From Harvard Magazine, here’s United States Court of Appeals Judge Richard Posner. A Reagan appointee, he was cited by The Journal of Legal Studies as the most cited legal scholar of the 20th century:
About the Supreme Court, he said, “You know they still have a spittoon sitting beside each chair on the bench? What kind of crap is that? Right?” And: “Now who would say, for example, that the nine Supreme Court justices were the nine best lawyers in the country. That’d be preposterous. Now, what if the proposition was, well, they’re among the hundred best lawyers in the country. That would be ridiculous. Among the thousand best lawyers in the country out of 1 million lawyers? No! I think today’s Supreme Court is extremely mediocre.”
It’s startling to hear a sitting federal judge insult the justices on the record, but Posner’s view is that he gives the court and its precedents the respect they are due. Posner’s favorite Supreme Court ruling to attack in the past decade has been District of Columbia v. Heller, the 2008 case in which, by 5-4, the conservative majority ruled that the Constitution’s Second Amendment protects an individual’s right to possess a handgun for self-defense.
To Posner, the decision and, in particular, the majority opinion by Justice Antonin Scalia, is “an example of motivated thinking” — thinking shaped by how he and the other justices in the majority wanted the case to come out. They used their own version of history as a basis for their interpretation of the amendment, he believes, even though, by his count, 14 of the 18 historians who signed friend-of-the-court briefs disputed that view. The justices did “what is derisively called ‘law office history,’” Posner wrote about Scalia’s historical account: “The derision is deserved.”
Thanks be to God that William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Sandra Day O’Connor managed to save us from having this turkey in the White House:
His slide show on the threat of climate change, presented in the movie “An Inconvenient Truth,” won an Academy Award. His efforts to spread the word about global warming earned him, along with the United Nations Intergovernmental Panel on Climate Change, a Nobel Peace Prize. His was a dire call to strenuous and difficult action…
His slide show on the threat of climate change, presented in the movie “An Inconvenient Truth,” won an Academy Award. His efforts to spread the word about global warming earned him, along with the United Nations Intergovernmental Panel on Climate Change, a Nobel Peace Prize…
Much of what he makes, including all salary from his early stage investing work as a partner at Kleiner Perkins and his Nobel Prize money, goes to his advocacy group, the Climate Reality Project…
He co-founded Generation Investment Management, a firm that takes positions in companies that manage themselves along principles of sustainability, including the effects of climate change. He also sits on the board of the venture capital firm Kleiner Perkins Caufield & Byers, which invests heavily in green start-ups. He sold his cable channel, Current TV, to Al Jazeera America in 2013 in a deal that earned him a reported $100 million … His success in the business world has surprised many people, Mr. Kramer says. “I didn’t think of him as a business guy — I’m sure nobody did,” he says, adding that “he is a phenomenally deep student of critical forces that ultimately change society.”
…except that the Supreme Court has since declared legal the whole corrupt process described below by Henry George, Jr. in The Menace of Privilege (1906). Which is, I guess, one way of stamping out crime.
There would, perhaps, be little need for the creating of corporations were it not for the granting of privileges. But artificial persons, which have more powers than natural persons and life-everlasting, are far better suited than natural persons to take care of privileges — to fight for their continuance and extension. As a consequence it has now become almost an invariable rule either for artificial persons under the general corporation laws to receive from Government the special grants of power; or else such privileges, being granted to natural persons, are at once by them turned over to corporations or artificial persons. And these artificial persons possessing Government grants, are the most active and most potent of all persons in politics.
The very significant aspect of the Presidential contest of 1904 was the charge by opponents against the managers of each of the two great parties of receiving campaign contributions from the large privilege-possessing corporations. More significant still was the common belief that the charge was true, the partisan view being that, while the opposing candidate would of necessity be contaminated by such money, their own candidate was too upright and too strong to be swerved in the least from principle, affected in the least for evil. Yet Presidents are but men, subject to men’s strengths and weaknesses. And just as Mr. Buchanan was most complacent in face of the growing aggressiveness of the slave power which seated him and supported him in the Presidency, so monopoly powers might reasonable expect at least protection from a Chief Executive which their money and their efforts materially contributed toward seating in the White House.
…it’s worse. Read the whole Reuters investigation from which this comes:
A Reuters examination of nine years of cases shows that 66 of the 17,000 lawyers who petitioned the Supreme Court succeeded at getting their clients’ appeals heard at a remarkable rate. Their appeals were at least six times more likely to be accepted by the court than were all others filed by private lawyers during that period.
The lawyers are the most influential members of one of the most powerful specialties in America: the business of practicing before the Supreme Court. None of these lawyers is a household name. But many are familiar to the nine justices. That’s because about half worked for justices past or present, and some socialize with them.
They are the elite of the elite: Although they account for far less than 1 percent of lawyers who filed appeals to the Supreme Court, these attorneys were involved in 43 percent of the cases the high court chose to decide from 2004 through 2012.
The Reuters examination of the Supreme Court’s docket, the most comprehensive ever, suggests that the justices essentially have added a new criterion to whether the court takes an appeal — one that goes beyond the merits of a case and extends to the merits of the lawyer who is bringing it.
The results: a decided advantage for corporate America, and a growing insularity at the court. Some legal experts contend that the reliance on a small cluster of specialists, most working on behalf of businesses, has turned the Supreme Court into an echo chamber — a place where an elite group of jurists embraces an elite group of lawyers who reinforce narrow views of how the law should be construed…
…this is getting boring. Maybe if a corporation showed up to petition for a redress of grievances?
At the Supreme Court, small teams of undercover officers dress as students at large demonstrations outside the courthouse and join the protests to look for suspicious activity, according to officials familiar with the practice…
A Supreme Court spokesman, citing a policy of not discussing security practices, declined to talk about the use of undercover officers. Mr. German, the former F.B.I. undercover agent, said he was troubled to learn that the Supreme Court routinely used undercover officers to pose as demonstrators and monitor large protests.
“There is a danger to democracy,” he said, “in having police infiltrate protests when there isn’t a reasonable basis to suspect criminality.”
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Esquire’s Charles P. Pierce tries to make sense of the curious fact that so many Americans so reliably vote not only against their own interests but counter to their own actual beliefs. Turns out it’s not so much about ideology. It’s mostly about filling the political vacuums in millions of heads, and that ain’t cheap. Read it all here.
Citizens United — and its ungodly spawn, McCutcheon — have sent our politics into refraction. Nothing is what it appears to be any more. Chozick is right to point out that the result of the decision has been to create candidates drifting ever closer to the ideal of Nashville’s Hal Phillip Walker, who campaigns through that film only as a voice from a sound truck. Thanks to John Roberts and Anthony Kennedy, we now have candidates who campaign primarily as characters in television commercials, like Flo from Progressive Insurance, or the two people in the bathtubs for Cialis.
Moreover, the flood of money now flows so swiftly and powerfully, and so far underground, that the best you can do is guess what effect it is having on the process. Then, after it’s over, ideology gets credit for what money has purchased. The new world of unregulated political money has given an even deeper sense of unreality to the way we govern ourselves. Nothing is as it seems to be. Nothing can be reckoned fully to be genuine. Not the polls. Not the campaigns. Not the candidates. Not even the results, truth be told. Unregulated political money has worked as an accelerant to all the worst aspects of modern political campaigns. More than ever before, our elections have become design contests.
Thank God Almighty, the 1% is free at last! The Kochsucking majority on the Supreme Court just ruled that money speaks louder than words — your words anyway:
(CNN) — The Supreme Court on Wednesday struck down current limits on the total amount individual donors can make to political campaigns…
The 5-4 ruling could have an immediate impact on November's congressional midterm elections, and add another layer of high-stakes spending in the crowded political arena.
Scalia Thomas & Roberts LLC, the legal branch of the Republican Party, thus returns us to the original intent of the Founding Fathers. Constitutional precedent for today’s ruling is to be found in the three fifths compromise, which took imaginary votes away from slaves and awarded them to their masters.
Young, old, democracies are all the same. From the New York Times:
NEW DELHI — At a certain point this fall, the presidential elections in the Maldives stopped looking like the hiccups of a young democracy and veered into the realm of farce.
Mohammed Nasheed was the leader after a first-round election back in September, but the country’s Supreme Court begged to differ. The court, which was allied with one of his rivals, voided the September election before it could reach a second round, citing irregularities in voter rolls…
From the New York Times:
The defendant, Ahmed Khalfan Ghailani, the only former Guantánamo detainee to be tried in the civilian court system, had appealed his 2010 conviction on grounds that his detention amounted to an unconstitutional delay in bringing him to trial.
The panel acknowledged that the nearly five-year delay was substantial. But, it said, “the Supreme Court has repeatedly held that the government may purposely delay trials for significant periods of time, so long as, on balance, the public and private interests render the delay reasonable.”
Which is to say that, on balance, the constitutional right to a speedy trial no longer exists.
From Jennifer Senior’s interview of Justice Anthony Scalia in New York Magazine:
Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says — Whack! [Pounds his fist.] — STUPID BUT — CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT — CONSTITUTIONAL! Whack! — STUPID BUT CONSTITUTIONAL … [Laughs.] And then somebody sent me one.
From the Constitution of the United States, Article [IX]:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Flagellation or flogging is the act of methodically beating or whipping (Latin flagellum, “whip”) the human body. Specialised implements for it include rods, switches, the cat o’ nine tails and the sjambok.
If you’re reading Bad Attitudes, you already know this. But it can’t be said too often. A major point — perhaps the major point — of our criminal “justice” system is to keep the niggers in their place. It’s criminal, all right, our justice. Since the founding of the nation, the “law” in law and order has been systematically perverted to preserve that old natural “order” so beloved by Chief Justice Roger Taney and spelled out by him in Dred Scott v. Sandford .
I know personally people like doctors, lawyers, elected officials, teachers, architects, and accountants (in addition to the waiters, musicians, bartenders, comedians, and people of leisure) for whom not being high is an extreme rarity. In the broadest sense, I am acquainted with hundreds of users – and probably more people who I don't realize are users.
This bothers me not at all, since I give zero shits about whether people smoke weed. What does strike me as odd, though, is that for all the (predominantly white) people I know who use regularly, I know very few people who get arrested for anything drug related. Perhaps that is because, despite surveys showing that nearly identical percentages of black and white Americans use marijuana, new data shows that blacks are 400% more likely to get arrested for marijuana-related offenses. You're shocked, I know.
Notice that this does not say blacks are four times as likely to use marijuana, or be in possession of it, or sell it, or anything of the sort. They are four times more likely to be arrested and charged. The reason, I submit, is that the entire point of the War on Drugs is to put black males in prison. This isn't a bug; it's a feature…
Sure, the dumbass white kids from the suburbs can spend all of mom and dad's money on blow and bad acid and expensive weed for four years in college, but if there's weed to be found in the crappy black neighborhood they'll move heaven and Earth to find it. Ethan might be selling his mom's Vicodin out of their 4000 square-foot home in Barrington, but the crime is Curtis selling dimebags behind the convenience store.
From the New York Daily News:
WASHINGTON — While his colleagues got ready to go to the Capitol, Justice Antonin Scalia sat on a stage across town and held forth about why, for the 16th consecutive year, he would not be joining them for the State of the Union.
He doesn’t go when a Democrat is president. He stays away when the president is Republican.
“It has turned into a childish spectacle. I don’t want to be there to lend dignity to it,” Scalia said, with a certain amount of mischief.
…do you really not know that you only lend dignity by your absence?
I was greeted today with the news that Robert Bork has passed away. Robert Reich offered this generous assessment on his Facebook page:
We all can get angry with people who don’t share our views and values, attributing to them the worst motives. But permit me a personal note. Robert Bork died today. He was a conservative, lionized by the right, condemned by the left, rejected by the Senate for the Supreme Court. But I knew him as a man of great honor, extraordinary wit, and deep commitment.... And although we disagreed on many issues, he was always willing to listen carefully and debate forcefully. I admired his intellect and his courage. He cared deeply about America.
I cannot quibble with Professor Reich’s firsthand knowledge of Judge Bork’s temperament. No doubt he was a nice enough guy to those who knew him personally. But that’s one of my complaints — most of these guys are nice to those around them. It’s the people who aren’t around them to whom they are unpleasant. As Dave Barry so astutely pointed out, “A person who is nice to you but not nice to the waiter is not a nice person.” From where I’m sitting, Robert Bork was not nice to the waiter.
During his confirmation hearing, I was working as a messenger. Since I was in the car all day I tuned my radio to NPR, which carried the hearings live. Bork was articulate and had a very pleasant speaking voice. He sure didn’t sound like a nut. But there was something troubling about him that actually took me several days to identify. It came down to two assertions that he made. 1) There was no right to privacy in the Constitution because it wasn’t explicitly spelled out. 2) The Fourteenth Amendment only applied to African Americans because clearly that was what its drafters intended.
Maybe you spotted the problem already. In one instance there had to be explicit provision, in the other there didn’t. But there was consistency in the two positions nonetheless: Bork’s assertions in each instance curtailed the rights of individuals.
It was a wonderful education, listening to those hearings. Robert Bork taught me to listen — really listen — to what his side is saying. And to really think about the words themselves. Plus once I figured out how they put their arguments together, I could punch holes in them much more quickly. For that I am grateful.
And for the fact that he was not confirmed, I am even more grateful.
So RIP, I guess, Robert Bork. I do not know what lies on the other side, but I hope when you got there you learned something as useful as what you taught me.
The entire legal structure, in an important sense, rests on irresponsibility. What is “precedent” but a passing of the buck? What is “originalism” but hiding behind the Founding Fathers?
Richard A. Posner, chief judge of the U.S. Court of Appeals for the Seventh Circuit and a Reagan appointee, is nobody’s idea of a liberal. But he is everybody’s idea of a thinker, as you can discover by reading his book, Overcoming Law.
In a brilliant chapter called “Bork and Beethoven,” here’s what Judge Posner has to say about the childish and ahistorical theory of orginalism with which Justices Roberts, Alito, Thomas and Scalia rationalize their prejudices:
Originalism is not an analytic method; it is a rhetoric that can be used to support any result a judge wants to reach. The conservative libertarians whom Bork criticizes (Richard Epstein and Bernard Siegan) are originalists; his disagreement with them is not over method, but over result. The Dred Scott decision — to Bork, the very fount of modern judicial activism — is permeated by originalist rhetoric…
Some of the most activist judges, whether of the right or of the left, whether named Taney or Black, have been among the judges most drawn to the rhetoric of originalism. For it is a magnificent disguise. The judge can do the wildest things, all the while presenting himself as the passive agent of the sainted Founders — don’t argue with me, argue with Them.
From the Los Angeles Times:
Supreme Court Justice Antonin Scalia was ticketed by U.S. Park Police after being found responsible for a four-car traffic accident on his way to the high court Tuesday morning.
The incident occurred just before 9 a.m. on the southbound George Washington Parkway across the Potomac River from Washington in Virginia. Scalia reportedly rear-ended another driver who had stopped in traffic, and two other vehicles followed behind. No one was injured.
Mark Wilson reminds me that in 2001 I posted an item under the headline “Scofflaw Jurist OKs Soccer Mom’s Bust,” which I reprint below to save you the trouble of following its link. Nothing, it seems, is beneath plutocracy’s mouthpiece — including but not limited to the law.
In 1997 a soccer mom named Gail Atwater was bringing her two young children back from practice. She was almost home, travelling 15 miles an hour, when a Lago Vista, Texas, police officer stopped her pickup because she wasn’t wearing a seat belt.
The policeman arrested her in front of her children, handcuffed her, searched the truck, and took her to jail. There she was locked in a cell until she came up with a $310 bond for a $50 misdemeanor. She got home to find that on top of everything else, her truck had been towed.
It was okay, though.
Because on April 24, 2001, the United States Supreme Court decided, 5-4, that none of this violated Ms. Atwater’s constitutional right to be free of “unreasonable searches and seizures.” Among the majority, as is usual when the Bill of Rights is being undermined, was Justice Antonin Scalia.
On December 14, 2000, the New York Times ran the following copyrighted pictures of three Supreme Court justices leaving for home after the Court appointed George W. Bush president. The one on the bottom, the only one not wearing his seat belt, is Antonin Scalia. It was at that time, and had been since 1985, illegal under Section 40-1602 of the District of Columbia code to drive without a seat belt in place. Justice Scalia was not, however, seized, cuffed and jailed. Luckily for him, he had not yet got around to ruling that the Constitution permitted such a thing.
…is now the law of the land as far as I can see. Is there any other way to interpret this?
Washington (CNN) — The U.S. Supreme Court has rejected a condemned Georgia inmate’s request that his execution be delayed as he attempts to prove his “actual innocence…”
[Troy] Davis was granted a stay of execution by the U.S. Supreme Court two hours before he was to be put to death in 2008, and the court in 2009 ordered the federal District Court to take another look at the case.
That court, after holding a hearing to review evidence, ruled in August that Davis “failed to show actual innocence” in the case. The District Court suggested that, for procedural reasons, Davis should take his appeal of its ruling directly to the Supreme Court…
Witnesses said Davis, then 19, and two others were harassing a homeless man in a Burger King parking lot when off-duty officer Mark MacPhail came to the man’s assistance. They testified that Davis shot MacPhail twice and fled.
Since Davis’ conviction in 1991, seven of the nine witnesses against him have recanted their testimony. No physical evidence was presented linking Davis to the killing of the policeman.
Prominent figures ranging from the pope to the musical group Indigo Girls have asked Georgia to grant Davis a new trial. Other supporters include celebrities Susan Sarandon and Harry Belafonte; world leaders such as former President Carter and former Archbishop Desmond Tutu; and former and current U.S. lawmakers Bob Barr, Carol Moseley Braun and John Lewis.
In 1960 I wrote a mystery which went unpublished because I was too young and stupid to make a handful of changes the editor wanted.
By now I barely remember the plot, except that the murder somehow hinged on an abortion doctor’s efforts to avoid prison — abortion being illegal although common in most states.
The idea came to me from my stepfather, who then lived in Virginia’s horse country. A gynecologist friend of his was correctly suspected of performing abortions, and the more respectable physicians of Rappahannock County called an unofficial meeting of the local power structure to decide how to deal with this outrage.
In the middle of this, the abortionist himself showed up and took the floor. “I thought I might be able to help you fellows out,” he said, and began to list the wives and daughters of the gentry assembled on whom he had performed abortions. He had barely begun when the sense of the meeting was discovered to be that the state police and the Commonwealth’s Attorney should immediately turn their attention to other matters.
For years my manuscript lay quietly in various attics, and in 1973 Roe v. Wade gave it the final coup de grâce. The book’s motive for murder would now seem a quaint anachronism, like speakeasies or the Hays Office.
But time, in the United States, has a way of running backwards—
Though Personhood USA has a reach into every state — and has collected almost 1 million signatures supporting personhood legislation throughout the country — the umbrella organization and its affiliates are currently throwing the most effort at Mississippi, North Dakota, Iowa, Montana and Nebraska.
On Valentine’s Day, Personhood began a matching program and challenged supporters to help raise $50,000 to make $100,000 to push anti-abortion rights legislation in North Dakota, Montana, Iowa and Mississippi. Today is the last day of the challenge.
Mississippi is the biggest target, as it has a personhood amendment on the ballot that will get a vote in November. If passed, the constitutional amendment would effectively make abortion illegal.
—and now has caught up with my poor little manuscript. Unfortunately, though, I can’t find the damned thing.
It might help if Congress had a sense of humor about itself. Except for Barney Frank, nobody in our estimable House of Representative seems to have the slightest idea how funny they are — funny in a stupid, vulgar sort of way, but funny nonetheless. Congress is the Whoopee Cushion of government. Is that really funny? Well, yes — if you think Whoopee Cushions are funny.
How about the Senate: funny or not funny? Many people insist on seeing the August Body as a serious, deliberative council full of earnest public servants trying to do their best by the voters who sent them there. This is a nice conceit but ignores the obvious fact that the Senate is actually opera buffa. How can any organization that would embrace the likes of Alphonse D’Amato, Strom Thurmond, Mitch McConnell and Joe Lieberman take itself seriously? And let’s not forget John McCain, who used the last presidential contest to develop his considerable skills as a stand-up comic. The Senate is Steve Martin arrow-through-the-head funny. It is Chevy Chase pratfall-funny. It is W.C. Fields child-hating funny. The Senate is a laff riot.
The Supreme Court is something else. It has a distinct sense of humor but it doesn’t play for laughs. The court’s idea of good fun is the practical joke. A good example of what it thinks is funny is its recent ruling that corporations and unions are just the same as private individuals and can contribute as much money as they see fit to political campaigns. This subtly hilarious judgment wiped away the fruits of fifty years of legislative struggle to limit the influence of money on American politics.
The ruling on campaign contributions was a fine example of high judicial humor, the kind of well-planned prank that brings that creepy smile to John Roberts’s lips. But this stunt, however amusing, was as nothing compared to the ruling of the Rehnquist Court that gave the 2000 presidential election to George W. Bush. Now that was funny. And it was funny in a way that goes on being funny. It is still funny to the young soldiers who were blinded or lost their legs in Dubya’s Arabian adventure, itself quite a good joke. Of course we’ll never know if the thousands of soldiers who have been killed in Iraq saw the fun in it, but we can say that they would never have had the ultimate comic opportunity without the help of the Supreme Court.
This brings us to some interesting questions. Who is the funniest Supreme Court justice? John Roberts? Sam Alito? Clarence Thomas? Thomas held the title for years, but competition arrived with the appointment of Roberts and then Alito, both of whom are knee-slapping, gut-wrenching, tears-starting hilarious. Most court-watchers believe that Thomas has been eclipsed by the two newer justices not only because they are funnier but because he has run his one joke into the ground. After twenty-some years, nobody thinks a judge acting like a moron is amusing.
On the other hand, Roberts and Alito, the Abbott and Costello of the court, are not only the funniest of the justices, they are the smartest. Roberts, it is said, is so smart he will have nothing to do with any of the other justices except Alito and Scalia. Alito and Scalia are so smart they know how they are going to rule in a case without reading briefs, researching the law or listening to arguments. Roberts follows much the same judicial method.
Remarkably, they always agree, although they express their opinions in different ways. Alito shows delight by scowling while Scalia revels in judicial bad manners, interrupting and insulting the lawyers who appear before the court. Roberts smiles in a way that suggests that a small dog is biting his ankles under his robe. Laurel and Hardy were never better than this, perhaps because they lacked the nuanced comic depth one can only acquire at Harvard and Yale law school.
Posting about Kagan and Coburn the other day led me back to Richard A. Posner’s book, Overcoming Law. Posner, chief judge of the U.S. Court of Appeals for the Seventh Circuit and a Reagan appointee, is nobody’s idea of a liberal. But he is everybody’s idea of a thinker. In a brilliant chapter called “Bork and Beethoven,” here’s what he has to say about the childish and ahistorical theory of orginalism with which Justices Roberts, Alito, Thomas and Scalia rationalize their prejudices:
Originalism is not an analytic method; it is a rhetoric that can be used to support any result a judge wants to reach. The conservative libertarians whom Bork criticizes (Richard Epstein and Bernard Siegan) are originalists; his disagreement with them is not over method, but over result. The Dred Scott decision — to Bork, the very fount of modern judicial activism — is permeated by originalist rhetoric…
Some of the most activist judges, whether of the right or of the left, whether named Taney or Black, have been among the judges most drawn to the rhetoric of originalism. For it is a magnificent disguise. The judge can do the wildest things, all the while presenting himself as the passive agent of the sainted Founders — don’t argue with me, argue with Them.
Senator Tom Coburn, who completed his legal studies at Oklahoma State University Medical School in 1983, knows as much about the law as a hog knows about Sunday. Nonetheless—
Sen. Tom Coburn (R., Okla.) asked if Ms. Kagan agreed with Critical Legal Studies, a left-leaning movement that flourished at Harvard Law School in the 1980s. CLS believed the U.S. legal system abetted traditional social and economic hierarchies, perpetuating an inequitable distribution of wealth and power.
“No,” Ms. Kagan wrote. “I do not agree with any of the ways of understanding law and the legal system that are described above.”
Likewise, Mr. Coburn asked if she “ascribed” to Legal Realism, an antecedent of critical studies developed in the 1920s by such figures as Jerome Frank, a federal appeals judge and former Securities and Exchange Commission chairman. Legal Realism rejected the 19th century view that law was akin to a science with unchanging principles that were discovered over time, and instead contended that law was a human creation that reflected human biases and imperfections.
“No,” Ms. Kagan replied.
The answer showed her to be either a liar or a fool. Liar is more probable. Her job at that moment was not to tell the truth but to get past the Senate and onto the Supreme Court. Chief Justice John G. Roberts had earlier showed her how the thing was done when he babbled on, at his own confirmation hearings, about baseball umpires and his undying fealty to the sanctity of legal precedent.
To anyone who is, unlike Coburn, actually interested in legal realism, I recommend reading not only Jerome Frank, but also Thurman W. Arnold, James Harvey Robinson, John T. Noonan, Jr., and Fred Rodell. Arnold, the most entertaining of these, is pictured below.
Are you surprised at the story below? Of course not. You knew all along that the United States Congress is no more capable of controlling its urges than is Wall Street or Big Oil. Once the NRA carved out its own little exemption, you knew with mathematical certainty that everybody else would try to crowd through the door. And that only the lobbies with the shallowest pockets would be left outside, forced to identify their top five sugar daddies.
The purpose of this legislation was to undo some of the damage done done to free speech by the Supreme Court when it gutted the McCain-Feingold Act in January. But the result is likely to be even greater damage to democracy: one (or several) of the smaller lobbies will certainly protest its exclusion in court, complaining reasonably enough of discrimination based on size and wealth.
And then the Roberts court, snickering up its sleeve, will hurry to protect the little fellow — by declaring unconstitutional the bill currently being debated that attempts, however pitifully, to keep corporations from drowning out the rest of us at election time.
And then it will be a long time, perhaps forever, before Congress bothers to tilt again at this particular windmill.
WASHINGTON — House Democrats agreed to exempt an unspecified number of large, well-known interest groups from proposed new disclosure requirements on political advertising on Thursday, seeking to quell charges they were giving special treatment to the powerful National Rifle Association.
The bill’s chief sponsor, Rep. Chris Van Hollen, D-Md., said that under the last-minute change, “well-established organizations on the right and left” engaging in campaign activity, the NRA among them, would not be required to identify their top donors.
Democratic leaders announced plans for the legislation to come to a vote on Thursday, but that schedule appeared less than firm after rank and file moderates and members of the Congressional Black Caucus raised fresh objections. The leadership arranged afternoon meetings with representatives of both groups, and other changes were possible in the measure.
Under the bill, labor unions, corporations and nonprofit organizations that air political ads or conduct campaign activity would have to disclose their top five donors.
The bill also requires any individual or group paying for independent campaign activities to report any expenditure of at least $10,000 made more than 20 days before an election. Expenditures greater than $1,000 would have to be disclosed within 24 hours in the final 20 days of a campaign.
…which one would you say is the self-hating Jew?
Here’s Michael Savage (top photo, below) pondering in his gentlemanly fashion the question of whether Elena Kagan is goyische enough to serve on the Supreme Court: “Personally grotesque,” he said, and “Looks like she belongs in a kosher deli.”
Would the president’s health care bill fare better if it wasn’t longer than War and Peace and nowhere near as interesting? If it was cut to, say, ten pages, even Republicans would be able to digest it and it might now be the law of the land.
Might we take Rachel Maddow more seriously if she didn’t wear sneakers on her news show? And wouldn’t her news show benefit from more news and less cuteness? On a recent evening Maddow interviewed Sen. Kirsten Gillibrand, the upstate New Yorker who was named to succeed Hillary Clinton when Clinton became capo di tutti cappi di tutti diplomati. When the camera drew back for a long shot of the two women sitting at facing desks we could see that Rachel was ready for some post-punditry hoops. She was wearing what appeared to be Converse high-tops, black with white rubber trimming. Gillibrand, who has shed a few pounds since joining the August Body, is certainly the best-looking Senator and probably one of the smartest. She was soft-spoken, businesslike, not wearing sneakers, and was not in the least bit cute.
Would Chris Matthews find more viewers if he didn’t constantly interrupt his guests by answering his own questions and spraying saliva all over the place?
During the president’s state of the union address, Justice Alito, who was sitting directly in front of the president a couple of rows back, kept shaking his head from side to side in apparent disapproval of what he was hearing. Shouldn’t our Supreme Court Justices, even those who are runaway ideologues and hypocrites, at least try to maintain some measure of political neutrality?
To be sure, that’s an old-fashioned notion and not one that will find favor with the likes of Alito, or with the oddly creepy Chief Justice, with the sneering Scalia, or Clarence the Clown. These gifted legal theorists have now declared that corporations are the same as people and therefore have the right to spend as much money as they want to elect their favorite candidates. Thus forty or fifty years-worth of laws limiting the pernicious influence of powerful corporate interests on democratic elections was wiped away. And those laws prominently included the McCain-Feingold Act, co-sponsored by the recent Republican candidate for the presidency. Nobody is safe from this court.
What is the O’Reilly factor? Maybe if we could figure out what it is, we could eliminate it. (Ed. note: It is suavity.) Without his factor, might O’Reilly go away, too? Of course, if O’Reilly miraculously disappeared, then Keith Olbermann would have nothing to talk about on his news show and maybe he would also go away. As a recovering MSNBC addict, I can say that might not be all bad. Even if you like Olbermann, you can see that he’s almost as far out of control as Rachel Maddow.
But if Olbermann is out of control, what can we say about Rush Limbaugh? It’s hard to understand the attraction of a man of such spectacular repulsiveness. He’s fat, loud, ugly, mean as a rabid coyote, utterly cynical, totally irresponsible, dope-addled, and breathtakingly dishonest. He spews hate and broadcasts lies, and, despite these traits, or because of them, lots of people think he’s great. A great mystery. But then, lots of people thought Hitler was a fun guy.
A final few tidbits for thought. Why does anyone care what Arianna Huffington thinks? She used to be a loud-mouthed conservative and now she’s a loud-mouthed liberal. Huh?
Who is Glenn Beck and why do we keep hearing about him? There seems to be nothing about him that isn’t reprehensible. Nobody likes him, including his mother. Everything he says is a lie. He lacks charm, wit and intelligence. So why the hell do we keep hearing about him? Let’s put him out with the trash, with Sam Alito’s manners and O’Reilly’s factor.
…and incorporated himself…
From a New York Times editorial:
Under the three-strikes law, a man named Gary Ewing was sentenced to 25 years to life for shoplifting three golf clubs from a golf pro shop.
Mr. Ewing challenged his sentence before the Supreme Court as a violation of the Eighth Amendment prohibition on cruel and unusual punishment. By a 5-to-4 vote, with Justice Kennedy in the majority, the court rejected the challenge. The dissenters were right that Mr. Ewing’s sentence was so disproportionate to his crime that it should have been declared unconstitutional.
It’s not that the court is insensitive to excessive punishments. It has repeatedly thrown them out — when they are against corporations. In 2003, the year the court rejected Mr. Ewing’s case, it overturned a $145 million punitive damage award against the State Farm Mutual Automobile Insurance Company as so excessive that it violated the 14th Amendment due process clause.
“If you’ve been in a poker game for half an hour and you don’t know who the patsy is yet, you’re the patsy.”
Republican appointees outnumber Democratic justices two to one on the Supreme Court. Of the six Republicans, five were named by multimillionaires (the Bushes and Reagan; Ford appointed the other).
These things render tomorrow’s arguments over Austin and McConnell all but irrelevant. The fix is in. The Roberts court wouldn’t have taken the case at all if the Chief Justice didn’t intend to use it to scrap the last few limits remaining on the power of the rich to buy our government.
A few shreds of today’s legal fig leaf may survive, but basically the game is finally over. Democracy lost. If Joe the Plumber and the government-hating tea-baggers had even the dimmest grasp of who was really responsible for their troubles, they would be rioting in the streets already.
Today, one political class is the overwhelming majority — we express our preferences with our votes or volunteer efforts. The other class consists of those wielding real power — the ability to finance the bulk of candidates’ campaigns and effectively “set the menu” of candidates from which the rest of us may choose.
The justices’ motivation for treating money as speech may not be racist, but the impact is. Major political donors are fully unrepresentative of Americans. According to a 1996 study by the Joyce Foundation, eighty percent of people investing $200 or more in political candidates are males from households with annual income exceeding $100,000, and about 95 percent are white.
Not surprisingly, Congress closely mirrors those distinctly unrepresentative demographics.
When you get into the real money — donations of $1,000 or more — the picture is skewed even further. Just one in a thousand adult Americans contributed $1,000 or more to any candidate in the last election, yet candidates for the 2004 presidential nomination raised more than 80 percent of their individual investments from these elites. And people wonder how Congress can consider repealing inheritance taxes for multi-millionaires while plunging us ever-deeper into debt.
The power of that 1% of citizens making thousand-dollar investments is further amplified by their ability to “bundle” contributions in the name of family members, co-workers or employees to offer many thousands of dollars to a candidate in a lump sum. In George W. Bush’s 2004 presidential campaign, bundling $200,000 was the measure by which donors gained serious influence.
Sparky Satori at Shorts and Pants reminds us of a former racist activist on the Supreme Court — Chief Justice William Rehnquist. A superior work of snark, found in its entirety here.
November of last year, it was assumed that the USofA had finally vanquished the lingering ghosts of racism and was poised on the cusp of a new post-racial dawn. The long dark night of lynching and discrimination was finally over. “Huzzah!” bleated the media, smugly self-congratulatory.
But that was then. This is worse. And leave it to the hyper-sensitive Republicans to sniff out whiffs of the new racism being foisted upon the nation by its first black President. GOP stalwarts Newt Gringrich and Rush Limbaugh were quick to alert the country to a leading practitioner of this new racism, Sonia “Maria” Sotomayor ["SoSo" to her non-friends]. But she’s not your average garden-variety racist, according to the GOP braintrust. Per Newt and Rush, she is a “reverse racist,” rarer than even the “Albino Negro.” This alone should disqualify her from sitting on the Supreme Court, which has never, ever had any benchers who suffered from an iota of racial insensitivity…
Here’s a snippet from the Nixon tapes to give you an idea of the vetting process from which Rehnquist emerged. Full transcript here. As always with Nixon, fascinating stuff. Sure he was evil, but nobody ever called him dumb.
RMN: Yeah, all right, call me back when you get it. But remember, let’s figure on the Rehnquist thing. The political mileage basically is the same kind of mileage if we were to go with Smith. The idea being that we are appointing a highly qualified man. That’s really what it gets down to.
[Attorney General] John Mitchell: Yeah.
RMN: And also he doesn’t smack of the corporate lawyer as much as Smith.
JM: No, he’s more of a general practitioner.
RMN: Incidentally, what is Rehnquist? I suppose he’s a damn Protestant?
JM: I’m sure of that. He’s just as WASPish as WASPish can be.
RMN: Yeah, well, that’s too damn bad. Tell him to change his religion.
JM: All right, I’ll get him baptized this afternoon.
RMN: Well, get him baptized and castrated, no, they don’t do that, I mean they circumcise— no, that’s the Jews. Well anyway, whatever he is, get him changed.
But to detractors, Judge Sotomayor’s sharp-tongued and occasionally combative manner — some lawyers have described her as “difficult” and “nasty” — raises questions about her judicial temperament and willingness to listen. Her demeanor on the bench is an issue that conservatives opposed to her nomination see as a potential vulnerability — and one that Mr. Obama carefully considered before selecting her…
This cheap bullshit requires only a one-word answer: Scalia.
The Sotomayor panel found that calling administrators “douchebags” and encouraging students to “piss off” the principal was “the sort of language that may properly be prohibited in schools.” It also found that because that language created ”a risk of substantial disruption within the school environment,” it could properly be the subject of discipline even though it occurred off campus.
In which The Rude Pundit reminds us of how dewy-eyed the affirmative activists of the GOP got over Torture Boy Gonzales:
Here’s what Senate Judiciary Committee member Orrin “Still Crazy After All These Years” Hatch said back in 2005 about the opposition to Alberto Gonzales when the White House counsel was nominated to be Attorney General:
“Look, this is not just any nomination. This is a nomination for the Attorney General of the United States of America. This is the first Hispanic ever nominated for that position, or for any of the big four positions in the Cabinet of any President... I personally love Hispanic people. Frankly, I know my friends in the Hispanic community, and Hispanic people all over America, are watching this debate, and they are sensing something very unfair going on here…”
Of course, that was way back when, eh? A couple of weeks ago, in response to a remark by Judge Sonia Sotomayor that “the court of appeals is where policy is made,” Hatch said that it was “a problem... She would have, I think, a more difficult time if she was nominated because of statements like that... I’m not very happy about judges who will substitute their own policy preferences for what the law really is, who think that they can run the country from the bench when they actually have a limited role.”
Man, it’d be awesome to live with no self-awareness…
In case you’ve always wanted a look inside Supreme Court Justice Clarence Thomas’s head, and who hasn’t, take a look at this. Truly scary stuff. Brief sample:
“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.”
As to Thomas’s strange obsession with dishwashers, I won’t have anything useful to say until I have a chance to consult with my son Matt. He is a psychiatrist.
Meanwhile, for more on the man George Herbert Walker Bush considered to be the best-qualified candidate for the Supreme Court in America, see The Pubic Hair Test.
From the Phoenix Business Journal:
Jon Kyl, the second-ranking Republican in the U.S. Senate, warned president-elect Barack Obama that he would filibuster U.S. Supreme Court appointments if those nominees were too liberal…
“He believes in justices that have empathy,” said Kyl, speaking at a Federalist Society meeting in Phoenix.
This is from an op-ed piece in today’s New York Times by Jeffrey Rosen, an intern on the Senate Judiciary Committee when Joe Biden was chairman:
His performance during the Thomas hearings in 1991 was just as restrained. He focused his opposition on Judge Thomas’s radical views on property rights and limitations on federal power. When Anita Hill’s charges of sexual harassment began to circulate in private, Senator Biden angered liberal interest groups by insisting that the Judiciary Committee handle the accusations confidentially.
After the charges were leaked to the press, Mr. Biden insisted that they did not justify postponing the Senate vote on the nomination. Even after finally bowing to the public pressure to allow Ms. Hill to testify, Mr. Biden still refused to call three additional witnesses who were ready to corroborate her charges about his interest in pornography.
Although, in his recent memoir, Justice Thomas rages against Mr. Biden’s unfairness, the reality is that, by insisting that no further witnesses be called, Mr. Biden ensured his confirmation. Mr. Biden later observed that he could have “decimated” Judge Thomas by allowing more testimony about pornography, but “it would have been wrong.”
Rosen clearly approves of Biden’s gentlemanly restraint, but let’s think about this.
At issue was the credibility of two witnesses at the hearing: Clarence Thomas and Anita Hill. She accused him of sexual harassment. He denied it. One of them was lying. Lying to Congress is a crime, pure and simple. Many people, less tolerant than Joe Biden of mankind’s little foibles, feel that criminals should not serve on the United States Supreme Court.
The one who was lying, as proven beyond a doubt by the Pubic Hair Test, was Clarence Thomas. But since the PHT is not widely understood by U.S. Senators, it became not merely relevant but crucial to determine by other means whether the nominee was a criminal liar.
One obvious path was to explore Thomas’s denial to the committee of Hill’s charges that he was fond of pornography. Additional witnesses could have made her charges stick — would in fact, have kept this pathetic, self-loathing racist toady off the Supreme Court.
And would that have been so “wrong?” Oh, I don’t know. Let’s ask Al Gore.
This just in:
“The executive’s current claim of absolute immunity from compelled Congressional process for senior presidential aides is without any support in the case law,” Judge John D. Bates ruled in United States District Court here.
Unless overturned on appeal, a former White House counsel, Harriet E. Miers, and the current White House chief of staff, Joshua B. Bolten, would be required to cooperate with the House Judiciary Committee, which has been investigating the controversial dismissal of the federal prosecutors in 2006.
Judge Bates, a Bush appointee, has hitherto stayed loyally on the reservation. Chief Justice John G. Roberts even appointed him to the Foreign Intelligence Surveillance Court in 2006 to replace a judge who resigned after learning that Bush had been been illegally bypassing FISA for years.
Apparently Judge Bates is not so picky that he won’t serve on a rubber-stamp court. But it turns out he draws the line, thank you Lord, at the idea of turning Congress too into a rubber stamp.
Bates is likely to be reversed on appeal, the U.S. District Court for the District of Columbia having been systematically packed with GOP hacks for decades. (Its chief judge is David B. Sentelle, of blessed memory for siccing Kenneth Starr on Clinton and overturning the felony convictions of Oliver North and John Poindexter.)
Or the whole can of worms could easily be kicked down the road until the election is past. Or the case could be fast-tracked to the Supreme Court where it would be sure to receive the same sort of rough frontier justice meted out to Al Gore in 2000.
But still, but still. We strict constructionists must content ourselves with the occasional crumbs thrown to us by judges who legislate from the bench. Thus it is encouraging to see that at least one Bush appointee wants to put a leash, however flimsy, on Little Caesar’s imperium.
This is excerpted from an interesting analysis of the current Supreme Court by Linda Greenhouse of the New York Times. I’d say that Judge Posner, who will be just short of 70 on the day Obama takes the oath, sees clearly by now that he has zero chance of ever making it onto the Roberts court.
Indeed, much of the commentary on the court’s performance during the last term was harsh, and it came not only from liberals. Judge Richard A. Posner, the conservative icon who sits on the federal appeals court in Chicago, offers some pointed and unusually personal criticism of Chief Justice Roberts in his new book, “How Judges Think,” published this year by Harvard University Press. The chief justice’s self-description during his confirmation hearing as a simple baseball umpire might have been a “tactical error” for one who evidently “aspires to remake significant areas of constitutional law,” Judge Posner writes, adding:
“The tension between what he said at his confirmation hearing and what he is doing as a justice is a blow to Roberts’s reputation for candor and a further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings.”
Such words from Richard Posner would cause any member of the court, let alone a relatively new and young chief justice who undoubtedly admires him, to swallow hard.
WASHINGTON — The Supreme Court ruled Monday that states can require voters to produce photo identification without violating their constitutional rights, validating Republican-inspired voter ID laws.
In a splintered 6-3 ruling, the court upheld Indiana's strict photo ID requirement, which Democrats and civil rights groups said would deter poor, older and minority voters from casting ballots. Its backers said it was needed to prevent fraud…
The case concerned a state law, passed in 2005, that was backed by Republicans as a way to deter voter fraud. Democrats and civil rights groups opposed the law as unconstitutional and called it a thinly veiled effort to discourage elderly, poor and minority voters — those most likely to lack proper ID and who tend to vote for Democrats.
As Justice Clarence Thomas flogs his million-dollar memoir, sound bites from his 1991 nomination hearings have been surfacing in the news — fragrant bubbles from the swamps of George Herbert Walker Bush’s administration.
The saddest of these golden oldies was the justice’s anguished cry that the hearings were “a high-tech lynching for uppity blacks.” Is it even remotely possible that Justice Thomas actually imagines himself to be an uppity black? Can he be unaware that he was the least uppity black that Poppy Bush had been able to find in all the land?
Of course it’s possible, and of course Thomas is unaware of it. All of us lie to ourselves, and most of us lie to others. But only a few of us get the chance to lie to the Senate Judiciary Committee under oath. Clarence Thomas is one of them. The Pubic Hair Test proves it.
Fans of political theater will recall that Professor Anita Hill had charged her former boss at the Department of Education with a pattern of sexual harassment which included showing her a Coke can with a pubic hair stuck to it.
But Judge Thomas swore, no doubt truthfully insofar as the truth is vouchsafed unto him, that he had never in his life done such an ungentlemanly thing.
How could we, the millions of spectators at this morality play, have known what to think? Was it the stern federal judge who was telling the truth, or was it the demure law professor?
Only the Pubic Hair Test could settle the question:
Could Professor Hill could have made up a story so peculiar? In other words, was there anything in the accuser’s much-investigated background to suggest that she was a pathological liar? Did she suffer from hallucinations? Was she “creative?” Perhaps even an aspiring novelist?
And if she were such a fabulist, as the Republicans pretended to think, would the Coke can invention do more damage to her enemy than any other lie she might have dreamed up?
No to the first question. Professor Hill seemed depressingly literal and humorless. It was hard to imagine her engaged in a flight of fancy. (The only suggestion to the contrary came from a young black man who seemed principally interested in reciting his resume on national TV.)
And no to the second question, too. The tale of the pubic hair and the Coke can was so meaningless and bizarre that it could not have been an invention. If Professor Hill wanted to destroy the nominee with lies, she was certainly smart enough to have stuck to such old standbys as indecent exposure, groping, and dirty pictures.
The Pubic Hair Test therefore indicated with zero probability of error that this particular woman could not and would not have invented this particular senseless, incomprehensible story.
God knows whose pubic hair that was, or how it got on that Coke can, or what message the future Supreme Court justice thought it conveyed, or what made him imagine that his weird brandishing of it might be seductive — but the incident plainly happened pretty much the way Professor Hill said it did.
And Uncle Thomas had been lynched long, long before the Senate Judiciary Committee ever heard of him. He had slung the rope over a branch at an early age, poor man, and then hoisted himself all the way up to the Supreme Court.
David A. Love eviscerates Supreme Court Justice Clarence Thomas below. His full column is in The Black Commentator.
Yet his supporters once assured us that in time, Thomas would evolve and make us proud. After all, they posited, he is African American and has experienced racism, he feels our pain. Well, his tenure on the Supreme Court has been over a decade and a half of disappointment, daunting mediocrity and misplaced priorities …
Thomas says that he selects only “the cream of the crop” when hiring law clerks: “I look for the math and the sciences, real classes, none of that Afro-American study stuff. If they’d taken that stuff as an undergraduate, I don’t want them.” Perhaps it should not be a surprise that all four of his law clerks are white males. A justice on the nation’s highest court, he fails to take advantage of a golden opportunity to do some good, in the time-honored tradition of leaving a place better than you found it.
Sadly, he continues to desecrate the memory of Thurgood Marshall. The late Judge A. Leon Higginbotham was right when he said “I have often pondered how it is that Justice Thomas, an African American, could be so insensitive to the plight of the powerless. Why is he no different, or probably worse, than many of the most conservative Supreme Court justices of this century? I can only think of one Supreme Court justice during this century who was worse than Justice Clarence Thomas: James McReynolds, a white supremacist who referred to blacks as ‘niggers.’”
Just came across this in the archives, and saw no good reason not to run it again—
One more reason for Bush to loath those brown-skinned Moslem masses and their upstart religion:
“It is in the Koran, not the New Testament, that we read the maxim — ‘A ruler who appoints any man to an office, when there is in his dominions another man better qualified for it, sins against God and against the State.’”
From John Stuart Mill’s On Liberty.
Given the general right-wing bent of the editorial page at the Washington Post, perhaps less shrill than the WSJ but almost equally pro-war, it’s a bit of a surprise to read this editorial in the Post today. They actually disagree with the Supreme Court ruling in the Bong Hits 4 Jesus case!
You probably read about the student in Juneau who put up a banner with the offending slogan across the street from his school during a school event. His banner was torn down and he was suspended, so he sued claiming free speech rights. I expect that’s why the Post feels some kinship with the case, since they told a bunch of whoppers a few years back themselves. They haven’t really processed that yet, with a couple of exceptions like Froomkin. But when they’ve made excuses, they’ve often referred to the First Amendment.
So they can see the kid’s point, or rather the lack thereof:
As Justice John Paul Stevens wrote in his dissent: “To the extent the court independently finds that ’Bong Hits 4 Jesus’ objectively amounts to the advocacy of illegal drug use — in other words, that it can most reasonably be interpreted as such — that conclusion practically refutes itself. This is a nonsense message, not advocacy.”
Perhaps that nonsense thing is what the editors at the Post are connecting to.
Or perhaps they’ve been sneaking out to the alley on break:
Issues of drug use and drug policy are matters of serious contention. High school students must be able to debate them frankly — and that might even involve students taking the position that bong hits are not that bad.
—unless you’re a mild-mannered, decent, middle-of-the-road Democrat. In which case, like all nice guys, you finish last. This is from Jeffrey Toobin’s book, Too Close to Call, on the theft of the White House in 2000:
Theodore Olson … was rewarded by the president with perhaps the greatest prize any litigator can receive: Bush named Olson solicitor general of the United States, the government's chief advocate before the Supreme Court.
As it happened, the vote on Olson's nomination took place just as the Senate was switching from Republican to Democratic hands, and the Democrats could easily have prevented it from coming to a vote. Because of Olson's role in the election controversy — as well as his questionable activity in support of extreme anti-Clinton organizations — some in the Democratic Party wanted to deny him this plum appointment.
But in a not-so-distant echo of the Democrats' approach and behavior during the recount, the new Senate leadership decided to be gracious and allow Olson to assume his post.
During the Clinton years, the Republican-controlled Senate had refused to confirm any number of Democratic appointees who were far less controversial than Olson. Indeed, Senator Jesse Helms and others had stopped Gore's adviser Walter Dellinger from ever getting a vote on his nomination to be solicitor general.
But Senate Democrats, showing off their gene for unrequited conciliation, handed Olson a pass for the same job. (Olson's confirmation gave rise to some rueful speculation by some of Gore's Florida operatives. If Gore had won, they figured, the Senate Republicans would have refused to confirm them for anything — and President Gore would have sacrificed them rather than force the issue.)
You can safely bet that the next president will be a Democrat backed by Democratic majorities in both houses. Unhappily you can also bet that his or her judicial appointments will be like Clinton’s: solid, decent, well-qualified, moderate, middle-of-the-road jurists.
Exactly what the nation needs to challenge the five justices (now reinforced by two more hard-right clones) who soiled their robes by appointing Bush to the White House.
The last Democratic president willing to fight to put liberals, women and minorities on the federal bench was Jimmy Carter. Often at considerble political cost to himself, he succeeded. But unhappily he never got the chance to fill even one Supreme Court vacancy.
And so for at least a generation to come we will be saddled with the residue left on the high court by Ronald Reagan and the Bush family.
It is amazing and a little bit wonderful that the biggest corporate law firms in the country have come out solidly against the Bush Administration’s plan (being argued in the Supreme Court today, BTW) to weaken our country and strengthen bin Laden and his sympathizers by denying court review to detainees at Gitmo:
Many of the nation’s top law firms have signed briefs against the government and in support of Salim Hamdan, the detainee who allegedly served as chauffeur to Osama bin Laden and who is being detained at Guantanamo Bay, Cuba.Now, I opened by saying all this was remarkable, and it is fair to say so. And, those white-shoe attorneys deserve our thanks for adding hard-to-ignore muscle to the battle to fight those forces, led by W (a/k/a, “the Weakener-in-Chief”) and his co-weakeners in all branches of government, whose hard-to-understand but plain-to-see intent is to weaken our great nation by all means possible, in this case by attacking and circumventing the legal system. But that is the glass half-full take.
More than three dozen briefs have been filed on Hamdan’s side, largely arguing that the military tribunals established by the White House to try the detainees are illegal. By contrast, only a handful of briefs have been filed on the other side, backing the administration’s expansive view of executive authority.…
The covers also carry the names of the big-ticket New York, Washington, D.C., and other national law firms that are bringing their muscle to bear, from Cravath, Swaine & Moore to Covington & Burling to Akin Gump Strauss Hauer & Feld to Jones Day.
“The blue-chip firms are all in this case, and it’s the senior partners who are involved very often,” said David Remes, the Covington partner who coordinated the amicus curiae effort for Hamdan.&hellip
“This is not noblesse oblige by the big firms. It is an extraordinary no-confidence vote by the establishment bar in what the administration is trying to do here.”
[Professor Burt Neuborne of NYU Law School] said the only recent parallel was the effort 50 years ago by New York firms to help desegregate public schools.…
Neuborne too points to a long tradition of major law firms representing the unpopular.
“Wendell Willkie was representing communists and aliens in World War II,” he said, referring to the one-time presidential candidate and partner in the New York firm now known as Willkie Farr & Gallagher.
But Neuborne sees the Guantanamo effort as different, and more widespread.
“The centrist establishment bar has rallied to this as a defining issue,” he said. “The government has gone too far.”
The glass half-empty take is, “Corporate lawyers? You’ve got to be kidding me. How horrible that our nation has come to such a pass that we must rely on Cravath Swaine & Moore to defend our nation from its internal enemies in the Capitol and the Department of Justice and the White House.”
Supreme Court Justice Antonin Scalia missed the swearing-in of Chief Justice John Roberts last year to golf at a right-wing legal seminar… “It’s unfortunate of course that what kept him from the swearing-in was an activity that is itself of dubious ethical propriety,” said Stephen Gillers, a New York University law professor and a recognized scholar on legal ethics.
Scalia: pure class. No resentment there at all.
The stiff primary challenge faced by Sen. Arlen Specter from right-wing whacko Pat Toomey in 2004 was meant to be a horse head in the senator’s bed. Toomey lost, but Specter got the message:
[Specter] has become an unlikely hero among conservatives opposed to abortion for his handling of President Bush's judicial nominations.
“Our organization doesn't agree with Senator Specter on many of the issues,” said Joseph Cella, president of the conservative Catholic group Fidelis. “But on the issue of handling these hearings with dignity, he gets an A-plus.”
Not that unlikely.
Mrs. Batard just alerted me to a major US Supreme Court decision , just handed down:
Yesterday, the Supreme Court made a key decision which even federal officals admit will have major implications for free speech across the country.
With all eyes on the Alito confirmation non-aftermath, the Court hastily refused to hear the appeal of South Carolina activist Brett Bursey, the first and only person to be prosecuted under the statute governing “Threats to the President.”
Bursey's crime? Four years ago, when President Bush came to Columbia, SC to whip up support for the Iraq war, Bursey — a leader of the South Carolina Progressive Network — inserted himself into the pro-Bush crowd with a sign saying “No more war for oil, don't invade Iraq.”
For these unthinkable sentiments, Bursey was commanded to retreat to an Orwellian-named “free speech zone” or be charged with trespassing. As Bursey relates, “I told the police that I was in a free speech zone called the United States of America.”
The trespassing charges were dismissed four months after the arrest, but the feds wouldn’t have it. The Secret Service quickly moved to press the unprecedented: “Threats to President” charges, and, after being refused a jury trial, Bursey was convicted and given a $500 fine.
Bursey could have gone the easy route and paid the money. Instead he and public interest lawyer Lewis Pitts appealed the decision, racking up thousands in legal bills to protest what they perceived to be a legal sham with national implications.
It’s no exaggeration to say the Supreme Court’s decision to let the conviction stand sets a dangerous precedent. A Secret Service official in South Carolina, Neal Dolan, admitted as much in Charleston last year when he declared that “If Bursey’s prosecution holds, we have another dozen cases” across the country.
Let’s get controversial again. Real old time Republicans should find this one especially interesting.
Some will call it a political ploy, others will call it laudatory, but there Mr. Bush goes again, exceeding the scope of Presidential power and authority:
In a directive sent to all Medicare drug plans over the weekend, the Bush administration said they “must take immediate steps” to ensure that low-income beneficiaries are not charged more than $2 for a generic drug and $5 for a brand-name drug. In addition, it said insurers must cover a 30-day emergency supply of drugs that beneficiaries were taking prior to the start of the new program. This requirement for a “first fill” of any prescription applies to all beneficiaries, regardless of income.
Can anyone explain how this action differs from the action taken by Harry Truman in 1952, in which he ordered the seizure of the steel mills? Has there been any law enacted giving Mr. Bush the authority to order private corporations to do something that they are not contractually obligated to do? A host of private companies run these plans; why aren’t their stockholders howling? I suppose they have decided not to look the gift horse in the mouth. Legal references here, here, and from the Harry Truman library:
Fifty years later, the famous Steel Seizure Case continues to raise haunting questions about the scope of Presidential power, even during times of war. Among the topics to be discussed is the potential application of the Steel Seizure Case to President Bush's current decision-making with respect to dealing with accused terrorists within the United States, as well as possible military action in Iraq.
This hysteria over a carefully researched article that documents the obvious — that Samuel Alito is a judicial conservative — is the latest example of a disturbing trend of attacking the messenger instead of debating difficult issues.
I’m sorry, but I have to give Scalito serious points for this:
A judge whose chambers are next door to Judge Alito’s in the old court house in Newark, N.J., engaged in some extensive redecorating a few years ago. As a finishing touch, the judge had placed “what looked like a pair of fake stone lions in the hallway just outside the doorway to her chambers,” said Mr. Smith, declining to identify the judge … “Shortly after that in front of the entry way to Judge Alito’s chambers appeared two pink plastic lawn flamingos with their legs stuck into two box lids to keep them upright,” said Mr. Smith. “It happened the year before I got there, but the pink flamingos were still there and on display when I started,” he said.
Credit where credit is due. And, extra points because the birds stayed up for a long time.
… do they think Americans are?
The Bush administration is mounting an aggressive effort to counter a Knight Ridder story that described Supreme Court nominee Samuel Alito as a committed judicial conservative.
The administration’s response - delivered separately Tuesday by the White House and the Justice Department - reflects its determination to defend Alito and its sensitivity to the “conservative” label for him.
Although Alito’s opinions are rarely written with obvious ideology, he’s seldom sided with a criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big businesses. …
“Alito is more conservative than O’Connor; this isn’t a hard question,” said Rory Little, a Hastings College of the Law professor in San Francisco and a former Supreme Court clerk who praised Alito’s credentials. …
Alito often goes out of his way to narrow the scope of individual rights, sometimes reaching out to undo lower-court rulings that affirmed those rights.…
Alito ruled in Fatin’s case that gender-based persecution could be grounds for asylum.
But the ruling was a hollow victory for Fatin. She lost her case when Alito found that she hadn’t shown enough factual evidence to prove that she’d be persecuted if she were sent back to Iran. It was typical Alito - an impeccably crafted decision that denied relief to an individual.
The tiny silver lining is that at least this out-of-the-mainstream knee-jerk conservative is good on the First Amendment, at least as long as you are not a prisoner.
When it comes to legislating from the bench, it turns out that George W. Bush’s favorite Supreme Court Justice is the all-time champ. From Jeffrey Toobin’s article in last week’s New Yorker, which I couldn’t find on their website:
Indeed, according to an analysis by Paul Gewirtz, a professor at Yale Law School, and his student Chad Golder, of Supreme Court decisions between 1994 and 2005 addressing the constitutionality of sixty-four congressional provisions, Breyer voted to strike down laws twenty-eight per cent of the time — less often than any other Justice. Clarence Thomas voted to overrule Congress sixty-six per cent of the time, more than any other Justice.
See Donkey Rising (quoting this) for the idea that the best way to prove that Scalito will help Bush weaken America is to focus on the fact that Scalito wants to take away our right to time off from work to care for a sick relative or new baby:
His opposition to the Family Medical Leave Act will be highly unpopular with middle class voters and should be the focus of any fight against Alito. Family Medical Leave is sacred ground for working people with children — republican, democratic, and independent. Paint the republicans as anti-family leave and you have a huge political victory.
I agree. This is the way to go. This is a winner for us. Even if Scalito gets in, we’ve set important terms of the debate for ’06 and ’08. Let’s say it loud and proud, and all together.
The safest pick to replace Harriet Miers might be a U.S. senator, such as John Cornyn or Lindsey Graham. Pretty much a guarantee of no determined opposition from any quadrant of the GOP, and most likely a guarantee of no open opposition from any GOP senator. And, plenty of guaranteed Democratic votes from the weak sisters such as Lieberman et al.
To add one more thought to the blogscream about Miers and her 1989 backing of a constitutional amendment to ban abortion, doesn’t the supposed need for an amendment show that the current Constitution includes the rights protected by Roe v. Wade? And therefore, doesn’t it suggest, or leave open the possibility, that a Justice Miers would be an unenthusiastic vote to support the core Roe holding, though she might well be open to more ways to limit but not reverse that holding?
UPDATE: I was just on the site of the Argus Leader of Sioux Falls, South Dakota, where I go on occasion just to see what a classic really bad Midwestern daily in a deep-red area is feeding its captive audience, and they had one of those ridiculous pop-up reader-participation polls that many newspaper sites have now. The question was whether you supported the nomination of Harriet Miers, and as of 4:40 a.m. EDT, 569 South Dakotans had weighed in. The score: 44.3 percent for Miers, 55.7 percent against. If this is the score in Sioux Falls, SD, then for the first time, I conclude that the Miers nomination is in real, as opposed to inside-the-Beltway jabber-jockey jeopardy.
Harriet Miers: solid pro-lifer, right down the line, as seen in this survey she filled out during her city council race in 1989. That’s why she’s wrong for America, for political reasons, not because of the bogus and unfair charge that she’s unqualified in the résumé sense.
Why we should all support the nomination of Harriet Meirs to the Supreme Court:
“You know, she’s a very gracious and funny person,” said Joshua B. Bolten, the director of the Office of Management and Budget whom Ms. Miers succeeded as deputy White House chief of staff in 2003. “I was racking my brain trying to think of something specific.”
In the next breath, Mr. Bolten recalled relaxing with her at Camp David. “She is a very good bowler,” he said. “For someone her size, she actually gets a lot of action out of the pins.”
Well, I’m convinced.
From the Washington Post, as reported by the AP:
The Supreme Court refused Monday to prevent a Missouri prison inmate from getting an abortion.
Without comment, the high court lifted a temporary stay blocking a federal judge’s ruling that Missouri officials had to drive the woman to a clinic to have the procedure over the weekend.
Late Friday, Justice Clarence Thomas had granted a temporary stay at that ruling, but Monday’s high court decision was unanimous.
Missouri’s law forbids spending tax dollars to facilitate an abortion, but the federal judge took the position that the prison system in Missouri was blocking her from exercising that right.
The high court’s order means that she can receive the procedure.