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.