Villainous Company

February 19, 2010

Judging Obama: the Soft Bigotry of Low Expectations

Is there anything Barack Obama isn't qualified to do? Not according to his supporters. As I pointed out during the campaign, America's post racial President is routinely exempted from the standards used to judge other men. His nomination and electoral victory were historic in more ways than one:

Since the Civil War, 49 men have won a major-party presidential nomination. Only three of these nominees were less qualified, by traditional measures of leadership and experience, than Obama.

That puts Barack Obama at or around the 6th percentile of presidential candidates chosen by a major party in the last century and a half, experience-wise. But we are not allowed to notice this, because it would be racist to elevate experience over skin color.

Interestingly:

None of those men was able to win the White House.

Not content with having elected one of the least qualified Presidents in modern history, Jeffrey Rosen thinks Obama deserves a position on the Supreme Court, too! Unsurprisingly (at least to those who watched the presidential campaign coverage in stunned outrage), Obama's chief qualification for this elite position appears to be ... drum roll... his temperment:

He's too detached and cerebral. Too deferential to Congress. Too willing to compromise. And he's too much of a law professor and not enough of a commander in chief, as Sarah Palin recently admonished.

These are some of the qualities for which the president, rightly or wrongly, is criticized. They are also the qualities that make him well suited for another steady job on the federal payroll: Barack Obama, Supreme Court justice.

Think about it. Though Obama has struggled to find his footing in the White House, his education, temperament and experience make him ideally suited to lead the liberal wing of the court, especially at a time when a narrow conservative majority seems increasingly intent on challenging progressive economic reforms for the first time since the New Deal. Obama is clearly eager to take on the four truly conservative justices -- Samuel Alito, John Roberts, Antonin Scalia and Clarence Thomas -- as his State of the Union smackdown suggests. But as president, he's constrained by that pesky separation of powers. So what better way to engage the fight than to join the bench?

Rosen's argument - that Obama's failings as President uniquely qualify him for a lifetime appointment to the highest court in the land - ought to be damning. Is there any other profession in which failure at something else would be advanced as a compelling argument for hiring a job applicant? But the rules that apply to others seem to be suspended when Obama's name comes up. Read Rosen's entire essay. Notice anything missing? References, perhaps, to actual legal experience? Rosen is smart to gloss over the pesky question of experience because, as it turns out, Obama did precious little of note during his brief stint as an attorney:

"He was doing the work that any first-year or second-year associate would do," Miner said. "In litigation he was doing basic research and writing memos. ... In the first couple years he would play a very minor role. He wouldn't know (much) so he would take the lead from whoever was supervising his work."

...Obama did not work long as a full-time attorney.

The law firm says he logged 3,723 billable hours during his tenure from 1993 to 2004, most of it during the four years between 1993 and 1996.

In 1995, the year his first book came out, Obama started his successful run for the Illinois state senate and stopped working full time once he took office in 1997.

Hmmm... let's see. Just as a rough tally, 3723/4 years equals about 930 billable hours a year.

For comparison purposes, the ABA's Model Law Firm Policy Regarding Billable Hours prescribes an average of 1900 billable hours per year. Over a four year period, a typical associate would rack up about 7,600 billable hours. Obama billed about half of that. But since we're applying a different standard to Obama, let's give him another chance.

Perhaps the type of work he did is somehow remarkable? A few excerpts from a Chicago Sun Times piece about Obama's legal career quickly dispel that notion too:

"He wrote lots of substantial memos, but he didn't try any cases," said Judson Miner, a partner in the firm who was Obama's boss.

A search of all the cases in Cook County Circuit Court in which Obama made an appearance since he graduated from Harvard in 1991 shows: Zero.

His practice was confined mainly to federal court in Chicago, where he made formal appearances in only five district court cases and another five in cases before the 7th U.S. Circuit Court of Appeals -- a total of 10 cases in his legal career. He was on the winning side of just about all those cases. Miner said there were 30 cases to which Obama contributed in some way.

Contrast Rosen's tough, detailed review of a far more experienced nominee. The widely dissed Harriet Miers also had far more experience than Barack Obama.

Although their legal resumes eclipse Obama's in both breadth and depth of experience, both Sotomayor and Miers faced significant debate about their qualifications. In what rational universe would Barack Obama, whose legal resume is perilously thin by any objective standard, be considered a serious candidate for the highest court in the land?

Oh, wait. This is a man who was elected President of the world's largest superpower without a single shred of executive experience to his name. Why am I not surprised?

Posted by Cassandra at 07:02 AM | Comments (32) | TrackBack

January 29, 2010

How to Sandbag a Captive Audience, Presidential Edition

Randy Barnett points out just what was wrong with Obama's drive by criticism of SCOTUS:

In his State of the Union address, the president of the United States called out the Supreme Court by name for sharp condemnation and egged on his congressional supporters to jeer its recent decision:

"Last week, the Supreme Court reversed a century of law to open the floodgates for special interests—including foreign corporations—to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that's why I'm urging Democrats and Republicans to pass a bill that helps to right this wrong."

Even before he finished, hundreds of Democratic senators, congressmen and cabinet officials surrounding the six seated justices stood, applauded and cheered.

Suppose for a moment that you were a justice seated there as the president of the United States singled you out for criticism and the room stood and cheered. Could they take it? Yes, of course. Should they have been put in this position? Absolutely not.

Grim put the matter more bluntly:

The opposition party gets to respond formally at the end of the speech, so a certain amount of political grandstanding towards them is fine. (Less fine: calling your opponents liars to their faces, then acting like you're the one who deserves an apology when they give you the lie right back.)

The Supreme Court has no such opportunity to speak directly to the People. They may not, by protocol, even applaud things they like from the President's speech, nor stand to applaud, nor cheer. They are supposed to be outside of politics, and they cannot answer the blow.

It does not help that the President's claim about just what they had done was a... well, it was 'not true.'

The Justices did not deserve to be treated in that way. It was an honorless insult, and a cowardly act.

Listening to the Prez the other night, I couldn't help noticing that Obama always follows the same M.O.: begin by whacking away at the opposition and then plaintively ask why both sides can't bury the hatchet?

It occurred to me then that getting along with the opposing party isn't all that much different than getting along with the opposite sex. In both cases you're dealing with two parties who don't think alike, don't have the same priorities, needs or goals, and frequently misunderstand each other. The idea that comity between the sexes or between the parties is going to magically occur without a concerted effort is pretty laughable.

If he really wants to gain the cooperation of Republicans, maybe Obama would profit from applying some of the same tactics used by happily married couples. Items 2, 4 and 5 seem particularly apt.

The rest, when I imagine 'Bam applying them to Congressional Rethugs, just make me laugh.

Whether it's a marriage or a professional relationship you're trying to save, two old bits of advice seem particularly apt:

1. If you want to get along with others, don't be a jerk.
2. The common element in all your failed relationships is you.

More along the same lines in the comments section of this Althouse post:

... Obama acted true to form. He took advantage of a forum in which he's apparently allowed to say whatever he wants, true or not, but if his opponents react or rebut in any way, they're somehow breaking protocol and should just shut up.

You know who Barack Obama is? He's the guy who will only hit you when someone else is holding your arms. And in his political career, there's always been someone to hold the arms of his opponent.

His political opponents have their divorce records released. Criticize Obama, and his sycophants try to drum you out of polite society with the racist charge. When he gets called a liar, his Democratic allies come up with a resolution condemning the man. And when a Supreme Court justice mildly disagrees with a crass, cheap, dishonest attack, Greenwald and his ilk slither out of the weeds to grab those arms.

Because of all that, Obama struts around thinking he's tough.

It's never his fault and he's always the victim... even when he picked the fight. Presidential, that.

Posted by Cassandra at 08:59 AM | Comments (25) | TrackBack

November 24, 2009

Lawfare

You've got to love it:

Navy SEALs have secretly captured one of the most wanted terrorists in Iraq — the alleged mastermind of the murder and mutilation of four Blackwater USA security guards in Fallujah in 2004. And three of the SEALs who captured him are now facing criminal charges, sources told FoxNews.com.

The three, all members of the Navy's elite commando unit, have refused non-judicial punishment — called an admiral's mast — and have requested a trial by court-martial.

Ahmed Hashim Abed, whom the military code-named "Objective Amber," told investigators he was punched by his captors — and he had the bloody lip to prove it.

A bloody lip. Saul Alinsky rules.

Posted by Cassandra at 05:32 PM | Comments (15) | TrackBack

October 21, 2009

The Nanny State Jumps the Shark

This is insane:

Eric Williamson faces an indecent exposure charge after a passerby saw him in the buff in his own home making coffee.

It happened at 5:30 a.m. Monday.

Channel 5 reports the woman and 7-year-old boy who saw him naked apparently had cut through Williamson's front yard from a nearby path.

Williamson, 29, says he didn't know anyone could see him.

"If I stood and seemed comfortable in my kitchen, it's natural. It's my kitchen," Williamson tells Channel 5.

Williamson says his roommates were not home when he came into the kitchen and made his coffee.

Do the words, "trespassing" and "assumption of the risk" have any meaning any more?

These folks had no right to be in Williamson's yard, but somehow I'm supposed to feel sorry for them for seeing something they wouldn't have seen if they'd obeyed the law? Give me a break.

In the spirit of solidarity with our nekkid, coffee loving friend in Virginia, one of the best things about having our grown children move out of our house was the glorious freedom to relax in our own home. If I want to lure the spousal unit away from the TV during halftime or he wants to entice me away from work after 5 pm with a better offer, I sure as hell don't want to have to worry that some moron who doesn't understand the concept of private property will be "offended".

Everyone's a victim these days.

Boundaries, people. If we're just willing to respect a few boundaries, it's a lot easier to get along.

Posted by Cassandra at 04:28 PM | Comments (20) | TrackBack

October 18, 2009

Constitution? What Constitution?

Incroyable:

At the New Orleans town hall, 29-year-old Gabriel Bordenave complained about the slow pace of the recovery. “I expected as much from the Bush administration,” he told Obama. “But why are we still being nickel-and-dimed?”

The president gave a technocrat’s answer about the “complications between the state, the city and the feds in making assessments of the damages.”

“Now, I wish I could just write a check,” he added. When an audience member yelled “Why not?” he dryly noted, “There’s this whole thing about the Constitution.”

The president should remember, though, that when you’re cooking up a more perfect Union, sometimes you’ve got to break some eggs.

Posted by Cassandra at 01:06 PM | Comments (27) | TrackBack

September 21, 2009

If Individual Mandate Isn't a Tax, Is It Still Constitutional?

During the BusHitler years the oft repeated ne plus ultra of argument enders was, "We are all entitled to our own opinions, but we are not entitled to our own facts."

What a difference an election makes! So many Lefty memes are falling by the wayside these days. It's enough to make the Founding Fathers cry.

These days, once patriotic dissent is now regarded as the lowest form of domestic terrorism. Real Americans can't wait to trade essential liberties for temporary security and if your name happens to be Barack Obama, you can not only make up your own definitions, but your own facts as well!

In the most contentious exchange of President Barack Obama’s marathon of five Sunday shows, he said it is “not true” that a requirement for individuals to get health insurance under a key reform plan now being debated amounts to a tax increase.

But he could look it up — in the bill.

Page 29, sentence one of the bill introduced by Senate Finance Committee Chairman Max Baucus (D-Mont) says: “The consequence for not maintaining insurance would be an excise tax.”

And the rest of the bill is clear that the Finance Committee does, in fact, consider it a tax: “The excise tax would be assessed through the tax code and applied as an additional amount of Federal tax owed.”

The bill requires every American, with few exceptions, to carry health insurance. To enforce this individual mandate, the Senate Finance Committee created the excise tax as a penalty for people who don’t have insurance – and it can run as much as $3,800 a year per family.

The House bill also refers to the penalties for not carrying insurance as a tax. It calls for a “tax on individuals without acceptable health care coverage” and amends the tax code to implement it.

Yesterday whilst watching the President of these United States school the vast reich wing noise machine, the Editorial Staff could not help wondering whether it was really wise to undercut what is arguably the strongest argument for the constitutionality of the individual mandate: Congress' power to tax and spend to promote the general welfare?

The Potomac atmosphere in early 1935 was one of importunate enthusiasm--of aggressive confidence, too, with one great exception. That exception, which colored the thinking of even the lowliest contributor to policy making, was grave uncertainty as to the Supreme Court's view of the constitutionality of New Deal legislation. To be sure, the Schechter decision, which invalidated the NRA and provoked President Roosevelt to angry comments about the "horse-and-buggy Court," was not handed down until late May. Long before that, however, all of us working to prepare social insurance legislation were aware of the constitutional difficulties involved. A young lawyer saddled with more responsibility than he should have accepted (I not only accepted it, I clung to it) was unceasingly conscious of the threatening shadow cast by the Constitution or the justices or both.

... Hostile newspapers--which comprised most of the press--promptly assailed the new bill as a hodgepodge, an ill-drafted legislative monstrosity. Their criticisms on this score were uninformed. The chief complaint was that various subjects were scattered throughout the measure: thus, one chapter, or title, imposed a tax for old age insurance while the provision for old age benefits appeared in a separate title many pages distant. The critic did not know--or perhaps they did--that this awkward arrangement was deliberate. It was designed to make it easier for the Supreme Court to sustain the measure's validity--not to fool the court but to give the justices a technical peg on which to hang their hats if they so desired.

...The bill became law on August 14, 1935. And still no one could be sure that it would last. Was it constitutional? Certainly its welfare provisions, grants-in-aid to the states, were valid, but what of unemployment compensation and old age insurance? In regard to unemployment compensation I had been tiresomely insistent during the drafting of the bill in proposing a federal tax on employers which would be "forgiven" to the extent that the employers paid contributions into state unemployment compensation funds. I was insistent because there was a judicial precedent for upholding this method of persuading the states to act and because Justice Brandeis had casually mentioned that precedent to his son-in-law, a leader in the unemployment compensation movement in Wisconsin. With respect to old age insurance, the Constitution gives the Congress power to tax and spend for the general welfare. But was a particular tax on employees, who would eventually be paid benefits in amounts measured by the taxes they had paid, a proper exercise of this congressional power? Or was it an attempt to establish a compulsory retirement insurance system, and if so, was it beyond the authority of Congress? We could not know the answers to these questions until a May morning in 1937, when Justice Cardozo began to read the court's opinions upholding both phases of the Social Security Act.

Few Americans now recall that in the months leading up to the Court's review of the Social Security Act, judges had been striking down one New Deal law after another. Even fewer Americans remember FDR's response to this judicial defiance:

Enraged, Roosevelt decided to subdue the Court. His megalomania inflated by his 1936 landslide, on February 5, 1937 he abruptly asked Congress to enact a bill empowering him to appoint one additional Justice for every one who turned 70 and did not retire, for a maximum of six, thus enlarging the Supreme Court from nine Justices to up to fifteen.

A firestorm ensued. Critics rightly called Roosevelt’s proposal a plan to pack the Court. Even liberals who deplored the Court’s decisions, including many congressional Democrats, opposed it.

Its arm cruelly twisted by Roosevelt’s threat to its independence, the Supreme Court began surrendering in self-preservation.

An aging Supreme Court, intimidated by Roosevelt's threats, capitulated and refused to declare Social Security unconstitutional. But the important point here is the argument provided by Justice Cardozo in the majority ruling (which, by the way, largely relied upon the administration's case that Social Security was a valid exercise of Congress's spending power):

... There are about two pages of actual argument, that Congress may spend money to promote the general welfare; that what the general welfare is changes with the times, and that the Depression had made old-age poverty a national problem; that Congress didn’t arbitrarily decide that old-age benefits would promote the general welfare, but drew on documents and hearings; that the wisdom of old-age benefits is for Congress to decide, not the Court; and that the concept of general welfare is for Congress to decide, not the states. The first two of these, occupying about three-quarters of a page, use language resembling the brief’s. Altogether, of twelve pages, there are almost nine of description, six of them essentially lifted from the brief; about a page on miscellany; and roughly two pages of constitutional argument, of which about three-quarters of a page is largely from the brief.

Regarding whether Titles II and VIII together were an invalid old-age insurance scheme, Cardozo merely noted Davis’s argument that they dovetail so as to justify concluding that Congress would not have passed one without the other, and the government’s opposing position that Congress could spend the revenue as it willed. "We find it unnecessary to make a choice between the arguments, and so leave the question open." So the Court ducked the core issue of whether Social Security is an unconstitutional government insurance program. Why?

...The majority of the Helvering v. Davis majority, Hughes, Roberts, Van Devanter, and Sutherland, were conservatives. Most had bitterly criticized the New Deal. Can anybody really believe that they found Cardozo’s half-baked opinion, mostly lifted from the Administration’s brief, an adequate expression of their views on Social Security’s constitutionality?

McReynolds and Butler dissented – but wrote no opinions. Did they have nothing to say? Or were they afraid of Roosevelt?

If we are to believe President Obama, the individual mandate is not a tax. But if it is not a tax, whence comes Congress' power to force individuals to buy health insurance? The other commonly cited grounds for an individual mandate is the Commerce clause authority to regulate matters which substantially affect interstate commerce. Ilya Somin points out the flaws in that interpretation:

Looking at the text of the Constitution, the Commerce Clause merely grants Congress the power to regulate "Commerce ... among the several states." Choosing to purchase (or not purchase) health insurance is not interstate commerce, if only because nearly all insurance purchases are conducted within the confines of a single state. Obviously, the decision to purchase health insurance may well have an impact on interstate commerce... If the Commerce Clause really gave Congress the power to regulate any activity that merely affects interstate commerce, most of Congress' other powers listed in Article I of the Constitution would be redundant.

How smart is it to undermine one of the strongest arguments for the constitutionality of the individual mandate? It's beginning to look as though foreign policy may not be the only arena in which our President is out of his depth.

Posted by Cassandra at 12:47 PM | Comments (6) | TrackBack

August 22, 2009

The Liberal Addiction to Federal Encroachment on our Freedoms

... apparently, everything is commerce now. Even insurance:

Rivkin and Casey think that a federal requirement that uninsured individuals must purchase health insurance can't be within Congress's commerce power because when ordinary individuals don't purchase health insurance, their mere failure to do so has no effects (economic or otherwise) on interstate commerce.

...Got it? When people don't buy things, by definition it doesn't affect commerce! (For example, during recessions people stop buying things and everyone knows that has no economic effects.)

Ergo... what? Do we really want to cede the federal government Commerce Clause power to force us to buy things on the grounds that our failure to purchase items "effects" interstate commerce?

Good God. I may not be an attorney but even I see the problems inherent in such an extraConstitutional power grab. I refer you to Justice Thomas' dissent in Gonzalez v. Raich. Few things in life were most amusing than watching progressive heads explode at a truly principled application of judicial philosophy which contradicted their view of what a conservative "ought" to think:

Under the Commerce Clause, Congress may regulate interstate commerce, not activities that substantially affect interstate commerce–any more than Congress may regulate activities that do not fall within, but that affect, the subjects of its other Article I powers. Whatever additional latitude the Necessary and Proper Clause affords… the question is whether Congress’ legislation is essential to the regulation of interstate commerce itself–not whether the legislation extends only to economic activities that substantially affect interstate commerce.

…The majority’s rewriting of the Commerce Clause seems to be rooted in the belief that, unless the Commerce Clause covers the entire web of human activity, Congress will be left powerless to regulate the national economy effectively. The interconnectedness of economic activity is not a modern phenomenon unfamiliar to the Framers. Moreover, the Framers understood what the majority does not appear to fully appreciate: There is a danger to concentrating too much, as well as too little, power in the Federal Government. This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to strip States of their ability to regulate intrastate commerce–not to mention a host of local activities, like mere drug possession, that are not commercial.

One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States. Yet this Court knows that “ ‘[t]he Constitution created a Federal Government of limited powers.’ That is why today’s decision will add no measure of stability to our Commerce Clause jurisprudence: This Court is willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter. If stability is possible, it is only by discarding the stand-alone substantial effects test and revisiting our definition of “Commerce among the several States.” Congress may regulate interstate commerce–not things that affect it, even when summed together, unless truly “necessary and proper” to regulating interstate commerce.

Sometimes it really is that simple.

Note: Thanks to Drew's comment, I deleted my note regarding 'effects vs. affects'. Apparently I need to either learn to read more carefully (you would think the 's' would have caught my attention) or pass up the attempts to be a smart ass.

Posted by Cassandra at 04:55 PM | Comments (18) | TrackBack

June 29, 2009

In Loco Parentis: Safford and the Female Judge Effect

KJ and I have been debating the merits of Justice Thomas' dissent in Safford Unified School District v. Redding. For those unfamiliar with the issues, here is a succint high level summary:

Question: 1) Does the Fourth Amendment prohibit school officials from strip searching students suspected of possessing drugs in violation of school policy?

2) Are school officials individually liable for damages in a lawsuit filed under 42 U.S.C Section 1983?

Conclusion:
Sometimes, fact dependent. No. The Supreme Court held that Savanna's Fourth Amendment rights were violated when school officials searched her underwear for non-prescription painkillers. [Ed. note: here we have the first of many distortions of fact. The pills in question were, in fact, prescription strength versions of medications that are (at half strength) available over the counter.] With David H. Souter writing for the majority and joined by Chief Justice John G. Roberts, and Justices Antonin G. Scalia, Anthony M. Kennedy, Stephen G. Breyer, and Samuel A. Alito, and in part by Justices John Paul Stevens and Ruth Bader Ginsburg, the Court reiterated that, based on a reasonable suspicion, search measures used by school officials to root out contraband must be "reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." Here, school officials did not have sufficient suspicion to warrant extending the search of Savanna to her underwear. The Court also held that the implicated school administrators were not personally liable because "clearly established law [did] not show that the search violated the Fourth Amendment." It reasoned that lower court decisions were disparate enough to have warranted doubt about the scope of a student's Fourth Amendment right.

Justice Stevens wrote separately, concurring in part and dissenting in part, and was joined by Justice Ginsburg. He agreed that the strip search was unconstitutional, but disagreed that the school administrators retained immunity. He stated that "[i]t does not require a constitutional scholar to conclude that a nude search of a 13-year old child is an invasion of constitutional rights of some magnitude." Justice Ginsburg also wrote a separate concurring opinion, largely agreeing with Justice Stevens point of dissent. Justice Clarence Thomas concurred in the judgment in part and dissented in part. He agreed with the majority that the school administrators were qualifiedly immune to prosecution. However, he argued that the judiciary should not meddle with decisions school administrators make that are in the interest of keeping their schools safe.

Justice Steven's quote typifies the blissfully fact free reporting and over the top emotionalism this case has generated. Having read the entire opinion (something it seems few commentators bothered to do before opining) I find myself nowhere near certain that the facts in this case support the majority opinion.

Thus, I believe it might be instructive to lay out the full facts surrounding the so-called "strip search" - something not one newspaper account or TV news story I've read in the past week troubled to do. Pursuant to the Obama administration's nomination of Judge Sotomayor, there has been much discussion of the need for more female justices on the Supreme Court. In reading both the decision and contemporary news accounts, it occurrs to me that the outcome in this case was very much influenced by the arguments of Justice Ginsburg, the only female justice on the Supreme Court. What I can't help wondering is, was that a good thing?

It seems to me that this decision is a prime example of the human tendency to begin with an emotional reaction and then reason one's way to a conclusion that produces the "correct" result. There can be little doubt that the mental image of a 13 year old girl being "strip searched" for violating what most of us view as nonsensical zero tolerance policies regarding the possession of over the counter medications like Advil or Tylenol is a profoundly disconcerting one. Part of the problem is that regardless of our political affiliation, most of us find such draconian rules offensive to common sense.

Rather than beginning at the end of the story, I believe it would be more instructive to start at the beginning. Under what circumstances was Savana Redding, a 13 year old middle schooler, first brought to the principal's office? What knowledge, both of Savana's past actions and of similar incidents, did school officials bring to the table? These questions are, I believe, critical to any informed assessment of the school's actions.

1. Background: From Justice Thomas' dissent, it seems clear that the Safford school officials had reasonable grounds for concern that the unauthorized dispensing of prescription drugs by middle schoolers to their classmates posed a serious danger(citations omitted for clarity):

As an initial matter, school officials were aware that a few years earlier, a student had become“seriously ill” and “spent several days in intensive care” after ingesting prescription medication obtained from a classmate. Fourth Amendment searches do not occur in a vacuum; rather, context must inform the judicial inquiry. In this instance, the suspicion of drug possession arose at a middle school that had “a history of problems with students using and distributing prohibited and illegal substances on campus.”

2. Keeping this background in mind, how do you think school officials should have reacted when a middle school student - Jordan Romero - was caught with a prescription painkiller he claimed that he'd received from Melissa Glines, a classmate?

Some more background here (again, from the Thomas dissent, citations omitted):

The school’s substance-abuse problems had not abated by the 2003–2004 school year, which is when the challenged search of Redding took place. School officials had found alcohol and cigarettes in the girls’ bathroom during the first school dance of the year and noticed that a group of students including Redding and Marissa Glines smelled of alcohol.

Several weeks later, another student, Jordan Romero, reported that Redding had hosted a party before the dance where she served whiskey, vodka, and tequila. Romero had provided this report to school officials as a result of a meeting his mother scheduled with the officials after Romero “bec[a]me vio-lent” and “sick to his stomach” one night and admitted that “he had taken some pills that he had got[ten] from a classmate.” At that meeting, Romero admitted that “certain students were bringing drugs and weapons on campus.”

One week later, Romero handed the assistant principal a white pill that he said he had received from Glines. He reported “that a group of students [were] planning ontaking the pills at lunch.”

Question 1: how many of you read any of these facts in the news coverage of this decision?

Question 2: knowing that a student had previously ended up in intensive care after receiving prescription medication from a classmate (and that Romero had also been extremely ill as a result of taking pills given to him by a classmate, and that - according to Romero - a group of children were planning on taking these pills at lunch that same day) would it not have been negligent for school officials to dismiss or minimize Romero's report?

3. It has been widely claimed - mostly by outraged women - that Ms. Redding was being picked on for possessing painkillers commonly used to treat menstrual cramps:

On Oct. 8 of that year, vice principal Kerry Wilson ordered her to his office, where he pointed to some pills on his desk: prescription-strength ibuprofen (the active ingredient in Advil) and Naprosyn, an over-the-counter anti-inflammatory, both commonly used to treat menstrual cramps. Redding denied knowing anything about the pills and consented to a search of her belongings. No pills were found.

Question: are we seriously to entertain the absurd notion that the male student - Jordan Romero - was also using Ms. Redding's prescription painkillers to treat menstrual cramps?

If so, we may consider it proved that the "whiskey, vodka, and tequila" allegedly served at Savana Redding's home on the same evening Ms. Redding and Glines were observed to smell of alcohol and upon which alcohol and cigarettes were found in the girls' bathroom, were being used for purely medicinal purposes. Menstrual cramps can be so painful.

4. It has been suggested by many that the so-called "strip search" was unreasonable on its face because it was occasioned by what many consider to be unreasonable zero tolerance rules. James Taranto comments:

For eight years this column has chronicled the phenomenon of "zero tolerance"--haywire school discipline policies that either treat harmless acts as serious offenses or impose draconian penalties for trivial infractions. Yesterday, in Safford Unified School District v. Redding, the U.S. Supreme Court ruled in favor of a student from eastern Arizona who was the target of such a policy.

Question: Just how trivial is an infraction that puts one student in intensive care and makes another violently ill? Should school officials simply ignore drugs that fail to kill the middle schoolers under their care?

Secondarily, how fair is it to imply that the school's zero tolerance policy was unreasonable (and hence, a search prompted by it) when (in fact) it is a crime to distribute prescription drugs? Though I see the "ick factor" inherent in a strip search (even one that isn't, strictly speaking, a strip search at all), I find it difficult to fault Justice Thomas' reasoning:

The majority’s decision in this regard also departs from another basic principle of the Fourth Amendment: that law enforcement officials can enforce with the same vigor all rules and regulations irrespective of the perceived importance of any of those rules. “In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests isnot in doubt. The arrest is constitutionally reasonable.”

The Fourth Amendment rule for searches is the same: Police officers are entitled to search regardless of the perceived triviality of the underlying law. As we have explained, requiring police to make “sensitive, case-by-case determinations of government need,” for a particular prohibition before conducting a search would “place police in an almost impossible spot,”.

The majority has placed school officials in this “impossible spot” by questioning whether possession of Ibuprofen and Naproxen causes a severe enough threat to warrant investigation. Had the suspected infraction involved a street drug, the majority implies that it would have approved the scope of the search. See ante, at 9 (relying onthe “limited threat of the specific drugs he was searching for”); ante, at 10 (relying on the limited “power of the drugs” involved). In effect, then, the majority has replaced a school rule that draws no distinction among drugs with a new one that does. As a result, a full search of a student’s person for prohibited drugs will be permitted only if theCourt agrees that the drug in question was sufficiently dangerous. Such a test is unworkable and unsound. School officials cannot be expected to halt searches based on the possibility that a court might later find that theparticular infraction at issue is not severe enough to war-rant an intrusive investigation.

Contrast this with Taranto's rather bizarre summation:

One children's right that is implicit in much Supreme Court jurisprudence is the right to sexual innocence.

Is the right to sexual innocence in the Constitution? Oddly, Taranto goes on to say that this case has nothing to do with sex?:

To be sure, there is no allegation in the Redding case that the school officials' motives were sexual, and it is a mitigating factor that no men were in the room when Savana was searched. All the same, inspecting someone's near-naked body unquestionably implicates sexual privacy and innocence. It seems perverse to suggest that a 13-year-old is entitled to less protection in this respect than an adult.

Except that, as Thomas notes, the search standard balancing the perceived seriousness of the offense is the same as that applied to adults. It is only the grounds for the search - reasonable suspicion in the case of children vs. probable cause in the case of adults - that differs.

I find the reporting on this case little short of bizarre. For the most part, rather than reasoning from the facts and the law to a Constituitonally supported conclusion, I see people reasoning from their preferred end state (it is tantamount to sexual abuse to ask a teen aged girl to shake out her underwear in a closed room with a school nurse and another adult female). By this rationale, we should not be surprised to find that being asked to sit in a chair for two hours is also "abusive":

Ginsburg points out that after the search, the school official in charge made things worse by making Savana Redding "sit on a chair outside his office for over two hours." She calls his behavior "abusive." Twice.

It seems perverse beyond reason to equate being asked to partially disrobe in a school nurses' office to sexual abuse, but then we would appear to live in a society where even normal parental diligence is legally actionable:

Reasonable people disagree about whether this was appropriate? How many parents strip-search their own thirteen year olds, let alone other kids? For Advil? I would guess roughly none. In fact, I daresay that if a thirteen year old came to school officials and complained that her parents were strip-searching her, the school might arrange for a home visit from Child Services.

Like Justice Thomas, I suppose I'm "unreasonable". If I found out my 13 year old (male or female) was dispensing prescription drugs to other children at school, he would be lucky to get off with a search of his bedroom and personal effects, and I don't think it's sexual abuse to make sure your child isn't hiding a small item. We aren't talking about cavity searches here. We're talking about being asked - in a school nurse's office - to pull your undergarments an inch or two away from your body and shake them out. At no time was this girl "nude" or even nearly nude, and at no time was anyone going to get more than a glimpse of anything you wouldn't see in the average bikini. Had this been a male student, I suspect the outrage would be muted or non-existent.

I, too, am uncomfortable with the idea of actual strip searches taking place in public schools. But I am also made profoundly uncomfortable by being led by the nose via fact free analyses of a major court decision with a huge impact on our children. I think reasonable people can disagree about this decision precisely because it will be cited to justify preventing school officials from taking even reasonable steps to protect children in their care.

The Court found that:

"...based on a reasonable suspicion, search measures used by school officials to root out contraband must be "reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction."

Was there reasonable suspicion? The majority found that there was reasonable suspicion to search Ms. Redding's personal effects. This is the same as saying that there was reasonable suspicion that she possessed prescription drugs that both violated school rules and (if she, as two students claimed she had, given them out to others) violated the law.

What was the objective of the search? You'd never know this from reading the NY Times, but the objective of the search was to find out whether Savana had more of these drugs in light of a report that she had been giving them out AND that a group of students were planning to take the drugs at lunch that day.

Was being asked to strip down to her underwear (and I've never seen girls' underwear that didn't cover more than the average bikini) in the school nurses' office in the presence of the nurse and a female school official "excessively intrusive in light of the age and sex of the student and the nature of the infraction"? That, it seems to me, is a judgment call.

What I do not see in the majority opinion is grounds for creating a Constitutional right to "sexual innocence". In light of Justice Thomas' citing of precedent that allows police to search and arrest adults regardless of the severity of the crime, I also don't see that Ms. Redding was afforded fewer rights than an adult in the same circumstances.

However, your mileage may differ. I suspect that it's the end state we don't like here, and I can't help wondering how much part emotions played in this decision. If that's the result of a more female-friendly jurisprudence, I can live without that.

Posted by Cassandra at 06:23 AM | Comments (119) | TrackBack

May 28, 2009

Alito vs. Sotomayor on Empathetic Justice

Glenn Greenwald misses a critical distinction while making a valid point of his own:

... consider this exchange that took place at the beginning of Alito's confirmation hearing (h/t sysprog):

U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court

U.S. SENATOR TOM COBURN (R-OK): Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what's important to you in life?

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.

ALITO: I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.

And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.

But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.

And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."
When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

So those are some of the experiences that have shaped me as a person.

Distinguish the bolded part of Alito's remark to this:

“While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law,” Sotomayor said.

“Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”

It's important to recognize that Sotomayor agrees (at least here) that impartiality is the goal judges should strive for. But it's also not unreasonable to ask whether McQ's observation isn't a valid one:

Although she claims to agree “judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law”, she then builds the case that a) such isn’t really possible, and b) in fact race and gender based experience is a positive that should be injected in such “reason of law”.

Her ruling in the case of the 18 white firefighters in New Haven CT seems to indicate she is indeed inclined to use race and gender bias in her decisions.

That's the difference between reasonable and principled opposition and reflexive accusations of racism.

Posted by Cassandra at 12:30 PM | Comments (24) | TrackBack

April 15, 2009

I Feel Stupid... and Contagious

"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

- Barack Obama

Perhaps Obama is our first woman president, after all:

Obama is a female candidate for president in the same way that Bill Clinton was the first black president.

It was Toni Morrison who first had the insight. In a 1998 essay in the New Yorker, the Nobel Prize-winning author described Bill Clinton as "the first black president," commenting on his saxophone playing and his displaying "almost every trope of blackness."

Obama doesn't play the sax. But he is pushing against conventional—and political party nominating convention—wisdom in five important ways, with approaches that are usually thought of as qualities and values that women bring to organizational life: a commitment to inclusiveness in problem solving, deep optimism, modesty about knowing all the answers, the courage to deliver uncomfortable news, not taking on all the work alone, and a willingness to air dirty linen. Hillary Clinton, on the other hand, is taking a more traditional (and male?) authoritarian approach.

Certainly his criteria for selecting judges betray a refreshingly non-traditional approach:

Debate has raged for decades about whether there is something unique about women's jurisprudence. A 1986 study of O'Connor's opinions published by Prof. Suzanna Sherry, now at Vanderbilt University, saw evidence of a "feminine jurisprudence … quite unlike any other contemporary jurisprudence." The argument is often built on the groundbreaking work of psychologist Carol Gilligan, whose 1982 book, "In a Different Voice," claimed that female moral reasoning differs from that of males. Men, the theory goes, prefer their law with rigid rules, clear lines and neutral principles; women prefer to look at the totality of the circumstances and favor what Gilligan calls an "ethic of care" over an "ethic of rights."

Sacre bleu! This is brilliance! What rational human being prefers so-called 'rights' to 'an ethic of care'? And who among us hasn't secretly longed for tangible demonstrations of affection from their nearest Article III jurist?

But wait! It gets even better!

So, for example, feminists argue that O'Connor's preference for flexible standards regarding abortion (or for nonbelievers in cases about religion) reflect a softer, more "relational" approach to the law, while Justice Antonin Scalia's emphasis on unchanging rules and crisp legal principles is, fundamentally, a guy thing.

Empirical studies on gender and judging so far have been inconclusive. But in an award-winning 2008 paper titled "Untangling the Causal Effects of Sex on Judging," Washington University's Christina L. Boyd and Andrew D. Martin and Northwestern School of Law's Lee Epstein suggest that women judges really are different. Surveying sex-discrimination suits resolved by panels of judges in federal circuit courts between 1995 and 2002, they examined whether male and female judges rule alike, and whether the presence of a woman on a panel affects the behavior of her male colleagues. Here's what they found: male judges were 10 percent more likely to rule against alleged sex-discrimination victims, and male judges were "significantly more likely" to rule in their favor if a woman judge was on the panel.

Because Epstein, Boyd and Martin were only studying sex-discrimination cases, it's unclear whether their data would hold true in cases where gender was beside the point. Still, its intriguing that male judges rule differently when they're sharing the bench with a woman: it suggests female moral reasoning—if such a thing exists—might be contagious.

There are times when the Editorial Staff has to wonder what is funnier? Is it feminist assertions that in a professional setting, women are interchangeable with men because we "Are too!" just as rational, logical, disciplined, and strong as our male counterparts? Or their oxymoronic claims that discrimination robs society of the uniquely female contributions women bring to the table while they're doing their jobs in exactly the same way men do (except for that whole "being guided by entirely subjective feelings rather than law and logic" thing, doncha know").

As much as it pains us to agree with Dahlia Lithwick, judging by the disparate treatment afforded this justice versus this justice, she may have a point about that 'contagion' thing:

The questions from students were read to Justice Thomas, and the first one seemed to throw him off. “Since the Civil War, what has changed the way Americans view the Constitution the most and why?” an unidentified student asked.

Justice Thomas gave a rambling response, touching on the Fourteenth Amendment, the rights of freed slaves, the application of parts of the Bill of Rights to the states and Justice John Marshall Harlan’s dissent in Plessy v. Ferguson, the 1896 Supreme Court decision that endorsed the doctrine of “separate but equal.”

“I’m sure there are other things that have happened,” he said, wrapping up his answer. “So I would have to say just off the top of my head the Fourteenth Amendment. And I bet you someone’s going to hear that and say, well, no, it’s the dormant commerce clause or something.”

That was a curious aside. Few Americans could name the dormant commerce clause, and it has no obvious connection to how popular views of the Constitution changed after the Civil War.

You have to love the Times. If the facts don't happen to conform to their enlightened world view, a bit of creative writing is usually sufficient to smear a bit of Vaseline on the camera lens of history.

A female justice who, in a breathtaking display of feminine jurisprudence, asserts that judicial review provides an essential curb to the murderous instincts of representative government?

"What happened in Europe was the Holocaust," she said, "and people came to see that popularly elected representatives could not always be trusted to preserve the system's most basic values."

Who could have a problem with such eminently sensible and restrained views?

A male justice implying the dormant Commerce clause made possible the virtual obliteration of the federalist system originally outlined in the Constitution?

Preposterous. And totally unreasonable, to boot:

... I contend that Raich represents a major - possibly even terminal - setback for efforts to impose meaningful judicial constraints on Congress' Commerce Clause powers.

Raich undermines judicial enforcement of federalism in three interlocking ways: by adopting an essentially limitless definition of economic activity thereby ensuring that virtually any activity can be aggregated to produce the "substantial effect [on] interstate commerce" required to legitimate congressional regulation under United States v. Lopez and United States v. Morrison; by making it easier for Congress to impose controls on even non-economic activity by claiming that it is part of a broader regulatory scheme; and finally, by restoring the so-called rational basis test, holding that "[w]e need not determine whether [defendants'] activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding."

... The text of the Constitution does not support the nearly unlimited congressional power endorsed in Raich. Such unlimited power also undercuts some of the major structural advantages of federalism, including diversity, the ability to "vote with your feet," and interstate competition for residents.

Clearly, Thomas is making this Commerce clause nonsense up out of whole cloth. What a maroon:

If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers -- as expanded by the Necessary and Proper Clause -- have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropria[te] state police powers under the guise of regulating commerce.

... If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."

Thank Gaia for the coolly dispassionate analysis of Adam Liptak and Dahlia Lithwick. One shudders to think how a nation bereft of their sage commentary might fall for the seductive wiles of power mad conservative jurists who believe the Constitution reserves to the People certain inalienable rights which even our Camembert-slinging European overlords cannot rip untimely from their bitter, gun-clinging hands.

Justice Thomas' blatantly irrational prose makes us long to dip our toes for just an instant in the cool waters of feminine jurisprudence!

Ah. That's better.

Posted by Cassandra at 07:55 AM | Comments (26) | TrackBack

April 11, 2009

Pay No Attention to this Ruling!

One of the more moronic admonishments to proceed from a court in recent history, though admittedly the bar has been set pretty high:

In its Monday ruling, the appeal court warned the case should not be seen as an open invitation for children to take legal action every time they're grounded.

Good luck with that.

h/t: JB

Posted by Cassandra at 04:20 PM | Comments (9) | TrackBack

April 04, 2009

Dude...Where's My Country?

Congress seems determined to dispense with our freedoms. And to think these are the folks who called Bush a fascist:

Steve Aquino at Mother Jones asks, "Should President Obama have the power to shut down domestic Internet traffic during a state of emergency? Senators John Rockefeller (D-W. Va.) and Olympia Snowe (R-Maine) think so." I've highlighted what I think are the interesting passages in the article.

On Wednesday they introduced a bill to establish the Office of the National Cybersecurity Advisor--an arm of the executive branch that would have vast power to monitor and control Internet traffic to protect against threats to critical cyber infrastructure. That broad power is rattling some civil libertarians. The Cybersecurity Act of 2009 (PDF) gives the president the ability to "declare a cybersecurity emergency" and shut down or limit Internet traffic in any "critical" information network "in the interest of national security." The bill does not define a critical information network or a cybersecurity emergency. That definition would be left to the president.

The bill does not only add to the power of the president. It also grants the Secretary of Commerce "access to all relevant data concerning [critical] networks without regard to any provision of law, regulation, rule, or policy restricting such access." This means he or she can monitor or access any data on private or public networks without regard to privacy laws.

The Mother Jones article quotes a number of sources who argue that the proposed bill significantly undermines the Constitution and makes a mockery of existing privacy laws. But I think the main problem with the proposed legislation is that the operational justification for it has not been made. There are two parts to this proposal. The first is the ability to shut down the network in whole or in part due to a "cybersecurity emergency" and the second is the implied power to wiretap without a warrant in certain circumstances, where such circumstances are defined by the President.

I'm rapidly losing count of the number of mornings when I wake up and wonder if I've been teleported to the EU.

I am not necessarily opposed to the vigorous exertion of Executive power in a national emergency. When President Bush was in office I argued - repeatedly - that the NSA wiretapping program and SWIFT terrorist tracking program were not only not violative of the 4th Amendment, but were prudent exercises of the president's Article II authority. People seem to forget that we have three distinct branches of government, each with a different role to play in governing this nation. Clarence Thomas, the most reliably conservative justice on the Supreme Court, spoke compellingly on proper deference to the Executive branch in his dissent to Hamdan v. Rumsfeld:

As I explained in Hamdi v. Rumsfeld, the structural advantages attendant to the Executive Branch--namely, the decisiveness, " 'activity, secrecy, and dispatch' " that flow from the Executive's " 'unity,' (quoting The Federalist No. 70, p. 472) --led the Founders to conclude that the "President ha[s] primary responsibility--along with the necessary power--to protect the national security and to conduct the Nation's foreign relations." Consistent with this conclusion, the Constitution vests in the President "[t]he executive Power," (Art. II, §1), provides that he "shall be Commander in Chief" of the Armed Forces, (§2), and places in him the power to recognize foreign governments, (§3). This Court has observed that these provisions confer upon the President broad constitutional authority to protect the Nation's security in the manner he deems fit.

... In such circumstances, as previously noted, 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.'

Having argued that George Bush possessed the authority to take necessary steps to protect national security for the past 8 years, I can hardly double back on that position now. In any event, I wouldn't even if I could; not being a huge fan of the Kerr Effect:

Orin Kerr proved hilariously right in comments section of NYT article. If there is anything more delicious than watching a passel of Manhattan libs suddenly morph into staunch strict constructionists, I'm not sure what that might be.

The word for the day, boys and girls, is "unreasonable". As in "unreasonable search and seizure".

It's true that I don't trust Barack Obama farther than I can throw him, but he was duly elected President of the United States and to contend that our personal likes and dislikes should be dispositive in the exercise of Executive power is a fool's errand. What bothers me most about this story is that this isn't the President claiming he has the right to do his job should a national emergency arise. It's Congress, blithely legislating away our Constitutional rights.

The remedy for intolerable exercise of Executive power is written right into the Constitution: impeachment. In the mean time, Congress has no business providing advance cover for a phenomenon which makes us all acutely uncomfortable (the undeniable truth that in times of national emergency, Presidents can and do "stretch" the Constitution a bit).

As Richard Fernandez so succintly put it,

This has the potential for abuse written all over it. Democrats should ask themselves whether they want any future President to have this power. Because the political system may live to regret passing an act with such blanket authority. Maybe not today, or tomorrow, but as Rick Blaine once said, "soon and for the rest of your life."

What I want to know is, where are all the patriots who assiduously maintained - evidence to the contrary notwithstanding - that Barney the White House terrier had shredded the 1st and 4th Amendments and turned America into a police state? We haven't been attacked since 2001. In a state of emergency, I don't want the President of the United States to stop and justify his decisions. If we're attacked, I don't care whether the President is a Democrat or a Republican: I want him to act to protect our security first. He can worry about explaining it all to us when the emergency is over.

But I'll be damned if I want Congress waving away our Constitutional rights and granting the President blanket authority in advance. That way lies madness.

This administration seems hell bent on protecting us from all the wrong things, but unless we plan on devolving into a Banana republic, the rule of law is all we have. Both sides need to start respecting it.

Posted by Cassandra at 10:42 AM | Comments (19) | TrackBack

April 01, 2009

Scaliiiiiiiiiiiito!!!!!!!

Well this is a shocker, I must say:

Your result for Which Supreme Court Justice Are You Test...

You are Justice Samuel Alito

You agreed with Alito 86% of the time.

Take Which Supreme Court Justice Are You Test at HelloQuizzy

95/100 You scored 86% on Alito, higher than 95% of your peers.

93/100 You scored 73% on Scalia, higher than 93% of your peers.

92/100 You scored 74% on Thomas, higher than 92% of your peers.

92/100 You scored 80% on Roberts, higher than 92% of your peers.

3/100 You scored 44% on Kennedy, higher than 3% of your peers.

5/100 You scored 32% on Stevens, higher than 5% of your peers.

3/100 You scored 24% on Souter, higher than 3% of your peers.

0/100 You scored 13% on Breyer, higher than 0% of your peers.

7/100 You scored 29% on Ginsburg, higher than 7% of your peers.

Unlike, say, this amusing little tidbit:

Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue. But Attorney General Eric H. Holder Jr., who supports the measure, ordered up a second opinion from other lawyers in his department and determined that the legislation would pass muster.

When the going gets tough, the tough go opinion-shopping.

Update:

Your result for What Do Others See You As Test...

31 to 40 Points

You've scored 38 Points!

Take What Do Others See You As Test at HelloQuizzy

Posted by Cassandra at 05:09 PM | Comments (45) | TrackBack

March 11, 2009

When Judges Meddle

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.

The majority is adamant that the Guantanamo detainees are entitled to the protections of habeas corpus—its opinion begins by deciding that question. I regard the issue as a difficult one, primarily because of the unique and unusual jurisdictional status of Guantanamo Bay. I nonetheless agree with JUSTICE SCALIA’s analysis of our precedents and the pertinent history of the writ, and accordingly join his dissent. The important point for me, however, is that the Court should have resolved these cases on other grounds. Habeas is most fundamentally a procedural right, a mechanism for contesting the legality of executive detention. The critical threshold question in these cases, prior to any inquiry about the writ’s scope, is whether the system the political branches designed protects whatever rights the detainees may possess. If so, there is no need for any additional process, whether called “habeas” or something else.

- Chief Justice Roberts, dissenting opinion in Boumediene v. Bush

Last June in a decision I and many others predicted would come back to haunt us, a split Supreme Court arrogantly set aside the Constitution, the separation of powers doctrine, and the last remaining vestigies of judicial modesty:

Instead of an elected Commander in Chief as outlined under our Constitution, we now have a committee of nine unelected jurists who wish to prosecute war by bringing in international law; ignoring their own precedent and the text of the Constitution as the urge strikes them...

As the Court continues to render citizenship and sovereignty increasingly irrelevant, one wonders what will be left to defend and more importantly, whether we will be left any means of defending it?

Sadly, rather than realizing their error, a reckless judiciary has chosen to further erode the Constitutionally mandated structure of our federal government: that of three separate but co-equal branches necessarily operating in tension with each other to check and balance the powers asserted by each alone:

Last June, in its cataclysmic Boumediene decision, the U.S. Supreme Court ruled — against the weight of precedent, tradition, and common sense — that non-U.S. nationals, held by the military outside sovereign American territory (i.e., beyond the writ of American judges) as prisoners captured in a war authorized by Congress, are nevertheless vested with a constitutional right to challenge their detention as enemy combatants in our courts. The decision was a calamity on many levels, but two merit our immediate attention.

First, the 5–4 majority dramatically and dangerously revolutionized the separation-of-powers doctrine that is the cornerstone of our liberty. For more than two centuries, we proceeded under the assumption that a self-determining people makes its most significant decisions through the political process, with policymakers answerable to voters and therefore removable if they fail either to protect our security or to respect our freedom. ...

Boumediene cast all of that aside. It did not merely vest constitutional rights in hostile aliens with no claim on them. It supplanted Congress and the commander-in-chief in prescribing the entitlements of enemy prisoners, a function hitherto understood to be military and diplomatic — not legal. And worse still, the Court refused to concede its duty to defer to the supremacy of the political branches in their realms of constitutional responsibility, or, indeed, that there are any areas in which politically insulated judges are institutionally incompetent. Rather, in the breathtaking decree of Justice Anthony Kennedy, the “Executive’s powers as Commander in Chief” are “vindicated” when they are “confirmed by the Judicial Branch” — that those powers are assigned by the Constitution to the executive rather than the judiciary apparently is irrelevant.

But even more alarming than the Court's evisceration of the separation of powers is its stunning refusal to recognize the implications of judicial overreach. Not only has the Court done violence to the Constitution; it has, by virtue of three successive decisions, fundamentally changed the concept of a nation-state: a political entity composed of citizens who live within defined borders and who enjoy rights intended for those who submit to the social contract and whose jurisdiction (literally, power to speak the law) does not and cannot be willfully extended by judicial fiat to non-citizens at war with the United States.

In a recent and related decision (al Odah) the Court has now reached the preposterous conclusion that in addition to possessing Constitutional rights, wartime detainees should be handed MORE protections than United States citizens. Where American criminal defendants are due only discovery that is exculpatory in nature, the Court in its infinite wisdom has the protections afforded to American citizens are not good enough for our sworn enemies. They must be allowed access to all evidence, even if such evidence is classified and even if it does not provide evidence that they are innocent. This is madness.

Given that the New York Times regularly discloses classified material to our enemies, the Court has effectively given the keys to the vault of national secrets to those with an avowed desire to destroy us. Back in June I linked Victoria Toensing's compelling testimony before the Senate Judiciary Committee. Ms. Toensign, a co-author of the FISA statute, testified that the rules which protect criminal defendants were never designed for the battlefield, much less for application in nations with laws which fundamentally differ from our own:

A federal trial in the United States may preclude reliable evidence of guilt. When the evidence against a defendant is collected outside the United States (the usual situation for international terrorism investigations) serious problems arise for using it in a domestic trial. The American criminal justice system excludes evidence of guilt if law enforcement does not comply with certain procedures, a complicated system of rules not taught to the Rangers and Marines who could be locked in hand-to-hand combat with the putative defendants. For sure, the intricate procedures of the American criminal justice system are not taught to the anti-Taliban fighters who may capture prisoners. Nor to the foreign intelligence agencies and police forces who will also collect evidence.

At just what point is a soldier required to reach into his flak jacket and pull out a Miranda rights card? There are numerous evidentiary and procedural requirements of federal trials that demonstrate the folly of anyone thinking such trials should be used in wartime for belligerents.

It was in recognition of these very real constraints, not out of any desire to trample the rights of detainees, that Congress stood up an alternate set of courts to review the detention of wartime prisoners; a system the Court arrogantly set aside without bothering to demonstrate how it failed to protect the rights of non-U.S. citizens detained during a time of war. Now, with the prospect of forced disclosure of classified information, the option of detaining rather than killing foreign combatants is recklessly swept aside - all in the name of "protecting" their rights. In the Court's learned opinion, it is better to be dead than to be tried by a military tribunal:

The primary reason enemy combatants may be detained under the laws of war is to prevent their return to the battlefield. The depletion of enemy assets brings the war to a more rapid, more humanitarian conclusion. American courts now stand this principle on its head. Henceforth, the price of detaining an enemy operative will be the coerced disclosure of intelligence that may be more valuable to the enemy than is the combatant himself. Factor in the enormous resource drain the litigation requires, and holding prisoners becomes a net loss for the war effort. And the war effort becomes a waste of time unless you only kill rather than capture — which is al-Qaeda’s way of doing things, but not ours.

This outcome has always been the fondest dream of the anti-war Left. That is why the Democrat-dominated Congress turned a deaf ear when, after Boumediene, the Bush administration (especially Attorney General Michael Mukasey) implored lawmakers to fashion rules and procedures for combatant-detention hearings. “We don’t have to pass anything,” Rep. Jerrold Nadler told Newsweek. “Let the courts deal with it.” Democrats knew that, if they sat on their hands, the courts would do their dirty work for them. And so it has come to pass. The war is over, at least until the next 9/11 — we can make ourselves defenseless, but radical Islam is not calling off the jihad.

Congress' shameful failure to act and the Court's reckless arrogation of judicial modesty, far from yielding a kindler, gentler, more just war, will render us little better than those we fight. As the military gentleman who sent this to me so cogently remarked:

...this why I don't think I will ever tell any of my people to go to any great length to capture a bad person [rather than simply killing him]

Can you blame him?

When priests are more in word than matter;
When brewers mar their malt with water;
When nobles are their tailors' tutors;
No heretics burn'd, but wenches' suitors;
Then shall the realm of Albion
Come to great confusion.

When every case in law is right;
No squire in debt, nor no poor knight;
When slanders do not live in tongues;
Nor cutpurses come not to throngs;
When usurers tell their gold i' th' field,
And bawds and whores do churches build;
Then comes the time, who lives to see't,
That going shall be us'd with feet.

Posted by Cassandra at 07:26 AM | Comments (35) | TrackBack

February 18, 2009

Nonsense on Rollerskates

This is precisely why it is so stupid to criminalize policy disagreements:

The United States' presence in Pakistan and Afghanistan is only furthering the spread of terrorism and President Obama could be charged with war crimes, former Sen. Fritz Hollings (D-S.C.) wrote Wednesday.

"Why are we killing GIs to spread terrorism?" Hollings, a longtime (though now-retired) lawmaker asked in a blog post for the Huffington Post. "The best way to stabilize is to get out. It became a matter of conscience for me years ago."

Hollings argued that Obama's continuation of some of former President Bush's tactical strategies in the war on terror could make Obama liable for war crimes charges.

"Yesterday I read an article that it won't be long before charging President George W. Bush with war crimes for killing civilians in Pakistan with drones," he argued. "Now the same charge could be made against President Obama."

If ever there were a case to be made against ill considered deference to "international law", this is it.

Posted by Cassandra at 03:11 PM | Comments (3) | TrackBack

January 29, 2009

Can Obama Unilaterally Overrule Acts of Congress?

When a Republican occupied the Oval Office, the answer (insofar as the media and the Democrats were concerned) was an unqualified "no". You'd have thought the idea of three co-equal branches of government operating in tension with each other under the Constitution to be something dreamed up by Karl Rove. Which rather begs the question: if the President lacked that power for the past 8 years, by what "authority" - other than that of not being George Bush - does Obama now order the military to ignore the express will of Congress?

In one of its first actions, the Obama administration instructed military prosecutors to seek 120-day suspensions of legal proceedings in the cases of 21 detainees who have been charged. There are approximately 245 prisoners held at Guantanamo.

The request was quickly granted in other cases when prosecutors told military judges that a suspension was in the "interests of justice" so that the "president and his administration [can] review the military commissions process, generally, and the cases currently pending before military commissions, specifically."

But Judge James Pohl, an Army colonel, said he found the government's reasoning "unpersuasive."

"The Commission is unaware of how conducting an arraignment would preclude any option by the administration," said Pohl in a written opinion, portions of which were read to The Post. "Congress passed the military commissions act, which remains in effect. The Commission is bound by the law as it currently exists, not as it may change in the future."

Nashiri is facing arraignment on Feb. 9, and Pohl said the proceedings would go ahead.

Well now this promises to be entertaining. Wasn't the whole argument that we needed to give these detainees Constitutional rights? And that being so, shouldn't the right to a speedy trial be foremost among those rights? Or are we simply going to hold these detainees for up to four more months without charges while the Obama administration rethinks a matter Congress has already decided?

What to do... what to do? Is this brave dissent patriotic: an expression of the highest duty of any red-blooded American - the obligation to afflict those who stride the halls of power with alternative viewpoints? Or is this obstreperous judge just a dirty, lowdown traitor who should not dare to stand up to the President? Stay tuned for full-blown manifestations of The Kerr Effect.

The good judge's history may make him difficult for the Left to demonize:

In presiding over the 2004 and 2005 courts martial of several U.S. Army guards, Pohl made headlines by declaring the Abu Ghraib prison in Iraq a crime scene and forbade its demolition.

At the time, embarrassing snapshots of soldiers abusing detainees at Abu Ghraib had already leaked from an Army criminal investigation -- and politicians were calling for the razing of the prison that had also served as a torture chamber during Saddam Hussein's time.

At Guantanamo, Pohl has shown himself at the war court to be impatient with some prison camp rules that have impacted the court.

In March, he sternly informed prosecutors in the Darbi case that lawyers who defend prisoners before him should have easy access to their clients. He also declined to issue a ruling, sought by prison camp commanders, to order a tackle-and-shackle technique called "Forced Cell Extraction" on occasions when Darbi refused to come to court.

As a result, the Pentagon recently issued a formal instruction to the prison camps to force accused to the war court -- unless a judge rules otherwise.

On Monday, Pohl on several occasions let Darbi stand and argue a point at the defense table, dressed in a white prison-camp uniform. But Pohl reminded the Saudi's Yale law school defense attorney, Ramzi Kassem, that he is permitting the accused to speak at his own peril because anything he said in court could later be used at trial.

Not that they won't try. Sometimes it's just so gosh-durned hard to choose sides in these matters.

Posted by Cassandra at 01:48 PM | Comments (48) | TrackBack

January 15, 2009

And Dana Priest Was Mysteriously Unavailable For Comment....

Oh, the humanity!

"The Clinton policy in practice meant torture," Joanne Mariner, counterterrorism director for Human Rights Watch, told The Washington Times. "We haven't been able to interview the people themselves, but we have evidence that they were tortured."

Muntassir al-Zayyat, an Egyptian lawyer who represented four of the suspects seized in Albania, told The Times that "all were subjected to torture."

Two of the suspects -- Ahmed Ibrahim al-Naggar and Ahmed Ismail Uthman -- were executed in 1999, while two others -- Shawky Salama Mostafa and Mohammed Hassan Mahoud -- remain in prison, Mr. al-Zayyat said.

The men were suspected of plotting an attack on the U.S. Embassy in Tirana, Albania, and coordinating actions with a cell in Egypt. Mr. al-Zayyat told Human Rights Watch that these suspects were taken to "ghost villas."

Al-Naggar, according to the Egyptian Organization for Human Rights, was blindfolded for most of his nine-month detention. At one point, he was locked in a room for 24 hours with dirty water up to his knees.

During interrogation, his "hands were tied behind his back and his feet were shackled as security agents applied electric shocks to different parts of his body," the organization said.

Karim Haggag, a spokesman for the Egyptian Embassy in Washington, declined to comment.

Clinton administration officials have said that in all cases in which suspects were sent to jails in countries with poor human rights records, assurances were sought that they would not be tortured and consular visits were arranged.

"When we sent someone to a place like Saudi Arabia, with questionable practices, we got prior assurance that they would not be tortured and we got consular rights to visit them periodically to make sure they didn't," said Richard A. Clarke, counterterrorism czar under Mr. Clinton.

He cited the case of Hani el-Sayegh, a Saudi Shi'ite Muslim who was suspected of involvement in the 1996 bombing at Khobar Towers that killed 19 U.S. airmen. He was handed over to U.S. authorities by Canada in 1997 and sent to Saudi Arabia in 1999.

Other officials said that U.S. leaders knew renditions would lead to torture in some cases.

Michael Scheuer, chief of the CIA unit that tracked Osama bin Laden from 1995 to 1999, told The Times, "The Egyptians were not stupid. When we asked, they would not say they tortured our people. But everyone knew what was going on. The White House must have known."

Al Gore certainly knew:

Where was the outrage over violations of international law? Certainly not coming from Vice President, Albert Gore:

'extraordinary renditions', were operations to apprehend terrorists abroad, usually without the knowledge of and almost always without public acknowledgment of the host government…. The first time I proposed a snatch, in 1993, the White House Counsel, Lloyd Cutler, demanded a meeting with the President to explain how it violated international law. Clinton had seemed to be siding with Cutler until Al Gore belatedly joined the meeting, having just flown overnight from South Africa. Clinton recapped the arguments on both sides for Gore: "Lloyd says this. Dick says that. Gore laughed and said, 'That's a no-brainer. Of course it's a violation of international law, that's why it's a covert action. The guy is a terrorist. Go grab his ass.'" ”

- Richard Clarke

And lest we forget, just as the Clinton administration used warrantless physical searches on residents of public housing until they were stopped by the ACLu, the Clinton administration rendered terror suspects to nations known to torture and even kill prisoners when we weren't even at war in violation of the same "international laws" one Al Gore has been fulminating about for the 8 years George Bush has been in office. As Michael Scheuer pointed out, we weren't even interested in interrogating these people. We just wanted to disappear them.

Which rather neatly disposes of the Democrats' supposed reverence for the Constitution, human rights, and international law, now doesn't it?

But now that the Lightworker is about to ascend the Imperial Throne, look for all this to disappear down the memory hole as we call for show trials of the evil Bush administration for things the previous administrations all did when we were not at war.

Got it. I understand now. This is the country my husband has served for nearly three decades. Excuse me while I throw up.

While I'm otherwise occupied, I invite you to compare a sample of torture victims.

Sample one: Innocent Gitmo detainees who were so mentally scarred by the awful treatment they suffered at our hands that they went on to spontaneously combust.

Sample two: American servicemen who fought under the uniform of their country and suffered broken bones, dislocated joints, and mental and physical tortures far exceeding anything that which (apparently) Judge Crawford considers "upsetting and embarrassing".

Damn it all, so do I. And yet somehow these men rose above what was done to them by a cruel and inhumane enemy:

When Denton recalls his trials in Vietnam, his eyes are often closed. For two and a half years, he spent 17 to 18 hours a day in irons. Alone, in a coffin-sized cell, he had to remain on a 47-inch-by-47-inch square during the day. It was just long enough to walk two paces. At night, he slept on a stone slab. "It wasn't the Hilton," Denton said. There were no windows. Just a 10-watt bulb, roaches and spiders the size of tarantulas. "Jesus was with me all the time," said Denton, who is a devout Catholic. His proudest moment was conquering his claustrophobia. Denton said during that time, he was in an "extremely intellectual and spiritual state." He said it is amazing what the mind can accomplish, if given the opportunity.

He once derived the formula for centrifugal force in his head, something he couldn’t do with pencil and paper at the U.S. Naval Academy. Although the other captives had designated Denton "president of the optimist club," there were times he prayed to die. He didn't want to -- couldn't -- endure another minute of despair. Once, when Denton refused to tell guards how the Americans communicated with each other, he was tortured for 10 days and nights. By the 10th night, he couldn't think anymore. He couldn’t pray anymore.

Denton surrendered. Not to the guards, but to God. "It was a total surrender," he said. "If there was anymore to do, you will do it," he told God. "That instant, I felt zero pain," he said. "I felt the greatest comfort and reassurance in life that I haven’t felt since."

When Denton talks to groups around the country, he tells them that patriotism can motivate men to perform for their country, but only prayer can provide the strength for the kind of performance required in prison camps. Denton also found strength in his fellow captives. The Americans were forbidden to communicate with each other. But that didn’t stop them. They communicated in Morse code and other number-based codes they devised and transmitted through blinks, coughs, sneezes, taps on the wall and even sweeps of a broom.

"I experienced what I couldn't imagine human nature was capable of," Denton said. "I witnessed what my comrades could rise to. Self-discipline, compassion, a realization there is a God." He also experienced periodic compassion from the North Vietnamese. Sometimes the guards would weep as they tortured him.
One experience, he will never forget. Denton kept a cross, fashioned out of broom straws, hidden in a propaganda booklet in his cell. The cross was a gift from another prisoner. When a guard found the cross, he shredded it. Spat on it. Struck Denton in the face. Threw what was left of the cross on the floor and ground his heel into it. "It was the only thing I owned," Denton said.

Later, when Denton returned to his cell, he began to tear up the propaganda booklet. He felt a lump in the book. He opened it. "Inside there was another cross, made infinitely better than the other one my buddy had made," Denton said. When the guard tore up the cross, two Vietnamese workers saw what happened and fashioned him a new cross. "They could have been tortured for what they did," Denton said.

One wrong does not excuse another. But these things are all in the public record.

I find it little short of amazing that none of our "investigative media" think to look at what our own servicemen and women endured during Vietnam. They don't want to look at their stories because they speak of character and integrity and faith.

And they are a living testament to the power of the human spirit to overcome adversity despite almost overwhelming odds. They are a living testament to hope: something the media consider anathema.

Posted by Cassandra at 12:31 PM | Comments (20) | TrackBack

December 31, 2008

You Go, Girl

What a hoot:

Lawyers for Washington lobbyist Vicki L. Iseman have filed a $27 million defamation lawsuit against The New York Times for a February article about Iseman and her relationship with Sen. John McCain.

The suit, filed Dec. 30 in U.S. District Court in Richmond, also names as defendants the executive editor of the Times, its Washington bureau chief and four reporters who wrote the story. The suit alleges the article falsely communicated that Iseman and McCain had an illicit “romantic” relationship in 1999 when he was chair of the Senate Commerce Committee and she was a lobbyist representing clients before Congress.

Richmond lawyer W. Coleman Allen Jr. and Rodney A. Smolla, dean of the Washington & Lee law school and a First Amendment scholar, represent Iseman.

The 36-page complaint parses the nuances of the story, which Allen said in an interview is “very cleverly constructed.” The piece “could be interpreted as implying an unprofessional relationship” between Iseman and McCain, he said.

Both Iseman and McCain denied any improper relationship, a fact that was duly reported in the Times piece.

But political observers and the public did in fact perceive the story as being about an affair, Smolla said. That fact provides a significant basis for the defamation claim, Smolla noted. The complaint cites the post-story remarks of 10 different commentators across the political spectrum; in each case, their comments about the story assume it is about an alleged affair, the lawyers note.

The Times’ own public editor, Clark Hoyt, published what Allen called a “blistering attack” on the decision to publish three days after the article appeared.

The suit claims that Iseman suffered damage to her mental, emotional and physical health. The lawyers noted that she continues to work as a lobbyist in Washington, for a firm based in Arlington. They said they anticipated developing their case on damages as the matter moves forward.

The piece was published at the height of the primary season last winter, and, the suit states, the defendants knew that it would “reverberate around the world.”

The suit continues, “In their attack on Senator McCain, the [defendants] were willing to sacrifice Ms. Iseman as acceptable collateral damage, recklessly indifferent to the avalanche of scorn, derision and ridicule Ms. Iseman would suffer.”

Smolla noted that in one defamation decision before the U.S. Supreme Court, then-Chief Justice William H. Rehnquist observed that the purpose of defamation law is to provide an aggrieved party with a remedy.

But it also has the purpose of correcting the public record and of giving the public a remedy to “an offense to the public discourse,” he said.

I think this is great.

Without having read up on the specific law or laws Iseman is suing under, John McCain would have had a tough time suing The Times for libel or defamation since he's a public figure. Generally speaking, he would have had to prove the Times either knew for certain the information was false or that they acted with reckless disregard for the truth. That's an awfully high burden of proof.

As a private citizen, Ms. Iseman (and someone of the law slinging profession may care to correct me) should have a somewhat easier time of it. For the Times to imply she had a sexual liason with a married man amounts to defamation per se: a charge that is defamatory on its face.

I hope she rams this down Keller's throat. Note their smarmy defense:

Update: The New York Times issued a statement following the filing of the suit: “We fully stand behind the article. We continue to believe it to be true and accurate, and that we will prevail. As we said at the time, it was an important piece that raised questions about a presidential contender and the perception that he had been engaged in conflicts of interest.”

I hope they have some factual evidence of the so-called affair. "Raising questions" isn't sufficient justification for a professional news gathering organization to pass on unsubstantiated gossip cloaked as news. And anyway, isn't this what the Times called "despicable smear tactics" (at least when they were huffily dismissing fact-based allegations against the President-elect and his association with Bill Ayers)?

Posted by Cassandra at 07:54 AM | Comments (13) | TrackBack

December 05, 2008

The Internet as a Responsibility-Free Zone

What we do in life
echoes in eternity...

- Gladiator

The Lori Drew verdict poses some fascinating questions about the intersection of technology, free speech, and personal responsibility.

There are several intertwined questions here. I'm not sure the charging statute/verdict addressed them all:

1. Is it a crime to verbally harass someone you know to be in a fragile mental state (in this case, a person on anti-depressants) under an assumed identity?

2. Does it make a difference if, as a result of that verbal harassment, the victim subsequently commits suicide?

3. Is it a crime if, in order to assume the false identity under which you harass the victim, you violate the service agreement (TOS) of a commercial service provider which explicitly prohibits use of their service under assumed identities and explictly prohibits harassment and bullying?

4. Do such service providers have a right to enforce their term of service agreements against users who use their services for fraudulent and/or criminal enterprises?

5. Does society have a right/interest in prosecuting misuse of commercial term of service agreements against users who use these services for clearly fraudulent and/or criminal enterprises?

Emily Bazelon argues that prosecution of Internet cyber-bullying is a scary slippery slope that will somehow lead to the government going after mischievous web surfers whose only crime was a desire for anonymity. As one of those "mischievous types", the Editorial Staff finds itself not entirely unsympathetic to this view:

In 2003, George Washington University law professor Orin Kerr wrote a prescient law-review article arguing for the former, narrower interpretation. The legislative history for the CFAA indicates that Congress wasn't trying to prosecute any or every breach of contract. Would lawmakers really want to go after people, even potentially, for giving a fake name to register for a Web site, for example (dressed up as the bad act of giving "false and misleading information")? Nor, for that matter, does it look as if Congress intended to base prison time on the MySpace contractual provision that bars use of the site that "harasses or advocates harassment of another person" or that is "abusive, threatening, obscene, defamatory, or libelous." It's one thing for MySpace to kick someone out for acting like a troll or even for the troll's target to sue her. It's another thing entirely to throw the weight of the government behind a criminal investigation and conviction for what usually just amounts to mischief in cyber-contracts.

In the Lori Drew prosecution, the theory was that Drew was on the hook for setting up the fake profile, then using it to inflict emotional distress. Three of the four counts against Drew were for "unauthorized access" of MySpace simply because Drew violated the MySpace terms of service to which she agreed, according to Los Angeles U.S. Attorney Thomas O'Brien's dubious interpretation. The jury didn't think the prosecutors proved the emotional distress and so dismissed the fourth count. And they knocked down the other charges from felonies to misdemeanors. But they did buy the idea that Drew "intentionally" broke the law, even though all that seems to mean is that she clicked "I agree" in response to a long series of legalistic paragraphs that just about nobody really reads. It's hard to imagine even these misdemeanor convictions standing up on appeal.

Kerr joined Drew's defense team, and his post last Friday on the Volokh Conspiracy blog gets at how just how ludicrous it is to imagine every breach of a Web site's terms of service as a federal crime. (Kerr: By visiting the Volokh Conspiracy, you agree that your middle name is not Ralph and that you're "super nice." You lied? Gotcha.) Of course, prosecutors aren't really going to investigate all the criminals Kerr just created with the terms of service in his post. But this is not a road we want to take even one baby step down. As Andrew Grossman argues for the Heritage Foundation, laws that make it seem as if "everyone is a criminal" are generally a bad idea. Most of the time, they're unenforceable, and then every once in a while, they're used to scapegoat someone like Lori Drew.

What about a law written expressly to address cyber-bullying? Such a statute could presumably direct prosecutors to go after only the worst of the Internet meanies. Or, then again, maybe not. A proposed bill before Congress is far broader. It targets anyone who uses "electronic means" to transmit "in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person." The penalty is a fine or imprisonment for up to two years.

On the other hand, (and I advance this argument not having read the government's case, which I understand may be overbroad) attorney Nick Ackerman makes an interesting case for prosecuting such acts:

Lori Drew, an adult woman, lied and misrepresented herself as a young boy to harass 13-year-old Megan Meier. Drew knew Megan was emotionally fragile. Instead of openly harassing Megan, Drew used her computer to hide behind the anonymity of a social networking website.

This type of computer crime is precisely what the Computer Fraud and Abuse Act was intended to address. The statute is not, as some have suggested, limited to hacking, nor does the Drew prosecution make a criminal out of everyone who lies on the Internet.

While this is the first time the statute has been used to prosecute cyberbullying, Drew's conviction was based on violating the express language of the statute — unauthorized access to the MySpace website by violating its terms of service, which are designed to protect the public.

Those terms required Drew to provide truthful registration information and to refrain from using the account to threaten or abuse others. Her willful violation of MySpace's terms in registering as a fictitious boy to harass Megan was unquestionably "without authorization."

Under the statute, website owners have the right, much like the property owner who posts a "No Trespassing" sign, to spell out, as did MySpace, what access or use is "unauthorized." The concept that Drew should not be held responsible if she did not read MySpace's terms of service is as absurd as arguing that if you default on your mortgage payments, your bank cannot foreclose on your house because you did not read your mortgage agreement.

If your irony meter spiked here, you're not the only one.

We would seem to live in a country where (as Ms. Bazelon indeed argued) no one can ever be held responsible for anything, including their own fecklessness.

I think we can all agree that reasonably competent adults of average intelligence understand that even if though they may choose not to read the terms of service on sites such as MySpace, those terms continue to exist nonetheless. We cannot simply wish them away, nor can we wish away our own fundamental dishonesty if we, having been asked to agree to something and further, having been asked if we've read it before going on, click "yes" when that is in fact not true. This is what is called, in the rude parlance of personal responsibility, a "conscious decision"; much like choosing not to familiarize yourself with the warnings in your car's owners manual and then complaining about not being warned when you do something the manual expliticly warns you NOT to do.

Ms. Drew, as it turns out, used someone else's MySpace account to harass young Megan; making the question of whether she violated the TOS agreement an interesting one. However, subsequent events leave no doubt whatsoever that she knew what she had done was wrong, nor that she tried to cover her tracks:

Krause said in the documents that Drew enjoyed describing the scheme to friends and even told her hairdresser about it, saying that Megan "may have had the hots for the fake guy."

The assistant, Ashley Grills, who is to testify for the prosecution, warned "they would get in trouble if the scheme was uncovered," according to the memorandum.

"However, defendant assured Grills that they would not and, in any event, many people created fake identities on the Internet," Krause wrote.

The prosecutor maintained that Drew was aware of Megan's vulnerabilities, knew she was on medication for depression and had even administered the medications when Megan was visiting Drew's daughter. He said Megan's mother confided in Drew that she was worried about her daughter's mental health.

When she learned of the suicide, Drew told her "co-schemers" to delete the MySpace account, Krause wrote. He also said she called another girl who had become part of the MySpace conversation and told her to "keep her mouth shut" and to "stay off the MySpace."

The other interesting aspect of this case is that Missouri prosecutors had concluded their state law was inapplicable to the case. The charges were eventually filed by a federal attorney in Los Angeles.

Normally the Editorial Staff are philosophically opposed to anything resembling the prosecution of hate speech. Words, in the end, no matter how hurtful, are just words. We alone can choose how much power they will have over us: unlike a bullet or a knife, we can erect defenses against them using no more than our minds.

We find ourselves more sympathetic to the government's argument regarding the enforcement of terms of service agreements. When a site is misused to defame or harass an innocent third party, it raises interesting property right questions. Does society have an interest in protecting the rights of site owners? Considering that they can incur significant monetary costs to run a web site (as well as the risk of lawsuits arising from the failure to police the actions of their commenters) it seems not unreasonable to assert a "trespassing" argument when users intentionally violate the terms of service to commit malicious or destructive acts.

Also, we find the idea that the Internet is some sort of "last frontier" where actors may say and do anything, no matter how harmful to real people, to be little short of ludicrous. Difficult as it may be, the law is going to have to deal with the fact that technology is becoming more and more invasive, making it easier for the Internet to be used as a weapon against innocent parties.

What say you?

Posted by Cassandra at 07:43 AM | Comments (61) | TrackBack

November 06, 2008

Coffee Snorters: Guy Noir Edition

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.

Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office.

- The petition for a writ of certiorari is denied.

CHIEF JUSTICE ROBERTS, with whom JUSTICE KENNEDY joins, dissenting from denial of certiorari.

Who knew it was so much fun to be a Supreme Court Justice?

Posted by Cassandra at 07:17 AM | Comments (10) | TrackBack

A Case of Indecent Exposure

The Supreme Court is currently debating whether We the People are deprived of an irreplaceable First Amendment right when the f-word is stricken from broadcast TV shows aired between the hours of 6 and 10 pm. Traditionally the FCC has regulated the use of profanity and nudity during prime time to allow families to watch TV without being involuntarily confronted with age inappropriate fare. A rare example of indecency enforcement occurred in February when the FCC fined Fox TV for airing a risque reality TV show. The government has been slow to prosecute claims of indecency, going after only the most egregious offenders in markets where viewers lodged vociferous complaints. Typically, enforcement is both difficult and expensive:

In yesterday's order, the FCC turned down a Fox claim that said the April 7, 2003, show -- which featured digitally obscured nudity and whipped-cream-covered strippers -- was not indecent.

...The "Married by America" ruling is the second issued by the FCC in the past month that took years to complete. The FCC proposed the fine against Fox in October 2004, and Fox responded that December, meaning it took the agency more than three years to reach yesterday's decision.

In late January, the FCC proposed a total of $1.43 million in fines against 52 ABC-owned and -affiliated stations for airing a Feb. 25, 2003, episode of "NYPD Blue" that featured full female dorsal nudity and the side of one bare breast.

It took nearly five years from broadcast to FCC decision, but less than a month for the FCC to turn down ABC's response and order a reduced payment of $1.24 million against 45 stations, again omitting markets that had not complained about the program. ABC paid the fines but is appealing the FCC's decision to the U.S. Court of Appeals for the 2nd Circuit in New York.

The government maintains that though free expression is an important Constitutional right, the home should be a refuge and parents should not be forced to take extreme measures to protect children from adult oriented fare which violates community standards. This makes sense if you think about it, though such rationales face steep resistance in a world where any principled argument is inevitably branded intolerant. But is it truly intolerant to assert there may be some minimal standard of speech and behavior; and if that standard is violated reasonable people have a right to be offended?

If certain behavior isn't accepted among adults at the office, in the classroom, or on the street; why must parents be forced to take special measures to protect children in their own homes? Clearly there is some consensus (and has been for quite some time) that this behavior offends the sensibilities of enough reasonable adults that society has deemed it off limits? Is there no permissible limit on an individual's absolute and unfettered "right" to offend?

If this standard is relaxed or eliminated entirely, what prevents human nature from pushing the boundaries (which has been the result every time an impediment of this sort has been removed):

In FCC v. Pacifica Foundation, this Court upheld the Constitutionality of the FCC’s authority to regulate indecent broadcasts. At issue in Pacifica was the midday radio broadcast of George Carlin’s monologue “Filthy Words.” Responding to a listener complaint, the Commission determined that the broadcast violated Section 1464. In reaching that conclusion, it applied a “concept of ‘indecent’ [that] is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.”

As the Court observed, “[t]he Commission’s decision rested entirely on a nuisance rationale under which context is all-important,” and that “requires consideration of a host of variables.” In rejecting a constitutional challenge to the Commission’s enforcement of Section 1464, the Court explained “of all forms of communication, it is broadcasting that has received the most limited First Amendment
protection.” That is in part because “the broadcast media have established a uniquely pervasive presence in the lives of all Americans” in that “material presented over the airwaves confronts the citizen, not only in public, but also in the privacy
of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder.” In addition, the Court emphasized, “broadcasting is uniquely accessible to children, even those too young to read,” and the broadcast of indecent language can “enlarge[] a child’s vocabulary in an instant.”
The Court concluded that “the government’s interest in the well-being of its youth and in supporting parents’ claim to authority in their own household justified the regulation of otherwise protected expression.” The Court rejected the contention that “one may avoid further offense by turning off the radio when he hears indecent
language,” comparing it to “saying that the remedy for an assault is to run away after the first blow.”

The respondents' riposte is nothing if not circular. In their less than compelling argument, the f-word is rendered inoffensive by the context in which it is used. Its status - that of a mere modifier concatenated to the end of two consecutive "really's" - strips it of its original sexual connotation. If one accepts the respondents' argument, the word "f**king" appears to have neither any literal meaning, nor to serve any purpose, whatsoever. It is the semantic equivalent of "quite",; as in:

"That's really, really f**king brilliant."

But if the word has no meaning other than to serve as a mild intensifier, this begs an interesting question. What speech right is infringed upon by requiring broadcasters to monitor and bleep it out? That which has no meaning, conveys no thought or idea. What speech is being prevented? Examine Bono's sentence without the supposedly inoffensive and consequently redundant intensifier. Is it fundamentally altered with the purportedly essential modifier removed?

"That's really, really brilliant."

The other examples cited in FCC vs. Fox are hardly more compelling as exemplars of vital and expressive speech:

Cher, on receiving a Lifetime Achievement Award:

I’ve had unbelievable support in my life and I’ve
worked really hard. I’ve had great people to work
with. Oh, yeah, you know what? I’ve also had critics
for the last 40 years saying that I was on my way out
every year. Right. So f**k ‘em. I still have a job
and they don’t.

Nicole Ritchie (notably, immediately after being warned to watch her language on a live broadcast):

Paris Hilton: It feels so good to be standing here tonight. Nicole Richie: Yeah, instead of standing in mud and [audio blocked].

Why do they even call it “The Simple
Life?” Have you ever tried to get cow s**t out of
a Prada purse? It’s not so f**king simple.

Again, we return to the tension between individual rights and the social contract. We all voluntarily surrender some rights in order to secure other rights or benefits which, as individuals, we would find it too arduous to guarantee: a defense of our borders, police, schools, a coherent and uniform legal system, roads and the like. To hear some big L libertarians talk, the world would be a far groovier place if we abolished government entirely and went all free market. This is sort of like going commando on that classy first date you're trying so hard to impress - it feels so liberating until she asks you up for a nightcap and you realize there just might be a few contingencies you failed to anticipate.

Perhaps some precious and indefinable right is lost when parents are able to turn on their televisions after dinner without wondering when Cher will start blithely dropping f-bombs on the kids right there in the Great Room or some dimwitted naturist with regrettable implants and a Dayglo nipple ring will begin cavorting about in a vat of non-dairy creamer (thus prompting questions about social policy we may prefer to defer until a more congenial moment in time).

If so, the Times will have to define it for me. Because although few of these things offend me on a personal level (I swear like a sailor) I don't understand why someone else's right to completely unrestrained and gratuitous crudity at all times outweighs the reasonable expectation that citizens living in a diverse society should exercise a reasonable level of restraint under limited circumstances?

We routinely exercise this type of restraint on the streets, in our workplaces, in stores and in classrooms all over America. If we do not, our fellow Americans are rightly offended and often we may even be arrested for disturbing the peace. The Times chooses to mislead in its portrayal of the FCC's handling of the case, as it so often does. Originally the FCC decided Bono's single use of the f-word was not offensive.

It was only after the repeated complaints of the public it serves - We the People - that the FCC responded by revisiting its decision. Journalists often complain that government should be more responsive to the public. This is a case where government did exactly that; slowly and with care and deliberation, and is being pilloried for doing so.

Policy questions are never easy. Balancing tests never are. But to claim "important speech rights" are being endangered when in the case at hand, the word being disputed is claimed to be inoffensive precisely because it has no meaning borders on the ludicrous. Either the word conveys meaning or it does not. The Times and other defenders of profanity will have to make up their minds.

Or more accurately, they will not because as always they will distort and talk around the issues; assuming that few will bother to read up on the facts of the instant case.

Posted by Cassandra at 06:39 AM | Comments (19) | TrackBack

October 21, 2008

...And Exactly *Where* Was OSHA on This One?

Asleep at the wheel, that's where... But then that's just typical of the Bush administration, isn't it? The Shrub is out back in the Rose Garden helping Barney the White House terrier shred what little remains of the Bill of Rights while Karl Rove dances the hornpipe on Keith Olbermann's unmarked grave. Meanwhile, honest securities traders are being exposed to the horrors of negligent lap dancing.

I tell ya. This kind of traveshamockery will never happen in an Obama administration:

Securities trader Stephen Chang could well create new law with his lawsuit in New York. There are copious cases on medical malpractice, legal malpractice, but now he would like to create a law of stripper malpractice after lap dancer negligently swiveled and hit him in the face with the heel of her shoe. This is only the latest addition to a growing number of cases in the area of stripper jurisprudence.

Chang expected better at the Hot Lap Dance Club near Madison Square Garden in Manhattan. It was 1 am and Chang was looking for some good, wholesome, and competent lap dancing. Instead, when the dancer swung around , her heel caught Chang and forced him “to sustain serious injuries” — injuries he did not pay to experience.

Chang may have gotten off light. The club claims to have “hand picked” performers with “killer bodies.”

Well, Obama did say he would create thousands of new jobs! And clearly this issue screams for urgent Executive Branch intervention. We are seeing the murderous results of 8 years of failed Rethuglican policeh. Hopefully with a more enlightened administration and the benefit of federally funded training and education, our children can prepare themselves for a variety of safe, rewarding, and recession-proof careers.

Posted by Cassandra at 06:10 AM | Comments (8) | TrackBack

September 26, 2008

Save Us From "The Experts"...

Glenn Reynolds highlights the Constitutional Law Candidate's ongoing battle against ... the Constitution!

Reader Carolyn Gockel writes: "Why Obama is Vulnerable On the First Amendment: The whole NRA flap is going beyond gun rights advocates...I'm not as pro-gun as you and I am furious." Yeah, and the bit with state law enforcement officials threatening critics is even worse. I wonder if the ACLU will weigh in on this one? Seems like a good opportunity for them to show their nonpartisan nature.

...from Jacob Sullum at Reason, Why Obama is Vulnerable On the Second Amendment.

MORE: Prosecutors and sheriffs threatening to prosecute Obama critics?

Check out this TV news report from St. Louis, too, which makes clear that the Obama campaign is behind this.

There's lots more - plus video! - where that came from. Kind of gives you a warm, fuzzy feeling inside, doesn't it; just knowing that come November we won't have a bunch of bumbling amateurs in the Oval Office?

The Obama-Biden slate is historic in many ways, but for law professors it has a special cachet: It's the first time that professors of constitutional law have occupied both slots on a ticket. Barack Obama was a senior lecturer at the University of Chicago Law School, and Joe Biden has been an adjunct professor at Widener University School of Law since 1991. More to the point, it's the most civil-libertarian ticket ever fielded by a major U.S. political party.

After 8 years of watching Barney the White House terrier savage the Bill of Rights, the American people deserve a President with the knowledge and integrity to protect our Constitutional rights:

Most American voters (60%) .... say the Supreme Court should make decisions based on what is written in the constitution, while 30% say rulings should be guided on the judge’s sense of fairness and justice. The number who agree with McCain is up from 55% in August.

While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree.

After all, it's only fair!

Posted by Cassandra at 08:12 AM | Comments (3) | TrackBack

September 24, 2008

Important Legal Question of the Day

Is an inflatable rat Constitutionally protected speech? Money quote:

"They are seeking to bar the kind of protest ... that goes to the heart of the protections afforded by the New Jersey Constitution," said James Katz, who represents the American Civil Liberties Union of New Jersey.

The rat is a valuable addition to informational picket lines, the lawyers argued.

With such passionate legal representation, can justice be denied?

We think not.

Posted by Cassandra at 08:31 AM | Comments (2) | TrackBack

September 16, 2008

Obama Brags About Logan Act Medding In June

Ed. note: This is a post from yesterday that I originally decided not to publish. In light of several posts on the subject today, I have reconsidered that decision.

It's not just Amir Taheri pushing the Logan Act story. Before he ever went to Iraq, Obama's bragging about his meddling in U.S. foreign policy made the pages of the NY Times:

Among the issues being discussed with the two presidential candidates is the long-term security accord between Iraq and the United States. [Ed.note, because this will become important later: this is the strategic framework agreement referred to later in the post] While the Bush administration would like to see an agreement reached before the summer’s political conventions, Mr. Obama said today that he opposed such a timetable.

So it seems The One had already commenced unsanctioned telephone negotiations with Iraqi Foreign Minister Zebari back in June. His goal was to prevent the White House from successfully concluding negotiations for a long term security agreement with Iraq. Bizarrely, Obama not only admitted what he was doing, but bragged about it repeatedly over the next few weeks:

“My concern is that the Bush administration, in a weakened state politically, ends up trying to rush an agreement that in some ways might be binding to the next administration, whether it’s my administration or Senator McCain’s administration,” Mr. Obama said. “The foreign minister agreed that the next administration should not be bound by an agreement that’s currently made.”

Now *that's* real audacity - using your own illegal acts as the pretext for undermining your own government's foreign policy!

Of course now the Obama camp claims Taheri has it all wrong. He wasn't talking about the Status of Forces agreement. Obama aides claim he meant the Strategic Framework Agreement. Doh!

...Obama's national security spokeswoman Wendy Morigi said Taheri's article bore "as much resemblance to the truth as a McCain campaign commercial."

In fact, Obama had told the Iraqis that they should not rush through a "Strategic Framework Agreement" governing the future of US forces until after President George W. Bush leaves office, she said.

Obama's aides might want to Google up what their boss had to say on the subject earlier this summer. Once again, The One is contradicted by own mouth big ego mouth:

While Sen. Barack Obama says he'll visit Iraq and Afghanistan before the election, he's staying consistent with his plans to start withdrawing U.S. troops almost immediately should he become president.

...Obama also expressed concern that the Bush administration would rush to make some sort of status of forces agreement that would be binding to the next administration.

This time it's the Status of Forces Agreement he's trying to delay! Remember, back in June it was the Strategic Framework Agreement! Sometimes, Google is not your friend.

For those of you who left your scorecards at home, the difference between the Status of Forces agreement and the Strategic Framework agreement is subtle, and the Iraqis may press for a timeline in either one, though it makes less sense in the SOFA:

Ambassador to Iraq Ryan C. Crocker, testifying before Congress in April 2008, said two separate accords are on the table. The first is a status-of-forces agreement (GlobalSecurity.org), called a SOFA, which would codify legal protections for U.S. military personnel and property in Iraq. Such agreements already govern U.S. military conduct in other long-term deployment zones—including Germany, Japan, and South Korea—and the administration has characterized talks for a SOFA in Iraq as a hopeful step toward stability.

Details of the second accord under discussion are more opaque. Referred to as a "strategic framework agreement," the measure would broadly address issues not covered by the SOFA, including those outlined in a "declaration of principles" document signed by President Bush and Iraqi Prime Minister Nouri al-Maliki in November 2007. Among these issues: the U.S. role in defending Iraq from internal and external threats; its support of political reconciliation; and its efforts to confront terrorist groups. Critics of the measures contend the Bush administration aims to tie the hands of the next president and usurp Iraqi sovereignty, charges the White House vehemently disputes.

The one thing we can count on in all of this is that Senator Obama has helpfully told us he was trying to delay BOTH the SOFA and the Strategic Framework Agreement, insisting that any negotiations be conducted "in the open" and that they earn "strong bipartisan support" from Congress (and we all know how quickly Congress moves).

If this doesn't sound like a man who was trying to play President long before he is elected, I don't know what is:

Thankfully, this sort of traveshamockery will never happen under an Obama administration. That's because, come the Revolution, we'll have real, genuine "Constitutional law" experts like Biden and Obama running the country:

The Obama-Biden slate is historic in many ways, but for law professors it has a special cachet: It's the first time that professors of constitutional law have occupied both slots on a ticket. Barack Obama was a senior lecturer at the University of Chicago Law School, and Joe Biden has been an adjunct professor at Widener University School of Law since 1991.

I don't know about you all, but I can't wait until we have some really smart folks in charge; people who have the knowledge and expertise to keep us bitter gun clinging types straight on those all-important Constitutional issues....

...like which branch of government is empowered to negotiate agreements with foreign heads of state.

Posted by Cassandra at 05:49 PM | Comments (16) | TrackBack

September 12, 2008

Who Gets To Decide What's "Fair"?

Isn't this interesting:

During his acceptance speech last night at the Republican National Convention in Minnesota, John McCain told the audience, “We believe in a strong defense, work, faith, service, a culture of life, personal responsibility, the rule of law, and judges who dispense justice impartially and don't legislate from the bench.” Most American voters (60%) agree and say the Supreme Court should make decisions based on what is written in the constitution, while 30% say rulings should be guided on the judge’s sense of fairness and justice. The number who agree with McCain is up from 55% in August.

While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree.

In terms of how the Supreme Court currently makes decisions, just 42% of voters think the justices rule from what is in the Constitution. Thirty-percent (30%) say they are guided by a sense of fairness and justice. Democrats are more likely than Republicans and unaffiliated voters to believe the justices base rulings on the Constitution.

Question for the ages: if Supreme Court justices throw out what the Constitution has to say when formulating rulings and substitute their individual sense of "fairness", then aren't they substituting their individual policy preferences for those of our duly elected leaders in the state and federal legislatures?

Isn't this anti-democratic? Since Supreme Court decisions can't be overruled by a higher court and become, in fact, nearly irreversible precedent for future decisions, aren't justices who rule in this fashion in effect amending the Constitution by judicial fiat? Aren't they doing an end run around the procedures outlined for ratifying amendments by the States? What if, in the case of the recent decision on child rape, it turns out the majority made factual errors?

Jeff Rosen points out that the Obama/Biden ticket offers vastly superior "expertise" in Constitutional law:

The Obama-Biden slate is historic in many ways, but for law professors it has a special cachet: It's the first time that professors of constitutional law have occupied both slots on a ticket. Barack Obama was a senior lecturer at the University of Chicago Law School, and Joe Biden has been an adjunct professor at Widener University School of Law since 1991. More to the point, it's the most civil-libertarian ticket ever fielded by a major U.S. political party.

Yesterday I observed that this election is an historic one:

This election is unusual because for the first time I can remember we have four candidates who, by conventional standards, have few of the usual qualifications for office.

I think that’s a sign. It’s a sign of anomie, very much like what this nation experienced after World War I; of fatigue and disenchantment with forces we don’t fully understand; with too many factors that defy our attempts to analyze or explain them rationally. And so we fall back on something we think we can trust: our intuition, our gut instincts. We want leaders who are like us. We want someone we think we can trust to make the right decisions.

It is striking that in an election where trust is likely to prove the decisive factor, the candidates with the most experience with Constitutional law are the ones whose supporters don't believe Supreme Court justices have any real duty to uphold the Constitution, (which, after all, is their sworn duty) but ought to feel free to bring in their personal feelings. It is perhaps not surprising, then, that this view is shared by the candidate himself:

We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges

- Barack Obama

Much has been made of Governor Palin's experience (or the lack thereof). I think it's also wise to look at what the candidates are promising to do, whether they have any track record of delivering what they promise, and whether they can be taken at their word.

via Bench Memos.

Posted by Cassandra at 08:00 AM | Comments (21) | TrackBack

August 18, 2008

Juror Nullification

For those in the half vast readership with a propensity to wordsmithery, the title of this post is intentional - "juror" nullification vs. jury nullification. In the interests of amusing the readership and enlightening the Editorial Staff, we have decided to institute a new feature, aptly named: "Ensmarten Cass".

As one might guess, the bar is not set particularly high here.

Today's "Ensmarten Cass" question is a no brainer. When is it acceptable for a lone juror to deliberately ignore his sworn oath, disobey the judge's instructions to the jury, and single-handedly declare federal statutes invalid?

It was supposed to be just another federal drug prosecution. The federal prosecutors introduced evidence that the man on trial was involved in the black market drug trade. The defense attorney said the government agents entrapped his client. And then the twelve citizen-jurors retired to deliberate the outcome of the case.

But then something unusual happened. The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where “is the constitutional grant of authority to ban mere possession of cocaine today?”

That’s a fair question. It is a point that has been made in Cato’s publications (go here (pdf) and here (pdf)) and a point that has been made by Justice Clarence Thomas, among many others. Federal District Court Judge William Young was startled. He says he has been on the bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law. Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively. When the jury sent out more notes about a juror that wasn’t going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the ”problem juror.” Once discovered, that juror was replaced with an alternate–over the objections of defense counsel. Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.

It is an extraordinary thing for a judge to meddle with the jury in the middle of its deliberations. So, to justify his removal of the “problem juror,” a man named Thomas Eddlem, Judge Young issued a 40-page memorandum of law (pdf). I happen to know and respect Judge Young. I invited him to speak here at Cato about the awful federal sentencing guidelines, but his legal memorandum in this case is remarkably thin. I will briefly respond to his substantive arguments below.

A few facts about the juror in question which confused your hostess:

1. Promises? Aw heck - he meant whatever he was swearing to ... at the time:

the jury... had taken an oath to consider only the evidence and to heed the judge's instructions...

2. The judge specifically instructed the jurors that:
..they could not consider constitutional questions..."

3. The sufficiency of the evidence was not an issue:

Federal prosecutors presented evidence that Luisi orchestrated drug sales in the Boston area. Luisi had been tried and convicted of the same charges in 2002 before another federal judge, but the US Court of Appeals for the First Circuit reversed the conviction and ordered a new trial.

...and

Last week Eddlem said he would have voted to convict Luisi in a state court; he simply felt there were no grounds for a federal prosecution.

4. Principles? Again, negotiable. But sometimes you have to break a few eggs to make an omlette, no?

He opposes nullification, he added in an e-mail, but judges who ignore the Constitution pose a far greater threat than a "handful of 'nullification' radicals."

Given the considerations above, I await my eventual ensmartenment with the deepest imaginable fervor. Bonus points for mentioning England's Magna Carta or the idea we are, each of us, a virtual fifth branch of government unto ourselves capable of unilaterally nullifying federal statutes and issuing binding precedents on various Constitutional questions with no more legal training than your average Capuchin. The wisdom of crowds, indeed.

Empowering thought, ain't it? You've got to love those Founding Dudes. If we keep up this line of thought, eventually some of us may have as much power as Bill Keller.

Update: A little historical context on jury nullification. Unfortunately due to work constraints, the Princess was unable to do any reading about jury nullification until just now, so I've been making what I see as the logical and moral case against it. Here is a more history-based approach:

...in pre-revolutionary days, colonists lived under what they deemed an undemocratic, tyrannical government. The jury became a shield, where colonists could be judged by members of their own communities, and it was considered their only means for democratic expression. Second, the entire premise of democracy, in both pre- and post-independence days, demanded popular control of all facets of government. There was also a practical side to granting juries such unyielding control of trials: early colonial judges were essentially laymen selected from among their peers, and they often knew no more law than did the jurors.

However, once the United States established itself and a new republican form of government was developed, the will of the people became expressed through popular election of representatives and the enactment of their own laws. As nullification of the law would constitute a frustration of the popular will, the issue became essentially moot. Jury nullification was no longer considered necessary or desirable in a democratic society. Concomitantly, the role of judges as those who decided issues of law became enmeshed with traditional trial procedure. Not until more than 100 years later did the U.S. Supreme Court have to address the issue. In the case of Sparf and Hansen v. United States, 156 U.S. 51, 15 S. Ct. 273, 39 L. Ed. 343 (1895), it unequivocally determined that, in the federal system at least, there was no right to jury nullification. The opinion noted,

[Juries] have the physical power to disregard the law, as laid down to them by the court. But I deny that … they have the moral right to decide the law according to their own notions or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime that the jury should respond as to the facts, and the court as to the law … This is the right of every citizen, and it is his only protection.

Sometimes, it hurts to be this good... :p Seriously, I have made this point elsewhere.

Notwithstanding a judiciary that denied jurors the right to nullify, over the years, jurors have continued to use their power to do so. The power is most often wielded when jurors believe that an acquittal is justified for reasons that the law does not officially recognize. Examples include controversial social issues such as motorcycle helmet laws, ABORTION and right-to-life issues, medicinal use of marijuana, and EUTHANASIA.

In 1997, the U.S. Court of Appeals for the Second Circuit held that a juror's intent to nullify the law was JUST CAUSE for dismissal from the jury.

The case of United States v. Thomas, 116 F.3d 606 (2d Cir. 1997) involved an African-American juror's dismissal from the criminal jury trial of five African–Americans on drug charges. However, the narrow opinion also reversed the convictions of the five defendants and remanded the matter for a new trial. Although the court ruled that a juror's refusal to apply the relevant law was just cause for dismissal, only unambiguous evidence of the juror's deliberate disregard of the law (not apparent in this case) would justify such a dismissal. In so holding, the appellate court acknowledged the necessity for secrecy in jury deliberations.

Similarly, in 1999, the Colorado Court of Appeals reversed a lower court's CONTEMPT conviction of juror Laura Kriho. People v. Kriho, 996 P.2d. 158 (Colo. App. [1999]). Several of Kriho's fellow jurors testified that during deliberations, she suggested to them that drug cases should be handled in the community rather than by a criminal justice system, and then advised them of their right to nullify. Although the trial court cited Kriho's alleged misleading of the court about her attitudes toward drug use during voir dire examination, the appellate court found that the Kriho case was, in fact, about jury nullification. It reversed her conviction on grounds that the court should not have considered evidence from jury-room deliberations. The end result of these cases reaffirms that juries have the power to render unreviewable general verdicts of acquittal, making it nearly impossible to definitely prove that nullification occurred.

In other words, as I said earlier, a wrongful conviction can be appealed. Where is the check on on a jury's willful decision to set aside the law?

Posted by Cassandra at 07:40 AM | Comments (145) | TrackBack

August 15, 2008

The Morality of Abortion: The Dishonest Debate

Reading Linda Hirshman's recent essay, one cannot help but marvel at the glaring logical inconsistencies in the unrestricted right to abortion plank. With more than three decades under their belt since Roe v. Wade was handed down, you'd think they'd have a few of the kinks ironed out.

As a conservative who has reluctantly remained in the pro-choice camp, my support for the limited availability of abortion is balanced against the awareness that this is a complex issue for which there are no easy answers. Ms. Hirschman's morality argument smacks of absolutism. It can be neatly summed up in one sentence located near the end of the third paragraph of her magnum opus:

Abortion is about the value of women's lives.

In essence, Hirshman's morality demands that we accept her value judgment uncritically. But when a man and woman have sex and conceive a child, at least three lives are impacted: the father's, the mother's, and their unborn child's. Hirshman tells us women "bear the overwhelming majority of child-rearing responsibility in this society"; that their "economic prospects plummet with the birth of a child"; that they may be "too poor for parenthood" and that women who seek abortions are "disproportionately black and Hispanic".

These would seem like excellent reasons for intelligent, rational adult women to prevent a pregnancy from occurring in the first place, do they not? And in this day and age, it is no mystery to any rational adult of either sex how pregnancy occurs. Nor is it a mystery (or difficult, or expensive, or time consuming) to prevent pregnancy. And yet there is no surer way to infuriate abortion advocates than to imply women are anything less than rational decision makers. One cannot imply women are ever swayed by their emotions (unless, of course, one wants to show them what an unborn fetus looks like) that they make bad decisions in the heat of passion or that they fail to think serious life decisions through (such as allowing yourself to become pregnant when you are poor, black, and have no money for an abortion, much less for raising a child). Demonstrably, women do make poor decisions of this sort under the influence of emotion. Men make them too, all the time. They fail to think things through. The very fact that there are so many unplanned pregnancies in an era where birth control is safe, reliable and inexpensive provides ample proof of this proposition, but we are not allowed to admit such an obvious fact in the context of the abortion debate lest we be accused of patronizing women.

By eliding past the responsibility of adult women to take control over their own reproductive destinies, Hirshman allows herself to conclude that women's lives have more value than the lives of their sexual partners (who are increasingly being held financially responsible for supporting children it can be conclusively proven they did not father).

But more disturbingly, she also allows herself to dispense with the lives of unborn children as though they were of no value whatsoever. She is hardly the only one to do so. At the risk of being accused of defending Justice Kennedy, his detractors do themselves no favors by blatantly mischaracterizing his position to set up convenient straw men:

The Supreme Court, as most observers now know, made a big screw-up in Kennedy v. Louisiana (banning the death penalty for child rape). It (along with all other parties in the case, it must be said) missed a change in military law which authorized the death penalty for child rape -- which is significant because much of the majority opinion was based around a supposed evolving consensus away from imposing capital punishment for that crime. And as a result, Louisiana attorneys are asking the Supreme Court to reopen the case, since this error may of substantively affected the outcome of the case.

Meanwhile, Anthony Kennedy, as most Court observers recall, based a significant part of his opinion Carhart II (upholding a federal partial birth abortion ban) on the proposition that "some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow." This was, at the time, a statement wholly without evidence, and today we learn that it is in all relevant respects false. Women who have abortions are in fact no more likely to face mental health problems than women who deliver. And since giving birth actually is more physically risky for women than is abortion, it is exceedingly difficult to honestly justify the partial-birth abortion ban on the grounds of protecting women's health.

Hirshman resorts to the same dishonest characterization, implying the "regrets" argument was a central component of Justice Kennedy's opinion:

Last year, in Gonzalez v. Carhart, the Supreme Court, for the first time, upheld the constitutionality of a federal law criminalizing a type of abortion. In his opinion for the court, Justice Kennedy wrote that "Respect for human life finds an ultimate expression in the bond of love the mother has for her child ... it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow." In Kennedy's view it was best to spare women such regrets. Indeed it was better still not to allow doctors to perform these procedures at all.

Others have dissected Justice Kennedy's bizarre logic in detail. But what most have missed is that his opinion in Carhart rested on the assumption, ceded so long ago by liberals, that abortions are a necessary evil. There is no serious scientific evidence for any of the justice's findings that a remotely cognizable percentage of the 18 million to 30 million living American abortion recipients have suffered regret, severe depression, and loss of esteem. The American Psychiatric Association has directly refuted any such claim time and again. Why, then, did Justice Kennedy feel so comfortable—indeed, "unexceptionable" —in asserting it?

Such dishonest characterizations rely on a common assumption. They assume readers have not read the original opinion. Were they to do so, they would quickly discover Carhart had little to do with the woman's mental state and everything to do with the balancing of respect for human life against a woman's recognized right to terminate her pregnancy and the existence of readily available, less drastic, and equally effective methods of late term abortion:

‘[T]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’ It is true this longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion. The Court at times employed an antagonistic “ ‘canon of construction under which in cases involving abortion, a permissible reading of a statute [was] to be avoided at all costs.’ Casey put this novel statutory approach to rest. Stenberg need not be interpreted to have revived it. We read that decision instead to stand for the uncontroversial proposition that the canon of constitutional avoidance does not apply if a statute is not “genuinely susceptible to two constructions.”

No one would dispute that, for many, D&E is a procedure itself laden with the power to devalue human life. Congress could nonetheless conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition. Congress determined that the abortion methods it proscribed had a “disturbing similarity to the killing of a newborn infant,” Congressional Findings (14)(L), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769, and thus it was concerned with “draw[ing] a bright line that clearly distinguishes abortion and infanticide.”

What Ms. Hirshman does not wish anyone to discuss openly - lest they become too emotional - is that Justice Kennedy's opinion very dispassionately rested on the balancing of respect for the life of the child against the convenience of the physician performing the abortion.

Nothing more, nothing less. Conflicting medical evidence was presented for and against the proposition that partial birth abortions were safer for the mother. The evidence was judged inconclusive and moreover, evidence was presented that the alternative methods were extremely safe.

But the single most important fact in this case, a fact which neither Ms. Hirshman nor David Schraub felt their readers needed to know, is this:

Evidence was presented that a medical consensus exists that partial birth abortions are NEVER MEDICALLY NECESSARY. Ever.

In light of this testimony, and considering that other safe means of late term abortions were readily available to women, and since it is a longstanding precedent that:

...every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’

...Justice Kennedy eschewed judicial activism, deferred to the legislature, and upheld the constitutionality of the statute. Of course, one would never know this from reading Ms. Hirshman's essay.

Being female, she prefers emotion-laden diatribes about poor, minority women who must (apparently) be treated as something less than rational decision makers. That she, in proclaiming the profound "morality" of valuing women's lives over the lives of their unborn (presumably disproportionately black and Hispanic) children, would happily see these same children carved into small pieces without anesthetic because their mothers could not be bothered to use a reliable form of birth control is beyond disturbing. One wonders: does she condone the live vivisection of puppies?

Does she support experimentation on lab animals? Few progressives do. They proclaim their deep respect for all forms of "life", except when that life is human, and except when it gets in their way. They do this, primarily, by not talking about it and by not allow you to talk about it.

I will be this honest. I support the limited availability of abortion but I do not fool myself about what it is. It is the taking of a human life, because human beings have intentionally decided to value the convenience or the life of the parents over that of the child.

If we are permitted to do such an awful thing - and it is an awful thing - do we really want to back away from what the standard the Democratic Party has wisely embraced up until now: that abortions should be safe, legal, and above all rare? Do we really want to employ a lower standard of humanity and compassion to the ending of a human life than we would to the killing of that chicken breast that ends up on our dinner table tonight? Because this is exactly what Ms. Hirshman is advocating when she objects to the upholding of the ban on partial birth abortions. I am sorry if this is an unpleasant subject, but I am not the one who made this unpleasant. It is the facts which are unpleasant, and it is the facts which women like Ms. Hirshman, who value a woman's convenience over all other considerations, refuse to take into consideration.

It is this kind of willful blindness and dishonesty that infuriates and alienates even people like me. A pro-choice woman. One of those women who believes that equality involves equal responsibility to go along with some of those equal rights we fought so hard for; who doesn't much care for cheap victimization narratives that infantilize women and dehumanize infants. And Hirshman's argument is profoundly dishonest:

In the absence of a robust description of the value of women's lives—their ability to develop their capacities through education, to use them to achieve economic independence and political citizenship, to take on only the relationships they can manage—there is no moral argument for their "choice" to have an abortion. Set against the sound of nothing, the smallest moral claim of the potential human life looms large. Such an immoral act, moral thinkers conclude, must always be a mistake, the product of incomplete information or logic, and, in time, must produce regret, depression, and loss of self-esteem.

It is because I understand women's lives have value and because I respect their intelligence - because I am a woman - that I expect them to behave like adults rather than overgrown children whose lapses in judgment must always be paid for by someone else: a convenient man who can be tapped by the court whether he happens to be the biological father or not (if she wants the child), a helpless fetus who can be vivisected without anesthesia if she puts off an unpleasant "choice" for too long. Sometimes, other people's rights - other people's lives - have value too.

I wonder when the abortion lobby will ever face - honestly - what they support? Only then will can we begin to debate the "morality" of this deeply troubling - and painful - issue.

Posted by Cassandra at 04:31 AM | Comments (45) | TrackBack

July 07, 2008

Sacre Bleu!!!

Break out les secret decoder rings, mes amis!

M. Brodaire, he is resurrecting ze extremely conspiratorial Constitution-in-Exile theories.... and we all know who is ze Dread Lord of that dark plot to replace the Living Constitution with a bunch of stale, moldy words penned by a bunch of dead white dudes - that's right: He Who Must Nevaire Be Named!!!!

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!

Dionne waxes fairly apoplectic over the prospect of the conservative court's ability to thwart what he views as the will of the progressive majority (i.e., the voters):

The spate of 5 to 4 conservative decisions during the Supreme Court term just ended should stand as a warning that we may soon revisit the fights of 70 years ago. Yet almost nobody is talking about this danger. To the extent that judges have been a campaign issue in recent elections, the focus has been on a few hot-button issues, notably abortion. After last week's decision in the sharply contested Second Amendment case, perhaps gun rights will join the list.

But the more important question is whether conservative judges will see fit to do exactly what conservative courts did for much of the New Deal era by using a narrow, 19th-century definition of property rights to void progressive economic, environmental and labor regulation.

Many judicial conservatives view the late 1930s as a disaster because it marked the end of their power on the courts. After the court-packing battle, the Supreme Court began to defer to the elected branches of government and their efforts to regulate the economy in the public interest. Property rights were well protected throughout this time, yet government was allowed to set rules on the uses of property that judicial conservatives of the pre-New Deal period viewed as suspect.

A new generation of conservatives wants to bring the old order back under the auspices of what's called the Constitution in Exile movement. Their driving idea is that the thrust of jurisprudence since the late 1930s voided the "real" Constitution.

As legal scholar Jeffrey Rosen noted in the New Republic, this movement favors "reimposing meaningful limits on federal power that could strike at the core of the regulatory state for the first time since the New Deal." He wrote that "justices could change the shape of laws governing the environment, workplace health and safety, anti-discrimination, and civil rights, making it difficult for the federal government to address problems for which the public demands a national response."

But he conveniently overlooks two things. The first is that it is not the Court's task to automatically uphold Congress, but rather to uphold the Constitution. This is important, because the Constitution is the primary source from which our rights as citizens flow. Congress may add to the rights guaranteed by the Constitution but it may not detract from them.

The second thing Dionne misses bears directly upon the first. It is the conservatives on the Court who have arguably been the most faithful guardians of the individual rights guaranteed by the Constitution:

The Supreme Court's decision in District of Columbia v. Heller, upholding the Second Amendment right of individuals to own firearms, should finally lay to rest the widespread myth that the defining difference between liberal and conservative justices is that the former support "individual rights" and "civil liberties," while the latter routinely defer to government assertions of authority. The Heller dissent presents the remarkable spectacle of four liberal Supreme Court justices tying themselves into an intellectual knot to narrow the protections the Bill of Rights provides.

Or perhaps it's not as remarkable as we've been led to think. Consider the Court's First Amendment decisions. Contrary to popular belief, conservative justices are about as likely to vote in favor of individuals bringing First Amendment challenges to government regulations as are the liberals. Indeed, the justice most likely to vote to uphold a First Amendment claim is the "conservative" Justice Anthony Kennedy. The least likely is the "liberal" Justice Stephen Breyer. Consistent with general conservative/liberal patterns in commercial speech cases, Justices Clarence Thomas and Antonin Scalia have voted to invalidate restrictions on advertising more than 75 percent of the time. Justices Breyer and Ruth Bader Ginsburg, meanwhile, have voted to uphold such restrictions in most cases.

Conservative justices also typically vote to limit the government's ability to regulate election-related speech, while liberal justices are willing to uphold virtually any regulation in the name of "campaign finance reform." In Davis v. Federal Election Commission, decided the same day as Heller, Justice Samuel Alito, writing for the Court's conservatives, reaffirmed the "fundamental nature of the right to spend personal funds for campaign speech." The dissenters argued that "in the context of elections . . . limiting the quantity of speech" is perfectly acceptable.

Liberals have also been more willing than conservatives to limit the First Amendment's protection of "expressive association." The Court's conservatives held that forcing the Boy Scouts of America to employ a gay scoutmaster violated the Scouts' right to promote its belief in traditional sexual morality. The liberal dissenters thought the government should be allowed to force the Scouts to present a message inconsistent with the Scouts' values.

The Fifth Amendment's protection of property rights presents, if anything, an even starker example of greater commitment to individual rights by the conservative majority. In the infamous Kelo v. New London, the Court's liberal justices, joined by Justice Kennedy, held that the government may take an individual's property and turn it over to a private party for commercial use. The four conservative dissenters argued that such actions violate the Fifth Amendment's requirement that government takings be for "public use."

A few years earlier, the Court's conservative majority held that a government regulation that deprives a land owner of any use of his property amounts to a "taking" that requires compensation. The liberal dissenters would have permitted the government to totally wipe out an individual's investment without any redress.

Progressives like Dionne love to conflate the will of the people with freedom, but as Federalist 10 reminded us, they are not always one and the same:

Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic, -- is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage.

Dionne is so worried about thwarting the will of the "progressive majority". As decisions like Kelo show, he might more properly be concerned about preserving the individual rights guaranteed to all citizens, irrespective of political affiliation, by the Constitution.

Posted by Cassandra at 08:20 AM | Comments (10) | TrackBack

July 02, 2008

We Were Shocked....

...shocked we tell you, to hear (upon alighting from betwixt the marital sheets) that our fave SC Justice had once again waved his butter knife over the Constitution in style majestical and caused yet another federal statute to vanish into thin air!

Linda Greenhouse — yes, that Linda Greenhouse — reports:

When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states — not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either.

This inventory of jurisdictions was a central part of the court’s analysis, the foundation for Justice Anthony M. Kennedy’s conclusion in his majority opinion that capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied.

It turns out that Justice Kennedy’s confident assertion about the absence of federal law was wrong.

The lawyers missed it. The law clerks missed it. The justices missed it.

Who caught it?

A blogger.

A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty.

At this rate, we begin to fear for the entire federal code. Whatever would we do without Justice Kennedy?

He has become the Sally Struthers of SCOTUS, forever finding adorable little Penumbral Rights and Evolving Standards of Decency wandering alone and forlorn upon the streets of gay Paree. This would be fine if he didn't insist upon bringing the puppy-eyed little buggers home with him, but it's getting so the Editorial Staff are afraid to open our mailbox for fear of being accosted:

You’ve probably seen Keith Olbermann's invaluable Special Comments. Every night this brave truth teller defies the brutal repression of the current administration to warn us how millions of completely innocent American citizens have been locked up in Guantanamo Bay simply for daring to speak truth to fascism. In fact if not for Keith's nightly reminders, most Americans would probably remain tragically unaware their Constitutional rights are vanishing faster than serious news stories on the Fox News website. But all is not lost, mes amis.

One man: Justice Anthony Kennedy, stands between the Republic we hold dear and utter Tyranny. Striding boldly like a Colossus where others timidly toe the line, Justice Kennedy bursts the stale, quotidian shackles of precedent and judicial modesty asunder with supreme confidence in his own unerring infallibility.

We don’t all get to make a difference in this world. You’ve probably considered Opposing the Chimp before, but it’s so easy to make excuses like, ‘Ummm... American Idol is like, totally coming on at 8 o'clock’, or “I haven't voted since the 2000 election (in which my party demanded electronic ballots, which in turn allowed me to say I've completely lost faith in the electoral process) [exploding head]". You may even say, "What is the point of even trying in virtual police state? We all remember what happened to Keith Olbermann: dude is locked up in an airless cell in Gitmo with the frilly panties of Fascism pulled over his head."

But you can make a difference. For the price of a cup of coffee - just 50 cents a day - you can adopt your very own European Evolving Standard of Decency and bring it here to the U. S. of A.! We’ll even send you a picture of your young Standard of the generosity of patriots like you have saved from the clutches of Dick Cheney and Barney the White House Terrier. You can post your photo on your refrigerator to remind you of money well spent.

You owe it to your children to help Justice Kennedy rescue the few shreds of decency and civil rights that have managed to elude the depredations of your elected representatives. Remember our motto here at Evolving Standards R Us:

“L'etat? C'est moi!”

Seriously, the Editorial Staff are not quite sure why CAAFlog is so surprised:

Wednesday's controversial Supreme Court decision in Kennedy v. Louisiana, No. 07-343, canvassed the law in the United States governing the maximum permissible sentence for rape of a child. Remarkably, both the majority and the dissent overlooked a congressional statute right on point: the National Defense Authorization Act for Fiscal Year 2006.

As we noted earlier, Boumediene put us all on notice that the majority has slight regard for either Congressional statutes or the notion of judicial deference:

This excessive genuflection to the Black Nine has been bothering me quite a bit, too. Just why everyone should be inclined to perform the Thousand Prostrations simply because yet another imperial edict, informed by the kind of toffee nosed legal opinion that results from strolling down the Champs Elysees at midnight with a badly rolled Gauloise and a pocketful of anomie, has once again been handed down from on high continues to elude me.

In case it wasn't obvious, we're not in a serious mood here today, but the topic of SCOTUS simply ignoring Congress is a serious subject. After reviewing what just happened a few weeks ago, one wonders: did the majority "overlook" the relevant federal statute?

Or simply choose to ignore it? We sense a pattern developing, here.

If we didn't know better, we'd suspect Justice Kennedy was developing a coherent judicial philosophy. But that would be downright silly, wouldn't it?

Posted by Cassandra at 07:04 AM | Comments (28) | TrackBack

June 26, 2008

Oh, Justice Kennedy....

Quote of the Day:

"I Got Yer Evolving Standard Right Here, Buddy":

Gov. Jindal made it absolutely clear that signing this bill today was about more than just sending a no-tolerance message across his state: "I want to send the message loud and clear – to the Supreme Court of the United States and beyond – make no mistake about it, if anyone wants to molest children and commit sexual assaults on kids they should not do so here in Louisiana. Here, we will do everything in our power to protect our children and we will not rest until justice is won and we have fully punished those who harm them.”

Heh.

On the heels of today's SCOTUS decision in Kennedy v. Louisiana barring the death penalty for sex offenders, Gov. Bobby Jindal released a statement calling the ruling an "affront to the people of Louisiana" - and what's more, vowing to do whatever possible to amend the state’s laws in order to maintain the death penalty for child rape.

But that's not all he did.

Today, Gov. Jindal signed the "Sex Offender Chemical Castration Bill," authorizing the castration of convicted sex offenders. They get a choice: physical or chemical. Oh, and they don't just get castrated and leave - they still have to serve out their sentence.

I believe the term "Gates of Hell" applies. Read it all.

Posted by Cassandra at 08:45 AM | Comments (51) | TrackBack

Sacre bleu!

Whilst idly munching the remains of a leftover croissant this morning, the Editorial Staff happened to glance into the bottom of our nearly empty coffee cup. Much to our surprise, there amongst the French pressed grounds swirling snarkily back up at us, we espied a new penumbral right!

But is this not the wonderful thing about a Living, Breathing Constitution? Contrary to the staid, stale prescriptions of heartless conservatives, a Living Text is free to change; free to respond to the real, human beings it is meant to serve. It protects the powerless, breathes life and compassion into the law:

"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

It protects the downtrodden. This may be the defining difference between liberal and conservative views of law. A just process is not so important as ensuring equality of outcome. And of course, law should protect those who have no voice. And above all, the law must have empathy. Let's not forget that.

Except when it doesn't seem to do any of these things terribly well:

"I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes," Obama said at a news conference. "I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution."

Oh dear, Senator. The majority (whose numbers Senator Obama, if he is elected, wishes to increase) beg to disagree with you. Their logic is compelling, n'est pas? They cite, as precedent, a previous case (Coker v. Georgia) involving a serial rapist (alert readers may care to note that in the jaded judicial judgment of Court sophisticates, a 16 year old rape victim was deemed both "adult" and "unharmed" by her assailant, prompting this furious dissent by Justice Rehnquist, well-known unfeeling conservative and enemy of women everywhere:

A rapist not only violates a victim's privacy and personal integrity, but inevitably causes serious psychological, as well as physical, harm in the process. The long-range effect upon the victim's life and health is likely to be irreparable; it is impossible to measure the harm which results. Volumes have been written by victims, physicians, and psychiatric specialists on the lasting injury suffered by rape victims. Rape is not a mere physical attack -- it is destructive of the human personality. The remainder of the victim's life may be gravely affected, and this, in turn, may have a serious detrimental effect upon her husband and any children she may have. I therefore wholly agree with MR. JUSTICE WHITE's conclusion as far as it goes -- that, "[s]hort of homicide, [rape] is the ultimate violation of self.'" Victims may recover from the physical damage of knife or bullet wounds, or a beating with fists or a club, but recovery from such a gross assault on the human personality is not healed by medicine or surgery. To speak blandly, as the plurality does, of rape victims who are "unharmed," or to classify the human outrage of rape, as does MR. JUSTICE POWELL, in terms of "excessively brutal," versus "moderately brutal," takes too little account of the profound suffering the crime imposes upon the victims and their loved ones.

But (yawn!) the suffering of rape victims is insignificant when balanced against the crushing weight of statistics:

In reaching our conclusion we find significant the number of executions that would be allowed under respondent’s approach. The crime of child rape, considering its reported incidents, occurs more often than first-degree murder. Approximately 5,702 incidents of vaginal, anal, or oral rape of a child under the age of 12 were reported nationwide in 2005; this is almost twice the total incidents of intentional murder for victims of all ages (3,405) reported during the same period.

Hmmm. Rape is a serious crime. Especially so when a 300 pound man rapes an 8 year old child. And even more so when twice the number of child rapes occur, as first degree murders. So depressing.

But be that as it may, the Court cannot bear to think of all those dreary executions. Or perhaps it's the workload. And if that isn't enough, there's the question of evolving standards.

You see, ever since the Court struck down capital punishment statutes for rape in Coker, they've noticed a funny trend: states seem strangely reluctant to impose the death penalty for rape! This, mes amis, is what's called an evolving standard of decency, and it springs up like Venus from a clam shell, fully formed and (mirabile dictu!) without the slightest interference from the Berobed Nine Five!

Never mind that in his Coker dissent, Justice Rehnquist had already noted the Court's recent 8th Amendment jurisprudence was discouraging state legislatures from passing criminal statutes imposing the death sentence in such cases:

...it is myopic to base sweeping constitutional principles upon the narrow experience of the past five years. Considerable uncertainty was introduced into this area of the law by this Court's Furman decision. A large number of States found their death penalty statutes invalidated; legislatures were left in serious doubt by the expressions vacillating between discretionary and mandatory death penalties, as to whether this Court would sustain any statute imposing death as a criminal sanction. [Footnote 3/9] Failure of more States to enact statutes imposing death for rape of an adult woman may thus reflect hasty legislative compromise occasioned by time pressures following Furman, a desire to wait on the experience of those States which did enact such statutes, or simply an accurate forecast of today's holding

In any case, when considered in light of the experience since the turn of this century, where more than one-third of American jurisdictions have consistently provided the death penalty for rape, the plurality's focus on the experience of the immediate past must be viewed as truly disingenuous. Having in mind the swift changes in positions of some Members of this Court in the short span of five years, can it rationally be considered a relevant indicator of what our society deems "cruel and unusual" to look solely to what legislatures have refrained from doing under conditions of great uncertainty arising from our less than lucid holdings on the Eighth Amendment? Far more representative of societal mores of the 20th century is the accepted practice in a substantial number of jurisdictions preceding the Furman decision. "[The] problem . . . is the suddenness of the Court's perception of progress in the human attitude since decisions of only a short while ago." Furman v. Georgia,(BLACKMUN, J., dissenting).

... The Court has repeatedly pointed to the reserve strength of our federal system, which allows state legislatures, within broad limits, to experiment with laws, both criminal and civil, in the effort to achieve socially desirable results. Various provisions of the Constitution, including the Eighth Amendment and the Due Process Clause, of course, place substantive limitations on the type of experimentation a State may undertake. However, as the plurality admits, the crime of rape is second perhaps only to murder in its gravity. It follows then that Georgia did not approach such substantive constraints by enacting the statute here in question.

The beauty of being Justice Kennedy is that one can find all the necessary justification for one's judicial pronouncements at the bottom of a coffee cup, in the hallowed precincts of The Hague, or perhaps in the crumbs of yesterday's croissant.

If only we could believe the 8 year old victim in this case was "unharmed". But I suspect our standards of decency will have to evolve considerably before most of us will be able to face that conclusion without feeling heartily sick to our stomachs.

Posted by Cassandra at 07:04 AM | Comments (10) | TrackBack

June 19, 2008

Since I'm Feeling Feisty Today....

...perhaps someone can explain something that has been bothering me.

In the comments to one of my Boumediene posts, Rick observed:

Since Congress exercised its Constitutional power to limit what SCOTUS considers, I would simply announce that SCOTUS overstepped its bounds and violated the Constitution by not deferring to legislative superiority on this question. Therefore, he, Bush, would continue with the present arrangement until or unless Congress sent new legislation changing the current procedures.

Sure, that would be a Constitutional crisis, but SCOTUS precipitated the crisis. It would do them good to hear a "no". I didn't see where Justice Kennedy even addressed this. Souter attempted to provide a lame reference, but he was not at all persuasive. He simply claimed SCOTUS was paying attention to a different part of the Constitution.

This excessive genuflection to the Black Nine has been bothering me quite a bit, too. Just why everyone should be inclined to perform the Thousand Prostrations simply because yet another imperial edict, informed by the kind of toffee nosed legal opinion that results from strolling down the Champs Elysees at midnight with a badly rolled Gauloise and a pocketful of anomie ,has once again been handed down from on high continues to elude me.

Does Congress not understand the implications of this decision? Without even giving the DTA a chance, SCOTUS simply blew it off. Let's not forget Chief Justice Roberts' summation. Not content with failure to defer to the Executive during wartime - they overrode the Legislative branch too. And the irony is that this will bring no immediate improvement in status for the detainees:

...who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure.

Not Congress, whose attempt to “determine— through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests [citing Justice Breyer’s concurrence in the 2006 Hamdan case] has been unceremoniously brushed aside.

What I don't understand is, if the DTA itself could be construed as invoking Congress' Constitutionally-mandated jurisdiction stripping power over SCOTUS, (and according to at least one member of that Court, it can) what in the blue blazes is keeping Congress from simply passing a resolution saying they don't intend to be bound by the majority decision?

That would be a powerful smackdown to an increasingly imperial court. Of course, it would also provide the President with the backing he needs.... to follow the law Congress passed.

*sigh*

Posted by Cassandra at 02:56 PM | Comments (13) | TrackBack

June 13, 2008

We're All Americans, Now

For some reason Scalia's dissent seems to be the one making the news. Scalia has a gift for dashing off memorable quips, but I thought Chief Justice Roberts' dissent gave a clearer picture of what was wrong with the majority opinion in Boumediene v. Bush. It begins on page 82. I excerpt it here, but it should be read in full:

The Court’s opinion makes plain that certiorari to review these cases should never have been granted. As two Members of today’s majority once recognized, “traditional rules governing our decision of constitutional questions and our practice of requiring the exhaustion of available remedies . . . make it appropriate to deny these petitions.” Just so. Given the posture in which these cases came to us, the Court should have declined to intervene until the D. C. Circuit had assessed the nature and validity of the congressionally mandated proceedings in a given detainee’s case. The political branches created a two-part, collateral review procedure for testing the legality of the prisoners’ Status Review Tribunal (CSRT) followed by review in the D. C. Circuit.

As part of that review, Congress authorized the D. C. Circuit to decide whether the CSRT proceedings are consistent with “the Constitution and laws of the United States.” No petitioner, however, has invoked the D. C. Circuit review the statute specifies. As a consequence, that court has had no occasion to decide whether the CSRT hearings, followed by review in the Court of Appeals, vindicate whatever constitutional and statutory rights petitioners may possess.

Remarkably, this Court does not require petitioners to exhaust their remedies under the statute; it does not wait to see whether those remedies will prove sufficient to protect petitioners’ rights. Instead, it not only denies the D. C. Circuit the opportunity to assess the statute’s remedies, it refuses to do so itself: the majority expressly declines to decide whether the CSRT procedures, coupled with Article III review, satisfy due process.

It is grossly premature to pronounce on the detainees’ right to habeas without first assessing whether the remedies the DTA system provides vindicate whatever rights petitioners may claim. The plurality in Hamdi v. Rumsfeld, explained that the Constitution guaranteed an American citizen challenging his detention as an enemy combatant the right to “notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decision maker.” The plurality specifically stated that constitutionally adequate collateral process could be provided “by an appropriately authorized and properly constituted military tribunal,” given the “uncommon military conflict.” This point is directly pertinent here, for surely the Due Process Clause does not afford non-citizens in such circumstances greater protection than citizens are due.

If the CSRT procedures meet the minimal due process requirements outlined in Hamdi, and if an Article III court is available to ensure that these procedures are followed in future cases, there is no need to reach the Suspension Clause question. Detainees will have received all the process the Constitution could possibly require, whether that process is called “habeas” or something else. The question of the writ’s reach need not be addressed.

This is why the Court should have required petitioners to exhaust their remedies under the statute. As we explained in Gusik v. Schilder, “If an available procedure has not been employed to rectify the alleged error” petitioners complain of, “any interference by [a] federal court may be wholly needless. The procedure established to police the errors of the tribunal whose judgment is challenged may be adequate for the occasion.” Because the majority refuses to assess whether the CSRTs comport with the Constitution, it ends up razing a system of collateral review that it admits may in fact satisfy the Due Process Clause and be “structurally sound.” But if the collateral review procedures Congress has provided—CSRT review coupled with Article III scrutiny — are sound, interference by a federal habeas court may be entirely unnecessary.

The only way to know is to require petitioners to use the alternative procedures Congress designed. Mandating that the petitioners exhaust their statutory remedies “is in no sense a suspension of the writ of habeas corpus. It is merely a deferment of resort to the writ until other corrective procedures are shown to be futile.” So too here, it is not necessary to consider the availability of the writ until the statutory remedies have been shown to be inadequate to protect the detainees’ rights. (“An application for a writ of habeas corpus . . . shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State”). Respect for the judgments of Congress — whose Members take the same oath we do to uphold the Constitution — requires no less.

In the absence of any assessment of the DTA’s remedies, the question whether detainees are entitled to habeas is an entirely speculative one. Our precedents have long counseled us to avoid deciding such hypothetical questions of constitutional law. (“If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such[questions are] unavoidable”); see also Ashwander v. TVA, (Constitutional
questions should not be decided unless “ ‘absolutely
necessary to a decision of the case’” (quoting Burton v. United States, This is a “fundamental rule of judicial restraint.”

The Court acknowledges that “the ordinary course” would be not to decide the constitutionality of the DTA at this stage, but abandons that “ordinary course” in light of the “gravity” of the constitutional issues presented and the prospect of additional delay. It is, however, precisely when the issues presented are grave that adherence
to the ordinary course is most important. A principle applied only when unimportant is not much of a principle at all, and charges of judicial activism are most effectively rebutted when courts can fairly argue they are following normal practices.

I could well be wrong, but when I read this decision, I felt a chill run through me. Most opinions I've read seem to say it won't have that much of a practical impact. I'm not sure I agree. I think this is one of those decisions whose impact may initially be slight but which will reverberate for decades, picking up momentum as it goes. I think it may well fundamentally change the meaning of what it means to be an American. The key to this, in my non-lawyer's opinion, lies in Chief Justice Robert's statement here:

The plurality in Hamdi v. Rumsfeld, explained that the Constitution guaranteed an American citizen challenging his detention as an enemy combatant the right to “notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decision maker.” The plurality specifically stated that constitutionally adequate collateral process could be provided “by an appropriately authorized and properly constituted military tribunal,” given the “uncommon military conflict.” This point is directly pertinent here, for surely the Due Process Clause does not afford non-citizens in such circumstances greater protection than citizens are due.

What SCOTUS has done here, if I understand it (and I may not) is stunning.

They have done two things:

1. They have arrogantly bypassed the legislature without even ruling on the adequacy of the statute passed by Congress or requiring the plaintiffs to resort to it; and

2. They have given non-U.S. citizens greater rights under the U.S. Constitution than what they decided U.S. citizens have under Hamdi. And what was the justification for this?

Not law, not precedent, but an end-justifies the means argument. In other words, they manufactured a legal argument to satisfy a predetermined outcome because they were impatient. Essentially, they gave in to fear. I suppose when you are the highest court in the land you don't have to worry about being overturned.

Grim has a rather odd video up at his place about the proclivity of many Americans to mate only with those who share their political sensibilities. I found it amusing. Many moons ago when I first dated and married the spousal unit, he was fairly conservative.

I, on the other hand, was pretty much a flaming liberal.

I stayed that way for years before (if you listen to the tolerant left, whose respect for diversity and openness to alternate modalities is a hallmark of their superior mental health) my life experiences led me to slowly succumb to the twisted psychosis that is conservatism. But in my more liberal days I was impatient. I wanted government to step in and help people who were hurting. This was because I still believed government intervention would have a beneficial effect. It was my experiences as an adult that changed my mind about the efficacy of social programs.

It wasn't so much that I stopped caring. It was more that once I became an adult, I saw why such efforts so often backfire; how so many social engineering experiments not only fail to achieve their goals but end up creating unintended second-order problems that are far worse than the ones they set out to remedy.

I don't think I truly became a conservative, though, until 9/11. It was the backlash that did it to me; listening to the constant jabbering about fear-mongering from folks like Zbigniew Brzezinski. This is an almost surreal experience: it's a bit like standing in a hall of mirrors, having Zbigniew Brzezinski tell you we have absolutely nothing to fear from the terrorists who have (at least twice that I am aware of) tried to kill us, but that we should be very, very afraid of the bad, corrupt, evil and wrong/bad (did I remember to say they are bad?) men in the White House who keep fear mongering and trying to scare us.

Because the only thing we as Americans have to fear, is fear itself.

And Fear is Bad.

As we constantly eschew the politics of fear, we should be remember to be very, very afraid. But not of the terrorists, mind you.

No, we should be afraid of Fear Mongers. You know, people who tell us to be afraid of the Wrong People. So unpleasant, fear. Harshes the mellow.

By fear mongers, of course, I mean bad men like George Dubya Bush who hasn't, last time I checked, actually carted off any American citizens in the middle of the night other than Jose Padilla, about whom we've all read approximately 90,000 gazillion frothing-at-the-mouth articles (kind of hard to argue that was a "secret abduction", isn't it?). Question of the day: how many pending lawsuits are there in which American citizens asking where their unnamed husbands/wives/brothers/sisters/etc. disappeared to?

Isn't this what a habeas corpus suit is for? Even if such a suit were denied, if the NY Times and the WaPo can leak classified documents about vulnerabilities in Marine body armor, the SWIFT terrorist tracking program, the NSA wiretapping program, and how Anbar province was "irretrievably lost" to al Qaeda (thank God for that news flash!) with zero repercussions from the Fear Mongers, surely such horribly wronged plaintiffs could manage to get word to brave truth-to-powerers like Bill Keller, don't ya think?

Because I do.

Yet we hear all the time from Zbigniew, Tim Robbins, Sobbing Sue Saradone and countless others non-fear-mongers who seek to reassure us that we have nothing to fear from the Bad Men Who Are Trying To Destroy Amerikkka about our vanishing habeas rights, and how this is the End of the Republic As We Know It.

But we should not be afraid. Of anything except the fear that we aren't supposed to be afraid of. Because if we are afraid, we're being manipulated by Evil Men. Or something like that. Whatever.

The truth of the matter is that Guantanamo bay is a mess. But it's a mess because we are doing what we are doing out in the open, where everyone can see it in the light of day. What the critics like to gloss over is that the Clinton administration both supported and committed extraordinary renditions before we were at war:

Snatches, or more properly "extraordinary renditions," were operations to apprehend terrorists abroad, usually without the knowledge of and almost always without public acknowledgement of the host government.... The first time I proposed a snatch, in 1993, the White House Counsel, Lloyd Cutler, demanded a meeting with the President to explain how it violated international law. Clinton had seemed to be siding with Cutler until Al Gore belatedly joined the meeting, having just flown overnight from South Africa. Clinton recapped the arguments on both sides for Gore: Lloyd says this. Dick says that. Gore laughed and said, "That's a no-brainer. Of course it's a violation of international law, that's why it's a covert action. The guy is a terrorist. Go grab his ass."

The odd thing is, Al Gore didn't give two figs for international law or the human rights of terrorists, back then. He only began to care when George W. Bush was installed in the Oval Office and we were attacked on September 11th, and the main reason he is able to use our rendition and detention policies against the Bush White House is that, unlike the Clinton/Gore White House, the Bush White House has at least attempted to follow U.S., not foreign law in the treatment of detainees. As Alanis Morrisette might say, isn't it ironic? The result was not only a more effective and humane program, but one that drew the wrath of the much vaunted "international community". Funny, isn't it?

The Rendition Program was initiated because President Clinton, and Messrs. Lake, Berger, and Clarke requested that the CIA begin to attack and dismantle AQ. These men made it clear that they did not want to bring those captured to the U.S. and hold them in U.S. custody.

1.) President Clinton and his national security team directed the CIA to take each captured al-Qaeda leader to the country which had an outstanding legal process for him. This was a hard-and-fast rule which greatly restricted CIA’s ability to confront al-Qaeda because we could only focus on al-Qaeda leaders who were wanted somewhere. As a result many al-Qaeda fighters we knew were dangerous to America could not be captured.

2.) CIA warned the president and the National Security Council that the U.S. State Department had and would identify the countries to which the captured fighters were being delivered as human rights abusers.

3.) In response, President Clinton et. al asked if CIA could get each receiving country to guarantee that it would treat the person according to its own laws. This was no problem and we did so.

--I have read and been told that Mr. Clinton, Mr. Burger, and Mr. Clarke have said since 9/11 that they insisted that each receiving country treat the rendered person it received according to U.S. legal standards. To the best of my memory that is a lie.

...Under President Bush, the rendered al-Qaeda fighters held in U.S. custody have been treated according to guidelines that were crafted by U.S. government lawyers, approved by the Executive Branch, and briefed to and permitted by at least the four senior members of the two congressional intelligence oversight committees.

By bringing the detainees to Gitmo, the Bush administration did the exact opposite of what it has been accused of - it let more sunlight into the rendition process than had ever existed under Clinton-Gore. Congress granted more rights to rendered detainees with the DTA - rights they certainly would never have been granted under Clinton-Gore.

The Supreme Court has now completed the process. For all intents and purposes they have American Constitutional rights and access to the federal courts. SCOTUS bypassed the legislature entirely. If this is not judicial activism, I do not know what is.

It is often tempting to engineer a result we want to see made real, but in doing so, we do violence to the law and to the very fabric of our republic. The ends do not, and cannot, justify the means.

Not if we mean to remain a nation of laws, and not of men.

Under Bill Clinton's watch, we were attacked in 1993. He chose to go after al Qaeda, but in a manner which was both less effective and less respectful of international law and the human rights of the men who were apprehended and detained under the rendition program that began under his tenure. The real irony here is that George Bush tightened up the legal protections for detainees AND made the program more effective, and in return he has been reviled by the international community.

This is not exactly a positive incentive for providing transparency into executive branch dealings during time of war. That's a sobering thought for those who believe in the power of unintended consequences to shape future events.

Posted by Cassandra at 06:35 AM | Comments (22) | TrackBack

April 30, 2008

We Toad You So

Poor Dahlia Lithwick.

Back in January, the perpetually entertaining Ms. Lithwick was just certain that horridly conservative band of judicial activists on the Reich were perfervidly plotting to steal our collective cornflakes... and our right to vote, too!

A familiar maxim warns that a lie can travel halfway around the world before the truth can get its pants on. The half vast editorial staff were left ruefully pondering the truth of that dictum early this morning when the perpetually entertaining Ms. Dahlia Lithwick of SlateMag managed to muck up both the facts and the law before we could grab a cup of coffee and clear the cobwebs from our pea-sized brain.

The golden thread that runs through all of Ms. Lithwick's essays on jurisprudence is the distressing propensity of the Evil, Partisan Roberts Court to brutally oppress hapless orroyo toads, fluffy Angora kittens, people of cholor, and transgendered wolves longing to pick out a china pattern and settle down in The Hamptons. But today she warns of a particularly heinous danger lurking in our midst. Shockingly, the Roberts Court is determined to steal something you may not even have known you possessed: your Constitutional Right to vote. Ms. Lithwick reserves this stunner for the last paragraph of her magnum opus:

I fear I am counting five justices who believe that a nonexistent problem can be constitutionally cured by burdening the fundamental right to vote.

There is just one problem with Ms. Lithwick's alarum. The justices are reviewing the constitutionality of an Indiana law, and contrary to her perfervid perorations, the right to vote is not among the rights explicitly guaranteed by the federal Constitution:

The Constitution contains many phrases, clauses, and amendments detailing ways people cannot be denied the right to vote. You cannot deny the right to vote because of race or gender. Citizens of Washington DC can vote for President; 18-year-olds can vote; you can vote even if you fail to pay a poll tax. The Constitution also requires that anyone who can vote for the "most numerous branch" of their state legislature can vote for House members and Senate members.

Note that in all of this, though, the Constitution never explicitly ensures the right to vote, as it does the right to speech, for example. It does require that Representatives be chosen and Senators be elected by "the People," and who comprises "the People" has been expanded by the aforementioned amendments several times. Aside from these requirements, though, the qualifications for voters are left to the states. And as long as the qualifications do not conflict with anything in the Constitution, that right can be withheld. For example, in Texas, persons declared mentally incompetent and felons currently in prison or on probation are denied the right to vote.

This week, we fear we are counting nine (count 'em -- nine!) justices who issued a unanimous smackdown on the subject of voter fraud.

'It doth well appear that this is not such a partisan issue as it might at first appear. Moreover, it would seem that even liberal justices see a legitimate state interest in preventing that most elusive of conservative boogeymen: voter fraud:

But this case, Crawford v. Marion County Election Board, also revealed a fundamental philosophical conflict between two perspectives rooted in the machine politics of Chicago. Justice John Paul Stevens, who wrote the decision, grew up in Hyde Park, the city neighborhood where Sen. Barack Obama – the most vociferous Congressional critic of such laws – lives now. Both men have seen how the Daley machine has governed the city for so many years, with a mix of patronage, contract favoritism and, where necessary, voter fraud.

That fraud became nationally famous in 1960, when the late Mayor Richard J. Daley's extraordinary efforts swung Illinois into John F. Kennedy's column. In 1982, inspectors estimated as many as one in 10 ballots cast in Chicago during that year's race for governor to be fraudulent for various reasons, including votes by the dead.

Mr. Stevens witnessed all of this as a lawyer, special counsel to a commission rooting out corruption in state government, and as a judge. On the Supreme Court, this experience has made him very mindful of these abuses. In 1987, the high court vacated the conviction of a Chicago judge who'd used the mails to extort money. He wrote a stinging dissent, taking the rare step of reading it from the bench. The majority opinion, he noted, could rule out prosecutions of elected officials and their workers for using the mails to commit voter fraud.

Three years later, Justice Stevens ordered Cook County officials to stop printing ballots that excluded a slate of black candidates who were challenging the Daley machine. The full court later ordered the black candidates back on the ballot.

Barack Obama has approached Chicago politics differently. He came to the city as a community organizer in the 1980s and quickly developed a name for himself as a litigator in voting cases.

In 1995, then GOP Gov. Jim Edgar refused to implement the federal "Motor Voter" law. Allowing voters to register using only a postcard and blocking the state from culling voter rolls, he argued, could invite fraud. Mr. Obama sued on behalf of the Association of Community Organizations for Reform Now, and won. Acorn later invited Mr. Obama to help train its staff; Mr. Obama would also sit on the board of the Woods Fund for Chicago, which frequently gave this group grants.

Acorn's efforts to register voters have been scandal-prone. St. Louis, Mo., officials found that in 2006 over 1,000 addresses listed on its registrations didn't exist. "We met twice with Acorn before their drive, but our requests completely fell by the wayside," said Democrat Matt Potter, the city's deputy elections director. Later, federal authorities indicted eight of the group's local workers. One of the eight pleaded guilty last month.

In Seattle, local officials invalidated 1,762 Acorn registrations. Felony charges were filed against seven of its workers, some of whom have criminal records. Prosecutors say Acorn's oversight of its workers was virtually nonexistent. To avoid prosecution, Acorn agreed to pay $25,000 in restitution.

Despite this record – and polls that show clear majorities of blacks and Hispanics back voter ID laws – Mr. Obama continues to back Acorn. They both joined briefs urging the Supreme Court to overturn Indiana's law.

Last year, he put on hold the nomination of Hans von Spakovsky for a seat on the Federal Election Commission. Mr. von Spakovsky, as a Justice Department official, had supported a Georgia photo ID law.

In a letter to the Senate Rules Committee, Mr. Obama wrote that "Mr. von Spakovsky's role in supporting the Department of Justice's quixotic efforts to attack voter fraud raises significant questions about his ability to interpret and apply the law in a fair manner." Of course, now an even stricter law than the one in Georgia has been upheld by the Supreme Court, removing Mr. Obama's chief objection.

The hold on the von Spakovsky nomination has left the Federal Election Commission with less than a quorum. As a result, the FEC can't open new cases, hold public meetings, issue advisory opinions or approve John McCain's receipt of public funding for the general election. Now Senate Majority Leader Harry Reid claims that, even without the von Spakovsky hold, filling the FEC's vacancies will take "several months."

All of this may be smart politics, but it is far removed from Mr. Obama's call for transcending the partisan divide. Then again, Mr. Obama's relationship to reform has always been tenuous. Jay Stewart, the executive director of the Chicago Better Government Association, notes that, while Mr. Obama supported ethics reforms as a state senator, he has "been noticeably silent on the issue of corruption here in his home state, including at this point, mostly Democratic."

So we have the irony of two liberal icons in sharp disagreement over yesterday's Supreme Court decision. Justice Stevens, the real reformer, believes voter ID laws are justified to prevent fraud. Barack Obama, the faux reformer, hauls out discredited rhetoric that they disenfranchise voters.

Acorn's national political arm has endorsed Mr. Obama. And its "nonpartisan" voter registration affiliate has announced plans to register hundreds of thousands of voters before the November election. An election in which Mr. Obama may be the Democratic candidate.

To which we can only respond with an age-old question:

Cui bono?

Who benefits from preserving the status quo? Who benefits from feeding racial divisions or from fostering the perception that asking for a freely available ID that imposes no race specific burden will disproportionately disenfranchise blacks?

Posted by Cassandra at 07:44 AM | Comments (21) | TrackBack

March 30, 2008

Important Sandy Day O'Connor Thong Alert

Thing a Thong of Thixpenthe
A Pocketful of Ry...

Hold that thought. This isn't about Ry at all. It's about BillT and his admittedly disturbing habit of prancing around outside the wire clad in nothing but a thong:

Thanks for all the e-mails (mostly inquiries as to when I expected to regain my sanity and take up housekeeping *inside* a bunker) and comments expressing concern for my post-bottle rocket wellbeing, but geez, it's not like I'm doing rilly *dangerous* stuff anymore [note to Twin: Try a spoonful of Pepto before bedtime].

Drives those al Qaeda fellers farging nuts. The good news in all of this is that it doth well appear this blog's fave female former Supreme Court justice won't be joining him anytime soon:

Justice Sandra Day O'Connor acknowledges that she won't have to wear a thong bathing suit if she visits the state parks of Florida: Details are contained in the update to my post from earlier this month titled "At a minimum, don't omit 'at a minimum.'"

Whew! That was a close one.

As always, the Editorial Staff is not to be outdone in its stern commitment to be anywhere the evil Bush administration threatens judicial independence.

The enemies of freedom had best sleep with one eye open: at least as long as BillT and Sandy are around.

All we can say is that we're hoping Bill will run out of ammunition soon. We never thought this run of thong posts would go on this long.

Shameful, really.

Posted by Cassandra at 09:58 AM | Comments (15) | TrackBack

March 20, 2008

Mom! He's At It Again!

Ed (the big brute!!!) is Whelen on Dahlia Lithwick again:

Slate’s Dahlia Lithwick somehow finds in the oral argument yesterday in the Second Amendment case “the abandonment of every principle of strict construction, federalism, and judicial modesty in which the Roberts Court ever purported to believe.” Further, she maintains that counsel for the gun owners implicitly invoked “the spirit of Roe v. Wade” in arguing for judicial review “when a fundamental right is at stake.”

Let's face it: when have we seen, in modern times, a juicy piece of constitutional jurisprudence that did *not* implicitly invoke the spirit of Roe v. Wade?

The judge's logic is both simple and compelling. I commend to you his entire dissent - it is a powerful statement of originalist reasoning. Justice Black points out that though the Founders could hardly have foreseen electronic communications, they were quite familiar with both eavesdropping and the admission of hearsay evidence. Had they felt these fell under the rubric of search and seizure, they would have said so, explicitly. Forgive me for quoting one more passage which I think particularly apt:

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.

Obviously Justice Black had not met Dahlia Lithwick. On the otter heiny, we may have to start a new category just for occasions like this.

Posted by Cassandra at 08:51 AM | Comments (20) | TrackBack

March 08, 2008

What's Wrong With This Picture?

More and more, I'm happy my son didn't end up working for Montgomery County:

"You can't have one set of laws for police officers and another one for the rest of the world," Andrews said.

In recent weeks, officers have twice been photographed speeding past a camera and extending a middle finger, an act that police supervisors interpreted as a gesture of defiance. "There is no excuse for that kind of behavior," said Andrews, who was briefed on the incidents.

During the last eight months of 2007, the department's cameras recorded 224 instances in which county police vehicles were nabbed traveling more than 10 mph over the speed limit, the department disclosed this week in response to an inquiry from The Washington Post.

Of those citations, 76 were dismissed after supervisors determined that officers were responding to calls or had other valid reasons to exceed the speed limit. Nearly two-thirds of the remaining 148 fines have not been paid, including an unspecified number that remain under investigation, said Lt. Paul Starks, a police spokesman. He said the number of citations issued to police employees this year is not yet available.

Officer Mark Zifcak, president of the Fraternal Order of Police Lodge 35, did not respond to an e-mail and two phone messages this week seeking comment. In a notice posted on its Web site, the union advises that "members should not pay or set court dates for speed camera citations that are issued to the employer."

Manger is demanding that officers pay the fines, a request that has met stiff opposition from union leaders and has been ignored by some sergeants who were asked to investigate whether officers nabbed by the cameras had a valid reason to speed.

"We are not above the law," Manger said in an interview. "It is imperative that the police department hold itself to the same standards that we're holding the public to."

Officials at the county's fire department, sheriff's office and four municipal police departments said employees who have been caught speeding in government vehicles have paid the fines.

"The only time we don't make them pay the fine is if they're on an emergency call," Sheriff Raymond M. Kight said. "We haven't had any resistance at all."

What a load of horse hockey.

I received a camera ticket in the mail from (you guessed it) Montgomery Country recently.

I didn't go to court and challenge the ticket. I just paid it. I was speeding. My husband and I were pulled over while he was home on 2 weeks leave for something utterly ridiculous. He didn't mention that he was in the military or that our son was a cop. He got a ticket.

I went to court and challenged that one because it made no sense: he had honestly done nothing wrong. After the charge was dismissed, the officer came after me and asked why we hadn't let him know our son was a cop, or that my husband was an Iraq vet. I said we didn't think either fact was relevant to the situation.

I still think that. The law is the law - there can't be one set of rules for cops (and their families) and another for everyone else.

This isn't rocket science.

Posted by Cassandra at 12:37 PM | Comments (20) | TrackBack

February 18, 2008

Suddenly FISA's Not Important? Since When?

In the past few years we've seen the Iraq Study Group touted, and then mysteriously vanish into thin air. Then it was The Generals: "Listen to the Generals!", the Democrats shouted... they are the only reliable source of opinion on how the war is going. Until General Betrayus came to Capitol Hill.

Suddenly, listening to Generals was a Very Bad Idea. So untrustworthy, these military types. How can we know they're not just partisan mouthpieces for the Bushreich? And after all, men in uniform just parrot whatever they're told to say, so there's really no point in listening to them, is there? And whatever happened to that leaked classified memo about Anbar Province being irrevocably lost? Thank God Thomas Ricks broke the law to bring that to our attention.

And the emerging civil war in Iraq. How's that working out for the New York Times?

And the benchmarks. Whatever happened to the criticism that assessing our progress in Iraq was really all about the benchmarks?

In an age of constantly shifting goalposts, the Editorial Staff should not be surprised to see one more pillar of lefty outrage abruptly retired from the public stage when it proves no longer "useful":

According to top Democrats, the expiration of the Protect America Act (PAA) when the clock strikes midnight Sunday is no big deal. Our ability to monitor foreign threats to national security, they assure us, will be completely unaffected.

This is about as dumb a talking point as one can imagine. And it is just as demonstrably false.

Think for a moment about Tuesday’s crucial Senate bill overhauling our intelligence law that Speaker Nancy Pelosi refused to allow the House to consider before recessing Friday — for a vacation. (Democrats evidently had no time for national security, having exhausted themselves on such cosmic matters as a baseball pitcher’s alleged steroid use and unenforceable, unconstitutional contempt citations in a stale investigation into something that wasn’t a crime and that no one but MoveOn.org cares about any longer).

As McCarthy explains, in the Senate, the same bill easily passed. In fact, both parties made significant concessions to ensure its success:

In a Senate controlled by the Democrats, the bill passed by an overwhelming 2-to-1 margin. To attract such numbers, the Bush administration (as I detailed yesterday) gave ground on critically important issues of executive power and expansion of the FISA court’s role.

Democrats surely did not want to give President Bush this legislative victory, and President Bush certainly did not want to cave on these issues. But both sides compromised precisely because they understood that failing to do so, failing to preserve current surveillance authority, would endanger the United States.

That is why so many Senate Democrats went along. That is why Democrats in both houses agreed to the PAA in the first place. That is why 34 House Democrats defied their leadership on Wednesday, voting against another temporary extension of the PAA in an effort to force a vote on the Senate bill — which, had Pelosi allowed it to come to the floor, would have become law by a healthy bipartisan margin.

If the expiration of the PAA made no difference, as top Democrats are speciously claiming now, there is not the remotest chance any of those things would have happened.

And yet as Ace points out, even some sources on the right maintain intelligence gathering will be unaffected by the House's failure to act on FISA:

Timothy Lee, an adjunct scholar at the Cato Institute, said the last time Congress overhauled FISA � after the September 11 terrorist attacks � President Bush praised the action, saying the new law "recognizes the realities and dangers posed by the modern terrorist."

What Lee fails to mention is that in February or March of last year (we can't be sure because the ruling is secret), a FISA court judge ruled that foreign-to-foreign communications are subject to a warrant requirement if they are carried over the U.S. telecommunications infrastructure. So there's actually a pretty good reason to think our nation will be in more danger in 2008 than in 2006.

That hasn't stopped Democrats and others from claiming that the Bush Administration is just fear-mongering on the issue. That was the claim of congressional Democrats in August, sore at the spanking they'd received after the intelligence community reported a drop in intelligence gathering of 75%:

At a closed-door briefing in mid-July, senior intelligence officials startled lawmakers with some troubling news. American eavesdroppers were collecting just 25 percent of the foreign-based communications they had been receiving a few months earlier.

...The report helped set off a furious legislative rush last week that, improbably, broadened the administration’s authority to wiretap terrorism suspects without court oversight.

Now let's all put our Big Logic Hats on for just a second.

If the intelligence community came to Congress because suddenly they were only collecting 1/4 of the information they had been, previously, and Congress were so concerned about this they passed emergency legislation to fix the problem...

...and Congress just allowed that legislation to expire...

What logical consequence should We the People expect from this? Let's ask Senator Jay Rockefeller, (D, West Virginia):

Now, let me say something more. What people have to understand around here is that the quality of the intelligence we are going to be receiving is going to be degraded. It is going to be degraded. It is already going to be degraded as telecommunications companies lose interest. Everybody tosses that around and says: Well, what do you mean? I say: Well, what are they making out of this? What is the big payoff for the telephone companies? They get paid a lot of money? No. They get paid nothing. What do they get for this? They get $40 billion worth of suits, grief, trashing, but they do it. But they don't have to do it, because they do have shareholders to respond to, to answer to.

Senator Rockefeller seems to be trying to tell us something.

Perhaps that if we don't give the intelligence community the tools to do the job, and American corporations some protection against frivolous lawsuits, the quantity and quality of our the intelligence we collect is going to be degraded.

And if past performance is any indicator, we can quantify the amount of that degradation: about 75%.

Fortunately, Nancy Pelosi is not the least bit concerned about Terrorists B-ZZ.

Sleep well, America.

Congress has got your back.

Posted by Cassandra at 06:55 AM | Comments (19) | TrackBack

January 26, 2008

Those Big *Brutes*!!!!

They're baaaaack....

... and this time, they're tag teaming each other. The Editorial Staff's fave Team Of Crack Young Legal Analysts, Emily ("Why *Shouldn't* Jose Padilla Turn Qualified Immunity On Its Head?") Bazelon and The Perpetually Entertaining Dahlia Lithwick have trained their rapier-like wits upon that big bully, Ed Whelan and his defenders:

It took some kind of amazing footwork for Clark Hoyt, the New York Times public editor, to pull off what's turning into an annual ritual: dragging the paper's multiple-award-winning Supreme Court correspondent out to the woodshed for appearing to have opinions in her private life or—even worse— sharing a toothpaste tube with those who do.

This weekend's iteration of Linda isn't THAT bad starts with Hoyt's concession that M. Edward Whelan III—whose online attacks on Greenhouse at National Review Online are tireless—is a bully who is prone to "increasingly intemperate and personal attacks on Greenhouse." But then Hoyt gives Whelan—and other bloggers inclined to trashing professional reputations—exactly what they want: He takes the bully seriously, by airing and evaluating Whelan's claim that the Times is guilty of bias because of Greenhouse's reporting on cases involving the Guantanamo detainees. Her sin? She is married to Eugene Fidell, a nationally recognized expert on military law who has filed friend-of-the-court briefs in earlier stages of these cases, and similar ones before the court. In Whelan's hands, this fact—which Greenhouse told her bureau chief—becomes the latest addition to a lengthy dossier about Greenhouse's unfitness to report Supreme Court news.

Whelan didn't point to any concrete problem with Greenhouse's handling of these cases. That should be easier to do than with almost any other reporter, given that Greenhouse relies primarily on court filings and oral arguments that are publicly available in their entirety, as Yale law professor Judith Resnik points out to us. Unable to point to any actual bias, Whelan resorts to the petulant claim that the effect of Fidell's involvement in the detainee cases "would be impossible to separate … from the broader political bias that pervades so much of Greenhouse's reporting." And so Hoyt rightly charges him with peddling "slippery innuendo."

First of all, Whelan's beef with Greenhouse isn't that she "dares to have opinions". This is, like so many of our darling duo's other complaints, frankly silly.

Greenhouse can have all the private opinions she wants. What Whelan has objected to is her propensity to inject her political beliefs into her coverage of Supreme Court news. As to the second (overwrought) charge, Greenhouse is not being "attacked" for sharing a toothpaste tube with her husband, but for failing to disclose the conflict to readers of the Times. Let's face it: if there is no conflict, why make a fuss about disclosing the fact that her husband is suing the government on behalf of Guantanamo detainees? Readers of the Times will (if this is truly not an issue) simply say to themselves, "Who cares?" and move on. Greenhouse has, in this case, done the right thing, honor has been served, and transparency has been preserved.

The fact is, however, that it does strain credulity more than just a tad to believe a reporter will report with complete objectivity on cases her husband is currently litigating. And when one finds that not only has Greenhouse reported on these cases without disclosing the connection, but she passionately uses non-neutral language in her reporting (and surprise! she just happens to take the very same position her husband is pleading in court! What are the chances?) our credulity is stretched to the breaking point.

And as for the question of innuendo, that is a charge more appropriately leveled at Ms. Bazleton and Lithwick than at Mr. Whelan, who was (at least) quite direct in his allegations:

Whelan's contained a straightforward accusation: that a pervasive bias marks Greenhouse's work. What's slippery about that? Bazelon and Lithwick say that Whelan has "slimed" them in the past. What they appear to mean is that he has criticized them, and pointed out their inaccuracies, when they went after, e.g., Samuel Alito. You could just as easily say that they "slimed" Alito. And since Whelan's criticism of them has gone unrefuted, their criticism of him meets the definition of "slippery innuendo" better than anything he has said.

One more thing. Why do Bazelon and Lithwick imagine that conservatives pick on Greenhouse? She is, on their telling, a terrific and unbiased reporter. (When she called Chief Justice Rehnquist and Justices Scalia and Thomas "the Court's far right," for example, that was just straight news reporting.) Perhaps, in their view, that is what conservatives dislike about her: They want someone to slant the news their way. But if that were the case, wouldn't there be liberals who attacked her for not being left enough? Yet somehow that almost never happens: Liberals seem happy enough with her work. Is their theory that conservatives are just less fair-minded and more paranoid than liberals? That's quite a defense: We're not biased against you; you're just lunatics.

As to the question of bias in Ms. Greenhouse's coverage of SC news (not opinion journalism, mind you) the half vast editorial staff defers to Peter Berkowitz, a law professor and member of advisory board of the Ethics and Public Policy Center

In late June, Linda Greenhouse of the New York Times breathlessly reported on the front page, above the fold and under a big headline, that in the just-announced case of Hamdan v. Rumsfeld, the Supreme Court "shredded each of the administration's arguments." The decision--which held that, as organized, the military tribunals the Bush administration had created to try unlawful combatants seized on the battlefield in Afghanistan, were contrary to federal law and a provision of the Geneva Conventions--was, Greenhouse gushed, "a sweeping and categorical defeat for the Bush administration."

Indeed, she proclaimed, the decision was a "historic event, a definitional moment in the ever-shifting balance of power among the branches of government that ranked with the court's order to President Nixon in 1974 to turn over the Watergate tapes or with the court's rejection of President Harry S. Truman's seizing [in 1952] of the nation's steel mills."

Wow. A "sweeping and categorical defeat". Let's take a look at the decision in detail to see what prompted that pronouncement:

Never mind that the Court had not questioned the government's right to detain Salim Ahmed Hamdan, allegedly Osama bin Laden's driver and bodyguard, without charge or trial, as an unlawful combatant, until such time as the conflict between the United States and al Qaeda comes to an end.

The sweeping and categorical nature of the Bush administration's humiliation is unquestionable. Just ask Ms. Greenhouse.

Never mind that, in a paragraph-long concurring opinion, Justice Breyer emphasized that much, if not all, of the military tribunal procedures designed by the Bush administration would pass legal muster if explicitly authorized by Congress.

That had to hurt.

Never mind that the Court's opinion commanded only a narrow five-justice majority.

As Ms. Greenhouse reminds us, this was unequivocably a unanimous judicial smackdown. Sweeping in its universal condemnation.

And never mind that Justices Scalia, Thomas, and Alito each authored powerful dissents that elaborated serious objections to which the majority's principal legal arguments are exposed. (Chief Justice Roberts did not participate in the case because, as judge on the D.C. Court of Appeals, he joined the opinion, which Hamdan reversed, upholding the administration's military tribunals.)

In other words, we may well infer that, had he not felt it necessary to recuse himself, we may have seen an outcome that was less than... dare we say it?

Sweeping?

Of course Ms. Greenhouse didn't feel that any of this was information readers of the Times 'needed to know'. Must be one of those professional journalist thangs - we wouldn't understand, but we should trust in their judgment and not dare to question our betters.

Misses Bazelon and Lithwick evidently agree. They are, as Shakespeare's Henry V opined, the modern makers of manners. One imagines them looking raptly into the eyes of Ms. Greenhouse and sighing deeply:

O Linda, nice customs curtsy to great queens.
Dear Linda, we cannot be confined
Within the weak list of a country's fashion:
We are the makers of manners, Linda;
And the liberty that follows our places
Stops the mouth of all find-faults;

Nice work, if you can get it.

Posted by Cassandra at 08:31 AM | Comments (13) | TrackBack

January 10, 2008

Voter ID: It's A No Brainer

A familiar maxim warns that a lie can travel halfway around the world before the truth can get its pants on. The half vast editorial staff were left ruefully pondering the truth of that dictum early this morning when the perpetually entertaining Ms. Dahlia Lithwick of SlateMag managed to muck up both the facts and the law before we could grab a cup of coffee and clear the cobwebs from our pea-sized brain.

The golden thread that runs through all of Ms. Lithwick's essays on jurisprudence is the distressing propensity of the Evil, Partisan Roberts Court to brutally oppress hapless orroyo toads, fluffy Angora kittens, people of cholor, and transgendered wolves longing to pick out a china pattern and settle down in The Hamptons. But today she warns of a particularly heinous danger lurking in our midst. Shockingly, the Roberts Court is determined to steal something you may not even have known you possessed: your Constitutional Right to vote. Ms. Lithwick reserves this stunner for the last paragraph of her magnum opus:

I fear I am counting five justices who believe that a nonexistent problem can be constitutionally cured by burdening the fundamental right to vote.

There is just one problem with Ms. Lithwick's alarum. The justices are reviewing the constitutionality of an Indiana law, and contrary to her perfervid perorations, the right to vote is not among the rights explicitly guaranteed by the federal Constitution:

The Constitution contains many phrases, clauses, and amendments detailing ways people cannot be denied the right to vote. You cannot deny the right to vote because of race or gender. Citizens of Washington DC can vote for President; 18-year-olds can vote; you can vote even if you fail to pay a poll tax. The Constitution also requires that anyone who can vote for the "most numerous branch" of their state legislature can vote for House members and Senate members.

Note that in all of this, though, the Constitution never explicitly ensures the right to vote, as it does the right to speech, for example. It does require that Representatives be chosen and Senators be elected by "the People," and who comprises "the People" has been expanded by the aforementioned amendments several times. Aside from these requirements, though, the qualifications for voters are left to the states. And as long as the qualifications do not conflict with anything in the Constitution, that right can be withheld. For example, in Texas, persons declared mentally incompetent and felons currently in prison or on probation are denied the right to vote.

Indeed, Salon.com (that reich-wing rag!) managed to do its homework, huffily informing its readers in an article amusingly entitled You Have No Right To Vote that (for the most part) the exercise of the franchise is a matter left to the states:

Last week, a Missouri judge reminded the state Legislature that citizens of the state have a right to vote. And because it is a right, not a privilege granted by the powerful, Missourians can cast their ballots this November without having to meet identification requirements that seemed designed to make it harder for certain people -- the poor, the elderly, minorities and women -- to exercise that right.

That's the good news. The bad news is that this right comes from the Missouri state Constitution. The U.S. Constitution does not explicitly guarantee a right to vote, and our federal courts currently read the document not to include it.

But that's not the only thing Ms. Lithwick gets wrong. She, like most other commentators on the voter ID affair, makes a frankly silly circular argument about the possibility of voter fraud. You see, there is no such thing. And what's more, the mere suggestion is a transparent attempt to disenfranchise Democrats and throw elections to conservatives (in other words, to commit voter fraud). Oddly, the fact that there is even less evidence (by Ms. Lithwick's own admission) for the latter contention than she contends there is to support the former distresses her not one whit, logic being for The Little People:

When Indiana adopted its voter-ID law in 2005—requiring voters to present a government-issued photo ID before casting a ballot—the state purported to be beating back the malodorous tide of vote fraud that was ostensibly sweeping the nation. But as professor Richard Hasen has ably demonstrated here in Slate, this vote-fraud epidemic is largely fictional. The major bipartisan draft fraud report (PDF) on the subject concluded there's very little polling-place fraud in America. So, increasingly, the effort to stop fictional vote fraud looks like a partisan effort to suppress votes that tend to go to Democrats—and somehow, it's always indigent, elderly, and minority voters who are disproportionately affected.

But the "major bipartisan draft fraud report" Lithwick so triumphantly cites studied only voter fraud cases. Let's think about that for a moment, because there are several logical problems with using a study that cites only cases (and cases that got to appeals court, at that) to estimate the number of voter fraud incidents taking place in a general population.

When you drive to work every day, do you ever see people speeding? Of those speeders, how many get caught by the police and pulled over? Of speeders who are pulled over, how many actually received a citation? Of those cited, how many go to court and challenge the citation? Of those, how many cases are dismissed in court for various reasons?

How accurate would it be to use a "study" of cases that made it all the way through the court system to estimate the number people who actually drive too fast? Not very. It's the wrong metric. But there's a more compelling argument, and John Fund makes it:

Opponents of photo ID laws make a valid point that, while Indiana has a clear problem with absentee-ballot fraud (a mayoral election in East Chicago, Ind., was invalidated by the state's Supreme Court in 2003), there isn't a documented problem of voter impersonation. "The state has to demonstrate that this risk of fraud is more than fanciful. And it really isn't," says Ken Falk, legal director for the ACLU of Indiana.

But Indiana officials make the obvious point that, without a photo ID requirement, in-person fraud is "nearly impossible to detect or investigate." A grand jury report prepared by then-Brooklyn District Attorney Elizabeth Holtzman in the 1980s revealed how difficult it is to catch perpetrators. It detailed a massive, 14-year conspiracy in which crews of individuals were recruited to go to polling places and vote in the names of fraudulently registered voters, dead voters, and voters who had moved. "The ease and boldness with which these fraudulent schemes were carried out shows the vulnerability of our entire electoral process to unscrupulous and fraudulent misrepresentation," the report concluded. No indictments were issued thanks to the statute of limitations, and because of grants of immunity in return for testimony.

Even modest in-person voter fraud creates trouble in close races. In Washington state's disputed 2004 governor's race, which was won by 129 votes, the election superintendent in Seattle testified in state court that ineligible felons had voted and votes had been cast in the name of the dead. In Milwaukee, Wis., investigators found that, in the state's close 2004 presidential election, more than 200 felons voted illegally and more than 100 people voted twice. In Florida, where the entire 2000 presidential election was decided by 547 votes, almost 65,000 dead people are still listed on the voter rolls -- an engraved invitation to fraud. A New York Daily News investigation in 2006 found that between 400 and 1,000 voters registered in Florida and New York City had voted twice in at least one recent election.

Laws tightening up absentee-ballot fraud, which is a more serious problem than in-person voting, would be welcome. But, curiously, almost all of the groups opposing the photo ID law before the Supreme Court today either oppose specific efforts to combat absentee-ballot fraud or are silent on them.

No matter how much voter fraud is caused by voter impersonation, Stuart Taylor of the National Journal reports that "polls show voters increasingly distrust the integrity of the electoral process." He also notes that a 2006 NBC/Wall Street Journal nationwide poll found that, by a 80%-7% margin, those surveyed supported voters showing "a valid photo identification." The idea had overwhelming support among all races and income groups.

That sweeping support helps explain why, in 2005, 18 of 21 members of a bipartisan federal commission headed by former President Jimmy Carter and former Secretary of State James Baker came out in support of photo ID requirements more stringent than Indiana's. "Voters in nearly 100 democracies use a photo identification card without fear of infringement on their rights," the commission stated. Mr. Carter feels strongly about voter fraud. In his book, "Turning Point," he wrote of his race for Georgia State Senate in 1962, which involved a corrupt local sheriff who had cast votes for the dead. It took a recount and court intervention before Mr. Carter was declared the winner.

Right now, half the states have decided that some kind of ID should be required to vote. It makes sense for the Supreme Court to allow federalism to work its will state-by-state. In 2006, the court unanimously overturned a Ninth Circuit ruling that had blocked an Arizona voter ID law. In doing so, the court noted that anyone without an ID is by federal law always allowed to cast a provisional ballot that can be verified later. The court also noted that fraud "drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised."

If you think a lot of speeders get off scot-free now, imagine how that situation would be compounded if police were prohibited from using radar guns to identify cars that are exceeding the speed limit. Law enforcement is always short handed, and crimes which are difficult to detect will not be enforced. Police have neither the time nor the resources to go after criminals absent clear, convincing evidence that will stand up in court - they are simply wasting their time. To cite the end product - a lack of prosecuted voter fraud cases - in a situation where voting officials are not allowed to check IDs is circular reasoning. Of course the ratio of successfully prosecuted cases to allegations is low: election officials cannot check the only thing that would make successful prosecution possible: a photo ID.

The real damage from our current situation is the loss of public confidence in our electoral process. Just before the last election, Democrats like Nancy Pelosi were openly undermining public confidence in the integrity of the election process and engaging in fear mongering that, according to such right-wing outlets as the New York Times, was keeping blacks away from the polls. Of course when Democrats took the House, her concerns over the integrity of vote counts and the disenfranchisement of minority voters magically vanished overnight. But how many blacks didn't vote because of her outright race mongering? The fact is that in many precincts in 2000, the black vote handed the election to none other than George Bush.

It's time to move to a system that gets race out of the equation and prevents politicians on both sides from demagoguing the issue, undermining public confidence in our elections, and continually challenging election day results.

If you have an ID, you cannot be barred from the polls and if you want to exercise your franchise, it is not too much to ask as a responsible adult that you obtain a voter ID. As Fund pointed out, there are mechanisms in place to ensure those who don't have their IDs retain access to the franchise.

If third world democracies have figured out how to run peaceful elections where voters are only allowed to vote once and must identify themselves, surely the world's greatest superpower follow their example. Some things really are that simple.

Update: By the Beard of the Prophet we are not making this up to disenfranchise Dahlia Lithwick!

Your delicious irony of the day comes from Florida and Indiana. The litigant who is trying to kill off Indiana’s voter ID law ...appears to have broken the law by registering to vote in both Indiana and Florida, and by claiming homestead tax exemption in both states.

At the Charlotte County, Fla. voter registration office, Sandy Wharton, vote qualifying office manager, said Ewing registered to vote in Charlotte County on Sept. 18, 2002, and signed an oath that she was a Florida resident and understood that falsifying the voter application was a third-degree felony punishable by prison and a fine up to $5,000. Wharton said her office checked Ewing’s Florida residency and qualified her on Oct. 2, 2002. On Oct. 4, 2002, they mailed her Florida voter card to her, to the West Lafayette, Ind. address that Ewing gave as a mailing address.

However, Ewing didn’t vote in Florida that year, nor has she ever voted in Charlotte County, Wharton said. But, just a month after receiving her Florida voter card, she did vote in the November 2002 elections in Tippecanoe County, Ind., according to Heather Maddox, co-director of elections and registration in Tippecanoe.

Ewing confirmed that she is registered in both states to vote, but at first said the Florida registration came automatically with her driver’s license. She repeatedly denied signing the oath on the Florida application. She also said Indiana mailed her an absentee ballot, but she didn’t use it or vote that year.

However, Heather Maddox, co-director of election registration in Tippecanoe County, said Ewing voted in Indiana in 2002, 2003 and 2004, before the Indiana ID law took effect in 2005.

When informed that the Florida voter office said she’d registered personally in 2002 for a Florida voter card, and that this newspaper had a copy of her application, Ewing said, “Well, why did I do that? I¹m confused. I can’t recall.” She reiterated that, even though she’s registered in two states, she only votes in Indiana, adding that she does have a car plated in Florida.

That doesn’t satisfy Florida officials.

“She can only be registered to vote in the place where she claims residency,² Wharton said. “You can’t be registered in two states. She has to claim one place or the other.”

Can you say "Unclear on the concept", boys and girls?

I knew that you could.

Via bthun.

Posted by Cassandra at 08:34 AM | Comments (20) | TrackBack