Gonzales v. Carhart
by neolibertarian
The challenge of the partial-birth abortion ban was rejected and the ban sustained. This means it is now a federal crime, generally, to perform one type of abortion.
Abortion proponents and apologists argue that partial-birth abortion is an inflammatory name for the procedure. So whenever pro-abortion groups issue press releases, pro-choice pundits make arguments on TV, and newspapers or newswires talk about it, they make sure to qualify 'partial-birth abortion' as the name that opponents use for the act. Let's be clear: the child is partially birthed by inducing labor in the mother, then it is aborted before birth is complete. Partial-birth abortion is an absolutely accurate description.
The act of termination is particularly gruesome; scissors are forcefully inserted into the rear base of the child's head. The scissors are spread to make a larger opening. A vacuum is used to suction out the brain matter of the fetus, collapsing the skull and destroying its life.
There's little wonder that nearly everyone who knows the details is opposed to the procedure and consequentially most polls show somewhere from over 60% to nearly 80% of Americans opposed to it being performed.
As to the judicial merits, I'm of course glad the ban was upheld. The whole mess of abortion jurisprudence needs to be swept clean and started anew. The cliches and double-talk and compromise-dominated language make everything extremely unclear. Those opposed to abortion should be motivated by respect for life, but this law only bans the way in which a fetus is aborted. Those supporting abortion say they're motivated by privacy, generally, but Ginsburg's dissent somehow made this about women's right to equal citizenship, as though being inconveniently pregnant negates the benefits of citizenship. More than that, the confusing dictates of caselaw and the puzzling review standard of 'undue burden' show how poorly coordinated the Court's rulings are.
The root problem is that Justice Blackmun's original decision in Roe was arbitrary by his own admission. In his writings to other Justices, Blackmun admitted that the point of viability was arbitrary and he essentially admitted that he was wholly creating law. It's no wonder that the Court remains muddled, autocratic and without a hint of self-consciousness about its own contradictions on the issue.
The larger point shines through to me: one particularly cruel and unusual form of abortion will now rarely, if ever, be performed. Let's hope the law's exemptions are not so wide as to negate the law's effectiveness entirely.
This is a victory for life and freedom, but is a little like telling a murderer he can use a handgun as a weapon of choice but not a bloody axe. In the end, the difference is mostly on the side of those of us who have to perceive the abortion, and not on the side of the child being aborted. Children will still be aborted, even in the second and third trimester, though hopefully this ban will make some fence-sitting parents think twice before ordering an abortion.
Hudson v. Michigan
by neolibertarian
The Supreme Court ruled 5-4 in a Scalia opinion that if the police violate the 'knock and announce rule' that it doesn't necessitate the use of the exclusionary rule for whatever evidence may turn up. See How Does The Supreme Court Work? article 2 for more on the exclusionary rule.
The reasoning Scalia gave was basically that the violation of knock and announce isn't bad enough to suppress the evidence, and that there are other ways to counter police violations than the exclusionary rule.
I don't subscribe to the idea that there should be balancing of this type. Unless the search and the privacy right are directly connected, using one as punishment for the other is misguided. However, I'm a huge fan of the exclusionary rule, and it's my assertion that a bad search and lost privacy are inseparably connected. A bad search (one violative of the Bill of Rights) doesn't legally exist. Practically this discourages gestapo tactics, but more than that the search shouldn't count because it oughn't have happened at all.
The balancing act is inappropriate because it's letting criminals off as punishment for the cops. But excluding searches that shouldn't exist at all makes great sense. There's a difference in the process if not the result.
The problem with the knock and announce violation, as I see it, is not that the evidence was obtained without warrant or probable cause, because there was a warrant in this case. The problem is that property gets destroyed (locks or doors broken) and in this case the door was unlocked. Even the federal codification of knock and announce, 18 § 3109, is about destruction of windows and doors on the way in or out serving a warrant.
I'm not sure just how important the knock and announce is and whether waiting 3-5 seconds before turning the knob of an unlocked door is a really serious matter. But I know that the search had probable cause, so even if the police were rude in its execution, the warrant is good - therefore the search and the ensuing evidence should be admissible.
Of course, nobody on the Court really took this position, but that's not the point.
I really have trouble with Scalia's decision because I think it weakens the basis of the exclusionary rule, first by keeping it on weak footing (as a punishment for police misconduct rather than a direct judicial remedy for an unlawful search) and then by restricting somewhat its application.
I'd prefer to have clearer lines on when it is and isn't appropriate to have the exclusionary rule, rather than a sliding scale situation.
Scalia further argues that there are alternative remedies for police misconduct, including civil litigation (which is silly - even Michigan agreed there's little remedy to be found there) and police self-restraint. Of course, what if the judicial practice of the exclusionary rule is one factor encouraging police restraint in the first place?
Relying on the professionalism and restraint of the government is insulting and borders on the authoritarian. Our entire political system is set up with limits, checks and obstacles to keep us from having to just blankly trust the government to be good. The government needs checks and punishments (including stripping the police of their sense of extra-legal entitlement and the official and unofficial immunity they often enjoy from prosecution). I just don't think that the situation at hand constitutes an illegal search and therefore the exclusionary rule shouldn't apply - though for bad searches it needs to stay unapologetically strong.
The real value of this case as caselaw is questionable since it relied on Kennedy's concurrence, which was somewhat sparing compared to Scalia's opinion. Alito, Roberts and Thomas sided with Scalia.
Rumsfeld v. FAIR and Unconstitutional Conditions Doctrine
by neolibertarian
The Solomon Amendment decision, where the Supreme Court upheld the act of Congress restricting certain funds from schools that disallow military recruiters, wandered into the Unconstitutional Conditions Doctrine. The Court didn't really try to mesh with the doctrine, though, as Dale Carpenter at Volokh notes.
On the case itself, the Justices came down unanimously (Alito not involved) for DoD and Congress. I agree with that outcome. But their reasoning is simplistic and unreasonable. In essence, the opinion says that the Congress has so much authority in military affairs that the Court can't say boo. Blah blah, something about an apogee, and ta-da there's no way to stop it even if the Congress had directly required recruiters without the enticement of funding in between.
I have to disagree. This is clearly a freedom of speech issue, as well as freedom of association and property rights. If the administrators or owners (usually some committee or board is the de jure owner of a university, such as trustees) want to prohibit recruiters from coming on campus, so be it. The funding is crucial to the deal. If they want the funding, they'll accept Congress' stipulations. They are then forced to choose between their commitment to not allowing recruiters from organizations that discriminate against gays, and their commitment to having more money (it's usually quite a bit).
It's unfortunate but it's the fact of things and the way it works when the government is so damned big. If you don't like the government putting its nose into our social affairs, then keep it out of our economic affairs. It's ridiculous to draw a clean line between those two categories anyway (after all, is prostitution economic or social? the answer is 'both').
So the Court was wrong to say that the military can be forced on private universities. However, since Congress has yet to exercise the power that the Court has found for it, the schools are still free to turn down the money and kick recruiters off campus.
The Unconstitutional Conditions Doctrine makes it all thorny. According to Unconstitutional Conditions, the only way the government could get somebody to voluntarily give up Constitutional rights in exchange for government action or favor is if there's a propertionality and a nexus between the abandoned right and the governmental action. Leaving aside whether that exists here, I'll address the doctrine.
I think it's ludicrous. The very basis of society and economy is that we choose to not exercise our rights or to abandon our rights all the time. I trade my right to my time and labor in exchange for compensation from my employer. I waive my right to unviolated property when I invite friends over for a party. The whole of society is full of examples of people who have rights and then either trade or waive them for a multitude of reasons. This is no different when universities grant access to the government in exchange for government money.
So I will say that the 'nexus' of UC exists because Congress makes it part of the deal. Congress says that they'll trade the money for the access, and the schools agree. And the fact that the nexus can be so easily established (at least as I argue it) makes US useless. Anything is a nexus simply because the parties consensually agree to it.
Rather than UC as written, the relevant limits should be that the action is not coerced by the government or by anyone on behalf of the government, and so long as the promised government favor or action is not already owed to the other party. Since the mere loss of funds, however critical or large, is not coercive, the only way Solomon could be unconstitutional in this formulation is if the schools had a right to the money anyway. They don't have a right to government funds, so the transaction is constitutional under these conditions.
Additionally, I'd say that the government would have to abide by 5th and 14th Amendment due process and equal protection concerns - meaning that the offer of money for access wasn't discriminatory in application (like if the race were a factor).
Of course, there's also the more general question of whether Congress has the power to distribute these funds at all for this purpose. Article I, Section 8, clause 12's power to "raise and support Armies" would be the closest thing to authorizing it, if anything does. But that's another question, and ultimately one far less intricate (either you think the Constitution is mostly constraining an otherwise empowered government, or you think the Constitution is mostly empowering and otherwise powerless government, and that becomes the end of the debate).
But as for Unconstitutional Conditions, I think it's without textual basis and defies even elementary rights theory. But the government doesn't get a free ride to push the military on private citizens or organizations, either.
Presidential Authority: Means vs. Intent
by neolibertarian
The Bush Justice Department and Administration proxies are arguing that the wiretapping of international communications crossing US lines is justified - despite FISA (and the 4th Amendment) - because of the president's Article II authority to defend the country from attack.
That's interesting, because they're claiming a concrete, controversial power to completely ignore warrants and the incredibly weak FISA law, based on a vague imperative.
Now first of all, let's remember the 4th Amendment. Remember that one? Well, apparently Democrats don't because they've been pushing FISA as the legal alternative to the president's authority - even though FISA was created explicitly to monitor unconstitutional searches of FOREIGNERS ONLY. That way diplomats and foreign journalists, etc., could be searched for evidence of espionage and expelled from the US. But since the invasion was unconstitutional the evidence couldn't be used in criminal court, and the target had to be a foreign national inside the US. Both those restrictions on FISA warrants are gone, as well as the right to have a chance to contest a warrant before third parties (banks, travel agencies, whatever) had to turn over your records. So this incredibly weak warrant requirement has to go through a notoriously pro-government court, and that's the Democrats' favored alternative.
Well, the Fourth Amendment makes it pretty clear that only a person can do something to limit or impair his Fourth Amendment rights - either expressly by permission or criminally upon probable cause.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Nothing about being a foreigner, nothing about war or national security. The framers were very good about being explicit, so if they only meant citizens then they would have said that. Instead they said people, a plural of person. And if they wanted it to be limited, they would have written in more situations where it could be limited. In fact, the main thrust of the Fourth Amendment is to describe when and how privacy may be violated, so this is the perfect place for a wartime exemption.
They wrote in an exemption to habeas corpus, and to the Third Amendment; if they wanted an exemption for warrants in time of war, why couldn't guys like Mason and Madison just look at the Third Amendment? Obviously, they weren't intending any sort of war-time exemption, they just wanted to forbid a return of the terrifying writs of assistance.
But the Administration is arguing that the INTENT behind the President's actions are sufficient justification under the Constitution. That's simply absurd. What if he suspended Congress for a day with the intent of protecting the country, or what if he restricted freedom of speech for Muslim radicals, or the right of Arab-descended American citizens to bear arms, with the intent of defending the country?
The Constitution is not a psychic document; you can't close your eyes, think happy thoughts, and plow right through constitutional checks and liberties.
Good intent is a nice thing, but it's constitutionally USELESS. Intent is a social and political matter, not a constitutional one, certain Supreme Court decisions notwithstanding. The Constitution never tasks the President with defending the country explicitly, nor does it ever call to attention his intent to defend the country. The first part of the first clause in Section @ of Article II is "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States..." which is a hierarchical and administrative title, not a psychic or intent-based imperative.
He runs the military; that doesn't mean it's his job and his job alone to defend the country. After all Congress is the one imbued with the power to declare war and grant letters of marque and reprisal, to make the rules for capture of soldiers, to control the budget of the military, to both define and punish priacies and felonies in international waters, to make the rules governing the military, to provide for arming and then activating the militia, and to create the army and the navy. In fact, the Congress has seven separate clauses within Section 8 of Article I relating to the defense of the country and its citizens, or to the military. The general constitutional directive to 'provide for the common Defence' is given to the Congress, including the power to make legislation to execute that (and other) powers.
The President's job, according to the Constitution, is to tell the army and navy where to go after Congress creates them, arms, them, funds them, makes rules for them, and authorizes their engagement in planned conflict. The President is just the General of the Generals, and is given no other general or specific powers for defense or the military.
The President is, however, tasked with an intent in the oath of office:Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
He is tasked with defense of the Constitution, not of the country. It's Congress' job to see to practical mattters of that sort. It's the President's power to be the Administrator-in-Chief of the military, but his real job is defending the Constitution.
It's too bad Presidents are more concerned with promoting themselves to American Caesars than with fulfilling their oaths of office.
My point here is that the President's intent to do one thing or another is not constitutionally sufficient to do anything not authorized by the Constitution, let alone to override EXPLICIT restrictions on government power. However, the intent is not even granted to the President, but rather to Congress.
The President's INTENT to defend the country is no more constitutionally persuasive than New London's INTENT to improve their town through expansive use of eminent domain, or Congress' INTENT to help people by banning intrastate commerce like gun or drug sales. Sure, everybody thinks he has a great intention, but the Constitution doesn't pay attention to that. Good intent is worthless precisely because everybody claims it (and most probably have it).
The law and the Constitution are dispassionate and describe the ACTIONS which people and government agents may undertake. If we let self-declared intent become a free pass to get by the Bill of Rights, then the Constitution is meaningless.
Progressive Failure
by neolibertarian
The major issue of progressives the last six years has been opposing Bush. That goal more than any other prompts the focus of the leftwing blogs, and that one pushed the same people who supported Clinton's moves against Kosovo and Iraq to preach against Bush's moves against Iraq.
The thwarted filibuster of Alito was a necessary move for the anti-Bush left, because this may be the last SCOTUS nomination Bush ever makes (and because there might not be another one for three or four years, making this is the final word on the judicial war for a while). Even though they uncovered no shady dealings, or shocking comments - just the resume of a mainstream conservative - they needed to filibuster him. They refused to allow Bush another easy victory after Roberts.
The problem is that Roberts and Alito were very good picks and didn't have any real flaws aside from being Bush-appointed conservatives.
The fact that both of them got through, Roberts without a filibuster and Alito with a failed filibuster, means that the judicial-left interest groups like People for the American Way did not earn their donations. Will they get to play a front-place role next time around? It's hard to tell, but considering their lack of effectiveness, it's very possible they won't. Conversely, maybe more people will give in an attempt to influence the next court fight. I'd say that they didn't get to play a very big one with Roberts or Alito, and their only real area of competence is motivating the grassroots and talking to the media. But it doesn't take a big organization to talk to the media, and with the internet around it's very easy to organize huge numbers of people very cheaply. All it takes is an e-mail newsletter, a group blog and a website with the propaganda listed on it. I think the left pressure groups are going to either reorganize around the internet or see themselves replaced by bloggers with initiative - the latter group eclipsed them this time around.
What seems clear is that the judicial left lost today, in part because they didn't have much to fight over.
Alito Confirmed
by neolibertarian
The Senate has just finished voting on the confirmation of Alito; the vote was 58-42, making him the next Associate Justice.
I have to admit, I like the guy and he seems to have one of the best resumes for a nominee in a long time, but I'm not able to be as thrilled as Republicans are. I think he deserved confirmation, the Democratic filibuster attempt at best counterproductive, and that the attacks on him were all overblown and almost all groundless. But still, it's hard to think this is some victory for what I want to see on the Supreme Court.
Aside from the fact that every Justice is a roll of the dice (O'Connor and Souter were both accused of being anti-Roe, with O'Connor being attacked as some right-wing monster), Alito just doesn't seem to pay attention to my personal, 9th-Amendment-heavy, perspective on constitutional jurisprudence.
So I'm glad he got in, but I don't consider it that much of a victory for my beliefs. O'Connor, if nothing else, was a fairly reliable vote for giving the states a role in policymaking. Here's hoping Justice Alito can show her up on that front.
CAP & Swifties
by neolibertarian
Orin Kerr asserts a direct, structural similarity between the CAP and Swifties attacks:The controversy over Alito and the "Concerned Alumni of Princeton" reminds me a bit of the controversy over John Kerry raised by the Swift Boat Vets for Truth in the 2004 election. The basic idea underlying the claim seems to be roughly the same: Decades ago, the nominee did something or took a position that reveals a very deep and extremely serious character flaw. Granted, the nominee has shown only very subtle hints of this character flaw since then. But, critics say, that's only because he is super-clever at disguising just how evil he is. If we look really hard, we can realize that the nominee's impressive record is really a facade hiding something very sinister. That was the bogus claim about John Kerry in the 2004 election, and that is the bogus claim about Samuel Alito now.
To me this seems like a really poor comparison, if only because of the nature of the history being attacked.
Kerry's service record was attacked, after he placed it at the center of his character. The media pumped it up, the convention played excerpts about it all night, they had a movie he had shot himself on a 1970s video camera, we heard all the time about his service and his medals, analysts and pundits suggested that his Vietnam service made him immune to charges of weakeness on Iraq or terror, and in the convention he started his speechby calling himself Lieutenant Kerry, and "reporting for duty."
On the other hand, Alito only ever bragged of CAP membership, that I've heard of, on an application for a job two decades ago. In the hearings he's explained that his connection was trifling, and that seems to be supported by facts (no writings of his showed up in the newsletter, and he was never a board member, meaning the only thing he could've have done beyond joining is possibly made a financial contribution).
Kerry's Vietnam record was put at the center of his campaign, by himself and by media analysts. It was perfectly open to criticism. If he wanted to trade on his Vietnam record then it needed to get scrutiny.
However, it's also quite different in my estimation because Kerry was trying to say something about his character in a nonpolitical way, even though it was for political purposes. He wanted to show various personal traits like loyalty, courage and leadership. Alito was, in 1985, trying to beef up his conservative political credentials, not to make himself seem to have some valuable personality traits. The attacks on Kerry and Alito, correspondingly, are different because the Swifties attacked Kerry's character (implying or stating that he was a liar, a hypocrite, a coward, and so forth) while the Democrats want to make Alito look bad in his political views, suggesting he's secretly a hyperconservative.
The vehicle for the attacks were also not very comparable. The Swifties had a bunch of people acting as witnesses of sorts, saying that they knew Kerry from Vietnam and he would make a bad leader (though I believe it was shown at least a few had no direct contact with kerry in Vietnam, making it hearsay). The Democrats are trying to attack Alito without any witnesses of his sexism or racism, just that he might have been connected to an organization that seems to have included some such people.
Again, though, the major difference is that in Kerry's case of an "impressive record [that's] really a facade hiding something very sinister," it refers to his chosen primary qualification for office (Vietnam service). With Alito, the Democrats are trying to say that there was some huge problem based on one small piece of history that played essentially no part in Alito's judicial record. Now, if there was a group of fellow Princetonians saying that Alito cheated on exams and papers and that he didn't deserve some of his academic credits, it would be awfully similar.
I'm also far from convinced that all the attacks on Kerry's Vietnam service record were false or undeserved.
Conflicting Hawaii Decision
by neolibertarian
The Hawaii Supreme Court overturned the manslaughter conviction of a mother for killing her baby by using crystal meth. Apparently she used it the day of his birth (maybe it catalyzed his birth? I dunno) and he died of it two days later, with meth all through his system.
The ruling is problematic in two ways. One, there's significant overhand here beyond the womb. Though the act in question was during pregnancy (the last possible part of the pregnancy) the death in question was that of a newborn baby - something no state has yet denied the rights of life or personhood. This area is generally light in decisions because very few pregnancies advance to this point without either being wanted or being aborted. It's also very strange that a drug user (presumably an addict) wouldn't have miscarried earlier due to her habit. So this doesn't really conflict with a lot of other rulings, just with common sense. If your newborn dies because of something you did directly before birth, does that mean you didn't do anything punishable to the newborn? The real conflict here is with the illogic of personhood law in this country.
What it far more clearly conflicts with is the decision of many states (most recently and prominently, California and the federal Laci and Conner Law) is the upheld convictions for murderers who attack pregnant women and kill the fetus as well. In California, if you kill a woman cause the death of her fetus (meaning a pregnancy of at least eight weeks gestation) then that's two counts of murder.
But if there's an exception for mothers to kill their own babies (though the HI case was manslaughter, not murder) then it means fetuses are more like valuable property or an investment; you can destroy yours but other people can't. Of course, I HIGHLY doubt that any reasonable court would let that logic stand, because it would be the return of slavery in concept. It mean literally mean that one human was owned by another. Guardianship is one thing, but the power of life and death over our children is never part of guardianship, only the more degrading instances of human slavery.
The conflict ought to come before the Supreme Court, so that they can lay down a little order here. Maybe with Roberts and Alito they'll actually come to their senses and at least decide on a more concrete definition and bright line for personhood.
This, by the way, is why simply repealing Roe - as a lot of abortion opponents advocate - would be insane. It would be like pushing the country back to the 1850s except with abortion instead of slavery. We can't have such radically different conceptions of personhood, especially within the same country and across neighboring states. As Seward called it, that's a recipe for an "irrepressible conflict" because sooner or later it will have to be all one or all the other.
No, personhood has to be standardized across the country because the Constitution protects it. This Hawaii case is just another example of how unclear the Supreme Court has left it all these years by describing when abortion can happen, instead of explaining when a human's rights begin.
Specter's Super-Duper-Precedents
by neolibertarian
For some reason Arlen Specter thinks that 'super-precedents' and 'super-duper-precedents' are not only valid judicial terminology, but also excellent ways to make justifying the right to abortion without having to actually defend the right to abortion. Instead of having to explain why there's a constitutional right to privacy that's just big enough to protect contracveptives and abortions but not have any effect on the drug war, economic freedoms or anything else, all people like Specter have to do is explain that abortion jurisprudence has been settled and therefore it should always be settled.
That arguments sucks. It's intellectually lazy and it's simply a bad way to read the Constitution.
It's especially true because a lot of precedents have been overturned before. The best example is Plessy v. Ferguson being overturned by Brown v. Board of Ed. 'Separate but equal' was overturned and replaced with equality, even though segregation, racism, Jim Crow and the rest were incredibly ingrained in the Southern culture and in constitutional jurisprudence. But there are others, of course.
The legal tender cases involved the payment of Civil War debts with inflated greenback currencies. The debts had been contracted on the basis of specie (gold) money, but it would've been cheaper to pay with the greenbacks. In 1870 Hepburn v. Griswold found that this violated the 5th Amendment due process clause (taking of property without due process). Two SCOTUS nominations later and President Grant got a favorable ruling in 1871 cases allowing the greenback payments of specie-contracted debts based on the implied powers of Congress.
The sodomy case Bowers v. Hardwick in 1986 upheld a Georgia sodomy law. They found no constitutional right for consensual sodomy, from the privacy penumbra or otherwise. The 2003 Lawrence v. Texas case completely reversed that decision and found a rather broad 'liberty' interest protecting adult consensual sex.
When New York state tried to enforce a law limiting the number of hours a bakery employee could work, the baker won in the 1905 case Lochner v. New York. The 14th Amendment liberty of contract protected such decisions by employer and employee (though hypocritically this liberty did not extend to black people in 1896's Plessy and was regularly denied to certain people based on being 'weak-minded' or pseudo-wards of the state, like miners). Adkins v. Children's Hospital in 1923 prohibited a federal minimum wage on the grounds that it violated the 5th Amendment guarantee of liberty of contract (the 14th Amendment being inapplicable to the federal government). But Lochner was demolished and Adkins overruled when West Coast Hotel Co v. Parrish in 1937 came during the New Deal and FDR's pseudo-tyrranical threats to pack a Court of 15, and found that substantial regulation was allowed to violate liberty of contract.
Why is it okay to overturn these precedents, even though I'm positive somebody (like Specter) would argue that precedent demands that Lochner, Adkins or stay overturned? The Supreme Court goes against precedents explicitly and implicitly all the time. Kennedy's majority opinion in Lawrence explains perfectly.Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.
What other explanation could be needed? If a decision is wrong when it's made, then all the confirmations and precedent in the world doesn't make it rightly decided.
Super-precedent and super-duper-precedent is a joke. It's a trick argument to make it seem like Specter and his people are being reasonable, moderate and mainstream. It's an intellectually slothful tactic to shift the burden of proof solely onto those who might wish to overturn a precedent, rather than also examining the basis on which a precedent was created.
Roe should be overturned because when Blackmun authored it he sent an internal memo to the other Justices admitting that his decision was arbitrary in drawing lines. Casey should be overturned for vagueness (just what is an 'undue burden?') and the whole darn thing should be overturned for creating the penumbra right to privacy while at the same time degrading our far stronger constitutional right to liberty (5th, 9th, 14th Amendments, Privileges and Immunities Clauses). And of course, nowhere in the Constitution does it say that personhood doesn't beging until birth; abortion itself is constitutally prohibited by the right to life.
But the point about Specter is that simply being precedent doesn't mean it has to be carried forever. If the Supreme Court is wrong then precedent is no shield against corrections.
Press Spells Alito L-I-B-B-Y
by neolibertarian
The nomination of Alito will not diminish the press' obsession with Scooter Libby being indicted.
The Alito nomination is bad for them to cover. First of all, it replaces a contentious Miers, who split conservatives openly and viciously, with a nomination that most of the Republican coalition can get behind. The one draw for the press of Alito's nomination is that he's conservative. But the Supreme Court is larely beyond a lot of the press, its role as arbitrator, its language and traditions, and all of its complexities. That's why when they report about the Supreme Court, they tend to focus on abortion and affirmative action, rather than philosophies or even the judicial issues like privacy and equal protection.
One example that sticks with me is the Bush v. Gore case in late 2000. The reporters had been covering the case with much excitement (naturally) and when the decision was handed out, they quickly learned that the Supreme Court wasn't going to just say 'Gore' or 'Bush.' The first report was that Gore won, because a reporter (or maybe intern) read the decision incorrectly. That sort of judicial illiteracy persis to this day. There are a lot of judicial-beat reporters who can discuss the Supreme Court with a great deal of experience and erudition, but I don't think that's true at all when it comes down to the general political-beat reporters.
The Libby indictment, however, has tons of stuff to talk about. The press loves a good scandal, of course. That motivates more than anything else. They also love flashbacks to the late 60s and early 70s - that's what makes every military move Vietnam, every Republican Nixon and every reporter Woodward and/or Bernstein. So indicting a White House aide makes them salivate to get bigger fish like Rove, Cheney and eventually Bush. They want to unravel a scandal that will destroy Bush's presidency and discredit the war in Iraq. They are obsessed with the story, it dominates every installment on Hardball, even though there's usually not a lot of new stuff to report, and NBC's David Gregory has been biting the Press Secretary's head off for months over it.
Of course, the Plamegate/Leakgate scandal is never going to discredit the war in Iraq as its currently formulated. Supposedly this was about discrediting Joe Wilson over uranium from Niger, but Joe Wilson was factually incorrect; the Iraqis were trying to get uranium from Niger, as British intelligence has been arguing for years. Now there's some allegations that Judith Plame was just a mouthpiece for Administration arguments about WMDs in Iraq, but before the war everybody agreed that Saddam had weapons - Clinton officials, Democratic primary contenders, the French, the Germans, the British, the UN, everybody. The press generally wants to forget this and go on discrediting the 'quagmire' in Iraq as 'another Vietnam.'
So we're going to hear a lot more about Scooter Libby, see a lot more shots of Karl Rove on TV, and hear reporters fantasizing about indicting Cheney and dragging Bush to testify in court - even as surprising little happens to justify near-continuous coverage of the subject.
Alito Nominated
by neolibertarian
Sam Alito ('Scalito') has been nominated to replace O'Connor on SCOTUS. He's a known conservative and the base will really fall in line, I expect.
Miers Withdraws
by neolibertarian
Citing an impasse over documents requested by the Senate that are protected by lawyer-client privilege for the White House, Miers has withdrawn and the President has accepted it. That's a smokescreen, naturally.
Here's hoping that Judge Janice Rogers Brown or Judge Alex Kozinski get nominated. Both from California, both libertarian-ish conservatives with track records for integrity and intelligence. Brown was born in Alabama the daughter of a sharecropper and war veteran, Kozinski was born in Bucharest the son of Romanian Holocaust survivors. But better than that, they both have finely developed individualist philosophies.
Kozinski is famous for defending the Second Amendment in a federal court decision (the 2nd Amendment rarely comes up at all). He identified it correctly as an individual right. He noted with evidence that genocide has never been perpetrated upon an armed people (speaking as the son of Holocaust survivors). Very cool, considering that many lawyers seem to think that "the right of the people" in the 2nd Amendment is a collective right, while "the right of the people" in the 4th Amendment is an individual right.
Brown is famous for rightly labeling the New Deal as America's "socialist revolution." She made statements defending a constitutional right to property and perhaps to economic interaction.
They both are reputedly highly intelligent, highly ethical and widely respected. I don't know if they'd be accepted as stock conservatives and in that sense they aren't going to immediately ingratiate Bush to his base the way McConnell or Luttig (or others) might. But they're great picks who deserve to be confirmed, and whose perspectives are sorely under-represented on the Court.
Miers Opportunity
by neolibertarian
After reading this post by Orin Kerr at VC about continued reluctance among GOP Seantors to support Miers for SCOTUS, I have to repeat the prediction I made the morning she was announced. Some smart GOP politician (or politicians) with presidential ambitions will take this as an opportunity to split with the President.
He'll couch it in general support for the President - support for the war especially but support for all sorts of other stuff. Then he'll say that he doesn't think Miers has a proven conservative record and maybe add that she doesn't seem to have the credentials. If he's smart he'll completely avoid the 'cronyism' issue, so as not to seem like a Bush-hater. Instead, he'll talk twice as much about the accusations leveled at conservative Miers-skeptics; the White House and Miers supporters have called conservative Miers opponents sexist, elitist and other things as well. The smart GOP presidential wannabe will bring this up because it's really indefensible, especially to the conservative base to whom he'll be targeting his comments.
Some time in 2006 he'll say that the GOP needs to get back to its tax-cutting, budget-cutting soul, and recapture the heart of small government politics. He might mention some things like the medicare entitlement and the highway bill, but he'll be very careful to not blame the White House or criticize the President except very rarely and indirectly. If he's wise he'll blame the Democrats for this mentality and say the GOP shouldn't govern like Democrats.
Then on other issues he'll be careful to stick with the GOP line - on gay marriage, on Iraq, on abortion, on stem cell. This will ingratiate him to the base, allow him to differentiate himself in the eyes of the country, but not pick a fight with a President who still holds a lot of emotional loyalty from the Republicans. In a year the current fighting will have died down in the face of the election, and would-be Presidents who gave the press anti-Bush quotes will be haunted by them in the primaries.
It's possible that Senators won't want to risk separating from the President so early, especially without party backing. But it could really help a presidential candidate to jump out into the lead right now. Not only would the conservative base, scorned and abused by the White House, be grateful to have support, but they would return it. A conservative or moderate-conservative who led the fight against Miers could be a good frontrunner with the base for 2008. It would also show in general a willingness to lead and to take risks, not to mention stand on principle. Of course, it could potentially backfire if the Administration sought to screw you over, but that's unlikely and might even end up getting further support from the base.
If a candidate doesn't wise up and come out against Miers, then there are still a couple issues on which to separate from the White House and cut ahead. Immigration comes to mind, since a boatload of conservatives are obsessed with Mexicans and terrorists coming over "The Border!!!"
But it's better to come out early, and the timing is great on this one. The White House is cutting off its nose to spite the face, and a smart 2008 contender will jump out to pick up this opportunity. The base is straggling and is insulted. It needn't be an anti-Bush attempt, just come out against Miers, but for President Bush, and against the White House's smearing of anti-Miers conservatives. You can hear the anger on radio shows like Laura Ingraham. You can read the frustration and confusion from Michelle Malkin and conservative blogs.
Stepping out now to define oneself as the base's candidate in 2008 is a smart move. It takes guts to potentially enrage the President of your own party, but Presidents are leaders, not followers. If no Senator does it (or does it in a forthright leadership style) then it's just further evidence that there are no executive personalities in the legislature.
Further Alienation
by neolibertarian
Of course I know that my take on substantive due process and constitutional property rights placed me away from most people and academics on the subject of jurisprudence. But it really stops me from straying into hopes when I read stuff like this, from Hugh Hewitt:I am also a serious pro-lifer, and believe that like Lochner, Roe was not only wrongly decided, but must also be reversed, just as Casey must be reversed.
Of course I'm pro-life, but it's the offhanded way Lochner is taken as an obvious mistake. At least most of the time conservatives are either too vague, too focused on other issues or too jurisprudentially illiterate to bring up issues like Lochner. Still, it's obvious that my views would probably put me on the figurative hit list for the GOP. I still choose them in the court debates without any real hesitation, abortion alone being sufficient cause to do so.
I suppose it doesn't help that on the major issue of the day where the GOP is supposedly so draconian and extreme (according to opponents) or so committed and enthusiastic (according to supporters) they tend to talk a surprisingly unambitious game. Repealing Roe/Casey is pretty pathetic. It would just mean that there's no right to privacy and therefore no right to abortion, kicking it back to the states.
Back to the states?!?!?! How can there be a state right to allow abortion? States can't and oughtn't permit such obvious deprivations of life, liberty or property. The states are constitutionally obligated to protect the life, liberty and property of persons in their jurisdictions. Once personhood is defined and established, the rest should fall into place. The repeal-Roe position still leaves mandatory personhood at birth and lets states decide to enforce it earlier. That's hardly an improvement - that's like making slavery a state by state issue (which it theoretically was, before the Civil War - though several SCOTUS cases like Dred Scott and Lemmon were turning it into a nationwide right).
So I'm feeling awfully alienated by the stalwart pro-Miers Republicans, who seem to be taking a pretty robust socially-focused line, and by the stalwart anti-Miers Republicans, who seem to be taking a far more robust Borkian line. Now more than ever I feel the ned to get my caselaw ideas on the website, so I'm making that my next priority.
Political Culture Clash
by neolibertarian
A lot of the defenders of Harriet Miers, a great deal of them from Texas, list loyalty (and its many synonyms) as her chief selling point. What I think most people involved in discussing the nomination (pundits, journalists, politicians, lawyers, etc.) want to hear is more about intelligence, independence and the like.
This strikes me as a clash of political values, and one I've seen before. Certain types of Southerners really value loyalty (especially group loyalty and group identity) and it carries over into politics. Not everybody North and South fits into a stereotype, but it's clear to me at least that this tendency to value loyalty is surfacing in the defense of Miers.
But loyalty isn't what you'd look for from somebody whose defining characteristics ought to be the opposite: objectivity and impartiality. The Supreme Court is a place for judging facts independent of their advocates. It's emphatically not a place for picking your friends's sides.
I can't say she'd be a bad Justice because I don't know. But I can say that defending the pick based on her loyalty is like defending the pick of a Senatorial candidate based on his ability to engineer graft and pork projects.
Brown for SCOTUS
by neolibertarian
I have to restate my support for Janice Rogers Brown after seeing this post yesterday from Bernstein at the Volokh Conspiracy. He pointed out that a lot of bloggers were really hoping for her nomination, even if it seemed an unlikely confirmation.
While we shouldn't expect orthodox anarcho-capitalist rhetoric and decisions from her track record, but she has a good grasp on the decades-long decline of the Supreme Court. She sees its failures in a broader and more fundamental context than vulgar social trends to the left (or right).
The courts, especially the Supreme Court, often ignore or downplay the Bill of Rights, especially the 2nd and 4th Amendments. The right to property, given explicit protection in the 5th and 14th Amendments and implicit protection by the 4th and 9th Amendments, has been cut from the herd of constitutional rights and allowed to be repeatedly trampled by all levels of government. I believe that Janice Rogers Brown has a real grasp on these long-term problems.
While social issues like gays and religion animate a lot of politicians on both sides, the real issues of our natural and constitutional rights are far more important. I think Janice Rogers Brown is one of the best nationally-prominent judges to bring a libertarian perspective to the court.
She might not ever get confirmed, but just calling the New Deal "our own socialist revolution" puts her miles above other candidates.
Miers' Case History
by neolibertarian
Beldar (tip to IP) went through Westlaw and found the state and federal decisions that included Harriett Miers as counsel. There were four from appellate courts in Texas, eight from federal district court, and seven from the Fifth Circuit Appeals courts. She seems to have won many of these cases and done generally quite well - well enough that she successfully defended appellate decisions from being moved to the Supreme Court. Had she been a less able attorney, she would've argued before the Supreme Court and had a notch on her belt, an irony Beldar points out repeatedly.
Of course the real problem for most conservatives is that Miers avoids the apocalyptic battle over judges that's been building for months, years and decades. In fact, a great deal of the momentum behind the various wings of conservatism and Republicanism stem from dissatisfaction with the judiciary and the Supreme Court - abortion, school prayer, the pledge, and so forth. Conservatives want to fight to prove that they can win - and send a message to the Democrats and to lawyers and judges that conservatism is the dominant influence on the future of US judicial decisions.
Personally, as I earlier IMed to a friend when Miers was announced, the difference to me is 20% and 35% at best. Except for a few people either way, I'd probably agree with a Democratic judicial appointee 20% of the time, and a Republican 35% of the time. I'm not a Borkian, I'm not looking for another Scalia (see: federalism and Gonzales v. Raich) or Thomas (see: liberty and the Gitmo cases). If anything I'm more of an anti-Borkian (at least on the 9th Amendment) than the Democrats.
Bork is not that big on rights, he's big on letting elected government make decisions. That's a fundamental mistake conservatives are making. They conflate strict constructionism with legislative majoritarianism. Strictly interpreting the Constitution doesn't have to mean you think the elected parts of government get tons of leeway. Bork isn't big on the 1st or 9th Amendments, but neither is he particularly big on the 2nd Amendment (one of the few libertarian ideas that's still popular in the GOP leadership).
Not that Bork is a bad person or a bad judge, but I really disagree with his constitutional interpretations. If the GOP had an overwhelming victory in their fight with the Democrats, Bork-like appointees is probably what we'd get. While I'd be happy that at least we had intellectually consistent Justices, It still wouldn't be close to what I'd like Justices to be.
It's really hard for me to get involved too closely. I'm rooting for Republicans in general, just 'cause I hate Democrats, but I don't really have a dog in this fight. All I have is a handful of libertarian professors (including several at the Volokh Conspiracy) sitting way up high in the nosebleed seats at this dog fight. Not a lot of cause for commotion.
Bush's Bubble
by neolibertarian
It strikes me that the Miers nomination is at once very consistent and very disappointingly inconsistent with the President's style and track record.
It's consistent because Bush seems to make a lot of decisions on his own, without too high regard for people disagreeing with him. Like any politician, there are major limits on that, but to a greater degree than either of his two immediate predecessors, this President seems to have a fairly independent take of things. He relies on his own innate sense of right and wrong, in other words.
Obviously he makes a great deal of decisions that are calculated. His signing of BCRA, the McCain-Feingold constitutional chokehold on political speech, was a political move since over two-thirds of the country seemed to support it - even though Bush had called it unconstitutional during the campaign against McCain. His unconstrained spending is also likely political, as it helps buy off Congressmen, interest groups, etc. The prescription drug benefit was highly political, to let the GOP go into the 2004 race without the handicap of not passing a prescription drug benefit.
But many other decisions have been very independent. The foreign policy decisions, especially the focus on freedom and democracy, came largely from the President himself.
After taking in information, Bush forms opinions in a bubble. He takes actions after consulting advisors on the political situation, but I believe many of his opinions are made in such a way that they can be surprising and independent. The political processes filter out or tone down a lot of the decisions in the end.
The Miers nomination I believe came from the bubble. He made a decision and was either unknowing or uncaring about potential conservative unrest or backlash on the subject.
It's inconsistent, though, in a surprising lack of vision, either moral, political or ideological. The liberalist foreign policy is inescapably visionary in application and goals. The personal retirement accounts would have meant financial independence and greater wealth for generations of Americans to come, and largely mooted leftist calls for perpetually larger transfer payments. Some aspects of the Medicare Modernization Act, the vehicle for a prescription drug benefit, were roughly market-based reforms around the edges of health care (in order to give Republicans something to take the taste out of voting for the biggest entitlement raise since LBJ). There are countless other examples.
But Harriett Miers doesn't seem to be in this mold. This isn't a big fight, this isn't an ideological battle, and it doesn't seem like it will have dramatic long-term effects on the country.
The bubble effect was there, letting Bush form an opinion by himself, but the vision was lacking. Worse yet, the political compromise was subject to tragically poor aiming. The administration picked somebody that won't be filibustered, but didn't play to their own base.
I'm sure they'll continue to push forward and try to get her confirmed. They really miscalculated on this one.
After abandoning fiscal discpline, giving in to outrageous pork levels, losing the retirement account fight, expanding welfare and even dropping even many rhetorical aspects of small government Republicanism, the White House has a problem. They ticked off conservatives in their base by avoiding the judiciary battle they so intensely desired. They need to do something to bring the base back. The most they can hope for is another SCOTUS nomination in the future in order to hold the fight everybody wanted right now.
Maybe by then they'll get some vision or some sensitivity for their own base.Related Posts (on one page):
- Overdoing It
- Bush's Bubble
Harriett Miers Picked For SCOTUS
by neolibertarian
The President has picked Harriett Miers for the Court to replace O'Connor. She's 60, was Bush's personal attorney, and is currently White House Council. Never having been a judge, there's no record of her decisions or judicial philosophy (though in principle I have no problem with a non-judge being elevated to the Court; Taft and Warren became CJs without beinbg judges) and close friends say she doesn't broadcast her views.
She's reportedly on a no-filibuster list the Democrats put out, saying that if Bush nominated her they wouldn't filibuster. If that's true then Bush picked her because of that and also because of personal trust and loyalty.
Unfortunately, he's seriously offended his conservative base. They sat down and choked through Roberts because at least his 1980s memos and his view of judicial philosophy sounded like what they wanted to hear. But Miers doesn't have that, and they're pissed off. They wanted an enthusuasiatic, passionate, brilliant conservative that wouldn't back down in the face of popular disapproval - in other words, a Scalia.
This is being labeled even by conservatives as an act of ultimate cronyism and a betrayal by the President. Conservatives have been lining up around the block for over five years with judicial nominations high on their minds. Bush effectively promised them he'd appoint Scalias or at least Rehnquists, but now it's looking like the President has three real priorities:
1) Confirmability. That's fine as a priority, but it shouldn't override other qualities. I think the Bush people have been placing more value on confirming justices (since if they're non-conservative it might not be known until the next administration).
2) Personal trust from the President. This is a key quality and David Bernstein pointed out that it seems to be Bush's most important one (bernstein might suggest the ONLY one).
3) Executive deference. A Justice who'll bow out in matters like terrorism, Gitmo, foreign policy, etc. and de facto exempt the President from constitutional oversight on these issues. Thomas did this on one of the Gitmo cases; Scalia wrote a dissent joined by Stevens that criticized the detention without a suspension of habeas corpus, and said that the detention must be ended. I think the Bush people, who value executive prerogative from the Court more than any other issue, learned that brilliant conservatives aren't also reliably pro-White House conservatives.
Personally, this is looking like a pretty poor choice. She'll probably look better as the handlers and spin doctors get more of her bio out there (first woman President of the Texas state bar, etc.) but her positions toward the court are unknown by almost everyone in the world.
The conservative base at ConfirmThem is furious, talking about abstaining from 2006 and 2008, not paying the GOP any money, leaving hte party, abandoning the President, etc. I'm sure they'll calm down in 3 months, 6 months, 12 months and 36 months, but this i defvinitely a defining moment in Bush's relationship to the conservative base.
A lot of conservatives see Bush passing major spending bills, piling on the spending after Katrina, enabling pork in the highway bill, not cracking down on immigrants (though I appreciate his pro-migrant stance, personally), and in general being a pretty poor conservative. Frankly, he looks a lot like his father right now. Putting out an unknown that Republicans are supposed to trust is basically a flashback to Souter.
Except for foreign policy, Bush is incredibly weak with his base. Even there, a lot of conservatives think he should be more aggressive, be more forthright, and even acknowledge the war ont error as a war on radical Islam. I think most conservatives will stand by him on matters of foreign policy, though, but for the Court they're really not seeing any friends in the White House.
All around, the President seems to have made this decision in a bubble without any thought to what conservatives might want or expect, and yet appears to have followed the request of Democrats in picking a 'no-filibuster' candidate.
I've been saying for years that he's an awfully moderate guy, who has yet to veto a single thing Congress has sent him, and it now appears conservatives finally see it. After endless arguments explaining why the Medicare Modernization Plan, the Patriot Act, and so forth were obvious signs of DC-thinking rather than small-government philosophy, maybe conservatives will listen finally.
Of course, they'll start to fall back into line in a few months, as 2006 approaches and state candidates become more interesting and Bush does a few more conservative things. But the base has really been cut loose at a time when the President is seen to be hurting for popular support. Even if Miers turns out to be a wonderful judge, this was a dumb risk to take.
Update: I forgot to add my most important observation: some smart Republicans will quickly oppose this nomination - hopefully Senators on JudComm - and make hay with the GOP base over it. Every candidate for President needs to distance himself from the previous occupant of the White House, and it's great to do it in a visibile way where the base will reward you. And since Miers' resume looks like that of a crony, there's a good way to do it in a non-ideological manner as well.
A discerning Senator or Senators will pick up on it and vote against her - and he'll immediately gain the attention and admiration of many thousands of conservative acitivists (including online) especially if he frames himself as in general a Bush-supporter.
Roberts Confirmed
by neolibertarian
The Senate voted 78-22 to confirm Judge John Roberts as Chief Justice of the United States. The Democrats split evenly, 22 yea and 22 nay, with every Repulican and independent Jeffords voting yea. Here are the nays:
Akaka (D-HI)
Bayh (D-IN)
Biden (D-DE)
Boxer (D-CA)
Cantwell (D-WA)
Clinton (D-NY)
Corzine (D-NJ)
Dayton (D-MN)
Durbin (D-IL)
Feinstein (D-CA)
Harkin (D-IA)
Inouye (D-HI)
Kennedy (D-MA)
Kerry (D-MA)
Lautenberg (D-NJ)
Mikulski (D-MD)
Obama (D-IL)
Reed (D-RI)
Reid (D-NV)
Sarbanes (D-MD)
Schumer (D-NY)
Stabenow (D-MI)
Some interesting votes are Clinton and Bayh, centrists with presidential ambitions - likely trying to warm up the left base and stop from antagonizing the abortion lobbyists. Feingold was also interesting in that he voted to confirm, but he also voted to confirm Ashcroft; I think Feingold just has a certain attitude about executive appointments: give the guy lattitude to govern or rope to hang himself. Biden, who also fancies himself President one day soon, voted nay.
I'm a little puzzled by Dodd and Leahy, who are in no real trouble after voting for Roberts, but who don't seem to gain anything by it. My guess is they actually think him qualified.
Such is presidential politics in the Senate: 100 people who want to be President and always a dozen or so voting on key issues in order to send the right signal to the right groups. By voting against Roberts for CJ, Clinton, Bayh and Biden have bought a little currency with the pro-choice groups, who pay very close attention to judicial confirmations, but have lost comparatively little of their sought reputations as reasonable centrists, since most people don't put nearly so much attention into how people vote on judicial nominees.
The following Democrats, who voted yea, are not running for President in 2008 (or are running as pro-lifers):
Baucus (D-MT)
Bingaman (D-NM)
Byrd (D-WV)
Carper (D-DE)
Conrad (D-ND)
Dodd (D-CT)
Dorgan (D-ND)
Feingold (D-WI)
Johnson (D-SD)
Kohl (D-WI)
Landrieu (D-LA)
Leahy (D-VT)
Levin (D-MI)
Lieberman (D-CT)
Lincoln (D-AR)
Murray (D-WA)
Nelson (D-FL)
Nelson (D-NE)
Pryor (D-AR)
Rockefeller (D-WV)
Salazar (D-CO)
Wyden (D-OR)
Feingold and Lieberman might still try and run, since they have more dark-horse, "maverick" appeal anyway. But this vote was far more relevant in separating the wannabe Presidents from the Senators. Other votes in the future will help signify who's running on the GOP side. Even though it seems like Roberts is so distant from the issue of abortion itself, the importance pressure groups put on the judiciary and the importance of pro-choice leaders to the Democratic party make voting against Roberts a near-mandatory step for primary contenders (even if this rule is unspoken).
Update: Also, the whole pledge of allegiance thing that Republicans hope to use against the lefties is pretty hard to toss at the Roberts nay voters, since to most fair-minded people it's hard to divine a desire to "take God out of the pledge" from a nay vote on Roberts. Even if you're not being all that fair, this is far more about Roe/Casey than the pledge.
