Multi Medium

Thank You, L.A.!

For not electing an insane white supremacist to the judiciary.

Or Richard Nixon.

(h/t kirk murphy)

Add comment June 4th, 2008 at 11:17am Posted by Eli

Just What L.A. Needs…

Oh. My. God.

If you ever just pick a judicial candidate randomly at the polling place– I mean who really knows one from the other, right– I hope that after you read this, you’ll never do it again. On page 7 of the Los Angeles “Official Sample Ballot” for next Tuesday’s primary is a race for Judge of the Superior Court (Office number 125). The contest hasn’t gotten any publicity. But I want you to read this:

“No person shall be a citizen of the United States unless he is a non-Hispanic white of the European race, in whom there is no ascertainable trace of Negro blood, nor more than one-eighth Mongolian, Asian, Asia Minor, Middle Eastern, Semitic, Near Eastern, American Indian, Malay or other non-European or non-white blood, provided that Hispanic whites, defined as anyone with an Hispanic ancestor, may be citizens if, in addition to meeting the aforesaid ascertainable trace and percentage tests, they are in appearance indistinguishable from Americans whose ancestral home is in the British Isles or Northwestern Europe. Only citizens shall have the right and privilege to reside permanently in the United States.”

The man who wrote that– a proposed constitutional amendment– is asking for our votes for the Superior Court. His name– well he has many names– is Bill Johnson. He also goes by the names William Daniel Johnson, Daniel Johnson and James O. Pace. He’s an attorney, a Mormon, and, as you may have concluded, a white supremacist (and Ron Paulista). The paragraph comes from his 1985 book, Amendment to the Constitution– Averting The Decline And Fall Of America in which he urges the repeal of the 14th (which defines citizenship as well as due process and equal protection under the law) and 15th (which guarantees voting rights for all citizens) Amendments. He advocates deporting tens of millions of Americans within one year. That would include… well, read his little amendment again. American Indians, Eskimos, Hawaiians won’t be citizens but they’ll have to live on reservations.

(…)

This isn’t Johnson’s first bid for elective office. When Dick Cheney resigned from Congress to become Secretary of Defense in 1989, Johnson ran for his House seat in Wyoming. He didn’t win although a GOP front group publication, All the Way, strongly backed him.

The strongest pro-majority campaign in the nation is mounting here with far-reaching implications. Congressional candidate Daniel Johnson is being blasted as a ‘white supremacist’ because he favors repatriating non-whites to Africa and scrapping affirmative action programs.

People can be so unfair sometimes.

Aside from being active in Ron Paul’s campaign, he is also a Minuteman activist and exactly the kind of person made to feel empowered by CNN resident xenophobe Lou Dobbs. Johnson’s campaign manager, Holly Clearman is also state coordinator for the Ron Paul for President campaign and is herself is a candidate for the Republican L.A. County Central Committee. They are counting on Paulistas to put him over the top. Fortunately, there are legal community newspapers that actually do the research on judicial candidates. In L.A. we have the Metropolitan News Enterprise, which dug up a lot of the facts on Johnson’s multiple identities.

Oops, looks like Paul withdrew his endorsement, but it might be (conveniently) a little late.

Um, if you’re in L.A., please don’t vote for the crazy racist man, and tell all your hip L.A. friends not to vote for him either.

1 comment May 29th, 2008 at 11:38pm Posted by Eli

The #1 Reason We Need A Democratic President

Judiciary, Judiciary, Judiciary.

Al Kamen provides some perspective on just how imbalanced the courts are right now, and how much worse SCOTUS could be four years from now if McCain becomes president:

The next president will find the federal bench solidly controlled by the GOP, with about 100 Republicans in appeals court seats, compared with approximately 66 Democrats. Republicans have a 56 percent majority at the trial court level.

At least for the first couple of years, [the next president] would probably find the number of Republican retirees far outnumbering Democrats. Forty-six of the 53 longest-serving appeals judges are GOP appointees. [A Democratic president] would have a golden opportunity to replace them with liberal court-abusers. McCain, at least for a chunk of his first term, would only be treading water.

(…)

But there would be a huge silver lining for President McCain. He might have the chance to solidify GOP control of the big prize, the Supreme Court, for many years to come. The senior liberal, Justice John Paul Stevens, just turned 88, although he’s still golfing and, we hear, maybe playing a little tennis.

A second liberal opening might come from Justice Ruth Bader Ginsburg, who is 75. McCain also might be able to replace conservative justices Antonin Scalia, 72, and Anthony Kennedy, 71, with younger Republicans. If everything worked out, McCain could create a court with a seven-member conservative majority whose oldest member would be Clarence Thomas, who turns 60 next month.

Every Democrat and progressive should be scared to death by this possibility.  Even if McCain were held to a single term, followed by the Democrats hammerlocking the White House and the Congress for the next 30 years, they could still be overruled at every turn by an unabashedly right-wing Supreme Court, with absolutely no recourse. Roe v. Wade: gone.  Affirmative action: gone.  Employee protections against discrimination, abuse, injury and death: gone.

Any questions on campaign finance, voting rights, or electronic voting machines would be decided in favor of the GOP.  But torture would be okay, just so long as the victims haven’t been convicted of anything.

And that’s just what IWANAL (I Who Am Not A Lawyer) can think of off the top of my head.  I’m sure I haven’t even scratched the surface of what kind of havoc an all-wingnut Supreme Court could wreak.

But if, God forbid, John McCain does become president, I have two specific requests to make of Senate Democrats that might hopefully reduce the damage a little bit:

1) Please remember that judgeships are lifetime appointments, so don’t worry about comity or deference to presidential prerogative.  If you screw up, we all have to live with it for the next 30 or 40 years.  (I feel obliged to point out that life expectancy is quite a bit longer now than it was when the Constitution was written…)

2) Place more weight on the nominee’s judicial history and less weight on their evasive-at-best-dishonest-at-worst responses to your questions.  If they’ve been a right-wing judge all their life, that’s not going to change when they get a promotion.

Yeah, we’d still have a conservative judiciary, but at least some of those judges would choose the law over ideology every once in a while.

(h/t Peterr & dakine)

1 comment May 9th, 2008 at 08:28pm Posted by Eli

For Those Of You Who Refuse To Vote For Obama (Or Hillary) In November

Just a little helpful reminder:

Republican presidential candidate John McCain said on Tuesday he would appoint judges in the mold of conservatives John Roberts, Samuel Alito and former Chief Justice William Rehnquist if he were elected in November.

In an excerpt from a speech McCain was to give in Winston-Salem on Tuesday, the Arizona senator said he would “look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint.”

“I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist — jurists of the highest caliber who know their own minds, and know the law, and know the difference,” McCain said.

John Paul Stevens would be 92 at the end of President McCain’s first term, and Ruth Bader Ginsberg would be 79.  So if you like the idea of having wingnuts solidly in control of the Supreme Court for the next 20-30 years, then by all means, stay home or vote for McCain on Election Day.

Add comment May 6th, 2008 at 11:35am Posted by Eli

After The Lovings

Another American hero gone:

Mildred Loving was a black woman who married a white man in Virginia, which was against the law in the state. She took her case all the way up to the Supreme Court, which struck down interracial marriage bans in the 1967 Loving v. Virginia decision. Today it was announced that she has died at the age of 68. But what her AP obituary doesn’t mention—hopefully others will correct the oversight—is that last year Mildred Loving came out foursquare for marriage equality for same-sex couples as well, and insisted you should, too. Here was her statement:

We didn’t get married in Washington because we wanted to marry there. We did it there
because the government wouldn’t allow us to marry back home in Virginia where we
grew up, where we met, where we fell in love, and where we wanted to be together and
build our family. You see, I am a woman of color and Richard was white, and at that
time people believed it was okay to keep us from marrying because of their ideas of who
should marry whom.

When Richard and I came back to our home in Virginia, happily married, we had no
intention of battling over the law. We made a commitment to each other in our love and
lives, and now had the legal commitment, called marriage, to match. Isn’t that what
marriage is?

Not long after our wedding, we were awakened in the middle of the night in our own
bedroom by deputy sheriffs and actually arrested for the “crime” of marrying the wrong
kind of person. Our marriage certificate was hanging on the wall above the bed.

The state prosecuted Richard and me, and after we were found guilty, the judge declared:
“Almighty God created the races white, black, yellow, malay and red, and he placed
them on separate continents. And but for the interference with his arrangement there
would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” He sentenced us to a year in prison, but offered to suspend the sentence if we left our home in Virginia for 25 years exile.

We left, and got a lawyer. Richard and I had to fight, but still were not fighting for a
cause. We were fighting for our love.

Though it turned out we had to fight, happily Richard and I didn’t have to fight alone.
Thanks to groups like the ACLU and the NAACP Legal Defense & Education Fund, and
so many good people around the country willing to speak up, we took our case for the
freedom to marry all the way to the U.S. Supreme Court. And on June 12, 1967, the
Supreme Court ruled unanimously that, “The freedom to marry has long been recognized
as one of the vital personal rights essential to the orderly pursuit of happiness by free
men,” a “basic civil right.”

(…)

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that
I don’t think of Richard and our love, our right to marry, and how much it meant to me to
have that freedom to marry the person precious to me, even if others thought he was the
“wrong kind of person” for me to marry. I believe all Americans, no matter their race, no
matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over
others. Especially if it denies people’s civil rights.

I am still not a political person, but I am proud that Richard’s and my name is on a court
case that can help reinforce the love, the commitment, the fairness, and the family that so
many people, black or white, young or old, gay or straight seek in life. I support the
freedom to marry for all. That’s what Loving, and loving, are all about.

Two things jump out at me here:

1) Mildred Loving is awesome, and she recognizes that prohibiting same-sex marriages now is the same kind of injustice as preventing mixed-race marriages was then.

2) Since when is “God created the races separate” any kind of recognizable or acceptable legal argument?  I thought our system of law was supposed to be based on the Constitution and not the Bible.  I wish there were a way to remove judges when they demonstrate themselves to be manifestly unqualified or unfit for their positions.

2 comments May 5th, 2008 at 09:31pm Posted by Eli

Libby Judge Misses Signal

Dubya was sending a message all right, but not the one Reggie Walton thinks:

When President Bush erased the prison term of I. Lewis “Scooter” Libby, he reinforced some Americans’ perception that status can affect justice, according to the judge who sentenced Libby.

(…)

Walton, whom Bush nominated to the District of Columbia bench, acknowledged Tuesday that Bush’s decision was part of the system, but he also said it fed some people’s notion that justice isn’t equal.

(…)

“The downside is there are a lot of people in America who think that justice is determined to a large degree by who you are and that what you have plays a large role in what kind of justice you receive. . . . It is crucial that the American public respect the rule of law, or people won’t follow it.”

That was not the message Dubya sent at all (besides, it’s not like anyone needed him to spell it out for them).  No, his message was that if you break the law on his behalf, he’ll see to it that you’re untouchable.

If it’s not a pardon, it’s the all-purpose handy-dandy shield of Executive Privilege, or State Secrets.  Even if they’re completely groundless, they can be used to drag the congressional investigation process out until the Democrats give up and the public forgets, or until the next president takes office. (Yes, I’m assuming that that will be Congress’s cue to drop all pending investigations - you got a problem with that?)

So if he ever asks you to break the law for him, you should totally do it ‘cuz he’s got your back.  Too bad he’s having trouble getting Congress to help out his telecom buddies…

(h/t Twolf)

3 comments April 30th, 2008 at 11:10pm Posted by Eli

Key Fact About Indiana Photo IDs

They’re free.

Factually, the state of Indiana had a few good things going for it. The District Court made a number of factual findings that strengthened its case (although, for the reasons set out in Justice Souter’s opinion, still not to the point I would have swallowed it). For example, the District Court “found that petitioners had “not introduced evidence of a single, individual Indiana resident who will be unable to vote as a result of [the Indiana Law] or who will have his or her right to vote unduly burdened by its requirements.” Furthermore, the District Court found that 99% of voting-age public had a driver’s license. So the number of potentially harmed people was low. (While opinions differ as to whether this fact should matter in a facial challenge — 1% of voters is still high — it won’t be an issue in an as-applied challenge.)

And, one key fact of future significance is that the state offers all citizens a free photo ID. That allowed the three Justices in the lead opinion to distinguish this case from a poll tax. Many other states charge for non-driver photo ID — such as Florida for example. I read this decision to suggest pretty strongly that there are six votes for the proposition that any state which charges for photo ID cannot constitutionally require that voters show a photo ID in order to vote, as this would in effect be a poll tax. (I hope this result doesn’t get lost in the lower court shuffle that is sure to follow.)

This is still not an ideal ruling by any stretch of the imagination, as even the hassle of getting even a free photo ID, especially if there aren’t any DMV offices nearby - but at least it sounds like it makes the photo ID requirement dependent on said IDs being free.  Which should dilute their ability to function as a stealth poll tax.

I wonder: Could the same grassroots organizations that give people rides to the polls also give people rides to the DMV to get their photo ID?  It shouldn’t be at all hard to raise gas money, right?

1 comment April 28th, 2008 at 07:06pm Posted by Eli

Another Kind Of Pre-Emptive War

Only this one is against the consumer:

For years, Johnson & Johnson obscured evidence that its popular Ortho Evra birth control patch delivered much more estrogen than standard birth control pills, potentially increasing the risk of blood clots and strokes, according to internal company documents.

But because the Food and Drug Administration approved the patch, the company is arguing in court that it cannot be sued by women who claim that they were injured by the product — even though its old label inaccurately described the amount of estrogen it released.

This legal argument is called pre-emption. After decades of being dismissed by courts, the tactic now appears to be on the verge of success, lawyers for plaintiffs and drug companies say.

The Bush administration has argued strongly in favor of the doctrine, which holds that the F.D.A. is the only agency with enough expertise to regulate drug makers and that its decisions should not be second-guessed by courts. The Supreme Court is to rule on a case next term that could make pre-emption a legal standard for drug cases. The court already ruled in February that many suits against the makers of medical devices like pacemakers are pre-empted.

More than 3,000 women and their families have sued Johnson & Johnson, asserting that users of the Ortho Evra patch suffered heart attacks, strokes and, in 40 cases, death. From 2002 to 2006, the food and drug agency received reports of at least 50 deaths associated with the drug.

Documents and e-mail messages from Johnson & Johnson, made public as part of the lawsuits against the company, show that even before the drug agency approved the product in 2001, the company’s own researchers found that the patch delivered far more estrogen each day than low-dose pills. When it reported the results publicly, the company reduced the numbers by 40 percent.

The F.D.A. did not warn the public of the potential risks until November 2005 — six years after the company’s own study showed the high estrogen releases. At that point, the product’s label was changed, and prescriptions fell 80 percent, to 187,000 by last February from 900,000 in March 2004.

(…)

A series of independent assessments have concluded that the agency is poorly organized, scientifically deficient and short of money. In February, its commissioner, Andrew C. von Eschenbach, acknowledged that the agency faces a crisis and may not be “adequate to regulate the food and drugs of the 21st century.”

The F.D.A. does not test experimental medicines but relies on drug makers to report the results of their own tests completely and honestly. Even when companies fail to follow agency rules, officials rarely seek to penalize them. “These are scientists, not cops,” said David Vladeck, a professor at Georgetown Law School.

So, in other words, the pharma companies would get off scot-free because the FDA approved their dodgy drugs… and the FDA’s oversight capability has been so gutted and crippled by the Bush administration (where have we heard that before) that it would approve pure arsenic if Johnson & Johnson told it their lab tests looked brilliant.

If the FDA is forced to rely on the drug companies to provide honest test results, then the drug companies should be 100% liable if they falsified those tests to get approval.  Period.  Either that, or the Bush administration should be liable for turning the FDA into an ineffectual joke.

(h/t Elliott)

2 comments April 6th, 2008 at 11:40am Posted by Eli

Question Of The Week

John Yoo, 3/14/03 torture memo:

“…The Eighth Amendment… applies solely to those persons upon whom criminal sanctions have been imposed. As the Supreme Court has explained, the “‘Cruel and Unusual Punishment Clause’ was designed to protect those convicted of crimes… The Eight Amendment thus has no application to those individuals who have not been punished as part of a criminal proceeding, irrespective of the fact that they have been detained by the government… The Eighth Amendment therefore cannot extend to the detention of wartime detainees, who have been captured pursuant to the President’s power as Commander in Chief…”

“The detention of enemy combatants can in no sense be deemed ‘punishment’ for purposes of the Eight Amendment… Indeed, it has long been established that captivity in wartime is neither a punishment nor an act of vengeance, but merely a temporary detention which is devoid of all penal character…”

Tony Scalia, 2/12/08 BBC interview:

To begin with, the constitution refers to cruel and unusual punishment, it is referring to… cruel and unusual punishment for a crime. But a court can do that when a witness refuses to answer or commit them to jail until you will answer the question — without any time limit on it, as a means of coercing the witness to answer, as the witness should. And I suppose it’s the same thing about “so-called” torture.

Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited under the Constitution? Because smacking someone in the face would violate the 8th amendment in a prison context. You can’t go around smacking people about. Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to this society? It’s not at all an easy question, to tell you the truth.

Did Yoo and Scalia come up with this torture-is-okay-as-long-as-they-haven’t-been-convicted-of-anything angle independently, or did someone pass the idea to or between them?

Makes one wonder just what Dick and Tony might have talked about on those hunting trips, eh?

Add comment April 4th, 2008 at 09:55pm Posted by Eli

How Conveeeenient.

I don’t like this at all:

Apparently even the cease-and-desist letters sent to sites to inform them to stop violating copyrights are now - copyrighted.

TechDirt is reporting an update to a case they first covered back in October where a lawyer tried to claim his cease-and-desist letters fell under a copyright, and thus no one could legally reprint them without his express permission. The people’s advocacy group, Public Citizen, saw this as a violation of the First Amendment of the US Constitution, and moved to stop it.

Yet from the look of a press release put out yesterday by the lawyer in question, it seems the judge agreed the man’s claim. The publication of a letter can now result statutory damages for as much as $150,000 per occurrence plus attorneys’ fees that can average $750,000 through trial.

Ya know, I’m not a lawyer or a psychic, but I’m pretty sure that cease-and-desist letters were not the kind of intellectual content that copyright law was written to cover. In fact, this doesn’t really look like the protection of intellectual content at all, so much as protection against embarrassment and exposure for sleazy lawyers and their clients who use C&D letters to harass and intimidate.

It’s just a theory.

(h/t Caro Kay)

Add comment January 28th, 2008 at 11:45pm Posted by Eli

Strategery

The Leslie Southwick Saga continues:

While it appears increasingly likely that the Senate will punt a vote on the controversial appellate court nomination of Leslie Southwick until at least after the October recess, Republican leaders are still eyeing the possibility of a roll call this week and are igniting a wholesale lobbying campaign to try to come up with 60 votes to win his confirmation.

As part of the effort, a key group of GOP Senators and at least one Democrat will huddle today to talk strategy and gauge support for the 5th U.S. Circuit Court of Appeals hopeful. At the same time, Southwick himself has begun holding a series of private meetings with a handful of Democratic Senators whom the White House has targeted as possible swing votes.

“We are preparing for a vote this week based on the things [Majority Leader Harry] Reid [D-Nev.] has said,” noted one senior Republican Senate aide. “We’re still working, but confident.”

Reid earlier had indicated he would hold a confirmation vote on the divisive nominee before the brief October recess, which begins Friday. But Democrats close to Reid said Monday the Majority Leader has no plans to add the nomination to the calendar unless and until GOP Senators ask for it.

“From everything we can see, Republican Senators are still trying to shore up their votes,” said a high-level Democratic Senate staffer. “The fact is, the Republicans aren’t pressing for a vote. They need more time and we understand they are looking for more time to work on improving their vote total.”

Republicans acknowledge they still are trying to corral the votes they need to avert a filibuster and install Southwick, a former Mississippi appeals court judge, to a lifetime appointment on the New Orleans-based federal bench. But GOP sources also pointed out Monday that Reid, as the Majority Leader, controls the calendar and ultimately will decide when votes are cast.

So let me get this straight: Reid’s Cunning Plan is to… give the Republicans all the time they want to pull together the votes to break the filibuster and get yet another crazy wingnut appointed to a lifetime term on the federal bench?

The Democratic leadership must be either incredibly stupid, or so incredibly smart that I am simply unable to grasp the myriad subtle nuances of their complex, yet brilliant strategy.

I’m pretty sure it’s the stupid.

(h/t Stoller)

Add comment October 3rd, 2007 at 07:45am Posted by Eli

I’ll Take The Dissenter Over The Decider Any Day

The NYT Sunday Magazine has a fascinating profile of 87-year-old Justice John Paul Stevens. Among other things, we learn that:

• He considers himself a conservative.

• He speaks in italics. Like, a lot.

• The major elements of his judicial philosophy have all been shaped by important events and cases in his pre-Supreme Court life.

• He has absolutely no desire to retire, thank God.

And then there’s this:

Stevens’s work on the Commission of 1969 brought him to the attention of Senator Charles Percy of Illinois, a moderate Republican who had decided to promote merit appointments to the federal bench instead of political cronies or ideologues. On Percy’s recommendation, President Nixon appointed Stevens to the U.S. Court of Appeals in Chicago in 1970. And five years later, when President Ford was looking for a replacement for Justice William O. Douglas, a liberal icon, in the wake of the Watergate scandal, he, too, decided to emphasize merit and competence over ideology or cronyism. Rejecting the advice of Barry Goldwater, who urged him to appoint the archconservative Robert Bork, and of his wife, Betty, who urged him to choose a woman, Ford chose Stevens as “the finest legal mind I could find.” The Senate enthusiastically agreed, by a vote of 98 to 0.

As a sign of how significantly the Republican Party has changed since 1975, President Ford, until the end of his life, embraced Stevens’s jurisprudence even as a younger generation of Republicans was denouncing it. In a warm tribute to Stevens in 2005, Ford wrote, “I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal cases and on the constitution’s broad grant of regulatory authority to Congress.” I asked Stevens what he thought of Ford’s letter. “It was amazing to see that,” Stevens said, grinning like a proud schoolboy. “I was delighted, as I’m sure you understand.”

*wistful sigh*

Oh, for the good old days.

Add comment September 24th, 2007 at 11:54am Posted by Eli

Nan Aron Puts A Finger On It

Nan Aron hits all the highlights on the Leslie Southwick nomination:

Sen. Richard Durbin asked Southwick whether he could think of one example of an unpopular decision he had made in favor of the powerless, the poor, minorities or the dispossessed. The judge said he could not.

(…)

A nominee’s record is the best predictor of what he or she will do on the bench. Southwick’s record predicts that those in the 5th Circuit’s jurisdiction have much to fear regarding their legal rights and protections. Moreover — and overlooked by The Post — the patterns in Southwick’s record fit this administration’s pattern of behavior. For with the assistance of conservative activists, allies in the Senate and in well-funded interest groups, and the amen chorus of commentators such as Will, George W. Bush has appointed a succession of appellate judges who will serve his administration’s ideological agenda long after he has left office.

With the regrettable votes of Sen. Dianne Feinstein and all the Judiciary Committee Republicans, Leslie Southwick’s nomination has progressed to consideration by the full Senate. The senators who lamented their inability to block Chief Justice John Roberts and Justice Samuel Alito must take a stand. They’re the last line of defense between our third branch of government and the Bush administration’s court-packing program. Rather than voting their hopes, as some Democrats have in the past, they must vote according to the facts at hand.

(…)

We cannot let this administration pack our courts with judges who share its disrespect for law and lack of compassion for the powerless. These nominees have turned their backs on our most fundamental rights and freedoms. The Senate should turn its collective back on Leslie Southwick and those like him.

I will bet cash money that Reid makes no attempt to block the nomination, and that Schumer does not lead a charge for a filibuster, and that the usual “centrist” suspects (Lieberman, Landrieu, Pryor, Feinstein, Nelsons) vote to confirm.

The useless Democratic leadership has shown little appetite for opposition, and I see no reason to expect them to work one up here.

Add comment August 21st, 2007 at 11:46am Posted by Eli

Live Free Of DiFi

What is DiFi’s problem??? I just don’t get it. She’s a Senator for one of the most liberal states in the entire country, and she votes in favor of another one of Bush’s insane reactionaries for the judiciary? What possible rationale could she have for this?

It’s not like she’s a red-state Senator who can claim that she’s only trying to represent her constituents and ensure re-election. I have lost ALL patience for these worthless “centrist” Democrats who believe that Dubya is entitled to nominate whoever he wants to the judiciary for life. Especially now that we’re seeing just how much damage the Roberts Court is inflicting. Hell, even Chuck Schumer has issued a (probably insincere) mia culpa for facilitating its creation.

Can we please start getting rid of Democrats who are not Democrats?

2 comments August 2nd, 2007 at 08:00pm Posted by Eli

Clarence Thomas Hates Integration

NYT has an interesting story on Clarence Thomas’ opposition to integration and affirmative action:

When Justice Clarence Thomas provided a pivotal vote last month as the Supreme Court struck down school integration plans in Louisville, Ky., and Seattle, he suggested the concept of integration was inherently demeaning to black children because it implied they needed to mix with whites to achieve excellence.

(…)

Justice Thomas joined in a 5-to-4 majority on June 28 ruling that integration plans put in place by officials in Seattle and Louisville violated the Constitution’s guarantee of equal protection. In writing a separate concurrence, he dismissed the notion of the court’s minority that “racially balanced schools improve educational outcomes for black children.” He said that, “In reality, it is far from apparent that coerced racial mixing has any educational benefits, much less that integration is necessary to black achievement.”

Those views parallel many made by Justice Thomas going back to a comment he made to an interviewer in 1991, in which he said: “We are not beggars or objects of charity. We don’t get smarter just because we sit next to white people in class, and we don’t progress just because society is ready with handouts.”

As he has in the past, Justice Thomas last month argued that black children had achieved great success in what he called “racially isolated” schools before the landmark ruling, Brown v. Board of Education in 1954.

In the context of higher education, Justice Thomas said earlier that affirmative action programs cruelly deceived black students admitted to elite law schools under special programs who then found that they could not compete.

“These overmatched students take the bait,” he wrote in 2003, “only to find they cannot succeed in the cauldron of competition.”

(…)

Christopher Edley Jr., the dean of the law school at the University of California, Berkeley, said no one had seriously argued that just putting black children alongside white children made them learn better.

“The central claim for integration today is aspirational,” Mr. Edley said. “How do we build a society that is free of the poisons of color?”

Mr. Edley, who served in the Clinton and Carter administrations and on the U.S. Commission on Civil Rights, argued that “public education is the single best opportunity to promote understanding across our most dangerous divisions.” He said Justice Thomas’s views provided “shelter” for his fellow conservative justices who wanted to end all efforts at maintaining diversified schools.

Two things here that I find interesting.

1) Thomas says that black kids are plenty smart, and don’t need to go to white schools, and yet he also says that black students are “overmatched” when they get into law school via affirmative action. So which is it?

2) Thomas misrepresents or misinterprets the purpose of integration as being somehow academic rather than social. It’s as if he doesn’t even recognize interracial understanding as a worthwhile goal. I dunno, maybe he thinks we’ve already achieved it…

3 comments July 9th, 2007 at 11:19am Posted by Eli

Don’t Really Need To Read It Now…

The blurb says it all:

Conservatives have forgotten that they are opposed to judicial activism.

I went ahead and read it anyway, and there was some good stuff in there:

The Supreme Court told Seattle and Louisville, and hundreds more cities and counties, last month that they have to scrap their integration programs. There is a word for judges who invoke the Constitution to tell democratically elected officials how to do their jobs: activist.

President Bush, who created the court’s conservative majority when he appointed Chief Justice John Roberts and Justice Samuel Alito, campaigned against activist judges, and promised to nominate judges who would “interpret the law, not try to make law.” Largely because of Chief Justice Roberts and Justice Alito, the court has just completed one of its most activist terms in years.

The individuals and groups that have been railing against judicial activism should be outraged. They are not, though, because their criticism has always been of “liberal activist judges.” Now we have conservative ones, who use their judicial power on behalf of employers who mistreat their workers, tobacco companies, and whites who do not want to be made to go to school with blacks.

(…)

The school integration ruling was the most activist of all. The campaign against “activist judges” dates back to the civil rights era, when whites argued that federal judges had no right to order the Jim Crow South to desegregate. These critics insisted they were not against integration; they simply opposed judges’ telling elected officials what to do.

This term, the court did precisely what those federal judges did: it invoked the 14th Amendment to tell localities how to assign students to schools. The Roberts Court’s ruling had an extra fillip of activism. The civil rights era judges were on solid ground in saying that the 14th Amendment, which was adopted after the Civil War to bring former slaves into society, supported integration. Today’s conservative majority makes the much less obvious argument that the 14th Amendment protects society from integration.

(…)

The conservative activism that is taking hold is troubling in two ways. First, it is likely to make America a much harsher place. Companies like Philip Morris will be more likely to injure consumers if they know the due process clause will save them. Employees will be freer to mistreat workers like Lilly Ledbetter, who was for years paid less than her male colleagues, if they know that any lawsuit she files is likely to be thrown out on a technicality.

(…)

The other disturbing aspect of the new conservative judicial activism is its dishonesty. The conservative justices claim to support “judicial modesty,” but reviews of the court’s rulings over the last few years show that they have actually voted more often to overturn laws passed by Congress - the ultimate act of judicial activism - than has the liberal bloc.

It is time to admit that all judges are activists for their vision of the law. Once that is done, the focus can shift to where it should be: on whose vision is more faithful to the Constitution, and better for the nation.

The anti-”judicial activism” Republicans are hypocrites, Roberts and Alito are liars, and the Democrats who voted to confirm them are fools.

1 comment July 9th, 2007 at 07:33am Posted by Eli

Maybe Shouldn’t Have Announced These On The Same Day…

Shorter Supreme Court, Part 1: Free speech is awesome! Always err on the side of free speech!

By 5 to 4, the court ruled that an anti-abortion group in Wisconsin should have been allowed to broadcast ads before the 2004 race for the United States Senate in that state. In its ruling today, the high court opened a significant loophole in the Bipartisan Campaign Reform Act of 2002, familiarly known as the McCain-Feingold law, to curb donations to campaigns.Writing for the majority, Chief Justice John G. Roberts Jr. said that, when regulating what can be said in a campaign and when it may be said, “the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.”

Shorter Supreme Court, Part 2: Free speech is dangerous! When in doubt, always clamp down on free speech!

In another 5-to-4 ruling involving free speech, the court ruled today against an Alaska high school student, finding that educators can prohibit student expression that can be interpreted as advocating drug use.

(…)

In the Alaska case involving free speech, the court found that a high school principal and school board did not violate a student’s rights by punishing him for displaying the words “Bong Hits 4 Jesus” on a banner across the street from the school as the 2002 Olympic torch parade went by.

When the case was argued on March 19, Kenneth W. Starr argued - successfully, as it turned out - on behalf of the school authorities that, whatever rights students may have to express themselves, thumbing their noses at school officials’ anti-drug messages is not one of them.

Huh. How about that. I guess corporations have much stronger free-speech rights than students or ordinary citizens. Good to know.

Add comment June 25th, 2007 at 07:19pm Posted by Eli

No-One Could Have Anticipated…

That Dubya would appoint dishonest ideologues to the Supreme Court. On the other hand, thank God we finally have a Supreme Court willing to overturn the work of all those activist judges who came before them, right?

The definitive quote about our judiciary comes from Thurgood Marshall, just hours before he retired:

Power, not reason, is the new currency of this court’s decision making.

Which I interpret as referring to the Supreme Court’s sometime tendency to decide cases on the basis of its political composition, rather than on any actual legal reasoning or honest interpretation of the Constitution. This is why I favor requiring a supermajority to confirm federal judges, especially to the Supreme Court: The courts should be composed of high-caliber moderates who strive to be fair and honest, not partisans seeking to repay their patrons or advance an agenda.

2 comments June 21st, 2007 at 07:15pm Posted by Eli

Lawlessness

Sidney Blumenthal has a great Salon piece about the complete collapse of the Bush Administration’s constitutional legitimacy.

But the sad fact is, it doesn’t seem to faze anyone. It’s certainly not slowing Dubya down, and I sure haven’t seen it as a narrative in the media, or even very much from the Democratic establishment. Disappointing, but not surprising.

Add comment June 21st, 2007 at 11:21am Posted by Eli

Subpoenirony

So, let’s say that the Bush administration intends to fight Rove and Miers’ Congressional subpoenas all the way up to the Supreme Court.

Wouldn’t it be rich if they simultaneously ensured that:

A) No presidential aide could ever be subpoenaed to testify against their will, and:

B) The Republicans don’t get the chance to benefit from this precedent again for the next 20-30 years?

3 comments March 20th, 2007 at 07:54pm Posted by Eli

This Surprises… No-One.

Hey, guess what!

The fired U.S. attorney in New Mexico says he was pressured by two members of Congress prior to the November elections about the pace of an ongoing public corruption probe that targets local Democrats.

David C. Iglesias — who is leaving today after more than five years in office — said he received separate calls in October from two federal lawmakers, whom he declined to identify. Iglesias said he suspects the episode led the Justice Department to include him in a wave of firings of federal prosecutors late last year.

“They were fishing around for information in terms of the status of the investigation,” Iglesias said in an interview, referring to the lawmakers. “They were fishing around for a timetable. Those are things I’m prohibited from talking about.”

Iglesias said the callers seemed focused on whether indictments in the case might be issued prior to the elections.

“I didn’t give them what they wanted,” Iglesias said. “That was probably a political problem that caused them to go to the White House or whomever and complain that I wasn’t a team player.”

(…)

…Iglesias said the two lawmakers called him about a well-known criminal probe involving a Democratic legislator. He declined to provide their party affiliation, but suggested by his comments that the callers were Republicans. [No shit.]
Local media outlets reported last year that the FBI and Iglesias’s office had opened a probe into allegations involving a former longtime Democratic state senator, Manny Aragon, and government construction projects in Bernalillo County. No charges have been issued in the case.

Iglesias said the phone calls made him feel “pressured to hurry the subsequent cases and prosecutions,” but he also said he did not receive similar contacts from anyone in the executive branch. He also said he made a mistake by not reporting the calls to the Justice Department as “inappropriate contacts.” Now he believes the contacts lie at the root of his firing.

“I suspect that was the reason I was asked to step down, but I don’t know that I’ll ever know,” Iglesias said.

Now watch the Bushies say that he was fired for not contacting the Justice Department about the phone calls.� Because they’re so by-the-book about the law and proper procedure and stuff.

Even if Iglesias is wrong about the reason for his firing, that does not erase the fact that Republican congressmen were pressuring him to use an indictment as a political weapon, and I sure would like to see them get called on that.� Not sure why he would withhold their names - I guess it would be actionable if he were to name names on an accusation like that, unless he had solid proof, like a recording.

3 comments February 28th, 2007 at 07:22pm Posted by Eli

Initiate Craw Ejection Sequence

Just a couple of things that are still stuck in my craw about the CT Democratic primary:

1) Planned Parenthood’s media person explaining to CT Bob, apparently with a straight face, that they had no way of factoring Lieberman’s cloture vote on Alito into their “report card.” This is not just another vote that you factor into an overall rating. This is a lifetime appointment to the Supreme Court. If you are a single-issue, pro-choice organization, you should be launching a full-court press as soon as you realize that Bush has nominated a staunch pro-lifer. You should be leaning on every single senator you have influence with. This should be Thing One on your radar, and you should consider any betrayal to be a huge deal, not a minor and insurmountable bookkeeping challenge. The lack of seriousness and commitment that Planned Parenthood (and NARAL) display toward their own cause is just stupefying.

2) Apparently whenever Lieberman is running for re-election, he polls every single day (link by way of Jane). This means that he should be well aware that his Democratic constituents are fed up with his lack of representation. And yet, he always responds with inept campaign maneuvering, never with attempts to improve his quality of representation. And assuming he polls some when he’s not campaigning, he’s pretty obviously ignoring his constituents then, too. Or else he’s not polling at all, in which case he doesn’t even care what they think when it’s not election time. In either case, it is just further proof that Lieberman cares a lot more about hanging on to his job than he does about actually doing it.

3) Despite all his bragging in the debate about how much pork he’s brought home to CT with his Valuable Seniority, CT is ranked second-to-last in pork per capita (link via ifthethunderdontgetya). Now consider how many times Lieberman has helped out the Republican majority - surely he should have been able to call in some favors for his state in exchange for selling out his party? And yet, it looks like he didn’t even try. Either he believes so strongly in the Republican cause that he has supported it out of the goodness of his heart, or else he’s hoarding those Republican markers for election season, so he can cash them in on behalf of his true constituency: Joe Lieberman.

3 comments July 13th, 2006 at 06:38am Posted by Eli

NARAL Or Never

Sigh.

Jane at firedoglake has a couple of great posts up about two huge national pro-choice organizations, Planned Parenthood and NARAL, both of whom have inexplicably chosen to endorse Joe Lieberman in his primary against Ned Lamont. Remember, this is the same Joe Lieberman who voted against the filibuster of pro-life Samuel Alito’s Supreme Court confirmation, and the same Joe Lieberman who said that it would not be a big deal if a Catholic hospital denied an abortion to a rape victim because it would just be a “short ride” to a more… accommodating hospital. Even the heads of the Planned Parenthood and NARAL’s CT organizations voted for Ned Lamont in the state Democratic convention.

This is as amazing as it is appalling. PP and NARAL are single-issue organizations. They are supposed to be all about a woman’s right to choose. Any time you have a single-issue organization, or blog, or individual, you expect them to be adamantine and unyielding about their one pet issue. For example, if Lincoln Chafee voted to end the filibuster of an anti-gun Supreme Court nominee, but then voted against confirmation, can you imagine the NRA giving him a pass on it and endorsing him over a solidly pro-gun candidate, or encouraging their members to send him letters thanking him for his vote “against” the gun-control bill? I sure can’t, and I’m very fanciful and creative.

I understand the need for compromise within the framework of a political party. A political party encompasses dozens, if not hundreds of issues - it is simply impossible to expect consensus on all of them, so party establishments, candidates, and voters alike must all make decisions based on what mix of positions they can live with that still advances most of their core goals. No-one ever gets to vote for a candidate they agree with 100%, unless they’ve been brainwashed.

But a single-party organization is dedicated to advancing the country towards a single goal - it has no rationale for endorsing a candidate who will work against that goal over a candidate who will work for it. I could understand not beating up a reliably pro-choice candidate over a minor transgression (we’ll pretend that I was able to think of a good example of a “minor” transgression) , but a lifetime appointment for a reliably anti-choice creep with all kinds of ethical issues is not minor. It represents an existential peril for the pro-choice cause, essentially putting the Supreme Court one 86-year-old heartbeat away from overturning Roe vs. Wade. Yet PP and NARAL not only took Joe’s betrayal in stride, they actually patted him on the back for it.

As some of the FDL commenters have suggested or hinted at, the only possible explanations (other than just plain cluelessness) are either some sort of financial quid pro quo from Lieberman or his supporters, or a perverse fear that if they actually win the battle for abortion rights once and for all, they will become unnecessary and cease to exist (ironically, this may in fact be a mirror image of the Republicans’ approach to abortion as an electoral tool). Either way, it looks like both organizations have sold out their animating principles for the shoddiest of reasons.

UPDATES: The other popular explanation is that PP & NARAL don’t want to anger incumbents, because they might get vindictive or something if re-elected. If PP & NARAL are afraid of angering bad incumbents like Lieberman, then why even bother getting involved in electoral politics at all?

Matt Stoller (by way of Atrios) has an excellent post on the consequences of this failure to hold Lieberman accountable. Money quote: “In allowing Senator Lieberman to not filibuster Alito and still backing him for his reelection campaign against a reliably progressive candidate, the leaders of NARAL and Planned Parenthood have decided to throw away their political capital.” Pathetic.

6 comments July 11th, 2006 at 08:43pm Posted by Eli

Be Careful What You Wish For…

Today’s NYT has an editorial about a Republican-sponsored bill to establish an inspector general for the federal judiciary. Said judiciary is a bit worried, needless to say, since investigations could potentially be used as a club against “activist judges” (liberal ones only, of course).

On the other hand, if the inspector were truly nonpartisan, he’d be looking at Scalia’s junkets and hunting trips (wherein he miraculously managed to avoid getting shot in the face despite his striking resemblance to a wild boar), and Alito’s refusal to recuse himself from cases involving his own stockholdings.

For precisely this reason, I assume that this bill gives Congress a very limited role in confirmation and oversight, or else its authors (Sensenbrenner and Grassley) are awfully confident that they will hold on to their majorities this fall.

Even so, what would happen if the Democrats retook the White House? This is potentially an even bigger weapon to hand to President Gore/Feingold/Clinton than the “nuclear option.” After all, the filibuster can only be invoked against new nominees, but an inspector general can investigate anybody. In fact, if his powers go far enough for him to remove judges, an inspector general would be an excellent mechanism for negating lifetime appointments (intended to eliminate political pressures on judges, remember).

Of course, a Republican president is probably much more likely to stoop to using an inspector general as a political hitman than a Democratic one, so maybe that’s why they’re not worried…

Add comment May 18th, 2006 at 09:30am Posted by Eli

I Just Don’t Get It. And I’m Pissed.

I know I’m not the only person perplexed and pissed off about this, but I wanted to get it off my chest nonetheless:

WHY did the Senate Democrats cave on Alito when the President’s approval ratings are in the toilet? What possible political price did they think they would pay for standing up to an unpopular president?

Worse yet, do they not realize just how much this craven capitulation would disgust and alienate their base? When the Democrats are up for election this year and in 2008, what are they going to campaign on if they can’t even say they opposed the Republicans? Are they just going to say that they’ll carry out the Republican agenda more competently and efficiently?

I think this was a huge mistake on every level. They’ve allowed a weak president to push through a hard-right Supreme Court nominee who will sit on the Court for the next 30-40 years. They’ve (once again) sacrificed their credibility as an opposition party. And when the Alito appointment starts bearing bitter and oppressive fruit, they’ve forfeited the right to beat the Republicans over the head with him. As with the invasion of Iraq, how can they make an aggressive campaign issue out of something/someone THEY THEMSELVES VOTED FOR?

I just don’t understand their thinking, I really don’t. I suppose it could be fear of the “nuclear option,” but if they never filibuster for fear of the nuclear option, then the nuclear option is already in effect. By not forcing the issue, they let the Republicans avoid paying any political price at all, either for imposing it, or for conveniently repealing it the second that Democrats retake control of the White House and Senate. Should such a thing ever actually happen.

The only other reason I can think of is some misguided notion of collegiality - that the President is entitled to a large measure of deference in his judicial nominations, but that’s just plain stupid. The Republicans have declared war on the Democrats, the Constitution, and most of the American people, and the Democrats still think they’re playing a genteel game of badminton or croquet. And they act surprised each time they get kicked in the nuts.

Getting back to electoral considerations: Who do you really think most Americans are going to vote for? The party that fights dirty, or the party that doesn’t fight at all? Or, at best, the party that sometimes fights sort-of-halfheartedly if thousands of people scream and yell at them and light their shorts on fire?

It angers and depresses me to see all the dedicated and passionate progressives phoning, writing, and e-mailing their hearts out, trying to influence a sad-sack party establishment that brushes us aside time and time again. It’s like watching a swarm of ants and mosquitos trying to turn aside a blind elephant (or very large donkey, as the case may be) lumbering towards the edge of a cliff. Don’t get me wrong; I’m very glad that our tribe is fighting - I just wish we didn’t have to fight for the attention of our own fucking party. I’ll continue voting Democrat and try to do what I can, but only because there is no other viable alternative.

Alito really was it for me - I have lost the last of what little faith I had left in the Democratic party. I now think it’s a distinct possibility that they will lose seats this year, and just like in 2002 and 2004, they won’t know why. But I will.

5 comments January 31st, 2006 at 06:46pm Posted by Eli

Well, You Said You Wanted An American-Style Democracy…

The NYT editorial page is on a roll today. First they nail Alito to the wall with a nice rundown of some of his biggest red flags, and challenge allegedly “moderate” Republicans to take heed. Briefly:

“EVIDENCE OF EXTREMISM” (Praise of Bork; membership in the racist, sexist Concerned Alumni of Princeton)

“OPPOSITION TO ROE V. WADE (1985 memos; refusal to give Roe v. Wade same level of deference as Roberts did)

“SUPPORT FOR AN IMPERIAL PRESIDENCY” (”Unitary executive”; warrantless wiretaps a-okay)

“INSENSITIVITY TO ORDINARY AMERICANS” (Consistently rules against women & minorities, and in favor of corporations)

“DOUBTS ABOUT THE NOMINEE’S HONESTY” (Reneged on promise to recuse himself from cases involving mutual fund in which he had holdings; claims to not remember his membership in CAP; claims to have not really meant what he said in 1985)

Next they express concern about how the head of Iraq’s fundamentalist Shi’ite party (which is firmly in control of Iraq’s government) has backed away from his promise to allow significant changes to the Iraqi constitution, thus assuring the Sunnis of an opportunity to improve their standing in post-Saddam Iraq:

Mr. Hakim’s latest position is a prescription for a national breakup and an endless civil war. It is also a provocative challenge to Washington, which helped broker the original promise of significant constitutional changes. On the basis of that promise, Sunni voters turned out in large numbers, both for the constitutional referendum and for last month’s parliamentary vote. Drawing Sunni voters into democratic politics is vital to creating the stable, peaceful Iraq that President Bush has declared to be the precondition for an American military withdrawal. The most unacceptable defect of the new constitution for Sunnis is its provision for radically decentralizing national political and economic power, dispersing it to separate regions.

In a quirk of geology, most of Iraq’s known oil deposits lie under provinces dominated by Shiites or Kurds, while the Sunni provinces of the west and north are resource-poor and landlocked. Iraq as a whole is rich enough to support all of its people relatively comfortably. But a radically decentralized Iraq would leave the Sunnis impoverished, aggrieved and desperate, driving them into the arms of radical Sunni groups in neighboring lands.

Although Sunnis are a minority in Iraq, they are an overwhelming majority in the Arab world. An irreconcilable split between Iraq’s Shiites and Sunnis would leave the Shiites even more dependent than they are now on Iran and American troops.

Constitutional changes are needed in other areas as well, especially in regard to women’s rights and the overly broad prohibitions against former members of Saddam Hussein’s Baath Party. But decentralization is the most dangerously explosive issue right now. Mr. Hakim seems perversely determined to inflame it.

In my view, these two editorials reflect two sides of the same coin: They both show what happens when political parties represent nothing more than the naked pursuit of power instead of sincere competing visions of the country’s best interests. Republicans, even moderate ones, are willing to confirm a dishonest right-wing extremist to the Supreme Court because he’s a member of “their team” and can be counted on to always distort the Constitution in their favor; Shi’ites are willing to court civil war and regional isolation rather than cede any power to the Sunnis.

I have to wonder, if the political situation in this country became so volatile that the Republicans had to choose between, say, outlawing the filibuster, and the possibility of outright civil war, what decision would they make? I also have to wonder if the Iraqi Shi’ites would be making this same power play if our own ruling party showed any signs of accommodation to its opposition. My gut feeling is no, but just as the U.S. can no longer credibly condemn torture and civil rights abuses, the arrogance of our own ruling party makes it very difficult to demand more enlightened behavior from their Iraqi counterpart.

You may have noticed, I am a little ambiguous about whether the emphasis on party power over national well-being is a uniquely Republican character flaw. I wish I could say that it was, but in the world of elected officials I’m just not so sure. I see a lot of Democrats who are unwilling to rock the boat by opposing obviously damaging legislation or presidential nominees, which suggests to me that the safety and security of their own butts trumps the safety and security of anyone else’s. At the voter level, it’s a little harder to say. I don’t think I’ve encountered any liberals who are more concerned with power than America’s well-being, but it is unfortunately not possible to preserve or enhance that well-being without power.

If pressed, I would say that most Democratic supporters view power as a means to an end, whereas most Republican supporters view power, with its attendant opportunities for self-enrichment, as an end unto itself. And for the many Republican fans who are not personally being enriched, they seem to derive enormous satisfaction from simply being on the winning team.

(Just a side thought: Ya know, this country will be a hell of a lot healthier when voters and media stop viewing politics as just another sport…)

3 comments January 12th, 2006 at 12:40pm Posted by Eli

Bask In That Reflected Glory! Bask, I Say!

Apparently Samuel Alito and the White House have hit upon a new strategy to make Alito not look like a total racist, sexist jerk. Similar to Bush’s fondness for photo ops with troops and heroes in hopes of some kind of heroism-by-association, Alito is now invoking his dear departed father, who was conservative but (supposedly) egalitarian and non-partisan in carrying out his job responsibilities.

When a Democratic senator asked the Supreme Court nominee Samuel A. Alito Jr. why he might empathize with the plight of minorities or the poor, he had his answer ready: the example of his late father, an Italian immigrant who in college once defended a black basketball player from discrimination on the team.

When other Democrats pressed Judge Alito about why he had once disagreed with the Warren Court decision that established the “one person, one vote” standard for state districts, he again recalled the legacy of his father, Samuel A. Alito, who worked for three decades as the director of research for the New Jersey Legislature.

In his bedroom at night as a boy, Judge Alito told senators, he could hear his father clicking away at a manual calculator as he struggled to redraw the state’s legislative districts with equal populations, people present for the conversations said.

To some senators, Judge Alito has said his father taught him to “revere” the legislative process. He has pointed to his father as a model of bipartisanship.

There is some counterpoint to this rosy portrait:

The elder Mr. Alito did not want to be called “Italian-American,” said Arthur Applebaum, his longtime deputy in the legislative research service. “He just didn’t care for hyphenated groups,” Mr. Applebaum said, suggesting that Mr. Alito may have seen special consideration for certain ethnic groups as a sort of “reverse discrimination.”

Colleagues of Judge Alito said he might have inherited the conservative sensibility his father displayed in private, including an instinctive cautiousness and a traditionalist approach to family life and social matters. Until the 1980’s, for example, the elder Mr. Alito forbade women who worked for him to wear pants to the statehouse, long after other offices had accepted it.

In any case, this is all beside the point. It really doesn’t matter what kind of person Papalito was - he’s not the one nominated to the Supreme Court, and there is simply no reason to ascribe the father’s virtue to the son.

Let’s hope this strategy doesn’t work - it sounds like the story about Papalito putting his college career on the line to protest a black player’s benching against a segregated opponent had an effect on Dick Durbin, who said, “I thought it was a very moving insight about a life lesson learned from his father about the issue of race.”

It may have been a very valuable life lesson, but there is simply no evidence that Alito actually learned it. I would like to see some of the Democratic Senators ask Alito what his beloved father thought about his membership in Concerned Alumni for Princeton, which advocated against admitting women and minorities to Princeton’s hallowed halls. Or about what he would have thought about Alito’s dissent wherein he argued that a search warrant extended to strip-searching 10-year-old girls.

The best tribute the Senate could pay to Alito’s idealized father would be to reject any nominee who does not share his presumed commitment to equality, duty and country over party.

Add comment December 5th, 2005 at 09:26am Posted by Eli

Two Modest Proposals That Will Fix Everything

Well, okay, not really. But I’ve been thinking about some of the structural problems in our government as it is currently constituted (or un-Constituted, as the case may be), and I have a couple of outlandish ideas for the judicial and legislative branches. I’m open to any suggestions on the executive branch, but I haven’t yet come up with anything better than “Don’t elect crazy, stupid, and/or evil people.”

My first proposal isn’t really all that outlandish; it simply requires a shift in perspective and the codification of same. I believe one of the major structural problems with our government is that the judiciary, our last line of defense against unconstitutional laws and government actions, has become an appointed shadow legislature instead. Rather than looking for judges who will interpret the Constitution and the law as objectively as possible, both parties look for judges who will represent their own ideology as much as they can get away with. The end result is that court rulings are often predetermined by the ideological makeup of the court, rather than by any serious attempt to interpret the actual intent of the law.

This flaw is enabled by the notion that the President has wide latitude to pick the judges he wants, and the Senate should only reject them if there’s something spectacularly wrong with them. Consequently, the minority party should only use the filibuster in the most extreme cases, like where the nominee is a convicted murderer. If you combine lifetime appointments with the lack of moderation that this attitude engenders, you get a recipe for a lot of ugliness, both on the courts and in the confirmation process.

My recommendation is that we completely change our mindset about the nomination and confirmation process. It should be much, much harder to confirm justices, not easier. Instead of requiring a simple majority, or 60 votes to break a filibuster for extreme cases, make 60 votes the minimum required even for routine approval, or even a two-thirds majority. This would force presidents to nominate consensus picks that the minority party approves of (or even recommends), meaning much more moderate and non-partisan nominees. The end result would be justices and courts which focus solely on the law rather than advancing an agenda, and which would prevent either party from steamrolling over the opposition and the Constitution.

My second proposal is admittedly a little bit out there. The dilemma as I see it is that far too many congressmen (and -women) are far too beholden to corporate contributors, and consequently value corporate interests over those of the people. But on the other hand, I do believe that corporations are deserving of some level of representation - an absolutist, strictly labor/consumer/environmentalist view of utopia would probably be disastrous for business, and that would probably be disastrous for everyone.

So, my suggestion is, carve out a fixed (minority) number of congressional seats for industry, and apportion them - somehow - among the various individual industries (pharma, finance, insurance, energy, etc.) and let them advocate for big business to their heart’s content. The rest of the Congress would then be expected to represent the people, and the people only. And if any of them are caught taking so much as one thin dime from a company or industry lobbyist, they would be sent to prison, and barred from ever holding public office ever again, while the company or industry involved would face extreme sanctions as well (a corporate death penalty might not be practical, but it would have to be something painful enough that no company or industry would dare risk it).

This idea could probably be expanded to include non-corporate interest groups as well, such as the NRA, AARP, and the Sierra Club. Granted, at a certain point it would just become absurd, but no more so than the divided loyalties we have in Congress now. The beauty of it for me is that those starry-eyed idealists who go into government to actually help people would be free to do so without having to sacrifice their principles to stay in office. And those who go into government just to suckle at the corporate teat are free to do so as well, but in such a way that their impact can be contained.

Unlike the first proposal, this one presents all kinds of logistical challenges: How do you apportion the corporate/special interest seats fairly? How do you fill them in such a way that the larger companies or interest groups don’t have unfair sway? How do you prevent the wealthy from using their money to hijack the people’s side of Congress? (I’m thinking either 100% public campaign financing, or else very low contribution limits)

As I said, neither proposal is perfect by a long shot, but I think they might serve as interesting jumping-off points for digging into some of the core problems and their possible solutions. Any feedback is extremely welcome.

5 comments December 3rd, 2005 at 03:30pm Posted by Eli

AmenYT

Money quote from today’s “Beware Of Alito” editorial in the NYT:

As the Democrats refine their message for next year’s elections, the first thing they need to be able to say to the American people is that they did not sit by idly while the far right took over the Supreme Court and began dismantling fundamental rights and freedoms.

This is true not only of judicial nominations, but all Republican policies. I would hope that the Iraqi invasion has taught the Democrats just how difficult and awkward it is to criticize a policy or nominee after you’ve voted in favor of it.

It’s entirely possible, perhaps even inevitable, that the Democrats will not win every battle. But that doesn’t mean they shouldn’t even bother to fight them.

1 comment November 13th, 2005 at 01:02pm Posted by Eli

Crazy As An Althouse Rat

So I see Ann Althouse, one of those phony “reasonable moderates,” has an op-ed piece in the New York Times today telling us crazy hysterical liberals not to get our panties in a bunch just because Alito has a teensy-weensy handful of oh-so-insignificant batshit insane court rulings under his belt. In fact, this whole “Scalito” nickname thing is just as terribly unfair as when Justices Burger and Blackmun were lumped together just because they were both from Minnesota (oh yes, this is just exactly like that, isn’t it…).

Her sole piece of evidence to “prove” that Alito is more liberal than Scalia is their interpretation of the First Amendment’s protections of religion. Scalia wrote the Employment Division v. Smith decision which ruled that “neutral, generally applicable” laws cannot be considered infringements on religious rights.

Ah, but Alito found loopholes that allowed him to rule in favor of Muslim policemen whose religion obligated them to grow beards, and “a Lakota Indian who claimed he derived spiritual powers from two black bears.” This is all very well and good, but does it really prove that he’s not a conservative extremist, or merely that he defers to religion wherever possible? It’s admirable that he would be so accommodating to non-Christians, but it’s not much of a stretch to believe that he was thinking of precedents for future cases where Christian spiritual practices are being infringed. I must admit, it’s hard for me to imagine any law infringing on Christians ever getting passed anywhere, but why take chances?

After getting her, ahem, substantive argument out of the way, she then proceeds to the real wanking:

Yes, chances are that a Justice Alito will please conservatives more often than liberals. Doubtless, many liberals will anguish over Judge Alito’s opinion, in Planned Parenthood v. Casey, that would have upheld a law requiring that husbands be notified when their wives seek abortions. Still, they should give serious study to his record; they may discover that there are varieties of judicial conservatives, just as there are varieties of political conservatives, and that Samuel Alito is not Antonin Scalia.

Well, that certainly puts my mind at ease.

In a more general sense, President Bush should be commended for nominating someone with so substantial a judicial record. In the decades since the defeat of Robert Bork’s nomination, presidents have unfortunately tended toward “stealth” nominees out of fear that actual evidence of the person’s jurisprudence would only give ammunition to his opponents.

Oh yeah, nominating an in-your-face nutzoid conservative is ever so much more noble than nominating a stealth nutzoid conservative. Huzzah.

Those Democrats who are already insisting that Judge Alito’s record on the bench makes him unacceptable should keep in mind that someday they, too, will have a president with a Supreme Court seat to fill, and it would serve the country well if that president wasn’t forced to choose only among candidates with no paper trail. To oppose Judge Alito because his record is conservative is to condemn us to a succession of bland nominees and to deprive future presidents of the opportunity to choose from the men and women who have dedicated long years to judicial work.

So, if I’m reading this correctly, Ann is advocating that both sides nominate only ideological extremists instead of boring, “bland” moderates? I guess it doesn’t trouble her that this would turn the Supreme Court into something resembling a nine-member Senate, except of course that it would wield absolute power over the other two branches of government, and all the members would be appointed for life rather than being periodically accountable to the voting public.

Oh well, different strokes for different folks, I suppose. At least we wouldn’t have any more of that annoying suspense about how the Supreme Court might rule in any given case, right?

2 comments November 1st, 2005 at 09:23am Posted by Eli