Category ►►► Injudicious Judiciary

January 21, 2010

If John McCain Is Wise...

...He'll swallow and admit his lousy bill was already dead yesterday.

The Supreme Court -- narrowly and bitterly divided along the usual lines -- has finally put the nail in the heart of Sen John S. McCain's (R-AZ, 63%) worst and costliest error: the Bipartisan Campaign Reform Act of 2002, a.k.a. the BCRA, a.k.a. McCain-Feingold. Its core is now deader than a clam:

Sweeping aside a century-old understanding and overruling two important precedents, a bitterly divided Supreme Court on Thursday ruled that the government may not ban political spending by corporations in candidate elections....

“If the First Amendment has any force,” Justice Anthony M. Kennedy wrote for the majority, which included the four members of its conservative wing, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

Justice John Paul Stevens read a long dissent from the bench. He said the majority had committed a grave error in treating corporate speech the same as that of human beings. His decision was joined by the other three members of the court’s liberal wing.

It's hard to imagine any response to the bolded quotation above from the majority opinion that doesn't depend upon the overt or implicit rejection of freedom of speech. I haven't read Justice Stevens' full dissent -- it's 90 pages -- but from what I have read, it's just a long-winded exercise in sleight of tongue, dancing around his core disagreement with the very idea of universal freedom of speech. It boils down to "free speech for me but not for thee."

You can find the opinions here; for your reading pleasure, here's the breakdown of authorship:

1. Justice Anthony Kennedy, writing for the majority: pp. 1-64 (of the pdf);
2. Chief Justice John Roberts: pp. 65-78;
3. Justice Antonin Scalia: pp. 79-87;
4. Justice John Paul Stevens, writing for the minority: pp. 88-177;
5. Justice Clarence Thomas: pp. 178-183.

Here is, I think, the crux of Stevens' dissent; in this and all quotations from the opinions, I omit all citations and references:

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

But freedom of speech is not restricted to "eligible voters;" we've always considered it universal and fundamental (though not absolute, of course).

First , a liberty is only fundamental if it applies equally to all; otherwise it's a government-created privilege, revokable at will.

Second, we're not talking about a "corporation" broadcasting speech, some alien entity with no existence apart from a legal fiction for convenience. The corporation comprises its owners, each of whom is a legal person; it's not the corporation that speaks, its the all-too-human owners.

When the owners of a corporation -- or their representatives on the board of directors -- use corporate funds to pay for an advertisement saying "vote for Joe," it is functionally identical to the same people broadcasting the same advert, but paying for it out of their personal checking accounts. The only difference is legal, and it's a distinction that was created by previous laws and the judicial intepretation of those laws... it's not a natural or obvious distinction to ordinary people. If I incorporate and pay for this blogspace out of corporate funds, do I no longer enjoy freedom to say what I want here, without government looking over my shoulder?

It's preposterous to argue that these six guys have a fundamental right to speak if they pay for it out of the money in their home vault... but they can legally be silenced if they use funds of a corporation they own -- at least silenced in the final two months of a campaign, when political speech would be particularly effective.

If they can be so silenced, then we have no fundamental right to freedom of speech; we have a conditional right under the control of the federal government. Once freedom of speech is no longer fundamental, the feds can suppress it on almost any ground; see a previous post of ours about Geert Wilders, currently being criminally prosecuted in the Netherlands for insulting Islamism.

Stevens devotes a great many pages complaining about the "scope" of the decision (the majority should have decided the case on narrow, crabbed grounds), and singing paeans to "stare decisis," the principle that "settled doctrine" should be respected. He admits he's not an "absolutist" on that issue; indeed, it would be hard for a justice who supported the Hamdan decision, giving constitutional rights as a criminal defendant to an unlawful enemy combatant captured on the battlefield, to portray himself as anything but a judicial radical (yes, I include Anthony Kennedy).

So evidently, stare decisis applies only to precedents that Justice Stevens happens to like, such as Roe v. Wade (and McConnell v. FEC or Austin v. Michigan Chamber of Commerce, the cases the Court overturned today). Sadly, Stevens is actually the best of the usual suspects on the left side of the Court: I doubt that Justices Ruth Bader Ginsberg, Stephen Breyer, or Sonia Sotomayor would even bother pretending to respect judicial restraint or settled law, when precedent is confronted by their own revolutionary aspirations.

Roberts put the fundamentality of freedom of speech as starkly and clearly as I've ever seen in a Court opinion:

The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful inexpressing their views on matters of public concern. Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations -- as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.

The Court properly rejects that theory, and I join its opinion in full. The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.

Or to put it into Saul Alinsky's terms, freedom of speech is universal: It applies not only to the "have-nots" (rather, their spokesmen) but to the "haves" as well. It's both a danger and a signal of American exceptionalism that until today, the law did not recognize that universality, instead advantaging the have-nots. Would any real American argue that if a rich man were arrested for a crime, he shouldn't be allowed to hire an attorney? That he can be forced to testify against himself? That he could be tortured into confessing, just because he has money? It's facially absurd.

Next, Roberts brilliantly disposes of Stevens' claim that today's decision was unnecessarily broad, that the majority should have decided the case more narrowly, rather than striking down the heart of the BCRA. Roberts first notes that, since the minority agreed with the circus court that Citizens United had no case, they must necessarily have found, as did the majority, that the "narrower" defenses put up by Citizens United were without merit.

Citizens United's attorneys did the usual good job: They argued a host of narrower issues -- such as the idea that the law wasn't meant to apply to a group like them, that the anti-Hillary Clinton movie wasn't "express advocacy," and so forth; and they also argued that the law itself was unconstitutional. Once the Court had disposed of the lesser, narrower defenses, it was duty-bound to consider the final defense as well: whether the BCRA itself violated the First Amendment.

Here's Roberts:

The dissent advocates an approach to addressing Citizens United’s claims that I find quite perplexing. It presumably agrees with the majority that Citizens United’s narrower statutory and constitutional arguments lack merit -- otherwise its conclusion that the group should lose this case would make no sense. Despite agreeing that these narrower arguments fail, however, the dissent argues that the majority should nonetheless latch on to one of them in order to avoid reaching the broader constitutional question of whether Austin remains good law. It even suggests that the Court’s failure to adopt one of these concededly meritless arguments is a sign that the majority is not "serious about judicial restraint."

This approach is based on a false premise: that our practice of avoiding unnecessary (and unnecessarily broad) constitutional holdings somehow trumps our obligation faithfully to interpret the law. It should go without saying, however, that we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right. Thus while it is true that "[i]f it is not necessary to decide more, it is necessary not to decide more," sometimes it is necessary to decide more. There is a difference between judicial restraint and judicial abdication. When constitutional questions are "indispensably necessary" to resolving the case at hand, "the court must meet and decide them." [Bold emphasis added]

Finally, Roberts knocks down the "stare decisis" red herring... Stevens' view that precedent should always be respected when he agrees with it:

Fidelity to precedent -- the policy of stare decisis -- is vital to the proper exercise of the judicial function. "Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." For these reasons, we have long recognized that departures from precedent are inappropriate in the absence of a "special justification."

At the same time, stare decisis is neither an "inexorable command," nor "a mechanical formula of adherence to the latest decision," especially in constitutional cases. If it were, segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants....

Stare decisis is instead a "principle of policy." When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right. As Justice Jackson explained, this requires a "sober appraisal of the disadvantages of the innovation as well as those of the questioned case, a weighing of practical effects of one against the other."

In conducting this balancing, we must keep in mind that stare decisis is not an end in itself. It is instead "the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion." Its greatest purpose is to serve a constitutional ideal -- the rule of law. It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent.

But apart from the fundamental right, there is another here that the Court could not address, as it has nothing to do with the Constitution or the law per se. The fact is, McCain-Feingold has been a manifest failure from the very beginning.

Its avowed purpose was to get the money out of political campaigns; but more money is spent now than ever before. And the legal distinctions crafted by the BCRA merely spawned a labyrinth of newly created entities, such as "527s", whose sole purpose is to circumvent all the rules and regulations on political speech that Sens. McCain and Russell Feingold (D-WI, 100%) thought would "control" speech -- when that speech came from corporations, i.e., the "haves." Both McCain and Feingold, as well as most of the members of Congress who voted for it, and even the president who signed it, have pretensions to "populism;" they love nothing more than to bash the "privileged" on behalf of the masses. (I can say the same about the Obamacle's proposed tax on banks and punitive regulation of banking pay and practices.)

Critics of the decision say it will "open the floodgates" of campaign funding. Well what the heck did they see during the 2008 presidential election? Barack H. Obama alone spent more than half a billion dollars.

The idea that the BCRA would curtail spending was idiocy on stilts; and I hold it very much against McCain for writing it, and against George W. Bush for signing it. The only people really hurt by it were legitimate issue-advocacy groups, who had to lawyer up and waste money on defensive legal strategies, just to promote their own political issue without running afoul of some authoritarian tyrant at the Federal Elections Commission and his draconian interpretation of McCain-Feingold's "restrictions."

The BCRA is mostly gone; the Court upheld the reporting requirements and limits on direct contributions to political campaigns, but that much could probably have passed without controversy in 2002, or even today. On the call of the issue, Sen. Chuck Schumer (D-NY, 100%) is right: The ruling in Citizens United v. the FEC absolutely "guts" the free-speech restrictions that were at the heart of the controversy over the BCRA.

And I say good riddance to bad rubbish.

If John McCain has a functioning brain, he should put on his manly gown, gird his loins, and pull up his socks: He needs to admit the BCRA was a gross violation of liberty -- and a colossal failure to boot. If he does, my respect for him will grow; if instead he pounds the table and denounces the Court's majority as elitists and corporate apologists, he will lose a great deal of the good will I felt for him during the 2008 campaign.

As many have noted, this has been one heckuva week for anti-liberals:

• Scott Brown won in Massachuestts;
• Erroll Southers withdrew as the nominee to head the TSA;
• The U.N. finally admitted that the glaciers in the Himalayas are not about to vanish anytime soon, as they had claimed for years;
• ObamaCare appears to be dead, at least for the forseeable future;
• Air America filed for Chapter 7 bankruptcy;
• And now McCain-Feingold bites the dust.

So what will we do for excitement next week?

Cross-posted on Hot Air's rogues' gallery...

Hatched by Dafydd on this day, January 21, 2010, at the time of 6:20 PM | Comments (2) | TrackBack

January 7, 2010

Voting Rights for Felons: Presto Retro!

Patterico has posted on this topic as well -- the three-judge panel of the Ninth Circus that just ruled that felons must be allowed to vote, even from their prison cells. He posts from a lawyer's, and especially a prosecutor's point of view; and in his post, he dressed me down a bit for my previous post here... or so it seemed to me. Patterico writes:

Dafydd ab Hugh’s post on the decision sounds the right notes, I think. However, Dafydd has not read the decision or the studies upon which it is based, and so he has failed to grapple with the claims of the sociology professors who claim to have looked at the very variables Dafydd accuses the court of ignoring.

I would like to encourage Dafydd and any other interested readers to poke through the links I have provided. There are nuggets a plenty in the various studies and other links.

My response may be solitary, poor, nasty, and brutish; but at least it's not short!

The first charge is certainly correct; at the time I wrote the post, I didn't have the decision available to me. I couldn't even find the name of the the third judge (turns out to be Stephen Reinhardt, a name not unknown to many of us).

But to say I have "failed to grapple with the claims of the sociology professors who claim to have looked at the very variables Dafydd accuses the court of ignoring" is only true in the narrowest of meanings: While I didn't grapple with these particular studies by those particular sociology professors, I have been "grappling" with identical claims by interchangeable sociology and criminology professors for more than twenty years!

I wasn't born on the turnip truck yesterday.

And I've learned it's a complete waste of time, because the studies they produce are just a beard for the real function, which is to find a friendly judge or panel, as they did here, and give them any slightest hook to hang their ideology... which they also did. Professors Crutchfield and Beckett could have introduced a wind-up monkey with a plastic banana as their sole exhibit, and Judges Stephen Reinhardt and Wallace Tashima would have given in to their inner guilt and ruled the same way. We were preaching reason to the asylum choir.

The fact is that none of these claims is new. Each has been made, then debunked, in one form or another, in service to one crank liberal "reform" or another, since the dawn of all time (that is, the 1960s): that a racial disparity in measurement X -- incarceration, conviction, trial, arrest, or search -- proves unlawful and intentional racial discrimination by some or all elements of the justice system.

In the very beginning, the anointed were content to point to any racial disparity at all. When evidence mounted far past the "overwhelming" stage that, contrary to liberal dogma and utopianism, people from different cultures do indeed commit crimes at different rates, the anointed realized they had to give some ground.

Ever since the 1980s, when I first began debating this issue in bulletin boards (anybody remember those?), the pro-reform side of academe has followed the same pattern:

1. The new researchers cite previous researchers who found no discrimination -- and dismiss them as naive or bought off.
2. The new researchers admit that some of the racial disparity can be explained by real differences in behavior... that is, not by direct racial discrimination; this makes them look reasonable and sets you up for the Fool's Mate.
3. But, they argue, not all the discrepency can thus be explained (to their unattainable satisfaction) by proper and legal responses to real differences.
4. Therefore, they conclude, the remaining "gap" must be due to racial discrimination. There's no other explanation, at least none they will consider.

It's very effective, particularly on kritarchs drunk on their own power, just itching for a chance to implement divine judicial controls, enforcing radical liberalism.

I didn't have access to the particulars of this specific batch of anointed; but even if I had, I still wouldn't have bothered "grappling" with their precise claims, because that's not the problem. And my reasoning is almost certainly similar to that of the state's attorneys, and why they didn't go into the specifics of the studies, either: At core, this case hinges on principles completely independent from choosing one of two competing answers to a controversial and active scientific question.

Diving headfirst into the steaming vat of statistics is a mug's game, because it begs the real question. There is literally nothing anyone could say, no evidence that could be produced, that would persuade the plaintiffs that policing and the courts were not citidels of segregation and redoubts of racism: It is part of their fundamental-materialist religious faith.

When setting public policy on vital democratic issues related to scientific questions (hello, global warming), there are always three considerations -- threshold conditions, actually; and none covers what I think Patterico suggested I should have done:

1. Is the science settled? E.g., is there a scientific consensus among criminologists and sociologists that the criminal justice system in Washington is inherently racially discriminatory, violating the rights of legitimate voters?
2. If so, then what options exist to alleviate the problem? In this case, what can Washington do to bring itself into compliance with federal standards and its own state standards of racial neutrality?
3. Finally, among all those options, which is the least disruptive to liberty, social order, and the will of the people? In this case, if people are being wrongfully disenfranchised, what is the least disruptive way to let the actual victims start voting again?

(Sorry for all the bullet points, but some arguments really lend themselves to such constructs.)

Alas, I don't think there is a very good match between the questions above, which should inform all major policy decisions, and the demands of a federal court trial, which is an adversarial exercise in which one side generally wins and the other loses. That's too bad... because in fact, not a single one of the three threshold conditions above is satisfied (and all three need to be). Moreover, when the thresholds are not met, the judiciary has no business interfering in public policy... even apart from any great principles of freedom that trump the scientific quibbling.

Now, if a particular prisoner wants to argue that his personal voting rights were violated, let him make that claim and duke it out in court. That would at least be a judicial task.

But instead, the question that the court considered (and ruled in favor of) was grotesquely anti-democratic, collectivist, and, to put it bluntly, profoundly unAmerican: Not whether the voting right of any particular prisoner was violated, but whether the rights of all blacks and Hispanics in Washington state were violated.

And the substance of the "right"? Why, the right to have the votes of all blacks and Hispanics, law-abiding and convicted felon alike, count for the Democrats. I won't mince words; the liberal-activist Democrats want more electoral victories, and they think this will do it.

It's the Lani Guinier Conundrum: Does a bloc of voters have the right to win a certain percent of the time? In 1993, Bill Clinton nominated Guinier to be Assistant Attorney General for Civil Rights. Her nomination ran into a buzzsaw in the Senate and was eventually withdrawn.

She believed that indeed yes, blocs of minority voters -- specifically blacks and Hispanics -- had a right to win, even when they were in the minority; otherwise you have a "tyranny of the majority," she argued in the book of that title. (The hidden racist assumption is that all "minorities" think alike... or at least they should!) Thus, Guinier supported various weighting schemes to make each minority vote count for more than each of the votes of the majority. (She had to have assumed, again, that each class would vote its "class interest.")

I'm convinced that is precisely why the present case was brought: Not that the plaintiffs really cared that felons be allowed to vote, but that they assumed that a big, new bunch of black and Hispanic voters previously disallowed from voting would, when finally unleashed, vote solidly liberal-Democratic.

(Patterico notes another point: Many prisons are sited in rural areas, not in the midst of huge population centers, for obvious reasons. Thus, that "captive audience" of voters would exert a super-heavy, possibly determinative influence over local elections about local issues. In my opinion, they could practically take over small towns!)

I haven't forgotten the three questions above; we'll get back to them. But we're still dealing with the fundamental principles, and why the specific claims of liberal sociologists are actually irrelevant.

We have a fundamental principle in the United States; and that is that "rights" inhere in individuals... not factions. It does not matter how a right will affect the results of an election; freedom of speech applies to all, not just favored constituencies; either every individual has the right or none does.

In this case, no individual legal voter is denied his right to vote merely because a convicted felon with a similar skin color has lost his right to vote. My voting right is intact, even though white convicted felons housed nearby must sit out the election. However much the faction of liberal, black and Hispanic Democrats may wish they could scavange a few more votes from the prisons and among those felons who have served their time, they have no "right" to those votes.

The hyper-principle here is that the Voting Rights Act was never meant to hand more power to a particular voting faction; it was meant to protect each individual from being wrongfully denied his constitutional and state-constitutional right to cast a vote. It no more violates the voting right of a legal voter to disenfranchise convicted felons than it does to disenfranchise children, non-residents, aliens, or those who do not register to vote.

To say otherwise is to say that everyone can vote... mewling infants, alien serial killers, foreigners living abroad, and the dead. (But if the dead aren't allowed to vote, how will Democrats ever win another election in Illinois, Louisiana, or New Jersey?)

That is why it literally should make no difference whether the judicial system in Washington state is racist, because the remedy plaintiffs sought (and the Ninth Circus granted) was wild overkill, and a complete non-sequitur:

• If plaintiffs could prove that blacks and Hispanics were being convicted of bogus charges in order to prevent them from voting, then they should bring a case to release those particular blacks and Hispanics and expunge their convictions.
• If plaintiffs could prove that blacks and Hispanics were being frightened away from the polls by a latter-day Bull Connors, then they should bring a case to prevent the police from doing so, and perhaps award damages to the actual victims.

But under no circumstances should the "remedy" be to allow all felons, willy-nilly, to vote, because that is not even the problem they allege. The problem they allege is that the justice system is racially discriminatory, not that it's unconstitutional or illegal, as a general point, to suspend or eliminate a felon's voting rights (along with his right to possess firearms, his right to join the armed services, and so forth).

The proof is simple: If they were asserting a general right of felons to vote, then why bring up racial discrimination at all? If a felon has such a right, then he has it whether he is black, Hispanic, Asian, American Indian -- or white; and whether he is incarcerated in a city that has a discriminatory justice system or one whose justice system is squeaky clean, even by Stephen Reinhardt's standards.

By relying on claims of racial discrimination and the Voting Rights Act, plaintiffs admit that they only assert that some felons have the right to vote, not every felon everywhere; some felons are more equal than others. A black felon housed in Massachusetts has no such right; but if he's transferred to a prison in, say, rural Georgia, where the justice system may be racially discriminatory, then he would suddenly gain the right to vote -- even if he were never detained, searched, arrested, tried, or convicted in that county. Quelle surprise!

That is why I didn't even bother examining the claims of racial discrimination in the Washington justice system: As Perry Mason would say, because it's irrelevant, incompetent, and immaterial... and that is the part of this debate that has not changed since the 60s (when the lunacy began), nor since the 80s (when I began debating the lunatics).

All right, with the principles clarified, we could stop right there; we don't reach the question of the science. But we're not a court, so we can still ask those three questions about this particular issue. In case you've forgotten in all the excitement, here they are again:

1. Is the science truly settled?
2. If so, then what are all the options available to the state alleviate the problem?
3. Finally, among all those options, which is the least disruptive to liberty, social order, and the will of the people?

On the first question, no, the science is obviously not settled, because many criminologists and sociologists argue that the justice system is not inherently racially discriminatory; as Patterico notes, the plaintiffs' experts actually cite some of those disagreeable dissenters.

"Not settled" guarantees that somebody is wrong here. It doesn't guarantee anybody is right; in theory, everyone could be wrong! But at the least, the anointed reformers could be wrong; the scientific method will have to sort it all out... assuming it's allowed to function, unlike the Climategate fiasco.

So far as I know, Patterico is not qualified to mediate between competing scientific claims about racial disparities and racial discrimination. Certainly neither am I, despite my math background; the intricacies of the science are well beyond me. But neither is either Reinhardt or Beckett; so where do they get off, ruling that Crutchfield and Beckett had better science than other researchers who found no illegal discrimination? Has either robèd gentleman taken even a single university-level course in statistics?

As I noted last post, all criminologists (including those hired by the plaintiffs in this very case!) agree that people from different cultures do indeed have different crime rates; the only disagreement is whether that behavior completely explains the conviction discrepency. Ergo, there is no consensus that the system is racist, and the very first threshold condition is not met.

Mind, all three must be met before it's legitimate for judges to monkey with voting or legislating. The anointed reformers have already lost the argument (though not the case, alas, at least not yet). But in fact, they lose on both other points as well:

They failed to enumerate all the available options, or even all the obvious ones. For example, they didn't suggest that each convicted felon's case should be reviewed, and voting rights granted only where a significant likelihood exists that the convict was railroaded due to racial discrimination. Why should a white convict caught red-handed robbing a Tofu store have his voting rights restored? What does that have to do with the plaintiffs' race-based theory of the case?

Finally, nobody has claimed, not even Patterico, that the majority judges weighed several options for dealing with the supposed racism within the justice system -- then picked the least disruptive of them all. I conclude a complete lack of parsimony; they jumped right to the most radical "remedy."

See? I didn't forget.

So the long and the short of it [hah, try and find the "short"!] is that I didn't grapple with the specifics of the claims by the anointed reformers because it's a dead-end detour; it has nothing to do with what's so wrongheaded about this decision. The scheme is as old as dirt, and I figured out a long time ago that there is never any closure arguing with people like Professor Crutchfield: He'll let you horse him around from one inconsistency to the next; then when you get tired and wander away, he'll loudly declare victory.

I went straight for the rhetorical jugular, the unAmericanness and radical nature of this decision. I have no regrets.

Cross-posted on Hot Air's rogues' gallery...

Hatched by Dafydd on this day, January 7, 2010, at the time of 11:18 PM | Comments (0) | TrackBack

January 6, 2010

Voting Rights for Felons: "Race Neutral" = Race Biased

In an astonishment of paralogia and "dumbth," a three-judge panel of (what else?) the Ninth Circus Court of Appeals has just ruled, 2-1, that felons should be allowed to vote, even while still in prison.

To add collectivist offense to insult (they went long past mere injury), their reasoning was so racially byzantine that it sounds like a parody: A greater percent of blacks and Hispanics are incarcerated than whites; therefore, depriving these felon convicts the right to vote from their prison cells violates the 1965 Voting Rights Act!

"I can hear the cuckoo singing in the cuckooberry tree..."

Say -- wouldn't the mere fact that blacks and Hispanics are jailed at greater percentages than whites all by itself violate the 1964 Civil Rights Act ban on segregation? Let's mandate that all races be incarcerated at exactly the same percentage as their representation in society: We let all the excess blacks and Hispanics go free, and send an appropriate number of whites and Asians to prison to balance it out, even if they haven't been convicted of any crime. Sounds like a natural extension of the court's reasoning to me.

(This is a non-trivial analogy: The reasoning of this panel is that the punishment violates the Voting Rights Act because, due to black and Hispanic overreprepresentation in prison, those federally defined races suffer a "disparate impact." But by the same logic, if blacks and Hispanics are incarcerated at a greater rate than their numbers in the population, that too is a "disparate impact" that dictates where people are allowed -- or in this case, required -- to live on the basis of race. I'm certain the next step is to do just what I sarcastically suggest in the paragraph immediately above.)

The majority decision was written by Judge Atsushi Wallace Tashima, who was first nominated to the bench by Jimmy Carter in 1980, then elevated to the Ninth Circus by Bill Clinton in 1995 (confirmed in 1996); the dissenter -- she wanted it remanded back to the courts to consider whether this calamity of non-voting felons was mitigated by a recent Washington state law making it easier for felons to recover their right to vote after finishing their sentences -- the dissenter, Margaret McKeown, was nominated by Bill Clinton in 1997. (I cannot find the name of the concurring judge.)

Here's the court's reasoning, from SFGate, based in San Francisco:

In a 2-1 decision, the Ninth U.S. Circuit Court of Appeals in San Francisco said the Washington law violates the federal Voting Rights Act because evidence showed discrimination against minorities at every level of the state's legal system: arrest, bail, prosecution and sentencing.

If the ruling survives, it will be binding in the circuit's other eight states, including California, which denies voting rights to 283,000 convicted felons in prison or on parole, according to a report from the nonprofit Sentencing Project.

About 114,000 are African Americans, who are disenfranchised at seven times the rate of the general population, the report said.

Among those in Washington state who commit crimes, "minorities are more likely than whites to be searched, arrested, detained and ultimately prosecuted," Judge A. Wallace Tashima said in the appeals court's majority opinion.

For example, he said, studies showed that African Americans in Washington were more than nine times as likely to be in prison as whites and 70 percent more likely to be searched, even though a study of one police department found that officers were more likely to find contraband when searching whites.

Findings were similar for Latinos and Native Americans, none of which could be explained by differences in crime rates, Tashima said.

It's an odd kind of racism, however, that discriminates against blacks and Hispanics but in favor of Asians, who are so underrepresented in prison that they're routinely excluded from all statistical analyses of the prison population by race. This despite the fact that racial discrimination against Asians has a long history in the United States going all the way back to the mid-19th century. (American Indian is a separate category in our "race-neutral" federal taxonomy of race.)

Oh, well.

It will probably be struck down anyway by the Supreme Court, if not by an en banc hearing of the Ninth:

A state appeals court in San Francisco upheld California's voting law last year. Three other federal appeals courts have ruled that the Voting Rights Act does not apply to bans on voting by felons.

"Part of being a good citizen is obeying the laws and not doing things to other citizens that are so egregious that you end up in prison," said Washington Secretary of State Sam Reed, who promised an appeal of the ruling. "If you do, you are going to be denied your right to participate as a full citizen in our society."

Nevertheless, let's pick through the detritis of legalisms the court appears to have relied on in this wretched decision, propositions so risible that only a lawyer could argue them. It won't take long (compared to reading Tolstoy):

Blacks are "disenfranchised" at a rate not proportionate to their numbers within the jurisdiction of the Ninth Circuit Court of Appeals; this clearly proves the entire justice system is racially discriminatory.

The assumption here is that all races, cultures, sexes, ethnicities, and nationalities should logically commit crimes at the same rate; thus, we would expect black teenagers living in Compton or Watts (or whatever the equivalent ghetto is in Washington) are no more likely to commit a felony than a Japanese-American soccer mom living in Beverly Hills. Ergo, if we find that more inner-city black youts per capita are imprisoned than Asian mothers of middle-school kids, we've proven illegal discrimination.

Anyone who accepts such a line of hooey is a dolt, robes or no robe.

Clearly, different races have different propensities towards crime. I do not believe this is due to genetics; rather, the cultures they have grown up in and voluntarily internalized "enable" wicked, evil, criminal behavior more than do other cultures. (And yes, before you ask, I have indeed read the Bell Curve and find many of their arguments unpersuasive.)

For example, the statistical tables for the 2006 National Crime Victimization Survey, conducted annually by the Justice Department's Bureau of Justice Statistics, finds (Table 40) that blacks account for 31.7% of all completed violent crimes (single offender), including 42.2% of all completed robberies and 50.8% of all completed robberies with injuries.

Yet a quick glance through at the U.S. Census numbers for 2006 shows that blacks make up only 13% of the population (which is likely an overcount, since it's based on self-report). Even accepting this probably exaggerated figure, that indicates blacks commit violent crimes at a rate two and a half times more than their percent of the population; they commit robberies at three times their numbers; and they commit robberies with injuries to the victim at a rate four times their numbers.

Every criminologist will tell you the same thing: Blacks and Hispanics commit more violent crimes per capita than do whites; though ideologically reassuring for some, the axiom of "cultural equivalence" falls apart in the real world. Thus merely citing "disproportionality" proves nothing about causality.

(For that matter, 93% of those imprisoned in 2008 were male; isn't anyone going to investigate the "obvious" sex discrimination against men?)

Minorities are more likely than whites to be searched, arrested, detained and ultimately prosecuted.

Searched: If the victim describes his attacker as black, Hispanic, or Asian, shouldn't the police focus their searches on people who at least meet the description? Or should they stop and search white senior citizens, even when the victim says he was robbed by a young black male, just to even things out? This is lunacy.

Arrested, detained, prosecuted: Police arrest or detain suspects when their investigations find evidence supporting an arrest or detention. If the court wants to rule that racism pervades "the system," shouldn't they at least point to evidence that, say, blacks found with crack cocaine are routinely arrested, while whites found with crack cocaine are routinely set free?

If there was any evidence of such, I strongly suspect it would have been reported by somebody; yet I read nine separate articles and found no reference to any such evidence.

Minorities are more likely to be convicted than whites who commit crimes, and more likely to be incarcerated if convicted.

The SFGate article didn't mention anything about conviction rates or sentencing, but that must (by definition) explain the "missing" percent to account for the higher rate of incarceration of racial minorities than whites. There are a number of non-racially discriminatory reasons why certain minorities could be convicted at a rate higher than whites (and much higher than Asians):

1. Type of crime -- Some felonies, such as robbery, are more easily prosecuted than others, such as confidence games, burglary of unoccupied buildings, or insider stock trading, due to the differential impact on a jury of eyewitness testimony v. forensic testimony. Blacks and Hispanics commit violent crimes at a rate higher than whites, but whites probably commit nonviolent crimes at a higher rate than do blacks. Put the two together, and you have part of the incarceration answer.

2. Poverty of defendant -- It seems self evident that people with money stand a better chance of being acquitted, or if convicted, a better chance of avoiding prison time, than poor people; quality of representation plays a huge role at trial (duh). It might be unpleasant to realize that the rich get off in situations where the poor, with their court-appointed attorneys, get jugged... but it is not due to race, as the O.J. Simpson trial proved.

   A lower percent of blacks and Hispanics than whites and Asians are able to afford a high-powered attorney. But if that is now "evidence" of racial discrimination in the courtroom, then we may as well say that the undeniable fact that a greater percent of whites than blacks can afford big houses "proves" racial discrimination in the real-estate market. What next -- must we have racial quotas for mansion ownership? Let's just ban all private housing and make everyone live in identical, government-owned shoeboxes.

3. Attitude at trial -- Do we know for sure that black and Hispanic defendants are no more likely than whites and Asians to have a truculent, belligerent demeanor, leading juries to be more likely to convict them? I sure don't, and it doesn't seem facially obvious to me that childhood and adult-selected culture would have no effect on how a defendant acts during his trial. Again, combine the two, and you have defendents of certain races sabotaging their trials by their own aberrant behavior.
4. Defendant's plea -- The BJS reports that of those defendants sentenced for a criminal offense in 2006, 94% pled guilty. But how does that break down by those sent to prison and those given probation or just a fine? Is a defendant more likely to go to prison if he pleads guilty, or if he pleads not guilty and vigorously contests conviction? If the former, as I believe if it, and if blacks and Hispanics were more likely to plead guilty than whites and Asians, that too would trend towards explaining why some races are overrepresented in prison.
5. Prior convictions -- I haven't seen any statistic on how many blacks and Hispanics have prior convictions versus how many whites and Asians; this can certainly affect whether the convict is sentenced to prison. Where is the study on this question?

There are five confounding factors just off the top of my head, ten minutes' thought. No story I've read has raised a single one of these factors; evidently, they don't fit what Andrew Breitbart calls the "story-board" of this issue -- the comic-book tale that journalists really want to tell -- and all facts will be tortured until they surrender to it. In this case, the story-board is summed up by some jerk at Newsweek:

But the issue of prisoners participating in our democracy buries the real news in the decision. The court threw out Washington's law because its criminal-justice system is biased against minorities. The problem isn’t with disenfranchising prisoners, it’s with a state legal system that unfairly throws so many people of color in prison that their voting power is diluted.

This is followed by a slavish recitation of the statistical "proof" of discrimination, about which seldom is heard a discouraging word.

What it really boils down to is that the burden of proof should be on those claiming the entire justice system is riddled with racism... not on the rest of us to "prove" that racial discrimination (by whom?) didn't play a role in some black mugger with mutiple priors being sent to the Concrete Mama in Walla Walla.

Let's swing back to the Fox News story for a moment; this is the quotation that fired me up to write this post:

The two appellate judges ruled that disparities in the state's justice system "cannot be explained in race-neutral ways."

What do they mean by "race-neutral?" I think it's pretty clear that they demand that all races commit crimes in lockstep with their percent of the population. When that doesn't happen, they immediately see racism as the only possible explanation.

Today, their solution is to allow imprisoned felons, who have shown contempt for the law, to vote on who will create those laws; that is, to remove that punishment for crime. But tomorrow it may be, as I suggested, to simply force the prison system to precisely mirror the racial makeup of the country... no matter what disparate impact that would have in the real world on whites and Asians accused of crimes.

But there is a deeper, even more insidious racism in this case, and it oozes from every pore of the majority: By ruling that denying voting rights to convicted felons discriminates against minorities in general, two judges are equating felons of all races with the entire minority population. It's as bad as saying an entrance exam for getting into university "discriminates against blacks." Why, because blacks are known to be unusually stupid?

How stunningly offensive. Crikey, what a horrendous calumny that is on the honest, law-abiding, minority population of the entire western United States.

How does Los Angeles Mayor Antonio Villaraigosa feel to learn that anti-punishment radicals equate his voting rights with those of convicted felons, or argue that Villaraigosa is statistically "more likely" to be sent to prison than, say, San Francisco Mayor Gavin Newsom? I would be hopping mad.

This entire decision of the Ninth Circuit is based upon collectivist reasoning, seeing every person who happens to be black or Hispanic as nothing but a representative of his race, felons an all. The court gives no weight to the individual choices made by free individuals in a free society; it's a vile, despicable worldview that has more in common with Jim Crow than with the Voting Rights Act.

The best defense against racism -- the ultimate collectivism -- is not more collectivism, but rather treating people as individuals. Alas, I suspect it will be a long, long time before the Ninth Circus dips a toe into such a radical pond as individualism.

Cross-posted on Hot Air's rogues' gallery...

Hatched by Dafydd on this day, January 6, 2010, at the time of 6:30 PM | Comments (0) | TrackBack

November 14, 2009

Just Wondering...

If Attorney General Eric Holder and President Barack H. Obama argue that an American federal district court has jurisdiction over Khalid Sheikh Mohammed -- all of whose alleged crimes were committed outside the United States -- simply because he plotted to kill Americans... then would they also argue that the same court has jurisdiction to arrest and try Iranian President Mahmoud Ahmadinejad?

After all, he certainly plotted to send his Qods Force minions to kill Americans in Iraq; and they have successfully done so.

Do Holder and the Obamacle really want to open this kettle of worms?

Hatched by Dafydd on this day, November 14, 2009, at the time of 12:55 AM | Comments (1) | TrackBack

November 13, 2009

Michael "Miss-the-Point" Medved Strikes Again

In the first hour of his show today, Michael Medved was objecting to the staggeringly stupid decision by Attorney General Eric Holder to put Khalid Sheikh Mohammed, Ali Abd al-Aziz Ali, Walid bin Attash, Ramzi bin al-Shibh and Mustafa Ahmed al-Hawsawi, each accused of planning the September 11th attacks, on trial in a civilian court in New York City. (Of coruse, the policy could only have been announced had it been enthusiastically approved by President Barack H. Obama; so let's not blame Holder... blame Holder's boss.)

Well of course Medved opposes the scheme; he is (generally) a conservative, and what conservative could possibly support such an asinine policy?

But I was driven to distraction when Medved explained why he was against it. Because of the danger it would provoke another terrorist attack against New York? Because of likely attempts by terrorists to free the Gitmo Five? Because of the horrible risk that they might be acquitted, simply because we would be hamstrung by threats to national security?

Why no: Michael Medved's main argument, which he repeated over and over, was that such a trial would cost too much money.

"This could cost as much as a hundred million dollars!" he hyperventilated -- which, by the way, is less than one one-millionth of the cost of ObamaCare. Several callers took their cue from Medved, calling to complain about wasting all that taxpayer money.

Where to begin? Talk about missing the dead cow on the tennis court. The reason the Holder decision is utterly insane is not the money; and it's not that it would give a "platform" for the terrorists to spout their anti-American propaganda, which Medved also mentioned en passante. I'm sure the courtroom will be closed; and even if there is a TV feed, it will be court controlled, which the judge can order shut down if the defendants begin ranting. (Not that a raging Khalid Sheikh Mohammed screaming "God damn America!" would be a good recruiting tool to convert Americans to jihadist Islam anyway.)

The real danger is twofold:

1. It establishes a precedent that such terrorist attacks, launched from a foreign country by foreign nationals, with the aid and support of other foreign nations, are simply criminal acts that should be tried in civilian court, alongside carjacking and check kiting cases.

We must understand that such attacks are the future of warfare. We're not going to be subject to a missile barrage directly from Iran; when Iran attacks us in future, it will be through the agency of another KSM and Ramzi Binalshibh.

2. It carries the distinct risk that terrorist attorneys can "game the system" to get all five terrorist detainees acquitted... on grounds that demonstrate once again why we need to try these terrorists via military tribunals, not the civilian justice system (which was never set up to prosecute unlawful enemy combatants).

The defendants' attorneys, probably supplied by CAIR or some other terrorist-linked organization, can use a peculiar tactic to practically force an acquittal: They can claim that they cannot possibly defend against the charges without knowing exactly how they were found, how they were captured, what intelligence led them there, who were the sources for that intel (so they can be subpoenaed into court), what methods were used to collect it, and so forth. Thus, they will demand all such documents -- probably more than a million pages of heavily, heavily classified material -- during discovery.

Obviously, we cannot possibly hand that over to the defendants' attorneys. Even if the attorneys are Americans, how do we know we're not putting such vital intelligence data into the hands of another Lynne Stewart? Even the incompetocracy of Obama will be bright enough to realize it cannot release such intel... which will give the attorneys the perfect opening to demand all charges be dismissed.

In addition, they're sure to move to dismiss charges against KSM on the grounds that Mohammed was "tortured," i.e., waterboarded. This will give the federal courts yet another crack at formally declaring waterboarding to be torture -- which would make it much easier for Team Obama to prosecute our anti-terrorist interrogators... and once again blame George W. Bush for all the woes afflicting America.

At that point, all will be in the hands of a federal judge, then an appellate court panel, then the Supreme Court, where it will ultimately be decided by how Justice Anthony Kennedy feels that day. If he woke up grumpy, we could find all five of them (or perhaps just the most well-known terrorist, Khalid Sheikh Mohammed) acquitted, out on the streets, and quickly back in Iran or Pakistan or Indonesia, receiving a hero's welcome -- and returned once again to the terrorist fold.

(Medved did mention one other problem: That the civilian trial itself, no matter how carefully managed, would almost certainly compromise American intelligence gathering. But he presented it only as a quote from somebody else, at the very end of the hour.)

Honestly, the hundred-million dollar cost is the least of the perils to which such jackassery exposes us.

Queerly enough, the Justice Department also announced that other terrorists from the Guantanamo Bay Detention Facility will be tried -- by military tribunals!

But the administration will prosecute another set of high-profile detainees now being held at the military prison at Guantánamo Bay, Cuba -- Abd al-Rahim al-Nashiri, who is accused of planning the 2000 bombing of the Navy destroyer Cole in Yemen, and four other detainees -- before a military commission.

Why the difference? Because Nashiri attacked a military target, the U.S.S. Cole? But the 9/11 plotters attacked the Pentagon -- which is also a military target, I would reckon. Both KSM and and Nashiri were captured abroad, in Pakistan and the United Arab Emirates, respectively. Both are foreign nationals: KSM is a Kuwaiti, Nashiri is Saudi Arabian. Both planned their crimes abroad.

The only difference appears to be that Nashiri's target was an American ship sitting at anchor in Yemen, while Mohammed's targets were all in the United States; but this hardly seems such an important distinction that we couldn't have tried Mohammed and his five pals in a military tribunal as well, where we could much more securely control the circulation of any discovery documents that could compromise American national security.

I just don't understand what's so hard to understand about the insanity of this grandstanding move -- whose real purpose, I suspect, is to find yet another way to blame everything on Bush. But evidently, it's too subtle a point for Michael Medved to grasp. Yes, I agree, we spend too much federal and state money; we should significantly reduce spending and dramatically drop the tax rates.

But for heaven's sake, that's not the big problem in this case.

Cross-posted on Hot Air's rogues' gallery...

Hatched by Dafydd on this day, November 13, 2009, at the time of 2:12 PM | Comments (3) | TrackBack

October 2, 2009

Texas State Judge Overturns Texas State Constitution

Perhaps one of the legal beagles in the 'sphere can explain this to me, for I am only an egg in legal matters:

A Dallas judge ruled Thursday that Texas' ban on gay marriage is unconstitutional as she cleared the way for two gay men to divorce, the Dallas Morning News reported.

State District Judge Tena Callahan said the state’s bans on same-sex marriage violates the constitutional guarantee to equal protection under the law....

Attorney General Greg Abbott released a statement saying that he will appeal the ruling.

“The laws and constitution of the State of Texas define marriage as an institution involving one man and one woman. Today's ruling purports to strike down that constitutional definition -- despite the fact that it was recently adopted by 75 percent of Texas voters,” he said.

Can Texas state judges strike down elements of the Texas state constitution on grounds that the constituiton is unconstitutional? I'm pretty sure that state judges in California cannot, but perhaps I'm mistaken even in that.

I was under the (perhaps naive) apprehension that state judges can strike down statutes for violating provisions of the state constitution; and of course a federal judge can strike down both a state statute and parts of a state constitution for violating the United States Constitution -- for example, a federal judge could strike down a clause of a state constitution, enacted by referendum (even by 75% of the voters), that restricted voting to whites.

But I didn't think state judges could strike down the state constitution, any more than a federal judge can simply rule a clause of the U.S. Constitution "unconstitutional." If a later clause contradicts an earlier one, then I have always assumed that the latter triumphs -- the most obvious case being the 12th Amendment in 1804, which directly contradicted parts of Article II, Section 1 of the Constitution, dealing with how we elect a president.

I have always been taught in school that the 12 Amendment changed the Constitution; but under the reasoning of State District Judge Tena Callahan, any federal judge could simply have ruled the 12th Amendment unconstitutional -- because it contradicted the section it was designed to alter! Similarly, any federal judge could have struck down the 13th Amendment (ending slavery), the 14th Amendment (due process and equal protection for all races), the 16th Amendment (income tax -- all right, maybe judges can kill off that one), or even the 21st Amendment repealing the 18th Amendment, thus reinstating alcohol prohibition across the land.

Clearly then, it seems to me, if federal judges cannot rule the U.S. Constitution unconstitutional, then state judges cannot rule the state constitution unconstitutional. Or am I simply ignorant of the niceties of law?

I suppose Callahan would argue that the state constitution violates the U.S. Constitution's 14th Amendment. But does a state judge have jurisdiction to consider that question? If so, then couldn't a state judge overrule a federal judge who may have already decided the opposite way? I thought the whole purpose of jurisdictional rules was to prevent such collisions in the first place.

And there is another point worth considering: The voters of Texas enacted a constitutional amendment to ban same-sex marriage; but if a single liberal state judge can simply wave her hands and consign that vote to the dustbin of history, then Texas no longer as a "republican form of government"... which, by the way, appears -- at least to my non-law-schooled eyes -- to be guaranteed to each state by Article IV, Section 4 of the United States Constitution.

At the very least, a "republican form of government" must ultimately be ordained and established by "we the people," not by judges; a judge should never be allowed to throw out pieces of her own constitution to suit her political ideology. That must be what is guaranteed by Article IV, section 4, for it to have any meaning or purpose whatsoever.

Unless some state judge somewhere has overturned it.

Hatched by Dafydd on this day, October 2, 2009, at the time of 12:47 PM | Comments (1) | TrackBack

September 20, 2009

Obama Stands Behind "Prosecutors" - Well...

I cannot twitter my thumbs without noting the latest astonishment from the One (hat tip to DJR at Patterico's Pontifications). Here is Barack H. Obama on Deface the Nation, discussing Attorney General Eric Holder's decision to criminally investigate CIA agents who had the temerity to interrogate terrorist suspects about imminent, ongoing attacks:

He's got to make judgment in terms of what has occurred. My understanding is it's not a criminal investigation at this point. They are simply investigating what took place. And I appreciate the former CIA directors wanting to look after an institution that they helped to build. But I continue to believe that nobody's above the law. And I want to make sure that as President of the United States that I'm not asserting in some way that my decisions over rule the decisions of prosecutors who are there to uphold the law.

Thank goodness we finally have a president who is willing to uphold the law, no matter what: Fiat justitia ruat coelum!

(But of course, he's not a fanatic about it.)

Hatched by Dafydd on this day, September 20, 2009, at the time of 6:41 PM | Comments (2) | TrackBack

June 5, 2009

Sonia "Banana Peel" Sotomayor Slips Again - and Again - and Again...

When the text was leaked of a 2001 speech by Judge Sonia Sotomayor, tabbed by President Barack H. Obama to be his first Supreme Court pick, and it was found to contain a passage that reeked of classic "reverse racism" the explanation by the White House was that it was simply a "poor choice of words," almost a slip of the tongue; she had said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

Now the Congressional Quarterly discovers that Ms. Sotomayor "slips" so often, she could star in a Mack Sennett comedy:

Supreme Court nominee Sonia Sotomayor delivered multiple speeches between 1994 and 2003 in which she suggested "a wise Latina woman" or "wise woman" judge might "reach a better conclusion" than a male judge.

Those speeches, released Thursday as part of Sotomayor's responses to the Senate Judiciary Committee's questionnaire, (to see Sotomayor's responses to the Senate Judiciary Committee click here and here) suggest her widely quoted 2001 speech in which she indicated a "wise Latina" judge might make a better decision was far from a single isolated instance.

I thought from the beginning that the defense was preposterous. The conclusion to her 2001 lecture wasn't a slip of the tongue or even just a "poor choice of words;" it was a long, extended rhetorical climax identifying the central thesis of her entire argument: that the gender and race of judge and litigants play, and should play, a huge role in how a judge decides a case. Her ancillary thesis was even worse: that whites and males are simply not as good at the job as people of "color" and females.

Here is the context surrounding the "wise Latina" passage of her 2001 Judge Mario G. Olmos Memorial Lecture at UC Berkeley Law School, titled "a Latina Judge's Voice" (page 5 at the link):

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life....

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

But seven years earlier, in 1994, then District Judge Sotomayor delivered an address containing the following nearly identical passage:

Justice O’Connor has often been cited as saying that “a wise old man and a wise old woman reach the same conclusion in dueling cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes the line to Supreme Court Justice Coyle. I am not so sure that I agree with the statement. First, if Prof. Martha Minnow is correct, there can never be a universal definition of ‘wise.’ Second, I would hope that a wise woman with the richness of her experience would, more often than not, reach a better conclusion. [Sotomayor had yet to substitute "Latina" for "woman" to drag in racism as well as sexism.]

In addition, CQ Politics found Sotomayor boasting of the superiority of a "wise woman" judge over a (presumably more foolish) male judge, in at least four other lectures in between the 1994 and 2001 speeches:

• One in 1999 to the New York State Women's Bar Association;
• One in 1999 to Yale University;
• Another to Yale in 2000;
• And one to the CUNY School of Law (date not mentioned by CQ Politics).

Finally, they found a 2003 speech at Seton Hall University, two years after her Olmos Memorial Lecture, with this version:

I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion.

That makes seven times -- that we know of! -- that Sotomayor suggested women, and Latinas in particular, make better judges than whites and males.

I believe we have here what civil-rights law calls a "continuing pattern and practice" of making racist and sexist comments in major scripted, edited, and rehearsed speeches before august legal bodies. This renders risible the defense that Sotomayor was guilty only of a "poor choice of words." This isn't just a slip of the tongue, it's a window into a profoundly racially and sexually biased judicial mind.

When a person returns again and again over many years to a bizarre and controversial claim -- especially one that must be taken purely on faith, since all the evidence points against it -- then we must take seriously her absolute commitment to that position. And that means we cannot get away from the strong likelihood that her philosophical, ideological commitment to judging legal cases based upon race and gender, rather than purely upon the facts of the case and the relevant law, will recur; and that in some cases at least, it will determine her vote on the Supreme Court.

This also means that Newt Gingrich was premature to withdraw his charge of "racism" against Sotomayor in favor of the more wishy-washy claim that she only made a racist statement. One such statement can be explained away by implying it was out of character, she doesn't really think like that, she had a brain-tongue interchange malfunction, she just slipped.

But you don't slip on the same banana peel seven times unless, as with the Keystone Kops, the slip is entirely intentional: We must face the fact that Judge Sonia Sotomayor is, by any widely accepted definition of the words, both racist and sexist: She believes that one race is superior to another and that one gender is superior to the other.

Were a judicial nominee found to have endorsed pro-white, pro-male bias with similar enthusiastic repetition, his nomination would never make it out of the Senate J-Com. It shames the Democratic Party that in the age of Obama, a cheerfully racist and sexist judicial nominee is still a "slam-dunk" for confirmation... because she's the right kind of racist and sexist.

Hatched by Dafydd on this day, June 5, 2009, at the time of 11:37 AM | Comments (7) | TrackBack

June 3, 2009

Serfing Towards Liberty?

The title refers, of course, to the immortal work by free-market economist Friedrich Hayek, the Road to Serfdom; but in this case, I'm not referring to the obvious economic servitude into which we seem to be slipping -- or slaloming.

I am instead talking about an even more fundamental shibboleth that determines whether a people are free citizens or merely subjects of the crown: whether their fundamental right to the means of self defense is protected or violated. In other words, whether they are or are not allowed to own a firearm.

Today a three-judge panel of the Seventh Circuit Court of Appeals decided to uphold Chicago's ban on handguns within the city limits. I believe the case was properly decided -- despite the fact that I believe Americans have a fundamental right to own (and even carry -- "keep and bear") arms, even within the great city of Chicago, a.k.a. Obamastan:

The unanimous three-judge panel ruled today that a U.S. Supreme Court decision last year, which recognized an individual right to bear arms under the U.S. Constitution’s Second Amendment, didn’t apply to states and municipalities.

“The Supreme Court has rebuffed requests to apply the second amendment to the states,” U.S. Circuit Judge Frank Easterbrook wrote, upholding lower court decisions last year to throw out suits against Chicago and its suburb of Oak Park, Illinois. [Easterbrook was appointed in 1985 by Ronald Reagan.]

Why was it properly decided? Because for more than a century, the Supreme Court has consistently ducked its opportunity to state unequivocally whether the protections of the Second Amendment to the United States Constitution apply only against action by the federal government, or whether it also protects our right to keep and bear arms from depredations by the states -- or their subdivisions, including the windy hog butcher to the world.

Even in the recent case of District of Columbia v. Heller, 554 U.S. ___ (2008), in which the Court for the first time held that the Second Amendment protected an individual's right to own a firearm, this larger issue was not settled. Justice Antonin Scalia wrote for the razor-thin majority:

In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense ... We affirm the judgment of the Court of Appeals.

However, as the title of the case suggests, this ban was enacted by a federal entity: the District of Columbia; therefore, the holding does not necessarily apply to a state or municipality. But that is exactly what the current case will decide.

I cannot imagine the Supreme Court refusing to take it, especially as a Ninth Circuit case, Nordyke v. King, ___ F.3d ___ (9th Cir. 2009), ruled the opposite way (that the Second Amendment does apply to state legislation). According to Wikipedia -- not the best of sources, considering its provenance, but it will have to do -- the Ninth Circus held:

The Circuit Court ruled that the Second Amendment was incorporated through the Fourteenth Amendment's Due Process Clause and applies against the states and local governments. In coming to that conclusion, the court found the right to keep and bear arms is "deeply rooted in this Nation’s history and tradition", a key factor under Duncan v. Louisiana for incorporation.

Therefore, we desperately need clarity: We need to know that our right to keep and bear arms is fundamental, and that it applies not only against federal bans but state bans as well. I believe the language of the amendment itself favors the side of liberty. Compare the language of the First Amendment to that of the Second:

If the Court can "incorporate" the First Amendment to the states, despite the fact that it explicitly mentions acts of Congress, then surely the Second Amendment (which mentions no such possible limitation) must logically be incorporated as well.

But only the United States Supreme Court can do so. If the same majority from Heller holds up under National Rifle Association of America v. City of Chicago, 08-4241, U.S. Court of Appeals for the Seventh Circuit (Chicago) -- and I believe it will -- then we will finally have what the Founding Fathers intended: "that every man be armed."

That may well turn out to be the greatest and most long-lasting achievement of the presidency of George W. Bush: Appointing John Roberts and Samuel Alito to the Court. Both joined the Scalia opinion, as did Clarence Thomas and Anthony Kennedy. While Roberts replaced Chief Justice William Rhenquist, who probably would have voted the same way in Heller, Alito replaced Justice Sandra Day O'Connor -- who I suspect would have either sided with the liberals, or at least would have demanded a toned down, wishy-washy decision. Alito cast a courageous vote for liberty instead.

So keep watching the skies; the first step is to see whether at least four justices will vote to accept certiorari.

Hatched by Dafydd on this day, June 3, 2009, at the time of 6:14 PM | Comments (3) | TrackBack

May 26, 2009

Mystery Justice...?

On Hugh Hewitt's show just now, he was interviewing Mike Allen of Politico; Allen stated that in addition to the various women that Barack H. Obama considered (including the one he ultimately picked, Judge Sonia Sotomayor), there was a mystery candidate for the pick. All that Allen knew was that it was a "white male."

Hugh Hewitt kept trying to guess Interior Secretary Ken Salazar, based upon Hewitt's insistance that Hispanics should be considered "white." Regardless of the merits of that position, I think it highly unlikely that BO himself would consider Hispanics to be "white," so that's out.

As Allen toddled off into the radio sunset, Hewitt was left completely befuddled as to who that mystery candidate could be. But I think I've solved the enigma; it's clear and obvious to me... and he may well be the next pick Obama gets:

Can you say -- Justice Bill Ayers?

Hatched by Dafydd on this day, May 26, 2009, at the time of 3:38 PM | Comments (3) | TrackBack

Hatch As Hatch Can: Venom of the Gay Left

In just four more hours, give or take, the California Supreme Court will release its decision and opinion on three consolodated cases demanding the invalidation of Proposition 8, the citizens initiative that overturned a decision by that same court mandating same-sex marriage in California on bogus "equal protection" grounds. The citizens initiative is one of the greatest tools of real grass-roots democracy, not liberal "astroturf," in America's most populous and richest state. (Which is headed towards bankruptcy and possible receivership; so it goes.)

In just four hours, we shall learn whether we still live in democracy with a government of the people, by the people, and for the people -- or whether we live in a tyranny with a regime of the activists, by the activists, and for the activists. I'm betting that even this court will shy from throwing a sacred Californian right of more than a century and a half standing into the dustbin of history, simply to satisfy a whim of policy preference, in a case that was originally decided by the slim and unconvincing majority of 4 to 3.

The gay Left says that if they do not get the "invalidation" ruling they want -- if the citizens of California are allowed to retain their self-evident right to write their own constitution -- then the radicals will go ape; there will be days of rage:

Gay rights advocates have scheduled marches throughout California and in several other states for Tuesday evening. Organizers say the gatherings will be celebratory if the court rules in their favor and angry if Proposition 8 is upheld.

Activists in the San Francisco Bay area, including several clergy members, said they planned to block the street outside the courthouse and to be arrested in a mass show of civil disobedience if the justices do not invalidate the measure.

"Words are not enough right now. We believe it's time to put our bodies on the line to show that separate is not equal," said Kip Williams, an activist with One Struggle, One Fight, a group that was launched in response to Proposition 8's passage.

I say, let them. Bring it on! Let the world see just how committed the American hard Left is to "outmoded" concepts such as democracy, liberty, and honesty. Let America see the liberal fascists for what they are: unAmerican, even anti-American. Apt pupils of Oogo Chavez and other Stalinists.

As the Emperor Claudius says in Claudius the God, the second half of I, Claudius, by Robert Graves, "Let all the poisons that lurk in the mud hatch out."

In sum, if the court has the audacity (chutzpah is the better word) to flush 159 years of the right of citizens initiative, over a stunningly recent, transitory, and bitterly partisan dispute, it will be the greatest outrage in the history of California jurisprudence... even for those who voted against Proposition 8: You cannot target your invalidations to those initiatives with whose policy you disagree -- without simultaneously invalidating it for all initiatives. I don't think even Los Angeles Mayor and likely next Democratic gubernatorial nominee, Antonio Villaraigosa, would go that far (though certainly San Francisco Mayor Gavin Newsom -- his most likely rival for the nomination -- would).

But if, as nearly everyone predicts, even most of the justices who voted to declare unconstitutional the state's perennial definition of marriage to apply only to male-female unions, nevertheless vote to uphold Proposition 8... then let us see the violent, adolescent Left rage and blow, smashing other people's property, assaulting their opponents, the police, and randomly selected bystanders. Let them show their Jerry Brown-shirts in public.

The medicine will be bitter, but its effect curative for our state's internal organs.

Hatched by Dafydd on this day, May 26, 2009, at the time of 5:57 AM | Comments (2) | TrackBack

April 30, 2009

Everybody Expects the Spanish Inquisition

At the end of an AP story on the extraordinary lengths to which the administration of Barack H. Obama is going to urge, cajole, and even bribe our "allies" into accepting released detainees from the Guantanamo Bay Detention Facility -- so that the president can shut it down and bask in the warm glow of being patted on the head by Europe -- I stumbled across this arresting exchange:

In speaking to reporters Wednesday, [Attorney General Eric] Holder also said it is possible the United States could cooperate with a foreign court's investigation of Bush administration officials.

Holder spoke before the announcement that a Spanish magistrate had opened an investigation of Bush officials on harsh interrogation methods. Holder didn't rule out cooperating in such a probe.

"Obviously, we would look at any request that would come from a court in any country and see how and whether we should comply with it," Holder said. [Any country? Any country at all can open a "probe" of American officials, and Holder will seriously consider cooperating with it?]

"This is an administration that is determined to conduct itself by the rule of law and to the extent that we receive lawful requests from an appropriately created court, we would obviously respond to it," he said.

Oh yes, the "rule of law." But whose law? The rule of law in Spain forbids any interrogation of captured unlawful combatants and terrorists without them having an attorney present to object and demand classified intelligence; is that our new policy too? For that matter, the rule of law in Saudi Arabia demands that rape victims be flogged or even stoned to death. Will we "cooperate" on Saudi probes of such promiscuous women here in the United States?

The juxtaposition of Holder's offer of "cooperation" (complicity) and the hoped-for acceptance of Gitmo detainees strongly suggests that a grand bargain may be in the works: European countries may accept releasees in exchange for American recognition of the "universal jurisdiction" of individual courts of "human rights."

Does our looming cooperation imply that we might even look favorably upon a demand that we arrest and extradite named defendants to stand in the dock of such courts? Perhaps suspecting that he had given a bit too obvious a "tell," Holder seemed to retreat slightly (but only slightly):

Pressed on whether that meant the United States would cooperate with a foreign court prosecuting Bush administration officials, Holder said he was talking about evidentiary requests and would review any such request to see if the U.S. would comply.

But this is manifestly absurd: If the Attorney General of the United States once accepts the absurdity that a Spanish court and Spanish judge, Baltasar Garzón, sitting in Spain and operating under Spanish law, actually have jurisdiction over American officials making official policy decisions inside the United States about how American military and intelligence agents can interrogate detainees at an American Marine Corps base inside Cuba... then how can Holder later limit such jurisdiction to "evidentiary requests?"

If Garzón has legal authority to demand we hand over evidence, he also has legal authority to demand we hand over "war criminals," from American military personnel, to John Yoo, to Jay Bybee, to William Haynes, to Douglas Feith, to Alberto Gonzales, to Richard Myers, to Dick Cheney -- even to former President George W. Bush himself.

This is even more outrageous than the suggestion that we prosecute any of these individuals ourselves, or that we form a "truth commission" and haul them before it for public show trials. This is, in essence, outsourcing the prosecution of the previous administration to foreign courts. Call it "extraordinary judicion."

If we ever once accept that a European court -- and not even a recognized "international" one! -- has jurisdiction over actions committed by American officials here in the United States, and can prosecute them for "crimes" that are not even recognized here, then we have crossed a line from which we can never retreat: The United States will cease to be a sovereign power.

If Eric Holder and Barack Obama accept this idea, they will actually have brought about what used to be a paranoid fantasy among the John Birch Society and other lunatics -- "one-world government," run according to European, not American rules.

Even if we do not actually arrest and extradite suspects in a European crimes-against-humanity witch hunt, by acquiescing and even cooperating with such unconstitutional probes of American citizens, we could make it impossible for former Bush-administration officials ever to travel outside the United States: By accepting the jurisdiction of such "world courts" and blessing their proceedings, President Obama signals that he will stand by and do nothing if, say, Dick Cheney or George Bush is seized abroad and sent to some star-chamber tribunal for prosecution. (What would the former president's Secret Service contingent do -- shoot it out with Italian or German police?)

Note in this WaPo article that the administration has already cooperated with Garzón's kangaroo court, albeit with boatloads of plausible deniability:

In Madrid, a Spanish investigating magistrate announced Wednesday that he has opened a wide-ranging criminal investigation into what he called "a systemic plan of torture" at Guantanamo and other places where the U.S. government held terrorism suspects after the Sept. 11, 2001, attacks.

Judge Baltasar Garzón said his probe was based largely on complaints filed by four former prisoners at Guantanamo who were transferred to Spain. But in court papers, he also said his investigation was prompted by the release of secret U.S. legal opinions authorizing the CIA to subject terrorism suspects to waterboarding and other tactics.

Spain and some other European countries have adopted laws giving themselves authority to investigate torture, genocide and other human rights crimes anywhere in the world. Although it is rare for prosecutors to win such cases, those targeted can face arrest if they travel abroad.

It's possible that Obama, Holder, and everyone else involved in the bizarre decision to release highly classified memos detailing our interrogation techniques into the wide world, were so naive and feckless that they literally had no idea that a Spanish court (and others) would rake over such a treasure-trove of intel for anything they could use against the United States. But it's equally plausible that the administration knew exactly what would eventuate from the release... and they did it anyway, consciously and deliberately. It is, after all, a wonderful way to push forward the criminal prosecution of the former administration without Obama himself, or his deputies, getting blood on their own hands: Garzón is willing (eager!) to do it for them.

But they cannot escape their own complicity so easily. I strongly believe that even most rank and file liberals will rise up in disgust at the idea that any cockamamie court anywhere in the world can announce that it has awarded itself "authority to investigate torture, genocide and other human rights crimes anywhere in the world" -- then demand the arrest and extradition of Americans for actions committed in some third-party country (or in America itself!) that are not crimes here... but are crimes in the country housing the court.

Should we hand over American government officials to sharia courts in Iran, to be prosecuted for the "crime" of insulting Islam? Well, don't we want to improve relations with that country, hoping they wil promise, crescent their hearts, to stop building nuclear bombs? Or should we extradite a president for refusing to join in some EU-enforced policy to cut carbon use by 80%?

Just how far is the Obama administration willing to go to impose "change we can believe in" upon the American people. More to the point, just how far are we willing to let them go?

Hatched by Dafydd on this day, April 30, 2009, at the time of 2:00 PM | Comments (8) | TrackBack

March 30, 2009

Shock Report - NYT (!) Admits the ABA Favors Liberal Judges Over Conservatives!

Despite the category above, this is actually not an example of media madness, but rather an unexpected gust of media sanity:

Two weeks ago, the American Bar Association’s eight-year exile ended. The Obama administration restored the group to the special status it had enjoyed since the Eisenhower years, and it will once again get early word about potential nominees to the federal bench.

The group says it is serious and diligent about evaluating candidates without regard to ideology. But there is reason to wonder whether Alberto R. Gonzales, who was White House counsel at the time, might have had a point when he told the group eight years ago that its help would not be needed.

The A.B.A. is, after all, a private trade association, not an arm of the government. It takes public and generally liberal positions on all sorts of divisive issues. And a series of studies suggest that candidates nominated by Democratic presidents fare better in the group’s ratings than those nominated by Republicans.

For its part, the American Bar Association has utterly refuted the malicious lie that they're biased to the left:

Kim J. Askew, the chairwoman of the association’s 15-member Standing Committee on the Federal Judiciary, which performs the evaluations, said her group is independent, hardworking and completely divorced from politics.

“We are an impartial group of lawyers that bring a peer review to the process,” Ms. Askew said. “We are all lawyers. We are officers of the court. We speak the language of the law. We do not consider politics.”

Well! Who could argue with that? It's not the A.B.A.'s fault that liberals tend to be capable and intelligent, whereas conservatives just happen to be incompetent and stupid.

Alas for the ABA, even the New York Times now admits that "a series of studies have found indications that liberal nominees do better in the process than conservative ones." No, really. The latest shocking, jaw-dropping assessment is from the University of Georgia and Emory University:

“Holding all other factors constant,” the study found, “those nominations submitted by a Democratic president were significantly more likely to receive higher A.B.A. ratings than nominations submitted by a Republican president.”

The differences matter, said Amy Steigerwalt, a political scientist at Georgia State and an author of the study, along with Richard L. Vining Jr, of the University of Georgia and Susan Navarro Smelcer of Emory.

“A nominee who has a higher A.B.A. rating is more likely to move through the process,” Professor Steigerwalt said. “When problems arise, a higher A.B.A. rating provides one piece of ammunition for the president and supporting senators about why a person should be confirmed to the federal bench.”

I won't say too much about this stunning conclusion, which surely breaks new ground that nobody has ever before trodden, because the dextrosphere is replete with actual lawyers, not sea-lawyers like me; I have a premonition that Power Line, Patterico's Pontifications, Instapundit, Beldar, the Volokh Conspiracy, et al will cover the topic rather thoroughly -- and probably have already done so in much greater depth than we; I haven't looked yet. (When I do check, I'll add links to the relevant posts of each of the blogs above... just because, unlike all those heartless conservatives out there, we care.)

Huh. As of this moment, none of the above blogs has so much as mentioned this Times article! Well, since I have little more to say, I think I'll post quickly -- and get a rare-to-vanishing Big Lizards scoop!

Hatched by Dafydd on this day, March 30, 2009, at the time of 2:00 PM | Comments (1) | TrackBack

March 6, 2009

California Supreme Court Justices Will Decide Whether They or the People Get to Decide on Same-Sex Marriage

The California Supreme Court (CSC) heard oral argument (no jokes, please) on the constitutionality of Proposition 8, the initiative constitutional amendment that overturned a 2008 CSC ruling that had itself overturned a previous initiative, 2000's Proposition 22, restricting marriage to a union between one man and one woman.

When voters enacted Proposition 22 eight years ago, they merely reaffirmed what had been the law in California ever since it was incorporated as a state in 1850; prior to 2008, same-sex marriage was never valid or allowed here.

There are three questions at issue in the current CSC case:

1. Was Proposition 8 legally placed upon the ballot as an initiative constitutional amendment?
2. Does it violate California's "separation of powers" constitutional doctrine?
3. If the amendment is upheld, how does that affect the 18,000+ same-sex marriages performed during the few months between the imposition of the CSC's decision and passage of Proposition 8?

The bits we don't care about

Issues (2) and (3) are ancillary to the main event. I have yet to see any discussion of how Proposition 8 supposedly violates separation of power. For heaven's sake, it simply defines marriage!

Is the argument that only the courts should get to do that, not the legislature or the citizenry, who write the laws the court supposedly interprets? I cannot imagine anyone taking that suggestion seriously. In any event, nobody seems to be writing about it, so I really can't comment.

And the third point above -- how Proposition 8 affects those same-sex couples who married in the brief window of opportunity -- is irrelevant to the state and country as a whole, however vital it may be to the individuals involved. If the CSC chooses to allow them to remain married -- which seems quite likely to me -- it's only out of compassion, not principle: The court simply feels sorry for the victims of its own malfeasance.

(It wouldn't violate the equal protection clause of the federal or state constitutions, because it's not based upon "immutable" characteristics, even if one believes sexual preference is immutable, but upon the actions of the individuals... no more than any privilege that sunsets. If a gay couple made it to the altar on time, they're in; if not, they're out. No jokes, please.)

Straight to the meat of the matter

Only one argument could strike down the proposition itself: whether it was properly put on the ballot as an initiative constitutional amendment in the first place. At issue is whether it's simply an amendment, which has been part of the initiative process since 1911, I believe; or whether it's sweeping enough to be considered a constitutional revision.

A revision would have required a 2/3rds vote in both houses of our state legislature (the State Assembly and the State Senate) to place it on the ballot, or else the same 2/3rds vote to call a state constitutional convention. Since neither of those were undertaken, if the CSC should rule that Proposition 8 created a "fundamental change to the [state] Constitution," then it would be struck down under question (1).

However, this is an awfully tough argument to make... given that all the amendment does is reinstate a previous initiative statute, Proposition 22, using exactly the same language. And all that statute did was reaffirm the status quo ante. How can reinstating the reaffirmation of the previous understanding possibly amount to a "constitutional revision?"

Mr. Peabody's Way-Back machine

On March 7th, 2000, the people of the state voted to inact an initiative statute comprising the following 14 words:

At this time, California Family Code section 300 defined marriage just that way anyway:

300. (a) Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).

Proposition 22 was a precautionary measure against the possibility that California courts might attempt to cram same-sex marriage down our throats (no jokes, please) -- which, as it turns out, was remarkably prescient. So for eight years, Californians believed that the question of same-sex marriage was settled -- at least until supporters could muster enough votes to enact it via their own initiative; they tried once, but it was a disaster for the revisionists.

(The state legislature in California cannot vote to nullify a citizens initiative; they can only vote to place a legislative initiative on the ballot to overturn a citizens initiative... but we get to vote on that.)

We were rudely shaken awake on May 15th, 2008, when the California Supreme Court issued the ruling In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384], overturning the law enacted by 2000's Proposition 22 and all other statutes restricting marriage and the recognition of marriage to one man and one woman.

Four of the seven justices voted to overturn the will of the people of the state of California and legalize same-sex marriage; the names in parentheses are the governors who appointed each justice and the year appointed:

• Chief Justice Ronald M. George (Pete Wilson-R, 1991/1996)
• Associate Justice Joyce L. Kennard (George Deukmejian-R, 1989)
• Associate Justice Kathryn Werdegar (Pete Wilson-R, 1991)
• Associate Justice Carlos R. Moreno (Gray Davis-D, 2001)

The other three justices voted to preserve traditional marriage:

• Associate Justice Marvin Baxter (George Deukmejian-R, 1991)
• Associate Justice Ming Chin (Pete Wilson-R, 1996)
• Associate Justice Carol Corrigan (Arnold Schwarzenegger-R, 2005)

The ruling took effect at the beginning of July, I believe. Since supporters of traditional marriage knew that the case was in the works, and knew that the court would probably rule the way it eventually did, Proposition 8 was already in the works. The initiative "title" -- that is, the description that appears on the ballot itself -- offered by those who qualified it for the ballot was "Limit on Marriage."

It qualified for the November ballot... and then, Attorney General Jerry Brown (yes, the former "Governor Moonbeam"), in a burst of unaccustomed neutrality on a contentious issue, decided to change the title to remove possible bias in the original title. Brown's version? "Eliminates Right of Same-Sex Couples to Marry!"

Despite this bit of skulduggery, the initiative passed by a margin of 4.6%, 52.3 to 47.7. This was significantly less than Proposition 22 had passed by in 2000; but it was a November ballot (which tend to lean more to the left), it had the Brown title, and it was during the Obama sweep of California... a remarkable achievement showing the true strength of California's support for traditional marriage (Hispanic voters pushed it over the top). The lawsuits were immediately filed to overturn it, and those are the cases that were just argued today in the California Supreme Court.

Back to the future

It's generally impossible to say for sure how the court will rule; but in this case, the lawsuit seeking to overturn Proposition 8 looks to be on shaky grounds. The attorneys for the groups seeking to overturn Proposition 8 in the tit-for-tat (no jokes, please) battle came in for some rough treatment from some of the justices... including two justices who actually voted to impose same-sex marriage on the state in the first place, Chief Justice Ronald M. George and Associate Justice Joyce L. Kennard. From the New York Times story linked above:

The toughest and most opinionated questioning came from Justice Joyce L. Kennard, one of four justices who had ruled in May that same-sex marriage was legal.

She said on Thursday that by passing Proposition 8, the voters did not invalidate that entire decision, but in effect changed the meaning of the term “marriage.” It left intact, she said, the substantive rights that the court had granted same-sex couples.

Justice Kennard asked Shannon Minter, the legal director of the National Center for Lesbian Rights, an opponent of the measure, a question that resonated in the hearing.

“Is it still your view,” she said, “that the sky has fallen in as a result of Proposition 8, and that gays and lesbians are left with nothing?”

Mr. Minter argued that if the court upheld Proposition 8, same-sex couples would have “our outsider status enshrined in our constitution.”

According to AP, Kennard went even farther and spoke even more directly to her thoughts on the case:

Justice Joyce Kennard said the court was being asked to decide between two rights - the right of the people to change the constitution and the right to marry.

"And what I'm picking up from the oral argument in this case is this court should willy-nilly disregard the will of the people," she said.

While it's difficult to read the entrails of supreme court oral argument, this does not sound like a justice who leans towards throwing out the persistent vote of the people -- across three elections -- in favor of restoring traditional marriage to California.

I find it even more unlikely that one of the three dissenting justices, who do not believe the state constitution mandates same-sex marriage, would believe that the non-right of same-sex couples to marry would trump the enumerated right of the citizenry of this fair state to amend their own constitution. So if even one of the four justices in the majority of In Re Marriage Cases is persuaded that, notwithstanding the propriety or wisdom of banning same-sex marriage, the voters had the right to do so, then that's it... Proposition 8 stands.

All coming together (no jokes, please)

Yesterday, I was worried; but I'm extremely optimistic today. I feared the four who looked at a constitution that had never even contemplated any but traditional marriage in 153 years of statehood, and saw a constitutional mandate for same-sex marriage, would squint even harder and see that mandate as ineradicable by mere voters (for our own good, of course).

But it seems at least two of the four-justice majority in the earlier case recognize the enormity of the California Supreme Court nullifying a constitutional amendment enacted by the citizens to overturn a previous decision by the California Supreme Court: It smacks of tyranny of the European kind.

But if this amendment is upheld, as I believe it will be, then we in the Golden State have struck a magnificent blow for the right of we citizens of the several states to craft our own government, regardless of what our would-be robed masters command. And of course, we'll have preserved traditional marriage in America's largest state, to the great benefit of Western Civ.

But I'm still keeping my rabbits' feet crossed.

Hatched by Dafydd on this day, March 6, 2009, at the time of 12:01 AM | Comments (5) | TrackBack

January 29, 2009

Military Judge Shockingly Chooses to Follow Law, Not Obamic Decree

Military Judge Col. James Pohl decided to continue with the arraignment of Abd al Rahim al-Nashiri, accused of planning the bombing of the U.S.S. Cole in Yemen in 2000, an attack that killed seventeen American sailors and wounded fifty.

Nashiri, one of the Big Three who was waterboarded, is about to be arraigned by a military commission at the Guantanamo Bay Detention Facility. But President Barack H. Obama wants to personally "review" all 245 cases before allowing the George W. Bush policy of trying the detainees by military commissions to proceed. To that end, Obama signed an executive order calling for a delay of at least 120 days, while he decides whether to:

1. Close the facility, drop all charges against everybody, and release all the terrorist detainees in the United States;
2. Close the facility and rendite all the detainees to European allies -- who refuse to accept them;
3. Or close the facility and transfer all the detainees to ordinary federal courts -- which will promptly order the feds to produce all classified data from the war on the Iran/al-Qaeda axis in open court, thus conveying it all to al-Qaeda, Hezbollah, Hamas, Jemaah Islamiya, and every other militant Islamist terrorist organization in the world... and when even the Obama administration refuses to do this, the civilian courts will dismiss all charges against each detainee, releasing them into the United States.

But bizarrely, Judge Col. Pohl has ruled that his military commission will follow the law, which mandates an arraignment hearing by a certain date, rather than Commander in Chief's the hastily drafted delay:

The government, Pohl wrote, sought a delay because if cases went ahead, the administration's review could "render moot any proceedings conducted during the review"; "necessitate re-litigation of issues"; or "produce legal consequences affecting options available to the Administration after completion of the review."

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

How can mere law trump the pronunciamentos of the One We Have All Been Waiting For? What's the matter with that judge... didn't he get the memo?

The judges in 20 other military-commission cases that were set to proceed within the next 120 days have purportedly agreed to the postponement; Nashiri's is the only case where the judge denied the prosecutor's motion, at least so far. Now an ordinary reasonable person, one would imagine, would take the obvious compromise: accept the postponements of the other cases and order the prosecutor to proceed with the Nashiri case, as Col. Pohl ordered.

But the One is not to be thwarted or ignored. He is determined that Nashiri will not be arraigned during that period, and they're willing to use any means necessary to ensure that President Barack H. Obama, not Judge Col. James Pohl, wins this standoff:

Pentagon spokesman Geoff Morrell said at a briefing today that "this department will be in full compliance with the president's executive order. . . . And so while that executive order is in force and effect, trust me, there will be no proceedings continuing down at Gitmo with military commissions."

So where does that leave us? What means are necessary? I shall have to tell you what the Obama administration is considering, because you would not guess it in a thousand tries: They are looking into the prospect of withdrawing all charges against Nashiri; and then, 120 days from now, trying to refile them.

With the charges withdrawn, obviously Col. Pohl could not proceed. If they're able to refile the charges after the review period, Obama's advisors on military law evidently believe that the case can simply pick up again and proceed as normal. Or else maybe they would have to start all over again; but in any case, Obama will have asserted his authority and shown the military who is boss.

When military defense attorneys heard what was in the offing, some of them said they may force the administration to withdraw all charges against all detainees in Gitmo; I think what they are saying is that they would change their minds about stipulating to the postponement, thus forcing the hand of "the Pentagon official who approves charges and refers cases to trial."

That person is none other than Susan J. Crawford, of course, who came to our attention most recently when she flatly declared that at least one detainee in Guantanamo Bay had been "tortured;" she could not point to a single interrogation tactic that she would argue was torture itself; but she decided the concatenation of tactics bothered her delicate sensibilities:

You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.

She decided not to file charges against the detainee (Mohamed Mani Ahmad al-Kahtani, the "twentieth 9/11 hijacker") in that case. Of course, many, many other prisoners were interrogated using "a combination of things" and could claim it had "a medical impact" on them; thus, they, too, can claim they were "tortured" according to the unique, subjective, virtually iconoclastic standard set by the Pentagon's own convening authority. Thus, she had already set us up for the kill even before Obama's order.

If Crawford now withdraws the charges against Nashiri, and if the military defense attorneys follow through on their threat, Crawford will be caught between the Devil and a deep, blue, hard place:

• On the one hand, if the defense obects to the postponement, many military judges may follow Pohl's lead and side with the defendant's right to a speedy trial, thus denying the prosecutors' motions;
• On the other hand, Obama has issued marching orders to his staff that "there will be no proceedings" until the review period is up, no matter what.

This may leave Ms. Crawford with no option but to withdraw all charges against each detainee. But on the third hand, that path is also fraught with peril: If the arraignment is begun and the defendant pleads not guilty before Crawford can navigate the Pentagon labyrinth and formally withdraw the charges, then at least some defense experts claim that jeopardy attaches... and the Obama administration might not be allowed to reinstate the charges later.

At this point, the Supreme Court rulings of Hamdan and Boumediene, so eagerly praised and even sought by liberal Democrats such as Barack H. Obama, may rear up and bite the country hard. In Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), the Court held that it retained jurisdiction to hear habeas corpus filings under the law that created the first set of military commissions, created under the authority of the Detainee Treatment Act of 2005; it also struck those commissions down. The case was decided 5-3, with Chief Justice John Roberts recusing himself, as he had been on the appellate-court panel whose decision was under review by the Supreme Court; but considering his vote on the Boumediene case below, I suspect this would otherwise have been a 5-4 decision.

Then just last year, in Boumediene v. Bush, 553 U.S. ___ (2008), the Court decided a straight-up habeas corpus case arising out of the second stab at military commissions, this time under the authority of the Military Commissions Act of 2006, enacted by the Republican-controlled Congress in October 2006 as a specific remedy for the problems the Court found with the first version of the commissions.

Justice Anthony Kennedy, writing for yet another 5-4 decision, held that the prisoner did indeed have habeas rights; and further, that such rights could not be stripped by subsequent legislation unless that legislation included a "substitute" method for determining guilt that included, well, all the protections offered by the Constituition to defendants in civilian trials.

Therefore, I doubt that the Court as presently constituted (it won't get better with Obama making future appointments) will allow Susan Crawford or Barack Obama or anyone else to keep Nashiri and all the other detainees in indefinite detention if they have withdrawn the charges and are prevented by double-jeopardy from refiling them later.

I suspect the only remedy available in such a case will be the immediate release of all such prisoners... right here in the United States, since no other nation will likely take them. We can't even deport them, because they would clearly face execution and likely torture in their host countries -- and that violates the same section of the Geneva Conventions that so impressed the justices in the majority on both cases: John Paul Stevens, Ruth Bader Ginsberg, David Souter, Stephen Bryer, and of course the swing vote, Anthony Kennedy.

Oh well; that the way the cookie bounces when conservatives stay home and refuse to vote for a Republican Congress and president.

The only solution here will be for President Obama to suck it up and just allow the Nashiri case to proceed, ordering Crawford not to withdraw the charges against that detainee. Without the precedent of dropping the charges for one, the other defense attorneys won't have a snowball to stand on trying to force the withdrawal of charges in other cases. If they refuse to agree to the continuance, then those cases will also simply move forward.

So what are the odds that Obama will accept defeat on this issue, with the mild humiliation and political hit it will bring, rather than jeopardize the centerpiece of the defense against the Iran/al-Qaeda axis -- the detention and trial of terrorist murderers and conspirators? I suppose it depends upon which weighs more heavily in the president's mind: the good of the country or his own personal authority.

Yikes.

Hatched by Dafydd on this day, January 29, 2009, at the time of 6:43 PM | Comments (7) | TrackBack

December 2, 2008

Lunatic "Indictments" of Dick Cheney and Alberto Gonzales Rejected by Judge

In an unsurprising but still satisfying development in the latest sad chapter of criminalizing political differences, the bizarre and unbalanced floccillations of defeated Texas DA Juan Guerra have been rebuked and nullified:

A judge dismissed indictments against Vice President Dick Cheney and former Attorney General Alberto Gonzales on Monday and told the southern Texas prosecutor who brought the case to exercise caution as his term in office ends.

Willacy County District Attorney Juan Angel Guerra had accused Cheney and the other defendants of responsibility for prisoner abuse. The judge's order ended two weeks of sometimes-bizarre court proceedings.

Guerra is leaving office at the end of the month after soundly losing in his March primary election.

All of the indictments brought by Guerra's heavily manipulated grand jury were quashed; the reasons varied, but they all amounted to gross imbecility in pursuit of personal or partisan advantage.

Vice President Dick Cheney, former Attorney General Alberto Gonzales, The GEO Group (which privately operates federal prisons in Texas under U.S. government contracts), and state Sen. Eddie Lucio Jr. had been indicted for abusing prisoners or allowing them to be abused. Gonzales was singled out because he halted a federal investigation that was going nowhere; Cheney was added ostensibly because he invested in the Vanguard Group, which in turn invested in GEO (I believe we all know why he was really indicted). These bills were all dismissed because Guerra was replacing grand jurors with alternates (possibly more pliant) without properly substituting them... I suppose he simply told the actual jurors to shut up and had the alternates vote in their place.

In addition, two state judges, a state prosecutor, and a district clerk were indicted for investigating Guerra's earlier antics; these indictments were dismissed because it turned out that in addition to being the prosecutor, Guerra was also the alleged victim and the lone witness. Evidently, this constitutes some slight conflict of interest under Texas law.

So one attempt to criminalize policy differences has collapsed utterly, while another -- the indictment of former House Majority Leader Tom DeLay for money laundering, of all things -- limps to its nigh inevitable conclusion, not with the bang of a gavel but the whimper of a charge simply allowed to lapse.

Has anyone else noticed how the DeLay case dropped off the elite-media radar the moment it served its purpose of forcing him out of Congress? It's almost as if that were all they ever intended.

I just did a Google News search on "Tom DeLay" + "Ronnie Earle". The latter, you will recall, is the thoroughly discredited Travis County District Attorney; his vendetta against DeLay stems ultimately from the latter's successful drive to break the Democratic gerrymander that had kept the congressional delegation of Texas strongly Democratic -- even as the state had become very reliably Republican. Earle, a Democrat, was evidently furious that his party lost its electoral advantage, allowing the citizens of Texas actually to vote for the delegation they wanted, rather than the delegation that the Democrats allowed them.

The Google search turned up one (1) hit: An article by someone writing for the Texas Observor, "a nonpartisan watchdog [organization] that has filed ethics complaints against TRMPAC, Justice Alan Waldrop, and Bill Ceverha"... in other words, by a leftist house organ for the Austin-based Democratic Party in Texas. And even this piece of, ah, journalism concludes that the only way DeLay could be convicted is if (they hope, they hope!) Jack Abramoff drops some hitherto unrevealed bombshell. This is the Hail Mary of all judicial Hail Marys: Maybe DeLay committed some other crime of which we were previously unaware -- and he gets nailed for that! Hey, it could happen.

Criminalizing normal political differences has been a specialty of the Left for better than three decades; during the campaign, the Obama mob drummed up votes by talking about "war-crimes trials" and impeachments for all of the top Bush-administration officials... though they appear to have backed away from these threats since he was elected. Just as they believe that "the personal is political," they likewise believe that "the political is judicial": They think nothing of either prosecuting someone for taking the wrong side of a political dispute or else shopping around for a leftist judge to force some "progressive" policy onto the masses (unrestricted abortion, same-sex marriage, property-tax hikes, gun control) that the democratic branches of government find themselves unable to enact legitimately.

Logically, one would guess that having now captured both the legislative and executive branches of the federal government, the Democrats would be content to exert their power within the framework the Framers intended -- by voting for it. But I doubt it; I begin to believe the Left actually prefers enacting its agenda judicially (and punishing its political opponents with prison sentences): Judicial power is more easily controlled (it's not messy, like a vote), it has a longer reach, and best of all, it gives Progressives the joy of thwarting the will of the very polity they pretend to represent.

Hatched by Dafydd on this day, December 2, 2008, at the time of 6:59 PM | Comments (3) | TrackBack

October 4, 2008

Courtesy Amnesia

Patterico is the latest to fulminate over Sarah Palin being unwilling (or unable) to recite for schoolmarm Katie Couric a Supreme Court decision she truly disagreed with -- one that was more recent than Roe v. Wade.

Palin now says she did have some cases in mind, but she wouldn't answer because she felt annoyed and belittled by the trivia that Couric was asking in place of intelligent questions. Patterico isn't buying that explanation; here is how our pal Pat ends his post:

Her explanation is not implausible as it relates to the question about what she reads.

But let’s be honest: on the question about Supreme Court cases, she either didn’t have an answer or froze. That’s fine; just admit it when asked about it. But she’s describing that answer of hers as “flippant” -- implying that she had a good answer but refused to give it out of annoyance. That makes no sense.

Again, I’m not trying to tear her down or make a stupid suggestion like calling for her to leave the ticket. I’m just saying: she didn’t fail to name Supreme Court cases out of annoyance. She seemingly didn’t know any, or froze. Either way, admit it and move on.

There is however a third and much more plausible explanation than either of those two; here is where I suspect her answer was headed, before she swallered it down (the blue text is where I diverge from what she actually said):

COURIC: What other Supreme Court decisions do you disagree with?

PALIN: Well, let's see. There's --of course --in the great history of America rulings there have been rulings, that's never going to be absolute consensus by every American. And there are--those issues, again, like Roe v. Wade where I believe are best held on a state level and addressed there. So you know--going through the history of America, there would be others but--

COURIC: Can you think of any?

PALIN: Oh yeah, you betcha... the one that pops into my mind first is when the Supreme Court wrongly upheld that dreadful McCain-Feingold law...

Heck, it would've topped my list! That would, perhaps, account for Gov. Palin "freezing up" while she tried to navigate her way out of that quagpatch.

Hatched by Dafydd on this day, October 4, 2008, at the time of 4:35 PM | Comments (3) | TrackBack

August 12, 2008

The Expert Testifier on the Hot Tub

Here's a how d'ye do...

When I saw the tag-line in the Excite feed for this New York Times story on expert witnesses here and abroad, my immediate, naive response was negative. The tag was taken from this early graf in the story:

In most of the rest of the world, expert witnesses are selected by judges and are meant to be neutral and independent. Many foreign lawyers have long questioned the American practice of allowing the parties to present testimony from experts they have chosen and paid.

My instant impulse was to cry foul: In most of the rest of the world, expert witnesses are meant to reflect the opinion of the judge, which is why he chooses them in the first place... resulting in judges having even more power in Europe than they do here.

I do believe that's true; but on the other hand, I recalled that I, too, have railed against the American system of both sides hiring "their" expert witnesses, each of whom testifies in lockstep with that lawyer's theory of the case. As I calmed down and actually read the article, I found it reasonably balanced as such things go.

Here is the problem; whoever selects the expert witnesses at trial, whether civil or criminal, thus exerts tremendous influence over the outcome. George Orwell wrote, "Who controls the past controls the future; who controls the present controls the past." We could as easily say, Who controls the "expert" testimony controls the trial; who controls the selection controls the testimony.

The Times continues, putting the Euro-view of such testimony in a nuthouse:

The European judge who visits the United States experiences “something bordering on disbelief when he discovers that we extend the sphere of partisan control to the selection and preparation of experts,” John H. Langbein, a law professor at Yale, wrote in a classic article in The University of Chicago Law Review more than 20 years ago.

Partisan experts do appear in court in other common-law nations, including Canada, Singapore and New Zealand. But the United States amplifies their power by using juries in civil cases, a practice most of the common-law world has rejected.

First point:

• I find it very illuminating (if true, and I have no reason to doubt) that "most of the common-law world has rejected" trial by jury in civil cases. I believe the reason is obvious: Euro-elites simply do not trust the judgment of their own citizens.

Clearly we sometimes get runaway juries, as with the cases against Big Cigarette or some of the loopy personal injury cases tried by such corrupt ambulance chasers as John Edwards. But I honestly think we're much more likely to get a runaway judge.

In the European system, a lawyer with a bad case doesn't need convince 12 jurors in a criminal case, or even some lesser amount in a civil trial, to go along with his insane theory; he only needs to persuade one, single feller in a black robe; the judge then selects the expert the lawyer suggests and refuses to call any experts suggested by the opposition.

This process is particularly easy if the corrupt lawyer cleverly went judge-shopping before the trial, making sure to get one who already leaned towards the lawyer's case:

Some years ago, we managed to get a strong, bipartisan majority of the voters in California to pass Proposition 209, Ward Connerly's citizen initiative that outlawed racial discrimination for or against any race in state employment, school admissions, and contracting decisions.

But it took only one federal district-court judge, Thelton Henderson, to rule that banning racial discrimination was racially disciminatory... a judge who was "shopped" by the anti-209 forces. I'm very skeptical that a jury of ordinary citizens would have been ideologically blinded enough to pull such a whopper.

Second point:

• There is no obvious correlation between allowing a judge to select an expert witness and said witness being unbiased; it just shifts the bias from being blindingly obvious (a witness brought and paid for by one side) to having the illusion of nonpartisanship: an equally biased witness who is called by the judge himself.

As above, the whole idea founders on the fallacious presumption that the judge is actually a neutral arbiter with no bones in the dog.

When a John Edwards-like lawyer brings a fraudulent case, he invariably puts on the stand his own pet professional testifiers, all of whom are guaranteed to say that whatever the defendant did caused whatever injury the plaintiff suffered -- no matter how unconnected those two things are in the real world.

These very highly paid "experts" may in fact be widely considered jokes in the relevant field; but they are very, very good on the stand, always coming across as sincere, believable, competent, fatherly, and above all, certain and emphatic. Thus I agree that our system is imperfect.

But we're not comparing our system to perfection; we're comparing it to other systems we might plausibly adopt. With that in mind, how is the European system any better? At least in America, the defense can also put on expert witnesses -- even professional testifiers. They have a fighting chance; both sides get their at-bats.

In European and other foreign courts, judges, not lawyers, appoint experts; but a judge with a grudge can still appoint professional testifiers who actually know little to nothing about the issue (but whose testimony can be relied upon to parrot the judge's own opinon).

Under the European system, the other side isn't even allowed to put its own expert witnesses on the stand. ("Why do we need to allow the -- ugh -- other side to put its own lying exaggerators on the stand? It would only confuse matters.")

Either way, it's a dilemma, especially when the expert testimony is scientific in nature: Science is the least understood discipline among both juries and judges; people are far more likely to embrace some crazy theory about, say, power lines causing testicular cancer than they are to embrace the idea that electric blankets are inherently unsafe.

Most people have no experience with scientific concepts or the manner of scientific debate; they can easily be fooled by a "scientific expert" who is emphatic and absolutely certain. But real scientists are more often tentative and cautious, traits that jurors and judges alike frequently mistake for incompetence and shiftiness.

It drives me nuts, for example, when a judge allows testimony by an "expert" in the "scientific" field of parapsychology -- who then proceeds to testify that the plaintiff's ESP powers were "destroyed" by a CAT scan. ("And they never even warned me that I could lose my telekinetic abilities!")

(The galling part is that the plaintiff has no difficulty whatsoever demonstrating that she does not have any extrasensory perceptions right now... so she wins her case.)

I have longed for some way to keep absolute rubbish like that actual case -- or like John Edwards' testimony (unsworn, during his summation) that he psychically "heard" a brain-damaged baby demanding a caesarian section -- out of the courtroom. But how, without shifting to the Euro model?

One helpful step has been taken by several states: banning testimony that invokes "junk science" rejected by the mainstream scientific community.

The grounds for this are clear: If even the relevant scientists in the field don't believe that, e.g., CAT scans destroy ESP powers that don't exist anyway, then how can we expect a simple doctor, nurse, or clinic owner to think of "warning" a patient that it might? If you can't at least demonstrate that significant papers are being published in respected, refereed scientific journals supporting your outré "scientific" principle, you shouldn't be able to base your legal theory on that thoroughly rejected principle.

Still, this is a stopgap measure that doesn't get to the real problem: How is a jury to decide between a pair of dueling experts?

Amazingly, the Times article actually has something positive -- or at least interesting in its novelty -- to offer in place of the either-or of the expert witness... a system with the improbable name of "hot tubbing," and which can help a judge or jury discriminate between real experts and professional testifiers:

[Dr. Leonard Welsh] might have preferred a new way of hearing expert testimony that Australian lawyers call hot tubbing.

In that procedure, also called concurrent evidence, experts are still chosen by the parties, but they testify together at trial -- discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues...

Australian judges have embraced hot tubbing. “You can feel the release of the tension which normally infects the evidence-gathering process,” Justice Peter McClellan of the Land and Environmental Court of New South Wales said in a speech on the practice. “Not confined to answering the question of the advocates,” he added, experts “are able to more effectively respond to the views of the other expert or experts.”

I don't know if this is the perfect solution, but I think something rather like "hot tubbing" would be better than what we have now:

• We retain the right of opposing counsel to call their own experts;
• We retain the right of trial by jury;
• But instead of dueling experts testifying to completely opposite points, each being questioned only by attorneys who don't understand the point in the first place, the experts would have to interrogate and debate each other.

In my mind, truth, and the distinction between competence and nuttery, is much likelier to come out when the experts ask each other expert questions. It's the difference between a "Lincoln-Douglas" debate and a townhall meeting.

As a potential juror, I would much rather see a hot tub debate among experts -- or "concurrent evidence," if you prefer the stuffy label -- than either the system we have today or the model they prefer in France and Sweden.

Hatched by Dafydd on this day, August 12, 2008, at the time of 7:50 PM | Comments (6) | TrackBack

June 18, 2008

The American Military: Threat... or Menace?

An illuminating argument has erupted between Democratic (de facto) nominee, Barack H. Obama, and Republican (de facto) nominee, John S. McCain. Simply put, Obama said in an interview that we should go back to the Bill Clinton policy of only going after terrorists in the courts, with writs and subpoenas, and not by force and violence; McCain said this was naive, that we had already tried this approach -- and it brought us 9/11; and Obama has ripped him for engaging in the "politics of fear."

Fear. This reminds me... in a BBS discussion I was just involved in, one very leftist participant sneered something (I don't rememeber the precise wording) to the effect that, "I'm not afraid of old men in turbans living in caves," and accused me of being a frightened, sniveling coward.

I asked him whether he had ever wondered why they're now living in caves, instead of Afghan training camps and Iraqi palaces... but he didn't respond, of course; having run rings around me logically, he had already moved on.

The answer should be clear with a little thought: Because military action by President George W. Bush drove them out of those camps and palaces, harried them up and down the land, until finally the only place they could find to hide -- was in a hole, whence they can no longer direct terrorist campaigns against the United States or our allies.

Keep this in mind as you read the following:

At issue were Obama's comments Monday in an interview with ABC News. Obama was asked how he could be sure the Bush administration's anti-terrorism policies are not crucial to protecting U.S. citizens.

Obama said the government can crack down on terrorists "within the constraints of our Constitution." He mentioned the indefinite detention of Guantanamo Bay detainees, contrasting their treatment with the prosecution of the 1993 World Trade Center bombings.

"And, you know, let's take the example of Guantanamo," Obama said. "What we know is that, in previous terrorist attacks - for example, the first attack against the World Trade Center - we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated.

"And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, 'Look, this is how the United States treats Muslims....

"We could have done the exact same thing, but done it in a way that was consistent with our laws," Obama said.

What conclusions can we draw from this unguarded admission by Sen. Obama?

• Obama as much as admits that under his presidency, America will no longer go after terrorists militarily, but only through the courts.
• He thinks that 1990s policy worked out much better than the current one. Evidently, he is completely ignorant of the numerous terrorist attacks on United States interests during that period... and he has even forgotten 9/11 itself.

(Or perhaps Obama thinks that 9/11 only happened because terrorists thought Bush was weak; had Algore been president, they would have been quaking in their boots so that they would never have attacked us! But that's a bit hard to swallow, considering how comfortable they had become with the Clinton policy -- which allowed for one major terrorist strike against the Great Satan every 2-3 years.)

• As well, Obama has never even heard of any of the terrorist prosecutions conducted by the Bush administration -- including those of "dirty bomber" Jose Padilla, "failed shoe-bomber" Richard Reid, and "twentieth hijacker" Zacarias Moussaoui

John McCain finds the Obama/Clinton/Carter "law enforcement" policy dangerously naive and unworkable:

The McCain campaign responded with a call in which McCain's senior foreign policy adviser Randy Schuenemann said, "Once again we have seen that Senator Obama is a perfect manifestation of a September 10th mindset. He brings the attitude, the failures of judgment, the weakness and the misunderstanding of the nature of our adversaries, and the dangers posed by them to a series of policy positions."

He added, "I have no doubt that we will hear in the course of the day that the Obama campaign will say we're practicing the, quote, politics of fear, and the reality is what Senator Obama's statement reflects last night is that he's advocating a policy of delusion that ignores what happened in the failed approach of the 1990's which allowed al Qaeda to thrive and prosper unmolested and that policy clearly made America less safe and more vulnerable."

For this attitude -- treating mass Islamist terrorism as war, not a criminal conspiracy -- Obama accuses McCain of just reiterating the "failed policies" of President Bush; failed presidential nominee John Kerry charges McCain with "defending a policy that is indefensible;" and Bush hater and presumed National Security Advisor under the Obama administration, Richard Clarke, called McCain's anti-terrorism policy the "big lie technique." Clarke thus directly compares John McCain to Josef Goebbels, Adolf Hitler's Minister for Public Enlightenment and Propaganda.

Obama continued his tirade:

"These are the same guys who helped engineer the distraction of the war in Iraq at a time when we could have pinned down the people who actually committed 9/11," Obama said on his campaign plane.

Presumably, Obama was referring to how some of the perpetrators of the first World Trade Center bombing were prosecuted during the Clinton administration... but was not referring to, or even recalling, the utter failure ever to arrest anybody for any of the other mass Islamist terrorist attacks against the United States during the 1990s and into 2000.

It is true that some terrorists were prosecuted under Clinton; but in fact, Obama appears completely ignorant of the fact that far more terrorists have been criminally prosecuted -- in civilian courts -- during the Bush administration than during Clinton's tenure. The three high-profile cases mentioned above, Padilla, Reed, and Moussasoui, are just the tip of the ice cube.

In fact, according to a report by the Transactional Records Access Clearinghouse (TRAC) out of Syracuse University, there have been 579 terrorism prosecutions from September 11th, 2001, through August, 2006, or 116 per year... compared to only 115 in the previous five years under Bill Clinton, or 23 per year. The rate of criminal-court terrorist prosecutions more than quintupled under Bush from what it was under Clinton.

Sure, maybe Clinton didn't go after the terrorists by force of arms; but don't forget, he didn't prosecute them, either! Does Obama really want to go back to the that failed policy?

Even more important, there are far more failed terrorist prosecutions than there are successful ones. The TRAC study, released in 2006, found that only 1% of defendants actually convicted in terrorism cases received sentences of 20 years or longer; and more than half of convicted defendants received only time already served -- or no prison time at all.

And this doesn't even include terrorists who cannot be tried because, as an integral part of the attack, they killed themselves: Not a single person who carried out the actual hijackings on September 11th, 2001, was ever tried, because all 19 of them died in the bestial orgy of murder.

Why are criminal prosecutions so dicey? The point is that the government's most important task is to prevent terrorist attacks... not sit around, wait for them to happen, and then prosecute the perpetrators (those who happen to survive). Thus lawn-forcement officers try to arrest the terrorists before they commit the attack; and this necessarily weakens the legal case. From the International Herald Tribune:

"There are many flaws in the report," said Justice Department spokesman Bryan Sierra. "It is irresponsible to attempt to measure success in the war on terror without the necessary details about the government's strategy and tactics."

For instance, Sierra said, prison sentences are "not the proper measure of the success of the department's overall counterterrorism efforts. The primary goal ... is to detect, disrupt and deter terrorist activities."

Because prosecutors try to charge potential terrorists before they act, they often allege fraud, false statements or immigration violations that carry lesser penalties than the offenses that could be charged after an attack, Sierra said. This "allows us to engage the enemy earlier than if we waited for them to act first."

But wait; maybe it's just the Bush administration that incompetently handles terrorism cases. Perhaps the Clinton administration was just much better at it. But that's not what the evidence appears to show:

TRAC totaled the cases that prosecutors labeled as terrorism or antiterrorism no matter what charge was brought. It found only 14 prosecutions in fiscal 2000. That rose to 57 in fiscal 2001, which ended three weeks after the Sept. 11 attacks [and which included the last four months of the Clinton administration]. The figure then soared to 355 in fiscal 2002. But by fiscal 2005 it dropped to 46. And in the first eight months of fiscal 2006, through last May, there were only 19 such prosecutions.

Even in FY 2006, the year in which the IHT sniffs that the Bush administration failed to prosecute enough terrorist cases, there were more prosecutions in the first eight months than in all of FY 2000.

But surely such prosecutions are the best method of preventing terrorist attacks... right? Hardly. During the last administration, there were several major Islamist terrorist attacks carried out by al-Qaeda and affiliates: The first World Trade Center bombing in 1993; the Khobar Towers bombing in 1996; the U.S. embassy bombings in Kenya and Tanzania in 1998; and the USS Cole bombing in 2000. In addition, you have to count 9/11 itself in 2001, because the Bush administration had not yet shifted from the Clinton-era "law enforcement" response to terrorism to the more robust policy of military interdiction and of law enforcement driven by intelligence gathering (such collaborations were forbidden by "Gorelick's Wall" until after 9/11).

After we did shift strategy, however, from December 2001 to today, there have been exactly zero successful Islamist terrorist attacks on us, except for attacks on our military in Afghanistan and Iraq as part of "asymmetrical combat operations" in those wars. From five major successful attacks by radical Islamist terrorists to none at all... that's a pretty good argument for the McCain approach, rather than the Obama approach.

And here is yet another: Yesterday in the U.K., the Special Immigration Appeals Commission ordered the Ministry of Justice to release on bail Abu Qatada, the highest ranking al-Qaeda affiliate they currently hold -- and a direct clerical counsel to Osama bin Laden himself.

So why are they releasing him? As near as I can make out, Qatada was being held on an immigration charge:

• He is a Jordanian, and he was tried and convicted in absentia (twice!) in a Jordanian court for "conspiracy to carry out bomb attacks on two hotels in Amman in 1998, and providing finance and advice for a series of bomb attacks in Jordan planned to coincide with the Millennium."
• But because he had these two convictions pending, which presumably could result in a sentence of death in Jordan, he could not be deported back to that country... because the U.K. refuses to recognize the validity of executions.
• Therefore, reasoned the Special Immigration Appeals Commission, since he could not be deported, that meant the entire immigration case against him collapsed.
• Therefore, he could not be held indefinitely without a criminal charge.
• But the moment Qatada was charged with a regular civilian crime, the judges told the Ministry that they had to offer Abu Qatada bail;

It seems that in the U.K., this is an even more fundamental right than here. For one difference, we do not set bail for a prisoner deemed a flight risk; and evidently, the U.K. does.

Therefore, Qatada walks tomorrow. I wonder how long it will be before he is spirited out the U.K. by his al-Qaeda friends? But in any event, that is another reason why America is much better off treating mortal combat as "warfare," rather than a mere "crime" that needs to be investigated, and a flurry of papers that need to fly out in response to the next 9/11.

Hatched by Dafydd on this day, June 18, 2008, at the time of 4:30 AM | Comments (4) | TrackBack

June 15, 2008

More Boumediene Bothers and Bewilderments...

Those ghastly Tribunals...

Here's a thought that should bring you up short:

As Beldar wrote:

These commenters [on Beldar Blog] seem to be unaware that, in direct response to earlier suggestions from the Supreme Court, a bipartisan majority of Congress carefully crafted a system that balanced national security concerns against the need to provide fair, just hearings for these detainees. By no means did Congress rubber-stamp what the Bush-43 Administration suggested.

The resulting system closely resembled, and explicitly drew heavily from, the legal system already in place via the Uniform Code of Military Justice for our own servicemen and -women who are accused of crimes. The resulting statutes thus represented the will of the people as expressed through both of the elected branches of government, which -- not coincidentally -- are also the two branches of government given substantial responsibility by the Constitution with the declaring and conduct of war.

Beldar refers to the Military Commissions Act of 2006, which created a set of procedures for a fair hearing for each and every detainee in the Guantanamo Bay military prison; it provided for legal representation for every detainee, rules of evidence, and a standard of probable cause to hold the captured enemy combatant "for the duration."

That is what five justices of the Supreme Court -- the four ultra-liberals plus Anthony Kennedy -- ruled "unconstitutional"... for foreign terrorists captured on foreign soil during a war, that is. But the same procedure is evidently perfectly constitutional when it's merely our own soldiers, airmen, seamen, and Marines on trial.

Goose, no gander...

Why are the Democrats uniformly cheering and lauding this decision, which seemingly ties the hands of the president and Congress for all time... even during a Democratic administration? Don't they expect to win big in November?

Yes they do, but...

I cannot imagine any other reason -- except a case of Bush Derangement Syndrome so overpowering that it even drives out their own self-interest -- why Democrats would be so united in applauding this wretched opinion, which is likely the worst Supreme Court decision of my lifetime.

Two, four, six, eight...

Finally, I wonder why Republicans and John McCain haven't jumped on a slogan as simple and obvious as this for the election:

I think that succinctly sums up the difference between the two parties... don't you?

Hatched by Dafydd on this day, June 15, 2008, at the time of 8:53 PM | Comments (1) | TrackBack

June 13, 2008

Lizards Propose U.S. Constitutional Amendment

I rarely support proposed federal constitutional amendments; most offer permanent solutions to transient problems, threatening to lock in today's compromise for all time. For exampe, I reluctantly supported the Equal Rights Amendment -- twenty years ago, as a young man; but I don't think I would today, because it is clear that the problems it was designed to resolve have been handled legislatively, and there is no chance that could ever be reversed by judicial fiat.

But yesterday's Supreme Court ruling in Boumediene v. Bush was so devastating in its effects, so unprecedented in its legal claims, and frankly, so mad in its hubris -- an undisguised power grab by the unelected branch of government over the warmaking power of the democratic branches -- that I honestly believe we must pass a constitutional amendment to undo the damage and restore sanity.

I am under no illusions that such an amendment will pass easily or quickly; but as a secondary point, if we word it carefully enough and limit it to just what we need, it will also serve as a potent campaign weapon against Democrats who refuse to support it.

Finally, it deals with an issue of such fundamental importance that it does indeed rise to the level of the Constitution of the United States... for it defines just who is covered by said Constitution.

Here is our first crack at wording such an amendment:

Our objects are threefold:

• The amendment must be brief and precise. The more complex an amendment is, the more leeway anti-American justices and judges have to find loopholes. This amendment is but eighteen words and doesn't even need an "enactment" clause, since all it does is define to whom the rest of the Constitution applies. Think how the framers inadvertently helped gun prohibitionists by prepending "a well regulated militia being necessary to the security of a free state" to the Second Amendment.
• The amendment must be clear to anyone who reads it, even non-lawyers (such as myself). We only have a hope of passing this if every man and woman, and even children above the age of thirteen or fourteen, understands exactly what it would do -- and why it's vital.
• The amendment must be clean. It cannot include hidden or unanticipated wiles; we cannot give the Democrats (and RINOs) any excuse or justification to hide behind as they vote against this amendment. We want a clean choice: Either you believe our Constitution extends protection to aliens living abroad -- or you believe it extends only to the soverign territory of the United States.

For an example of the last, it cannot say "extends to all citizens subject to," because that would mean that all immigrants, even legal immigrants, suddenly lose all constitutional protections. In fact, it cannot even say "all legal residents subject to;" although many people wish they could strip illegal aliens of all constitutional rights (no protection from search and seizure, no requirement to give them a fair trial before imprisoning them for crimes, etc.), such a provision would make it easy for Democrats (and many Republicans) to defeat it.

Worse, it would flip the political effect around to destroy any chance of the GOP picking up seats and trying again in the 111th Congress: Such underhanded and dirty pool would anger even many Americans who oppose legalizing illegal immigrants, and the growing Hispanic vote would become like the black vote: a Democratic plantation.

As I say over and over, I am not a lawyer. This wording may well run afoul of elements of constitutional law. However, a lot of lawyers read Big Lizards, and I especially invite them to comment on the wording and how it could be improved.

After a few days and any corrections that seem better to me, I plan to send this to every Republican senator and congressman, urging them to make it a part of the national GOP campaign for the November elections. I believe such an amendment, coupled with the campaign they're already running to "drill here, drill now, pay less," will give us an unprecedented and unexpected opportunity to reverse the trend of the 2006 elections and actually pick up seats -- perhaps even taking back the Congress. That is tough but doable, if we can change the climate to one that is just as toxic to Democrats, who are suddenly seen as anti-American, as it currently is to Republicans.

For God's sake, for a million practical, legal, and sovereignty reasons, we cannot let this insanity stand. Five people on that Court need a swift and strong kick in the robes from the American people.

Hatched by Dafydd on this day, June 13, 2008, at the time of 2:19 PM | Comments (36) | TrackBack

June 12, 2008

Supreme Court Gitmo Case: Sen. Joe Biden Is Right!

(We pause a moment while readers locate their jaws, rolling around somewhere on the floor, before continuing...)

Yes, I completely agree with Sen. Joe Biden's (D-DE, 75%) commentary on the Boumediene v. Bush Supreme Court decision released today... actually, with part of Biden's commentary. Well, to be perfectly blunt, I agree 100% with the last two sentences of Biden's statement:

As we look forward, we must take stock that this decision was five Justices to four. If one more Justice in the mold of Chief Justice Roberts or Justice Alito is appointed to the Court, decisions such as this will likely come out the other way.”

Yes sir. One more justice. Contrarywise, if one more justice in the mold of Justices Ruth Bader Ginsburg or Stephen Breyer is appointed to the Court, decisions such as this will likely become commonplace.

Many conservatives wish someone less friendly to illegal immigrants had won the GOP nomination. They could never quite settle on who they wanted; nevertheless, many now threaten to sit out the election, forcing an Obama victory, in order to teach the rest of us a good, hard lesson -- bow to their wishes, even when they themselves can't decide what those wishes are.

I would like to address those conservatives directly: You have now seen what radical judges can do and how devastating that can be to the national security of the United States. You may very well see, in the next administration -- particularly if those "sitting out" get their way -- the federal courts order the release of top al-Qaeda terrorists back into the wild.

Five justices voted in the majority in Boumediene:

• John Paul Stevens is 88 years old; he was nominated by the unelected and very liberal Republican Gerald R. Ford. I cannot prove this, but I strongly suspect that Ford, like other liberals (Republicans and Democrats), believed in an activist judiciary, given his generally liberal politics;
• Ruth Bader Ginsburg is 75; she was nominated by President Bill Clinton;
• Anthony Kennedy is 71; is the only justice in the majority nominated by a conservative president, Ronald Reagan;
• Stephen Breyer is 69; he was nominated by President Bill Clinton;
• David Souter is 68; he was nominated by liberal Republican George H.W. Bush.

Note I listed them in order of age. Think about this: Nobody lives (or serves) forever; and it's hardly a revelation that the older a justice is, the more likely he or she is to leave the Court -- vertically or horizontally -- through simple old age.

All five justices in the majority are senior citizens; three are in their seventies or eighties (Stevens is getting close to his nineties). By contrast, three of the four dissenters is in his fifties; only Antonin Scalia is in his seventies. But there is a very good chance that the next president will replace at least one, probably two, maybe even three justices... mostly liberal judicial activists. It will be an extraordinary opportunity to shape the Court for literally decades to come... and one conservatives will only get if John McCain beats Barack H. Obama in the elections on November 4th.

Nominating Kennedy is probably the worst decision Reagan made while in office -- definitely worse than Iran-Contra. Nevertheless, Kennedy is a "swing" vote on the Court, often siding with the conservative side. Sadly, he chose this case as one where he would swing back to the left. Kennedy is a classic case of a justice who "grew" (became more liberal) in office.

Not so David Souter, who was known to be quite liberal -- and a judicial activist -- even before his appointment; he was championed by the liberal New Hampshire Republican Sen. Warren Rudman and the even more liberal former New Hampshire Sen. John Sununu, who had become George H.W. Bush's Chief of Staff. Bush-41 might have been rolled, but it wouldn't have taken much rolling.

By contrast, those dissenting justices who voted against the Boumediene decision were (also in order of age):

• Antonin Scalia is 72; he was nominated to the Court by Ronald Reagan;
• Clarence Thomas is 59; he was nominated to the Court by George H.W. Bush (somewhat redeeming Bush-41's appointment of David Souter);
• Samuel Alito is 58; he was nominated by George W. Bush (Bush-43);
• John Roberts is 53; he was nominated to the bench by George W. Bush (Bush-43).

All four of these justices were nominated by Republicans; by contrast, both justices nominated by Democrat Clinton voted to give -- not "recognize," but give for the very first time in our history -- habeas corpus rights to enemy combatants captured and detained abroad.

Three of the four dissenters were nominated by presidents who openly and proudly supported judicial restraint. In very stark contrast, three of the five in the majority were nominated by presidents who actively supported judicial activism; one was nominated by a president who appears to have had no opinion on judicial activism vs. restraint; and only one was nominated by a president who supported judicial restraint (and that one, Anthony Kennedy, is the least ideologically liberal of the majority).

Clearly, what matters most to the direction taken by the Supreme Court is which president nominates the justices: Liberal presidents invariably nominate judicial activists to the bench; conservative presidents generally nominate judicial conservatives to the bench. But some conservatives still want to sit out this election -- to teach us a good, hard lesson.

Finally, of the two nominees for president today, we have this:

John McCain has pledged to nominate justices in the mold of John Roberts and Samuel Alito and has praised Clarence Thomas and Antonin Scalia. McCain has condemned the Boumediene decision:

These are unlawful combatants, they’re not American citizens, and I think that we should pay attention to Justice Roberts’s [dissenting] opinion in this decision. But it is a decision the Supreme Court had made, and now we need to move forward.

In extremely stark contrast, Barack H. Obama has pledged to nominate justices in the mold of Ruth Bader Ginsburg and Stephen Breyer -- the two most ideological, doctrinaire leftist, and judicially activist justices on the Court. In addition, Obama has widely and categorically praised the Boumediene decision today (same NYT article linked above):

Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus.

There is virtually no question but that McCain would nominate justices who would have ruled against Boumediene, while Obama would nominate justices who would rule for the terrorist detainees having full-blown trials in civilian criminal courts... with the full panoply of rights previously extended only to persons residing under American sovereignty.

What does this mean in practice?

• Barack H. Obama wants every enemy combatant captured on the battlefield to be allowed to have an attorney of his choosing, even if he chooses an al-Qaeda lawyer... or else the enemy combatant must immediately be released upon the decision of the first District Court judge (or the next, or the next) who hears his habeas petition.
• Obama wants every enemy combatant captured on the battlefield to have the right to demand all intelligence information, no matter how heavily classified, be handed over to his attorneys... or else the enemy combatant must immediately be released.
• Obama wants the terrorist attorneys of every enemy combatant captured on the battlefield to have the right to endlessly subpoena military commanders up to and including Gen. David Petraeus, commander of CENTCOM, forcing these commanders to drop everything and return to America to testify in the habeas hearing... or else the enemy combatant must immediately be released.
• Obama wants endless appeals and reappeals of any decision that goes against any enemy combatant captured on the battlefield... appeals over and over of the same issues, whenever the terrorist attorney can find yet another friendly federal judge. (Think that won't happen? Think of what happens whenever a death-row murderer gets close to his execution date. Imagine mass candlelight vigils led by prominent Democratic politicians demanding the release of Khalid Sheikh Mohammed, Ramzi Binalshibh, and Abu Zubaydah.)

And if Obama is elected president, with this Congress or the next likely one, he will have the power to get everything he wants.

But some conservatives still want to sit out this election. To teach us a good, hard lesson: Bow to our wishes, or like Samson, we will pull the temple of America down upon all our heads.

Think. Please. Think.

Hatched by Dafydd on this day, June 12, 2008, at the time of 6:04 PM | Comments (10) | TrackBack

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

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":

A military judge on Monday dismissed terrorism-related charges against a prisoner charged with killing an American soldier in Afghanistan, in a stunning reversal for the Bush administration's attempts to try Guantanamo detainees in military court.

The chief of military defense attorneys at Guantanamo Bay, Marine Col. Dwight Sullivan, said the ruling in the case of Canadian detainee Omar Khadr could spell the end of the war-crimes trial system set up last year by Congress and President Bush after the Supreme Court threw out the previous system. The ruling immediately raised questions about whether the U.S. will have to further revise procedures for prosecuting prisoners, leading to major delays. [The original law was thrown out by the Supreme Court's Hamdan decision, but not because of any irregularities in the definition of "enemy combatant" or the operation of the status-review tribunals -- the Mgt.]

But Omar Khadr, who was 15 when he was captured after a deadly firefight in Afghanistan and who is now 20, will remain at the remote U.S. military base along with some 380 other men suspected of links to al-Qaida and the Taliban.

And why didn't they label Khadr an "unlawful enemy combatant?" Because the term wasn't available as a separate category under the original law.

However, the status-review tribunals used the same criteria for the designation of "enemy combatant" as they would now use for the designation "unlawful enemy combatant." The term has changed, but the definition is the same:

The judge, Army Col. Peter Brownback, said he had no choice but to throw the Khadr case out because he had been classified as an "enemy combatant" by a military panel years earlier -- and not as an "alien unlawful enemy combatant."

The Military Commissions Act, signed by Bush last year, specifiies that only those classified as "unlawful" enemy combatants can face war trials here, Brownback noted during the arraignment in a hilltop courtroom on this U.S. military base.

All 80 of the detainees who are slated for military tribunals have that same label; thus, military judges will almost certainly dismiss all the other cases as well on the same grounds. They won't even bother to hear any evidence -- as they did not in the Khadr case: They will simply declare they have no jurisdiction and dismiss the charges.

The chief defense attorney, Col. Sullivan, goes far beyond his duty to defend his clients; he says that this decision proves the entire system of military tribunals is "a system of justice that does not comport with American values" and that we should scrap the entire thing. If by "American values," he means really recent ones where decisions turned on "what the meaning of 'is' is," maybe he's right; if so, then the military too has lost its moral compass (as we already knew about the State Department and its ugly offspring, the CIA).

Here is the situation, from what I can determine:

1. Under the recently enacted law, prisoners can only be tried at military tribunals if they are declared by a status-review tribunal to be "unlawful enemy combatants;"
2. The status of "unlawful enemy combatant" requires a number of criteria: A, B, C, D;
3. The earlier status-review tribunal determined that 80 of the 380 prisoners at Gitmo statisfied criteria A, B, C, and D; the other 300 or so did not;
4. But they used the term "enemy combatant" for those 80 prisoners, per the law they operated under, rather than "unlawful enemy combatant." The current law had not yet been written, and the status-review tribunals had no crystal ball: They did not realize they would have to have used a different term, after the original law was thrown out and rewritten by Congress;
5. ...Therefore, all the cases must be dismissed for lack of jurisdiction!

This is a perfect example of mistaking the map for the territory; it's like sitting down in a fancy restaurant -- and devouring the menu! The label itself is irrelevant; you can call them "sunshine needlepoint combatants," so long as you require the same criteria as for "unlawful enemy combatants."

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 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 idea is that, if someone doesn't know a hearing can result in him having to stand trial, he might not put up a vigorous defense; thus, he might be tricked into allowing himself to be (more or less) "indicted" without a fight. But for God's sake, everybody knew that was the purpose of the status-review hearings. Everybody. Both the detainees and their military lawyers knew. The tribunal itself knew. Even the media knew. Nobody was caught by surprise here.

Here's the analogy:

This is a perfect example of why normal people hate and despise trial lawyers as a class.

I have a thought. I realize this may be somewhat radical, even crazy, but...

The status-review tribunals almost certainly used, as their standard, the very criteria now required for "unlawful enemy combatants" -- that was, after all, the entire purpose of the status-review tribunals; and the fact that they only applied the "enemy combatant" label to 20% of the prisoners makes clear it was a pretty strict standard.

So why doesn't -- now don't come after me with pitchforks and torches! -- why doesn't President Bush, as Commander in Chief, simply direct the tribunals to look at the casefiles of each of the 80 prisoners determined to be "enemy combatants," check to see that the standards required for that designation match those required for the new designation of "unlawful enemy combatant," and then just change the stupid label?

Problem solved? Oh, no, of course not; it would have to go back to the Supreme Court, wouldn't it? After all, the burning question we face anent these men is what label was used -- not what criteria were used for that label.

I'm starting to agree with Chief Defense Attorney Sullivan (a colonel in the United States Marine Corps, sadly): "[this ruling is] the latest demonstration that this newest system just does not work." Evidently, not even the military itself can put terrorists on trial without getting tangled in absurdist definitions and technicalities that have no relevance to the actual charges... or to fighting terrorism and defending the United States.

Hatched by Dafydd on this day, June 4, 2007, at the time of 2:08 PM | Comments (6) | TrackBack

November 30, 2006

Attack Terrorist Funding - Unless That Means Attacking Terrorist Funding (Clinton Judges, Take 2)

A federal judge has struck down a critical element of "connecting the dots" to fight against terrorism: she says it's unconstitutional to freeze assets of terrorist groups -- because terrorist groups are designated by the president, rather than by a laborious, multi-year process involving Congress and the judiciary, clerks and aides, and the entire labor force of the Bureau of Procrastination... during which multiple challenges could be filed, rulings made and overturned, written, published, discussed, stamped, mailed, folded, spindled, and mutilated, stretching the procedure out long enough to give the bad guys plenty of time (even at a snail's pace) to transfer all the funds to another dummy organization. Then we start all over again. (Though that's not exactly the way she phrased her opinion, I believe.)

A federal judge struck down President Bush's authority to designate groups as terrorists, saying his post-Sept. 11 executive order was unconstitutional and vague.

Some parts of the Sept. 24, 2001 order tagging 27 groups and individuals as "specially designated global terrorists" were too vague and could impinge on First Amendment rights of free association, U.S. District Judge Audrey Collins said.

The order gave the president "unfettered discretion" to label groups without giving them a way to challenge the designations, she said in a Nov. 21 ruling that was made public Tuesday.

The judge, who two years ago invalidated portions of the U.S. Patriot Act, rejected several sections of Bush's Executive Order 13224 and enjoined the government from blocking the assets of two foreign groups.

And here is the really shocking part: Judge Audrey Collins was appointed by -- wait for it -- President Bill Clinton! She was nominated in 1994 and confirmed by the Senate that same year, when it was still under the control of the Democrats.

Say, is there an echo in here?

The ruling was praised by David Cole, a lawyer for the Washington, D.C.-based Center for Constitutional Rights, who represented the plaintiff Humanitarian Law Project. [Never trust any D.C. based organization that includes the word "humanitarian" -- as in vegetarian? -- in its title.]

It "says that even in fighting terrorism the president cannot be given a blank check to blacklist anyone he considers a bad guy or a bad group and you can't imply guilt by association," Cole said.

Sure you can! You aren't really trying, Mr. Cole. How about, "anyone who joins the Ku Klux Klan is guilty of racism?" Or this one: "anyone who joined any version of the Nazi Party after 1945 is a nutter who should be on a leash."

Similarly, I consider it quite reasonable to argue that anyone who joins al-Qaeda in Iraq is more or less a terrorist by definition (and an antisemite by hobby). And any fellow who joins a group called the Humanitarian Law Project is a screaming liberal guilty of utter jackassery... though that last might be more of a genetic disability than a guilty act: every mens rea first requires a rea, after all.

All right, I love picking on idiot rulings by Clinton judges; but there really is a deep point. I'm actually going somewhere with this.

The incoming Democratic majority insists that its primary interest, after raising the minimum wage, is defending the country. It's not your grandmother's Democratic Party -- no more of those anti-war protests, assaults on returning soldiers, bombings of ROTC buildings, attempts to exorcise Yog Sothoth from the center of the Pentagon, or concerned citizens against America chaining themselves to MX missiles. Not this Democratic Party! This is the steely-eyed party of John Murtha, Jim Webb, and Nancy Pelosi; of John McCain (oops, sorry about that), Harry Reid, and Joe Lieberman (oops, sorry about that).

And of course, everyone knows that terrorism travels on its stomach, to paraphrase Napoleon (which is about the only way to discuss what he said, unless you read French). The surest method of killing terrorism is to starve it out, cut off its funding.

Cut its funding by, you know, freezing its assets. Which raises an interesting question: are the Democrats actually in favor of cutting funding to terrorist groups -- hence will denounce this narcissistic, self-indulgent, flower-child, airy-fairy opinion?

Or will they remain true to their roots (and their BDS fix) and praise this decision as the first step in undoing all the horrible depredations against the precious civil liberties of Jemaah Islamiyah and the Tamil Tigers?

Alternatively, if you ask the Democrats, will smoke come out of their ears, as they intone in rising hysteria, "Norman, please explain -- only Norman can explain!" Sorry. Got caught up in a Star Trek moment; Captain Ed understands.

Most likely they'll take the fourth option, the one they've taken so often, it's on speed dial: say nothing. No comment. If a reporter is rude enough to ask Ms. Pelosi about this ruling, she can look blank and say that the 9/11 Commission already determined that there is no al-Qaeda.

Be thankful that President Bush is still president for a couple of years, and let's all hope that 2008 doesn't leave another coal in the electoral sock.

Hatched by Dafydd on this day, November 30, 2006, at the time of 6:03 AM | Comments (11) | TrackBack

Money - It's a Crime... (Clinton Judges, Take 1)

A federal judge just ruled that money is discriminatory.

No, really:

The government discriminates against blind people by printing money that all looks and feels the same, a federal judge said Tuesday in a ruling that could change the face of American currency.

U.S. District Judge James Robertson ordered the Treasury Department to come up with ways for the blind to tell bills apart. He said he wouldn't tell officials how to fix the problem, but he ordered them to begin working on it.

The American Council of the Blind has proposed several options, including printing bills of differing sizes, adding embossed dots or foil to the paper or using raised ink.

And here's a shocker: Judge James Robertson was appointed by -- wait for it -- President Bill Clinton! He was nominated in 1994 and approved that same year, when Democrats still controlled the White House, the Senate, and the House (which evidently didn't violate the "separation of powers" doctrine and wasn't the sign of a looming "unitary executive" -- as it was during the time that Republicans controlled all three branches).

So what is wrong with this picture? Simply this: Judge Robertson evidently believes that if a person has a disability, then it is the duty of society at large (which means the taxpayers) to reinvent itself in order to "reenable" him, to make him whole. In other words, if Joe is blind, it is society's duty to completely compensate for his blindness... to make blindness utterly non-disabling.

Because otherwise, society is discriminating against Joe by not compensating him for his own handicap. They are violating the equal-protection clause of the 14th Amendment and the Americans with Disabilities Act of Blob Dole.

In the march of risible court decisions, whose lineage is as long as Adam's and Eve's, this may perhaps be the most asinine in court history. Now there's a record to inspire awe!

By the same reasoning, every public library in the country discriminates against blind people unless it carries a Braille copy of every single book in the collection. And every CD is discriminatory unless the complete score and lyrics of all songs are printed somewhere on the jewel case (preferably also in Braille, if we don't want to discriminate against people who are both deaf and blind!)

Or maybe this only applies to government facilities and programs. Fair enough; I accept the limitation. But at some point, the Grand Canyon must install loudspeakers permanently droning on, as they describe the view from every scenic outlook, for the benefit of blind tourists.

And those funny chirps and yelps that the pedestrian crosswalk lights emit to tell blind walkers when to cross are good but not enough: hasn't anybody given a thought to the poor, beleagured, and discriminated against blind drivers? The traffic signals themselves should scream out their current color -- in every language that the local community employs to print government forms. Heavens, man! On your feet!

Naturally, every house must be retrofitted with a flashing indoor warning light that illuminates every room with a hellish glow in the event the air-raid sirens blow... else how will the deaf know to duck and cover?

Speaking (or signing) of which, don't public concerts in the city park violate somebody's right not to be inconvenienced in any way by his own deafness? Either stop them or supply earplugs to the hearing unimpaired so all will be equally unable to enjoy Beethoven's Ninth Symphony -- or at least enjoy it no better than he himself could.

And what about public auctions of property seized from drug dealers... how can the mute bid on the Ferraris and cigarette boats the DEA has cluttering up their warehouses? I suppose they could wave their hands to signal a bid. Unless they're blind, in which case they won't know how much money they have.

We needn't even get into the Boston and L.A. marathons; sure, the wheelchair bound can run (well, roll) in them... but it's nearly impossible for them to win! What an inconvenience. Next Thursday, I understand Judge Robertson will issue a preliminary ruling (in the case of Harrison Bergeron v. the People) that henceforth, all able-bodied marathon runners will be required to carry weights, like jockeys, just to even things up.

And now we come to the pizza resistance, the clowning glory: I've noticed that when I fill out my income tax return, it taxes my brain quite a bit to follow those labyrinthian instructions on the back of each form. It's a good thing I'm smart and literate. But many Americans -- some of them people of color! -- are neither smarter than the average nor particularly good at reading legalese. (In fact, I read somewhere that as much as half the population is below median IQ. I'm sorry, I can't find the citation.)

Clearly this goes far beyond a disadvantage: there are actual measurable damages here, as these people cannot fill out their own tax returns and must hire CPAs or lawyers to do it for them. Ouch!

Now, one way to resolve this problem is for Judge Robertson to order the IRS to make their forms simple enough that even a simpleton can fill them out. But this doesn't completely solve the problem, as many people fall below the medical community's precise measurement of simpletonhood. Ness. Hood. Whatevery.

Besides, it's clearly beyond the purview of the courts to order the IRS to do its job.

Since there is no way to raise every (I'm reading the official categories in order of increasing dumbth) moron, dolt, bonehead, cementhead, halfwit, lackwit, numbskull, vacuum brain, microcephalic, and Katzenjammer up to the level of smarties, the only alternative is to lower the rest of society down to the level of the lunkheaded.

Judge Robertson has already been considering possibilities, including the forced watching of Gilligan's Island reruns interspersed around the Best Boy's cut of An Inconvenient Truth. But the judge indicates he would leave up to Congress which particular season of the sitcom, as the federal judiciary must not overstep its jurisdiction.

Speaking of inconvenient truths, here's one: disabled people are not as able as able-bodied people. That's more or less the definition of "disabled."

Thus, there are some things they simply cannot do, or at least not do as well as others. Of course, I can't dance like Fred Astaire or play baseball as well as Fidel Castro (in his youth; I could probably hold my own today)... so there are compensations. Try as the courts might, I'm skeptical they will be able to make everybody in the country equal in ability to everybody else; they can, however, succeed in making us all equally poor and equally miserable. In fact, they're well underway along this road already.

Instead of trying to equalize everybody's experience of life, perhaps they should focus on ensuring that everybody, including the white male Christian, has equal justice before the court and under the law, and around the bend, over the rainbow, and through the woods to Grandmother's house.

Heck, that should be hard enough, what with the whole OJ Simpson/Robert Blake phenomenon.

Hatched by Dafydd on this day, November 30, 2006, at the time of 2:56 AM | Comments (14) | TrackBack

November 16, 2006

Rogan, Great Guy, Would Be a Great Judge

I'm late noting that President Bush just nominated former Rep. James Rogan for a federal district-court judgeship in California. He won't be confirmed -- but he should be.

Sen. Hillary Clinton (D-NY, 100%) will blue-slip him; if it must be a home-state senator, she'll get Sen. Barbara Boxer (D-CA, 100%) or Sen. Dianne Feinstein (D-CA, 95%) to do it. You see, Rogan was one of the House Impeachment Manglers in 1998... and one way or another, there'll be "hell to pay." He will never even be given a vote; Sen. Pat Leahy (D-VT, 100%), incoming Chairman of the Senate Judiciary Committee, might not even allow him a hearing in the committee (by just refusing to bring him up).

But that's not why I'm writing this. There are a bunch of district- and circus-court nominees who will never get up or down votes, but I usually leave blogging about them to brilliant lawyers like Patterico and the greats at Power Line.

I'm writing this for one reason, a very personal reason to hold James Rogan in the highest esteem: I am convinced that, were it not for him, my wife, Sachi, would not be an American citizen today.

I've written about this before; the INS's capriciousness and thuggishness is one reason I get very angry at people who say that anyone who has ever entered this country illegally is a "criminal" who should be "prosecuted" and forever barred citizenship.

First, I want to make one thing perfectly clear: Sachi was never illegal; she came here legally as a student for one year -- then she went back to Japan. A year later, she returned, this time as an immigrant. She was able to get a green card and was satisfied with that for a number of years.

We skip to the 1990s. When Sachi and I started going together, she told me that, although she was born in Japan and grew up there, living in Japan until she was about 20, she had never really felt Japanese; she always felt like "a stranger, and afraid, trapped in a world I never made," as A.E. Houseman put it.

When she came here first as a student, she abruptly realized she had always been an American. And when she returned to Japan, it hit her that she could no longer live in the land of her birth; she had outgrown it. (She actually outgrew it years earlier, but she couldn't diagnose the feeling then.)

"All right," I asked, "so you've been living here for years now as a legal permanent resident. Why haven't you become an American citizen?"

That brought her up cold: it's a very, very hard thing to become a citizen of a new country, because that requires you to publicly renounce citizenship in your native country. She had been scared what her parents would think, what her ancestors would think, and -- well, it's a scary step. But she realized she couldn't continue living as "half an American" merely out of fear. So she embarked upon the journey to citizenship.

I've talked about that dreadful experience many times, and I won't go into it again here. Except for one part of it -- which you can take as exemplifying the whole. At the very end, Sachi had satisfied all the requirements, passed all the tests, filled out all the forms, waited years and years, battled her way to the head of the line, and all completely legally. She only needed one more step to actually become a citizen: to hold her hand up and be sworn in (I usually say "be sworn at," but I'm not trying to be a joker today).

All she needed was an appointment. At those appointments, held at some federal building in the area, about two hundred people at a time are sworn in; it's not like there are no slots. But the INS (this was before they became the USCIS) would not give Sachi her appointment.

Nor did they give her a reason. Rather, they said there was no reason, she was good to go. But they wouldn't let her go!

For months, she called nearly every day; for months, they told her that "the system" hadn't spit out a date for her yet. Then the months became years... literally years. Every so often during this time, some document she had filled out before "expired," forcing her to come in and fill it out all over again. The kicker was when she was told that her fingerprints had expired, and she would have to get a new set taken.

Oddly enough, they looked just the same.

But still -- no appointment. She got a lawyer, and the lawyer couldn't get the INS either to budge or to say if there were some problem: she had never been in any trouble (not even a ticket), there was no reason. Even the INS insisted there was no reason; but they had "submitted" her case to "the system," and nobody had any idea what was happening. Nor did they care; they just told her to shut up and go away, she was holding up the line.

Finally, somebody -- I don't remember who, but it was probably Friend Lee -- suggested to me that we should contact Sachi's congressman, who was also Friend Lee's congressman. So we went to the office of Rep. James Rogan.

He personally wasn't there (Congress was in session); but his staffer talked to Sachi, took down all the information, and said that Rogan would have the case in his hands within two weeks. In fact, I think it was less than that before we received a phone call from the staffer, who said that Rep. Rogan had called the INS during a break from floor action, kicked some butt -- and we would be hearing from them within a couple of days.

A few (working) days later, Sachi received a letter giving her an appointment to go down and (all right, all right!) get sworn at by a federal magistrate.

Think about that: for more than three years, Sachi and I were unable to get her a swearing-ceremony date, even though the INS admitted that she had satisfied all requirements; but less than three weeks after contacting James Rogan, she had her date. I am utterly convinced that, were it not for his intervention, the INS would never have moved... because when it comes right down to it, they just don't care.

But James Rogan did care -- and that's why he made a great legislator, a great House manager during the impeachment, and would make a great federal judge, though he'll never get a chance at the latter due to Hillary's essentially vengeful and narcissistic nature.

Oh, there is one thing he didn't care about: nobody at his office ever asked Sachi whether she considered herself a Republican or a Democrat. She was a constituent; that was enough.

Hatched by Dafydd on this day, November 16, 2006, at the time of 5:05 PM | Comments (13) | TrackBack

September 13, 2006

Essential Activism

Patterico has the most extraordinary ability to generate fascinating discussion of legal issues on his marvelous blog, Patterico's Pontifications; if you're not reading it regularly, you're missing half the picture of any subject he covers.

That isn't to say I always agree with him, however. But the debate uniformly stimulates, forcing me to stretch my little gray cells (mine are actually mauve, for some unaccountable reason) to their limit. Yesterday, he posted on judicial activism, which he's absolutely agin'. In the comments, I opined:

Like jury nullification, 99% of the time and more, judicial nullification is a wretched idea; either it’s in a bad cause, or the unintended consequences are worse than the original problem.

But in a tiny percent of cases, it’s vital. Had the Court not ruled in what I consider a judicially active way in Brown [v. Board of Education], we would still have legalized segregation today in many parts of the United States, with all its evils, ills, and inequalities.

The problem is that those who support judicial (and jury) nullification wildly overuse it. Rather than being the “nuclear hand grenade” it actually is (50-foot throwing range, 5-mile blast radius), they treat it as a routine arrow in the quiver of abstract justice.

(There's more, but it's just my usual blather and can safely be ignored.)

Patterico, prodded by another commenter, took exception to my claim that Brown was an example of judicial activism, good, bad, or indifferent. In an emendation to the post, he argued:

UPDATE: A commenter reminds me that Brown v. Board of Education did not explicitly overrule Plessy. Rather, it evaded the clear holding of Plessy through dubious social science.

This merely strengthens my argument. Brown was an activist case in reasoning, but not in result -- because the result was proper, and could have been reached through a proper application of originalism. If the Court had done so, it would indeed have squarely overturned Plessy, and upheld the Constitution -- an action that would not have been “activist,” while the actual decision’s reasoning was. Not only would such a decision have been non-activist and proper, it would have had benefits for our Equal Protection jurisprudence.

I still demur, and the rest of this tedious exercise in pedantry, in which I once again play sea-lawyer with my betters, follows when one slithers on through to the other side...

Patterico's source for rejecting the "activist" label for Brown is Ed Whelan's article on NRO, the first one Patterico cites. Patterico sums up thus:

Brown was an activist case in reasoning, but not in result -- because the result was proper, and could have been reached through a proper application of originalism.

To me, this is nonsense. Here is that "proper application of originalism" from the Whelan piece:

Under an alternative originalist approach, as Judge Bork and others have argued, even if the ratifiers of the Fourteenth Amendment assumed that segregated public schools were consistent with equality, objective comparisons of facilities and resources had, by the time of Brown, long since disproved this assumption. Under this approach, an originalist opinion in Brown would therefore have concluded that the Fourteenth Amendment's clear purpose of establishing racial equality under the law required an end to segregated schooling.

Boiled down, this argument reads, "even if the framers believed that equality could still be achieved with segregation, thus did not intend the amendment to outlaw all segregation, we now know that they were wrong!"

To call this "originalism" is utter sophistry. To say "sure, the framers of the amendment thought X; but since we now know they're wrong, we'll say Y instead" is the very essence of judicial activism, indistinguishable from the "reasoning" in Roe.

Here's the proof: suppose a state had set up a segregated school system in which the white and the black schools were thoroughly and demonstrably equal in quality, the way men's- and women's-only institutions often are. Would that violate the guarantee of "equal protection of the laws?" How?

The conclusion that such equality is impossible under segregation is a perfectly valid conclusion. But it's a policy choice; and under originalism, such policy choices should be made by Congress (or the state legislatures, in this case), not by the Court.

This is hand-waving of the worst sort: because we all agree (today) that segregation doesn't work, we redefine originalism to include the argument that if the Framers believed something that we now believe was wrong, it's still within the originalist meaning to correct their factual error via the judiciary.

And we do it for no other reason than to claim Brown as an "originalist" decision... because to think otherwise would be bad news for originalist absolutists. It's true because it would be dreadful if it were false.

A Roe-ista would argue, with equal logic, that the Framers clearly erred in thinking that a zygote is a human person; we now know it's not a person until the Xth week of pregnancy... so we'll correct their factual error by enshrining our modern understanding into a Court ruling.

If one is activist, so is the other.

But Whelan makes another argument; he says that indeed, the framers of the Fourteenth Amendment really intended full desegretation all along; they just inadvertently forgot to spell it out in the amendment language.

Let's take the first part. His evidence of their intent is thus:

Further, as McConnell's law-review article shows, in the years immediately following ratification of the Fourteenth Amendment, as Congress acted to enact legislation enforcing the requirements of the Fourteenth Amendment, a substantial majority of both houses of Congress repeatedly voted to abolish segregation in the public schools.

All right. A "substantial majority." But was it 2/3rds, the number required to submit an amendment to the states?

Would 2/3rds have voted for an amendment that explicitly banned segregation? Would 3/4ths of the 37 states then present in the Union -- not even taking coercion into account -- have ratified such a desegregation amendment, given that segregation was not confined to the South?

Would such an amendment, explicitly banning segregation, have been ratified by Ohio, New Jersey, and Oregon, each of which subsequently tried to withdraw ratification of even the version actually submitted? How about Indiana, Minnesota, Kansas, and Wisconsin?

How about West Virginia and Maine? Pennsylvania? None of these states had rebelled; thus none was occupied by federal troops, and none had to ratify the amendment in order to be readmitted to the Union: there was no handy federal lever to coerce any of them. [Per commenter Xrlq, I made a couple of state corrections in this paragraph.]

And would the occupied states have actually agreed to complete desegretation in the mid-19th century, even being a condition of readmission? Or would the legislatures have said "forget it?"

We'll never know, because the framers saw fit not to include such explicit language in the amendment. If they believed in desegregation themselves, they evidently decided discretion was the better part of abolition and chose not to say so in the bills (likely because they knew the amendment would then fail).

Sorry, but I consider Whelan's argument feeble. I think we all accept that any explicit reference to federally mandated desegregation across the land would have horribly complicated passage of the Fourteenth Amendment: which means that some of those voting in Congress and in state legislatures did not, in fact, share the understanding that "equal protection of the laws" was a euphemism for banning all segregation nationwide.

If originalism means interpreting statutes and clauses according to the commonly understood meaning of the words at the time they were adopted, then you cannot stretch it to include meanings that require a secret decoder ring, which some framers had but others didn't.

Brown v. Board of Education was an activist ruling in both reasoning and result... but one of the very, very rare good ones.

Hatched by Dafydd on this day, September 13, 2006, at the time of 7:01 PM | Comments (7) | TrackBack

August 17, 2006

Anna Katherine Diggs Deep

"The game is afoot," as Sherlock Holmes said. (Oh yes he did; in "the Adventure of the Abbey Grange," for example.)

The first federal judge has struck down President Bush's NSA al-Qaeda intercept program as an unconstitutional violation of the First Amendment. Anna Katherine Johnston Diggs Taylor ruled for the plaintiff in a lawsuit filed by the American Civil Liberties Union:

The American Civil Liberties Union filed the lawsuit on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. They believe many of their overseas contacts are likely targets of the program, monitoring phone calls and e-mails between people in the U.S. and people in other countries when a link to terrorism is suspected.

I can only suppose that the ACLU's argument is similar to the well-known constitutional doctrine that police may not tail a reporter they believe may be meeting with a wanted serial killer for for purpose of writing a book about him, as the police action might make it more difficult in future for that reporter to arrange interviews with other wanted felons.

The White House reacted quickly and predictably. Tony Snow said:

"United States intelligence officials have confirmed that the program has helped stop terrorist attacks and saved American lives," he said. "The program is carefully administered and only targets international phone calls coming into or out of the United States where one of the parties on the call is a suspected al-Qaida or affiliated terrorist."

The ACLU reacted quickly and predictably. Anthony Romero said:

"At its core, today's ruling addresses the abuse of presidential power and reaffirms the system of checks and balances that's necessary to our democracy," ACLU executive director Anthony Romero told reporters after the ruling.

He called the opinion "another nail in the coffin in the Bush administration's legal strategy in the war on terror."

Thank God for the Associated Press, or we would never guess how each party viewed the decision.

Interestingly, Judge Taylor was not appointed by Bill Clinton.

She was appointed by Jimmy Carter in 1979 (type Taylor,Anna in the text box and click Go, then click on her name when it pops up). Thus, her decision was not only quick but also predictable.

Having such a high predictability factor makes the decision itself meaningless -- except as a starter's gun to tell us that the game... but I repeat myself.

I see this as more grist for my argument that it would indeed matter tremendously whether a Democrat or a Republican is elected president in 2008: even if their foreign policy goals would be more or less the same, I believe Democrats are allergic to decisive presidential authority in the collection of intelligence information on our enemies, when that requires tapping phones within the U.S., and its dissemination to the military (or even law enforcement), when that requires breaching Gorelick's Wall.

Since I also believe that Congress and the courts are lagging indicators in the war against jihadi terrorism, and that we can only win with robust use of the military authority of the executive branch, I conclude that electing a Democrat in 2008 would have profoundly bad consequences in the war -- as in, we would be much more likely to lose, or at least suffer terrible attacks that dwarf 9/11, while en route to the next Republican president.

Taylor's decision is not the final word, of course; we always knew this would eventually be decided by the Supreme Court. The next step will be a stay of the judge's order pending review by a circus court; then that court's decision will be stayed pending review by the Supreme Court (which will definitely accept the writ of certiorari).

As John Hinderaker of Power Line has pointed out in a number of posts, Judge Taylor's decision flies in the face of repeated rulings by various federal appellate courts, including the FISA court so much beloved by the Democrats -- today, that is, when they fantasize it might stand in Bush's way while he tries to defend the nation. Those rulings held uniformly that the president does indeed have such broad authority. More than likely, the Sixth Circuit will overturn Judge Taylor's decision, and it will be the ACLU that files for Supreme Court review.

But let's keep a sharp weather eye on this case; or, to quote Mr. Holmes once more, in an analogous context, "I have investigated many crimes, but I have never yet seen one which was committed by a flying creature."

Hatched by Dafydd on this day, August 17, 2006, at the time of 1:49 PM | Comments (10) | TrackBack

July 25, 2006

Of Course You Know - This Means War!

None of the other blogs I read regularly are talking about this, but I think it's funny as all get out: Sen. Arlen Specter (R-PA, 63%) is planning to sue George W. Bush in federal court to get Bush's signing statements declared unconstitutional:

A powerful Republican committee chairman who has led the fight against President Bush's signing statements said Monday he would have a bill ready by the end of the week allowing Congress to sue him in federal court. [Big Lizards presumes that the bill allows Congress to sue Bush -- not Specter. English is a second language to AP. -- the Mgt.]

"We will submit legislation to the United States Senate which will...authorize the Congress to undertake judicial review of those signing statements with the view to having the president's acts declared unconstitutional," Judiciary Committee Chairman Arlen Specter, R-Pa., said on the Senate floor.

Say... wouldn't that bill have to be signed by the president to become law? He could use his second veto right here! Or perhaps he will sign the Specter Act... with a signing statement saying Arlen is full of beans.

There hasn't been even a single case where Bush, relying upon a signing statement, has refused to enforce a law, of course. This is so hypothetical, it's a ghost of a clone of a unicorn. I have no clue what Specter thinks the courts will be deciding: will he focus on one signing statement in particular -- say the one accompanying the Patriot Act? Or will he ask the courts to rule on the general idea of scribbling something in the margin of a piece of paper that the president signs?

I'd love to hear the argument: "Your Honor, a case where a signing statement actually ended up meaning something has never come up, but we'd really like you to waste a few months of your idle hours to hear the whole trial -- in case it ever becomes relevant in the future!" Yes sir, there is nothing judges enjoy more than completely frivolous and unnecessary litigation in their courtrooms.

At least Specter knows where to find his friends:

Specter's announcement came the same day that an American Bar Association task force concluded that by attaching conditions to legislation, the president has sidestepped his constitutional duty to either sign a bill, veto it, or take no action.... [I don't know about you folks, but it looks to me as if a "signing statement" indicates that he signed it.]

"That non-veto hamstrings Congress because Congress cannot respond to a signing statement," said ABA president Michael Greco. The practice, he added "is harming the separation of powers."

Maybe somebody can explain to me (a) why Congress "cannot respond" -- they can pass a "sense of the Congress" resolution any time the mad desire o'ertakes them -- or (b) how this affects the "separation of powers," considering that the president is signing a bill passed by Congress, and the courts will interpret that bill. Three branches, three powers, no waiting.

Still, it's good to know that Specter is not resting on his laurels, after his grueling crusade to prevent large numbers of the president's judicial nominees from even coming up for air within the Judiciary Committee.

Hatched by Dafydd on this day, July 25, 2006, at the time of 6:32 AM | Comments (12) | TrackBack

July 20, 2006

Haynes On the Outside, Haynes On the Inside

WARNING: I know absolutely nothing about this subject. And while that has never stopped me before, and doesn't stop me this time either, you might want to bear it in mind before commencing the reading process.

The Republican Party is in a lather over the nomination of William J. "Jim" Haynes II to the 4th Circus Court of Appeals: sometime Republican Sen. Lindsay Graham (R-SC, 96% -- but that was back in 2005) is fighting tooth and hammer to stop Haynes from getting on the court... or even getting an up-or-down vote.

From what I can gather, Graham is crusading on the rather dubious premise that Haynes, as General Counsel of the Department of Defense, put together a memo of interrogation techniques allowed to be used on terrorists held in Guantánamo. The memo was run past the Judge Advocate General (JAG) corps, which objected to some of the methods. The objections were for the most part accepted, and the revised list was sent to Secretary of Defense Donald Rumsfeld. All of which, according to Sen. Graham, amounts to dissing Graham's beloved JAGs.

Don't worry, I didn't follow it either, and I wrote it.

But for some reason -- whether it's this stupid excuse or because Graham is serving as an errand boy for Sen. John McCain (R-AZ, 72%) -- Graham is pulling out all the slops to squash Haynes like a bug. So why would McCain have such a bee up his britches about Haynes? Possibly because McCain is hypersensitive about any variety of harsh interrogation techniques, for reasons that should be obvious (though it's not obvious why American interrogators speaking harshly to Ramzi Binalshibh should remind Sen. McCain of the Hanoi Hilton).

The problem is that Sen. Graham has an extraordinary amount of clout on this nomination, possibly because he's one of the senators from South Carolina... which just happens to be contained within the jurisdiction of the 4th United States Circuit Court of Appeals, to which Haynes is nominated.

The Senate has always given individual senators amazing leeway to stymie the judicial nomination process (and the legislative process, for that matter). Under some obscure Senate ukase -- which I believe dates back to Pippin the Middle, whose illegitimate son, Charles Martel, defeated the Moslems at the Battle of Tours in A.D. 732, founded the Carolingian dynasty, and incidentally invented Reese's Peanut Butter Cups -- any senator can simply fail to return a "blue slip" for any federal judge nominated to the senator's state, and that judge is blocked.

Now I don't think "blue slips" have ever been used to block nominees to the Court of Appeals; it's the most unheard-of thing I've ever heard of. But evidently, even without threatening an actual blue-slip block, Graham's opinion is being given inordinate weight.

"Hey," say the other senators, "he's from South Carolina, so he must know more than the rest of us do about a nominee who might end up serving on the Appellate Court that serves South Carolina" -- even though Haynes himself is from Texas (Fifth Circuit). Makes sense to me.

So the obvious, outside-the-box solution from Big Lizards would ordinarily be for President Bush to short-circuit (sorry) the problem by withdrawing Haynes from his Fourth-Circuit nomination (and Graham's clutches) and nominating him to some other circuit, one that doesn't have an insane person serving as senator.

But are there any such open circuits available? As we look, using our two criteria -- a vacancy on the court, and none of the states in its jurisdiction having a madman for a senator -- we rapidly run out of circuits.

There are eleven numbered circuits that correspond to clumps of states, plus a couple of wild cards; here is the list, along with any potential nutcases who could torpedo the whole scheme. Remember: the percent following a Republican senator's name is a measure of how "Republican" he is; while following a Democratic senator's name, it's a measure of how "Democratic" he is:

1. For the First Circuit, you have to contend with Sens. Kennedy (D-MA, 95%) and Kerry (D-MA, 100%) of Massachusetts and Sens. Snowe (R-ME, 32%) and Collins (R-ME, 32%) from Maine. Besides, there are no vacancies;
2. For the Second, you're stuck with Sen. Hillary Clinton (D-NY, 100%). It has a judicial vacancy, but Bush has already chosen a nominee. Not that it matters... I mean, Sen. Clinton?
3. In the Third, we have a vacancy, and there's not even a nominee pending! Unfortunately, we also have Sen. "Slow" Joe Biden (D-DE, 100%)... 'nuff said;
4. The Fourth takes the Fifth, since that's what he's already nominated for;

5. The Fifth would actually be somewhat appealing (sorry), as the only iffy senator in Louisiana, Mississippi, and Texas is Sen. Trent Lott (R-MS, 91%) -- and only because he might still be nursing a grudge against President George W. Bush for helping nudzh Lott out the door of his Majority Leadership. The other five senators are relatively sane, even the lone Democrat, Mary Landrieu (D-LA, 95%).

   Alas, the only vacancy is for an "opinion specialist," whatever the Sam Houston that is (please note the local color in Big Lizards choice of expressions, dadburn it). The longhorn and the shorthorn is that there are no judicial vacancies on this circuit court;

6. The Sixth is larded up with Sens. Carl Levin (D-MI, 100%) and Debbie Stabenow (D-MI, 100%), who have already played these reindeer games with a wig of judges nominated for Michigan, including Henry Saad. Two vacancies, two pending nominees;
7. The Seventh is infested with Sens. Durbin (D-IL, 100%), Obama (D-IL, 100%), and Feingold (D-WI, 100%). Need one say more? Besides, no room at the inn;
8. The Eighth is redolent with Chuck Grassley (R-IA, 96%) and Tom Harkin (D-IA, 100%). Nuttin', honey;
9. And the Ninth is -- well, it's the Ninth. You've got your Barbara Boxers (D-CA, 100%) and your Dianne Feinsteins (D-CA, 100%), your Inouyes (D-HI, 90%) and your Akakas (D-HI, 95%), your Baucuses (D-MT, 90%), your Harry Reids (D-NV, 100%), Patty Murray (D-WA, 95%), Maria Cantwell (D-WI, 95%), and of course, controlling all, you have "the Kingpin," John S. McCain (R-AZ, 80%) himself. Two and two, no room there;
10. The Tenth Circuit doesn't have a senator problem; however, it's probably already a strongly conservative court... so adding Haynes to the roster probably wouldn't do much good. Both vacancies have nominees already;
11. How about the Eleventh? Alas, that has Bill Nelson (D-FL, 80%); although he's running for reelection, it looks as though his opponent will be Katherine Harris. Harris did yeoman work as the Secretary of State in 2000, preventing Al Gore from stealing the election the easy way: by cheating on the ballots. (Gore was forced to try to steal it the hard way, suing his way into the White House; fortunately, that was more than he could chew, and he remains Citizen Gore). Harris, however, gives Nelson no challenge at all... thus no need for Nelson to try to placate the Right by letting Haynes be nominated to that circuit. Even if there were any vacancies, which there aren't.
12. We ignore the goofy U.S. Court of Appeals for the Federal Circuit; we don't need Jim Haynes poring over 2,773-page patent application legal briefs.

So you see the problem.

Which bringes us to the DC Circuit, which might be politic (sorry), as no senator can claim to have an especial affinity for Washington D.C., since that's where they all live during the 18 or 19 days the Senate is in session each year.

There are two vacancies on the DC circuit, but the White House has only nominated one replacement. Aha. Since the DC Circuit is very influential, it's a good spot to put a solidly consertative judge (having a conservative judicial philosophy, not in terms of how he votes on election day).

However, now that I think about it, there is a huge problem associated with renominating William J. Haynes II, or any other judicial nominee, to a different circuit court: he would have to start the process all over again... including testimony before the Senate Judiciary Committee (the J-Com) -- which is just where he is now anyway!

This would give all his enemies the chance to re-interrogate him like a T-man grilling one of Frank Nitty's boys. (Or like a Ballpark Frank, which plumps when you cook it, finally splitting its sides if you keep it on the hotseat too long.)

Unfortunately, this brings us right back where we started: Haynes is the nominee to the Fourth Circus Court of Appeals, and that's where he has to stay. This box has no "outside" to it, and this entire post has been nothing but a colossal waste of your time.

Now you may kill me. But don't say I didn't warn you.

Hatched by Dafydd on this day, July 20, 2006, at the time of 4:42 AM | Comments (0) | TrackBack

July 11, 2006

Article 3

So today's media-driven episode of Bush Derangement Syndrome is the fallacious claim that, in some dramatic turnaround, the Bush administration now finally "admits" that terrorists are prisoners of war, entitled to the full protection of the Geneva Conventions as POWs -- including the right never to be interrogated. For example:

• AP: U.S. Will Give Detainees Geneva Rights

  The Bush administration, called to account by Congress after the Supreme Court blocked military tribunals, said Tuesday all detainees at Guantanamo Bay and in U.S. military custody everywhere are entitled to protections under the Geneva Conventions....

  The policy, described in a memo by Deputy Defense Secretary Gordon England, appears to change the administration's earlier insistence that the detainees are not prisoners of war and thus not subject to the Geneva protections.

• Reuters: US applies Geneva Convention to military detainees

  The Pentagon acknowledged for the first time that all detainees held by the U.S. military are covered by the protections of an article of the Geneva Conventions that bars inhumane treatment, according to a memo made public on Tuesday.

• New York Times: In Big Shift, U.S. to Follow Geneva Treaty for Detainees

  The Bush administration called today for Congress to fix, rather than scrap, the system of military tribunals that was struck down by the Supreme Court last month, while the Pentagon pledged to treat detainees in accordance with the Geneva Conventions as the court required.

But as Ryan Sager [whoops, make that Jed Babbin... sorry, Jed!] at Real Clear Politics noted (I thought the same thing, but Babbin was there first), this is being completely -- and I (not Babbin) claim deliberately and with malice aforethought -- misreported by the antique media... because in fact, Deputy Defense Secretary Gordon England, who wrote the memo on July 7th, did not make any "shift" in U.S. policy; he quite openly proclaimed that this has been administration policy from the beginning: to apply specific elements of Article 3 to detainees in the war against jihadi terrorism.

There is certainly a danger, which Big Lizards recognized earlier, that subsequent and iterative federal court rulings may lunge further than the Hamdan decision and try to declare the detainees full-blown "prisoners of war." In fact, it appears that Justice John Paul Stevens, leading the pack of braying liberals on the Court, tried to do exactly that. If this happens, it will have catastrophic results in the GWOT.

But that is not what this memo does.

So we don't proceed in a vacuum, here is the relevant text:

The Supreme Court has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda. The Court found that the military commissions as constituted by the Department of Defense are not consistent with Common Article 3.

It is my understanding that, aside from the military commission procedures, existing DoD orders, policies, directives, execute orders, and doctrine comply with the standards of Common Article 3 and, therefore, actions by DoD personnel that comply with such issuances would comply with the standards of Common Article 3. For example, the following are consistent with the standards of Common Article 3: U.S. Army Field Manual 34-52, “Intelligence Interrogation,” September 28, 1992; DoD directive 3115.09, “DoD Intelligence Interrogation, Detainee Debriefings and Tactical Questioning,” November 3, 2005; DoD Directive 2311.01E, “DoD Law of War Program,” May 9, 2006; and DoD Instruction 2310.08E, “Medical Program Support for Detainee Operations,” June 6, 2006. In addition, you will recall the President’s prior directive that “the United States Armed Forces shall continue to treat detainees humanely,” humane treatment being the overarching requirement of Common Article 3.

You will ensure that all DoD personnel adhere to these standards. In this regard, I request that you promptly review all relevant directives, regulations, policies, practices, and procedures under your purview to ensure that they comply with the standards of Common Article 3.

This is followed by a quotation of Article 3 of the 1947 conventions, which you may read for yourself here.

The most relevant sentence in the entire memo is the first sentence of the second paragraph, in which England makes plain that the administration's position is that currently existing DoD procedures already comply with Article 3; thus, except for the rules of military tribunals, there is no reason to change policy. Far from being a "big shift," England argues that this is what President Bush has been doing all along.

Note also how he answers the specific worry that Big Lizards enunciated earlier: that this ruling might lead to further rulings banning any interrogation at all of al-Qaeda "POWs," in accordance with other articles of the Geneva Conventions. For example, from Article 17 of those same conventions:

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.

If the courts were ever to rule that terrorist detainees were to be given all the rights and privileges of POWs, then Article 17 would apply -- and all interrogation of al-Qaeda detainees of any kind would have to cease the moment the detainee said "I refuse to answer." Instead, all we would be allowed to insist upon was his "surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information."

In England's memo, he makes as crystal the administration's position that detainees are not "prisoners of war." The AP story is flatly wrong. If, as AP claims, the memo "appears to change the administration's earlier insistence that the detainees are not prisoners of war and thus not subject to the Geneva protections," then how does AP read the next sentence in the second paragraph -- where England specifically notes that the DoD's policies anent "Intelligence Interrogations" are legal?

In addition, Article 21 begins thus:

The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary.

That means, I believe, that they cannot be held in separate cages or prevented from assembling together and speaking privately -- as we currently do at Guantánamo Bay and likely every other terrorist detainment facility we operate. Again, if the courts started holding that terrorists were POWs, we would have to release them internally within Guantánamo to roam around freely within the camp, conspire together, and coordinate false answers to intelligence interrogations we wouldn't be allowed to conduct in the first place.

You cannot in the same breath say that al-Qaeda detainees are "prisoners of war" and also that we can engage in lengthy interrogations of them, treat them harshly to break them down, and deprive them of privileges if they don't answer or if they lie. There is no rational way that the reporters for the elite media could possibly have read the memo and actually come away with the misunderstanding that from now on, terrorists were POWs. Thus, any reporter who says such a thing is simply lying, as is the editor who allows him to publish.

Some people argue we should "never attribute to malice what can adequately be explained by stupidity." But in many venues, the precise opposite is more true: never attribute to stupidity what can adequately be explained by malice.

Though it may comfort some to think so, reporters and editors at top media sources are not imbeciles. Bill Keller and Dean Baquey did not blow the NSA al-Qaeda intercept program and the terrorist-finance tracking program because they were ignorant; they, along with the reporters they edit, blew those programs (in the New York Times and the Los Angeles Times, respectively) because they hate those programs, they hate the war, they hate Bush, and they want America to lose.

Don't get me wrong, I do not question their patriotism; I nakedly say they have none. They hate Republicans and the president so intensely, it becomes an exquisite experience. It easily overwhelms whatever feeble love for country still remains after decades of relentless liberal brainwashing. As Churchill (Winston, not Ward) said, they swim in currents of hatred so strong, it sears their very souls.

So lying about some sort of flip-flop on the part of George W. Bush is a mere trifle, a bagatelle to the MSM. That's the one they do "twice on Sundays."

Thus, when you read the inevitable flood of stories sneering that Bush has surrendered, that he's been made to eat crow, that the administration has undertaken a "big shift," a turnaround, a 180 -- just bear in mind what you already know about the "lies and the lying liars who tell them" in the nation's newspapers, on television, and especially in the liberal blogs.

There is no policy change here: Deputy Defense Secretary Gordon England has simply reiterated that administration policy already complies with the specific demands of Geneva that apply to non-POWs... with the one exception of the specific procedures to be followed by the military tribunals.

Hatched by Dafydd on this day, July 11, 2006, at the time of 2:54 PM | Comments (2) | TrackBack

July 7, 2006

Here's a Switch --

UPDATE AND BUMP: See bottom of post.

In a bizarre twist of politics, the Democrats are fighting like the dickens over Rep. Tom DeLay... to keep him on the ballot in Texas, rather than to boot him off. The theory -- and I think it's so transparent, it's going to create blowback -- is that with DeLay's "ethical" problems (i.e., he incurred the wrath of notoriously vindictive and partisan D.A. Ronnie Earle), having DeLay's name on the ballot will so turn off Texas voters, that they'll vote for the Democrat in a strongly Republican district.

I suppose it could work... if, as Democrats believe, Texas voters are all as dumb as a box of bratwurst. Otherwise, they will easily be able to figure out just what the Democrats are up to.

Indicted former U.S. Rep. Tom DeLay must stay on the November congressional ballot despite withdrawing from the race, a federal court ruled on Thursday in a decision that could help Democrats win this key seat.

Texas Republicans quickly responded they would appeal the decision by the U.S. court in Austin, Texas, for the right to choose another Republican to run against Democrat Nick Lampson. The seat is crucial to Democratic hopes to pick up the 15 seats needed to regain control of the House of Representatives.

Well, then I can confidently predict that those "hopes" will be dashed: I have nigh religious faith that Texans are not the bunch of slope-browed, eye-ridged, knuckle-dragging, drooling, cousin-marrying, dimwitted, bone-headed ceeement-heads with an extra chromosome that Ronnie Earle and his Democratic chums in Austin imagine describes any Southerner who actually believes in God, the flag, and the Lone Star state. (For example, I'll bet they can even work their way through the snarled syntax of that last sentence.)

In other words, I suspect them Texans'll say to theirselves, "podner -- now why would those Dem-o-crats be wantin' to keep ol' Tom on that dad-burned ballot, when we all know they tuck to him like a snake tucks to a mongoose?" And at some point (probably in the first 1.3 seconds after asking the question), the answer will occur: pretty much just what I wrote above about the Dem-o-crats thinking that DeLay on the ballot will cause all these "stupid" Texicans to vote for Nick Lampson (former D-TX, 75% from the ADA in 2002).

Now, I don't know about you, but I get positively mean when I sense someone thinks I'm as dumb as a big, dumb, ol' cow-patty sandwich. Especially when I'm pretty sure I top him in the IQ department by a couple of stories or mebbie three. So count me among those who think that this shenanigan will not only not help the Democrats capture the Texas 22nd district -- it will blow up in their faces like that guy in Pennsylvania who tried to light his barbecue using gunpowder.

U.S. Judge Sam Sparks in Austin said DeLay could take his name off the ballot by formally withdrawing from the race. If DeLay formally withdraws, the Republican Party cannot replace him, likely giving the seat to Democrat Lampson.

DeLay's office predicted on Thursday the decision would be overturned by a U.S. appeals court.

They'd be better off if it wasn't... blowback is a beautiful thing to watch -- from the other side!

And here is what Tom DeLay and the Republicans could do to ensure that's exactly what happens: they must make a game out of it. DeLay should stump all across Texas, but definitely hit the 22nd a few times; and he should mock the Democrats' dirty trick in every speech. Get the audience laughing with him at the "East-Coast liberals and their Austin lapdogs" and how they think all real Texans are as dumb as first-loser in a head-pounding competition.

Then, with great fanfare, the Republicans should hold their own "private primary" in the district... at their own expense and in their own venues. Any Republican registered in the 22nd district is urged to go to the local church or Elk's lodge or barbecue pit and "vote."

Tom DeLay should announce that everyone should vote for him -- and on the day he takes office, he'll immediately resign. Then Texas Gov. Rick Perry announces that as soon as DeLay resigns, he will appoint the winner of the "private primary," no matter who it is... guar-an-teed.

Thus, Texas Republicans will know that if they vote for Tom DeLay, they're not really voting for Tom DeLay; they're voting for the guy who won the (unofficial) Republican primary. He'll get both the staunch GOP votes and also the votes of anyone whose reaction to getting smoke blown in his face is to blow some smoke right back at 'em. Whoever the Republican "nominee" is, he'll get his appointment to the seat.

Then, if the Democrats demand a special election to replace the appointee -- Republicans go to town, campaigning on the theme, "look what these here jerks are doing now! Look how much money they're costing the district, just to play their limp-wristed reindeer games." By the time the special election is actually held, the GOP appointee will win confirmation by 80-20... and the net effect will be a strongly Republican seat will become a total Republican lock for the next three electoral cycles.

And then we'll see who looks as dumb as a stuffed bunny-wabbit lacking a leg and a head.

UPDATE: Rhymes With Right notes that governors don't have authority to appoint a replacement member of the House, should one resign -- only senators. Therefore, here is the new scheme: DeLay runs, promising to resign the moment he takes office; he wins, he resigns; then there is a special election, and the Republicans get to vote in a real primary for whomever they want -- and again, the campaign reminds everyone that "this expensive special election was brought to you by... the Democrats! Who insisted that DeLay had to be the standard bearer because they thought you were so stupid, you would vote for the Democrat."

That should work just as well as the above scheme... and even better, it's actually legal!

Hatched by Dafydd on this day, July 7, 2006, at the time of 12:21 PM | Comments (15) | TrackBack

July 3, 2006

Federal Judge Issues Orders to Navy

First the federal judiciary took control away from the president in the treatment of unlawful combatants; then they seized control away from Congress in the ratification and enforcement of the Geneva Conventions and for determining the jurisdiction of the federal courts -- which can now determine their own jurisdiction, and the Constitution be damned.

And now, a federal judge ("but some are more equal than others") has anointed herself the Commander in Chief of the armed forces; she has issued an order to the Navy not to use sonar during a "mid-frequency active sonar" test in the Pacific Ocean. Why? Because sonar might bother whales:

A federal judge issued a temporary restraining order Monday barring the Navy from using a type of sonar, allegedly harmful to marine mammals, during a Pacific warfare exercise scheduled to begin this week.

The order comes three days after the Navy obtained a six-month national defense exemption from the Defense Department allowing it to use "mid-frequency active sonar."

In a lawsuit filed by [the usual suspects] before a judge appointed by [take a wild guess -- hint: 1999], Judge Florence-Marie Cooper ruled that there was a "possibility" (her word) that the sonar to be tested might kill, injure, or disturb the whales, dolphins, walruses, otters, beavers, dogpaddling elephants, or other mammalian species that just happened to be lounging around Hawaii... so therefore, she has ordered the military not to test it.

In a related decision, rumor has it that Judge Cooper is just about to rule that we can no longer use radar, because it might emit radiation; fighter jets, because they're too noisy (and too closely associated with George W. Bush); and Predator drones -- because, as a vegetarian, she doesn't like the sound of that name.

Were I giving advice to the president, I would tell him, "Dude" -- which is one reason I'm not advising the CinC -- "it's time to draw a line in the sand." (As a Texan, he should appreciate the reference.) Bush should call a press conference and announce that the federal judiciary does not have authority over the military; the Constitution clearly gives that authority solely to the president as Commander in Chief. So he thanks her honor for the suggestion, but the test will proceed as planned, and as the Pentagon has approved.

Lady, we are in a war, for God's sake. You don't stop the military from testing the weapons that save our lives every day just because your heart bleeds for Flipper, Shamu and all their undersea chums.

I realize your calendar stops at September 10th; but for the rest of us, what happened the next day changed everything. In particular, it changed forever the level of monkeyshines that we are willing to tolerate in the war against jihadis.

The chutzpah of the federal judiciary is exceeded only by the arrogance of the elite media.

So to be perfectly polite about it, Judge Florence-Marie Cooper can go take a long walk on a short pier. If the DoD believes we need these tests to defend the nation, and if the Commander in Chief agrees, then neither the judicial nor the legislative branch has the least thing to say about it.

Judge Florence-Marie Cooper: go away.

Hatched by Dafydd on this day, July 3, 2006, at the time of 9:40 PM | Comments (9) | TrackBack

June 29, 2006

Time to Withdraw From Geneva... If We Can

Hugh Hewitt says that the actual majority decision of the Supreme Court in the Hamden case does not reach quite as far as the unholy quadrumvirate of Justices Stevens, Ginsburg, Breyer, and Souter did: interpreting the 1949 Geneva Conventions to apply to terrorists captured abroad. Specifically, he says that Justice Kennedy did not join that part of the opinion, opting instead for the narrower view that only the procedures of the military tribunals need comply with Geneva, because some of those held in Guantánamo Bay are members of the Taliban, which was an organized militia (as if mere membership meant they couldn't be terrorists).

I don't know if he is correct; maybe it is actually a majority position. But let's assume Hugh is right, and contrary legal commentators are wrong. That still means that the entire war on jihadi terrorism now hangs by the thread of Justice Anthony Kennedy's sanity and common sense... and that that is a slender lifeline indeed.

If that's where the Court, as a majority, stands, then we're still alive; we're on life support but not dead yet. But -- and it's a Big But -- if "Coin-Flip" Kennedy changes his mind and joins with Stevens, we may find ourselves in a true horror movie.

Because of the terrible danger that this may happen, I sincerely believe it is time for the United States to withdraw (by any means necessary) from the Geneva Conventions... if Justice Stevens will even permit the president and Congress to do so.

This drastic reaction is thrust upon us by the plurality's action, led by ultra-liberal Justice John Paul Stevens. There are now four justices who hold that terrorists must be treated as prisoners of war under the conventions.

To arrive at this weird conclusion, they completely ignored Article 4 of Convention III, Relative to the Treatment of Prisoners of War, which defines who is and who is not a "prisoner of war"... and which clearly and unambiguously excludes terrorists. Article 4 holds that:

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy...

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

I do not believe that Stevens ever addressed this provision, which undeniably excludes unlawful combatants, such as al-Qaeda terrorists, from consideration as prisoners of war. He simply dismisses it without discussion and, in essence, declares all unlawful combatants to be legal combatants from now on.

But this clearly was not our intent when we agreed to the conventions. Such unlawful combatants were excluded when we signed, and there's solid evidence we still hold to that exclusion even now.

There was an addition to the conventions, Protocol I, enacted in 1977 that muddied the waters, having the effect of declaring that states party to it must treat even unlawful combatants as they would treat prisoners of war... without calling them prisoners of war.

But because of this very provision, the United States refused to accept Protocol I. We are not signatories to it... shouldn't that alone have convinced Stevens that he was flatly wrong about what we intended when we ratified the original conventions in 1949?

Even the website for the Geneva Conventions itself is at odds with Justice Stevens and his posse:

Combatants who deliberately violate the rules about maintaining a clear separation between combatant and noncombatant groups — and thus endanger the civilian population — are no longer protected by the Geneva Convention.

So how would the terrorists' new status, were a plurality of the Court to become the majority, affect how we must treat them? It would mean, as Stevens argued, we must treat what used to be considered unlawful combatants as well as we treat ordinary American soldiers being tried by courts-martial.

In particular, Justice Stevens, writing for 80% of the majority, opined that Convention III, Relative to the Treatment of Prisoners of War, Article 3, applied to al-Qaeda and other terrorist prisoners. Article 3 requires the following:

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons....

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

The latter requires, as a matter of course -- and this is how the quadrumvirate interpreted it -- that any tribunal trying such prisoners must afford them all the legal protections afforded members of the military being court-martialed... including the right to be present, along with the civilian attorney of their choice, for all introduction of evidence, including highly classified evidence exposing methods and personnel of our intelligence-gathering capabilities.

I would think this would also require the production of all relevant "witnesses" that the prisoner demands at his trial -- which could mean yanking from the field every soldier involved in apprehending him, since the capture is certainly relevant to his case.

As one blogsite put it (I wish I could remember which one), that could in theory mean having to undeploy entire units and send them back to the United States for every trial where a clever attorney (Ramsey Clark, for example, who would of course happily volunteer) figures out that rather than disrupt the entire war, we would just drop the case.

This is absolutely nutty, and I cannot believe that a subsequent Court would really enforce that. But we don't have a subsequent Court; we have this one. And this one, under the direction of Stevens, Ginsburg, Breyer, and Souter, and with only the thin reed of Anthony Kennedy preventing it from being a majority of the Supreme Court, has proven that it jolly well might enforce just such a provision... since four justices did exactly that.

All right, so we can't try them by any rational form of tribunal, since we certainly cannot risk exposure of secrets to the attorney provided by al-Qaeda for each prisoner. But the Court did say we could still hold the prisoners for the duration of hostilities. So no problem, right?

Yeah. Sure. Look again at Article 3, section 1, subsection (c):

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

I am sure that the quadrumvirate would hold that this utterly and completely prohibited the interrogation of captured terrorists, no matter where they were captured, where the interrogation took place, or what the circumstances were of the capture. If we caught one of three couriers carrying modified airborne ebola in aerosol containers, we could not, under Hamden, interrogate the prisoner to find out where the other two couriers were.

Certainly nothing more than asking him politely -- certainly not by any method that might outrage his personal dignity. Like, say, waterboarding.

At the moment, I think Congress can redraft the law allowing for tribunals to cover this by requiring a finding by the President of the United States first that a particular detainee is an unlawful combatant anent the Geneva Conventions, and only then can he be tried by the military tribunal. Presumably, this finding would be subject to litigation in the courts; but it's a fairly cut and dried issue, and the test could be written right into the new law.

But that's assuming Kennedy doesn't flip again. If he does, all bets are off.

Simply put, four of the nine justices, through their hysterical and borderline treasonous malinterpretation of the Geneva Conventions, would turn them into an international suicide pact. Stevens sees no "practicable" reasons why captured al-Qaeda terrorists with knowledge of an imminent WMD attack upon the American mainland should not be treated exactly the same as a United States Marine accused of pilfering the petty cash, with all the same rules, protections, and privileges, which includes protection against any form of aggressive interrogation.

So I believe -- purely for defensive purposes -- that it is now time to withdraw from the 1949 Geneva Conventions. It was a good treaty, and it served its purpose; but that was then, this is now.

Wait a minute, Dafydd... what about less drastic measures? If Kennedy flip-flops again, can't Congress just redraft the law to restore our ability to interrogate captured terrorists?

I cannot imagine they could: treaty obligations are considered by the Court the equivalent of constitutional provisions, and they cannot simply be waved away by legislation. No more than could Congress simply pass a law overturning part of the First Amendment. If a majority of the Court ever held that our treaty obligations under the Geneva Conventions required us to treat captured terrorists like members of our own military in courts-martial, Congress could not simply overrule that finding.

And evidently, they also cannot limit the Supreme Court's jurisdiction. They already tried that... and the Court (the full Court, Kennedy concurring) simply rejected it, notwithstanding the constitutional provision that says Congress has exactly that authority. Article III, section 2, of the United States Constitution:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

All right; but what would happen if we did withdraw? Wouldn't that be dangerous for our own soldiers?

The second glib response is that if we do withdraw and no longer extend those protections to others, others will not extend them to us. But this is facile sophistry, because the only enemies we're likely to fight now or in the future -- whether Stalinist North Korea or al-Qaeda and other terrorist groups -- already ignore the Geneva Conventions... as the abduction of Israeli Cpl. Gilad Shalit, currently being held hostage by Hamas, demonstrates: holding hostages is against the Geneva Conventions.

Those countries that actually do abide by them are precisely those Western nations (like the United States) that would abide by them even if fighting a country that did not... and that we're not going to end up at war with in the first place. And even if we did, we could quickly negotiate a temporary treaty incorporating the Geneva protections for the duration of that war.

There is no downside to withdrawal, because the West has accepted their spirit, as it applies to wars against actual countries. For example, we ourselves adhere to the conventions in our treatment of Taliban and Iraqi insurgents who were captured fighting as armed militias while wearing uniforms and such; we do not apply the same interrogation techniques to them that we apply to captured unlawful combatants, such as terrorists.

Even though some Taliban members are at Gitmo, they are precisely those who behaved as unlawful combatants... which is why I'm not in the least confident that Justice Kennedy grasps the distinction; if he thinks that a terrorist becomes a non-terrorist because he happens to be a member of an organized army, even if he acts contrary to the conventions, then Kennedy could easily fall into Liberal-Land hand in hand with the quadrumvirate. It's a short and slippery slope.

So long as the conventions hang out there, and so long as there is no stomach on the part of other countries to negotiate a new protocol making absolutely clear that terrorists are unlawful combatants and are not covered by the protections of the conventions -- and why should they, especially signatories like Iran and Syria? -- the Geneva Conventions are a ticking time bomb, just waiting for one more Supreme Court justice to turn the plurality into a majority.

But the real question is whether the Court -- Kennedy included -- would allow us to withdraw. Having gone so far, would they go the rest of the way and hold that the conventions are eternal, and that we cannot withdraw even if we choose?

I've been looking and looking through them, and I cannot find any reference at all to withdrawal: nothing forbidding it, but no procedures for leaving, either. If Stevens, Ginsburg, Breyer, and Souter are willing to cripple -- essentially obliterate -- our ability to interrogate captured terrorists; and if even Kennedy considers following the conventions more urgent than surviving the war the jihadis imposed upon us; then I'm sure all five of them would move swiftly to prevent any attempt to wriggle out of the straightjacket by withdrawing from the Geneva Conventions altogether.

Which leaves us in a constitutional crisis: has the Supreme Court actually become "more equal" than the other equal powers? Is the only solution impeachment of justices -- assuming the Court would even allow that?

And would the Democrats, in the last analysis, vote to impeach even if Kennedy were to flip on the critical issue of treating all captured terrorists as prisoners of war? Or would they vote to acquit, sacrificing any hope of winning the war against jihadi terrorism in their BDS-driven need to hurt George W. Bush?

The Court has left us with a dreadful Sword of Damocles dangling above our heads. What are we going to do about it?

Hatched by Dafydd on this day, June 29, 2006, at the time of 5:56 PM | Comments (9) | TrackBack

June 26, 2006

Globaloney Slicers

Although it may seem at first as if the Supreme Court is going to substitute itself for the scientific method in deciding whether anthropogenic global climate change is actually real, it's nowhere near that dire; in fact, this case is a chance for the Court to strike a blow for sanity by clarifying what only it can clarify: whether the executive has a legal duty to solve problems as determined by community leaders -- or just legal jurisdictions and prohibitions set by the Constitution. (Massachusetts v. Environmental Protection Agency, 05-1120.)

Spurred by states in a pollution battle with the Bush administration, the court said it would decide whether the Environmental Protection Agency is required under the federal clean air law to treat carbon dioxide from automobiles as a pollutant harmful to health.

The decision could determine how the nation addresses global warming.

Evidently, what the states argue is that we should declare the natural exhalation from snakes, rats, monkeys, and human beings -- and even lawyers employed by the plaintiffs -- as a "pollutant" when it's inhaled by a car or a factory, and that the EPA must perforce regulate -- that is, ban -- any releases over a certain amount.

This would indeed be asking the Court to brush science aside and substitute decree. Can this actually be done? Let's not hold our breath.

The EPA said in a statement that the agency "is confident in its decision" not to regulate the chemical under the federal Clean Air Act and plans to argue its case vigorously before the high court.

Recently, Bush told reporters he views global warming as a serious problem and has "a plan to be able to deal with greenhouse gases" short of regulating their use. It includes developing new technologies for cleaner burning coal, using alternative motor fuels such as ethanol as substitutes for gasoline and expanding nuclear power to produce electricity. [All sensible policies even without taking global warming into account. -- the Mgt.]

Critics argue that carbon emissions have continued to increase - though the rate of increase has declined - and only regulation of carbon dioxide and other greenhouse gases will stem the amount going into the atmosphere.

President Bush has a workable plan: the only way to reduce the use of carbon-based fuel is to find an alternative that uses less carbon. (This is not a trick question.)

The states' plan, contrariwise, is to shake a fist and shout at every industry in the United States, confident this will cause emissions to disappear while the economy magically remains constant. By the way, which states in particular do you think might have been involved in this lawsuit?

• California (9%)
• Connecticut (10%)
• Illinois (11%)
• Maine (9%)
• Massachusetts (25%)
• New Jersey (7%)
• New Mexico (-1% * )
• New York (19%)
• Oregon (4%)
• Rhode Island (21%)
• Vermont (20%)
• Washington (7%)

(The number in parentheses is Kerry's margin of victory over Bush in each of these plaintiff-states. * New Mexico actually went for Bush by 1 point; but the governor of New Mexico is former Clinton Secretary of Energy Bill Richardson... and guess who made the decision for New Mexico to join the lawsuit?)

In addition, several cities joined up, including Baltimore, New York City and Washington D.C. (all Democrat, all the time), as well as America Samoa (huh?)

Besides the governmental bodies, other plaintiffs included the Union of Concerned Scientists (they of the "doomsday clock," which is always set closer to midnight whenever a Republican is elected), Greenpeace (who are in the business of sabotaging our military), and Friends of the Earth (say, I wonder where they stand on the political spectrum!)

A more motley looking crew I don't think we'll ever find. Every wild-eyed lefty in America would crawl on his hands and knees though boiling pitch to be a part of the lawsuit to force President Bush to ban carbon dioxide.

The states involved, which together account for more than a third of the car market, say the Clean Air Act makes clear carbon dioxide is a pollutant that should be regulated if it poses a danger to public health and welfare. They argue it does so by causing a warming of the earth.

Reckon they didn't get the memo about calling it "global climate change," not "global warming," so even when the weather is unseasonably cold they can still cite that as evidence.

I haven't reviewed the Act itself; but the EPA has a "Plain English Guide To The Clean Air Act." Under the heading "The Common Air Pollutants (Criteria Air Pollutants)," I find the following air pollutants listed:

• Ozone
• VOCs (volatile organic compounds), such as "benzene, toluene, methylene chloride and methyl chloroform"
• Nitrogen Dioxide
• Carbon Monoxide
• Particulate Matter (dust, smoke, soot)
• Sulfur Dioxide
• Lead

Maybe it's just me, but I don't see carbon dioxide on that list -- and no, you cannot snip the first word off carbon monoxide and combine it with the second word of nitrogen dioxide. In fact, every pollutant on this list except ozone is a polluting additive not normally found in air, something that would be virtually undetectable in the air of A.D. 1000, except perhaps in special areas (such as around a lead mine or in the bubbling cauldrons of Yellowstone National Park).

To call this "air pollution" is to strain the definition to the breaking point. It's ludicrous. Maybe it should be regulated; I don't think so, but let's suppose it should be. Then get Congress to regulate it!

But more to the point, there is no general legal duty for the executive (or Congress) to solve problems. The Court cannot tell the president that he is obliged to force oil companies to drill for more oil, or that he must resolve the immigration question, or that he has to shift U.S. troops into Jordan in order to guard against a sneak attack from Syria.

Occasionally, the courts will order the executive to act; but that is generally only as a remedy for past misdeeds... such as Brown v. Board of Education, where the executive was ordered to desegregate the schools. The Constitution is silent about the exact level of carbon dioxide that is allowed to be in the earth's atmosphere.

If the Court held that states could sue to force the president to start regulating carbon dioxide, even in the absence of any legal mandate to do so -- and clearly Congress never imagined that what it called "air pollution" would be extended to include exhalation -- just because the plaintiff-states think that would be a better policy, then that would spell the end of our form of government: every state, city, and NGO would sue in federal court to force the White House or Congress to enact specific pieces of legislation that the plaintiffs prefer. That's what we have a Congress for, for heaven's sake: to make such decisions in a democratic manner.

Although it's a logical end-point for a Court that is increasingly narcissistic, I still have confidence that, even if four justices thought this case should be heard (a divided circus-court narrowly held for the administration), the full Court will come down resoundingly against the states in their arrogant lawsuit... and by more than 5-4, too. I'm guessing that both Justice Anthony Kennedy and Justice David Souter will rule for the president, and maybe even Justice John Paul Stevens (and of course Justices Alito, Scalia, Thomas, and Chief Justice Roberts). I am absolutely convinced this writ of cert is a dead cert.

So I look forward to the Court clarifying that no, neither the states nor Congress can simply dictate to the president how he will do his job. The executive is a co-equal branch of government... not Vermont's errand boy.

Hatched by Dafydd on this day, June 26, 2006, at the time of 11:58 PM | Comments (12) | TrackBack

June 12, 2006

Nine-Judge Monte

The most recent unanimous decision of the Court on the question of the constitutionality of lethal injection as a method of execution really doesn't advance the question much, at least as far as us non-lawyers are concerned. (Our last foray on this battleground was Three-Judge Monte, back in April.)

All that the Court decided was that convicted cop killer and bank robber Clarence E. Hill can raise the issue with the lower courts; the Supreme Court did not rule that lethal injection was unconstitutional.

The Supreme Court ruled unanimously today that condemned prisoners can challenge the humaneness of the lethal blend of chemicals that are to be used to execute them.

The ruling, written by Justice Anthony M. Kennedy, continues the life-and-death drama involving Clarence E. Hill, who was strapped to a gurney on Florida's death row when Justice Kennedy granted a stay of execution on Jan. 25.

You can read the decision and the full opinion here, but this is the Readers Digest condensed version:

Facing execution in Florida, petitioner Hill brought this federal action under 42 U. S. C. §1983 to enjoin the three-drug lethal injection procedure the State likely would use on him. He alleged the procedure could cause him severe pain and thereby violate the Eighth Amendment's prohibition of cruel and unusual punishments. The District Court found that under controlling Eleventh Circuit precedent the §1983 claim was the functional equivalent of a habeas petition. Because Hill had sought federal habeas relief earlier, the court deemed his petition successive and barred under 28 U. S. C. §2244. The Eleventh Circuit agreed and affirmed.

Held: Because Hill's claim is comparable in its essentials to the §1983 action the Court allowed to proceed in Nelson v. Campbell, 541 U. S. 637, it does not have to be brought in habeas, but may proceed under §1983. Pp. 4-10.

In other words, this is a narrow, technical ruling whether the action Hill filed under §1983 of the United States Code was actually just another bite at the same habeus corpus apple, or whether it's a different apple from his previous writs. The Court unanimously held that this was a different issue that should be decided on its own, not brushed aside.

Beyond that, we've not much to say until this works its way through the system and comes back to the Court again... where (one hopes) sanity (and the Scalia position) will prevail:

On the other side, Justice Antonin Scalia, a strong death penalty supporter, said the Supreme Court has never held that a state must use a method that causes the least amount of pain.

"Hanging was not a quick and easy way to go," Scalia said.

(Alas, that last quotation is from a Reuters article that is no longer available.)

We've fought this battle before:

• February 15th, 2006 -- If I Should Ouch Before I Die
• February 21st, 2006 -- Doctors Overturn Death Penalty
• April 26th, 2006 -- Three-Judge Monte

Hatched by Dafydd on this day, June 12, 2006, at the time of 3:56 PM | Comments (0) | TrackBack

May 3, 2006

Reid Returns to Judicial Filibusters... Is the Gang All Here?

Out of the night, when the full moon is bright... is that Zorro riding up?

Nope; it's the aptly named Sen. Minority Leader Harry Reid (D-Caesar's Palace), popping up like Whack-a-Mole to issue a promise to filibuster 4th-Circuit nominee Judge Terrence W. Boyle and possibly also D.C.-Circuit nominee Brett Kavanaugh:

Democratic leaders said they certainly would filibuster one of the nominees, Terrence W. Boyle, and might filibuster the second, Brett Kavanaugh, if Republicans refuse to call him back for a second hearing before the Senate Judiciary Committee. The partisan rhetoric was the strongest signal yet that the Senate might revisit the brinkmanship that brought the chamber to the edge of crisis a year ago, when a bipartisan group of 14 members crafted a temporary cease-fire....

"I can't imagine how President Bush could bring [Boyle] to the Senate for confirmation," Senate Minority Leader Harry M. Reid (D-Nev.) told reporters yesterday. If GOP leaders insist on a confirmation vote, he said, Democrats "without question" will launch a filibuster....

Reid said Kavanaugh is subject to "a possible filibuster" in the full Senate.

This comes just a day after Sen. Reid essentially demanded that Majority Leader Bill Frist (R-TN) give Reid veto power over any Republican conferees that Frist names to the House-Senate conference on an immigration bill, should the Senate pass such:

As important as the number of amendments is what happens in Conference.

With Republicans in the House having passed a bill making all undocumented immigrants felons, with the House majority leader publicly dismissing the Senate’s bill, and with the House Judiciary Committee Chairman serving as the sponsor of the felon provision in the House legislation, it is imperative we have a firm agreement on who the conference participants will be before moving to the bill.

Reid's sudden imperiousness raises an interesting question: is Sen. Harry Reid just "rolling the dice," or does he have solid intelligence that the Democrats will win the vote on the "constitutional option" rules change in the Senate -- and does Reid already know who will win the battle over who gets to name Republican conferees? Have GOP members of the "Gang of 14" signalled to Harry Reid that they're ready to cave? (The only remaining option -- that Reid would initiate such tactics knowing he was going to lose -- is politically absurd.)

I certainly hope Reid is just throwing a "Hail Mary" two seconds before the buzzer.

The Democrats' objection to Judge Boyle at least has merit; whether it's true or not is a separate question. The WaPo article doesn't go into detail; but an AP story yesterday gives a bit more depth:

Kavanaugh's negatives, Reid added, "pale in comparison to Boyle.'' Reid said he had read in an online article that Boyle had bought stock in General Electric midway through presiding over a pension lawsuit against the company. Then Boyle ruled against the plaintiff's claims of long-term and pension disability benefits.

"He not only shouldn't be a trial court judge as he is, but to think that he should be elevated to a circuit court of appeals is outrageous,'' Reid said.

Aha: Reid accuses Judge Boyle of corruption because he read it on the internet! (Possibly on Juan Cole or Daily Kos.)

If it were true that a sitting federal judge were ruling on cases in order to inflate the value of his own stock portfolio -- which is precisely what Harry Reid has accused Boyle of doing -- then of course, that judge should not only not be elevated to the circus court, he should be impeached, indicted, tried, and convicted. But contrariwise, if a sitting senator -- the minority leader of the Senate -- is slandering a federal judge with outrageous and unsupported criminal accusations purely to gain a partisan advantage in the confirmation vote... then it is that senator who should be expelled from the Senate in disgrace.

Majority Leader Frist should demand that Sen. Reid produce evidence for his charge (something more than a story on Salon or on some blog); and if he has none, call a press conference to demand that Reid resign his seat.

The opposition to Brett Kavanaugh, by contrast, is simply risible:

First nomination up is Kavanaugh's, which could be reported out of the Judiciary Committee by a party line vote as early as Thursday. Democrats, however, are pressing for another hearing and more documents in an effort to find out whether Kavanaugh was involved in White House policies on torture, the National Security Agency's wiretapping program and Bush's relationship with convicted lobbyist Jack Abramoff.

Got that? The Democrats admit they have no information whatsoever to indicate Kavanaugh was involved in crafting any of the policies they dislike -- such as vigorously questioning al-Qaeda military leaders captured on the battlefield during wartime without giving them lawyers and setting bail. They haven't a clue... the Democrats brazenly admit that this is nothing but a fishing expedition (let's see whether he was involved!) and a chance to revisit those policies and rail against President Bush and Defense Secretary Donald Rumsfeld.

For his part, Kavanaugh told Sen. Charles Schumer, D-N.Y., Thursday that he did not play an active role in Bush's secret domestic wiretapping program or in any dealings with convicted lobbyist Jack Abramoff.

Schumer said he did not ask Kavanaugh about his role in the torture policy. But White House spokeswoman Perino said, "Mr. Kavanaugh was not involved in any detainee policy development.''

And on that flimsy pretext, Sen. Reid promises a return to judicial filibusters.

In a post last year, Big Lizards noted:

The "Seven Dwarfs" (Republican members of the "Gang of 14") are John McCain (AZ), Mike DeWine (OH), Lindsay Graham (SC), John Warner (VA), Olympia Snowe (ME), Susan Collins (ME), and Lincoln Chafee (RI). Two others not in the Gang but still potentially trouble are Arlen Specter (PA) and Charles Grassley (IA).

At this point, Sen. Frist must speak individually, one-on-one with each Republican on this list to determine whether he or she is still willing -- as they all were a year ago -- to vote for the constitutional option (changing Senate rules to ban judicial filibusters) if the Democrats return to such tactics in the absence of "extraordinary circumstances." And Frist should also ask whether any of them considers the Democrats' charge that Brett Kavanaugh was a member of President Bush's staff to be "extraordinary circumstances."

Similarly, do the Seven Dwarfs (plus two) agree with Harry Reid that a bald accusation of corruption in the absence of a shred of evidence is enough to rise to the level of "extraordinary circumstances?"

It's hard to imagine that GOP senators, even these ones, would look the majority leader right in the eye -- and lie through their teeth. But let's find out.

Hatched by Dafydd on this day, May 3, 2006, at the time of 2:38 PM | Comments (4) | TrackBack

April 26, 2006

Three-Judge Monte

Want a preview of what the Supreme Court would be like if a Democrat won the presidency in 2008? Check out this gang-mugging of Florida Assistant Deputy Attorney General Carolyn Snurkowski and U.S. Justice Department lawyer Kannon Shanmugam. The subject: whether even lethal injection is too "cruel and unusual" a method of execution:

Several Supreme Court justices on Wednesday grilled state and U.S. government lawyers about whether lethal injections as currently administered for executions caused excruciating pain.

"Your procedure would be prohibited if applied to dogs and cats," Justice John Paul Stevens told Florida Assistant Deputy Attorney General Carolyn Snurkowski.

Justice Ruth Bader Ginsburg also asked whether the method currently used involved the risk of a death row prisoner dying an excruciating death....

Several justices questioned whether the state had investigated the method of lethal injection to make sure it was administered in the most humane and painless way possible.

Justice Stephen Breyer said states could administer more sodium pentothal to ease the pain or could have a doctor present at the execution. "That doesn't seem too difficult," he told Snurkowski.

We notice which three justices constitute "several": Stevens, Ginsburg, and Breyer. Quelle surprise!

Breyer is being utterly disingenuous, of course. He knows very well that a requirement that a doctor be present at the execution -- thus assisting it, even if he never touches the condemned -- is the same as banning all executions... because doctors are absolutely forbidden by the code of ethics of the AMA to assist at executions in any way, and any doctor who did so would be in danger of losing his license to practice medicine. The most a doctor is allowed to do is to be brought in after the execution is over to examine the corpse and officially declare it dead.

Justice Breyer is well aware of this; he's not an utter fool. It's quite explicit in the American Medical Association Code of Medical Ethics:

E-2.06 Capital Punishment

An individual’s opinion on capital punishment is the personal moral decision of the individual. A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution. Physician participation in execution is defined generally as actions which would fall into one or more of the following categories: (1) an action which would directly cause the death of the condemned; (2) an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned; (3) an action which could automatically cause an execution to be carried out on a condemned prisoner.

Physician participation in an execution includes, but is not limited to, the following actions: prescribing or administering tranquilizers and other psychotropic agents and medications that are part of the execution procedure; monitoring vital signs on site or remotely (including monitoring electrocardiograms); attending or observing an execution as a physician; and rendering of technical advice regarding execution.

In the case where the method of execution is lethal injection, the following actions by the physician would also constitute physician participation in execution: selecting injection sites; starting intravenous lines as a port for a lethal injection device; prescribing, preparing, administering, or supervising injection drugs or their doses or types; inspecting, testing, or maintaining lethal injection devices; and consulting with or supervising lethal injection personnel.

By contrast, of course, the AMA has no policy against partial-birth abortion... even in the ninth month of pregnancy... though it does suggest that third-trimester abortions not be performed unless the doctor really thinks it necessary:

According to the scientific literature, there does not appear to be any identified situation in which intact D&X [partial-birth abortion] is the only appropriate procedure to induce abortion, and ethical concerns have been raised about intact D&X. The AMA recommends that the procedure not be used unless alternative procedures pose materially greater risk to the woman. The physician must, however, retain the discretion to make that judgment, acting within standards of good medical practice and in the best interest of the patient.

There appears to be no opportunity for a doctor to participate in an execution, however -- even if he really thinks it necessary.

We've been through this before:

• February 15th, 2006 -- If I Should Ouch Before I Die
• February 21st, 2006 -- Doctors Overturn Death Penalty

As a friend of mine used to say, "same car, different plastic."

This is the back-door method that the Left hopes to use to ban all executions -- regardless of the will of the people. The whole "Project Innocence" tactic turned out to be a big bust: they thought that if they could find even a single person executed who might have been innocent, then America would turn away from capital punishment in national revulsion.

But it turns out Americans are more sophisticated than Democrats thought. Most people already believe that innocent people have occasionally been wrongfully executed:

Caryl Chessman, executed in 1960 for being the "Red-Light Bandit," is probably one such; the evidence against him was pathetic, and his trial was a mockery of justice. Bruno Hauptmann, executed in 1936 for the kidnapping and murder of the Lindbergh baby, may well be another.

Alas for the anti-execution fanatics, citizens have already factored this likelihood into their support for the death penalty. They understand that justice is never perfect, and innocent people are convicted, sent to prison, and some even die in prison, only to be exonerated posthumously.

Sadly, some innocent people (at least innocent of the particular murder) have been executed... and others will surely be executed in the future. It's guaranteed. But more innocent people will die if murderers are not executed than the tiny number of innocents wrongfully executed... and Americans (unlike liberals) comprehend this fact.

The anti-execution Left finally understands that it will never turn Americans against the death penalty, or at least not in the forseeable future. So they turn to their most reliable weapon in their war against the people: the federal courts. They got hanging banned as a method of execution because it was "cruel and unusual;" it was replaced by Old Sparky, until that was banned; electrocution was replaced by the gas chamber -- until that, too was banned for causing pain.

The final replacement was lethal injection, the most gentle and painless method imaginable for putting a murderer to death. And now lethal injection is under the same assault... for the same reason: somebody might get hurt -- before he dies.

Fortunately, we have a breath of fresh sanity on the Court:

On the other side, Justice Antonin Scalia, a strong death penalty supporter, said the Supreme Court has never held that a state must use a method that causes the least amount of pain.

"Hanging was not a quick and easy way to go," Scalia said.

Perhaps this goes a long way towards explaining this disturbing trend on the Left. From RealClearPolitics Blog:

The Coordinated Attack on Scalia

As Ronald Cass wrote three weeks ago on RealClearPolitics, expect to hear the call for Justice Scalia to recuse himself to continue as liberals try and find ways to silence the conservative justice....

I hope conservative Republicans come to their senses -- and come back to the party. As much as they believe George W. Bush is not a conservative (and to be fair, he made it clear in 2000 that he was something related but different, a "compassionate conservative"), his judicial appointments have been stellar compared to those of his predecessor -- and compared to those we know would come from a Democratic successor.

And the worst possible thing we could do to promote a sane and rational judiciary (along with every other desirable policy, from less spending to border control to national defense) is help elect more Democrats to Congress... either by voting for them ourselves, or even by sitting home and sulking on November 7th.

Hatched by Dafydd on this day, April 26, 2006, at the time of 5:12 PM | Comments (11) | TrackBack

March 17, 2006

Moussaoui Case - Shocking Allegation

In Salvaging Death From Life, we discussed the insane decision by Clinton-appointed Judge Leonie Brinkema to throw out the better half of the prosecution's case for the death penalty against Zacarias Moussaoui, on the grounds that a lawyer working for the Transportation Security Agency (TSA), Carla Martin, sent several FAA witnesses a transcript of the opening statements and the direct and/or cross examination of an FBI agent.

Now comes the rather shocking allegation that the entire transaction was a deliberate set-up whose purpose was to destroy the prosecutor's case.

As near as Big Lizards can figure out the agendas, here is what the AP story seems to say....

1. The allegation comes from Robert Clifford and Gregory Joseph, lawyers for family members of victims of the 9/11 attack. The lawsuit filed by the family members claim that United Airlines and American Airlines could have prevented 9/11 by stopping the hijackers from getting on the planes with knives and boxcutters.
2. The government also wants to prove that: if they can show that 9/11 could have been prevented if Moussaoui had told them about the knives and boxcutters, then Moussaoui should be put to death.
3. Contrariwise, the lawyers for the airlines clearly want for their jury to believe that 9/11 could not possibly have been prevented; that it would have happened the way it did regardless of any attempt to prevent boxcutters from being carried onto the planes. That way, it wouldn't be the airlines' fault.
4. And of course, Moussaoui's lawyers would also like to prove that, since then their client's lies would not have led to any deaths that wouldn't have occured otherwise. It wouldn't be Moussaoui's fault, either.

You follow?

So the plaintiff's lawyers and the prosecutors both want to show that 9/11 could have been prevented; and the defense lawyers in both cases want to prove that it could not have been prevented.

According to the allegation, the airline lawyers read the prosecutor's opening statement and became very worried. If the prosecution proved its case, it would be very hard for the airlines to evade a judgment. So allegedly, the airline lawyers contacted Carla Martin of the TSA and told her to queer the case: she had to get the FAA witnesses to change their stories and say that no FAA order would have stopped any of the hijackers:

Because that government position could have "devastating" impact on the airlines' defense in the civil suit, American Airlines' lawyer forwarded the transcript to a United Airlines lawyer who forwarded it to Martin, Clifford and Joseph wrote. As proof, they cited March 7 e-mails that they provided to [U.S. District Judge Alvin] Hellerstein but which were not immediately available here. [Hellerstein is the judge hearing the civil case. -- the Mgt.]

"The TSA lawyer then forwarded the transcripts and sent multiple e-mails to government witnesses in a clear effort to shape their testimony in a manner that would be beneficial to the aviation defendants" in the civil suit, they wrote. [As we understand it, to shape the testimony to make it seem as if 9/11 could not have been prevented, which would also help Moussaoui's defense. -- the Mgt]

They then quoted a March 8 e-mail Martin sent to one of the government's Moussaoui witnesses that said:

"My friends Jeff Ellis and Chris Christenson, NY lawyers rep. UAL and AAL respectively in the 9/11 civil litigation, all of us aviation lawyers, were stunned by the opening. The opening has created a credibility gap that the defense can drive a truck through. There is no way anyone could say that the carriers could have prevented all short-bladed knives from going through. (Prosecutor) Dave (Novak) MUST elicit that from you and the airline witnesses on direct."

In other words, Martin's actions were a direct assault on the prosecution's case -- she intended to help the airlines -- hence Moussaoui -- and not the government.

Yet even so, when she was caught red-handed, Judge Brinkema's response was to finish what Carla Martin started: Brinkema's order destroys the government's case, prevents Moussaoui from receiving the death penalty, and incidentally helps the airlines defend against the lawsuit. At least, that is what the plaintiffs' attorneys claim.

Through her attorney, Martin denies the allegation; but she has not yet appeared to speak on her own behalf, nor has her attorney yet had a chance to formulate a response. The first question, of course, is whether there was any pre-existing relationship between the airlines and the TSA, or some personal or monetary arrangement between their respective attorneys, which was so deep that Martin would risk disbarment or even prison (for witness tampering), just to help the airlines out in their civil lawsuit. If such a connection emerges, then clearly, Brinkema's order should not stand.

In fact, if this is true, then there should be a mistrial: the penalty phase for Moussaoui should be moved to a different judge (preferably in a different venue) and retried... because clearly, the people of the United States were sandbagged, if this allegation is even partially accurate.

Nobody alleges that Brinkema was part of this scheme; but her obvious bias against the prosecution led her to blame the government for a set-up that seems to have been aimed squarely at destroying the prosecution's case.

If this is true, it's damned if you do, damned if you don't: if the scheme had succeeded, maybe they could have gotten the witnesses to destroy the government's case (if the witnesses were willing to commit perjury, which I doubt). But when it failed -- that, too, was used to destroy the government's case!

Again, bear in mind: these are allegations from an interested party in the case: the lawyers for the plaintiffs in the lawsuit against the airlines. They may be wrong, and Carla Martin may have had no contact with the airline attorneys. But it's hard to believe lawyers would make false allegations (and what, fake the e-mails?), when the deception would be revealed immediately -- and would destroy their own careers, if they were found to be misleading the court (either court). Unless some major contrary evidence is produced, I'm inclined to believe this charge.

If the judge does not reverse herself, especially in light of the new allegations, then I sure hope the prosecutors appeal up the chain, all the way to the Supreme Court, if they will take it: the death penalty for Moussaoui should not be held hostage to the understandable desire of United and American not to have to pay a huge judgment to survivors of the victims of 9/11.

Hatched by Dafydd on this day, March 17, 2006, at the time of 12:27 AM | Comments (9) | TrackBack

March 16, 2006

Salvaging Death From Life

A day or two ago, a foolish lawyer in the Transportation Security Administration (TSA), Carla Martin, "coached" witnesses in the Zacarias Moussaoui case death-penalty phase. The witnesses worked for the Federal Aviation Administration (FAA), and prosecutors intended to call them to testify about defensive measures they would have taken, had the FAA only known that the 9/11 attacks were imminent... which (the government argues) they would have known if Moussaoui had told the truth to federal investigators when he agreed to cooperate.

So in retaliation for the hapless TSA lawyer violating that rule, the judge first considered ruling that the government couldn't see the death penalty against Moussaoui at all (?) -- and then finally ruled that they could seek it, but they weren't allowed to use their best evidence (!)

The so-called "coaching" consisted of sending the witnesses transcripts of previous testimony, which the judge -- Clinton appointee Leonie Brinkema -- had specifically enjoined the government from doing. I suppose the presumption is that the witnesses would never have thought of saying they would have banned box cutters if they knew terrorists were going to hijack planes with box cutters... which is about the most preposterous presumption I've seen in this case.

The witnesses themselves (all of them) testified that nothing in the transcripts affected how they were going to testify -- which is kind of a no brainer: if Moussaoui had said "terrorists will use box-cutters to hijack airplanes and fly them into buildings," what do you think the FAA would have done?

In fact, several of the witnesses testified that they had not even read the attached transcripts. Yet they still are being banned from testifying. Can't trust those tricksie FAA folks!

I'm not a lawyer... and in this case, I think that gives me a clearer view of the absurdity of this: the death penalty is designed to protect the people of the United States, not to aid lawyers at the Transportation Security Agency. So if one of the latter screws up, why is Brinkema punishing the rest of us?

This is insane... but of course, she was appointed by Bill Clinton in 1993 and confirmed while the Democrats still controlled the Senate. I suspect they would have confirmed a hamster, if Clinton had assured them it would be anti-death penalty and pro-abortion.

In desperation, the prosecutors are trying to undo the damage. They have filed a motion begging the judge to let them call someone else from the FAA to testify to what the other witnesses would have testified, or something else to indicate that Moussaoui's specific information about 9/11 would have resulted in some useful reaction from the FAA that would have saved at least one victim. But I suspect that Brinkema will rule against them -- presumably on the theory that the action by Carla Martin from the TSA taints all conceivable witnesses from the federal government, even if they have never even heard of her and couldn't pick her out of a lineup. Can't trust those tricksie witnesses for the prosecution!

I think Brinkema has had it in for the feds for some time. She had an earlier run-in that borders on the psycho-comical, in my opinion. From the first Fox News article:

Brinkema noted that last Thursday, Novak asked a question that she ruled out of order after the defense said the question should result in a mistrial. In that question, Novak suggested that Moussaoui might have had some responsibility to go back to the FBI, after he got a lawyer, and then confess his terrorist ties.

Great Scott! The prosecutor suggested that Moussaoui should have confessed to what he has been convicted of doing. It's an outrage. Stop the trial, set Moussaoui free! His right not to be made uncomfortable for being a terrorist who conspired to kill 3,000 Americans was brutally violated.

I don't see any of this as having any bearing on the case. All the prosecution need show is that Moussaoui's lies resulted in at least one death in the 9/11 attacks. Nothing about what was shown to the FAA witnesses alters what they were going to say -- unless you first presume they're liars who needed to know what lie to tell in order to perjure themselves. Is that Brinkema's base assumption?

She has consistently made rulings throughout this trial that make it clear she thinks of this as an ordinary criminal case -- like a carjacking or a residential burglary: she expressed enormous frustration that much of what the government knows about al-Qaeda was classified, and they refused to parade it through open court; she insisted that Moussaoui be allowed to have a conversation with Ramzi Binalshibh, without the slightest concern about what terrorist communications they might exchange. And now she deliberately cripples the prosecution's case for the death penalty simply because some jerk working at the TSA stupidly enclosed some transcripts in e-mails... as if that were a mitigating factor for Moussaoui's crime or retroactively made it less likely that his lies contributed to the deaths of at least one of the 2,967 human beings and 19 terrorists that bright fall morning.

This is utter nonsense... and a perfect illustration why we cannot try terrorists in civilian courts.

Hatched by Dafydd on this day, March 16, 2006, at the time of 4:21 AM | Comments (5) | TrackBack

March 2, 2006

Did Someone Call Me Schnorrer?

Everybody's bagging on Justice Ginsburg for this incident, captured live through the magic of sketching:

But actually, I think this is terribly unfair. We don't know for sure that Ruth Bader Ginsburg was sleeping like a baby, catching forty winks, out like a light, dead to the world, sawing wood, visiting the Sandman, in the arms of Morpheus, far beyond the wave, touring Slumberland with Little Nemo, sacked out, crashed out, checked out, out of it, floating, doing a Rip Van Winkle, or gone.

There are other explanations, you know. For just one example, maybe she was praying....

Hatched by Dafydd on this day, March 2, 2006, at the time of 8:28 PM | Comments (1) | TrackBack

February 1, 2006

The Two-Edged Sword, Revisited

Paul at Power Line disagrees with my earlier analysis, that the "Alito Rule" will not really take, because Republicans won't follow the Democrats' lead in trashing the system.

He notes that the Alito Rule is one of procedure, not substance, and that Republicans may be willing to match the Gainsayer Party on procedural issues... for the sake of consistency, if nothing else:

As I tried to explain in my post asserting an "Alito rule," the criteria for voting on judicial nominees has a procedural element to it, at least in the sense that it's more important to have a consistently applied rule than to have any particular rule. I think Republican politicians will grasp this. If not, for what it's worth, conservative bloggers will be there to enlighten them. [Emphasis ad