest.

I'm so glad we cleared that up.

Posted by Cassandra at 09:40 AM | Comments (8) | TrackBack

September 14, 2005

Abandon All Hope, All Ye Who Enter Here...

Yesterday I got an email that made me see the Roberts confirmation hearings in an entirely different light. The hearings were so surreal and farcical that the whole thing really could have been drawn from the Princess Bride. Anyway, MathMom sent:

One thing about [Biden] is good - when he is bloviating and preening and talking about himself before he starts his questions, at least for those moments he is not dangerous. But then he starts, and hoo-EEE. It reminded me of this exchange:

[while engaging in a "battle of wits"]

Westley (Roberts): You've made your decision, then?

Vizzini (Biden): Not remotely! Because iocaine comes from Australia, as everyone knows. And Australia is entirely peopled with criminals. And criminals are used to having people not trust them as you are not trusted by me, so I can clearly not choose the wine in front of you.

Westley: (Roberts, snidely) Truly, you have a dizzying intellect.

Vizzini: (Biden) Wait till I get GOING!
[pause]

Vizzini: (Biden) ... Where was I?

Watching Biden strut and posture was almost enough to make me blow a gasket. Can you imagine what Roberts was thinking?

biden.jpg

Biden: I can't compete with you physically, and you're no match for my brains.



roberts.gifRoberts: [thinking to himself: "Ooooh... I'm scared, Mommy"]

(Out loud) You're that smart?

Biden: Let me put it this way. Have you ever heard of Plato, Aristotle, Socrates?

Roberts: Yes.

Biden: Morons...


biden.jpgroberts.gif

[dead silence]

Roberts: So I'm here till I die?

Biden: [nods enthusiastically]

Roberts: So... it's to be torture?

Biden: [nods enthusiastically]

Roberts: I can cope with torture.

Biden: Don't even think about trying to escape.

That poor man. Seven hours.

I think Dante's Nine Circles of Hell have just been redefined for all time. It must have something to do with having to try to explain lawyer jokes to Dianne Fiiiiiiiiiiiinestein.

John Roberts

Posted by Cassandra at 09:05 AM | Comments (21) | TrackBack

September 13, 2005

Roberts Hearing

Is it just me, or is Roberts wiping the floor with his Inquisitors?

I nearly spit out my drink when Senator Frankenstein asked him whether a wife in fear of spousal abuse was required to notify her husband before having an abortion 'as held by the Court in [mumble...mumble...mumble... (I didn't hear the case name - I think it was Casey)]' and she pressed him to answer whether he agreed.

Roberts replied:

"Why yes: I agree that the Court so held, and their decision of course would be due deference under stare decisis."

Heh...

Posted by Cassandra at 03:59 PM | Comments (7) | TrackBack

Sad. Really.

Thomas Oliphant has always been an asshat of colossal proportions, but if you remain in the slightest doubt I recommend to you this excrescence, which might more aptly have been titled, "What Passes for Thought On The Op-Ed Pages of The Boston Globe These Days".

Cass Sunstein, on the other hand, has long been one who, while I don't always agree with him, is an honorable and fair opponent. He proves it with this piece, in which he quite reasonably and dispassionately analyzes John Roberts' judicial philosophy:

Many people feared President Bush would try to replace Sandra Day O'Connor, a minimalist conservative, with a nominee promoting an ambitious agenda for remaking American constitutional law. But there is not much evidence that the president's choice, John Roberts, has such an agenda. In his two years on the federal bench, he has shown none of the bravado and ambition that characterize the fundamentalists. His opinions are meticulous and circumspect. He avoids sweeping pronouncements and bold strokes, and instead pays close attention to the legal material at hand. He is undoubtedly conservative. But ideology has played only a modest role in his judicial work. For example, he voted to allow a civil rights action to proceed against the D.C.-area subway system. In so voting, he rejected the claim, advanced by Reagan appointee David Sentelle, that Congress lacks the power to require the subway system to waive its sovereign immunity.
The Roberts nomination is not welcomed by those who object to the rightward drift of the federal courts or believe that Justice O'Connor's successor should be no more conservative than she. And on key issues, Judge Roberts will likely be on Justice O'Connor's right. There is no assurance he will vote to uphold Roe, and it is most unlikely he will aggressively read the Constitution to protect vulnerable members of society.

But at this point in our history, the most serious danger lies in the rise of conservative judicial activism, by which the interpretation of the Constitution by some federal judges has come to overlap with the ideology of right-wing politicians. For those who are concerned about that kind of activism on the Supreme Court, opposition to the apparently cautious Judge Roberts seems especially odd at this stage. The far more reasonable path is to keep an open mind and to hope for a serious and substantive confirmation process.

That is exactly what I see in Roberts' opinions: a fundamentally minimalist approach that should be heartening to conservatives and liberals alike, for it is the very opposite of extremism. It speaks of a judge who well understands his role on the Court: neither to usurp the role of Congress, nor that of the Executive Branch. Neither to read too much, nor too little, into the Constitution.

And when in doubt, to let the people's elected representatives decide matters of national import unless the Constitution, the document from which his authority flows, clearly and unequivocally says otherwise. This philosophy places him firmly beyond the reach of partisan politics.

Which ought to be a comfort to people like Thomas Oliphant, but somehow never is. Because they want to see the Court made into another legislature that they can bend to their will.

They wish to see the rule of Men, not the rule of Law.

Posted by Cassandra at 09:32 AM | Comments (2) | TrackBack

August 26, 2005

A Confused Judiciary

Between the battle for the filibuster in the Senate and the Roberts confirmation brouhaha, it's been an interesting year. The confirmation wars brought forth much confused rhetoric from our public servants over their respective roles, prompting me to wonder whether they're genuinely confused about their duties or just pandering to an ill-informed and lackadaisical electorate.

The madness started with the Democrats in the Senate. Outraged over the notion that 4 or 5 Senators from the minority party do not have the right to block the entire body from voting on candidates who would sail through if allowed to go to a full vote, they righteously intoned that if the so-called 'nuclear option' were invoked, it would be 'anti-democratic' and 'anti-Constitutional', (as though it were democratic for the will of the minority to overrule the majority and Constitutional for an extra-Constitutional Senate rule to override the highest law of the Land). They went on to opine that 41 Senators really represent "the will of the people" anyway, since the Blue states are more populous than the Red states; thus managing in a Herculean feat of blithering ignorance to wilfully ignore the intent of the Framers in allotting 2 Senators per state to counterbalance the more representative (hence the name) House. An odd argument for the Party which introduced a bill requiring a mandatory day of study on the US Constitution in all US public schools. Perhaps the good Senators should take their own refresher course?

But it is not only Senators who fail to see Constitutional roles clearly: that disease seems to have spread to the Supreme Court as well. Recently SCOTUS retiree Sandra Day O'Connor was widely lauded for her 'common-sense' view of the Law, even if, after Kelo v. London, more conservative members of the bench took rather a dim view of her penchant for international opinion-shopping:

The fiendish members of this plot took the backward view that judges ought to try reading the actual verbiage penned by our Founding Fathers instead of haring off to nations like, say... France in search of a hand-rolled Gauloise and a Derrida primer (the better to deconstruct the Commerce Clause whilst staving off that annoying sense of anomie that comes from eating one too many confits).

Her retirement has prompted alarmist fears of a return to Originalism, that Dread state whereby We The People might actually find ourselves in the grip of Limited Government once more: victims of the loathsome and restrictive Checks and Balances put in place by those hateful, buzz-killing Founders. Bummer...

Those who still dream of a Living, Breathing Constitution fear nothing more than horrid, activist judges like John Roberts who long to wrest the wheel of Power away from the Judiciary and return it to John Q. Public. What a scary thought: we have met the enemy, and he is Us. God forbid that we should control our own destiny. But, as Dahlia Lithwick proves, the Dream Lives On in the democratic breast, even if no one seems quite able to defend it intellectually, or even articulate why it should become reality:

All this talk of the Iraqi Constitution—or lack thereof—serves as a useful reminder that a country's constitution is only as useful as the tools that will be used to interpret it later. As the most recent "Justice Sunday" extravaganza illustrates, the majority of the nation seems now to be of the firm belief that there is only one way to view the U.S. Constitution: in the way the framers first intended. Maybe that's because they are hearing so few principled arguments making any other case.

To hear Tom DeLay and his cronies tell it, the only alternative to the interpretive theory of "Originalism" or "strict construction" is to have judges swinging like monkeys from the constitutional chandeliers, making up whatever they want, whenever they want. Here's Jonah Goldberg on the allure of a dead Constitution: "A 'living Constitution' denies us our voice in this regard because it basically holds that whatever decisions we make—including the 13th, 14th, and 15th Amendments—can be thrown out by any five dyspeptic justices on the Supreme Court. In other words, the justices who claim the Constitution is a wild card didn't take their oath to uphold and defend the Constitution in good faith because they couldn't know what they were swearing to."

Goldberg goes on to quote Justice Antonin Scalia's dissent in the recent Ten Commandments cases: "What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority, is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that—thumbs up or thumbs down—as their personal preferences dictate."

Why stop here? It's not just their 'personal preferences' anymore. We are now bringing in not just American law, but foreign precedent as well. Look at Kelo - what a disaster for personal property rights. If any single case points up the problems with lack of faithfulness to textualism, when there is clear intent, that case should do it.

But there is a more fundamental problem than adherence to the text of the Constitution, and I believe it is touched upon in Judge Breyer's response to his colleague Antonin Scalia's work:

When he was nominated to fill the Supreme Court's last vacancy, Stephen Breyer said he would strive to make the "law work for people." Eleven years later -- with a new opening on the court and controversy raging over the judiciary's role -- Justice Breyer wants to tell a broader audience how that should be done.

In a book slated for release next month, Justice Breyer -- among the more liberal members of the court -- gives a detailed insight into his philosophy of deciding cases, namely that the Constitution should be viewed in light of its overarching goal, which he sees as creating a participatory, democratic society. In the process, he offers a rejoinder to a longtime intellectual opponent, Justice Antonin Scalia, who advocates "originalism," or a more literal interpretation of the Constitution's meaning at the time of its writing.

I am going to jump completely off-topic for a moment to tell a story that may seem unrelated, but if you'll be patient, I will make the connection. The other night I had an awful migraine, so I may not remember the exact details, but since I felt so bad I just heated up some homemade split pea soup I had made earlier for dinner for the Unit when he got home. We were sitting in the living room eating, and he was watching a history show about WWII, McArthur, and the culpability of the Japanese Emperor Hirohito (I'd bought him a biography of Hirohito for Christmas last year).

One interesting part was how in Japan, it was forbidden to blame the Emperor after the war. And a series of executions were held, during which Tojo was executed. He refused all defense, claiming he was happy to die; thus, Japan would be purged of all shame. Even through my rather extreme pain and nausea, this really struck me forcefully. I commented to the Unit, "That is so un-American a concept. Can you imagine an American doing that? Viewing himself, not as an individual, but as part of history, part of the larger picture?" We talked a bit - this is something we've discussed before because I suppose we both share the same aesthetic: that this was a fitting end. He did the right thing. His death closed the chapter and allowed everyone else to move on. The debt was paid. I think I would have made the same decision. But few Americans would have seen it that way.

It has struck me, over and over again this year, how few of our public servants such have a restrained view of themselves. How few see themselves as, not parts of a working whole, but somehow as all being prime movers. It is as though they think they must take on all roles in the government; they are not content to perform the task assigned to them by the Constitution.

And so we get the Senate Minority Leader (who should know better) arguing that a Blue State Senator is "more representative", "more democratic" than a Red State Senator, when in fact the entire role of the Senate is to be a deliberative, restraining hand on the more passionate, democratic House of Representatives. But not to stop them from doing business entirely or to cut off ALL debate - as this filibuster business is doing. That is wrong and an abuse of taxpayer money. Senate rules should ensure that there is adequate debate - not prevent it entirely. That is fundamentally anti-democratic and anti-Constitutional, because it means that the people's representatives are not heard, whether it happens at the will of the majority OR the minority.

And we get judges, like Justice Breyer, and Justice O'Connor, who have somehow convinced themselves that their job is not merely to act as interpreters of the Constitution (in essence, traffic cops), but as a second legislature:

"Why should courts try to answer difficult federalism questions on the basis of logical deduction from text or precedent alone? Why not ask about the consequences of decision-making on the active liberty that federalism seeks to further," he writes.

Rep. Tom Feeney, a Florida Republican on the House Judiciary Committee, offers an answer: "Nobody but a subjective, biased judge can determine what active liberty means." Mr. Feeney, who has been a leader among House Republicans seeking to restrain the judiciary, says a better title for Justice Breyer's approach would be "jurisprudential mysticism," since "he thinks he can somehow discern through a crystal ball or a Ouija board what active liberty should produce."

The best answer I can give to this, not being a lawyer, is a common-sense one: the Law of Unintended Consequences. We have seen a veritable explosion of law, rules, and regulations in this country. Like the tax code, our legal code has become impenetrable to the layman. Our federalist system really is no more: the encroachment of federal over state bureaucracy is all but final.

Each new decision becomes precendent for others, spawning a chain of telescoping and unforeseeable consequences that stretches as far as the eye can see. Anyone with even an ounce of sense can see this.

Given that this is so, does it not make eminent sense to do as I have seen John Roberts do, time and time again? Leave law-making up to the state and federal legislatures of this nation (as the Framers intended) and issue rulings that are as narrowly-focused as possible?

Though ascribed to Hippocrates, the familiar admonition: "First, do no harm...." is not in the Hippocratic Oath. But it is such good advice that any public servant would do well to take it to heart.

There is an old saying: "Too many cooks spoil the broth". To perform one's own appointed task, wisely and well, is no shame. Government works much better when there are checks and balances, when no branch overreaches and each arm functions within its appointed sphere.

Unfortunately we exist in an Age when respect for rules and hierarchy is at a low ebb. Everyone wants to be in charge and no one wants to be a team player. But some sense of structure is absolutely necessary in an organization as large and complex as the federal government. Even a body as small as the Supreme Court will not function well if some of the members believe they have somehow been given a charter that supercedes the original instructions laid out for them at the time they accepted their appointment. And it is a measure of our ignorance and how dysfunctional our society has become that those who argue for judicial constraint are being cast as extremists who threaten the future of democracy as we know it.

I would recommend to Justice Breyer and all those who advocate a Living, Breathing Constitution, the following homework assignment:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

Posted by Cassandra at 07:11 AM | Comments (8) | TrackBack

August 24, 2005

The Lighter Side Of John Roberts

So much has been written about the horrors of a Roberts confirmation that I thought you might enjoy reading some of the nominee's snarkier asides. This has got to be the only useful thing to be culled from all those boxes and boxes of documents from Judge Roberts' Reagan years.

A bit of judicial snark from his dissent in the Hapless Toad case:

The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating "Commerce ... among the several States."

Roberts' incredulous dissent in a case where the Court wanted to second-guess a search of a car trunk on probable cause:

Sometimes a car being driven by an unlicensed driver, with no registration and stolen tags, really does belong to the driver’s friend, and sometimes dogs do eat homework, but in neither case is it reasonable to insist on checking out the story before taking other appropriate action. Even if Jackson had provided contact information for his girlfriend in response to inquiries from the officers, and even if the officers had been able to reach the girlfriend and she were responsive to their questions, I cannot see any conceivable value in the over-the-phone testimony of a suspect’s apparent girlfriend — someone unknown to the officers, whose number was given to them by the suspect himself — that an unregistered car with stolen tags, driven by an unlicensed driver, was indeed hers and was being used with her permission.
In a case involving alleged discrimination and a church-run school, Roberts wrote in a memo dated Aug. 2, 1984, "There should be little press interest . . . since we are on the side of the black parents at this point."

Answering letters to the Reagan White House was an interesting job:

In one memo, replying to an eccentric octogenarian who had written in suggesting that the 17th Amendment, which mandated the direct election of US senators, was invalid, Roberts said the White House would normally not reply, but should make an exception in this case.

''Anyone who can quote inspiring passages from Plato and Webster, however, and use a word like 'slumgullion,' deserves a reply, and I have drafted one," he wrote.

In August 1983, he reviewed what he called a "snide letter" to Reagan from a University of Georgia professor who alleged that a government agency was compiling a blacklist and then suggested the government might investigate him for complaining.

In a memo to Fielding, Roberts added parenthetically, "Once you let the word out there's a blacklist, everybody wants to get on."

After the Supreme Court struck down efforts by Congress to veto actions taken by the executive branch, Mr. Levitas, a Democrat from Georgia, proposed that the White House and Congress convene a "conference on power-sharing" to codify the duties of each branch of government.

Asked to comment on the congressman's proposal, Mr. Roberts mocked the idea, and him. "There already has, of course, been a 'Conference on Power Sharing,'" Mr. Roberts wrote in a memo to Mr. Fielding. "It took place in Philadelphia's Constitution Hall in 1787, and someone should tell Levitas about it and the 'report' it issued."

In another August 1983 memo to Fielding, Roberts reviewed a recent speech by Stuart Statler, a member of the Consumer Products Safety Commission, on a Supreme Court ruling on the division of government powers.

In the speech, Roberts wrote, Statler had suggested Congress strip from the executive branch the Justice Department's authority to represent federal agencies in court.

"There is so much wrong with so much of what Statler suggests that it is probably best simply to acknowledge receipt of his speech," Roberts told Fielding, "and tell him you look forward to reading it."

Another area that seemed to arouse Roberts' especial pique was the question of Presidential endorsements:

"I recognize that I am something of a vox clamans in terris in this area, but enough is enough," he wrote in a memorandum in June 1984, using the approximate Latin for "voice crying in the wilderness." He added, "The Office of Presidential Correspondence is not yet an adjunct of Michael Jackson's P.R. firm."

Apparently the nominee found Jackson's image incompatible with the Presidential dignity:

"...sashaying around in garish sequined costumes, hair dripping with pomade, body shot full of female hormones ...mono-gloved... a shallow effort by the President to share in the constant publicity surrounding Jackson. . . . The whole episode would, in my view, be demeaning to the President."

Mr. Jackson came in for several attacks of the Poison Pen after Roberts lost a battle to prevent Jackson from receiving a Presidential award against drunk driving. Roberts had argued that:

"A presidential award to Jackson would be perceived as a shallow effort by the president to exploit the constant publicity surrounding Jackson, particularly since other celebrities have done as much for worthy causes as Jackson but have not been singled out by the President."
After losing that battle, he unloaded 10 days later on Jackson after reading remarks Reagan was to deliver at the award ceremony, saying 100 women who work at the White House "all said their name is Billie Jean."
"Cognoscenti will recognize the allusion to a character in one of Mr. Jackson's popular ballads, a young lass who claims -- falsely, according to the oft-repeated refrain of the singer -- that the singer is the father of her illegitimate child. This may be someone's idea of presidential humor, but it certainly is not mine."

The Gloved One seemed to dog Roberts' steps, but eventually he had his Revenge:

Three months later, Mr. Roberts was batting away a new request. "I hate to sound like one of Mr. Jackson's records, constantly repeating the same refrain, but I recommend that we not approve this letter." He noted that a press report said that some young fans were turning from Mr. Jackson "in favor of a newcomer who goes by the name 'Prince.' "

Mr. Roberts asked, "Will he receive a presidential letter?"

To be fair, the entire idea of Presidential endorsements sent sparks flying from Roberts' pen. A suggestion that Reagan endorse a new china pattern aroused his particular derision:

"This would not only contravene established White House policy concerning endorsement of commercial products, but also, given this particular pattern, call into serious question the president's taste in dinner service."

Even seemingly innocent proposals were examined carefully:

Another day found the future Supreme Court nominee advising whether there was a legal problem with helping the Peanuts production of "This Is America, Charlie Brown" at the White House. Mr. Roberts gave his approval, but with a firm caveat that the president should turn down an invitation to appear with Charlie and Snoopy in the final scene.

"In sum," he wrote, "I must recommend against this proposed return to the president's previous career."

The next year, Mr. Roberts was consulted about a plan to have the president write St. Patrick's Day greetings to the Irish ambassador under a special letterhead reading "An Teach Ban," Gaelic for "The White House."

Mr. Roberts had no legal objection. But he strongly advised that the translation be verified. "For all I know it means 'Free the I.R.A.,' " he added, referring to the Irish Republican Army.

Finally, in a moment that may come back to haunt Roberts, even his future colleagues came in for a bit of joshing in a 1983 memo:

Judge Roberts also crafted another rhetorical zinger against the justices, two of whom remain on the court and may soon become colleagues, Chief Justice Rehnquist and Justice Stevens. “The generally accepted notion that the court can only hear roughly 150 cases each term gives the same sense of reassurance as the adjournment of the court in July, when we know the Constitution is safe for the summer,” he quipped."

Posted by Cassandra at 07:06 AM | Comments (19) | TrackBack

Atheism As Religion... The Sequel

Regarding yesterday's post on the 7th Circuit ruling cited by the much-maligned World Net Daily, I found the opinion, which does turn out to cite Torcaso. The following is an abbreviated Kaufman v. McCaughtry for Dummies (about as much as I'm capable of - correct me if I've gotten anything wrong) which chronicles the trials of a much-abused prison inmate who says:

1. He was denied his rights to religious freedom under the Free Exercise and Establishment Clauses

2. Prison officials used an overly broad definition of pornography to prevent him from receiving publications containing photographs of sadomasichistic abuse of nude men.

3. Officials improperly interfered with his mail by opening several letters outside of his presence that turned out to be unobjectionable.

The second two claims were dismissed. The facts in the first claim are as follows:

While at Waupun, Kaufman submitted an official form titled “Request for New Religious Practice,” in which he asked to form an inmate group interested in humanism, atheism, and free speaking.
The officials concluded that Kaufman’s request was not motivated by “religious” beliefs. Accordingly, rather than evaluating the proposal under the state’s relatively more flexible policy for new religious groups, they considered it under the procedure for forming a new inmate activity group...[and] applying the latter standard... denied the request...
Kaufman argues that the defendants’ refusal to allow him to create the study group violated his rights under both the Free Exercise Clause and the Establishment Clause of the First Amendment.
...The problem here was that the prison officials did not treat atheism as a “religion,” perhaps in keeping with Kaufman’s own insistence that it is the antithesis of religion. But whether atheism is a “religion” for First Amendment purposes is a somewhat different question than whether its adherents believe in a supreme being, or attend regular devotional services, or have a sacred Scripture. The Supreme Court has said that a religion, for purposes of the First Amendment, is distinct from a “way of life,” even if that way of life is inspired by philosophical beliefs or other secular concerns.
A religion need not be based on a belief in the existence of a supreme being (or beings, for polytheistic faiths), see Torcaso v. Watkins, 367 U.S. 488, 495 & n.11 (1961); Malnak v. Yogi, 592 F.2d 197, 200-15 (3d Cir. 1979) (Adams, J., concurring); Theriault v. Silber, 547 F.2d 1279, 1281 (5th Cir. 1977) (per curiam), nor must it be a mainstream faith, see Thomas v. Review Bd., 450 U.S. 707, 714 (1981); Lindell v. McCallum, 352 F.3d 1107, 1110 (7th Cir. 2003).

[Ed. Note: I linked a paper that referenced the Malnak test last night because it seemed relevant but did not have time to look it up, and anyway I'm not a lawyer. At any rate, the Malnak test has three conditions:

...an unusual religion will be entitled to First Amendment protection when the beliefs:

1) ponder such issues as the meaning of life, the afterlife, or man’s place in the universe;
2) are extensive in scope and far-reaching in nature; and
3) are accompanied by the existence of certain formal and outside signs.
]

No doubt the 'formal and outside signs' referred to by the Court would be the intense devotion and cultlike following displayed by the ACLU, which has never shown any abiding belief in any other principle...

/snark

The Court now begins to Muse upon the Nature of the Imponderable. I am leaving the case cites out so you can follow the reasoning:

Without venturing too far into the realm of the philosophical, we have suggested in the past that when a person sincerely holds beliefs dealing with issues of “ultimate concern” that for her occupy a “place parallel to that filled by . . . God in traditionally religious persons,” those beliefs represent her religion.
We have already indicated that atheism may be considered, in this specialized sense, a religion. (“If we think of religion as taking a position on divinity, then atheism is indeed a form of religion.”). Kaufman claims that his atheist beliefs play a central role in his life, and the defendants do not dispute that his beliefs are deeply and sincerely held.
The Supreme Court has recognized atheism as equivalent to a “religion” for purposes of the First Amendment on numerous occasions, most recently in McCreary County, Ky. v. American Civil Liberties Union of Ky., 125 S.Ct. 2722 (2005). The Establishment Clause itself says only that “Congress shall make no law respecting an establishment of religion,” but the Court understands the reference to religion to include what it often calls “nonreligion.” In McCreary County, it described the touchstone of Establishment Clause analysis as “the principle that the First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion.”
Atheism is, among other things, a school of thought that takes a position on religion, the existence and importance of a supreme being, and a code of ethics. As such, we are satisfied that it qualifies as Kaufman’s religion for purposes of the First Amendment claims he is attempting to raise.

Interestingly, however, with regard to his Free Exercise claim the Court goes on to rule that Kaufman failed to prove that the prison officials' failure to allow him to form a study group prevented him from the free exercise of his Atheism, which is no more than common sense as that would hardly be the only opportunity he had to practice his 'faith'. The Court also ruled the prison may restrict religious observances as needed in the legitimate interests of prison security.

On the Establishment Clause claim, the court essentially agreed with Kaufman, concluding:

The district court went astray when it evaluated Kaufman’s claim on the assumption that he wanted to form a nonreligious group.... It is undisputed that other religious groups are permitted to meet at Kaufman’s prison, and the defendants have advanced no secular reason why the security concerns they cited as a reason to deny his request for an atheist group do not apply equally to gatherings of Christian, Muslim, Buddhist, or Wiccan inmates. ...the defendants have not answered Kaufman’s argument that by accommodating some religious views, but not his, they are promoting the favored ones. Because the defendants failed even to articulate—much less support with evidence—a secular reason why a meeting of atheist inmates would pose a greater security risk than meetings of inmates of other faiths, their rejection of Kaufman’s request cannot survive the first part of the Lemon test.

So there you have it. Discuss amongst yourselves. My brain just exploded.

Posted by Cassandra at 05:05 AM | Comments (1) | TrackBack

August 23, 2005

Be Careful What You Wish For...

Via John Hawkins, I found this intriguing item:

A federal court of appeals ruled yesterday Wisconsin prison officials violated an inmate's rights because they did not treat atheism as a religion.

"Atheism is [the inmate's] religion, and the group that he wanted to start was religious in nature even though it expressly rejects a belief in a supreme being," the 7th Circuit Court of Appeals said.

Now before we get our Hanes Ultra Sheers all into a knot ladies, think about this.

I have long maintained that Atheism has been elevated to the status of a cult or religion in this country. The ACLU certainly seem to pursue it with the single-minded devotion of the newly-converted zealot, throwing up their arms and and hollering, "Come to Madeleine!" with every third step. But consider the implications of this legal reasoning:

The Supreme Court has said a religion need not be based on a belief in the existence of a supreme being. In the 1961 case of Torcaso v. Watkins, the court described "secular humanism" as a religion.

In fact, it would seem in this case that the basis for this "religion" (or "church", if I may be so bold) is disbelief in a Supreme Being.

So where does that leave the ACLU's quest to remove all mention of God from the public square? Since Atheism is, by definition, disbelief in God and our august Court has just ruled that Atheism (like secular humanism, which is really more of a philosophy than a formal movement) is a religion, does this not turn the ACLU's drive into a religious crusade?

Are they not, in effect, seeking to enforce their religious ideology on believers just as much as any Christian, Jew, or Muslim would be by allowing the display of a religious symbol or text?

Update: Caveat lector: commenter wolfwalker stated:

The mention of "secular humanism" in Torcaso is only in a footnote, not in the text of the opinion. That means it has no legal force. In the 1994 case Peloza v. Capistrano Board of Education, the Ninth Circuit Court of Appeals explicitly denied that SCOTUS had called "secular humanism" a religion.

Which, while interesting, still says nothing about the recent 7th Circuit decision, which is still bizarre. Thanks to wolfwalker for the update. It does appear that 'secular humanism' is mentioned in Footnote 11:

Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others.

This paper references another Texas Court of Appeals decision not mentioned in the footnote above (Strayhorn), along with Washington Ethical Soc. vs. DC:

On March 6, 2003, the Texas Court of Appeals ruled that the use of the “Supreme Being” test denied the Ethical Society of Austin’s First Amendment Rights. The primary issue considered by the Court on appeal was whether the First Amendment afforded protection to unfamiliar religions that do not necessarily believe in a higher power. The Court held that the “Supreme Being” test was unconstitutionally under-inclusive and replaced it with the Malnak test, thereby affirming the lower court’s decision that the Texas Comptroller violated the Society’s First Amendment rights when denying a religious tax-exemption.

You may also find this link of interest if you have no life.

Posted by Cassandra at 06:30 AM | Comments (12) | TrackBack

August 22, 2005

CBWSTGJR, Seizing The Moral High Ground!

Robertsbanana3.jpgCBWSTGJR is beginning to feel positively *smug* about having announced our support for Judge Roberts early (whether or not that big handsome lug is gay). I mean... talk about having seized the moral high ground! "Judging" by the number of sharp-edged quips that seem to have rolled off our boy's pen... Well! he's positively bitchy!

Over the weekend, Roberts' hilarious lawyer joke landed him in hot water with notoriously-humorless women's groups:

"Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide.

Oddly, the female administration official to whom the quip was addressed wasn't offended. Like most conservative females, we can only conclude the joke must have gone over her head...

But those to-die-for red gloves really came off when it came to pop-singer Michael Jackson:

jacko.jpg

"...sashaying around in garish sequined costumes, hair dripping with pomade, body shot full of female hormones ...mono-gloved... a shallow effort by the President to share in the constant publicity surrounding Jackson. . . . The whole episode would, in my view, be demeaning to the President."

But our boy wasn't done yet:

"Cognoscenti will recognize the allusion to a character in one of Mr. Jackson's popular ballads, a young lass who claims -- falsely, according to the oft-repeated refrain of the singer -- that the singer is the father of her illegitimate child. This may be someone's idea of presidential humor, but it certainly is not mine."

Me-ouch! And the judicial snark wasn't reserved for tacky pop-tarts with bad plastic surgery. You should have seen Robbie lay into the Presidential China Pattern! Fave liberal blogger and CBWSTGJR member Wonkette totally scooped us on this one:

An alert Wonkette operative draws our attention to Judge John Roberts' gay-tastic-ness: He was a total snob about china patterns. Confusingly, both the moonbatty NPR's Nina Totenberg and the wingnuttier Washington Times picked up the story. Apparently, Roberts -- in his capacity as guardian of the Reagan legacy against pasty-faced moonwalking freaks (he doth protest too much?) and tacky Branson-bound collector's items -- advised the president's counsel to withhold the endorsement of "a new china pattern that the Boehm Porcelain Co. was selling." Wrote Roberts, "This would not only contravene established White House policy concerning endorsement of commercial products, but also, given this particular pattern, call into serious question the president's taste in dinner service."

Roberts then flounced into the President's residence and started throwing out wire hangers. "Don't get me started on the shoulder pads, girlfriend!" he screamed, before making a flying tackle to wipe the rouge off of Nancy's cheeks.

To complete our conservative humiliation, Wonkette points us to this masterful compendium of John Roberts Gaydophobia, which we were greatly saddened to see tragically snubbed Conservative Bloggers Who Support The Gay Judge Roberts. Apparently whilst we were drinking ourselves into a stupor over the weekend, the rest of the world was busily compiling yet more evidence that our beloved Justice Roberts may (or may not) be Gay.

While we had seen many of these hateful slurs before, there were a few that were New to Us, among them one which we will not mention because we thought it a Rather Low Blow. But some others which Tickled Our Fancy:

- (b) While Judge Roberts was at Harvard, his pre-law advisor was William LaPiana, a law professor at New York Law School and an openly gay man.

Oooh. Gayness by association! Does it rub off? We never knew.

- c) One UTR reader commented that "Roberts has had at least one gay (male) clerk while sitting on the D.C. Cir. I suspect at least one other clerk as well."

Hiring The Gay - another dead giveaway. Because you just know they have those darling little Labels.

But by far our favorite was this gem:

Conservatives were like the queers on campus," said Eric Rofes, a classmate of Judge Roberts who later became an organizer on gay issues. "People made fun of them. They mocked them and saw them as jokers or losers. I don't think in the moment many people realized this was the start of an ascending movement. People felt it was like the last cry of the 1950's."

Now this is a keeper...

We wonder if he ever played Smear the Queer when he was a kid. Because personally, we would consider that conclusive proof.

Cross-posted at Conservative Bloggers Who Support The Gay Judge Roberts

Posted by Cassandra at 06:53 PM | Comments (6) | TrackBack

August 17, 2005

Cindy Sheehan Has No Personal "Right" To Petition

I have been asked several times what I think of Cindy Sheehan's actions, but so far I have declined to criticize her. I have, however, harshly criticized the media and those pundits who have gone picnicking on her grief; who have feasted on the spectacle of a mother who has suffered an agonizing loss. Who have used a woman who is hurting and wants answers - answers I suspect no living person can provide to her - to further their anti-war and anti-Shrub agenda.

But I have no trouble with attacking another facet of the Sheehan brouhaha: the ridiculous notion that the President of the United States owes this woman a personal audience. MoDope, aka Dierdre of the Sorrows, was all over that one like a duck on a June bug:

There's an angry mother of a dead soldier camping outside his Crawford ranch, demanding to see a president who prefers his sympathy to be carefully choreographed.
It's hard to think of another president who lived in such meta-insulation. His rigidly controlled environment allows no chance encounters with anyone who disagrees. He never has to defend himself to anyone, and that is cognitively injurious. He's a populist who never meets people...

Yadda...yadda...yadda... Obviously Mo hasn't been doing much reading during her little sabbatical. The President has met with over 900 family members of the fallen to date. But then mastery of the facts was never a prerequisite for working at the Times.

Ms. Dowd's big finale is delivered with her own trademark, overly-twee brand of wordplay. Meant to point up the callousness of the Evil Empire, it only betrays her own shallow hypocrisy:

Selectively humane, Mr. Bush justified his Iraq war by stressing the 9/11 losses. He emphasized the humanity of the Iraqis who desire freedom when his W.M.D. rationale vaporized.

But his humanitarianism will remain inhumane as long as he fails to understand that the moral authority of parents who bury children killed in Iraq is absolute.

No Ms. Dowd. You are the one who cynically flogs the body counts of an all-volunteer military to justify your anti-war agenda. It is you who hyped the WMD argument (only one of the three reasons given for this war) and minimized the plight of the Iraqis, and you who continue to argue for our withdrawal - a withdrawal that would doom the Iraqis to an ugly fate at the hands of ruthless terrorists. As Arthur Chrenkoff points out:

...both sides can play the "grieving parents" game - except that it's not a game, and it shouldn't be played. The right has not used people like Lynn Kelly, Linda Ryan, or hundreds of others, to make their case in our current war. It would be decent if the left stopped using Cindy Sheehan to make theirs.

As for the notion that ordinary citizens somehow have the "right" to stop in for "tea and sympathy" with the Prez any time the mood strikes, well, that is, simply put... ludicrous. One can't help but note that it is mainly perimenopausal women and liberal pundits making this argument; the snarkier angel of my nature wants to say they belong in the same general class of human being.

The right of petition is guaranteed in the US Constitution:

"Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances." — from the First Amendment

But the notion that this right is a personal one; that a given individual has the right to drop in on the President and say, in effect, "Yo....wassssuupppp, my homes?????" is, quite frankly, absurd.

Perhaps the most famous petition in American history is The Declaration of Independence. Notably, the Founding Fathers did not find it necessary to drop in on His Royal Highness King George III in person. They set out their grievances in writing, in an organized fashion, and delivered them by proxy.

Even in Colonial times when the population of the colonies was much smaller, petitioners were expected to move up the chain of governmental authority, working through their local government representatives who were appointed to represent them. One simply did not "start at the top":

In theory, disgruntled colonists could take their appeal to the royal governors, and, if still unsatisfied, to the king in England.

Nowadays, we have State Representatives and Senators to represent us. Where are Ms. Sheehan's elected representatives, pray tell? And though we have the right to petition both state and federal governments for redress of grievances, there is no guarantee that we will receive a personal response. The sheer number of petitions makes this impractical:

The direct appeal and individualized response that once marked petitioning belong to a more organic past when leaders knew petitioners by name. No branch of the government today is equipped to provide such personal attention. As the Supreme Court has observed, the right to petition requires only that the state receive complaints and grievances, not respond to them. Historical practice aside, the Court has explained that "[N]othing in the First Amendment or in this Court’s case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals’ communications on public issues."

In addition to the demands on the time of public officials, in the President's case there are security issues such as the fear of assassination to be considered. For all these reasons and more, idiotic petitions like this one from Elizabeth Edwards, the wife of a lawyer and someone who certainly ought to know better, are beneath contempt.

Neither Cindy Sheehan, nor any other American citizen, has any "right" to a personal audience with the President of the United States. In any case, Ms. Sheehan has already had one meeting with Mr. Bush. Even if she had a right, that would be one more than her quota.

Many other parents of the war dead, some who support the President, have not yet had that opportunity, and the President is going above and beyond the call of duty in meeting with these families. As a military wife and daughter, I applaud him for it. And I think it cruel and cynical beyond measure for people like Maureen Down and Elizabeth Edwards to encourage Ms. Sheehan in her misguided crusade.

They should be ashamed of themselves.

Posted by Cassandra at 07:53 AM | Comments (224) | TrackBack

August 11, 2005

The John Roberts Poll

John Roberts Must Be Stopped In Our Lifetime Poll

Please choose one or more of your favorite slurs against this dangerously unsuitable extremist nominee:
He Is Gay
...and his 4-year old son is gay too.
Dresses family like a carton of Easter Eggs.
He's a terrorist sympathizer.
Absolutely hates black people. (for the record, Senator Kerry, we want to see the 'consitutional' rights of all Americans protected too. Bully for you. Oh look...there's a windmill over there!
Oppressor of Hapless Toads, too.
And Womyn...
If confirmed, will single-handedly reverse Roe v. Wade (we admit it - we're impressed....)
His gay children outed Valerie Plame.
He's a Virgin. A Gay, cross-dressing Virgin.
  

Posted by Cassandra at 12:30 PM | Comments (1) | TrackBack

August 07, 2005

More Thoughts On Roberts' Pro Bono Work

A few serious thoughts on John Roberts' pro bono work for gay activists in Romer v. Evans, which apparently has been confounding expectations both on the right and left. Some Righties are having palpitations - they fear another Souter in the making, while the Left... well, we've been having a bit of fun with them.

I really have no brief for anyone on the right who has issues with Roberts' willingness to help gay activists win a landmark case.

To read into six hours of pro bono work a wellspring of hidden sympathy for homosexual rights is, in my opinion, a bridge too far. Not that I would have any problem with that, mind you. I just don't think that's a conclusion one can justifiably reach from a single pro bono case. But I think there are at least two important conclusions one can draw:

1. Contrary to the way he's being portrayed, Roberts is not so irredeemibly wedded to ultra-Reich-wing ideology that he'd rather die than aid what many deem a liberal cause. One would think this would be a heartening sign to Senate Democrats who vehemently oppose his nomination.

2. Roberts is the kind of man who is conscientious about doing his job, in whatever role he finds himself. Lawyers are expected to take on pro bono work, and if they do they ought to represent their clients as zealously as if they were receiving a large retainer. That Roberts evidently did so in this case speaks well for his impartiality and integrity. And if he was secretly was pulling for his clients, so much the better.

He, like many conservatives, may well have a strong Libertarian streak. Most of us are very rule-oriented, but that is not the same as wanting the federal government inside our bedrooms. Ann Althouse references a good quote from Jim Lindgren, then comments herself:

[V]ery well educated conservatives rarely fit the public stereotypes assigned to them. While very high educations tend to make liberals more consistently liberal, very high educations tend to make conservatives less consistently conservative (and thus less extreme) on social issues....

This is a bit like highly educated bloggers: while supposedly "conservative" bloggers might support Bush's court nomineees and the War on Terror, such "conservatives" often take the liberal side on some issues, such as perhaps abortion rights, gay rights, assisted suicide, and stem-cell research, and they might also believe in evolution, oppose mandatory school prayer, or favor the right to burn flags. Such a diversity of views among the highly educated left is much more rare.

Lindgren phrases his observation in terms of the right being more diverse than the left. But another way to put it is to say that the highly educated usually reject social conservatism. The position on national security is then arrived at as a separate matter.

I couldn't agree more. The more I see of Roberts, the more I like him.

Posted by Cassandra at 12:56 PM | Comments (7) | TrackBack

August 06, 2005

Announcing: Conservative Bloggers Who Support The Gay Judge Roberts

Sometimes, enough is enough. The time has come for us to take action.

It has long been axiomatic for the Left that conservatives hate gays. It should be obvious that no political party can remain viable unless it is accommodates a wide spectrum of beliefs. The Republican Party is no exception: it is home to a variety of broadly conservative, but diverse viewpoints. Yet somehow, this basic truth is overshadowed by the fact that some (though by no means all of us) have religious objections to the practice of homosexuality. This is not the same as hating homosexuals.

Within our party, there are a wide variety of opinions on gay marriage. Some strongly favor civil unions. Some think gay marriage is fine, but want to leave it up to the states to decide. And some believe that marriage has a special meaning - that it was meant for a man and a woman for the procreation of children. And so they vehemently oppose gay marriage. You may agree, or disagree. America, last time we checked, is still a free country. But again, free debate is not hate speech.

The fuss over the nomination of Judge Roberts began over abortion. When the Left found no traction there, the debate quickly segued to toads, french fries, and matters of such profound Constitutional import as the nominee's ability to spell the word "Havana".

His family's sartorial excesses were mined for deeper socio-political meaning by experts like Robyn Givhans. What could little Jack's retro look tell us about how the nominee would rule? Inquiring minds wanted to know.

These tactics having failed to yield the requisite degree of entertainment value, things started to get silly. The NY Times started combing through the nominee's adoption records. One wonders what they hoped to find? Some personal dirt from a background investigation? Or perhaps some technical or legal impropriety that would overturn the adoption and leave two young children homeless? Who would be served by such a disgusting tactic, one wonders? In any event, they found nothing.

It seems nothing the candidate does will satisfy the Left. Against all evidence to the contrary, Roberts is relentlessly portrayed by those who should know better as a ruthless, Reich-wing extremist. Even the revelation that he worked pro bono in support of gay rights earns him no credit with the opposition.

plaid.bmp In fact, though it started out as a joke, the fact that Roberts supported gay rights, combined with his work on behalf of a cosmetics firm is being touted as evidence that he is gay:

We're sure Hotline didn't mean anything by it, but we know the first thing that came to mind this morning upon reading these two items in a row:

• SCOTUS nominee John Roberts "conceded" he should have said he was registered to lobby on behalf of the cosmetics industry in the questionnaire he submitted to the Senate (Newsday).

• "Roberts Donated Help to Gay Rights Case" (Los Angeles Times).

That's right: Clearly, Judge Roberts is a somewhat crooked but basically nice guy who maybe tries to even the karmic balance by helping out worthy causes.

Also, he is gay.

Confidential to M.D.: Just because you found the one bad picture of the guy doesn't mean he's not pretty.

Well helk. The half-vast editorial staff thinks John Roberts is pretty, too. And though we rather doubt he is gay, if he is, that's just fine with us. Frankly, we don't give a damn.

dubya.bmp He'll be in good company. After all, there's some pretty underwhelming evidence from the Left that W is gay, but durnitall, we voted for him anyway:

While Tony Blair may have mastered the Queen's English, our President's vocabulary calls to mind any number of queens' English. Even our least vigilant Republican social commandos have noticed that Mr. Bush has been peppering his otherwise delightful litany of patriotic jingoism and pleasantly embroidered CIA-intelligence recaps with the effeminate mating call "fabulous" -- three giddy syllables that are tantamount to coyly cooing, "Hello, sailor!"


"And we'll prevail, because we're a faaabulous nation, and we're a faaabulous nation because we're a nation full of faaabulous people."

-- George W. Bush., Atlanta, GA, January 31, 2002

ACF45C.jpg Even ShrubDaddy has triggered the Left's ever-vigilant gaydar:

Is George W. Bush the first gay president?

Evidence of Bush's non-heterosexual proclivities keeps surfacing. Kitty Kelley's Bush Family expose' "The Family" (2004) had noted George W. Bush's homosexual relationsip with Victor Ashe, the Mayor of Knoxvillle, Tennessee.

George W. Bush, who was the head cheerlader at all-male Phillips Academy in Andover, Massachusetts, as well as cheerleader at all-male Yale University has been quoted as saying, "I want to thank my old college classmate (you used to call him Bulldog, we call him Victor) the Mayor of Knoxville Victor Ashe," at the Van Hilleary for Governor Luncheon, Knoxville, Tennessee, Oct.

bushBarney.jpg "Cheerleader", "all-male", "my old college classmate"... heh. What more conclusive proof could any objective observer require? Homosexuality obviously runs in the Bush family. Heck - it's just rampant in the White Pink House. After all, look at Jeff Gannon and Ken Mehlman. DNC activists have their hands full yanking all the "hidden homos" in the Bush administration out of the closet. So far, only one male member of the Bush family seems to have escaped scrutiny".

And frankly, we're not taking bets on his chances.

In the end, this debate should not be about whether the nominee wore plaid in high school, or whether he wrestled, or hung around with too many other boys, or whether Wonkette thinks his face is pretty. There are more substantive issues to chew on.

If anyone is still interested in the issues, this piece give a rather nice view of the nominee's admirably-restrained approach to the law:

During the hearing, Roberts laid out his reasons for what might be called nominee restraint. A nominee who offered personal views of the Court's precedents in the confirmation process would undermine the independence and integrity of the judiciary, he said. Those important qualities are ensured by the assumption that "judges come to the cases before them unencumbered by prior commitments beyond the commitment to apply the rule of law and the oath that they take."

When Schumer asked how it was any different--was there not also harm done to the judiciary?--when litigants go before the Supreme Court knowing that some justices have opined in previous cases in such a way as to indicate opposition to their arguments, Roberts said that it was different, precisely because the confirmation process is not the judicial process. "The concern is that you are giving commitments, forecasts, hints, even at the extreme, bargains, for confirmation," whereas, in the judicial process, "you are deciding a particular case and stating your reasons for it." If a nominee gave in effect "a prior commitment" as to how a case should be decided, that would be wrong, Roberts said, and it would "have a distorted effect on how that judge will appear to parties appearing before him." Roberts was firm in drawing this line, and Schumer concluded by conceding how good a lawyer he is--"far better than I would ever be."

In his confirmation hearing, Roberts did offer some views, not about decided cases, but about judicial philosophy. Because he was nominated to a lower court, he emphasized his obligation to follow Supreme Court precedents. But he also seemed to endorse a way of approaching the task of interpreting the Constitution. "I do not think beginning with an all-encompassing approach to constitutional interpretation is the best way to faithfully construe the document," he said. He said that the Court itself didn't have such a philosophy, but he also seemed to think that the Court was right not to have one. He said he didn't feel comfortable with labels like originalist, textualist, or literalist, and he said different constitutional provisions call for different interpretative approaches. "You have a very different approach in saying how you are going to give content to the Fourth Amendment prohibition on unreasonable searches and seizures. That's one thing. It doesn't mean that you apply the same approach to a far more specific provision like the Seventh Amendment," which preserves the right of trial by jury in suits at common law.

Read the whole thing.

Because in the end, this isn't about who is gay, or who is not. It's about reading the Constitution fairly. And Judge Roberts, from everything I can see, approaches that task with a thoughtful and restrained approached that, in the end, returns maximum power to the legislatures of this great nation.

And that should be heartening to those on both sides of the political aisle, for it means that all they then need to do is roll up their sleeves and persuade the people of their case.

Now can we talk about something else?

You can join us at the Conservative Bloggers Who Support The Gay Judge Roberts website

Thanks for the faaaaaabulous logo art to spd rdr at Heigh Ho

Cross-posted (which is even more fun than cross-dressing) at CBWSTGJR.

Update: Got the nicest email from Ana Marie Cox. She has announced her support of our little initiative... especially, she says, if he *is* gay.

Mind you, she's not a conservative (nor does she need to agree with us - we don't even agree with each other half the time!), and she doesn't necessarily support his judicial philosophy. But she has a great sense of humor - she took this whole thing exactly in the spirit in which it was intended.

Now why can't more people on Capitol Hill be that way?

Posted by Cassandra at 06:27 AM | Comments (17) | TrackBack

August 04, 2005

Dumb-Ass Question Contest

Howard Bashman of How Appealing had an absolutely brilliant idea last week for a contest: identify the most dumb-ass question that could possibly be asked of U.S. Supreme Court nominee John G. Roberts, Jr. at his upcoming confirmation hearings.

Well, despite the fact that I was just pea-green with jealousy because I did not come up with the idea myself, I decided to be a good sport and play along. Sadly, I did not win. Top honors went to an anonymous reader from Philadelphia:

Justice- Pardon me, Judge Robert, I mean Roberts:

If you were Chief Justice of the Supreme Court along with John Souter, Terrence Thomas, Anthony Scalia, Nino Kennedy, Ruth Day O'Ginsberg, John Paul Jones, William Brennan, and your former boss Bill Rehnquist, and a case involving abortion and capital punishment came before you on an appeal from a panel upon which you sat, and you believed you would be committing a mortal sin by hearing the case but not deciding it, and you'd gone duck-hunting with counsel for appellants but the Founders and the French would agree with the other side, would you recuse yourself if your wife had signed but not been involved with drafting of one of the amicus briefs?

Well fine [sniff!] I admit he/she had me beaten fair and square...

toad.jpg But I got 1st runner up!!! Mr. Bashman probably took pity on me after being pestered by one too many emails (actually I think I only sent 2 or 3 - I can't remember). You will no doubt be surprised to learn that my entry featured the Hapless Toad:

Regarding your extremist and highly controversial decisions in Rancho Viejo v. Norton and Hedgepeth v. WMATA, the American people have a right to know:
If an endangered pregnant Southwestern arroyo toad were arrested for eating a single French Fry on the DC Metro while en route to obtain an illegal third trimester abortion, would your Catholic beliefs force you to recuse yourself from the case? Furthermore, would the fetus qualify as a protected class under the 14th Amendment, or would you apply rational basis review as you did in Hedgepeth, thereby condemning the hapless toad to a lengthy stay in the DC detention center and depriving the mother of the right to control her reproductive destiny?

There were several other very funny entries in the Honorable Mentions - go check them out.

And if you want to try your hand in the comments section, have at it! I could have gone on forever, but was afraid Mr. Bashman would have my IP banned....

What a hoot.

Posted by Cassandra at 12:07 PM | Comments (17) | TrackBack

August 01, 2005

Heh...

I suspected this was a monumentally stupid piece the first time I read it - otherwise I'd never have bothered to look up rational basis review (it's not as though I bash about the greater Washington metropolitan area with the definition rattling around in my brainpan).

Eugene Volokh weighs in:

What, though, was the precise "civil rights claim[]" that Judge Roberts was responding to here? It was Hedgepeth's argument that the government policy unconstitutionally discriminated based on age. But of course the Supreme Court has generally held that age discrimination is constitutional if it's rationally related to any legitimate government interest -- the most deferential of the equal protection tests. Here's Judge Roberts' argument in context (some paragraph breaks added):
We therefore need not review all the reasons given by the defendants in support of the challenged distinction between children and adults; it is enough that we find one reason rational. We conclude that the no-citation policy for minors is rationally related to the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.

Issuing a citation to a child is complicated by the fact that there is often no ready way to ensure that the child is providing truthful or accurate identifying information. A child often will not be carrying a form of identification, and there is nothing to stop one from giving an officer a false name -- an entirely fanciful one or, better yet, the name of the miscreant who pushed them on the playground that morning. In this situation parents would be none the wiser concerning the behavior of their children.

The correction of straying youth is an undisputed state interest and one different from enforcing the law against adults. Because parents and guardians play an essential role in that rehabilitative process, it is reasonable for the District to seek to ensure their participation, and the method chosen -- detention until the parent is notified and retrieves the child -- certainly does that, in a way issuing a citation might not.

The district court had and we too may have thoughts on the wisdom of this policy choice -- it is far from clear that the gains in certainty of notification are worth the youthful trauma and tears -- but it is not our place to second-guess such legislative judgments.

Given the Supreme Court's rulings that age is not a "suspect" or "quasi-suspect" classification, and therefore age classifications are permissible whenever they're rationally related to a legitimate government interest, it seems to me that Judge Roberts' decision was perfectly sound -- and that a contrary decision on the equal protection issue would have been inconsistent with the Supreme Court caselaw that Judge Roberts was required to follow. (As to why Judge Roberts' decision was also correct, and mandated by the Supreme Court precedents, as to the Fourth Amendment, see this post below).

And let's keep in mind the hideous punishment meted out to this 12-year-old child.

She was detained for three hours. We are shocked.

Posted by Cassandra at 05:11 PM | Comments (5) | TrackBack

July 29, 2005

The John-Roberts Omnibus Post

toad.jpg I hate to say "I toad you so"... but the Roberts nomination seems to be the comedy gift that just keeps on giving.

Is there a single elected official who has failed to make an ass of himself in what is coming to be the feel-good hit of Washington's silly season?

Senate Democrats and Judiciary Committee minority staffers are miffed that conservative bloggers appear to have more information about Bush Supreme Court nominee John Roberts than they do.

That would be because we can read.

"They've got material out there that we don't know about," whined complained Sen. Edward Kennedy, who's leading an effort to force the White House to turn over any documents it has on Roberts.

While you're at it, why don't you have the Junior Senator from Massachusetts serve a subpoena on the Blogosphere?

Other Democrats said that they believe the White House is providing supportive bloggers with information that paints Roberts only in a positive light. Kennedy, speaking to reporters last Friday, said that he was unaware of the prolific GOP blogging on behalf of Roberts until his wife pointed it out.

So... it's perfectly kosher for your wife to give you career advice, but *not* OK for Miz Roberts to have her own opinions? Got it.

First there was the pitiful shrieking because The Shrub had failed to nominate a Persun of Estrogen to replace the now-beatified Sandra Day O'Connor, a single strand of whose silvery hair is now enshrined in imperishable crystal at the ACLU as a silent witness to the power of enlightened progressyve conservatism, whatever that is. Miracles have been said to occur at the mere touch of the sacred relic. We'll keep ya posted.

There seems no end to the vile and shocking revelations about this extremist candidate:

As soon as the nomination was announced, alert SCOTUS clerks revealed that the dread Pirate Roberts was actually the head of the super-secret Constitution-in-Exile movement and accused him of waving the bloody shirt of Lochnerism. Thus was the Republic saved for another day.

Then the various sartorial excesses of the Roberts progeny and their paterfamilias were mined for deeper psycho-sexual meaning: BoogieGate, EasterEggGate, and PlaidGate followed in dizzying succession, much to the WaPo's delight.

Then the Accidental Candidate's Specie-ist tendencies were revealed in all their hideous majesty.

There was ToadGate....

BatGate...

Even the lowly French Fry suddenly seemed sinister and shadowy when connected with this out-of-the-mainstream, extremist nominee:

french_fry.jpg

You'd have thought the DNC MemeWagon would have begun to run out of gas at this point. But you'd have been wrong. Traveshamockery piled upon traveshamockery. His personal beliefs were highly suspect:

Roberts was found to be a follower of a secretive, non-mainstream cult, a clear violation of Article VI of the US Constitution.

And inquiring minds wanted to know: was he, or was he not a member of the Federalist Society - that haven of conservative thought? The thought I'd like answered at the confirmation hearings: if there's no bias in academia, why does on earth does conservative thought need a haven? Only Roberts' hairdresser knows for sure. Hopefully he can also answer a few questions about those plaid pants.

And then the Final Agony... we found the Pill That Just Could Not Be Swallowed:

...while a member of the White House Counsel office, and still in his 20’s, Roberts misspelled the word "Havana." And not once, but three times! He spelled it "Havanna" in each case, and if the Times had not looked through thousands of files in the Reagan Presidential Library, Roberts might have gotten away with it.

Even worse: when writing about the rights of Cuban refugees from the Mariel boatlift of 1980, he misspelled Marielitos. The poor fool actually wrote "Marielitoes," and what’s more, notes the Times, he did so "repeatedly."

What would happen if such a man were actually permitted to join our highest court. I mean, today we have Honduran refugees! The mind reels at what this dolt would do to "Tegucigalpa."

Oh, and by the way did we mention he really, really hates black people? (via Rick Hasen). Just thought I'd throw that one into the mix. Fisking it will have to wait until my customary blood-alcohol level (or my sense of humor) has been restored.

Posted by Cassandra at 02:58 PM | Comments (3) | TrackBack

July 28, 2005

Rehnquist: Time To Go, Old Bean

I couldn't have said it better. This has been a big topic of conversation around Villa Cassandranita, drawing more than the usual sardonic raised eyebrow from the Spousal Unit.

We had to update the Homeland Political Alert Status to Withering Scorn:

Hugo Black once told his clerks that justices who stay in office longer than they should ''impose terrible burdens" on their colleagues. But he didn't take his own advice, refusing to resign even when a stroke had wrecked his memory and ability to concentrate. A stroke debilitated William O. Douglas's mental abilities, too. In his last years on the bench, he addressed people by the wrong names, spoke in non sequiturs, and dozed during oral arguments. Even after finally retiring, he continued to show up at the court, insisting in his dementia that he was still a sitting justice.

Age sometimes brings wisdom, but too often it brings weakness, fatigue, and mental incapacity. Americans would be aghast at an airline that permitted 80-year-old pilots to fly its jets or a hospital whose surgeons were feeble and confused. Shouldn't we at least be concerned about superannuated Supreme Court judges?

Posted by Cassandra at 10:14 AM | Comments (12) | TrackBack

July 25, 2005

Faith - Or Is It Morality? - As Litmus Test

At last. The Left finally comes out and baldly states what I have long suspected: belief in God - in and of itself - is a disqualifier for service on the Supreme Court.

Now before I go into my tirade, let me issue the obligatory disclaimers:

1. I don't attend church.

2. I don't even pray on any regular basis.

3. I am, both by religious affiliation and the due application of Holy Rites, an Episcopalian, which I admit makes me religiously and morally suspect. The Anglican Church is, as I like to joke in my snarkier moments, a sort of Catholic Lite: all of the ritual, none of the guilt. Less spiritually fulfilling, but on the other hand we Piskies tend to keep our girlish figures.

It must, however, be admitted that I have a sneaking suspicion that there is an Almighty and that He will rudely continue to exist throughout the Ages, regardless of my desires or opinions on the matter. My favorite adage is the one Carl Jung is reputed to have had wryly inscribed over the door of his dwelling in Switzerland:

Vocatus atque non vocatus deus aderit

I have asked that it be inscribed on my gravestone. So much for my chances of ever becoming a Supreme Court justice [dusting off hands].

In the LA Times, Jonathan Turley, a law professor, has made a shocking discovery:

Judge John G. Roberts Jr. has been called the stealth nominee for the Supreme Court — a nominee specifically selected because he has few public positions on controversial issues such as abortion. However, in a meeting last week, Roberts briefly lifted the carefully maintained curtain over his personal views. In so doing, he raised a question that could not only undermine the White House strategy for confirmation but could raise a question of his fitness to serve as the 109th Supreme Court justice.

Indeed. Whatever could this be? Has he killed someone? Perhaps he has a drinking problem? We await this judiciary indiscretion with baited breath...

The exchange occurred during one of Roberts' informal discussions with senators last week. According to two people who attended the meeting, Roberts was asked by Sen. Richard Durbin (D-Ill.) what he would do if the law required a ruling that his church considers immoral. Roberts is a devout Catholic and is married to an ardent pro-life activist. The Catholic Church considers abortion to be a sin, and various church leaders have stated that government officials supporting abortion should be denied religious rites such as communion. (Pope Benedict XVI is often cited as holding this strict view of the merging of a person's faith and public duties).

Apparently Professor Turley hasn't read this statement:

In his defense, Roberts told senators during his 2003 confirmation hearing that he would be guided by legal precedent. "Roe v. Wade is the settled law of the land. ... There is nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

He may also have missed Christ's advice to "render unto Caesar what is Caesar's and unto God what is God's", but Judge Roberts, being a "devout Catholic" is presumably better-versed in the New Testament than Professor Turley.

But the truly interesting questions here are these: why did Judge Roberts appear nonplussed? And why on earth would anyone not recuse himself from a case in which he truly found himself forced to do something he found morally reprehensible?

As to the first interrogative, I think I can answer that one.

It was rather a stupid question, on the face of it. Judge Roberts has been practicing law for many years now. He is hardly the first Catholic in history to do so. There are few new issues to come before the Court. What strange and tortuous moral issues does Mr. Turley imagine will arise to confuse and perplex Justice Roberts, that have not similarly faced Tony Scalia? Or other jurists of faith? Was the questioner impugning their piety? Or perhaps Judge Roberts' honor? I believe I would have been similarly confused when faced with a question of such stunning idiocy.

Or perhaps it was just the blatant malice that perplexed John Roberts.

But more importantly, does the questioner imagine that only men (and women) of faith have scruples? That only Roman Catholics might find themselves facing questions of conscience? I think most atheists, not to mention Protestants, might find that premise highly insulting.

How is it that we have come to equate Catholicism with unfitness for public office? Or is it perhaps really "strongly-held beliefs" that those with a "flexible urban viewpoint" find make one uniquely unfit to ascend to a higher position?

Are we now willing only to confirm those who affirm nothing? Who have no "settled judicial philosophy"?

Who will rid us of these inconvenient principles?


Posted by Cassandra at 08:50 AM | Comments (15) | TrackBack

July 21, 2005

Hoist By Their Own Petard

Via my man Brit Hume:

The Federal Equal Employment Opportunity Commission defines sexual harassment as "unwelcome sexual advances," and "requests for sexual favors." But the California Supreme Court has now ruled unanimously that a worker can be a victim of sexual harassment even if the boss never touched her or even spoke to her.

The court ruled in favor of female prison employees who complained that their boss unfairly rewarded women with whom he was having consensual affairs. In overturning earlier rulings, California Chief Justice Ronald George wrote, "even in the absence of coercive behavior, certain conduct creates a work atmosphere so demeaning to women that it constitutes an actionable hostile work environment."

This is without a doubt the most cretinous statement I have ever heard, notwithstanding the fact that this is sexual harassment law (which means that by definition the bar was set about as low as one can imagine).

But the truly interesting thing about this ruling is this: it may not be nearly as idiotic as it first appears. I always say that liberals and feminists should be careful what they wish for - this case is a perfect example. The implications are startling. Look at the court's reasoning:

Widespread favoritism based upon consensual sexual affairs may imbue the workplace with an atmosphere that is demeaning to women because a message is conveyed that managers view women as 'sexual playthings,' " Chief Justice Ronald M. George wrote for the court.

All right, this *is* unbearably stupid. But bear with me.

In such a situation, other employees may believe "that the way required to secure advancement is to engage in sexual conduct with managers," he added.

It is a very strong opinion in favor of protecting women who are not directly harassed but indeed are disadvantaged by the fact there is favoritism in the office," said William C. Quackenbush, an employment law expert.

He said situations involving sexual favoritism arise frequently in the workplace, particularly in large companies.

The ruling is the result of a sexual harassment lawsuit, which has not yet been tried, against the state's Department of Corrections. Edna Miller and Frances Mackey charged that a prison warden, Lewis Kuykendall, who was married, had sexual affairs with three other employees and gave them preferential job treatment. The two women said they suffered retaliation when they complained.


The affairs occurred from 1991 to 1998, when Kuykendall was the chief deputy warden of the Central California Women's Facility and later the warden of the Valley State Prison for Women, both in Chowchilla. The court said the affairs were concurrent.

Mackey, who has since died, and Miller presented evidence that Kuykendall's favoritism to his girlfriends impeded their job advancement. They also said his behavior opened them to harassment by one of the girlfriends. Employees often had to endure jealous and emotional squabbling among the girlfriends over Kuykendall, the court said.

Two of the girlfriends bragged to others about their power over Kuykendall, and he displayed "indiscreet behavior" at a number of work-related gatherings, the court said.

In one incident, Miller competed with Cagie Brown, one of the girlfriends, for a promotion, the court said. Brown told Miller that Kuykendall would have to give her the job or she would "take him down" by naming "every scar on his body," the court said.

Brown received the promotion even though Miller had a higher rank, superior education and more experience, according to the court.

Miller also said she ran into problems with a female deputy warden who she believed was engaged in a relationship with Brown "that was more than platonic," the court said. The deputy warden, Vicky Yamamoto, and Brown frequently countermanded Miller's orders, undermined her authority, imposed additional duties and threatened reprisals if she reported problems, the court said.

Behavior like this is precisely what the military's strict anti-fraternization rules are meant to prevent. "Why", they ask, "can't people date each other at work?". And with women in the military that is becoming a bigger and bigger problem. But that's not all. Activists have been pressing, not only for relaxation of fraternization rules, but for allowing women in combat and for abolition of the military's "Don't Ask, Don't Tell" policy.

But the logical consequence of both those policies is simply this: during wartime, when human beings are under extreme stress, when the need for discipline is strongest and indelible bonds between soldiers are forged, we are now going to throw people together who are sexually attracted (whether male and female or same-sex couples who are homosexual)? And somehow, miraculously, against all prior experience with human nature, we expect this to have no impact on 'good order and discipline'?

It's very interesting to me that as women take a more assertive stance in the workplace, we're starting to see decisions like this come out of activist demands that actually reinforce old-fashioned standards of behavior. Well you can't have it both ways. You can't have women in the workplace and demand the right to date co-workers and bosses, then demand your 'sexual freedom' and yet preserve the right to be secure against discrimination when your co-workers sleep their way to the top.

Sometimes life isn't fair. Get over it - men have been dealing with this kind of crap for years. Sexual favoritism is hardly the only kind of favoritism out there - if it weren't that, it would be something else. You can't sue over every little hardship that comes your way in the workplace. Sometimes the solution is to leave and find a boss who isn't a complete jerk.

American society is becoming far too whiny and litigious. How about a little self-help here? The courts can't solve everything - this is like killing a gnat with a sledgehammer.

Posted by Cassandra at 08:40 AM | Comments (10) | TrackBack

July 20, 2005

Shrub Fails To Nominate Person Of Estrogen...

I'm sorry but I couldn't resist that one.

Let the merciless mocking begin.

Update: I think I have a slogan: "Roberts: waiving waving*** the bloody shirt of Lochnerism since 1978".

It has a nice ring to it, doncha think? But I'm not sure it will resonate with Joe SixPack. I believe I'll give old Harry Reid a call and see what he thinks.

***bloody smart-a**ed local knavery...

Posted by Cassandra at 01:50 PM | Comments (22) | TrackBack

This Just In...

fruitbat.jpg As I was exploring the masticatatory wonders of my leftover KungPao Chicken Delight, I happened to turn on the telly and learned to my horror that Judge Roberts, in addition to oppressing the Endangered Southwestern Toad, may also have been responsible for the tragic decline of another noble species of American fauna:

You've probably all seen pictures of these delinquent young bats on TV, hanging from the ceilings of deserted bullpens all over America. In their bleary ganga-reddened eyes and Cheeto-dusted little mouths, you can see the desperation of these once-proud denizens of the night.

You may have glimpsed the "gang-sign" they use to mark their territory - a territory that is rapidly vanishing due to the irresponsible human-centric platform and disastrous economic policies of the Bush administration. Without your help, future generations may have to go to a museum to see a MidWestern Corked bat.

But you can make a difference. For a small donation of $180 - just 50 cents a day - you can change the life of a young MidWestern Corked Bat. We'll even send you a picture of your sponsored Bat that you can post on your refrigerator to remind you of money well spent.

We don't all get to make a difference in this world. You've probably considered contributing before, but it's easy to make excuses like, 'I'm too busy', or "I'm just one Frenchman - there is no "we" - there is only "I". What is the point of even trying in an Existentialist universe without a Supreme Being? Where are my cigarettes?"

That's why I'm asking you to call today - 1-800-BAT-RSCU - Again, that's 1-800-BAT-RSCU.

You owe it to your children to preserve this fine specimen of nature's glory. Remember the BatsRUs slogan:

"A small donation today will help ensure that the Corked Bat will produce mildly hallucinogenic guano for generations to come."

I ask you, fellow Americans: who will stand with me against this monster?

Posted by Cassandra at 01:18 PM | Comments (13) | TrackBack

John Roberts Revealed As Nefarious Head Of Constitution In Exile Movement [Shudder]

Of course, those looking for a worse reason to suspect Judge Roberts of all sorts of villainy need look no farther than this post. Apparently I have led you all astray with my Thomasian conspiracy-flogging:

Thomas. Mein Gott Im Himmel!, who would have guessed it! That pudgy, avuncular-looking little man, suddenly rising up in his black robes like the Lord of the Nazgul. Stooping to pick at the flesh of a Woman's Right To Choose and grabbing welfare dollars from the hands of baby-Daddies all over this great nation! Sure, he may look like a teddy bear, but he's [[[shudder]]] worse than Scalia!

Yes, I admit I thought Clarence was the dread Lord of the Constitution-in-Exile movement, but it doth well appear that the true arch nemesis of all left-thinking jurists may be none other than John Roberts:

I have been skeptical as to whether there’s anything to the so-called “Constitution in Exile” movement, which sounds too much like revival of the Knights Templar to be plausible. Maybe too skeptical. Almost as if reading the DaVinci Code, I was a bit startled to come across this in one of John Roberts’ earlier writings:
"The contract clause provides an ideal vehicle to begin carrying disaffection with excessively deferential review into the area of social and economic legislation.”

Good nightshirt. Is there no end to the dirt that continues to emerge on this completely unsuitable extremist nominee? But there was worse to follow:

“An argument for stricter scrutiny in contract clause cases than in economic due process cases can be made, based on the specific mention in the Constitution and on the notion that contract, as a means of ordering personal affairs, deserves special protection from unwarranted state interference in a polity founded on personal autonomy and self-governance. On the other hand, most social and economic legislation can be expected to have some impact on existing contractual relations, so a revived contract clause with higher scrutiny may effectively carry this scrutiny over into the economic due process area.Even if the Court extends this mode of scrutiny to review social and economic enactments generally, it does not seem necessary to wave the bloody shirt of Lochnerism. The Court is simply requiring articulation of the state interest involved, so that it can justify the often severe harm inflicted in pursuit of it. …Excessive deference and speculation as to state purpose have led to some dubious results in the post-Lochner period, results which could be avoided by more careful judicial inquiry but without returning to the excesses of the Lochner era.” Contract Clause – Legislative Alteration of Private Pension Agreements, 92 Harvard Law Review 86, 97-98 (1978).

Of course we all know what 'scrutiny' is a code word for... except when it's not.

Bloody shirt indeed... that young fool.

Heh...of course the really heinous thing about him is that the man simply loathes toads.

Can't have that.

CWCID to Blogometer for the Clerks links

Posted by Cassandra at 10:29 AM | Comments (7) | TrackBack

The Beatings Will Continue Until Morale Improves

I greatly feared this yesterday whilst reading up on Judge Roberts. I had an uneasy feeling he would be the nominee, if only to ensure abortion activists would go high and to the right (for no reason, not that they ever need one). And that seems to be the case today. Adam at Southern Appeal comments:

Drudge is running a huge headline across the page, in red, quoting Roberts as saying "We continue to believe that Roe v. Wade was wrongly decided and should be overruled."

That is quoted from a brief to which his name was attached while he served in the Bush Administration. The brief was written on behalf of the administration, not on his own behalf. That brief was filed in Rust v. Sullivan, 500 U.S. 173 (1991). This was hardly a statement of Judge Roberts's personal position. Judge Roberts was not even the top name on the brief..

Now unless Judge Roberts has recently been annointed by the Finger of the Almighty and adopted the use of the Royal "we", one could perhaps be charitable and assume he was, as has been the custom with paid advocates for Lo! these many years, vigorously arguing the government's position? Juan non-Volokh was inclined to see it this way as well:

Attorneys have an ethical obligation to zealously advocate the position of their clients. An attorney in Roberts position had an express duty to advance his client’s – the federal government's – policy position as effectively as possible. If this meant attacking Roe head on (after all, Roberts did win the case, even if Roe was not overturned), Roberts would have been derelict in his duty had he softened the claim.

The WaPo Sunday attributed the statement to Roberts - this alone made my black Celtic heart certain he would be the nominee. I looked it up and noted, as Adam did the almost-unbearable tendency to link it to Roberts:

In the original version of this post, I suggested that "he wrote" the brief. Of course, that was itself a misstatement; I have no clue which person or persons wrote that brief; all I know is that his name was attached. (Look at me -- now even I'm tying him too tightly to that brief.)

The WaPo Sunday was dismissive, also attributing the quote exclusively to Roberts. The NY Times was more fair, actually managing to capture the distinction between one's personal views and the requirement to do one's job. Full marks:

Abortion rights groups fault him for arguing, as deputy solicitor general for the first Bush administration in 1990, in favor of a government regulation banning abortion-related counseling in federally financed family planning programs.

He also helped write a brief then that restated the administration's opposition to Roe v. Wade, the 1973 Supreme Court decision that established the constitutional right to abortion, contending, "We continue to believe that Roe was wrongly decided and should be overruled."

But when pressed in his 2003 confirmation hearings for his own views, he said: "Roe v. Wade is the settled law of the land," and added, "There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

Such comments have made Judge Roberts somewhat suspect in the eyes of some social conservatives. But he arouses nothing like the opposition that conservatives leveled at another potential nominee, Attorney General Alberto R. Gonzales, whose views on abortion are more uncertain.

If only that sort of nuanced view were to take hold in Congress.

We can only hope. Meanwhile, for those who want the inside scoop on Judge Roberts, KJ has what I consider to be the definitive legal analysis of his conservative credentials. Most impressive.

Posted by Cassandra at 08:17 AM | Comments (15) | TrackBack

July 18, 2005

Equal Protection, My Ass

This "reasoning" just infuriates me. It is precisely this type of thing which keeps me out of law school:

The simplest tool for evaluating sex offenders is the Rapid Risk Assessment for Sex Offense Recidivism. The RRASOR (pronounced "razor") includes just four items. A sex offender gets one point for being under the age of 25 at the time of his release from prison, another if any of his victims were male, and a third if he wasn't related to his victims. He gets up to three more points depending on how many sex crimes he's been charged with.

The most dangerous offenders, then, are young adults who have committed multiple sex crimes against boys they've never met before. According to the RRASOR's table of probabilities, these six-point cases have more than a 73 percent chance of committing another crime within 10 years. . . .

So what can we reasonably infer from this (assuming, of course, that the research was conducted in a valid manner)?

That the worst recidivists are men who commit sex crimes against young boys who they don't know.

And the burning (forgive the sick joke here, but at this point my mind said, "ouch!") question this piece of sick knowledge aroused in the legal mind?

Let's say that the RRASOR test seems like an accurate predictor, and in particular sex criminals (overwhelmingly male ones) who attacked a boy are found to be substantially likelier to reoffend than those who attacked a girl. May parole boards and sentencing judges take the test's result into account? (1) Would this be sex discrimination, on the theory that it discriminates based on the sex of the victim, though not of the offender? (2) Would it therefore violate the Equal Protection Clause? (Note that the Equal Protection Clause has been interpreted as presumptively barring discrimination based on sex, though generally not discrimination based on sexual orientation.)

While I fully understand that in this case the Equal Protection Clause is concerned only with the prisoner's rights, I refer the half-vast readership to the title of this post.

Let's take this slowly. If the Equal Protection Clause is invoked here, this says that persons with a 73% or greater probability of raping one or more boys within the next ten years (that is, after all what we are talking about here) will very likely be released, when we have an empirically-based method to reduce or perhas even entirely prevent such future rapes from happening.

When will we stop making laws based on the fiction that there are no behavioural differences between men and women? "Equal protection", in this case, is a legal fiction when applied to small boys, who apparently can expect no protection from the law.

As a mother who raised two boys, I am appalled.

Posted by Cassandra at 08:24 AM | Comments (15) | TrackBack

July 11, 2005

The Myth Of Conservative Judicial Activism

Yesterday I got an email from my Dad. The subject line read, "Michael Kinsley stumbles onto the truth...".

I had to laugh. Tacked up behind my monitor was another of his editorials in which he'd had an Epic Encounter with Reality. Mr. Kinsley was dutifully flailing away at the liberal Boogeyman Du Jour: conservative judicial activism. Reading his piece several weeks ago, I'd had exactly the same thought - "One of these days the man is going to hurt himself".

Conservative judicial activism - this one never fails to mystify me. By what definition is it "dangerously radical" to interpret the Constitution as originally written? How is it activist to resist reading things into a document which clearly are not there, or to wish the Supreme Court would stay within the bounds set for it by the Constitution? That would seem more passivism than activism, at least to my way of thinking.

Typically, Kinsley manages to twist the definition of "activism" around until he has it exactly backwards. After a series of rhetorical twists and turns that leave the reader dizzy and confused, he heaves an enormous sigh of relief:

...the danger of conservative judicial activism has been averted for another year. Stay tuned.

Yes, those working-class folks may have lost their homes, but I'm sure they feel comforted by the thought that those horrid activist judges have been forcibly restrained from narrowly defining the Public Use Clause. But though Kinsley got almost everything else wrong, the truth he stumbled onto was a stunner. Or it would have been, had he only realized it:

Of course, conservatives always claim to be against judicial activism. Liberals have long suspected that this was a decoy and that once conservatives had control of the federal courts they would twist their mustaches, laugh contemptuously and reveal the various policies they planned to impose by judicial fiat. Conservatives and liberals alike have been waiting for this moment for a third of a century. Each Supreme Court appointment by a Republican president seems to be "it." And yet "it" hasn't happened. Roe v. Wade -- the high-water mark of liberal judicial activism -- still stands. And on Thursday the court said a surprising "no thanks" to judicial activism, Republican style.

Kinsley's unwitting admission was even more remarkable when you consider that 7 of the 9 sitting Justices were appointed by Republicans. Did it never occur to him that perhaps all the Democratic hysteria might be misplaced? After all, he admits that though the court has been controlled by conservative appointees for quite some time, the nightmare of conservative judicial activism has not come to pass. Nor is it likely to - for good reason. For unlike Nancy Pelosi, who greets the prospect of a Divine SCOTUS as the beginning of an Age of Marvels, conservatives most definitely do not feel that the Court's pronouncements are "almost as if God has spoken". Why is it that the party that complains about disenfranchisement and the importance of representative goverment seems so eager to cede power from the legislative to the judicial branch?

This has long puzzled me. I have never understood why Democrats resist Federalism. Likewise, it has always mystified me how otherwise intelligent people define originalism as "radical" when it is such a minimal approach. The answer, I have come to believe, lies in whether one believes the end justifies the means. Whether one believes in rule- or process-based government, or that it is more important to achieve a given end quickly, with a minimum of fuss; even if in so doing one stretches established law and procedures to the breaking point.

The former approach implies a fundamental mistrust of human nature and a reliance on the accumulated wisdom of prior generations. It assumes rules generally exist for a reason (i.e., in the past, something bad probably happened, causing someone to learn from experience and create procedures to handle future occurrences). The latter approach assumes that somehow human nature is perfectible: past mistakes will not be repeated and people will always behave responsibly, regardless of incentives or disincentives. This is an assumption history has not borne out.

Nowhere was the tension between these two philosophies more clearly evident than in the often-conflicting rulings of recently retired Justice Sandra Day O'Connor. Conservatives often struggled to understand why she ruled one way on this case and another on that. Charles Krauthammer pins it down neatly. Unlike Antonin Scalia or Ruth Bader Ginsburg, philosophical opposites united by the use of a strong and consistent judicial philosophy, Justice O'Connor seemed more interested in achieving social ends than in carrying out her appointed role as an interpreter of the Constitution:

Perhaps the most telling moment of Sandra Day O'Connor's nearly quarter-century career on the Supreme Court came on her last day. In her opinion on the Kentucky Ten Commandments case, O'Connor wrote that, given religious strife raging around the world and America's success in resolving religious differences, why would we "renegotiate the boundaries between church and state. . . . Why would we trade a system that has served us so well for one that has served others so poorly?"

This is O'Connorism in its purest essence. She had not so much a judicial philosophy as a social philosophy. Unlike a principled conservative such as Antonin Scalia, or a principled liberal such as Ruth Bader Ginsburg, O'Connor had no stable ideas about constitutional interpretation. Her idea of jurisprudence was to decide whether legislation produced social "systems" that either worked or did not.

Liberals applaud O'Connor as a pragmatist and a moderate, but in reality her judicial philosophy was anything but moderate: it was not only radical but inherently destabilizing:

The problem with ad hoc pragmatism, however, is that it turns the Supreme Court not only into a super-legislature but also into a continuously sitting one. Does anyone have any idea exactly how many reindeer are required to make a town's Christmas creche display constitutionally kosher? Or exactly how much weight you are allowed to give racial preference in hiring? The only way to know is to sue and go back once again to the Supreme Court.

It was also fundamentally undemocratic, resulting in a Supreme Court that has begun slaying gnats with a rolled-up Constitution. Can anything be sillier than the recent split Ten Commandments decisions? It is hard to believe the Founding Fathers intended SCOTUS to weigh how many cubic feet of fresh air suffice to diffuse the oppressive miasma of the Decalogue.

But erasing both our history and every vestige of the religion which has formed such a large part of American life seems to be a vital goal for the liberal left. The reason for this becomes obvious when one considers their goal, like that of Justice O'Connor, is defined as 'social stability': the maintenance of recent, post-FDR social engineering largely enacted through an increasingly activist (and increasingly liberal) Supreme Court.

Robert Bork comments on the changes time and activism have wrought:

What do the nomination of a replacement for Sandra Day O'Connor, constitutional law, and moral chaos have to do with one another? A good deal more than you may think.

In Federalist No. 2, John Jay wrote of America that "providence has been pleased to give this one connected country to one united people--a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs." Such a people enjoy the same moral assumptions, the cement that forms a society rather than a cluster of groups. Though Jay's conditions have long been obsolete, until recently Americans did possess a large body of common moral assumptions rooted in our original Anglo-Protestant culture, and expressed in law. Now, however, a variety of disintegrating influences are undermining that unanimity, not least among them is the capture of constitutional law by an extreme liberationist philosophy. America is becoming a cacophony of voices proclaiming different, or no, truths.

Alexis de Tocqueville observed that "if each undertook himself to form all his opinions and to pursue the truth in isolation down paths cleared by him alone, it is not probable that a great number of men would ever unite in any common belief. . . . Without common ideas there is no common action, and without common action men still exist, but a social body does not."

Contrast Tocqueville with Justices Harry Blackmun and Anthony Kennedy. Justice Blackmun wanted to create a constitutional right to homosexual sodomy because of the asserted " 'moral fact' that a person belongs to himself and not others nor to society as a whole." Justice Kennedy, writing for six justices, did invent that right, declaring that "at the heart of [constitutional] liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Neither of these vaporings has the remotest basis in the actual Constitution, and neither has any definable meaning other than that a common morality may not be sustained by law if a majority of justices prefer that each individual follow his own desires.

There is a great tension in America between our inherent desire for freedom of individual action, between what we as free beings see as our natural rights, and the respect for law and our civic duties. To someone born and raised in a military family part of this seems quite strange. The notion of duty seems as natural to me as breathing in and out. I cannot avoid it, nor would I want to. To me, freedom and duty go hand in hand: I enjoy freedom precisely because I belong to a greater entity:

The polis: a Greek city-state; broadly : a state or society especially when characterized by a sense of community.

As an individual, I am suspicious of government and generally annoyed by nosy officials and intrusive rules. On the other hand, as an adult I have learned that without rules and police and consequences, people invariably behave badly. Without rules, without police, we have anarchy: the rule of the strong over the weak or the tyranny of the many over the few. Thus we put up with the inconvenience of government - because it guarantees our freedoms.

But government is becoming so large, so remote and unwieldy that it no longer responds to the ordinary citizen. And this is largely a consequence of the encroachment of the federal government on areas that were once solely the province of state and local government. And this has happened because we have been seduced by the siren song of individual freedom: instead of working through our state and local governments to ensure they represent us fairly, we have taken the quick and easy path. Impatient of the often-lengthy democratic process, we increasingly resort to the federal courts to achieve quick results. The result has been an end run around our federal, state, and local legislatures. But more importantly, we have enlarged the role of the judicial branch at the expense of the legislative and executive branches. Worse, each successive decision has broadened the precedent for SCOTUS to liberally interpret the Constitution and further undermined the original structure and meaning of that document.

We have, in essence, created a monster. As Justice Scalia memorably quipped, this is not the way it was supposed to be:

The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society's law trained elite) into our Basic Law.

More recently, Justice Thomas lamented the death of Federalism in Gonzalez v. Raich:

“One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States.”

He was right: how is the ordinary citizen to effect change in a legal landscape where state law has become federal law and the role of Congress is increasingly being usurped by the Courts?

I read something which stunned me yesterday morning. Unfortunately it is subscription-only, so I will have to sum it up. The article argued that the precursor to Roe v. Wade, a decision called Griswold v. CT, was wrongly decided. As someone who does not want the federal (or state, for that matter) government peering through my bedroom window, I immediately bristled: "What nonsense! Of course married people have a right to buy contraceptives!".

But then I started to think, before I even read the rest of the piece, and I began to realize there was a point to be made for this argument, and it tied in with something I had been thinking for a long time. I had fallen into the same trap I accuse others of: I went for the quick and easy solution.

Because that right did not arise in the Constitution. Now arguably, there is a right not to have my house unreasonably searched, nor my contraceptives seized, that arises in the Constitution. So perhaps there is an enforcement protection I can assert against the State when they come after me. But how many times do we, in trying to engineer ends to suit some predetermined outcome, do an end run around the system? And in so doing, do violence to the law?

This was a case that never, arguably, should have ended up in federal court. There was no federal question. And had there been no ruling in Griswold, there would have been no penumbral "right to privacy', and many a slippery slope would have been avoided.

But, you say, what about "the right outcome"?

We live in a democratic Republic. This case was tried in the 1960's, public opinion was changing rapidly. There should have been a public outcry, there ought to have been public debate. There are a million things that should have happened, here. But instead the matter was lifted out of the public arena and decided by the courts. And there was clearly NOTHING in the Constitution that said there was a federal right to privacy. The result was that a powerful precedent was created in which many matters have been removed from the hands of state and local legislatures and decided by a tiny number of non-elected people who are not accountable to the general populace.

If this is not activism, I don't know what is. And the truly interesting thing about all of this is that it requires a truly stunning refusal to confront our own history and legal traditions to pretend otherwise. For one cannot substitute the most recent fifty years of social progress for our entire 200+ year history without losing something irreplacible in the process: a priceless sense of perspective.

Posted by Cassandra at 05:19 AM | Comments (15) | TrackBack

July 10, 2005

A New Penumbral Right?

Since this seems to be the Silly Season at SCOTUS, can anyone doubt this portends the discovery of a heretofore-unsuspected Penumbral Right:

A man arrested when police showed up to break up a New Year's Eve party at a friend's house has filed a lawsuit, arguing he had a constitutional right to get drunk on private property as long as he didn't cause a public disturbance.

Eric Laverriere, 25, of Portland, Maine, was taken into protective custody by Waltham police and locked in a cell for nine hours until the effects of the alcohol wore off.

Legal experts said his lawsuit, filed this week in U.S. District Court in Boston, is the first to challenge a state law allowing police to lock up drunk people against their will for their own protection.

I am speechless.

Meanwhile, the coveted Stuffed Marmosett will be awarded to the Lucky Reader who can discover the link (the HVES is quite certain one exists) between the preceding story and these:

Man charged with exposing his breasts

...and quite possibly this little gem:

Doctor discovers Orgasmatron (thank you, Friend of USA)

Posted by Cassandra at 12:08 PM | Comments (6) | TrackBack

June 25, 2005

More Kelo Perspectives

Best...Kelo...Post...Ever....

The Otter Slide To Hell.

Posted by Cassandra at 08:38 AM | Comments (17) | TrackBack

June 24, 2005

Kelo: The Road To Serfdom

Last week the half-vast editorial staff observed with some snark that certain members of the Court will do almost anything to avoid coming into contact with the actual language of the Constitution:

The fiendish members of this plot took the backward view that judges ought to try reading the actual verbiage penned by our Founding Fathers instead of haring off to nations like, say... France in search of a hand-rolled Gauloise and a Derrida primer (the better to deconstruct the Commerce Clause whilst staving off that annoying sense of anomie that comes from eating one too many confits).

Yesterday's decision, therefore, should come as no surprise even if, as Mary Katherine Ham remarks, it causes a sinking feeling in the stomach:

This sentence makes you wonder where you live:
As a result, cities now have wide power to bulldoze residences for projects such as shopping malls and hotel complexes in order to generate tax revenue.

Welcome to America!

Actually, my first thought was, "How very...French." This is about as Socialist as it gets. Indefensible, really. The same Court which invented a right to privacy not present in the text of the Constitution has now decided it has the power to blatently ignore clear and unambiguous language that is plainly present in the Constitution.

But as the Listless Lawyer points out, there may be a silver lining:

It’s quickly becoming clear that Kelo is the decision that everyone can hate. Liberals and conservatives alike are finally united in opposition to the Supreme Court.

It’s a good thing.

Not because this was a good decision. No, conservatives uniformly seem to hate this decision, as they should, and most liberals are hating it too. But this decision will make the upcoming confirmation battles just a little bit easier for the formalists, and neo-formalists, who want to put an end to the “living Constitution”.

I wish I could be that optimistic. Certainly it presents a powerful argument that conservative justices are more inclined to limit their rulings to the text of the Constitution vs. their personal beliefs. But I think Listless errs in assuming this is what the Left wants.

The crucial distinction, in my view, between the Right and Left is that in general conservatives will generally argue (at least in principle) that one must follow the law and accept the outcome that follows (even if imperfect), where liberals are more likely to argue that obtaining an equitable outcome outweighs strict adherance to the letter of the law. Hence their reliance on judicial activism to accomplish via the courts what they cannot via the plebescite.

Kelo has been framed by some as a victory for federalism:

Isn't there a compelling federalism case for what the majority did? The states and municipalities are laboratories, right? Well, if New London and Connecticut want to run a really stupid experiment, massively unsettle property rights, and "foul their own nest" (as a wiser, and funnier, man than I said of the case), why not let them? Yeah, people like Mrs. Kelo get hurt, but people get hurt under all the stupid, hare-brained schemes we let states try under the auspices of federalism.

I think there are two common sense arguments to be made here. First, the Constitution clearly speaks to the issue, taking it out of the hands of the states and reserving the right to own property, subject to just compensation, to private citizens. Once the Constitution guarantees a right, the states may not lessen or infringe upon that right - they can enhance it, but they cannot diminish it.

Secondly, I don't see this as a state vs. federal argument at all but an individual vs. government issue. The right to own property, like the right to be secure in your home, the right to be protected against unreasonable search and seizure, and the right to liberty, are fundamental rights. It doesn't get much more basic than that. You only have so many elemental rights: life, liberty, property.

If the government, whether state or federal - it matters not which one we are talking about here - can deprive you of any of those unreasonably, then we have fundamentally altered the way the Founding Fathers intended this country to work.

It's that simple. I have to note that Justice Thomas is really coming into his own and I am glad to see it. His vocal critics, who have implied both that he is stupid and that he is somehow a traitor to his race will have trouble defending that claim given these words:

The consequences of today's decision are not difficult to predict, and promise to be harmful. So-called "urban renewal" programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect "discrete and insular minorities,", surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages "those citizens with dis- proportionate influence and power in the political pro- cess, including large corporations and development firms" to victimize the weak.

Those incentives have made the legacy of this Court's "public purpose" test an unhappy one. In the 1950's, no doubt emboldened in part by the expansive understanding of "public use" this Court adopted in Berman, cities "rushed to draw plans" for downtown development. "Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them." Public works projects in the 1950's and 1960's destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. In 1981, urban planners in Detroit, Michigan, uprooted the largely "lower-income and elderly" Poletown neighborhood for the benefit of the General Motors Corporation. Urban renewal projects have long been associated with the displacement of blacks; "[i]n cities across the country, urban renewal came to be known as 'Negro removal.' " Over 97 percent of the individuals forcibly removed from their homes by the "slum-clearance" project upheld by this Court in Berman were black. Regrettably, the predictable consequence of the Court's decision will be to exacerbate these effects.

When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning.

We cannot agree more. This decision is shameful. Justices Stevens, Kennedy, Ginsburg, Souter, and Breyer, your homework assignment for tonight.

Update: Kelo snark...

OpinionJournal weighs in:

So, in just two weeks, the Supreme Court has rendered two major decisions on the limits of government. In Raich v. Gonzales the Court said there are effectively no limits on what the federal government can do using the Commerce Clause as a justification. In Kelo, it's now ruled that there are effectively no limits on the predations of local governments against private property.

Exactly. As I said earlier, "How French..."

Update II: Oh Dear Lord...

To: U. S. Congress PETITION FOR REDRESS OF GRIEVENCES

We the People of the United States, do hereby demand that our duly elected representatives in both houses of Congress, initiate impeachment proceedings against the following Supreme Court Justices:

John Paul Stevens
Anthony Kennedy
David H. Souter
Ruth Bader Ginsburg
Stephen G. Breyer

We, the undersigned, consider the Supreme Court ruling in Kelo v. New London, 04-108, rendered June 23, 2005, not only unacceptable, but to be in criminal violation of the Justice's oaths to uphold, protect and defend the Constitution of the United States.

Be advised that We the People regard elected officials to be our public servants. Failure to take action against the Justices specified shall be considered support for the decision rendered in the aforementioned case, and will result in our resolve to ensure your defeat in the next election.

Being from myriad political and ideological spectra, we are united in our belief that our right to own property is inalienable.

Sincerely,

The Undersigned

Update III: Timothy Sandefur:

There’s one sentence that really does all the damage in Kelo, but so far I haven’t seen people focus on it.

...I submit we should be shocked that, two hundred years after the Declaration of Independence, with the Revolution, the Civil War, World War II, the Civil Rights Struggle, all in our experience, our intellectual leaders don’t know what a legitimate state interest is.

The fact is, they are terrified of that consideration because it would involve taking seriously the fact that government has no “legitimate interest” in taking the property of one person and giving it to another person. To take the property of A and give it to B is simply illegitimate—a violation of the very purposes of government. But, of course, it is the government’s primary occupation today. For the past seventy years, the Supreme Court has simply turned its back on government taking things from people who earn them, and giving them to people who do not, and the result has been the erection of a massive, unconstitutional, illegitimate, regulatory welfare state. For the Supreme Court now to return to taking this issue seriously would involve not only admitting that they were wrong (something none of us likes to do) but seriously challenging the legitimacy of the redistributionary scheme that passes for politics today.

So here’s the key to Kelo:

Promoting economic development is a traditional and long accepted function of government.

Justice Stevens provides no explanation of why “promoting economic development” is a legitimate state interest. He simply asserts that it is “traditional and long accepted.”

Long accepted—by whom? It certainly was not accepted by those who drafted and ratified the Constitution, and it is the Constitution—not whatever violations of it that people have “long accepted”—that the Court ought to regard in its deliberations. As Frederick Douglass said, “nothing is settled that is not right.”

Best thing I've read today.

Posted by Cassandra at 05:38 AM | Comments (21) | TrackBack

June 20, 2005

The Unbearable Lightness of Thinking...

I blame Thomas Friedman for this transparent idiocy:

Why all the fuss over a seemingly technical point of law? This debate is driven by outcomes. In each of the recent cases in which invoking foreign law has sparked controversy, the decisions have been progressive or liberal. But a lot of international law is not so progressive. On issues ranging from freedom of speech to abortion, much of the world is far to the right of U.S. law. It will be interesting to see whether conservatives get so upset when cases come along in which international doctrines would help their side.

But at a loftier plane, this is an important debate about the court's role. Conservatives who believe in a limited role for judges say the Supreme Court should stick to its knitting, namely interpreting the U.S. Constitution as written, and should ignore current fads here or abroad. But the counter-argument is strong. If globalization has flattened the world in terms of the economy and culture, isn't it time that our legal system also look beyond our borders? Are we so arrogant that we think we have nothing to learn from judges and lawmakers around the world who have faced the same issues we face?

Indeed. Why all this fuss over a technical point of law? Why get bogged down in mere technicalities like what the law actually says, not what we would like it to say based on the invaluable input of, say... France? Or the fact that "the Court's role" is spelled out in the Constitution, which that same court would now like the freedom to change according to its whims? Checks and balances, anyone? What if the Court suddenly decides, based on foreign law, that it should be superior to the other two branches of government? Ah, cheries...surely we are not so arrogant that we cannot learn from other nations?

The Constitution is the foundation of law for this nation and provides for its own amendment, not by judicial fiat but by the democratic process.

A house built on a constantly-shifting foundation cannot stand. If we are to shift that foundation let it be a deliberate and well-grounded change, supported by our own jurisprudence or resting on the consent of the governed (i.e., those governed here, not in Eritrea, Botswanna, or the pampas of South America).

These are hardly mere 'technicalities'.

Posted by Cassandra at 09:02 AM | Comments (13) | TrackBack

June 19, 2005

For All Your Jeff Rosen Bashing Needs...

In rode the Lord of the Nazgul... - JRR Tolkein, Return of the King

When last we saw the good Professor, he was busily saving Middle Earth America from that arch-fiend Clarence Thomas, now revealed in all his hideous majesty as the foul mastermind behind the Constitution-in-Exile conspiracy.

For those of you who came late to this party, the CIE is a dastardly neoconservative plot so arcane and conspiratorial that the rank-and-file go about their daily business blissfully unaware they belong to it! This strikes the HVES as almost unbearably clever; at once rendering it impossible for members to betray each other's identities while simultaneously preventing them from coordinating their efforts. Thus, the plot shuffles along dutifully for decades, never quite accomplishing anything yet never really disbanding either (how would they notify everyone?).

Right-thinking law professors, seeing the conspiracy's notable lack of success, are lulled into a false sense of security leaving only poor Jeff Rosen to guard the citadel. If only he were better at math.

Thursday we noted with some snarkasm that (at least in this universe) a plurality of 44% doth not a majority make, referring to the Quinnipiac University poll cited by Rosen.

In a post enticingly titled, "U 2 can B smart if U read The New York Times Magazine", Beldar notes with some asperity that Rosen is not as smart as he thinks he is:

Jeffrey Rosen sports degrees from Harvard, Oxford, and Yale, and he's a tenured Professor of Law at The George Washington University Law School. His short biography on that law school's website reveals that he's the legal affairs editor of The New Republic, and he's a contributor to The New York Times Magazine, The Atlantic Monthly, and The New Yorker (where he has been a staff writer). Clearly, this is a man so smart that he can choose to work and write only for institutions that include a capitalized indefinite\*/ article as part of their names. I almost feel like I should refer to him as "The Jeffrey Rosen."

He then proceeds to lesson The Jeffrey in basic math:

...lookie at Prof. Rosen's proof, friends and neighbors: not one, but two — two! — polls. One of them has a "plurality" — and that sure sounds to me like a bunch.
(I'd have looked up that word "plurality" on Google, but I got distracted by a sidebar in Prof. Rosen's article that quotes the results of another poll, this one by some outfit called Gallup, which sez that 16% of the public trusts the Supreme Court "a great deal," and 25% trust it "quite a lot." Another 38% trust it "some," sez this Gallup group. And 19% of Americans trust the Supreme Court "very little to none." This got me all confused into thinking that if you take five average Americans, two will give the Supreme Court a thumbs-up, and three won't. But I apologize for this diversion. Math isn't my strong suit, and certainly the clever editors of The New York Times Magazine wouldn't print a poll showing that the, umm, biggest single chunk (whatever that's called) of Americans only trust the Supreme Court "some" — certainly not in the very same article where Prof. Rosen has already proved that the Supreme Court and the whole danged American public are purty much exactly on the same wavelength.)

The HVES is beginning to think we should leave Rosen-bashing up to the professionals. We were gratified to see Andy McCarthy make our earlier point regarding the respective roles of Congress and the Courts:

More to the point, this particular reliance on poll numbers betrays how badly the Left misperceives the proper role of the Court. Congress is a political branch. Its performance, if it is performing well, should line up with the priorities of Americans because its job is to represent them – which means actuating their wishes or changing their wishes by persuasion if the members of Congress think the people are ill-informed on some issue or another. Further, because the U.S. has a vast, diverse population, it cannot be said to have a single, identifiable set of priorities – it instead has multiple, competing priorities. Viewed in that light, 32 percent priority-sharing may not be all that bad.

The Court, on the other hand, has a much different job. Its members are given life tenure precisely because interpreting the law is not a matter of thrusting a wet finger in the air to divine which way the popular winds are blowing. If a document like the Constitution or a statute says two plus two equals four, but the public (or, more likely, elite opinion) wants it to equal five, the Court’s job is not to shuck-and-jive to make five. It is to say: "The answer is four. If you want it to be five you need the people whose job that is – namely, the Congress which is supposed to be responsive to your desires – to change the document. Don't ask us judges to pretend it says something it doesn’t."

But this is hardly the Democrats first essay into innumeracy, nor the first time they're tried to fool the public with populist ("Mein Gott! they're thwarting the Will Of The People again!") rhetoric which deliberately ignores the structure laid out in the Constitution for our federal government. We recall with particular fondness the "b..b..but we represent more people than they do!" line of 'reasoning' used to justify the filibuster. Poor Joe Six-Pack was supposed to be outraged because Democratic senators represented more populous states even if the "unfair" structure of the Senate limited each state to two representatives, therefore turning a minority of 44 Senate Democrats into a "true" supermajority.

Hint for the clueless: there's a reason the Senate was set up that way.

CWCID to Bench Memos for the Beldar link.

Posted by Cassandra at 05:55 AM | Comments (0) | TrackBack

June 16, 2005

The Thomas Conspiracy

Never let it be said the half-vast editorial staff doesn't look out for you. After all, why shop at Information Clearinghouse when you can satisfy all your Conspiracy Theory Needs right here?

Alert readers will no doubt recall that just a few short months ago, Jeff Rosen was madly flogging the Constitution-in-Exile Conspiracy.

The fiendish members of this plot took the backward view that judges ought to try reading the actual verbiage penned by our Founding Fathers instead of haring off to nations like, say... France in search of a hand-rolled Gauloise and a Derrida primer (the better to deconstruct the Commerce Clause whilst staving off that annoying sense of anomie that comes from eating one too many confits).

Membership in this clandestine Brotherhood must have been an awfully well-kept secret, for the arcane and conspiratorial nature of the plot was such that the rank and file apparently went about their business for decades, blissfully unaware they were engaged in a desperate struggle to overthrow the Republic. But Evil will brook no delay. The Cause marched on. Sans soldiers, sans leader, even...until Gonzalez v. Raich reared its ugly head:

The most radical dissenting opinion was written by Thomas. Thomas has proved to be the most reliable ally of the movement to resurrect what some conservatives call the Constitution in Exile, referring to limitations on federal power that have been dormant since the New Deal. In his dissent, Thomas said that courts should take it upon themselves to decide whether congressional regulations are "appropriate" and "plainly adapted" to executing powers explicitly listed in Constitution. Thomas's logic would uproot more than a century of Supreme Court cases, including the 1942 wheat case, [Ed. Note: 'SWounds!... not the wheat case!] and could paralyze the government's effort to enforce myriad regulations, including environmental and labor laws. As Stevens pointed out, Thomas's reasoning would also call into question Congress's power to regulate the possession and use of pot for recreational purposes, an activity that all states now prohibit.

Thomas. Mein Gott Im Himmel!, who would have guessed it! That pudgy, avuncular-looking little man, suddenly rising up in his black robes like the Lord of the Nazgul. Stooping to pick at the flesh of a Woman's Right To Choose and grabbing welfare dollars from the hands of baby-Daddies all over this great nation! Sure, he may look like a teddy bear, but he's [[[shudder]]] worse than Scalia!

But like an avenging Angel, Jeff Rosen came to our rescue. From the pages of the NY Times, Rosen strode forth to remind John and Jane Q. Public who's really on their side:

An independent poll conducted by Quinnipiac University found that 55 percent of respondents thought the filibuster should be used to keep unfit judges off the bench, as opposed to 36 percent who thought it should not. Moreover, the country seemed less worried about partisan judges than about partisan senators and representatives. In the days before the deal, a CBS News poll found that 68 percent of respondents said that Congress ''does not have the same priorities for the country'' as they do. By contrast, the Quinnipiac poll found that a 44 percent plurality [Ed. Note: this, sports fans, is what's commonly known as "less than half" for the non-statistics majors out there] approved of the way the Supreme Court is handling its job.

Put another way, it would seem that, on balance, the views of a majority of Americans are more accurately represented by the moderate majority on the Supreme Court, led in recent years by Justice Sandra Day O'Connor, than by the polarized party leadership in the Senate, led by Bill Frist and Harry Reid. Congressional Republicans and Democrats are pandering to their bases, wooing conservative or liberal interest groups that care intensely about judicial nominations because they're upset about the current direction of the Supreme Court. Meanwhile, the country as a whole seems to be relatively happy with the court and appears to have no interest in paralyzing the federal government over a confirmation battle that would do little to affect the court's overall balance -- a battle that is likely to take place this summer if Chief Justice William Rehnquist steps down.

How did we get to this odd moment in American history, when unelected Supreme Court justices are expressing the views of popular majorities more faithfully than the people's elected representatives?

More importantly, how did we get to this odd moment in American history, when a law professor is waving silk handkerchiefs in front of our eyes and selling us snake oil? What on earth is he up to?

Remember a little thing called FDR's Second Bill of Rights? All this talk of a shadowy Constitution-in-Exile movement - a plot to bring back a Constitution that (last time I checked) is already here (even if the majority of our sitting justices have determined to ignore it in the hopes it will somehow just 'go away') is nothing more than a lot of smoke to cover the Constitution in 2020 "movement" so beloved of law professors.

And get this: unlike the Constitution in Exile Conspiracy (whose poor members can't even find their decoder rings) the Constitution in 2020 folks have had real meetings and conferences!

But you don't see conservatives running about waving their arms (except sarcastically, perhaps) shouting, "Man the battlements, men! Egad! There's a...conspiracy afoot!"

Mr. Rosen claims the judiciary, who are unelected, better represent the will of the people than Congress, who after all can be turned out of office every few years if they don't do what we want. So why don't we vote the bums out then? Perhaps we are getting the government we deserve. He cites a poll as evidence that America is being taken to the proverbial cleaners.

Oh really? An independent poll? Strangely, this poll reached a different conclusion:

The public's image of the Supreme Court has eroded over the past few years, with just over half of those in a new poll saying they have a favorable view of the high court.

For more than a decade, at least seven in 10 people had a favorable view of the high court. In January 2001, just after the Court ruled that President Bush was the winner of the 2000 election, 68 percent had a favorable view.

More importantly, what does the public think of landmark SC decisions?

Lawrence v. Texas: Most Americans oppose gay marriage. Hmmm.... Legislatures 1, Courts 0

Glassroth v. Moore: Most Americans opposed removing 10 Commandments. Well that's not good either.

Roe v. Wade: Support for Abortion Conditional (sounds to me like a pretty good argument for letting the state legislatures enact the will of the people. It's called democracy.)

But these are just the few that came to my mind because they were controversial. Come to think of it, who cares what the public thinks of Supreme Court decisions? One reason judges are appointed is precisely to keep them above the pressures of public opprobrium. It matters whether their decisions are just, and justified in law and precedent. It matters little whether they are popular.

I submit that the average American has absolutely no idea why the Supreme Court rules the way they do. They don't read SC opinions. They don't understand the legal issues involved. They have no idea which justice ruled which way on which case. So polls, in this case, don't seem terribly useful.

Or relevant, for that matter. We still operate under a Constitution that sets forth the way our government is supposed to work. It is not to be overturned because some focus group determines that people "like" the Supreme Court and "trust" them to legislate from the bench in defiance of the law, no matter what Mr. Rosen and his buddies from the Constitution in 2020 conference (several of whom advocated bringing back FDR's 2nd Bill of Rights, not by amendment to the Constitution but by judicial activism) would like the more gullible among us to conclude.

Nice try, but no sale.

Posted by Cassandra at 05:45 AM | Comments (9) | TrackBack

June 14, 2005

Assault On Privacy Rights

Wendy McElroy has an interesting piece up on the erosion of privacy rights in two recent cases. At issue is the contention that, absent specific evidence of wrongdoing, law enforcement officials have the right to access a patient's medical records.

Privacy rests on the assumption that—in the absence of specific evidence of wrongdoing—an individual has a right to shut his or her front door and tell other people (including government) to mind their own business. This is a presumption of innocence. Privacy also assumes an important division between the personal and public spheres, a division that is reflected in Constitutional protections against unreasonable search and seizure. Historically, privacy has stood as a bulwark between individual rights and social control.

Privacy comes into question whenever someone enters certain areas of the public sphere: for example, through filing a criminal charge such as rape. Even then, however, the legal system has evolved traditions to insure that privacy is not excessively violated. These traditions include spousal privilege, a prohibition against ‘fishing expeditions’, and the confidentiality of confessionals and medical records.

These evolved protections are under concerted attack. In general, the attacks are occurring in “gray” areas; new law and precedent is being introduced through complicated cases where it is possible to take contradictory positions depending on the aspect you are examining.

I touched on this issue earlier here in the context of the Phill Klein abortion records controversy, in which the Kansas attorney general requested medical records for females who underwent late-term abortions in an attempt to nail abortion clinics who were offering abortions to girls as young as 10 and 12 as well as to identify the sexual predators who were victimizing these children. Of course this was assailed by the media as an unwarranted attack on a "woman's right to choose".

An assault on privacy, perhaps. But since when was a 10 year-old a "woman"? Does a child have the legal capacity to consent to illegal sex and a subsequent illegal abortion?

Interesting question. And this is a complex issue: it's not as simple as trading security for privacy. It seems to me to be a question of balancing one party's privacy against the legal rights of another in many cases, as when privacy is used as a shield for wrongdoing, or when a minor is involved. It's one thing to give up your security voluntarily. A minor merits protected status (and arguably should) from predatory adults.

Discuss amongst yourselves.

Posted by Cassandra at 09:50 AM | Comments (3) | TrackBack

June 11, 2005

Deconstructing SCOTUS

For those still struggling to understand SCOTUS' recent decision in Gonzalez v. Raich, I stumbled upon two ingeneous explanations:

Mike at Crime and Federalism invokes chaos theory (an apt analogy if ever I heard one...) and links to The Physics of Commerce:

THE PHYSICS OF COMMERCE!

When you hold a ball in the air it has POTENTIAL commerce. When you let it go the potential commerce turns into KINETIC commerce, which makes it faaaaalllllll through the air! It is caught by Congress or gravity.

Classroom Learning Challenge: Levy a tariff on the ball before it hits the ground!

Special Bonus Commerce PARADOX! A cat is in a box. According to quantum mechanics, it is neither bought nor sold. Instead it is a cat commerce waveform sold in all possible states at the same time until it is confiscated and destroyed by the Bureau of Alcohol Tobacco and Cats.

It goes on from there - you have got to read the whole thing - hilarious. Yes, it's a liberal blog, but funny is funny :)

Posted by Cassandra at 08:41 AM | Comments (0) | TrackBack

June 09, 2005

The Raich of Federalism

When not wallowing in the dubious joys of regression trends, I've been wrestling with Gonzalez v. Raich, since first I read these immortal words, now seared into my soul:

What is it about the Commerce Clause that makes such otherwise brilliant people lose sight of the purpose of federalism? I don't know. But it sure is a profitable line for legal work.

Whilst trying to reconcile the puzzling Scalia decision (which some say is not puzzling at all, but follows as surely as night must follow day) I turned to Althouse:

I'm sure many people will accuse Scalia of faltering in his support for federalism. But I have always thought the best way to understand Lopez is not by the commercial/noncommercial distinction, but by whether the regulated intrastate activity is part of a connected web of interstate activity. We can picture individual states making diverse, decentralized decisions about how to deal with violence in schools -- the interstate activity in Lopez -- without the policy in one state interfering with the approach chosen by another. One state's experiment with gun-exchange programs and parental responsibility laws doesn't undercut a tough imprisonment policy used in the next state. You don't need a uniform national law to deal with the problem. In fact, the different state policies work as experiments, generating information about which policy works best. But if it is to be possible to ban marijuana, a uniform national law is important. One state's lenient approach would undercut the next state's hardcore approach. That's the Lopez-based argument for congressional power in Raich.

She did about as good as job as any of making a case for Scalia's reasoning. And there was a time when I would very likely have agreed with much of her argument. But there is such a thing as making the right decision for the wrong reasons. The penumbral right to privacy, which I find difficult to argue with on philosophical grounds, comes to mind: a finding that seems right in essence but was inexorably expanded upon until it overruled a more fundamental right to human life (and this from a reluctant pro-choicer! but that is where logic leads me).

I fear that is what has happened now on a far grander scale. Justice Thomas states his objections to the majority ruling succintly:

Respondents’ local cultivation and consumption of marijuana is not “Commerce … among the several States.” By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents’ conduct, however, is not “necessary and proper for carrying into Execution” Congress’ restrictions on the interstate drug trade. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents’ conduct.

Ladies and Gentlemen, I have read many tortured legal arguments, but it simply does not get any clearer than this. If we are to be a nation of laws and not of men, we cannot arbitrarily pick and choose which laws we will obey and which we will set aside when it suits our overarching purpose. This, in essence, is what the Court has done, in defiance of the Constitution. McQ states it well:

For those on the left who want a "living Constitution", welcome to the world that brings. A court which issues arbitrary rulings based in arbitrary readings that must ignore parts of the Constitution in order to justify their findings.

Want a 'living Constitution'? Then amend it ... that was the process put in place to change the Constitution if we felt it no longer reflected our will. That was the process designed to keep it a "living" document. The process certainly wasn't to be delivered by activist judicial fiat.

As Thomas Jefferson said:

"The natural progress of things is for liberty to yield and government to gain ground."

We're seeing more and more of liberty yielding and government gaining ground. This is just the most recent example.

How did we stray so far from the Founders' intent? Steve Chapman notes:

The chief author of our Constitution, James Madison, had little patience for those who accused him and his allies of trying to create a large, intrusive federal government. In 1788, he noted pointedly that the "powers delegated by the proposed Constitution to the federal government are few and defined." Those of the states, by contrast, "are numerous and indefinite."

This week, addressing the same question, the Supreme Court said, "James who?"

These days, any attempt to limit the encroachment of federal power is greeted with cries of a "return to the days of Jim Crow". This is a perverse understanding of federalism: black conservatives like Clarence Thomas and Janice Rogers Brown well understand that a federal judiciary that fails to respect the will of the people as expressed through their state legislatures, or rides roughshod over two hundred years of Constitutional law, is little likely to prove a vigorous guardian of their individual liberties.

Will anyone heed Justice Thomas' words?

“One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States.”

Absent the tempering influence of Lopez and Morrison, how will the future look? Crime and Federalism looks at three upcoming decisions. US v Maxwell and Smith are both child pornography cases. In Maxwell:

... a unanimous three-judge panel held that 18 U.S.C. 2252A(a)(5)(B), which makes it a federal crime to possess child p*rnography on materials that traveled in interstate commerce, was an invalid exercise of Congress' commerce power. Judge Tjoflat wrote for the panel that since Maxwell's possession of the pornographic images was non-commercial, it would not apply Wickard v. Filburn's aggregation principle.
In Smith, another Tjoflat opinion, a unanimous three-judge panel of the Eleventh Circuit, applying plain error review, reversed another conviction obtained under Sec. 2252A(a)(5)(B).
In Stewart, a 2-1 panel of the Ninth Circuit, per Judge Kozinski, held that Congress could criminalize the possession of homemade machine guns. The defendant in Stewart used parts that traveled in interstate commerce to convert his semi-automatic rifle with the capability to fire automatically, i.e., Stewart's rifle would fire repeatedly without his having to continually pull the trigger.
Post-Raich, it's unlikely that Maxwell, Smith, or Stewart will stand. All three cases, like Raich, involve the intrastate production or possession of materials for which there is a national market (machine guns and child pornography). The Court will likely GVR (grant cert., vacate the judgment, and remand for reconsideration) these cases. But it's worth keeping an eye on them.

It is an unfortunate consequence of conservatism that a just process does not always bring about desireable or just results. But such is life. One must ask whether it is best to suffer injustice or inequities at the hand of one's fellow men or at the heavy hands of government.

Those who believe government to be largely benign (and their fellow men to be inherently evil) inevitably prefer the latter, forgetting that government is composed of human beings who are themselves fallible and prone to error. If I am to take on my fellow men, I much prefer to take them on, one at a time.

The odds are much better.

Posted by Cassandra at 10:11 AM | Comments (9) | TrackBack

Legal News You Can Use

Via KJ, we learn that yet another white, Christian extremist judge was confirmed yesterday... and isn't that just like those knuckle-dragging neocons who ruthlessly seized control of our government last November? Lest you think the Senate voted along strict party lines, check out the breakdown of the actual vote at NGC - it will restore your faith in the power of bipartisanship cooperation.

Now that Justice Brown has been confirmed, it's hard to remember what all the fuss was about. After all, as Charlotte Allen notes, she returned to the bench with 76% of the popular vote. Anyone would think the Democrats (who love to tout the splendors of public opinion) would consider that a powerful endorsement. Dare we say, a mandate? Not so, however. Charlotte quotes Thomas Sowell:

"What the left-wing can never forgive her for is upholding the right of California voters to ban racial quotas. More than four and a half million Californians voted for Proposition 209, which outlawed group preferences and quotas. But liberals wanted the state Supreme Court to over-rule the voters. Janice Rogers Brown refused and instead wrote the majority opinion upholding the voters’ right to make the laws under which they live."

Again with the representative democracy thingy! This sort of radical judicial extremism simply will not stand. When will the federal judiciary stop trying to overrule the voice of the people's elected repre... umm...err... nevermind.

I can't help but think Justice Brown's real crime, like that of Justice Thomas, lies in being black and conservative. Having dared to step off the DNC plantation, the dogs are in full chorus. Just consider Harry Reid's shameful remarks about Clarence Thomas:

"I think that he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written." You'd think Thomas' opinions were written in ebonics.

In the same interview, Reid called Justice Antonin Scalia "one smart guy." He said that although he disagreed with Scalia, his reasoning is "very hard to dispute." Scalia is "one smart guy"; Thomas is the janitor.

Could this be the same man who just wrote an eloquent, well-reasoned, and principled dissent in Gonzales v. Raich? Why is it that so many liberals - of all colors - reserve their deepest calumny for black conservatives who stray from the Cause? La Shawn Barber comments:

Upon meeting me, white liberals take one look at my skin and presume I’m a left-leaning, Congressional Black Caucus-supporting, racial preference-loving, pro-infanticide crony. They condescendingly offer opinions about “diversity and multicultural” this or “Democratic fundraiser” that. I usually excuse such transgressions because it’s natural to quickly size up people based on information readily available. When I rebut these presumptions and share my deeply held conservative beliefs, however, I get open-mouthed stares.

Where I come from there's a word for that: prejudice. Pre-judging someone, based solely on the color of their skin. It used to be a bad word. La Shawn has harsh words for the DNC. Judging by the way Justice Brown was treated, I'd say they're well-deserved:

With 90 percent of the black vote locked down tight, Democrats don’t quite know what to do with the other 10 percent, so they pull the old plantation routine by turning blacks against each other. While the Congressional Black Caucus (CBC) shamelessly attacks California Supreme Court Justice Janice Rogers Brown, a black conservative nominated by President George W. Bush for the U.S. Court of Appeals for the District of Columbia, white liberals sit back and gaze upon their handiwork. It’s life as usual on the old plantation.

It never ceases to amaze me how activist groups will argue that blacks and women need to stick together come hell or high water. Minor defects such as, say, a relative lack of experience or credentials or a shady past must be overlooked in the interests of furthering the agenda. Both "underrepresented groups" should be given special preferences in hiring -- that is, until a conservative is under consideration.

Then, the candidate goes under the microscope. Suddenly you'd think we were in Communist Russia - the candidate has not demonstrated the proper degree of socialist ardor and love for the Common Man. His or her views are danagerous. They cannot be heard by decent people in a free society - just listen to Ted Kennedy, he'll tell you. You see, it's the 'wrong kind' of black or woman.

Such treatment is considered justified because the victim is a Race or Gender Traitor and this is payback. But why do only minorities and women have to toe the party line? Why are they treated like second-class citizens? You'd think they'd wise up and realize that they're being denied the same rights the fascist white patriarchy has enjoyed for years: the right to think what they choose to think, say what they believe, and associate with like-minded individuals.

It's time to leave the plantation. There's something wrong with a system in which someone else is trying to tell you what to think based on your gender or the color of your skin.

Update: via the comments section, spd rdr linked this excellent NY Times article on Justice Brown. As always, a good read - thanks.

Is there any better reminder that Justice Brown has not forgotten where she came from, than the quote used to open the article?

"In the heyday of liberal democracy, all roads lead to slavery,"

Ms. Brown has not forgotten the chains of slavery. She simply has a different conception of freedom.

Posted by Cassandra at 04:45 AM | Comments (3) | TrackBack

May 09, 2005

Humor From The Bench

The Volokh Conspiracy has a good post on wit in Supreme Court opinions. Not surprisingly, Justice Scalia dominates the submissions. From the comments section:

Justice Scalia, concurring in Lamb's Chapel v. Center Moriches School District, 508 U.S. 384 (1993):
As to the Court's invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. * * * Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

Another Scalia chestnut:

Justice Scalia in MCI Telecommunications v. AT&T:

"'Modify,' in our view, connotes moderate change. It might be good English to say that the French Revolution "modified" the status of the French nobility - but only because there is a figure of speech called understatement and a literary device known as sarcasm. And it might be unsurprising to discover a 1972 White House press release saying that 'the Administration is modifying its position with regard to prosecution of the war in Vietnam' - but only because press agents tend to impart what is nowadays called 'spin.'"

Posted by Cassandra at 08:22 AM | Comments (0) | TrackBack

Solomon Amendment

Marci Hamilton makes some good points regarding the constitutionality of the Solomon Amendment. In November, the US Court of Appeals for the 3rd Circuit prevented enforcement of the law:

"This is a landmark decision," said Joshua Rosenkranz, lead counsel for a network of 25 law schools and 900 law professors who complained that the Solomon Amendment violated their First Amendment rights. "The court understood that, in a free society, the government cannot co-opt private institutions as government mouthpieces."

The court ruled that the Solomon Amendment violated the free-speech rights of schools that restricted on-campus recruiting in response to the military's ban on gays. By threatening to withdraw federal funds from schools that refused to cooperate with military recruiters, the court wrote, the government was compelling them "to express a message that is incompatible with their educational objectives."

At the time, I found that argument both disingenuous and unpersuasive. Universities can and do sponsor a wide variety of speakers, some of whom (Ward Churchill comes to mind) advocate extreme and morally offensive points of view. Allowing or facilitating speech does not constitute official endorsement of a speaker's viewpoint. If it did, robust debate would be impossible as only one side of an argument can be 'endorsed' by an institution at a given moment in time.

This line of reasoning is made even more laughable when you consider that colleges vigorously resist any attempt by students, alumni, or tuition-paying parents to limit their freedom to hire speakers (an affirmative action that requires a school to first choose and then compensate a speaker for expressing a given viewpoint), yet see no hypocrisy in refusing to passively allow access to military recruiters; an act which, especially if compelled by federal law, can in no way be reasonably construed to imply approval or acceptance.

When criticized for hiring former terrorists or rabidly anti-American speakers, academia's first line of defense is inevitably, "But allowing them to express their viewpoint does not constitute endorsement of their views: we are simply encouraging debate." The unspoken corrolaries to this stance (when applied to FAIR's case) are firstly that no debate on the matter of homosexuality will be tolerated, and secondly that legal academicians find criminal acts and terrorism less morally objectionable than the military's legal "don't ask, don't tell" policy.

Strangely, this "we must be free to present alternative viewpoints" argument mysteriously vanishes when it is the university administration that wishes to bar viewpoints it considers wrongheaded. Now two-sided debate is a bad thing. Hamilton comments:

FAIR has had to twist the law to try to turn what really is a discrimination claim - one the federal courts have already rejected - into a free speech claim.

To make this tortuous argument, FAIR must claim that anyone who sees military recruiters on campus will assume the military's policy on homosexuals is endorsed by the school. Therefore, the school, by being forced to host the recruiters (or lose funds), is forced, in effect, to mouth the government's message -which, FAIR argues, violates the First Amendment.

Hamilton points out the flaw in FAIR's argument:

It's important to note what the Solomon Amendment does not do. It does not prohibit on-campus protests of military recruitment. It does not prohibit law professors from arguing, in class, that the military's "don't ask, don't tell" policy is illegal or immoral discrimination - and discouraging students, for this reason, from working for the JAG Corps.

Liberal professors, students, and administrators can post signs, buy billboards, and even wander the halls with bullhorns in case any student dares to have the temerity to think of serving his or her country during a time of war and international instability. They can post "informative" notices, stuff student mailboxes, even run streaming video through the hallways of the law schools. They can also host conferences, teach courses, and establish programs to vindicate their views -- and they need not (indeed, usually will not) invite anyone who disagrees with them.

In short, the Solomon Amendment does not gag the legal academy in any way. It just requires the academy to give the military a seat at the table - among all the other legal employers who may visit, including, say, the ACLU - to meet with students who are interested in interviewing with them.

The premise that merely providing a forum constitutes endorsement is supported neither by academia's own longstanding policies nor by common sense. But Hamilton points out that even longstanding First Amendment principles argue against FAIR's position:

Here's a basic First Amendment principle: The government is limited in its ability to regulate speech, but it may regulate conduct much more easily. And what's going on here, looks like the regulation of conduct to me. The Solomon Amendment simply requires law schools that want to receive federal funds, to supply interview rooms and whatever other access private employers enjoy.

Supplying a room is an action. Providing, say, coffee and doughnuts is also an action. Putting the military recruiter's name on a recruiters' list might be speech, but barely; all it expresses is that the military recruiter is going to be at a certain place at a certain time, willing to talk to interested students.

Suppose, though, for the sake of argument, that actions such as putting recruiters' names on a list distributed to students - or welcoming them for coffee, or unlocking interview rooms - are deemed expressive conduct. Even so, FAIR's claim is strikingly weak.

Under Court precedent, regulation of expressive conduct triggers intermediate scrutiny under the O'Brien test. That test looks to see if the law at issue serves an important government interest, and if alternative avenues of expression are available.

Does the government have a legitimate, important, and even compelling interest to recruit the best and the brightest law students? Of course. Even FAIR concedes this.

Do the law schools have alternative means of expression if they are not permitted to keep their interview room doors locked? Obviously, they do - as I noted above.

Hamilton notes:

Beyond constitutional law, however, the law schools ought to rethink their position as a matter of policy and ethics, as well. The real message they are sending by this lawsuit - and their protests of military recruiting - is an ugly one: They are telling all of us just how much they care about the welfare of this country in difficult times.

I would take it a step farther. Regardless of your opinion on gays in the military, via their untenable position on the Solomon Amendment law schools send a disturbing message about their support of free speech in academia.

If you buy their argument that allowing speech is endorsement, then they have officially endorsed the views and policies of every single employer or speaker they allow on campus, whether invited or not, if that party is allowed to use university facilities. I seriously doubt a law school wishes to take this position, but if they do then their future conduct should be judged on that basis.

Moreover, if you believe the "allowing access = speech" argument and therefore think they are right to ban recuiters, have law schools not just refused to allow free and vigorous debate on this issue? In other words, their support of the First Amendment extends only to those speakers with whom they agree.

This is the argument that should truly concern people on both sides of this issue: law schools and universities will pay to present anti-American viewpoints, even extending to hiring convicted felons who advocate killing innocent people and government figures, in the name of free speech and vigorous debate. Yet they discriminate against law-abiding Americans because they disagree with their ideas.

The law schools' position seems to boil down to this: free speech is a many-splendored thing that must be protected at all costs (unless of course we don't agree with the speaker).

Posted by Cassandra at 04:56 AM | Comments (0) | TrackBack

April 29, 2005

All About "Choice" and Tolerance

Debra Saunders has an interesting piece on choice and tolerance:

You know the world is changing when the left -- which used to believe in respecting choice and requiring businesses to accommodate workers' personal preferences -- opposes choice and letting individual workers say no to tasks they find morally abhorrent, while the right -- which used to stand for letting businesses choose policies that promote their bottom line -- supports laws that could force employers to accommodate workers whose personal scruples prevent them from selling a product.

Yet that's exactly what you get as Sen. Barbara Boxer, D-Calif., and other Democrats introduce bills that would force pharmacists to sell birth-control pills and emergency-contraception pills such as RU-486 and Plan B, even if the pharmacist is morally opposed to one of these forms of birth control.

The issue here isn't hypocrisy. The issue is that these laws can present serious consequences. Do Americans want the government to tell a business what it has to sell?

Interesting question. Do we only support choice and tolerance when people voluntarily make "choices" we agree with?

Posted by Cassandra at 09:25 AM | Comments (7) | TrackBack

April 28, 2005

I'm...Speechless (or "Not NOW Honey... I'm a Feminist)

nall_with_veil2.jpg Since this seems to be "is this rape?" week, I honestly don't know what to make of this.

Meanwhile, Dan Riehl digs up the goods on Desiree(!) Nall, our man-hating friend from the other day. My take: I would have gone with a higher heel on the boots, the cleavage definitely sends a mixed message (oooh... touch me, baby! Leave me alone you misogynistic ape!), the veil is semi-hot in an evil, Bride-of-Chucky, Goth kind of way but the dark lipstick with her pale skin is a definite 'fashion don't': I mean, what was she thinking?

I would have gone with more of the 1960's frosted, pale succubus-in-training look myself.

What you y'all think?










Posted by Cassandra at 12:55 PM | Comments (30) | TrackBack

April 21, 2005

The Constitution In 2020 vs. Constitution In Exile: Got Red Herring?

It struck me as odd, Monday morning, to see Jeff Rosen madly flogging nebulous conspiracy theories in the NY Times Magazine. So odd, in fact, that I dropped everything and spent about an hour researching the issue. But in the end, I decided it was either a bad pint of Cherry Garcia, the upcoming battle over the filibuster, or the usual Progressive fear and loathing breaking out like a recurring rash.

So imagine my surprise when, via Dale Franks, I stumbled on a far more plausible explanation for Mr. Rosen's little foray into creative writing: he was laying down a distracting hail of covering fire. Interestingly, in contrast to the shadowy "constitution-in-exile" movement known to only a select few (membership is apparently so secret that even some of the party faithful go about their daily business blissfully unaware they belong to a conspiracy), the Yale chapter of the American Constitutional Society just held a very real conference called "The Constitution in 2020". Unlike meetings of the C-I-E movement held in dank basements where blood is drunk with clandestine relish from the purloined skulls of infants, attendance was open, notorious, and in-your-face. John Hinderaker, who sent a representative, reports:

The stated purpose of the conference, at which some of America's best-known liberal law professors appeared, was to work toward a "progressive" consensus as to what the Constitution should provide for by the year 2020, and a strategy for how liberal lawyers and judges might bring such a constitutional regime into being.

One of the major players at the conference was [oh be still, my beating heart!] none other than Cass Sunstein: he of the constitution-as-hostage theory. Mr. Sunstein wants to bring back something called FDR's Second Bill of Rights. This truly revolutionary document sets forth the following "positive" rights:

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all—regardless of station, race, or creed.

Among these are:

The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;

The right to earn enough to provide adequate food and clothing and recreation;

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;

The right of every family to a decent home;

The right to adequate medical care and the opportunity to achieve and enjoy good health;

The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;

The right to a good education

And lest you think this was an isolated event, Bob Herbert seconded the motion in an editorial shortly thereafter.

To get a sense of just how radical Roosevelt was (compared with the politics of today), consider the State of the Union address he delivered from the White House on Jan. 11, 1944. He was already in declining health and, suffering from a cold, he gave the speech over the radio in the form of a fireside chat.

After talking about the war, which was still being fought on two fronts, the president offered what should have been recognized immediately for what it was, nothing less than a blueprint for the future of the United States. It was the clearest statement I've ever seen of the kind of nation the United States could have become in the years between the end of World War II and now.

Alas! Mr. Herbert is a virtuoso on the violin. What might have been, if only that pesky democratic process didn't keep getting in the way! Four presidential terms is such a short time to impose a vision of such...dare I say it... imperial majesty.

Hinderaker asks how these changes will be implemented. The Constitution provides for amendment by popular referendum, a thing the people have proven historically unwilling to do. This, obviously presents a problem for progressives, who have relied heavily on the courts and on judicial activism to accomplish what they cannot through the democratic process.

And how will the Constitution be changed? Through a constitutional convention, or a vote of two-thirds of the state legislatures? Of course not. The whole problem, from the liberal perspective, is that they can't get democratically elected bodies to enact their agenda. As one of the Yale conference participants said: "We don't have much choice other than to believe deeply in the courts--where else do we turn?" The new, improved Constitution will come about through judicial re-interpretation. It only awaits, perhaps, the election of the next Democratic president.

In all fairness, I found a post by Cass Sunstein on the Constitution in 2020 blog which suggests Sunstein may not subscribe to this view:

For 2020, what should be asserted instead is a form of judicial minimalism, one that also gives the democratic process wide room to maneuver. The appropriate path is not charted by Roe v. Wade; it is charted instead by West Coast Hotel, upholding minimum wage legislation, and Katzenbach v. Morgan, allowing Congress to ban literacy tests. Moderates and liberals should not want the Supreme Court to march on the road marked out by the Warren Court. They should celebrate instead rulings that defer to Congress and that invalidate legislation rarely and only through narrow, unambitious rulings, akin to the Court's recent decision in the Hamdi case.
[...]
One qualification is that the United States does not only have a Constitution; it also has a set of constitutive commitments, beyond mere policies but without a formal constitutional status. Franklin Delano Roosevelt's Second Bill of Rights was an effort to establish several such commitments, including, above all, decent opportunity and minimal security. I will briefly discuss the value of seeing the Second Bill of Rights as part of the nation's self-definition in 2020 -- though not of seeing it as part of our formal constitution. The insistence on the Second Bill of Rights is best regarded as part of democratic deliberation, not as part of constitutional law.

Again, as I did not attend the conference, I have no idea what was said there. But I found his post at odds with the suggestion that FDR's Second Bill of Rights would be formally enshrined within the Constitution, at least in Sunstein's dreams.

At any rate, I find it remarkable that there so little discussion of this truly revolutionary movement to resurrect such a radical change in Constitutional law, at the expense of an admittedly shadowy and speculative decades-old "constitution-in-exile" movement that may or may not exist (and no one has ever heard of).

Got red herring?

Update: more commentary on this topic at Vote for Judges and irritant #4


Posted by Cassandra at 08:09 AM | Comments (28) | TrackBack

April 18, 2005

What If They Held A Revolution And Nobody Came?

On the eve of the big showdown at the Filibuster Corral, the intrepid folks at the NY Times conveniently discover and expose yet another evil plot to undermine the institutions we hold dear...

No silly... not the neo-cons. That's so last week. This is far, far worse. It's the constitution-in-exile movement, or what Jeffrey Rosen calls "the unregulated offensive". The evil puppetmaster of this sinister movement is (supposedly) that rotund reprobate who sends little frissons of horror up the spines of feminists everywhere. Rosen even starts off with a bit of dramatic foreshadowing to set the mood:

If you think back to Clarence Thomas's Supreme Court confirmation hearings in 1991, what most likely comes to mind are the explosive allegations of sexual harassment made by the law professor Anita Hill. Years from now, however, when observers of the court look back on the hearings, they may well focus on a clash that preceded Hill's accusations -- an acrimonious exchange that few remember today.
Early in the hearings, Joseph Biden, the Delaware Democrat who was chairman of the Senate Judiciary Committee, voiced a concern about Thomas's judicial philosophy. In particular, he singled out a speech that Thomas gave in 1987 in which he expressed an affinity for the ideas of legal scholars like Richard A. Epstein. A law professor at the University of Chicago, Epstein was notorious in legal circles for his thesis that many of the laws underpinning the modern welfare state are unconstitutional. Thomas tried to assure Biden that he was interested in ideas like Epstein's only as a matter of ''political theory'' and that he would not actually implement them as a Supreme Court justice. Biden, apparently unpersuaded, picked up a copy of Epstein's 1985 book, ''Takings: Private Property and the Power of Eminent Domain,'' and theatrically waved it in the air. Anyone who embraced the book's extreme thesis, he seemed to be suggesting, was unfit to sit on the court.

Having properly framed the issue for us, Mr. Rosen goes on to tell us that Justice Thomas did, indeed, subscribe to Epstein's "extreme" ideas, leaning on them heavily in his opinion in US v. Lopez in 1995. From this, we are left to infer that he must, after all, have been unfit to ascend to the bench. But it gets worse: according to Rosen, there is an entire underground movement afoot to reverse the depredations of the New Deal and restore the Constitution to its former glory:

But as Thomas's presence on the court suggests, it is perhaps just as likely that the next justice -- or chief justice -- will be sympathetic to the less well-known but increasingly active conservative judicial movement that Epstein represents. It is sometimes known as the Constitution in Exile movement, after a phrase introduced in 1995 by Douglas Ginsburg, a judge on the United States Court of Appeals for the D.C. Circuit. (Ginsburg is probably best known as the Supreme Court nominee, put forward by Ronald Reagan, who withdrew after confessing to having smoked marijuana.) By ''Constitution in Exile,'' Ginsburg meant to identify legal doctrines that established firm limitations on state and federal power before the New Deal. Unlike many originalists, most adherents of the Constitution in Exile movement are not especially concerned about states' rights or judicial deference to legislatures; instead, they encourage judges to strike down laws on behalf of rights that don't appear explicitly in the Constitution. In addition to the scholars who articulate the movement's ideals and the judges who sympathize with them, the Constitution in Exile is defended by a litigation arm, consisting of dozens of self-styled ''freedom-based'' public-interest law firms that bring cases in state and federal courts, including the Supreme Court.

Critics of the movement note, with some anxiety, that it has no shortage of targets. Cass Sunstein, a law professor at the University of Chicago (and a longtime colleague of Epstein's), will soon publish a book on the Constitution in Exile movement called ''Fundamentally Wrong.'' As Sunstein, who describes himself as a moderate, recently explained to me, success, as the movement defines it, would mean that ''many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration and possibly the National Labor Relations Board would be unconstitutional. It would mean that the Social Security Act would not only be under political but also constitutional stress. Many of the Constitution in Exile people think there can't be independent regulatory commissions, so the Security and Exchange Commission and maybe even the Federal Reserve would be in trouble. Some applications of the Endangered Species Act and Clean Water Act would be struck down as beyond Congress's commerce power.'' In what Sunstein described as the ''extreme nightmare scenario,'' the right of individuals to freedom of contract would be so vigorously interpreted that minimum-wage and maximum-hour laws would also be jeopardized.

B..b...but, you say, I'm a federalist/conservative/libertarian and I've never even heard of this "movement"! Several other people apparently didn't get the memo either. Orin Kerr comments:

In my view, the problem with Rosen's essay is that it tries to portray the decades-old writings of a small number of scholars and activists as an existing and influential "movement." I don't think the evidence adds up. The handful of scholars and activists that are supposed to make up this alleged movement are pretty far removed from the set of players in the Bush Administration that are actually setting policy and selecting judges these days. Maybe the Reagan Justice Department was enthralled with the writings of Richard Epstein; the Bush 43 Justice Department isn't.

He looks at part of Rosen's 'evidence':

The influence of the Constitution in Exile movement . . is not always clear, since the concerns of the White House often overlap with concerns of conservatives broadly sympathetic to business interests or the concerns of more traditional federalists. ''If you mentioned the phrase 'Constitution in Exile' in White House meetings I was in, no one would know what the hell you were talking about,'' a former White House official, who spoke on condition of anonymity because of the sensitivity of the topic, told me. ''But a lot of people believe in the principles of the movement without knowing the phrase. And the nominees will reflect that.''

I love it: "Lots of people belong to the conspiracy: it's just so secret, they don't realize they belong!" Kerr sums it up:

So the best we can do is get the view of one anonymous person that other mostly unnamed people believe in a set of principles that the anonymous person says match the views of this alleged movement? Surely the last four years of Bush 43 would have provided more concrete evidence than that.

Stephen Bainbridge offers another view:

In my experience, conservatives much more often invoke Scalia's distinction between the "living constitution" advocated by liberals (like Sunstein) and the "dead constitution" advocated by conservatives (like Scalia .. or me, for whatever it's worth). Note that this dichotomy also some rhetorical power. One imagines Dr. Frankenstein (i.e., the Supreme Court) standing above the dead Constitution sprawled out on slab. Throw the switch in time that saved nine, and "It's Alive!" So we spin the "living Constitution" as "Frankenstein's Monster." Heh.

In a constantly-changing world, it's good to know that there are some things you can still set your clock by. One being that if a political battle is in the offing, the Times won't hesitate to weigh in on the side of the Democrats. Should the news cycle prove sluggish, one can always mine the archives and uncover a decades-old conspiracy.

And if the details are a bit murky, so much the better:

Tainting future Bush judicial picks with some kind of shadowy extremism might just influence a future Senate vote. All the better if the shadowy movement doesn't actually exist: the harder it is to find the movement, the harder it is to prove that Bush's pick has no connection to it.

We'd tell you more, but then we'd have to kill you.

Posted by Cassandra at 06:18 AM | Comments (6) | TrackBack

April 14, 2005

Online Freedom Of Speech Act

There is a bipartisan effort underway to amend McCain-Feingold. Twin bills before the House and Senate would exclude all Internet communications from the definition of "public communication" regulated under McCain-Feingold. Sen. Harry Reid (D) and Rep. Jeb Hensarling (R) led the bipartisan effort. The language could not be more simple:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. MODIFICATION OF DEFINITION OF PUBLIC COMMUNICATION.
Paragraph (22) of section 301 of the Federal Election Campaign Act of 1971 (2 U.S.C. 431(22)) is amended by adding at the end the following new sentence: ‘‘Such term shall not include communications over the Internet.’’.."

Patterico comments:

This is far better than begging the FEC for a media exemption (which I have previously opposed), for two reasons.

First, and most important, it is not squishy. Bloggers can heartily endorse candidates, urge readers to contribute to candidates, and engage in other robust political speech. They need not feel chilled in the slightest by the fear that they are crossing some nebulous line separating “legitimate” bloggers from those whom government deems undeserving of the protection of the media exemption.

Second, the amendment will have the force of law, just as McCain/Feingold does. I would much prefer a Supreme Court ruling or constitutional amendment that makes clear that McCain/Feingold is unconstitutional. But I prefer a statutory change to an effort to effect change through the regulatory process, primarily because changes that occur through the political process have a more permanent feel to them.

It will likely surprise no one that, though inclined to support the amendment, the contrarian in me is suspicious of blanket exemptions. I already noted my ridiculously overblown ethical concerns about disclosure when a blogger receives pay from a political campaign. Rick Hasen agrees bloggers should disclose, but he raises what (to my mind at least) is a far more interesting point: will consideration (or the lack thereof) of who is exempt from spending limits under McCain-Feingold have unintended consequences?

The FEC rulemaking requires it to consider the question of who is a journalist. That question matters very much because journalists - even if they are paid by corporations or unions - are exempt from otherwise-applicable spending limits.

Generally speaking, individuals are allowed to spend as much money as they want supporting or opposing candidates for federal office, though those spending significant sums must file certain reports with the FEC and include information on funding sources on the face of certain campaign literature. In contrast, corporations and labor unions cannot spend any of their treasury funds on certain election-related activities, and must fund these activities through separate political action committees, or PACs.

So what effect will creating a blanket exemption for Internet communications have? Have we now allowed unions and corporations a loophole under McCain-Feingold by proxy?

Like Patterico, I support the Online Freedom of Speech Act, but with reservations. I wonder whether this has really been well thought-out. Many times these things are kneejerk reactions to political pressure (blog-swarms, if you will) and like most hastily considered acts, they have unintended consequences. Like Patterico, I prefer a statutory change to agency rulemaking but unlike him, I most emphatically do not prefer a court decision to a legislative solution. That is precisely what we have had too much of lately: justices attempting to cast their every whim in stone, never to be revisited. Unlike a SC decision, statutes can always be amended as needed to reflect changing conditions. I am reminded of the words of Justice Scalia:

The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society's law trained elite) into our Basic Law.

We don't have a convenient spyglass into the future. If we did, things would be so much easier. I would note here that over and over again this FEC debate has been cast as a fight over free speech rather than as an attempt to apply the provisions of McCain-Feingold (which we all agree is bad law, but is, after all the law of the land, to the Internet as the FEC is required to do). And I suppose it could have turned out that way. It may still, one day: the future is fluid and unknowable and I certainly have no crystal ball.

The blogosphere caught fire when Brad Smith raised the alarm. It didn't seem to matter to anyone that 4 of the 6 commissioners had previously gone on record opposing regulation of individual bloggers absent financial involvement, nor that the draft rules that came out were in perfect alignment with their prior comments to that effect.

The second alarm happened when it appeared that San Francisco might try to regulate bloggers, but that fear was quickly put to rest when the proposed ordinance turned out to be far less draconian than originally billed, and the city quickly agreed to sub a provision exempting bloggers.

Facts are stubborn things. Some continue to believe in an evil government conspiracy to persecute grassroots bloggers. This requires a willful dismissal of highly suggestive evidence, to include the undeniable fact that 4/6 of the commissioners publically opposed regulating bloggers, no move was made to regulate until a court forced the FEC's hand, and information about the FEC's rulemaking process kept "leaking" to the blogosphere... I wonder why?

Others believe that disaster was only averted by threats of mass civil disobedience. The interesting corollary here is that those who justified their willingness to break the law before even attempting to work the system justified this tactic by saying the government showed no respect for their wishes. Yet now they are crowing about how the government caved in so quickly.

So how was that again? You have to go to general quarters because the lawmakers don't respect your civil rights, but they cave at a few thousand emails and phone calls? You can't have it both ways: seems to me your rationale just went away. Perhaps, just perhaps, things move at a deliberate pace. I think we are seeing the power of the blogosphere, and the power of representative government.

This power never went away: it was always there. For all we complain about them, Congress are still, truly public servants. But servants presuppose a master who is willing to supervise and hold them accountable. They cannot continue to hold office if they incur our displeasure. I'm not surprised to see this measure come up in Congress. Several weeks ago I suggested that the anger against the FEC was misplaced. It was McCain-Feingold that needed to be changed, and now it appears that may be happening.

Three things are needed to make representative government work: faith, scrutiny, and citizen involvement. This is why I so harshly criticized the idea of civil disobedience before legitimate efforts to change McCain-Feingold and why I will continue to do so. I truly believe that if one examines the facts in this story, they reflect well on our system of government and the value of citizen involvement.

And I truly believe that the rule of law, with the protections it provides to the weakest among us, is a concept worth upholding And it is we who must uphold it. In the end it is the rule of law that guarantees our civil rights; without it, we are forced to defend them ourselves at the point of a gun. And though most of us are willing and able to do this, I think we would prefer that our children live in a country where we don't have to brandish firearms simply to live as free human beings.

That is why my husband is in the military, and why I have supported him for twenty-five years. For all the romanticized talk of rushing to the ramparts, most of us don't really want to see that day come when we are forced into the streets with pitchforks. We much prefer to outsource our freedom: to let someone else worry about defending it. And the price is small. All it requires is a little vigilance.

Posted by Cassandra at 05:34 AM | Comments (12) | TrackBack

April 06, 2005

I'm Speechless, II

Via Margi Lowry:

A Texas lawyer was arrested yesterday and charged with offering to provide legal services in exchange for a sex act and some hot girl-on-girl action. According to cops, Steven Copenhaver, 56, solicited the "deviate sexual intercourse" from the wife of a prospective client and the woman's sister-in-law.

The attorney told the client's wife he would be happy to swap sex in return for his services in representing her husband, accused of assaulting her. I tell you, the man is all heart.

During a visit last month to Heavin's home, Copenhaver allegedly told her--and the woman's sister-in-law, Malinda Tilley--exactly what he was looking for (you'll have to read the document for the dirty details). And, he added, the women "might have to do this a couple of times."

Discovery can be a lengthy process, I'm told, but I suppose it's best to be thorough.

Posted by Cassandra at 10:02 AM | Comments (18) | TrackBack

April 04, 2005

Happy April 15th

The Spousal Unit will love this: The Turbo Tax Defense (I used Turbo Tax and it sucked).

Posted by Cassandra at 01:52 PM | Comments (7) | TrackBack

April 01, 2005

After Schiavo, Questions Remain

Though Terri Schiavo's death may have finally brought some measure of peace to her agonized family, it did not end the troubling moral questions surrounding it. Tom Bevan asks one that has often occurred to me:

During the last two weeks, many have argued that the moral questions raised by the Schiavo case outweigh the legal considerations and that any means of preventing her death (including sending in the National Guard) would be morally justifiable.

If this is true, then aren't we obligated to ask the following: If one believes abortion is the taking of innocent life and that we have a moral duty to prevent infanticide, shouldn't Congress immediately pass a law outlawing abortion at the federal level regardless of its constitutionality? Wouldn't the saving of even a single life (or preventing a single death by abortion, if you prefer) justify such an action?

And if we accept the idea that deeply held moral beliefs can compel extralegal or even unconstitutional action, doesn't that argue in favor of San Francisco Mayor Gavin Newsom's decision last year to begin issuing marriage licenses to gays and lesbians in violation of California law? After all, Newsom acted on the belief, deeply held by many on the left, that denying gays the right to marry is morally indefensible and akin to the legal racial discrimination of blacks in the 1950s.

At its core, the dilemma is this: At what point are we forced to live within the law even if we disagree morally with some of the outcomes resulting from its application?

The questions raised by the tragic case of Terri Schiavo are not easy ones at all. But they are important, and the country would benefit from an effort to consider them as honestly and thoughtfully as possible.

This is akin to the issue I raised earlier regarding the FEC, to mass derision. These are difficult questions.

What kind of world would it be, if every person who disagreed with a law felt morally justified in taking the law into his or her own hands? We are an increasingly hetergeneous and pluralistic nation composed of people who disagree - often violently - over what is morally right.

Do we place our own instinctive sense of right and wrong above our duty to obey law? Do we place our opinion of a law's constitutionality above our civic duty, granting ourselves carte blanche to disobey laws we try in the court of private opinion and find unconstitutional?

That, increasingly, seems to be the consensus of opinion I am hearing and reading on the web. And it disturbs me.

Posted by Cassandra at 08:46 AM | Comments (32) | TrackBack

March 02, 2005

Abandoning Judicial Restaint

I most likely will not have much to say over the next few days. I've been having a hard time summoning enthusiasm lately for much of anything. Although one can easily disagree with the practice of capital punishment, especially when it comes to the execution of minors, the reasoning behind the recent decision in Roper v. Simmons is hard to defend.

Alexander Hamilton must be turning over in his grave.

In a withering dissent to Roper v. Simmons, Antonin Scalia paints a chilling view of a court that has rejected any suggestion of judicial restraint:

In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people's representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since "[t]he judiciary ... ha[s] neither FORCE nor WILL but merely judgment." ...But Hamilton had in mind a traditional judiciary, "bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." Bound down, indeed.

What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years--not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed.

The Court arbitrarily and capriciously finds in the presence of 18 state laws a "national consensus". This is (even for this Court) an astonishingly creative use of mathematics. The majority, led by Justice Kennedy, has cast off not only the notion of judicial restraint but also those outdated and confining laws of statistics. Indeed, we must all feel vastly encouraged to be instructed by the Court that 47% comprises anything close to a majority, much less a "national consensus". Who knew it was so easy to reach agreement in this contentious age?

But that is not the end of the Court's creative reasoning.

But a short time ago in Lawrence v. TX, the court essentially reasoned that the Texas legislature could not justify banning sodomy simply because the majority of citizens considered the practice "immoral". Now the court finds no contradiction in overturning the laws of 19 state legislatures based on the moral reasoning of a less-than-overwhelming number of citizens who happen to agree with 5 Justices.

Oh... and if that isn't enough to convince you, international opinion is on their side. Justice Scalia had a few choice words about that, too:

Words have no meaning if the views of less than 50% of death penalty States can constitute a national consensus.

Though the views of our own citizens are essentially irrelevant to the Court's decision today, the views of other countries and the so-called international community take center stage.

The Court begins by noting that "Article 37 of the United Nations Convention on the Rights of the Child, ...which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18." The Court also discusses the International Covenant on Civil and Political Rights which the Senate ratified only subject to a reservation that reads:

"The United States reserves the right, subject to its Constitutional restraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crime committed by persons below eighteen years of age." Senate Committee on Foreign Relations, International Covenant on Civil and Political Rights, S. Exec. Rep. No. 102-23, (1992).

Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position. That the Senate and the President--those actors our Constitution empowers to enter into treaties, see Art. II, §2--have declined to join and ratify treaties prohibiting execution of under-18 offenders can only suggest that our country has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces.

In other words, the very documents the majority cites to support this "international consensus on cruel and unusual punishment" have been specifically rejected by the United States Senate as recently as 1992.

So the majority defies and disregards not only the Constitution and our state legislatures, but Congress as well. And it's not as though the Court has slavishly followed international example in the past, as Scalia is quick to point out:

The Court has been oblivious to the views of other countries when deciding how to interpret our Constitution's requirement that "Congress shall make no law respecting an establishment of religion...

Justice Scalia goes on to observe with devastating accuracy that the Netherlands, Germany, and Australia allow the government to fund religious schools on the theory that this preserves neutrality and freedom of religion, and the UK allows teaching of religion in state schools. He reminds his colleagues:

...let us not forget the Court's abortion jurisprudence, which makes us one of only six countries that allow abortion on demand until the point of viability.

By this argument, there is a clear international consensus that Roe v. Wade is murder and should be overturned immediately. But that would require both a consistency and a humility I'm not sure the current Court possesses.

Posted by Cassandra at 04:14 PM | Comments (32) | TrackBack

More International Precedent From SCOTUS

As usual, Tony Blankely minces no words regarding Roper v. Simmons:

The gist of the majority's analysis is that whether the crime is constitutionally "unusual" depends on whether "evolving standards of decency" have reached the point in our history when such punishment has been clearly rejected by society. It happens that only 15 years ago the Supreme Court found that the kind of statute in question was constitutional. But, rather than overturning that case, the court yesterday found that in the last 15 years a national consensus against such punishment had emerged. The majority based that conclusion on the fact that "18 states -- or 47 percent of states that permit capital punishment -- now have legislation prohibiting the execution of offenders under 18," and four of those states have adopted such legislation since the Supreme Court's ruling of 15 years ago.

As Justice Antonin Scalia fumed in his dissent: "Words have no meaning if the views of less than 50 percent of death penalty States can constitute a national consensus. Our previous cases have required overwhelming opposition to a challenged practice, generally over a long period of time." In this case, a majority of relevant states approve the practice.

Recognizing that they were arguing a rather weak set of facts regarding a national consensus, the majority supplemented its argument with the self-aggrandizing assertion that "In the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the 8th Amendment." Outrageously, the court asserts such power because, as Justice Scalia characterized, "juries cannot be trusted with the delicate task of weighing a defendant's youth along with other mitigating factors." This assertion, of course, undermines "the very foundations of our capital sentencing system."

The majority, still sensing its arguments to be rather feeble, went on to try to buttress their case further by citing a menagerie of international treaties and foreign laws, claiming: "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions."

In support thereof they cited, inter alia, the U.N. Convention on the Rights of the Child, a treaty before signing which, the U.S. government expressly reserved "the right ... to impose capital punishment on any person (other than a pregnant woman)." To which Justice Scalia observed in his dissent: "Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, [the majority's] position."

After Justice Kennedy used five pages of his logically incoherent majority opinion to cite a hodge podge of foreign laws, he limply and defensively concluded his opinion: "It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and people simply underscores the centrality of those same rights within our own heritage of freedom."

When a Supreme Court justice feels it necessary to write as the closing words of his opinion that he still holds fidelity to the Constitution, it is more than reasonable to assume he knows he has just betrayed that sacred document. But at least he has vouchsafed his popularity at liberal cocktail parties for another year.

The WSJ takes a somewhat more measured view:

No doubt most Americans will concede that the death penalty for 16- and 17-year-olds is a difficult moral question. That is why different U.S. states have different laws on the matter, and we'd probably oppose such executions if we sat in a legislature. But rather than defer to the will of voters as expressed through state legislatures and at least two ballot initiatives (in Arizona and Florida), Roper imposes the view of five justices that the execution of 16- and 17-year-olds is both wrong and unconstitutional. As Justice Antonin Scalia writes in a dissent that is even more pungent than his usual offerings, "The court thus proclaims itself sole arbiter of our nation's moral standards."
Justice Kennedy rests his decision on his assertion that American society has reached a "national consensus" against capital punishment for juveniles, and that laws allowing it contravene modern "standards of decency." His evidence for this "consensus" is that of the 38 states that permit capital punishment, 18 have laws prohibiting the execution of murderers under the age of 18. As we do the math, that's a minority of 47% of those states. The dozen states that have no death penalty offer no views about special immunity for juveniles--and all 12 permit 16- and 17-year-olds to be treated as adults when charged with non-capital offenses.

This idea of invoking state laws to define a "consensus" also runs up against any number of notable Supreme Court precedents, including Roe v. Wade. When Roe was decided in 1973, all 50 states had some prohibition against abortion on the books. But never mind.

Posted by Cassandra at 08:08 AM | Comments (19) | TrackBack

February 24, 2005

The Rehnquist Legacy

Richard Garnett writes movingly of William Rehnquist's tenure as Chief Justice:

...Walter Dellinger, a respected scholar and former acting solicitor general for President Bill Clinton, called Rehnquist one of "three dominant chief justices of American history." The others are John Marshall, the first chief justice who transformed the Supreme Court's role and interpreted the Constitution to unify the new nation, and Earl Warren, who committed the federal courts to protecting individual rights by expanding their power over state and local officials. What has Rehnquist done to gain admission to this select group?

He cites several instances where Rehnquist's influence has changed the course of modern jurisprudence:

Rehnquist has significantly reshaped and reformed our constitutional law. Take, for example, the area of religious freedom. Throughout the 1970s, the court's interpretation of the Establishment Clause, which was designed to protect religious liberty by limiting government power, tended instead to be almost faith-phobic. In cases involving state aid to children in religious schools, several of the justices were often distracted by a suspicion of parochial education and by what Rehnquist correctly called "Jefferson's misleading metaphor" of a "wall of separation" between church and state. Yet over the years Rehnquist has guided the court toward a more balanced position that calls for government neutrality, not hostility, toward religious choices, institutions, and activities. These efforts paid off in Zelman v. Simmons-Harris, the 2002 decision in which a majority led by Rehnquist upheld Cleveland's school voucher program, which includes religious schools. As Rehnquist recognized, Cleveland's experiment is an evenhanded effort to expand opportunities for low-income kids, not a first step toward theocracy.
A picture begins to emerge: a careful, patient guiding of the Court, always with the future in mind:
He has dramatically "shifted the center of the discussion," as Duke law professor Jefferson Powell put it. According to Powell, Rehnquist "took the long view, and he has won." Time and again—for example, in cases involving the Fourth Amendment's ban on unreasonable searches and seizures, or the appropriate balance between local control and federal power—seeds that Rehnquist planted decades ago in solitary and provocative dissents have taken root and flowered. As Walter Dellinger observed, Rehnquist's achievement is to have pushed into the mainstream once idiosyncratic views of state sovereignty and limited federal power.

Garnett sums up Rehnquist's philosophy thusly:

...two pithy statements ...go a long way toward capturing Rehnquist's judicial philosophy and legacy. "We start with first principles," he wrote in United States v. Lopez, the court's 1995 ruling that Congress lacks the power to make it a crime to bring a gun within 1,000 feet of a school. "The Constitution creates a Federal Government of enumerated powers." There it is, short and sweet: We the People have authorized our federal courts, legislators, and administrators to do many things—but not everything. Because the nation's powers are, in James Madison's words, "few and defined," Congress may not pursue every good idea or smart policy. The point of this arrangement, Rehnquist reminded us, was not to hamstring good government or throw up roadblocks to democracy, but to "ensure protection of our fundamental liberties."
There is also this from Rehnquist's dissent in Texas v. Johnson, the flag-burning case: "The Court's role as the final expositor of the Constitution is well established, but its role as a Platonic guardian admonishing those responsible to public opinion as if they were truant schoolchildren has no similar place in our system of government." This rebuke eloquently states Rehnquist's view of the function of judges and engages the primary argument of his contemporary critics. Prominent legal scholars like Yale's Jack Balkin and Stanford's Larry Kramer often charge that Rehnquist's calls for judges to act with restraint, humility, and deference are little more than disingenuous cover for his conservative activism. Rehnquist and his allies, the argument goes, have embraced judicial supremacy while professing judicial restraint, and have proved far more willing than their liberal predecessors to invalidate measures like the gun-control law at issue in Lopez.

This line of attack is misguided, though, and misses Rehnquist's point. Put aside that many of the critics who cry "judicial supremacy!" when the court limits Congressional power in the name of federalism go quiet when it strikes down pornography regulations in the name of freedom. In Rehnquist's view, even an appropriately restrained judge is not a rubber stamp for the legislature. It is neither arrogant nor illegitimate for judges to enforce strictly the Constitution's textual limits on federal power and the boundaries it sets between the different branches of government. This kind of judging is not antidemocratic. It does not end public debate on difficult questions or substitute judges' policy preferences for those of We the People.

A good read for those seeking to understand the role of Chief Justice and curious about where the Court will go under new leadership.

Posted by Cassandra at 09:35 AM | Comments (0) | TrackBack

February 22, 2005

End Eminent Domain Abuse

Most of us have heard of eminent domain: the government's right to condemn (and force the sale of) private property, making it available for public use. But most of us learned that the power of eminent domain was only to be used in limited cases; to put a road or a bridge through an already-developed area when there was no other practical route, for instance, or to erect a government building that would be used by all citizens.

Recently, however, the power of eminent domain has been enlarged way beyond its original scope:

You may not know it, but your home is for sale.

Across America, government and big business are teaming up to condemn people's homes and replace them with shopping centers and megastores such as Costco, Ikea and Home Depot. In fact, from just 1998 to 2003, there were 10,000 reported cases of cities and states condemning or threatening to condemn homes and businesses to make way for private companies to expand.

Consider the following eminent domain cases:

■ Randall Bailey’s Brake Service was condemned by the city of Mesa, Arizona after the owner of a local hardware store decided Bailey’s property would be a better location for his expanded operation.
■ Carol Pappas’s apartment building was condemned to make way for a parking garage for eight privately owned and operated casinos in Las Vegas.
■ New Rochelle, New York offered to condemn 15 acres of land housing 200 residents to the Swedish furniture giant IKEA to boost retail development in the city.
■ The city of Lakewood, Ohio wanted to condemn the entire West End neighborhood of well-kept, moderately priced homes because planners and the city council decided a complex of private retail and commercial businesses was more suitable for the site.

How does the government justify taking private property from individuals and selling it to private businesses?

Try increased tax revenue and job creation - increasingly, cities and towns use economic development as an excuse to compel the transfer of private property from one private party to another. Eminent domain has even been used for urban redevelopment when a city decides there is a "better use" for land than for the individuals who paid for it to continue living in their homes.

Today the Supreme Court will hear arguments as to whether any limits should be placed on the government's definition of "public use". In Kelo vs. New London, a town decided private land would be "better used" for a hotel, a health club and a marina. The fact that none of these businesses constitutes a public use didn't faze the town one bit: they maintain the town will benefit from the higher tax revenues and jobs created by the new businesses:

The problem with that argument is that most businesses benefit the public. If our homes can be taken away whenever bureaucrats decide that somebody else would use them more effectively, then our property rights will be rendered meaningless.

It doesn't take much to expand "we only require a public benefit" to "from each according to his ability, to each according to his need". Private property ownership is one of the fundamental rights guaranteed by the Constitution. Timothy Sandefur argues:

When Kelo is argued before the court, the justices will be asked a simple question: Does "public use" mean the government can take people's homes and small businesses and resell the land to Pfizer, Donald Trump or other private parties?

The answer should be no. Everyone, rich or poor, should have the same right to be secure in their homes and businesses. Otherwise, our property rights will be only permissions granted by the government -- and revokable at will.


Posted by Cassandra at 07:32 AM | Comments (13) | TrackBack

February 02, 2005

Here's To Legal Reasoning: Discrimination For Me, But Not For Thee

Noted with amusement:

Don't ask. Don't tell. Having no desire to crash our e-mail server, we'll save discussion of gays in the military for another day. Rather, today's subject is lawyers in the military. Surely Americans of all points of view can agree that in an age of Guantanamo and Abu Ghraib, the military can use the best attorneys it can get.

So it's a disgrace that some of the nation's law schools, objecting to the Pentagon's "discrimination policies," refuse to permit military recruiters to make their pitch on campus, relegating them instead to unofficial off-campus venues. Law students pondering their first career move can be wined and dined by fancy firms that set up recruitment tables at campus job fairs, but they have to stroll over to the local Day's Inn to seek out the lonely military recruiter.

To put it another way, the same liberals who object that the military includes too many lower-class kids won't let military recruiters near the schools that contain students who will soon join the upper-class elite. It's almost enough to make us contemplate restoring the draft, starting with law school students.


Posted by Cassandra at 09:10 AM | Comments (12) | TrackBack

When Cops Don't Shoot

Interesting article about law enforcement:

The remarkable success of the NYPD in reducing crime has been well celebrated, but one key part is little understood and less appreciated - how good cops became at doing their jobs without firing their guns.

Let's go to the stats: In 1991, when David Dinkins was mayor, police shot 109 people, 27 fatally. In 1994, under Rudy Giuliani, they shot 98 people, 32 fatally, including two bystanders.

That's when the NYPD got serious about finding a way not just to shoot accurately, but to shoot less. I saw firsthand how difficult that was when I took part in drills at the Rodmans Neck training facility. As journalists donned helmets, vests and paint-ball guns to play cops, commanders watched from above as we responded to a "burglary" in a cramped apartment hall.

The pretend perp pulled his gun, I fired mine, the perp fired his - and my partner, another journalist, shot me in the arm. Even paint balls hurt.

The effects of such training on the department were dramatic. Even as the size of the NYPD grew, the number of suspects shot by officers fell consistently. By 2001, restraint was thoroughly ingrained. In that year, cops shot just 29 people, 11 fatally.

Some of you may know that my oldest boy is a cop in Northern Virginia. His department regularly meets for this kind of training - partly because it's just plain fun, and partly because they are seriously committed to training officers to enforcing the law without the use of firearms whenever possible. And in Washington DC, in the wake of 9/11, to being able to use firearms if they need to.

But there are also big changes happening in urban law enforcement.

Officers are under constant scrutiny. Their cars have tape devices to record literally every move they make.

Imagine, for a moment, trying to do your job, knowing that every move you make, every word you speak, is being recorded. Personally, I wouldn't want to work in that type of environment. And they have recently been told that cruisers can no longer pursue fleeing suspects - it's "too dangerous".

Being married to a military officer, I've heard a lot of criticism of the military. I overhear a lot of criticism of police officers.

But we ask a lot of our police. And although they, like the military, are not perfect, they (like the military) are dealing with a segment of humanity that is often violent, depraved, and anti-social. And increasingly, we are hamstringing them, telling them, "don't touch suspects, don't shoot, don't speak harshly to them, don't pursue them if they flee".

And they get precious little credit for the outstanding job they do every day. For the fact that policing is hard work - especially so when you don't use force: when you cajole or use humor, charm, or just sweet reason to try to enforce the law in a world where some people don't respect anything except a 2x4 upside the head.

Posted by Cassandra at 08:30 AM | Comments (7) | TrackBack

January 16, 2005

Virginia Now Safe For Fornication?

The recent overturn of Virginia's law against fornication is generating loads of funny quotes. A few of my favorites:

"I can't say we're pleased we made Virginia safe for fornication," said Neil Kuchinsky, Martin's attorney. "Though some will thank me, I'm sure. What we're saying is, there's a new sexual rule of procedure in Virginia. That is, 'If you're not asked, do tell.' "

And then there's this gem:

Martin, 30, said she had no idea she was committing a misdemeanor during her two-year relationship with Ziherl. Comparing the ruling to laws regulating drinking and driving, she said yesterday's ruling means Virginians should act responsibly.

"Ultimately, the message is, we are adults and we do engage in activities that are not always current with the law books," she said. "If you're going to do something, be responsible about it."

Despite the ruling, Virginia's sodomy laws remain on the books. Bob from Accounting helpfully links to this RandMcNally List of the Top Ten Highways for Oral Sex.

To paraphrase a phrase from a popular TV police drama, "Be careful out there, people".


Posted by Cassandra at 10:07 AM | Comments (16) | TrackBack

Federal Sentencing Guidelines

ED-AC508_1sentence01132005194039.gif Amid a plethora of confusing and conflicting articles on the subject, the WSJ had a few clear and well-reasoned pieces about the Booker decision. The most remarkable thing about them was the graphic at left which, caveats about correlation not proving causation aside, at least provides a vivid reminder of why Congress implemented federal sentencing guidelines in 1984.

In Sentenced to Confusion (subscription req'd), the Journal reviews the history of the guidelines:

The Supreme Court handed down its long-awaited decision on the Federal Sentencing Guidelines Wednesday. And if you thought things were confusing before, just wait. About 60,000 criminals are sentenced in federal court each year, and the process will now be more bewildering than ever.

Better legal minds than ours are describing the reasoning behind this fractured pair of 5-4 judgments as "weird," "bizarre" or (our favorite for understatement) "intellectually complicated." The bottom line is that the Court decreed that the guidelines enacted by Congress 21 years ago must be considered as merely advisory, not mandatory. Judges are no longer bound to impose sentences within the ranges set by Congress.

In evaluating the Court's ruling, it helps to remember why Congress passed the 1984 sentencing guidelines in the first place. It was an effort to impose some kind of discipline on a system that was full of disparities and which an ever larger share of the American public saw as too lenient on criminals. It wasn't unusual for a person convicted of a crime in one jurisdiction to receive a sentence years or even decades longer than someone convicted of the same crime in a more liberal one. It all depended on the disposition, not to say whim, of the judges wielding the gavels.

While Wednesday's ruling restores considerable discretion to judges, it won't take the sentencing system back in time to pre-1984 -- despite what some critics are claiming. For one thing, the same legislation in which Congress mandated the sentencing guidelines also abolished the parole system, which often put criminals back out on the streets after serving just a brief time in jail. Unlike 21 years ago, a criminal handed a 10-year sentence today is likely to serve something close to that amount of time. Also, in recent years Congress has set mandatory minimum sentences for a wide range of crimes, and these remain unaffected by this week's ruling.

While admitting that judges may well continue to use the guidelines, the Journal points out that on review, federal appeals courts will apply a "reasonableness" standard, the problem being the disparity between what conservative districts like the 4th view as 'reasonable', compared with more liberal districts like the 9th. The big question now becomes, what will Congress do?

Some Democrats called for a go-slow approach, including Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, who said, "Congress should resist the urge to rush in with quick fixes that would only generate more uncertainty and litigation."

One wonders what could generate "more uncertainty and litigation" than post-Booker Congressional inactivity: already there has been a rush to re-examine past convictions in the hope that, absent mandatory guidelines, a more favorable sentence may be obtained. The Justice Department is already changing the way they send cases up:

The Justice Department already has made some changes in the wake of Wednesday's rulings. Prosecutors said they had received preliminary verbal guidance from Justice advising them that they no longer need to include factors that could increase a sentence in their indictments.

Additionally, prosecutors won't continue to seek superseding indictments from past cases to include additional factors, such as drug amounts and loss amounts in white-collar cases. These factors weren't heard by juries but were often critical in determining the length of a defendant's sentence.

And many judges were already disregarding the mandatory guidelines in anticipation of the Booker ruling:

Six months ago, the Supreme Court cast uncertainty over federal sentencing guidelines when it ruled in the Washington state case of U.S. v. Blakely, a case involving a Washington man whose sentence was boosted by factors neither admitted by the defendant nor considered by the jury. Many expected that ruling would eventually apply to federal sentencing guidelines. They were right.

Judges in the overwhelming majority of states have operated as though the guidelines were already unconstitutional, even before this week. "We're fortunate here because we anticipated exactly what the Supreme Court did," said U.S. District Judge Lawrence L. Piersol of South Dakota. He said that since June, the South Dakota judges have treated the guidelines as advisory, rather than mandatory.

It will be interesting to see whether Congress looks at the impact of that decision on recent rulings before doing something as radical as increasing mandatory minimum sentences. As Debra Saunders points out in an interesting editorial, too much Congressional micro-management amounts to Congress "sentencing defendants they never see":

Decades ago, judges chose to get around laws they didn't like -- they were acting like lawmakers. Then lawmakers passed laws that set sentences for trials they'll never see. Judges acted like lawmakers, then lawmakers acted like judges. Hanging judges.

Eric Sterling doesn't get the hostility that congressional Republicans feel toward federal judges. Since 1980, he notes, there have only been two years when a Democratic president could name judges, and Democrats ruled the confirmation process. As a result, the overwhelming majority of federal judges are "Republican-vetted," Sterling noted.

Congressional activism is not an improvement over judicial activism. It is a marriage of bad government with big government -- resulting in big, bad government. It replaces judges choosing which laws they want to enforce with lawmakers sentencing people they will never see.

The next few months should be very interesting.


Posted by Cassandra at 09:31 AM | Comments (1) | TrackBack

January 14, 2005

Nekkid Economic Favoritism, The Sequel

Wherein the Blog Princess throws out the other side of the argument to amaze and/or confuse the unwary...

A few days ago, the half-vast editorial staff was shocked (shocked! I tell you) to see a federal court show some deference to the Oklahoma legislature in a case involving funeral directors, caskets, and naked favoritism. Although the editorial staff never disclosed their learned opinion on the matter, they thought it only proper to follow up the sometimes Livid commentary with another view. Calling Powers v. Harris 'probably the most disastrous case for economic freedom in the last seventy years', Timothy Sandefur opines:

What that means is that government may manipulate the economy to benefit its chosen favorites, for no public reason at all—just to give out favors—even though the Fourteenth Amendment guarantees to all people the “equal protection of the laws.”

Sandefur's amicus brief in another case, which contended that nekkid economic favoritism violates the equal protection clause, was rejected by the 10th Circuit, who said in part (ahem, KJ...):

Implicit in Plaintiffs’ argument is the contention that intrastate economic protectionism, even without violating a specific constitutional provision or a valid federal statute, is an illegitimate state interest....

Which goes to my point that a crucial consideration was the Court's notion that (rightly or wrongly) it had no basis for overruling the legislature, rather than a desire to defend economic protectionism per se. Sandefur responds:

The Constitution does forbid government from regulating solely in the interest of private parties, both under the equal protection clause and under the due process clause. Unfortunately, the Tenth Circuit held that intrastate economic protectionism constitutes a legitimate state interest.” In other words, the government can exercise its coercive power to support politically successful groups for no other reason than that they are politically successful.

This is an interesting case for conservatives as it pits federalism against economic liberty, the question being who gets to regulate intrastate commerce.

Do we allow the federal courts to invoke the 14th willy-nilly to achieve the (admittedly desireable) end of protecting individual consumers? Or is this a role more properly reserved for the state legislatures?

Framed another way, I suppose one could ask, are lower prices a Constitutional right? "For the children' arguments aside, what is the federal interest here?

David Giacalone makes the counterargument here.

VC asks, you decide.

Posted by Cassandra at 04:52 AM | Comments (2) | TrackBack

January 12, 2005

Time To Quit The Plame Game

Hmmm... in a case that has been rife with idiocy from the beginning, this sounds perilously like common sense.

It's time for a timeout on a misguided and mechanical investigation in which there is serious doubt that a crime was even committed. Federal courts have stated that a reporter should not be subpoenaed when the testimony sought is remote from criminal conduct or when there is no compelling "government interest," i.e., no crime. As two people who drafted and negotiated the scope of the 1982 Intelligence Identities Protection Act, we can tell you: The Novak column and the surrounding facts do not support evidence of criminal conduct.

When the act was passed, Congress had no intention of prosecuting a reporter who wanted to expose wrongdoing and, in the process, once or twice published the name of a covert agent. Novak is safe from indictment. But Congress also did not intend for government employees to be vulnerable to prosecution for an unintentional or careless spilling of the beans about an undercover identity. A dauntingly high standard was therefore required for the prosecutor to charge the leaker.

At the threshold, the agent must truly be covert. Her status as undercover must be classified, and she must have been assigned to duty outside the United States currently or in the past five years. This requirement does not mean jetting to Berlin or Taipei for a week's work. It means permanent assignment in a foreign country. Since Plame had been living in Washington for some time when the July 2003 column was published, and was working at a desk job in Langley (a no-no for a person with a need for cover), there is a serious legal question as to whether she qualifies as "covert."

The law also requires that the disclosure be made intentionally, with the knowledge that the government is taking "affirmative measures to conceal [the agent's] relationship" to the United States. Merely knowing that Plame works for the CIA does not provide the knowledge that the government is keeping her relationship secret. In fact, just the opposite is the case. If it were known on the Washington cocktail circuit, as has been alleged, that Wilson's wife is with the agency, a possessor of that gossip would have no reason to believe that information is classified -- or that "affirmative measures" were being taken to protect her cover.

There are ways of perceiving whether the government was actually taking the required necessary affirmative measures to conceal its relationship with Plame. We can look, for example, at how the CIA reacted when Novak informed the press office that he was going to publish her name. Did the general counsel call to threaten prosecution, as we know has been done to other reporters under similar circumstances? No. Did then-Director George Tenet or his deputy pick up the phone to tell Novak that the publication of her name would threaten national security and her safety, as we know is done when the CIA is serious about prohibiting publication? No. Did some high-ranking government official ask to visit Novak or the president of his newspaper syndicate to talk him out of publishing -- another common strategy to prevent a story? No.

Novak has written that the CIA person designated to talk with him replied that although Plame was probably not getting another foreign assignment, exposure "might cause difficulties if she were to travel abroad." He certainly never told Novak that Plame would be endangered. Such a meager response falls far legally shy of "affirmative measures."

There is even more telling CIA conduct about Plame's status. According to the Senate Select Committee on Intelligence's "Report on the U.S. Intelligence Community's Prewar Intelligence Assessments on Iraq," when the agency asked Plame's husband to take on the Niger assignment, he did not have to sign a confidentiality agreement, a requirement for just about anybody else doing work for an intelligence agency. This omission opened the door for Wilson to write an op-ed piece for the New York Times describing his Niger trip. Did it not occur to our super sleuths of spycraft that a nationally distributed piece about the incendiary topic of weapons of mass destruction -- which happens to be Wilson's wife's expertise -- could result in her involvement being raised?

Personally, I find the timing of this article highly suspicious.

Posted by Cassandra at 09:51 AM | Comments (1) | TrackBack

Nekkid Economic Favoritism Rears Its Ugly Head...

And before you jump all over me for the title of this post, I did decide to opine before Eugene Volokh's "naked economic favoritism" almost made me spit out my morning coffee (doesn't take much some days...).

As usual, it's all Robert Prather's fault anyway.

Kind of interesting if you've been following the Wine Wars controversy. Back in August, the 10th Circuit upheld a funeral directors' monopoly on casket sales. 'That other VC's' Todd Zywicki commented:

One of the more disturbing aspects about this opinion is that it suggests that protecting an interest-group from economic competition is itself a legitimate government purpose. "In contrast, the Supreme Court has consistently held that protecting or favoring one particular intrastate industry, absent a specific federal constitutional or statutory violation, is a legitimate state interest." On the other hand, there is a refreshing honesty to the court's characterization of the realities of the political process (especially when it comes to regulation of the licensed professions): "We also note, in passing, that while baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments." The court goes on to state, however, "While the creation of such a libertarian paradise may be a worthy goal, Plaintiffs must turn to the Oklahoma electorate for its institution, not us."
In fact, according to FTC studies of the funeral industry, it turns out that in many families there is one person who essentially specializes in buying funerals--i.e., "Uncle Joe" or "Aunt Sue" handles all the funeral arrangements for family funerals. So in fact the decision-maker can and will shop--if given the chance. These sorts of laws like the Oklahoma decision in Powers instead just deliver up consumers to get ripped-off by a licensed monopoply. And it has been well-recognized since at least Mancur Olson that the political process is likely to fail in exactly this situation--where there is a delivery of concentrated benefits to a well-organized interest group and the costs are borne by dispersed consumers as a whole who lack the incentive and ability to organize themselves to overturn these regulations. Indeed, in this situation the incentives would appear to be even more attenuated, in that purchase of funeral goods and services is at best a rare shopping incursion, distinguishing it from such goods and services as plumbers, lawyers, and doctors.

Having lost on appeal, the Institute for Justice has filed (I assume) a cert petition asking the Supreme Court to review the decision. Volokh comments:

In fact, the court of appeals held that, under its view of the Constitution, naked economic favoritism is quite permissible: "We also note, in passing, that while baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments." I'm surprised the issue hasn't gotten more attention. I'm not sure that the Constitution should be interpreted as providing broad economic liberty protections. I support economic liberty as a policy matter, but while the Constitution does clearly block some interferences with such liberty (consider the Takings Clause, the Contracts Clause, and the part of the Due Process Clause that prevents the deprivation of property without due process), it leaves the government with lots of room to regulate. I'm not sure how much room it leaves — I haven't done serious research on the subject — but I suspect that it leaves enough even for legislation that simply tries to favor one business group over another.

I know, though, that my friend and coblogger Randy Barnett takes a different view; and in any event, this is a very interesting subject. And even if it turns out that the Tenth Circuit is right and that naked economic favoritism for one industry is constitutional, it's still a pretty bad idea, and I wish that the media did more to cover how these laws harm consumers as well as competitors.

As a good little Federalist and one who has often wished the courts would leave lawmaking up to the Legislative Branch, I can't help but find the Court's reasoning amusing, even as I deplore the practical outcome:

[R]ational-basis review does not give courts the option to speculate as to whether some other scheme could have better regulated the evils in question. [citation omitted]. In fact, we will not strike down a law as irrational simply because it may not succeed in bringing about the result it seeks to accomplish, [citations omitted], or because the statute's classifications lack razor-sharp precision, [citation omitted]. Nor can we overturn a statute on the basis that no empirical evidence supports the assumptions underlying the legislative choice. [citation omitted]. ***

These admonitions are more than legal catchphrases dutifully recited each time we confront an equal protection challenge to state regulation--they make sense. First, in practical terms, we would paralyze state governments if we undertook a probing review of each of their actions, constantly asking them to "try again." Second, even if we assumed such an exalted role, it would be nothing more than substituting our view of the public good or the general welfare for that chosen by the states. As a creature of politics, the definition of the public good changes with the political winds. There simply is no constitutional or Platonic form against which we can (or could) judge the wisdom of economic regulation. Third, these admonitions ring especially true when we are reviewing the regulatory actions of states, who, in our federal system, merit great respect as separate sovereigns.***

(Oh my dear Lord... such humility!)

[F]avoring one intrastate industry over another is a legitimate state interest.… [W]e hold that, absent a violation of a specific constitutional provision or other federal law, intrastate economic protectionism constitutes a legitimate state interest.

I await with my usual resignation the beatings that inevitably follow my temerity.


Posted by Cassandra at 07:35 AM | Comments (18) | TrackBack

January 09, 2005

Racism, Or Just Politics As Usual?

Jack Kelly outs Harry Reid's tacky (and, as it turns out, inaccurate) remarks about Justice Thomas. Kelly thinks Reid's remarks are motivated by racism, but the rest of his article suggests a more pragmatic rationale:

Democrats maintain their hammerlock on black votes by accusing Republicans of racism. Whenever a Republican president appoints obviously qualified blacks to high public office, this smear seems less credible. And Colin Powell, Condoleezza Rice and -- yes -- Clarence Thomas prove that a black can get ahead without chopping cotton on the liberal plantation.
Janice Rogers Brown is Condoleezza Rice with a law degree. She is a bright, articulate, black woman who accomplished much despite growing up in the segregated South. No one can call her unqualified on the basis of her resume.

Democrats successfully filibustered Bush nominees for appellate courts, including Brown, because the battle didn't register on the radar screens of most people. A Supreme Court fight would be too big to ignore.

It will be hard for Democrats to fight Thomas and Brown without appearing racist. That could remind blacks that every segregationist who ever served in Congress was a Democrat. But if they fail to block the nominations, then it will be a Republican president who appoints the first black chief justice, the first black woman justice.

As Kelly points out, this is a battle the Democrats cannot afford to lose:

Even with the support of nearly 90 percent of blacks, Democrats have lost the White House and both houses of Congress. If just one black in five were habitually to vote Republican, the Democratic party could go the way of the Federalists and the Whigs.

If there was ever a time to force this issue out into the open, it is now. Not only is it politically astute, it's the right thing to do.

Posted by Cassandra at 09:51 AM | Comments (2) | TrackBack

December 27, 2004

Judicial Nominations

Another take on the Bush nominations:

The guessing game over what sort of nominee President Bush might propose for a Supreme Court vacancy took a new turn last week when Bush renominated a dozen nominees to federal appeals courts who weren't confirmed in the recent Congress. Some were blocked by Democratic filibusters.
Liberal activists who have predicted that Bush would push the ideological envelope in making his first nomination to the high court said, "I told you so." But observers who think Bush might confound supporters and critics alike by choosing a moderate conservative for the first Supreme Court vacancy could draw a different interpretation from last week's renominations.
In that scenario, Bush was using the appeals court renominations to acquire political capital with his conservative base that he could then spend by naming a relatively moderate figure to replace the ailing Chief Justice William Rehnquist if and when Rehnquist retires (or to replace Justice Sandra Day O'Connor if she were elevated to chief justice).
To put faces on this speculation, Bush might choose to replace Rehnquist with Judge J. Harvie Wilkinson III of the 4th U.S. Circuit Court of Appeals rather than Wilkinson's harder-edged colleague, Judge J. Michael Luttig. Or he might choose John Roberts, whom the president installed on the U.S. Court of Appeals for the District of Columbia Circuit despite some liberal opposition.

Given the potentially large number of appointees Bush may have the opportunity to make, a sound but relatively moderate first appointment would go far towards calming fears on both sides of the aisle. It will be interesting to see whether the President takes the long view.

Posted by Cassandra at 10:18 AM | Comments (1) | TrackBack

December 12, 2004

A Case Of Whine, or Not?

I've been following this with interest for some time:

Christmas is coming, and if you're thinking of going online to order your Uncle Bob a bottle of that nice pinot noir you tasted on your trip to Oregon last summer, you might want to think again. Depending on where Bob lives, you could be committing a crime. Importing wine directly from out-of-state vineyards is against the law in 24 states; it's a felony in five.
At least it is this Christmas. Next year may be a different story--depending on the outcome of the case the Supreme Court heard Tuesday. You don't have to be an oenophile to hope the Justices rule in favor of the wineries and the consumers who wish to buy from them. How the Court rules in the wine case could have implications for interstate commerce and Internet selling overall.
If you're wondering how ordering a bottle of wine for your uncle is any different from ordering him a shirt from L.L. Bean, the short answer is the 21st Amendment. The 1933 amendment that ended Prohibition also gave states the authority to regulate the importation and distribution of alcohol. The question for the Court is whether the 21st Amendment supersedes the Constitution's Commerce Clause, under which the Founders gave Congress the sole right to regulate trade across state lines. Or can states enact protectionist barriers to the importation of alcohol?

This is a tough one. My more Librarian (and alcohol-loving) instincts cry, "Free the oppressed grape! The noble fruit was never meant to live in bondage!" I find it extremely annoying not to be able to ship a wine basket to certain states, or join a wine club. When I lived in California, we loved going to Napa and Sonoma. But I couldn't send bottles of wine to my parents or to friends back East: it was against the law. Many wines we tasted weren't sold in stores, so they were otherwise unavailable. So part of me would like to see bans on direct imports from out-of-state wineries lifted.

On the otter heiny, I'm unimpressed with the logic of arguments like this:

You know the liquor lobbies are really desperate, however, when they argue that direct wine sales would make it easier for minors to obtain alcohol. Kids these days are precocious, but it's hard to imagine a teenager using dad's credit card to order $20 bottles of wine for a party a couple of weeks from now.

It's not the teen ordering wine once for a party you worry about. It's the teen who's drinking secretly every day. And even though I hate the idiotic restrictions states like Maryland put around the availability of alcohol, they, too are part of federalism: local control over local living conditions. I hate to see the federal government beat the states over the head with the Commerce Clause. Increasingly, they are using it like a club to neutralize local voter control and homogenize living conditions in this country.

The Wal-Martization of America is a seductive vision: cheap goods and seemingly endless selection -- if we're willing to accept the imposition of the same stale menu of choices everywhere we go. A 50-state plan-o-gram designed to maximize profits and minimize waste.

How boring.

So are we truly freer, or not? I don't really know the answer to that one.

Posted by Cassandra at 05:24 AM | Comments (38) | TrackBack