Category ►►► Injudicious Judiciary

May 6, 2008

Gee, He Really Is Conservative - Page 3: Judges

The third in our series about John McCain's conservatism, which turns out, funnily enough, not to be oxymoronic at all. The earlier installments were:

• Gee, He Really Is Conservative - Page 1: Economics 101
• Gee, He Really Is Conservative - Page 2: Health Care

Today, John McCain gave his new stump speech on the judiciary and his own judicial philosophy. You don't need to be a judge or even a lawyer to have a judicial philosophy; I have one, and I'm not a lawyer... I do sometimes play sea-lawyer on the internet, but that doesn't really count.

Being blessed with towering ignorance of the law, I really have little to say about this issue. (Little of value, I mean; that certainly does not imply I'll shut up in future.) Instead, I turn the floor over to my friend Paul Mirengoff at Power Line, who is a lawyer -- or at least claims to be one -- and is a conservative. Or at least claims to be one.

Paul says that McCain's speech on his future judicial appointments was "very strong, very sound." Since I know that many of our readers are lawyers, real ones; and as I've heard that lawyers sometimes disagree with and don't trust the judgment of one another; I have continued the tradition of quoting extensively from McCain's own speech in the "slither on;" in this case, "extensively" means the entire speech. Y'all can pick nits to the utter fulfillment of those greedy, little lumps of coal you people call hearts.

Paul Mirengoff begins, "Senator McCain delivered an address on judicial philosophy at Wake Forest University today. It's very strong, very sound speech." Continuing in that vein, after a long, lazy quotation from McCain's speech, Paul concludes the following (long, lazy quotation from Mirengoff's blogpost follows):

Should McCain's speech satisfy conservatives? Not in and of itself; actions speak louder than words. However, McCain's actions over the years have mostly been consistent with these words. For example, he was a solid supporter of Roberts, Alito, and nearly all of the court of appeals nominees that Democrats attempted to block. His decision to join the Gang of 14 seems to have been a tactical one -- he thought it would maximize success in confirming worthy nominees. One can disagree with that judgment, as I do, without seeing it as inconsistent with a sound judicial philosophy....

For my part, I don't expect that McCain will be perfect on these issues; indeed, even Reagan at times came up short. But I certainly agree that McCain understands most of the basics and that, in all likelihood, his approach to the judiciary will generally be sound.

(But notice, I'm marginally less lazy -- because I made judicious use of the elipsis to spare you the necessity of reading every word, even those that are less dispositive than the ones I chose to quote. Just like Prof. Higgens, "[I have] the milk of human kindness by the quart in every vein." Consider yourself blessed to have found this site; think how drab, listless, and unexciting was your life before discovering Big Lizards!)

In any event, as the mantra goes, read the whole thing. I mean the Power Line whole thing. Oh heck, both whole things; and read this whole thing, too. You'll be as happy as a doornail that you did.

What follows is the entire text of McCain's speech...

Remarks By John McCain on Judicial Philosophy

May 6, 2008

U.S. Senator John McCain will deliver the following remarks as prepared for delivery at Wake Forest University, in Winston-Salem, NC, today at 10:00 a.m. EDT:

Thank you, Ted, and thank you all very much. Dr. Hatch, I'm grateful for your invitation to this great university. And Senator Richard Burr, thank you for that warm welcome to North Carolina and to Wait Chapel. I'm honored to be here, and I brought along a friend. I'm sure you'll recognize him -- my pal, Senator FredThompson of Tennessee.

We appreciate the hospitality of the students and faculty of Wake ForestUniversity, and especially during exams. I know exam week involves some tough moments, likewhen you're up at 3:00 a.m. and have to choose between studying or watching one of Fred's old movies. Most of the students here look confident and ready, so you need no advice from me as final exams draw near. But for those of you who might be feeling a slight sense of panic coming on, all I can say is that a few bad grades don't have to be end of the road -- so just give it your best and move on. An undistinguished academic record can be overcome in life, or at least that is the hope that has long sustained me.

Your kind invitation brings me here as a candidate for president of the United States, and anyone in that pursuit has plenty of promises to make and to keep. When it's all over, however, the next president will be compelled to make just one promise, in the same words that 42 others have spoken when the moment arrived. The framers of our Constitution had a knack for coming right to the point, and it shows in the 35-word oath that ends with a pledge to preserve, protect, and defend the Constitution itself.

This is what we require and expect of every president, no matter what the agenda or loyalties of party. All the powers of the American presidency must serve the Constitution, and thereby protect the people and their liberties. For the chief executive or any other constitutional officer, the duties and boundaries of the Constitution are not just a set of helpful suggestions. They are not just guidelines, to be observed when it's convenient and loosely interpreted when it isn't. The clear powers defined by our Constitution, and the clear limits of power, lose nothing of their relevance with time, because the dangers they guard against are found in every time.

In America, the constitutional restraint on power is as fundamental as the exercise of power, and often more so. Yet the framers knew that these restraints would not always be observed. They were idealists, but they were worldly men as well, and they knew that abuses of power would arise and need to be firmly checked. Their design for democracy was drawn from their experience with tyranny. A suspicion of power is ingrained in both the letter and spirit of the American Constitution.

In the end, of course, their grand solution was to allocate federal power three ways, reserving all other powers and rights to the states and to the people themselves. The executive, legislative, and judicial branches are often wary of one another's excesses, and they should be. They seek to keep each other within bounds, and they are supposed to. And though you wouldn't always know it from watching the day-to-day affairs of modern Washington, the framers knew exactly what they were doing, and the system of checks and balances rarely disappoints.

There is one great exception in our day, however, and that is the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate, and confirm better judges.

Quite rightly, the proper role of the judiciary has become one of the defining issues of this presidential election. It will fall to the next president to nominate hundreds of qualified men and women to the federal courts, and the choices we make will reach far into the future. My two prospective opponents and I have very different ideas about the nature and proper exercise of judicial power. We would nominate judges of a different kind, a different caliber, a different understanding of judicial authority and its limits. And the people of America -- voters in both parties whose wishes and convictions are so often disregarded by unelected judges -- are entitled to know what those differences are.

Federal courts are charged with applying the Constitution and laws of our country to each case at hand. There is great honor in this responsibility, and honor is the first thing to go when courts abuse their power. The moral authority of our judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it. A court is hardly competent to check the abuses of other branches of government when it cannot even control itself.

One Justice of the Court remarked in a recent opinion that he was basing a conclusion on "my own experience," even though that conclusion found no support in the Constitution, or in applicable statutes, or in the record of the case in front of him. Such candor from the bench is rare and even commendable. But it was not exactly news that the Court had taken to setting aside the facts and the Constitution in its review of cases, and especially in politically charged cases. Often, political causes are brought before the courts that could not succeed by democratic means, and some federal judges are eager to oblige. Politicians sometimes contribute to the problem as well, abdicating responsibility and letting the courts make the tough decisions for them. One abuse of judicial authority inspires more. One act of raw judicial power invites others. And the result, over many years, has been a series of judicial opinions and edicts w andering farther and farther from the clear meanings of the Constitution, and from the clear limits of judicial power that the Constitution defines.

Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the State of Missouri. As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and "evolving standards of decency." These meditations were in the tradition of "penumbras," "emanations," and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning. The effect of that ruling in the Missouri case was familiar too. When it finally came to the point, the result was to reduce the penalty, disregard our Constitution, and brush off the standards of the people themselves and their elected representatives.

The year 2005 also brought the case of Susette Kelo before the Supreme Court. Here was a woman whose home was taken from her because the local government and a few big corporations had designs of their own on the land, and she was getting in the way. There is hardly a clearer principle in all the Constitution than the right of private property. There is a very clear standard in the Constitution requiring not only just compensation in the use of eminent domain, but also that private property may be taken only for "public use." But apparently that standard has been "evolving" too. In the hands of a narrow majority of the court, even the basic right of property doesn't mean what we all thought it meant since the founding of America. A local government seized the private property of an American citizen. It gave that property away to a private developer. And this power play actually got the constitutional "thumbs-up" from five m embers of the Supreme Court.

Then there was the case of the man in California who filed a suit against the entire United States Congress, which I guess made me a defendant too. This man insisted that the words "Under God" in the Pledge of Allegiance violated his rights under the establishment clause of the First Amendment. The Ninth Circuit court agreed, as it usually does when litigious people seek to rid our country of any trace of religious devotion. With an air of finality, the court declared that any further references to the Almighty in our Pledge were -- and I quote -- "impermissible." And it was so ordered -- generations of pious, unoffending custom supposedly overturned by one decree out of a courtroom in San Francisco. And now it turns out the same litigant is back for more in the Ninth Circuit, this time demanding that the words "In God We Trust" be forever removed from our currency. I have a feeling this fellow will get wind of my remarks today -- and we're all in for trouble when he hears that we met in a chapel.

In the shorthand of constitutional discourse, these abuses by the courts fall under the heading of "judicial activism." But real activism in our country is democratic. Real activists seek to make their case democratically -- to win hearts, minds, and majorities to their cause. Such people throughout our history have often shown great idealism and done great good. By contrast, activist lawyers and activist judges follow a different method. They want to be spared the inconvenience of campaigns, elections, legislative votes, and all of that. They don't seek to win debates on the merits of their argument; they seek to shut down debates by order of the court. And even in courtrooms, they apply a double standard. Some federal judges operate by fiat, shrugging off generations of legal wisdom and precedent while expecting their own opinions to go unquestioned. Only their favorite precedents are to be considered "settled law," and everything else is fair game.

The sum effect of these capricious rulings has been to spread confusion instead of clarity in our vital national debates, to leave resentment instead of resolution, and to turn Senate confirmation hearings into a gauntlet of abuse. Over the years, we have all seen the dreary rituals that now pass for advice and consent in the confirmation of nominees to our Supreme Court. We've seen and heard the shabby treatment accorded to nominees, the caricature and code words shouted or whispered, the twenty-minute questions and two-minute answers. We have seen disagreements redefined as disqualifications, and the least infraction of approved doctrine pounced upon by senators, their staffs, and their allies in the media. Always hanging in the air over these tense confirmation battles is the suspicion that maybe, just maybe, a nominee for the Court will dare to be faithful to the clear intentions of the framers and to the actual meaning of the Constitution. And then no tactic of abuse or delay is out of bounds, until the nominee is declared "in trouble" and the spouse is in tears.

Of course, in the daily routine of Senate obstructionism, presidential nominees to the lower courts are now lucky if they get a hearing at all. These courts were created long ago by the Congress itself, on what then seemed the safe assumption that future Senates would attend to their duty to fill them with qualified men and women nominated by the president. Yet at this moment there are 31 nominations pending, including several for the Fourth Circuit Court of Appeals that serves North Carolina. Because there are so many cases with no judges to hear them, a "judicial emergency" has been declared here by the Administrative Office of U.S. Courts. And a third of the entire Fourth Circuit Court of Appeals is vacant. But the alarm has yet to sound for the Senate majority leadership. Their idea of a judicial emergency is the possible confirmation of any judge who doesn't meet their own narrow tests of party and ideology. They want federal judges who will push the limits of constitutional law, and, to this end, they have pushed the limits of Senate rules and simple courtesy.

As my friend and colleague Senator Tom Coburn of Oklahoma points out, somehow these very same senators can always find time to process earmark spending projects. But months go by, years even, and they can't get around to voting on judicial nominations -- to meeting a basic Senate duty under our Constitution. If a lobbyist shows up wanting another bridge to nowhere, or maybe even a courthouse with a friend's name on it, that request will be handled by the Senate with all the speed and urgency of important state business. But when a judicial nominee arrives to the Senate -- a nominee to preside at a courthouse and administer justice -- then he or she had better settle in, because the Senate majority has other business and other priorities.

Things almost got even worse a few years ago, when there were threats of a filibuster to require 60 votes for judicial confirmations, and threats in reply of a change in Senate rules to prevent a filibuster. A group of senators, nicknamed the "Gang of 14," got together and agreed we would not filibuster unless there were "extraordinary circumstances." This parliamentary truce was brief, but it lasted long enough to allow the confirmation of Justices Roberts, Alito, and many other judges. And it showed that serious differences can be handled in a serious way, without allowing Senate business to unravel in a chaos of partisan anger.

Here, too, Senators Obama and Clinton have very different ideas from my own. They are both lawyers themselves, and don't seem to mind at all when fundamental questions of social policy are preemptively decided by judges instead of by the people and their elected representatives. Nor have they raised objections to the unfair treatment of judicial nominees.

For both Senator Obama and Senator Clinton, it turned out that not even John Roberts was quite good enough for them. Senator Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. And just where did John Roberts fall short, by the Senator's measure? Well, a justice of the court, as Senator Obama explained it -- and I quote -- should share "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

These vague words attempt to justify judicial activism -- come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama's standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama's standard, even Judge Roberts didn't measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it -- and they see it only in each other.

I have my own standards of judicial ability, experience, philosophy, and temperament. And Chief Justice Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me. And yet when President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsberg to serve on the high court, I voted for their confirmation, as did all but a few of my fellow Republicans. Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise. Those nominees represented the considered judgment of the president of the United States. And under our Constitution, it is the president's call to make.

In the Senate back then, we didn't pretend that the nominees' disagreements with us were a disqualification from office even though the disagreements were serious and obvious. It is part of the discipline of democracy to respect the roles and responsibilities of each branch of government, and, above all, to respect the verdicts of elections and judgment of the people. Had we forgotten this in the Senate, we would have been guilty of the very thing that many federal judges do when they overreach, and usurp power, and betray their trust.

The surest way to restore fairness to the confirmation process is to restore humility to the federal courts. In federal and state courts, and in the practice of law across our nation, there are still men and women who understand the proper role of our judiciary. And I intend to find them, and promote them, if I am elected president.

Harry Truman said that he gave "more thought, more care, and more deliberation" to the selection of judges than nearly any other duty of the office. I will bring that same level of care and caution to my judicial nominations, expecting in return that the Senate will do its own part, and confine itself to the duty of confirming qualified men and women for the courts. The decisions of our Supreme Court in particular can be as close to permanent as anything government does. And in the presidential selection of those who will write those decisions, a hunch, a hope, and a good first impression are not enough. I will not seek the confidence of the American people in my nominees until my own confidence is complete -- until I am certain of my nominee's ability, wisdom, and demonstrated fidelity to the Constitution.

I will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint. I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist -- jurists of the highest caliber who know their own minds, and know the law, and know the difference. My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power. They will be men and women of experience and wisdom, and the humility that comes with both. They will do their work with impartiality, honor, and humanity, with an alert conscience, immune to flattery and fashionable theory, and faithful in all things to the Constitution of the United States.

There was a day when all could enter the federal courthouses of our country feeling something distinctive about them -- the hush of serious business, the quiet presence of the majesty of the law. Quite often, you can still find it there. And in all the institutions of government there is nothing to match the sight of a court of law at its best. My commitment to you and to all the American people is to help restore the standards and spirit that give the judicial branch its place of honor in our government. Every federal court should command respect, instead of just obedience. Every federal court should be a refuge from abuses of power, and not the source. In every federal court in America, we must have confidence again that no rule applies except the rule of law, and that no interest is served except the interest of justice. Thank you very much.

Hatched by Dafydd on this day, May 6, 2008, at the time of 6:08 PM | Comments (3) | TrackBack

April 28, 2008

ID (the Other Kind): Beginning of the Death of the Democratic Party?

Today, the U.S. Supreme Court -- in a shock 6-3 decision (shocking because Justice John Paul Stevens was on the side of the angels!) -- held that states could indeed require voters to show photo-ID before voting... causing Sen. Charles Schumer (D-NY, 90%) to eructate, "This decision is a body blow to what America stands for -- equal access to the polls" (for senior citizens, minorities, and the poor... most of whom, apparently, carry no identification).

The Supreme Court upheld Indiana’s voter-identification law on Monday, declaring that a requirement to produce photo identification is not unconstitutional and that the state has a “valid interest” in improving election procedures as well as deterring fraud.

In a 6-to-3 ruling in one of the most awaited election-law cases in years, the court rejected arguments that Indiana’s law imposes unjustified burdens on people who are old, poor or members of minority groups and less likely to have driver’s licenses or other acceptable forms of identification. Because Indiana’s law is considered the strictest in the country, similar laws in the other 20 or so states that have photo-identification rules would appear to have a good chance of surviving scrutiny.

The ruling, coming just eight days before the Indiana primary and at the height of a presidential election campaign, upheld rulings by a Federal District Court and the United States Court of Appeals for the Seventh Circuit, which had thrown out challenges to the 2005 law.

It's not just Chuck Schumer who is incensed by this ruling, and more generally, by the voter-ID laws that sparked it; almost the entire Democratic party seems up in arms about the very idea of requiring government-issued photo-ID before voters are allowed to vote.

So why are they so adamant? Let's consider a few points that may edge us away from their stated reasons -- concern that "legitimate voters" will be disenfranchised -- and towards what I think is their real motivation.

1. While I agree that the "poor or members of minority groups" are less likely to have government ID, that is entirely by their own choice (or more likely, their own apathy).

Mere lack of money can't stop a voter from getting identification; although the Times doesn't consider it the kind of news "that's fit to print," the related AP story is more forthcoming on this point:

Indiana provides IDs free of charge to people without driver's licenses. It also allows voters who lack photo ID's to cast a provisional ballot and then show up within 10 days at their county courthouse to produce identification or otherwise attest to their identity.

So money is no object; government ID is literally "priceless."

2. Where is the evidence that registered voters who are senior citizens are less likely to have photo-ID from the government than younger voters?

In fact, I wouldn't be surprised to find that they're more likely, not less, to have identification. I suspect this unsourced claim is intended to broaden the pool of putative "victims" of voter-ID laws... and especially to broaden it to include as many Republicans as possible.

The Times article ends a heart-rending story about a black woman, a senior citizen, turned away from the polls in Indiana for lack of ID. The last line: "Ms. Williams, in her early 60’s, is black -- and is a Republican." (Cue melodramatic music.)

Last and most important point. When I say this decision, and the legislation it will spark, could spell the death of the Democratic Party, I don't mean because it will somehow -- metaphysically, perhaps -- make it harder for senior citizens (who are more likely to vote Republican anyway), the poor, and minorities to vote. It won't; even though the latter will still vote in lesser numbers than those who are more well off and those who are not "federally protected minorities," that has nothing to do with any supposed inability to get a photo-ID.

Rather, I think it will inflict a deep wound in the Democratic Party because:

3. Such bills will, when fully implemented -- for example, when extended to the rest of the United States and to include absentee balloting -- make it much, much harder to commit voter fraud... and today's Democratics depend so heavily on fraud, they probably can't survive without it.

Critics of the law make much of the fact that there have been so few prosecutions for voter fraud in Indiana. But that's Indiana, where Republican election officials pretty control the elections. I doubt that voter fraud has ever been a serious problem in that state.

But how about Chicago, Detroit, St. Louis, New York City, Compton, East L.A., New Orleans, Miami, and other cities and even entire states where Democrats control the "standards" required to vote? That is where you're going to find massive voter fraud that turns the Democratic majority into a supermajority -- and the Republican minority into political impotence.

Take Loretta Sanchez: She first won California's 46th district in 1996, beating "B-1" Bob Dornan by 984 votes. California officials threw out 124; and when Congress investigated, they found 624 more votes that were definitely fraudulent... which reduced Sanchez's lead down to 236 votes (out of about 100,000 votes cast). At that point, not being able to prove that the voter fraud Congress found was enough to flip the election, the House for political reasons voted to end the investigation.

But look here... according to a column by Wall Street Journal writer John Fund, the INS subsequently found that as many as 4,023 ballots were cast in the 46th district by "illegal voters." But since there was no way to know for sure whether these four thousand Hispanic non-citizens and unregistered Hispanic voters voted for Loretta Sanchez or Bob Dornan, that could not be used in the investigation of her "victory."

(Much of this work was done after the House voted to terminate the investigation, and the full House finally shut down the committee and INS investigation before it could find even more voter fraud, thus embarassing Newt Gingrich even further.)

But there is more in that same John Fund column:

In 2002, Dean Gardner, a losing GOP candidate for California's state legislature, sent out a survey to 14,000 first-time voters. A total of 1,691 surveys came back. The results were startling: 76 people admitted that they weren't citizens but had voted, while 49 claimed not to have registered at their correct residence, as the law requires. Gardner lost by only 266 votes.

In the 2000 election, as the Missouri secretary of state later discovered, 56,000 St. Louis-area voters held multiple voter registrations. No one knows how much actual fraud took place, but it may have played a role in the Democratic defeats of incumbent Republican senator John Ashcroft, who lost his seat by 49,000 votes, and gubernatorial candidate Jim Talent, who lost by 21,000 votes....

A Post analysis [of the 2000 presidential election vote in Florida] discovered that 5,600 people voted whose names matched those of convicted felons. "These illegal voters almost certainly influenced the down-to-the-wire presidential election," the Post reported. "Of the likely felons identified by the Post, 68 percent were registered Democrats."

Note that this only counts actual, bona-fide election fraud; Democrats also have an array of legal or quasi-legal ways to prevent enemy votes from being counted, ranging from closing polls in Republican-leaning districts earlier than those in Democrat-leaning districts, to hypercritical challenging of Republican votes by elections boards, to selective recounts, all the way to actually filing lawsuits attempting to suppress the Republican vote (as in the Florida cases filed in Martin and Seminole counties in 2000, seeking to disenfranchise 25,000 absentee voters). None of these would be affected by voter-ID laws.

I believe that voter fraud increased substantially after President Bill Clinton signed the motor-voter bill in 1993 -- which I vigorously opposed from the very beginning: If a person has so little interest in the franchise that he won't bestir himself to register unless he's practically forced, then I don't want him voting at all. Fund evidently agrees:

Why is such activity proliferating? It flows from the success of Democratic lawmakers in pushing aside clear, orderly, and rigorous voting procedures in favor of elastic and "inclusive" election rules that invite manipulation. A machine for corruption is the 1993 "Motor Voter Act," the first bill that President Clinton signed. The law requires government officials to allow anyone who renews a driver's license or applies for welfare or unemployment to register to vote on the spot, without showing ID or proof of citizenship. It also allows ID-free registration by mail. The law also makes it hard to purge voting lists of those who've died or moved. All this makes vote fraud a cinch, almost as easy as when Tammany Hall handed out pre-marked ballots.

In California, it is actually against state law for polling places to demand any form of ID that indicates citizenship. Not even Democrats try to defend that on its own grounds; it was simply pushed through the legislature in a power play. There can be no other purpose for such a bill than to make committing voter fraud as easy as taking a pie in the face.

ACORN (Association of Community Organizations for Reform Now), a socialist group that agitates for various left-wing causes, is the king of registration fraud, I suspect, having registered thousands and thousands of fake voters. But they have many competitors, including the Public Interest Research Group and Project Vote... nearly all of whom lean very far to the left.

I am convinced that it is this fact -- not weird speculation about the poor and certain minorities and their lack of interest in obtaining IDs -- that actually animates and drives the intense Democratic opposition to voter-ID laws across the country. But why would Democrats be so anxious to lock into place a system that practically begs for fraudulent voting -- unless they believe they really and truly need election fraud to stay in power?

I take their own obvious opinion of themselves and their election strategy very seriously. Thus I say again: If voter-ID bills sweep the rest of the country (the 30 states, plus D.C., that have no requirement to show a photo-ID before voting), and especially if it is extended to absentee balloting, then the Democratic Party as we know it today could collapse. It would most probably be replaced by a new and much more moderate Democratic Party. (It's much less likely to be replaced by a different party, since we have been stuck with these two for more than 150 years.)

But either way, the heyday of the contemporary, ultra-leftist Democratic Party of 2008 -- that can dither between nominating Hillary Clinton (left) or Barack Obama (lefter); that can openly call for America to declare defeat and go home from a war we're winning; that responds to a possible recession by proposing staggering tax increases (economic policy which even John Maynard Keynes rejected); that is willing to ally itself with America's enemies (and Islamic religious fundamentalists), applauds Communists like Oogo Chavez and Raul Castro, and argues that the CIA cannot interrogate captured foreign terrorists held abroad any harsher than police can interrogate an American citizen suspected of robbing a convenience store; that is so radical, it cannot gain power except through voter fraud -- that kind of Democratic Party is soon to pass from history.

It will not be missed.

Hatched by Dafydd on this day, April 28, 2008, at the time of 5:49 PM | Comments (14) | TrackBack

March 25, 2008

Justice vs. Justices

So today, the Supreme Court -- by a somewhat surprising 6-3 vote, with Justice John Paul Stevens in the majority (!) -- held that the President of the United States (that would be George W. Bush for a few more months) has no authority to order states to comply with elements of international treaties... in this case, with a ruling by the International Court of Justice at the Hague, a.k.a. the "World Court":

In a death-penalty case that has become an international issue, the Supreme Court declared on Tuesday that President Bush had no power to tell the State of Texas to reopen the case of a Mexican who has been condemned for murder and rape.

By 6 to 3, the court ruled that the president went too far in 2005, when he decreed that the states had to abide by a 2004 decision by the World Court. That decision found that several dozen Mexican citizens who had been sentenced to death in the United States had not been given the assistance from Mexican diplomats that they were entitled to receive under an international treaty.

It's interesting that nobody appears to be arguing that Jose E. Medellin and his fellow bangers might be innocent of kidnapping two teenaged girls -- Elizabeth Pena, 16, and Jennifer Ertman, 14 -- gang-raping them repeatedly, then murdering them so they couldn't identify their assailants; they just complain that Texas didn't tell him he had to right to chat with someone from the Mexican diplomatic mission, which is required by some treaty we signed.

From the Criminal Justice Legal Foundation:

Following the rapes, the men dragged the bleeding girls to a wooded area as they begged for their lives. Two men initially tried to strangle Jennifer with a belt wrapped around her neck with one pulling at each end. When the belt broke, they strangled her to death with a shoelace. Medellin later complained, “the bitch wouldn’t die,” and it would have been “easier with a gun.” Elizabeth was also strangled to death with her shoelaces. The murderers then divided money and jewelry taken from the girls and several joined Medellin at the home of one of the men’s brother and sister-in-law. There, they bragged about the rapes and murders. Medellin explained to the sister-in-law that the girls had been killed to prevent them from identifying him and his accomplices. A few days later, the couple reported the crime to police.

The Justices held that the president has only two sources for his power:

• Legislation from Congress, which he is allowed (required) to enforce;
• Plenary powers inherent in the office, according to the Constitution.

Since neither gave Bush authority to tell Texas to hold a new trial in this case, his order, which Texas ignored anyway, was null and void.

Naturally, I agree with this ruling; I thought Bush's original order was a craven surrender to the forces of leftism. But the real reason for this post is that I am truly anxious to see how liberals are going to turn this into an attack on President Bush.

I just know that somehow, his attempt to enforce "international law" at the expense of American sovereignty and of states' rights -- the rights of one of the original Confederate states, yet, his home state! -- will be twisted by some arcane mechanism into an indictment of Bush himself, not so much of the Court (that decision is given good blocking by the presence of Stevens in the majority).

We're currently accepting entries demonstrating how the liberal Left will use this as a stick to bash Bush. No lucicrous theories, please; give us realistic scenarios by which Democrats can argue that this really proves that Chimpy McBushitler is a racist, sexist, homophobe, or other kind of bigot.

Here is our own entry:

Please post your own entries in the comments section.

Hatched by Dafydd on this day, March 25, 2008, at the time of 4:40 PM | Comments (9) | TrackBack

March 7, 2008

Homescuttled: California Educational Establishment Squashes Homeschoolers

In a ruling almost certain to ignite a chalkboard revolution, a California appellate court unanimously (3 to 0 in In re Rachel L., et al.) held, in essence, that parents cannot homeschool their kids unless the parents have a valid teaching credential for the appropriate grades.

And of course, in order to get a valid teaching credential, you must attend a "multiple subject teacher preparation program." This requirement is only satisfied by getting a BA in Education, or else taking a post-graduate course of study for at least one year; and it must include student teaching.

In other words, for all intents and purposes, the court has ruled that only credentialed teachers can teach their own kids at home. Others who want their kids taught at home must hire a tutor with a state teaching credential, as above. This is a full-blown assault on parents who don't want their kids indoctrinated in the latest leftist fads in the public schools, but who haven't enough money for private tutoring or a private school, and who cannot find a low-cost religious school near enough for their kids to attend.

At this point, it appears the only option for parents who don't like what their kids are taught in the public schools is to form their own private school -- and then get the state to certify that school. This may be difficult, as it's in the vested interest of school districts to have as large an enrollment as possible in the public schools, since that is the basis of the school's budget as set by the state. In addition, the California Department of Education is in thrall to the California Teachers Association, and the CTA hates and despises homeschooling... because the moms and dads who teach their own kids obviously have no reason to join the union.

Tthus, there is little incentive for a school district to certify any private school that is not a big corporation who can take the district to court to force certification.

I'm not a lawyer, but I sometimes play one online, to my own amusement. (And to the hysterical consternation of real lawyers, such as Patterico, Beldar, and the lads at Power Line, who seem to believe that graduating from law school, passing the bar exam, and practicing as attorneys for decades gives them some sort of superior "knowledge" about the law. Faugh! Bourgeois credentialing fetishists.) Reading through the In re Rachel L. decision, it looks like the appellate court is on fairly firm legal ground... which only shows that "the law is a ass, a idiot," as Beadle Bumble observed in Dickens' Oliver Twist.

The mandatory schooling laws were enacted at a time when many parents saw no purpose in their kids learning anything beyond a 2nd or 3rd grade reading ability and "sums." And the law was also passed in the progressive/"liberal fascist" era, when those running the country firmly believed that it didn't take parents to raise a child... it took the entire nation, and parents were merely unhelpful roadblocks to statist indoctrination. It took... trained and credentialed "experts."

Nowadays, parents pulling their kids out of school almost never do so because they don't want them to be educated; they pull their kids out because they do want them educated, and they don't believe their pathetic public school system is up to the job. It's long overdue to revisit those laws and make some very significant changes... while we still can.

The court in the current case relied much on In re Shinn, 195 Cal.App.2nd. 683, decided in 1961; but part of that ruling found:

To qualify as a bona fide school, a place of learning must have competent teachers capable of teaching. The evidence indicates that appellants, in conducting their self-education program, failed to fully comply with Education Code, section 7901, setting forth the courses required to be taught at a private school. Dr. Shinn admitted that the children did not receive any instruction in civics or in California history. Home education, regardless of its worth, is not the legal equivalent of attendance in school in the absence of instruction by qualified private tutors. Accordingly, the juvenile court had evidence to support its finding that the Shinn children were not being instructed in a private fulltime day school by persons capable of teaching. It was justified in concluding that appellants violated the compulsory education law.

In the current case (In re Rachel L., et al), the appellate court noted the following:

The attorney representing the younger two children asked the juvenile court to order that the children be enrolled in a public or private school. The dependency court declined to make such an order despite the court’s opinion that the home schooling the children were receiving was “lousy,” “meager,” and “bad,” and despite the court’s opinion that keeping the children at home deprived them of situations where (1) they could interact with people outside the family, (2) there are people who could provide help if something is amiss in the children’s lives, and (3) they could develop emotionally in a broader world than the parents’ “cloistered” setting.

Note that in both Shinn and Rachel L., courts found specifically that the homeschooling was academically inadequate. In addition, in the current case, the dependency court also found that the kids were kept in a "cloistered" environment and didn't interact sufficiently with kids outside the family.

So it's possible a better case could be made for homeschoolers being considered a "private school" if they did actually teach all subjects required in public school -- and also enrolled more than just the kids of one family. Thus, if a group of parents got together and created a private school, they might have a better case, even if they were not able to get the local school district to certify them. (They could perhaps appeal on the basis of bias, if they could show that their education skills were demonstrably as good as those of credentialed teachers at the local public school.)

But a much better case can be made for what I consider the real answer to the question of homeschooling: The California state legislature should add a new teaching credential for non-institutional teachers.

This credential should not require attending Ed school or engaging in a year of student teaching... which would be beyond the resources of most mothers or fathers. But it should require the potential homeschooling parents to take a test to ensure they know the required subjects well enough to teach them, plus some standardized testing of the kids to ensure that the kids are not just "learning the Bible" (or the Koran) and nothing more.

With such a credential, parents would of course legally be allowed to teach their own children, even without having to turn themselves into a private school (a kludgey work-around for the obvious animosity of the Department of Education towards homeschoolers).

The same new teaching credential should cover another kind of teacher as well, one with relevant of "life experience" to take the place of the "multiple subject teacher preparation program" and student teaching. It's unconscionable that, for example, a military instructor with years of experience training officers and enlisted men can't teach high school; but a sheltered 21 year old with a BA in Education from Cal State and a year of student teaching -- even with only the bare minimum subject-matter knowledge -- is qualified to teach any subject in any public school, except foreign language.

Naturally, the majority Democrats in the legislature will kill such a bill in committee; but that's fine... because that will give Republicans challenging the Democratic incumbents a real issue to use to fight their way into the state Assembly or Senate... an issue that appeals across the board from left to right, and especially among black, Hispanic, and other minority parents whose children are stuck in dreadful school districts -- as well as suburban soccer moms who are increasingly unhappy with the local district's NOW, NARAL, GLADD-written curriculum on sex education; their AIM and La Raza-written curriculum on California history (Aztlan!); the AMA's push to distribute condoms and teach kids how to use them in middle school; and the American Psychiatric Association recommendations on drugging kids in classrooms without even parental notification, let alone consent.

California is a liberal state; there is no doubt about it. But it's not as liberal as New York or Massachusetts... obviously, seeing how the vote runs here -- not just for the Governator but for president, too. In 2004, John Kerry won California by only 9 points, compared to 19 points in New York and a whopping 25 points in Kerry's home state. It's absurd that Democrats utterly dominate both chambers of the legislature. But one reason is that Republicans haven't been able to articulate any solid reason why they should oust incumbent Democrats.

Well, now they can. If, that is, the GOP can get off the stick and on the hump and start proposing popular, party-line crossing legislation... like making it easier for parents who want to homeschool and retired professionals to get credentialed, without having to drop everything and go back to college all over again.

There are some fields where you only want trained experts to participate. But when it comes to educating kids, having a knowledgeable and caring teacher and a disciplined environment (where kids can be actually punished for acting out, for example), is far more important than "expert" credentialing.

Hatched by Dafydd on this day, March 7, 2008, at the time of 7:36 PM | Comments (11) | TrackBack

November 12, 2007

Federal Judge Declares "Mistrial" Equivalent to "Acquittal"

U.S. District Judge Benjamin H. Settle -- a Bush-43 appointee -- has found a novel way to prevent a cowardly Army lieutenant from having to stand trial at a court-martial for refusing to deploy to Iraq... and for calling the Commander in Chief a war criminal:

A federal judge has blocked the Army from conducting a second court-martial of 1st Lt. Ehren Watada of Honolulu, an Iraq war objector based at Fort Lewis, Wash., saying it's likely the second trial would violate his constitutional rights....

U.S. District Judge Benjamin H. Settle ruled yesterday that no court-martial will be held for Watada, a 1996 Kalani High School graduate, pending the outcome of his claim that it would violate his Fifth Amendment rights by trying him twice for the same charges.

Watada's first court-martial ended in a mistrial in February. Settle wrote that the military judge likely abused his discretion in declaring the mistrial.

Say, that's a good one: Judge Settle has just created three novel legal principles in one sitting... which bests the record of Charlemagne "Chipmunk Cheeks" Brandenborjk, who once consumed eleven distinct varieties of turnip borscht in a single meal. Judge Settle settled the following burning (at least smoldering) legal questions:

1. Does the principle of "double jeopardy," by which a person acquitted of an offense cannot be tried again on the same charge, extend also to cover prosecutions that end in a mistrial with no verdict at all? Judge Settle says Yes, thereby upending about thirty-eight decades of case- and statutory law.
2. Do the ordinary civilian courts have jurisdiction over military officers being tried in courts-martial by military judges for a military offense against the Universal Code of Military Justice during wartime? Judge Settle says Yes, thereby startling the stockings off'n Gen. George Washington.
3. Can a civilian judge look into the heart of a military judge and judge that the judge only called a mistrial for sneaky, underhanded reasons... and not because the defendant first stipulated X, and then based his defense on the denial of X? Judge Settle says Yes, and then goes on to guess what playing card you're hiding in your pocket.

Oh well; fools rush in where angels have dirty faces.

As to the first principle, most judges have accepted the basic idea that double-jeopardy only kicks in when there's been an actual verdict of not-guilty. I've never heard before that prosecutors are barred from retrying a defendant after a mistrial; perhaps one of our many lawyer-readers can enlighten us on this fine point of law.

The second is interesting, as it implies that military courts are inferior to civilian courts... even when trying military charges during wartime. (In his next case, Judge Settle is going to pick the 2008 Miss America and award last month's World Series to Colorado.)

But it's the third principle that's really wicked cool: According to Judge Settle -- who served for three years in the Judge Advocate General (JAG) corps -- anytime the Army (or presumably any other service) court-martials some malcontent, rabble rouser, or boot-quaking yellowbelly, any district judge in the general vicinity can step in and stop the trial on the grounds that he personally thinks the military judge is in cahoots with the prosecutor.

In February, military judge Lt. Col. John Head unexpectedly declared a mistrial in the third day of Watada's trial as the soldier prepared to take the stand in his own defense.

Head did so after he expressed concern that Watada did not understand what the soldier had earlier agreed to in what's called a stipulation of facts because it conflicted with his defense.

Now there's some obvious skulduggery on the part of Col. Head!

Happily, the Honolulu Advertiser has persuaded a fair-minded and unbiased analyst to give his considered opinion:

Honolulu attorney Eric Seitz, who represented Watada at the time, said yesterday that he believes the latest federal court decision means the case against Watada essentially is dead.

The Army can appeal the case to the 9th U.S. Circuit Court of Appeals, which would likely be unsuccessful, Seitz believes, or even the U.S. Supreme Court.

Seitz, an experienced military law attorney, said Watada's lawyers should resubmit his resignation and the Army should accept it "and put an end to it."

Sage advice from Watada's former attorney.

At some point, President Bush has got to put his foot down anent the clear and unambiguous distinction between military justice and civilian procedures: We simply cannot have the federal courts -- which are themselves completely unable to protect us from known terrorists -- monkeying with duly constituted courts-martial to make them equally worthless.

And while we're on the subject, President Bush needs to reach right into the State Department... and fire any diplomat who refuses to accept a posting to Iraq. That plus a vigorous prosecution of Lt. Ehren Watada would go a long way towards refocusing our governmental resources on stopping the bad guys, rather than endlessly debating the provenance and niceties of the Iraq war.

Hatched by Dafydd on this day, November 12, 2007, at the time of 7:34 AM | Comments (23) | TrackBack

November 9, 2007

Fake Post on Attorney General Michael Mukasey

This is a "fake post" because all I plan to do is quote liberally from a New York Times story... then make a stupid, "shaggy dog" joke at the end. So stop reading! Don't proceed any further, I beg of you... it's all just a colossal waste of your valuable time.

From today's Times:

The attorney general’s post became vacant in late August when Mr. Gonzales stepped down. For months, he had faced severe criticism over accusations that political calculations played a part in the department’s dismissal of some United States attorneys last year and over his role in shaping the administration’s policies on torture and electronic surveillance.

Mr. Mukasey was initially hailed by Democrats as a leader who would bring welcome change to the Justice Department. His nomination had been recommended by Senator Charles E. Schumer, Democrat of New York, a member of the party leadership familiar with Mr. Mukasey from his service on the bench in New York.

On the first day of his confirmation hearings, Mr. Mukasey said he would resign if directed by the White House to take any action he believed was illegal or violated the Constitution, winning Democratic praise [..."And there was great rejoicing"]. On the second day of his testimony, Mr. Mukasey sidestepped the question of whether waterboarding was torture and also suggested that the president’s Constitutional powers could supersede federal law in some cases [..."there shall be weeping and gnashing of teeth"].

Those responses stirred strong Democratic opposition, throwing his confirmation into question.

Sen. Chuck Schumer (D-NY, 100%) appears to have known Michael Mukasey from long back; and Schumer, relying upon his own fond memories instead of the intensive vetting and interviewing they usually use, believed that Mukasey was the ideal man to turn the Department of Justice into the Department of Bush Bashery.

Based on past experience, Schumer clearly expected Mukasey to become a thorn in the president's eyes, eventually forcing President Bush to reject all of the various "tortures" that he currently allows CIA interrogators to employ:

• Shouting at top al-Qaeda prisoners
• Making them stand at attention
• Waterboarding them
• Even giving them the horrific and internationally condemned "belly slap"

Perhaps, Schumer fantasized, Mukasey's relentless opposition would force Bush to release all of the terrorist prisoners at Guantanamo Bay into ordinary civilian court, where liberal judges could swiftly dismiss the cases -- when the government proved unwilling to yank military leaders from the field to the courtroom and hand over critical, classified national-security documents as the defense demanded.

Surely Schumer daydreamed that he would be able to parlay these dismissals into a campaign theme that Republicans enjoyed torturing innocent people... just for kicks. But suddenly, Mukasey threw a monkey wrench into the ointment. He became a Bushenstein's monster, making it clear whose side he was really on.

Schumer and the Democrats found themselves trapped in a world they had made: Having brought his name up in the first place and pushed him so hard, they could not turn on Mukasey when they realized how different he was than Chuck Schumer remembered. The senior senator from New York would lose so much face, he'd look like Red Skull. Or maybe Alan Cranston.

Clearly, the Democrats were stunned and hurt by this about-face on Mukasey's part; and I'm sure they've spent many a sleepless night wondering what bribes, threats, or other inducements the president must have offered the Attorney General to get him to switch like that.

But I think they've missed an obvious answer: Has anyone ever considered the possibility that... Judge Mukasey simply grew in office?

Well, see, I warned you about this "post" -- charlatanism, through and through. But you just wouldn't listen. And as Larry Niven is wont to say, "not responsible for advice not taken."

Hatched by Dafydd on this day, November 9, 2007, at the time of 5:55 PM | Comments (2) | TrackBack

October 10, 2007

Don't Throw Illegals in That Breyer Patch

A San Francisco-based federal judge, who grew up in San Francisco, a graduate of UC Berkeley's Boalt Hall Law School, former Watergate prosecutor, who worked as a counsel at the Legal Aid Society in San Francisco for his first job as an actual lawyer, has put the kibosh on a crazy scheme to send letters to businesses warning them about employees whose Social Security numbers don't match their names.

See if you can guess which recent president appointed Judge Charles Breyer, younger brother of you-know-who, to the bench.

Breyer said the new work-site rule would likely impose hardships on businesses and their workers. Employers would incur new costs to comply with the regulation that the government hasn't evaluated, and innocent workers unable to correct mistakes in their records in the given time would lose their jobs, the judge wrote.

"The plaintiffs have demonstrated they will be irreparably harmed if DHS is permitted to enforce the new rule," Breyer wrote.

The so-called "no match" letters, including a Department of Homeland Security warning, were supposed to start going out in September but were held after labor groups and immigrant activists filed a federal lawsuit.

Can someone please explain to me again why it will be good for the nation if social conservatives cast a "protest vote" for a third-party candidate in 2008, making it more likely that Sen. Hillary Rodham Clinton Rodham (D-Carpetbag, 95%) will become President Hillary, thus getting to appoint the next three Supreme Court justices plus hundreds of other federal judges? Will her nominees be more like Justices Roberts and Alito -- or more closely resemble Judge Charles Breyer and his big brother Stephen?

[P]laintiffs, which include the AFL-CIO, the American Civil Liberties Union and the U.S. Chamber of Commerce, saw the decision as a significant victory against a program they believe would foster discrimination on the work site, lead to job losses by lawful employees and expose businesses to additional expenses and the fear of prosecution.

Remember, we're only talking about DHS sending letters to businsses whose employee names don't match the Social Security number the businesses provided and warning those businesses that there are grim consequences for defying immigation law. I wonder how Judge Breyer would rule on a southern-border security fence?

So the next time "anti-amnesty" conservatives demand to know why we're not enforcing the immigration regulations that are already on the books... rather than blaming Bush first, they should instead try asking Judge Breyer and the scores of other federal judges just like him, who see it as a terrible and unconstitutional burden that businesses be forced to make an effort to determine if their employees are legally allowed to work; that county precincts take at least a quick peek at some picture I.D. before allowing someone to vote; and that the Border Patrol attempt to, you know, guard the border.

While beholdest conservatives the mote in Republicans' own eye, and beholdest not the Rock of Gibralter in the eye of the Democrats?

Hatched by Dafydd on this day, October 10, 2007, at the time of 9:05 PM | Comments (7) | TrackBack

September 25, 2007

Military Tribunals Finally Listening to Big Lizards' Advice

Last June, a pair of judges on U.S. military tribunals issued a ruling that may be the most boneheaded technicality in American judicial history. (They were not ruling on the same case, but they used the exact same excuse in two different cases to dismiss all charges against enemy combatants, holding that the military tribunals themselves had no jurisdiction.) We wrote about it at the time:

In what AP calls "a stunning reversal for the Bush administration's attempts to try Guantanamo detainees in military court" -- but which rational observers would call "a shockingly thin example of dismissal by technicality" -- a military judge has dismissed murder charges against a detainee at Guantánamo Bay... because the military's combat status review tribunal only classified him as an "enemy combatant," rather than as an "unlawful enemy combatant"...

The law says that only those persons who are qualified to be designated as unlawful enemy combatants can be tried; the clear intent and substance of the law is not affected by whether the earlier tribunal used the same words as the later-enacted law, but by whether they used the same standards... and Judge [Army Col. Peter] Brownback should jolly well understand that.

All he needed to do was check that the criteria used by the earlier tribunals to declare someone an "enemy combatant" are the same as those that used today to declare someone an "unlawful enemy combatant." Maybe this is the non-lawyer in me; but it was utterly clear to everyone, including the detainees, that the entire purpose of the status-review tribunal was to determine whether they were bad enough to warrant trial by a military tribunal.

The detainees knew exactly what that meant: They knew that if they were found to be "enemy combatants," they would be tried by a military court. Now the defense argues -- and the judge, Army Col. Peter Brownback, seems to have independently argued himself into believing -- that the trivial difference in words violates the rights of the detainees, because they didn't know they were in jeopardy of trial if found to be enemy combatants... which was the very term used at the time to designate those detainees eligible for trial!

The two judges -- Brownback and Navy Capt. Keith Allred -- ruled not only that they could not preside over the cases against the two enemy combatants (one of which was the infamous Salim Ahmed Hamdan of the even more infamous Hamdan Supreme-Court decision), they could not even hear evidence about whether the two were, in fact, "unlawful enemy combatants," as opposed to mere "enemy combatants." They decided they (or any other tribunal judge) lacked any jurisdiction whatsoever, and all the cases against all the detainees should be dismissed.

It was like a Barry Sheck dream come true.

Fortunately, a three-judge panel of the Military Tribunal Appellate Court reads Big Lizards. At least, I can only conclude that, as they used virtually the same argument today in overturning the decision of Judge Brownback as we argued in the previous post last June. (They did not specifically consider Allred's decision; but since it was identical with that of Judge Brownback, one presumes the same ruling will reverse that of Allred as well; I wonder if he will mulishly force the court to do so explicitly?) According to the New York Times:

The three appeals judges said yesterday that Judge Brownback had “abused his discretion in deciding this critical jurisdictional matter without first fully considering” the government’s evidence. The appeals court sent the case back to Judge Brownback for further consideration....

The military appeals court said in its ruling yesterday that Judge Brownback was wrong in concluding that he did not have the authority to decide whether a detainee was an “unlawful” enemy combatant, which would give his court the power to hear a war-crimes case.

The court said the trial judge could hear the government’s evidence that a detainee was an unlawful combatant. An unlawful combatant, for example, could be a fighter who does not wear a uniform and conceals his weapons.

It's hard to fathom just how stupid were the original decisions. I took a stab at in the June post; but reading it over, I don't think I succeeded. Let's see if I can do better in my second time at bat:

1. Congress originally passed a law setting up a system of military tribunals. The basic procedure was that the president first had to evaluate every detainee's case and determine whether each was or was not an "enemy combatant." Those determined to be enemy combatants would then be tried by the tribunals, while the rest would have to be released.
2. They went through the process; the Pentagon held hearings and determined that 80 of the 300+ detainees qualified as enemy combatants. They put them on trial. (The classification hearings determined that a number of detainees used to be enemy combatants but were no longer; in several well-known cases, it became clear the Pentagon was punked.)
3. But before the trials, Hamdan went to the Supreme Court and successfully argued that the procedures at the trial itself were unconstitutional. The Supreme Court did not hold that there was anything wrong with the process that classified Hamdan and the other 79 as "enemy combatants," nor that there was anything wrong with the label itself.
4. But when Congress enacted a new law, responding to the Hamdan decision, they used a slightly different label: They said that only "unlawful enemy combatants" could be tried. However, they used the exact, same criteria to determine status as an unlawful enemy combatant as had been used under the previous law to determine status as an enemy combatant. The two terms were de-facto identical, and even de-jure -- if one dug so deep as to consider the definition, not merely the label.
5. Yet when the first two cases came to trial, Allred and Brownback both ruled that they lacked jurisdiction to hear the trials, because Hamdan and Omar Ahmed Khadr had only been designated "enemy combatants," per the first law, not "unlawful enemy combatants," per the second.
6. This might have been all right... except that they also ruled that they lacked jurisdiction even to hear any evidence that the two defendants were, in fact, unlawful enemy combatants under the new designation; or that, in fact, the two terms had identical definitions.

This is the ultimate in technicalities, exactly the sort of thing that confusticates ordinary people about the American judicial system: Horrific murderers and terrorists should be turned loose -- because the administration used a slightly different label for them (based on earlier legislation) than was picked by a later Congress in writing subsequent legislation, even though the two labels were defined by identical language in each act.

That last point (6) is the dumbass ruling that was struck down today; the appellate court held that the two previous judges did indeed have jurisdiction to hear evidence that the "enemy combatants" (old label) were also "unlawful enemy combatants" (new label):

In the ruling Monday, the military appeals judges, the United States Court of Military Commission Review, agreed that the law written by Congress did say that finding by a military panel that a detainee was an “unlawful” enemy combatant was a prerequisite for prosecution. But the judges said Congress intended the Guantánamo courts to apply usual procedures of military courts.

“This would include the common procedures used before general courts-martial permitting military judges to hear evidence and decide factual and legal matters concerning the court’s own jurisdiction over the accused appearing before it,” the appeals judges wrote. [One can almost "hear" the annoyance and exasperation in the appellate judges' decision.]

Again, since there is no difference between the criteria for each label, it should be easy to prove... unless Brownback and Allred decide to dig in their heels and declare that Congress was wrong to define unlawful enemy combatant as it did; the judges could tack on one impossible criterion after another until they can achieve their goal: making it impossible to prosecute anyone for anything before a military tribunal.

Dennis Edney, Mr. Khadr’s Canadian lawyer, said the defense was considering whether to appeal to the United States Court of Appeals for the District of Columbia Circuit. If there is an appeal, it could delay the resumption of Guantánamo cases yet again.

Mr. Edney said he was disappointed by the military panel’s ruling but not surprised. “Omar Khadr still faces a process that is tainted, and designed to make a finding of guilt,” he said.

Well, yeah; and Mr. Edney is doing everything in his powe to prevent the court ruling, thus put-off any finding of guilt. I believe he has fallen for the great temptation of defense attorneys, where getting the client off becomes the overriding goal, rather than ensure he has a fair trial. (This is the snare into which Lynne Stewart fell, finally winding up convicted of passing messages from Sheikh Omar Abdel-Rahman to his terrorist cell.)

The real underlying problem here should be obvious: There is an amazing amount of resistance among the military's Judge Advocate General (JAG) Corps to the very idea of trying terrorist detainees in military tribunals, notwithstanding both statutory law and military tradition. Most lawyers are liberals, and this evidently applies even when the lawyer works for the military.

I believe most of them desperately want all detainees to be charged and tried in civilian courts, with the full panoply of criminal-defendant rights to counsel of their choice, open and public trial, the ability to subpoena all evidence (including heavily classified evidence) they claim will help their defense, and the power to subpoena all individuals involved in their capture -- from the soldiers trying to fight a war in the field to the Secretary of Defense and even the Commander in Chief who ordered the war fought in the first place -- and haul them all into court to testify for as many weeks as the judge orders.

We see this same tendency in politicians who are too closely allied with the JAG Corps: I believe that is what drives Sens. John McCain (R-AZ, 65%) and Lindsey Graham (R-SC, 83%), for example. Among this crowd, no military tribunal process will ever be fair or sufficient: They reject the very idea of treating terrorists any differently than we treat carjackers and pickpockets. Despite the decidedly uncertain record of attempting to try terrorists in civilian courts, "Jaggers" believe that we'll forfeit the "moral high ground" if we don't sacrifice national security on the altar of judicial purity.

There is a controversial Latin saying: fiat justicia ruat coelum; "let justice be done, though heaven should fall." I happen to believe this, but it critically depends on how one defines "justice." But what these Jaggers have in mind is something far more radical -- and utterly indefensible: "Let procedure be followed, though America should fall."

Even as a libertarian-conservative-ish political non-Euclidean, I consider this a foolish and unnecessary self-immolation; I agree rather with the last sentence of the dissent of Justice Robert H. Jackson in the case Terminiello v. Chicago:

There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

This certainly applies in the Case of the Footdragging Military Judges. Let us move past the surreal technicalities, get on with the cases, and finally see the backs of these infamous detainees.

Hatched by Dafydd on this day, September 25, 2007, at the time of 3:03 PM | Comments (10) | TrackBack

September 18, 2007

Newsflash: Clinton Judge Finds Limit to Judicial Power

It's a bit sad that I consider it newsworthy that a federal judge appointed by President Bill Clinton, Martin Jenkins, has actually thrown out an activist, leftist lawsuit, filed by the state of California against automakers, alleging they have damaged the state by making cars that contribute to global warming. (Actually, the lawsuit was filed by former governor, former mayor, now Attorney General and perpetual nutjob Jerry Brown "on behalf of" the state of California; I didn't get to vote on it.) The judge held that setting such policy was rightly the task of the legislative branch of the federal government, not the judiciary:

A U.S. federal judge tossed out a lawsuit by California's attorney general on Monday seeking hundreds of millions of dollars from six automakers for damaging the state with climate-changing greenhouse gases.

Martin Jenkins, a federal judge in the Northern District of California, said the issue of global warming should be decided in the political rather than legal arena.

"The Court finds that injecting itself into the global warming thicket at this juncture would require an initial policy determination of the type reserved for the political branches of government," Jenkins wrote in approving the automakers' motion to dismiss the case.

(It's unclear from the article, but I think Judge Jenkins held that the federal courts do not have jurisdiction.)

I am stunned. I thought this would be a slam-dunk before a liberal judge in blue-state California. Evidently the Office of the Attorney General was likewise stunned, because its spokesman just made what is simultaneously the most fatuous and the most legally incompetent argument I've ever seen from that body:

The suit was the first seeking to hold manufacturers liable for global warming damages caused by greenhouse emissions. It said cars made by the six automakers account for more than 30 percent of human-generated carbon dioxide emissions in California, the most populous U.S. state.

"We understand why a district federal judge may not want to jump into a global warming thicket with both feet," Ken Alex, California's supervising deputy attorney general, said in an interview. "Having said that, the basic tenet of law is that where you describe a harm then there needs to be a remedy for it."

"Right now because the political branches -- the federal government, Congress and the executive branch -- have not acted, the state of California is left without a remedy."

Now I must again caution that I am not a real lawyer; I will cop to being a "Philadelphia lawyer" or a "sea lawyer," to playing one on this blog sometimes, and to thinking of myself as more informed on the law than 95% of laymen (and so much more modest, too!) So maybe I've misunderstood this point all these years.

But I remember both my lawyer father and a friend of mine who attended law school but chose not to become an attorney separately telling me the exact opposite. They said that the idea that "every harm has a legal remedy" is discussed as a false belief that many people have about the law. In other words, both these two lawyers told me that Counselor Alex is 180 degrees off course: Not every harm has a legal remedy; sometimes, bad things happen, and there is nobody you can collect from.

For example, suppose you're hiking in Yosemite, admiring the beautiful scenery. Too much so; you fail to note that the trail turns north, and you continue walking west... right into a creek, where you stumble, fall, and crack your kneecap on a rock.

Ow. Nobody can tell me that's not a "harm." You're in agony; you can't walk; you're stuck four miles from the nearest help. And you know what? There is not a single person in the world you can successfully sue. You have no legal remedy whatsoever. A bad thing happened to you -- because you were a dumbass.

Even overt actions that harm people in ways obviously known to the actor don't necessarily mean the victim has a valid lawsuit. For example, suppose the government condemns somebody's house under eminent domain (in order to build a public emergency trauma center), and suppose further they pay the owner market price plus 5%. But suppose the owner was born in that house, as were his family for the previous three generations, as well as his daughter; and suppose he would never have sold it for any amount of money at all. Hasn't he suffered a grievous harm?

Well, yes he has; but no, he has no real case against the government, because they paid him "just compensation." He has no legal remedy for the harm he suffered.

In the global-warming case, I'm certain that Jerry Brown will appeal to the 9th Circus Court, which could overturn the judge's ruling on the motion to dismiss. No matter, the loser will appeal to the Supreme Court; once there, I believe the majority will use Judge Jenkins' decision as the basis for confirming that there really, truly are limitations on legislating from the bench.

Thus it may turn out that Jerry Brown's most enduring legacy will be striking a mighty blow -- albeit inadvertently -- for judicial restraint. Exciting, isn't it?

Hatched by Dafydd on this day, September 18, 2007, at the time of 1:52 PM | Comments (5) | TrackBack

September 6, 2007

Let's Play "Guess the President!"

A federal judge has just thrown out one part of the revised Patriot Act as unconstitutional:

A federal judge struck down parts of the revised USA Patriot Act on Thursday, saying investigators must have a court's approval before they can order Internet providers to turn over records without telling customers.

U.S. District Judge Victor Marrero said the government orders must be subject to meaningful judicial review and that the recently rewritten Patriot Act ''offends the fundamental constitutional principles of checks and balances and separation of powers.''

The suit was brought by the ACLU, and the judge's ruling would rip to shreds one of the most critical elements of our intelligence war against al-Qaeda -- in order to protect the putative "right" of terrorist suspects to privately plot attacks over the internet.

Now, here's the game: Without looking him up, can anyone guess which American president nominated Judge Marrero to the bench in 1999?

(Hint: There is a clue cleverly concealed in the sentence directly above.)

Hatched by Dafydd on this day, September 6, 2007, at the time of 2:37 PM | Comments (4) | TrackBack

August 3, 2007

Time to Sack the Robes

Today, the Washington Post revealed the stunner that back in March of this year, a judge on the Foreign Intelligence Surveillance Court (FISC) ruled that the president had no legal authority to order the NSA to intercept phone calls originating abroad... and where the terminating point was also abroad.

Mind, this is not the "Terrorist Surveillance Program," TSP, that Democrats have been so agitated about; this case was not about calls where one end was in the United States, but rather about those where both ends -- or all ends, in the case of conference calls -- are in foreign nations... but the call happens to be routed through an American node, typically in New York or California. No information is known about the reason for the ruling or even which judge issued it (or, of course, who appointed that judge); those data are all still secret.

(It may even be a legally correct ruling; but I cannot imagine that the congressional authors intended the FISA Court to stand in between the NSA or CIA and urgent overseas terrorism intelligence. Isn't there some Supreme Court precedent that, no matter what the law says, a court can't issue an order that's just plain dumbass?)

In fact, we weren't even supposed to know this much; but House Minority Leader John Boehner (R-OH, 88%) let the beans out of the cat to anchor Neil Cavuto on Fox News:

"There's been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States," Boehner told Fox News anchor Neil Cavuto in a Tuesday interview.

Thus, for the last few months, the NSA has been barred by law from the most fruitful source of terrorism intelligence: phone calls from, say, Pakistan to Paris. And while we don't know the exact reason behind the limitation, we certainly know the impact... and it has been so devastating to American national security, and so preposterous that the president's power as Commander in Chief would not extend even that far -- constitutional protections now extend to all foreigners living abroad? -- that even Democrats are frantic to pass legislation undoing that disaster of a decision:

The practical effect has been to block the NSA's efforts to collect information from a large volume of foreign calls and e-mails that passes through U.S. communications nodes clustered around New York and California. Both Democrats and Republicans have signaled they are eager to fix that problem through amendments to the Foreign Intelligence Surveillance Act (FISA)....

"This means that our intelligence agencies are missing a wide swath of potential information that could help protect the American people," [Boehner] said. Boehner added that some Democrats are aware of the problems caused by the judge's restrictive ruling and the problems it has caused for the administration's surveillance of terrorism suspects.

"The Democrats have known about this for months," Boehner said. "We have had private conversations, we have had public conversations that this needs to be fixed. And Republicans are not going to leave this week until this problem is addressed."

This ruling hands us another demonstration, as if more were needed, that the federal judiciary is simply too slow, too rigid, and too deferential to precedent to be trusted with control over the gathering of intelligence in wartime. In past eras, nobody could have imagined so absurd a situation; judges did not tell the OSS what they could or could not do to intercept information about Nazi Germany, nor did the federal judiciary get to opine on whether it was legal for the United States to decode intercepted Japanese naval communications.

In particular, the current law, the Foreign Intelligence Surveillance Act, was enacted 29 years ago... not only a year before the current age of terror began but also the year before the first commercial cell phone network came into existence (in Japan). The FISA took neither modern communications nor the contemporary threat into account -- since neither yet existed.

Judges on the FISC continue to decide cases about terrorism intelligence under rules meant to govern spying on the Soviet Union during the Cold War. The USSR was not going to attack us in a matter of hours; intelligence was generally long-term, required no immediate action, and could wait days (or weeks) upon the whim of a FISC judge, while he slowly pondered and mulled his way through years of caselaw and congressional legislation (typically arising from anti-intelligence agency bias in the post-Watergate political world).

The Judicial branch is inherently too slow-reacting to be the "gatekeeper" for terrorism intelligence: They are simply incapable of making decisions on the minute-by-minute schedule required to protect the United States from future terrorist attack. It's like putting Ents in charge of national security.

The Director of National Intelligence, Mike McConnell, has been testifying on the Hill recently about a desperately needed change of mindset; he wants the gatekeeper to be, not a court -- not even the special court set up to handle "foreign intelligence surveillance" (read "spying on the Soviets") -- but the Attorney General of the United States. If necessary, I presume a judge could intervene afterwards, if any of the intelligence was introduced as evidence in a criminal or civil court case. Again, even Democrats should understand the importance of this; after all, there is at least a 50-50 chance that the next president will be, in fact, a Democrat:

The effect of the judge's decision to curtail some of that surveillance was to limit the flow of information about possible terrorism suspects, according to congressional staffers briefed on the ruling. Last week, McConnell told the Center for Strategic and International Studies that the government faces "this huge backlog trying to get warrants for things that are totally foreign that are threatening to this country...."

In April, McConnell proposed a much broader revision of FISA than what the administration is pressing Congress to approve this week. Under the new plan, the attorney general would have sole authority to authorize the warrantless surveillance of people "reasonably believed to be outside the United States" and to compel telecommunications carriers to turn over the information in real time or after it has been stored.

Democrats, still feeling heat from the MoveOn.org/Daily Kos wing of the party, have countered with a proposal that would expand the administration's surveillance authority but still leave control in the hands of the FISA Court... and which would sunset in six months, presumably forcing the president to come back to Congress again and again, hat in hand, to beg for continued authority to safeguard the nation. This completely ignores the urgent question of timeliness.

For example, civil libertarians typically argue that warrantless surveillance was unnecessary because the current law allows the CIA or NSA to get a "retroactive" FISA warrant; but that only lasts for a limited period of time -- after which, unless such a warrant is issued, the surveillance must stop and wait until the judge finally gets around to deciding. And as McConnell noted, there is a "huge backlog" for FISA warrants, a logjam that is impacting our ability to collect actionable intelligence in real-time, giving us the best chance of thwarting an attack.

Not only that, but in order to undertake surveillance under FISA and ask for a retroactive warrant later, the agency must still fill out all the paperwork first, before starting the surveillance; and the forms must include "probable cause" to tap that particular phone call, probable cause at the same level as it would take to get a warrant. Thus, no matter how suspicious a series of calls between Teheran and Mosul look, before we could listen to them under FISA, we would first have to have as much probable cause as we would need here at home to search the house of a suspected drug dealer!

This is an outrage. I strongly urge the president to get behind the McConnell proposal and really go to work twisting congressional arms behind backs to get this enacted. When talking to Democrats, stress the fact that if Hillary Clinton or Barack Obama is elected next year, then they'll have the power... so it's not a tribal-partisan issue!

We already have quite adequate protections against a president using the excuse of "foreign intelligence surveillance" to scoop up loads of information about American political activists; none of it could be introduced in court without a judge's approval. But as far as actual, real-time intel about pending attacks on the United States or our allies, there is no reason for federal judges even to be involved... not until months or years later, when the scene shifts to a legal case. Just as it would be absurd for battlefield commanders to have to get judicial approval before ordering an attack on a terrorist safehouse.

Only the Executive has sufficient "energy" to be trusted with collecting military intelligence.

Hatched by Dafydd on this day, August 3, 2007, at the time of 3:52 PM | Comments (4) | TrackBack

July 25, 2007

A Constitutional Crisis - Which We'll Get to Sometime Next Fall...

The House Judiciary Committee hath spake: The refusal by the White House to allow aides and former aides (current Chief of Staff Joshua Bolton and former White House Counsel Harriet Miers) to testify under oath before the committee about every piece of confidential advice, legal opinion, and memo ever given the president -- so that the committee can go fishing and try to find something legally or politically damaging that they can use in 2008 -- is a constitutional crisis of such monumental proportions that the only recourse Congress has is to try to put Bolton and Miers in prison.

It's a crushing blow to constitutional government, government of the people, by the people, and for the people. There is no other remedy available; the national conscience requires a showdown, the destruction of the careers of two former high officials, and the loss of their liberty.

The nation is in urgent peril... Congress must have that information. And they'll get around to doing something about it just as soon as they get back from their August recess, or maybe a month or so later:

The House Judiciary Committee, in a straight party-line vote, approved a contempt resolution against White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers, setting up a constitutional battle between the Bush administration and Congress over executive privilege.

After several hours of skirmishing over whether to send a contempt resolution to the House floor, the committee voted by a 22-17 margin to approve the measure.

Speaker Nancy Pelosi (D-Calif.) and other Democratic leaders will now have to decide if and when to hold a vote by the full House on the resolution.

Update - Pelosi's office just released a statement on the issue. Pelosi signaled that the House will not take up the resolution until September.

After all, going home and campaigning is an important constitutional duty, too, you know....

I think the White House has properly characterized this effort:

"This is something that the drafters of this particular referral know has very little chance of going anywhere," White House spokesman Tony Snow said just after Wednesday's vote.

He likened the Democrat-driven investigation into the firings to "throwing mud against the wall and hoping something's going to stick."

But hey: Democrats... throwing mud... some marriages are simply made in hog heaven.

Hatched by Dafydd on this day, July 25, 2007, at the time of 3:03 PM | Comments (8) | TrackBack

June 11, 2007

Be Sure You're Sitting Down for This...

Today, a three-judge panel of the 4th circus court of appeals ruled that the commander in chief (that would be George Bush) can no longer hold an enemy combatant for the duration of hostilities... which would come as quite a shock to previous wartime presidents (if Franklin Roosevelt were alive today, he would be spinning in his grave).

Instead, two of the three judges -- Diana Motz and Roger Gregory -- agreed with each other that in future, enemy combatants captured or held in the United States should be tried in the normal criminal court system, just like shoplifters and carjackers, so that al-Qaeda sleeper-cell operatives:

• Can have jihadist lawyers of their choice;
• Can prevent any and all interrogation or intelligence gathering by anyone, because that would, of course, queer the criminal case against him and likely trigger an immediate release under habeas corpus;
• Can subpoena all relevant or irrelevant national-security documents as part of their “defense;”
• And can summons the entire command corps of Multinational Force - Iraq, all overt and covert CIA agents working in counterterrorism, and the President of the United States as "witnesses."

If the government fails to produce any of these demands, the al-Qaeda suspect must, one presumes, be acquitted and set free. Sounds fair to me.

But here is the shocker: The lone dissenting judge, Henry E. Hudson, was appointed by George W. Bush.

Of the two judges who joined the majority opinion, Motz was appointed by President William Jefferson Clinton and confirmed by the Senate in 1994, when the Democrats still controlled that body.

The other, Gregory, was given a recess appointment by Bill Clinton in the year 2000, after the Republican Senate refused to confirm him (in the waning days of the Clinton presidency; after the election; after the long count; after Vice President Gore conceded; as Clinton was trying to stack the courts).

Then in 2001, when the Senate was 50-50, and Bush was having trouble with the Democrats refusing to allow any conservative judges through, the president was forced to cut a deal with them (in May of 2001 -- remember that?) As Byron York at the National Review explains things:

After weeks of threats from Senate Democrats, this afternoon George W. Bush will send to the Senate the names of eleven nominees to the federal circuit courts of appeal. The president's choices -- he picked two Democrats, both Bill Clinton nominees, as well as several solid conservatives -- reflect the White House's understanding of how difficult it will be to confirm judges who are opposed by key Democrats in the 50-50 Senate.

First the Democrats. Bush will renominate Roger Gregory to the Fourth Circuit Court of Appeals. Gregory was originally nominated by Bill Clinton, who used a recess appointment to place him on the court after the Senate refused to act on the nomination. Democrats have made Gregory a cause celebre in recent months, alleging that Republican opposition to Gregory, who is black, was racially motivated [Bush having such a well-documented hatred of blacks]. They have aggressively pushed Bush to name Gregory, a move that was also approved by home-state senators John Warner and George Allen, both Republicans, and by Virginia governor James Gilmore, head of the Republican National Committee.

So the lone Republican judge sees the president as less of a threat to the nation than al-Qaeda, while the two Democrat judges are utterly unserious about fighting the war against global jihad: They want it "fought" as a purely criminal matter, so that it will not be fought at all.

I know you are stunned by this turn of events. I mean, who would have thunk it?

Hatched by Dafydd on this day, June 11, 2007, at the time of 10:56 PM | Comments (15) | TrackBack

June 4, 2007

What's In a Label? Everything, It Would Seem