Saturday, February 25, 2006

Hey Hey, Ho Ho; Roe v. Wade has Got to Go

For the record, I agree with you about Roe. This decision created the worst sort of judicial purgatory. Which, ironically, is where aborted babies go when they die.

But really, what options do you have if you no longer buy into the sanctity of the political process? I am sincerely terrified of the Constitution's potential inability to withstand an assault from fundamentalist "Christianity".

Yet Roe doesn't present a fully unresolvable case of cognitive dissonance quite the same way Brown did. With Brown, the legislative process was doomed to fail for decades to come and the judiciary was the only feasible remedy. Thus the proper question here cannot, by definition, be whether or not a certain quantity of what the hysterical right has dubbed "judicial activism" is a morally good thing. I mean, what is the democratic process worth when it perpetuates a blatant evil? And why on earth is the only functional remedy for the grossest injustice in American history the idea on trial here?

Abuse of state power, that's why. And it's a damn good why, most of the time. It's certainly not a power I'd cede willingly to our contemporary Order of Apollo, run by the deceptively congenial Dr. Dobson. This question--and its theological cousin, the appropriate tolerance for inter-temporal flexibility in defining "sin"--is the lynchpin of most modern political tension. The third party that makes tangible progress in squaring this circle will permanently alter the philosophical landscape of the country as much as the Republicans did in 1860.

Thursday, February 09, 2006

Bush's Mussolini Moment?

While I appreciate your willingness to call "moonbat" on my bullshit, the Unitary Executive Theory is not about whether or not the Secretary of the Interior has the right to carve out an independent fiefdom within the executive branch. In the current political climate it's about one thing and only one thing: dictatorial powers. It's the brainchild of freeper Trotskyites, and they are explicit in their support of an unconstrained President. A toast to monarchy, plain and simple.

A week ago I thought that, if George Bush beat up an old woman up on national television, the believers would have jumped through hoops making excuses. After Portgate I'm not so sure. To be honest, I sort of doubt this congressional outrage is anything more than a racist play to peoples' worst instincts. This sort of herd justice usually produces good arguments for an enlightened monarchy. In a deliberative system, shitty hysterical solutions--like the mindlessly cruel drug war and the profoundly unneccesary PATRIOT Act--are nearly impossible to undo once they've been put in place.

But I'm not entirely sure I do support handing over control of our ports to an oil-rich Arab sultanite either. So instead of taking sides I'm just going to enjoy watching the GOP finally--finally--start to cannabalize this inexcusable administration. The Bushies set this xeno-mongering tone, and their manufactured outrage is hopelessly transparent. People needed to believe that some things were not for sale with this crowd. People were wrong.

Wednesday, February 01, 2006

Roe v. Wade - good result, bad law

Responding to your points out of order: (side note -- the topics of this post, law, political science and Family Guy, occupy roughly 99% of my time, both now and when I was in college. Good call.)

Unitary Executive -- Actually, my understanding of the Unitary Executive Theory is similar to the one Judge Alito tried to express in his hearing. The Unitary Executive theory has little to say about how extensive the Executive power is, or if he's above the law, etc. The Unitary Executive theory (though I'll check my poli sci books tonight) deals mainly with how the Executive power is allocated within the Executive branch, i.e. to what extent the President can exert control over other members of the Executive branch.
As a for instance, under the Unitary Executive theory, Congress has no authority to establish "independent agencies" to wield Executive authority. They can provide for these groups, but under the Unitary theory, any member of these groups/commissions/boards can be fired by the President at any time for any reason, and should implicitly recognize that the authority they wield comes from the man who the People elect to be our Chief Executive.
While I'm sure many who believe in the Unitary Executive also believe the Executive power trumps the Legislative at certain times (i.e. war), the two don't necessarily go hand-in-hand. Personally, I do believe in the Unitary Executive theory but believe the Executive branch authority to be weaker than the Legislative branch, given our roots in a parliamentary system

Liberal Media Bias -- I'm not one to call everything the media do overly biased, though as a regular reader of the Washington Post I do find that, when it slants, it is more likely to do so left. But it would be just as fair to say that the Post and the Times have an elitist bias, or and educated bias, or any number of other biases. That's because the media is simply a collection of individuals, each with their own individual perspective (or bias, if you prefer). Amalgamated together, these perspectives form a journalism core that can't help but be biased in favor of others who think like them, of similar backgrounds, educations levels, and outlooks.
I don't fault them for it, anymore than you or I could be faulted for being slightly more likely, having just met two people, to prefer the one who is better educated, likes rugby and drinks beer over a dumb Californian who only eats tofu. We can't help it. I had a number of professors who did a slightly better job explaining those viewpoints with which they agreed, as opposed to others (normally, the ones with which I agreed). They were still great teachers, and I still learned immensely, but I don't think even they would deny a slight bias. It's only human.

Roe v. Wade -- Okay, before I get onto the core point here, let's clear it up again. Overturning Roe v. Wade would not, I repeat NOT, make abortion illegal. It would instead allow each state to decide that for themselves, and each state court to make a similar judgment if legislation were approved outlawing it.
With that in mind, one loses nothing by admitting that Roe v. Wade is arguably (along with Bush v. Gore) one of the most outcome driven decisions EVER. Roe basis its authority on the "penumbras and emanations" of privacy from other amendments, as though the 1st and 4th amendments emit some kind of odor that, when taken together, smells like privacy. So bad is Roe that most legal scholars don't even try to defend its reasoning -- instead they focus on the result. Fine, we Republicans did that with Bush v. Gore. But remember how angry Dems got after that decision? And to social conservatives, Roe was the legalization of murder.
Which brings us to Alito. In 2004 Republicans elected a Republican president and Republican majorities to both houses. I would say that Alito is no more conservative than Ginsberg or Breyer is liberal, and if memory serves, Republicans didn't oppose them b/c they recognized that a Democratic president and a Democratic Senate should have a wide leeway on such things.
To the extent you still believe Alito to be a "whackjob", ask yourself why so many of his collegues from the 3rd Circuit would support his nomination. Remember, they have a lifetime appointment, and no need to "lie" to keep their jobs. Is he more conservative than you would like? Sure. But if I'm stuck with Stevens, Souter, Breyer and Ginsberg, you'll have to tough it out.

Monday, January 30, 2006

Justice Birch, I Presume

Doing work at work?!? Garbage. If you were more of a lefty you could join a union and take a stand against that sort of occupational tyranny.

Boaz is absolutely correct--there is nothing divinely ordained about the balance of the court. But honestly, Bush supporters have no place criticizing the media at this junction in history. Conservatives have internalized the idea of "liberal" media bias, and no amount of factual deconstruction seems adequate to dislodge this faulty sense of victimization.

The two towering boogeymen haunting the collective subconscious of William F. Buckley's intellectual progeny--the New York Times and the Washington Post--couldn't do a better job of carrying water for the Bush Administration. The Times let it's star Washington bureau reporter publish an unverified stream of White House war propaganda. The Post just went to the mattresses defending the GOP's easily disproved Abrahamoff-containment talking point. And since these distortions come from "liberal" bastions like the Times and the Post, their impact is magnified many times over.

Besides, you should be grateful that the media's only anti-Alito focus is that he would disrupt the balance of the court, and not on more legitimate concerns--like the fact that he's an extremist wacko. The country is roughly 70% pro-choice, but for some reason (probably the liberal media), this man is being portrayed as a mainstream bulwark against "activist" judges. You're pro-choice, why do you support Alito?

Besides, the man is either crazy, or he's a liar. Alito is on record saying that the unitary executive theory "best captures the essence" of the Constitution. Right, and The Family Guy best captures the essence of life in Rhode Island. "Unitary executive theory" is just a fancy way of saying that the President is above the law so long as he doesn't get his dick sucked. And don't get me wrong, Alito is fully entitled to believe that the President should be granted dictatorial power for the duration of his time in office. But he cannot do so and still pretend to be an "originalist". While we can't ever be sure exactly what the intent of the Framers' was, we can be sure that the unitary executive theory is roughly antithetical to it.

The fact that he's brilliant is irrelevant. Can you honestly tell me that you can't think of one person at Swarthmore who was fully decent at heart and chock full of intellectual firepower, but who you wouldn't want within 100 miles of the Supreme Court? I can think of a handful who were way too far left for my taste. Is there no potential for reciprocity?

Monday, January 23, 2006

"Balance of the Court"

Sorry it has been a while since the last post, but apparently I'm expected to do work at work, so there has been some catching up to do since the holidays.

Also, I found an article that articulately expresses my outrage over the newpaper coverage of the Alito hearings, which I will reprint below. I'm curious as to any comments anyone might have before I (hopefully tomorrow) post my full feelings on the matter.

Ginsburg in the "Balance"
It didn't matter then—it shouldn't now
David Boaz
Remember all those news stories in 1993 about how the nomination of former ACLU lawyer Ruth Bader Ginsburg to replace conservative Justice Byron White on the United States Supreme Court would "tilt the balance of the court to the left?"
Of course you don't. Because there weren't any.
In the past three months, the major media have repeatedly hammered away at the theme that Judge Samuel Alito Jr. would "shift the Supreme Court to the right" if he replaced retiring Justice Sandra Day O'Connor.
According to Lexis/Nexis, major newspapers have used the phrase "shift the court" 36 times in their Alito coverage. They have referred to the "balance of the court" 32 times and "the court's balance" another 15. "Shift to the right" accounted for another 18 mentions.
Major radio and television programs indexed by Lexis/Nexis have used those phrases 63 times. CNN told viewers that Alito would "tilt the balance of the court" twice on the day President Bush nominated him. NPR's first-day story on "Morning Edition" was headlined "Alito could move court dramatically to the right."
Now maybe all this is to be expected. Alito is a conservative, he's been nominated to replace a centrist justice, and he probably will move the Supreme Court somewhat to the right—which is probably what at least some voters had in mind when they elected a Republican president and 55 Republican senators.
But note the contrast to 1993, when President Bill Clinton nominated the liberal Ginsburg to replace conservative White. White had dissented from the landmark decisions on abortion rights in Roe v. Wade and on criminal procedure in the Miranda case, and he had written the majority opinion upholding sodomy laws in Bowers v. Hardwick. Obviously his replacement by the former general counsel of the ACLU was going to "move the court dramatically to the left."
So did the media report Ginsburg's nomination that way? Not on your life.
Not a single major newspaper used the phrases "shift the court," "shift to the left," or "balance of the court" in the six weeks between Clinton's nomination and the Senate's ratification of Ginsburg. Only one story in the Cleveland Plain-Dealer mentioned the "court's balance," and that writer thought that Ginsburg would move a "far right" court "toward the center."
The only network broadcast to use any of those phrases was an NPR interview in which liberal law professor Paul Rothstein of Georgetown University said that Ginsburg might offer a "subtle change...a nuance" in "the balance of the court" because she would line up with Justice O'Connor in the center.
No one thought that some momentary balance on the Court had to be preserved when a justice retired or that it was inappropriate to shift the ideological makeup of the Court. And certainly no one had made that point during 60 years of mostly liberal appointees from Democratic presidents Roosevelt, Truman, Kennedy, and Johnson—even as they replaced more conservative justices who had died or retired. ut suddenly, we are told by senators, activists, and pundits that a nominee should not change the makeup of the Court.
For another striking contrast, take a look at The Washington Post's respective headlines on the days the two judges were nominated. For Ginsburg:
"Judge Ruth Ginsburg Named to High Court; Clinton's Unexpected Choice Is Women's Rights Pioneer"
"A Mentor, Role Model and Heroine of Feminist Lawyers"
"Nominee's Philosophy Seen Strengthening the Center"
For Alito:
"Alito Nomination Sets Stage for Ideological Battle; Bush's Court Pick Is Appeals Judge with Record of Conservative Rulings"
"With a Pick from the Right, Bush Looks to Rally GOP in Tough Times"
"Comparisons to Scalia, But Also to Roberts"
"Judge Participated in 2002 Vanguard Case Despite Promise to Recuse," and "Alito Leans Right Where O'Connor Swung Left"
Despite the Post's claim that Ginsburg was a centrist, she has in fact been a consistently liberal vote on the Supreme Court. Research by Richard J. Timpone, director of the Political Research Laboratory at Ohio State, finds that she is the most liberal member of the Court on economic issues and virtually tied with Justices John Paul Stevens and Steven Breyer on civil liberties. The Institute for Justice reviewed three years of Court terms and found: "The justices least likely to constrain government power and protect individual liberties were Justices Ginsburg and Breyer." Three years later they found the same results for Ginsburg's first seven terms: she and Breyer voted against protecting civil and economic liberties more often than any other justice.
The issue is not Ginsburg's record, but the media's notion that the Supreme Court exists in some sort of delicate balance which will be upset by the introduction of a conservative justice. The Senate has every right to consider whether Judge Alito will be too conservative, too accommodating to executive power, or too dismissive of discrimination claims. But the Supreme Court's current ideological makeup is not divinely ordained, and we should stop wringing our hands over whether he will "shift the court" in some direction.
David Boaz is executive vice president of the Cato Institute and author of Libertarianism: A Primer.

Monday, January 02, 2006

"No man is above the law" -- Rep. Henry Hyde (1998)

Interesting. Where you see "tactical stupidity", I see mountains of circumstantial evidence. The President is up to no good, and I can prove it. At the end of the day, we really don't have to get into a technical debate on the 4th Amendment to know that what Bush is doing is wrong. Why? Because every single one of his explanations fails miserably.

The "NSA Program" has not made us any safer. "But we haven't been attacked since 9/11." Great, and this rock keeps tigers away. Besides, we have been attacked. If you don't consider what happened in London an attack on us, and on some level a failure of American leadership, you don't understand the nature of the war we're fighting. We're fighting a new kind of war.

Exposing this program has not, in any way shape or form, made the US less safe. Everyone worth their salt in a terrorist organization assumes they are being monitored. And anybody who's so stupid he needs a front page story on the NY Times to put two and two together wouldn't be worth monitoring in the first place. And on the off chance someone that stupid was worth monitoring, there was a 100% chance that the necessary warrants would have been approved.

It's also patently ridiculous to equate the Plame leak with this one. And forget about the disclosure of her identity for a minute. Dismantling a CIA front operation is serious business. The government can't exactly setup energy consultancies with offices in strategic countries around the world on a moment's notice. Especially ones which specialize in intercepting WMD on the black market. How many of those do you think we had before Novak sold what was left of his soul? Brewster Jennings was lost to an act of Benedict Rosenberg-magnitude treason.

Now, before we muddy the debate any further acknowledging the GOP's welcome embrace of moral relativism, I would like to clarify, as fact, that this NSA business very obviously violates the "original intent" of the 4th Amendment. I mean, just read it...

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

We both know I don't have your legal training, but I simply fail to see how the fact that they're not using the fruits of their "total information" campaign as evidence in criminal proceedings is the issue at hand. The current Republican interpretation of the 4th Amendment--that in the good old days a government acting in good faith could practice unfettered law enforcement until Earl Warren rode roughshod over the country on the back of a forked tongued dragon while smoking pot and drinking babies' blood--is a delusion with no roots whatsoever in the Constitution.

Wednesday, December 28, 2005

A little 4th Amendment lesson

Would I be concerned if the President were breaking the law? Absolutely. But what has been ignored, so far as I can tell, is that the spying of which he is being accused isn't illegal, it just wouldn't allow them to arrest anyone with the information.
Hence the need for the 4th Amendment lesson. The reason police obtain warrants isn't because they fear criminal prosecution for doing a search without one. To the extent that a warrantless search of a home is illegal, police officers would almost certainly be covered under qualified immunity. They get a warrant because the exclusionary rule (which was invented by the Warren Court in the 1960's) says that they can't use evidence gained from an illegal search in a criminal prosecution (the so-called "fruit of the poisonous tree" doctrine). And... that's about it. So, if the police think you have drugs in your house, and they kick the door in and take the drugs without a warrant (or a good-faith belief, or exigent circumstances, or one of the other exceptions) they can't use those drugs as evidence against you in a criminal prosecution. Unless they can cure them another way (again, an exception). Oh, and they could like use them against other people who were in your house buying/selling/using, since they wouldn't have standing to challenge the search, but that's a topic for another day. But you'd be safe from prosecution. On the other hand, you wouldn't get the drugs back (since they are illegal) so if the police were trying to prevent you from selling them, they have succeeded.
Sometimes this is known as the "ticking time-bomb" scenario: What if police think there is a bomb, but don't have a warrant? Most would say they should seize the bomb, pass up the chance to prosecute the bomber on that count, but just place surveillance on him until he screws up in some other way.

So, a long-winded way of saying that yes, I'm troubled by the fact that the President may have spied on U.S. citizens domestically. However, I'm not troubled if these people were not citizens, nor would I have been troubled if the spying had taken place on the other end (i.e. you call an international number the NSA has been monitoring over there)
To be honest, I'm more offended by the tactical stupidity of it all. Since the FISA courts do give out warrants like hot-cakes, why not just apply for the warrant before the 72 hours expires? Especially if you've heard something good during that time? You don't even have to stop watching football on Sunday; just do it when you get to work the next morning.