Maybe Obama owes the Court an apology

Actually, I admit I'm a bit torn. The founders set up three co-equal branches of government with the idea that they would check and balance each other, each preventing the others from accumulating too much power. It hasn't necessarily worked out that way; most often the three branches connive with one another against the populace, and the chief executive, envisioned as an administrator without much power of his own beyond commanding the military on the rare occasions when its use was necessary, has become, as Andrew Bacevich put it, the American Idol. But insofar as they are checking one another, there are bound to be disagreements that sometimes break out in open criticism. Such criticism might just mean that to some small degree the founders' scheme is still working, so perhaps it should be welcomed and encouraged.

That said, the more I've looked into this -- I wrote a critical piece on the speech for the Register's Sunday Commentary section -- will link once it's up -- the clearer it seems that while Alito's probably spontaneous pantomiming was probably ill-advised, it was Obama who was the clear breaker of precedent and the aggressor -- and something of a cowardly one at that, with the pointed criticism directed at people who by protocol are expected to sit motionless and expressionless during a rather pointed and highly inaccurate tongue-lashing, of the kind that any con law professor with a speck of integrity would give a failing grade to. Presidents hardly ever have referred to the Supremes in SOTU speeches, and never before in such a pointed way right to their faces. Attendance at SOTU is optional for Supremes, and it might not be surprising if none showed up next year. Maybe not so bad. Catfights between the branches just might be a good sign for freedom.

Supreme Court term could be interesting

I doubt that the presence of Sonia Sotomayor will make much difference in the way the Supremes decide things this term -- although news reports say she was active in questioning on the first day the court heard cases yesterday. Kennedy will continue to be the justice to whom lawyers direct their arguments and he will likely continue to side with the "liberal" bloc sometimes and the "conservative" bloc more often.

As this Register editorial explains in truncated form, however, it should be an intersting term. The Hillary Movie case, with the potential to disassemble a good deal of the restrictions on the practice of democracy known as "campaign finance reform," has been argued. There's a cross on federal land in the Mojave Desert likely to further confuse church-state jurisprudence. There will be a couple of terrorism-related cases, one involving designating a "humanitarian" organiuzation as providing "material support" to a terrorist organization. And perhaps most interesting, Maloney v. Chicago, which challenges Chicago's strict gun laws in the wake of Heller, which pronounced the right to bear arms an individual, not a collective, militia-conditioned right. Heller applied to the District of Columbia, a federal enclave. The question is whether that right will be "incoporated," as most of the Bill of Rights have been by the courts, to apply to states and municipalities. Don't look to me for predictions. Not yet. Maybe I'll get foolish as I read reports on oral arguments.

Sotomayor seems pretty inevitable

It's hard to tell whether she has actually never thought too much beyond platitudes on the kind of controversial issues the Supreme Court is likely to address -- abortion, property rights, the Second Amendment, incorporation, eminent domain -- or whether acting that way seemed like the best strategy to assure a comfortable Senate approval. But the Sotomayor hearings were remarkably lacking in drama or information. The only things that excited me was her approval of state protectionism when it comes to interstate wine sales, one of the issues on which the current Supremes reversed her. Here's the Register's editorial after the first day, along with a few subsequent blog posts, here, here and here. She probably won't be a disaster, but there's no evidence that she is intellectually distinguished or even especially curious about constitutional issues.

Register likes Ricci -- mostly

Further reading and talking to law profs today made it clear that while the Ricci case was, as the Register pointed out, correctly decided, by remanding the case to lower courts to work out the details -- without much guidance, the Supremes left all kinds of questions unanswered. Do the white and Hispanic firefighters have the right to jobs posted in 2003, or have things changed enough in the intervening time that they have to start all over. The principle -- give your best shot at a race-neutral test (perhaps it could include demonstrating practicalk skills as well as memorizing stuff -- and live with the results. But there are plenty of details remaining, and a similar case might come to the Supremes again in a few years -- which might be what the Roberts wing of the court, devoted to gradualism, wants.

Supremes going too slow on DNA testing

The U.S. Supreme Court ruled a couple of weeks ago in an Alaska case that it was not a constitutional right to have the most sophisticated DNA applied to crime-scene material after a defendant had already been convicted in what was stipulated to as a fair trial. While the court majority acknowledged the value of DNA, it said the states were evolving standards for its use and it was unnecessary and/or premature for the high court to intervene and dictate standards.

I think I can understand the court's reluctance here, but the argument on the other side is that now that we know how valuable DNA testing can be, it's time to consider such testing part of "due process," which has never been an evolving concept as technology has increased, and the constitution guarantees due process. It wouldn't have been that much of a stretch. The government is rushing to collect DNA from as many people as possible, including in some states people arrested but never charged. It's virtually a standard part of the criminal justice process already. Yet the court shrinks from letting a convict (OK, he was already out on the rape and murder charge and had committed another crime, so he wasn't too sympathetic a character, but the court is supposed abjure sympathy) order and pay for his own test and mandate that the state provide the material with DNA.

This Register editorial, I think, deals with the issue fairly but comes down on the side of as wide a use of DNA as practical in the criminal justice system.

Jumping all over Sotomayor a big mistake

I can't monitor everything, but from the excerpts and bits and pieces I see or hear about on the Net, the right-wing talk radio/blogosphere universe is in the midst of a huge tactical/strategic mistake over Supremes nominee Sonia Sotomayor. But it's almost as if they can't help themselves. Supreme Court nominations have been so contentious lately that both sides have huge attack/defend machines in place and millions invested in the process. Both sides are convinced that nomination fights "energize the base." At this point it means that Rush/Hannity et. al. are falling right into the trap Obama has set for them. The best thing the base could do in this instance, is to shut up, as most Senate republicans who have a modicum of actual responsibility are doing.

I talked to UCI law school dean Erwin Chemerinsky for this Register editorial, and as has often been the case in the past Erwin, God love 'im, had the politics down pat. Obama nominates a Hispanic woman. The Republicans know they can't win a national election without about a 40% vote from Hispanics (about what Bush got in'04), so doing a balls-out attack job on Sotomayor risks making the GOP something like a permanent minority in national elections. But Rush etc. can't resist the bait. Sotomayor is not just to the left, as she is -- what did you expect from Obama? -- she's the worst nominee ever, devoted to identity politics ueber alles, proclaiming that she routinely makes up law and will ruin the Supreme Court within a week of donning a robe. TheApocalypse is upon us if we don't make the most flamboyant case possible against her. The Republic hangs by a thread.

Take a chill pill. She'll vote almost exactly the same way Souter did so she won't tchange the balance of the court, and with the Dem majority in the Senate she's going to be confirmed even if you convince the "base" that she's the devil incarnate. The "outrageous" quotes (wise Latina woman better than white male et. al.) are nowhere near so outrageous in context. There are certainly valid criticisms to be made of her approach to jurisprudence, but this kind of hysterical attack will only discredit those who made it except in the eyes of an ever-diminishing choir.

The hysteria isn't all on one side. Look at the comments and not that a reasonably balanced piece with some mild criticism is dismissed as nothing but part of the evil Republican attack machine by the other side.

Supremes fight: make it over the Constitution

According to this news story, observers expect a vigorous battle over Pres. Obama's Supreme Court nominee, whoever it may be. I think it would be a mistake to make it either personal or bitter. As I suggested in my piece a couple of weeks ago (which highlighted pretty much the same cast of probably top candidates), the most useful thing the Republicans could do would be to ask questions about constitutional interpretation that clearly establish them as limited-government constitutionalists. If the nominee has a more expansive view of the powers the constitution grants to different branches of government, they should ask pointed questions as to why, and demand a justification for interpreting the constitution to grant more power than the plain words seem to grant, especially to the executive branch, which has grabbed power shamelessly under both parties for the last 70 years or so.

Having made the recommendation, I seriously doubt it will happen. To be fair, Roger Pilon of the Cato Institute fleshed out the idea in more detail when I talked to him in preparing my piece. But he also said that his experience when testifying before congressional committees was that the Republicans were generally ill-prepared and could ask only the most general questions, questions that didn't betray much knowledge of subtleties or nuance. In addition, Republicans since Reagan have (generally, noit universally) become cheerleaders for a powerful executive, especially under Bush, with the notion of the "unitary executive." Politicians are fully capable of doing a 180 on almost anything, of course, but I doubt if many in Congress have the sophistication to do it credibly.

Too bad. The Supremes hearings will be the first time most of the public will have heard much more than sounbdbites from Republicans since November. A smart, principled-sounding performance could restore a modicum of credibility. But both parties are pretty much hopeless in these days of imperial decadence.

FCC Fleeting expletives decision upheld

A couple of weeks ago the Supremes delivered one of their more dismaying decisions. As this Register editorial explains, they upheld the decision by the Federal Communications Commission to ban what are called fleeting expletives, nasty words (as defined by the FCC) that occur accidentally (at least as far as the producers are concerned) in live broadcasts rather than in a scripted piece. Stupid decision, one that shows a proclivity by some conservatives to be censors despite the First Amendment.

To be sure, the Supremes stayed away from the First Amendment, deciding the case on the narrow technicality that the FCC had issued sufficient justification for changing its policy from one in which fleeting expetives were ignored. However, as I daresay the Register was the only newspaper to point out, the problem is deeper, going to the very existence of an FCC in a country with a First Amendment. They talked about the need to regulate access to the spectrum back in 1934 to get their noses under the tent and start regulating content, but that issue was mostly phony and the content regulation is utterly unjustified. Electronic media are the press with new technology, and the First Amendment says "Congress shall make no law" restricting freedom of the press. The FCC should be abolished yesterday.

Supremes lying low

The U.S. Supreme Court began its term on Monday, and based on the cases accepted so far, it's looking like a less controversial term than last year -- nibbling around the edges of ambiguities in prior decisions rather than taking on core constitutional issues. This Register editorial suggests the election and a desire not to call too much attention to the court during the remaining campaign season as a possible reason, and I suspect it is at least a contributing factor.

Nonetheless, a few cases are likely to attract some attention: a quasi-religious outfit called Summum that wants to erect a stone monument with it's Seven Aphorisms in a city park in Utah that has a Ten Commandments monument, a case that will decide whether a union that charges "agency" fees to non-members can use the money to help other unions recruit, and a challenge to the absurd fine the FCC issued for incidental f-bombs during awards ceremonies. My thanks to John Eastman, dean of Chapman University's Law School for advice and counsel on this one.

The Constitution vindicated

The ruling by the Supreme Court allowing the Guantanamo detainees to file habeas corpus motions in U.S. courts was welcome, perhaps even overdue. Here's a link to the Register editorial commending it; note that we got more critical comments than praise from readers. I think it explains the importance of habeas corpus to a society with any hope of being free pretty well. I'm frankly shocked that conservatives especially, at least those who claim to have any respect at all for the U.S. Constitution, could be so critical, but most of them are positively apoplectic. It's another example of how war warps peoples' judgment and endangers liberty.

It is simply breathtaking how thoroughly the Bush administration has distorted the constitutional order and expanded executive power to an extent even Hamilton, the founder most friendly to executive power, who commended "energy in the executive," would find downright shocking. To think that the Bushies thought they could just hold people indefinitely, some for 6 years, without charges or access to anything resembling an impartial arbiter. Even the military prosecutors first assigned to prosecute detainees were shocked at how blatantly the administration politicized the process, and several have quit and criticized the process severely.

The Bushies have been slapped hard by the high court, a sign that there is still some durability in the Madisonian separation of powers arrangement designed to protect liberty -- not that it's perfect, but it still sometimes works. The Bushies brought it on themselves, with their arrogant determination not to classify them as POWs or to offer anything resembling due process. It's quite possible that there's no reason for Guantanamo to be kept open any longer now. The administration obviously chose it so they could argue that it wasn't on U.S. soil, so the constitution didn't apply. I would say shockingly cynical but nothing this administration does shocks me any more. The Supremes shot that one down. Here's a link to a Scotusblog post with links to a variety of coverage and commentary, and a pretty good summary.

I talked to Tim Lynch over at Cato, and he stressed what had been in the Cato amicus brief: that the key was not whether Guantanamo is U.S. soil, but that the Supreme Court has jurisdiction over the president and secretary of defense, so it can prevent them from denying habeas corpus wherever in the world they give orders to do so. Otherwise they could simply move prisoners to foreign soil and mistreat them at will. Tim found one sentence in the 70-page decision he thought came close to expressing his view: that the scope of habeas corpus "must not be subject to manipulation by those whose power it is designed to restrain," but it's not explicit enough to suit me.

Not making a federal case of it

Here's a link to the Register's editorial on the Virginia v. Moore Supreme Court case, where a guy arrested for a minor traffic violation was illegally (under Va. law, which mandates cite-and-release) arrested and in the course of the illegal arrest the cops found cocaine and about $500. He was charged with possession for sale and convicted. I figured it was one of those cases where the Supremes expanded the drug-war exception to the Fourth Amendment (and the fact that Va. appealed a decision by its own Supreme Court to suppress the evidence it may have been to some extent at the state level). But I found it was more convoluted, and was really a federalism case. The high court said it was inappropriate for the state to use the Fourth to invalidate the conviction because that would leave it vulnerable to having 50 different definitions. The 9-0 decision was probably justified. Darn it.

Letting commerce flow

I could possibly have considered going the other way on this, but on balance, the Register editorialized, the Supreme Court's decision to immunize makers of medical devices who had fulfilled FDA requirements from lawsuits at the state level was correct. Of course my preference someday would be for the FDA to be abolished (its regulatory costs and delays have led to more deaths than saved lives), but if there are to be regulations, adding litigation to the mix simply facilitates the search for deep pockets. A case can be made that a society can rely on either the tort system or a regulatory scheme to create incentives for safety, but using both is overkil that raises prices and deters innovation.l

More immunity for feds

Here's the Register's editorial on the Supreme Court decision last week that extended (as I read the law, the majority of justices obviously disagreed) the range of federal employees who are immune from lawsuits for their misconduct and/or crimes done as part of their duties. The case involved a Muslim in federal prison who was transferred from one facility to another, and when his belongings arrived he discovered his religious items, including two copies of the Quran, were missing. He sued.

The high court chose to interpret a 1946 law whose main purpose was to open government employees to liability, to make the thieves who stole his stuff immune from lawsuits. The old law had some exceptions, including customs officers who misplaced stuff they were inspecting or had confiscated, but included the phrase "any other federal law enforcement officer." I would read that as any law enforcement officer who was performing customs-related duties at the time, but the court said it applied to "any" law enforcement officer, in effect giving all of them blanket protection from lawsuits for misconduct. Outrageous!

If it were up to me, of course, no government employee or official would be immune from liability for actions performed under color of authority. Nor would there be such a concept as "sovereign immunity," which protects the government itself from lawsuits. If personal responsibility is desirable, and I believe it is, everybody in society should be personally responsible for their actions, especially those who work for the instrument of coercion and are constantly subject to the temptation to abuse their authority.