Category Archives: Supreme Court

Call Your Senators Now!

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I just got an email from Moveon saying the Alito filibuster has begun. Frist is going to call for cloture on Monday. The Dems need to at least put up a fight.

I haven’t been able to reach my senators’ Washington offices — the lines are busy! — so I tried the local district offices (find your senators’ here). Those lines are busy, too. Then I sent faxes, which are probably stuck in a fax queue. I’m going to keep trying the phones. I suppose emails wouldn’t hurt.

Do what you can!

Update: Found this at Democrats.com (click for more): Continue reading →

Filibuster?

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This afternoon Sen. John Kerry has been trying to organize a filibuster against confirmation of Sam Alito. Kerry needs 41 votes. I just heard on CNN that Majority Leader Frist will call for cloture on Monday; Frist will need 60 votes.

According to CNN,

Nearly all 55 Republican senators have said they will vote for Alito. Only three Democrats — Sen. Ben Nelson of Nebraska, Sen. Robert Byrd of West Virginia and Sen. Tim Johnson of South Dakota — have said they will vote for the nominee.

Earlier Thursday, Democratic Sen. Mary Landrieu of Louisiana said she would oppose a filibuster.

Landrieu hasn’t said how she will vote, I don’t believe.

Bob Fertik at Democrats.com is sorting out which other Dems might be wobbly. Likely suspects:

Tom Carper (DE)
Kent Conrad (ND)
Byron Dorgan (ND)
Blanche Lincoln (AR)
Mark Pryor (AR)
Daniel Inouye (HI)
Joseph I. Lieberman (CT)

Bob says Ken Salazar (CO) has spoken out against the filibuster, but we don’t know how he will vote.

Beside the Dems, three other Senators are on the fence as of this afternoon: Olympia Snowe of Maine, Lincoln Chafee of Rhode Island and Ted Stevens of Alaska have not yet announced support for Alito.

Bob says: “Use these toll free numbers to call the Capitol: 888-355-3588 or 888-818-6641. If you can’t get through, look up your Senator’s District Office number in your phone book or here.

Do it tomorrow! Final decisions will be made this weekend!

Hamdi Ho

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Our national debate on the President’s surveillance powers has reached an impasse. We’re at the “Am not!” “Am too!” stage, which can only be resolved through the intervention of a parent.

Our side of the argument is laid out pretty well in an editorial in today’s Washington Post.

Especially without knowing the parameters of the surveillance, we hesitate to second-guess the president’s argument that FISA’s limits are unduly constraining. The surveillance may be critical for national security, and a law written in a different technological age may well need to be refurbished. But the proper way to handle that — which the administration rejected — would have been to seek changes in the law, not to do a stealthy end run around the legislative process. In such an amorphous, long-running conflict as the war against terrorism, it’s critical to ensure that limits are in place to prevent the executive branch from overreaching.

The White House has yet to explain why, if FISA regulations were cumbersome, it did not ask Congress for changes. After 9/11 Congress was tripping all over itself to give President Bush every tool he could possibly ask for to fight terrorism. The Patriot Act did, in fact, make changes in FISA (see Title II: Enhanced Surveillance Procedures). Clearly, the White House simply didn’t bother to follow legal procedure. They didn’t think they had to.

And now that they’ve been caught, they’ve gone on the defensive to make critics out to be dupes of terrorists. Instead of discussing the real issue (why the White House bypassed constitutional procedures) they’re trying to make the issue about why the Democrats are soft on terrorism, leading to the “Am not!” “Am too!” impasse. Now we need Mom to step in to make Georgie explain his extraconstitutional shenanigans and send him to his room until he promises to stop. And no computer or video games for you tonight, young man!

Today President Bush said the Supreme Court had approved warrantless wiretapping, which might come as a surprise to the justices. He’s referring to the Hamdi v. Rumsfeld decision, decided in 2004. If you don’t want to slog through the entire decision, there’s a brief abstract here.

Yaser Hamdi, an American citizen, was arrested in the fall of 2001 in Afghanistan by U.S. military. He was declared an “enemy combatant” and transferred to a military prison. A defense attorney filed a writ of certiorari in federal district court. Perhaps a reader with a law degree can explain this, but I take it this was a petition for the court to review Hamdi’s case. Anyway, the attorney, Frank Dunham, Jr., argued that the government had violated Hamdi’s 5th Amendment right to due process “by holding him indefinitely and not giving him access to an attorney or a trial,” says the abstract. “The government countered that the Executive Branch had the right, during wartime, to declare people who fight against the United States ‘enemy combatants’ and thus restrict their access to the court system.”

So how did the case turn out? The abstract continues,

In an opinion backed by a four-justice plurality and partly joined by two additional justices, Justice Sandra Day O’Connor wrote that although Congress authorized Hamdi’s detention, Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant the right to contest that detention before a neutral decisionmaker. The plurality rejected the government’s argument that the separation-of-powers prevents the judiciary from hearing Hamdi’s challenge.

If you’re not seeing authorization for warrantless wiretapping in there, don’t worry. You aren’t the only one. A whole lot of real smart legal scholars got together to write this in the February 9 issue of the New York Review of Books:

Finally, the DOJ’s reliance upon Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to support its reading of the AUMF, see DOJ Letter at 3, is misplaced. A plurality of the Court in Hamdi held that the AUMF authorized military detention of enemy combatants captured on the battlefield abroad as a “fundamental incident of waging war.” Id. at 519. The plurality expressly limited this holding to individuals who were “part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there.” Id. at 516 (emphasis added). It is one thing, however, to say that foreign battlefield capture of enemy combatants is an incident of waging war that Congress intended to authorize. It is another matter entirely to treat unchecked warrantless domestic spying as included in that authorization, especially where an existing statute specifies that other laws are the “exclusive means” by which electronic surveillance may be conducted and provides that even a declaration of war authorizes such spying only for a fifteen-day emergency period.

The AUMF is an act of Congress, the Authorization for Use of Military Force (AUMF) against al-Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). The White House argues that Congress implicitly authorized the NSA domestic spying program by means of the AUMF. The Department of Justice argues that

The Supreme Court’s interpretation of the AUMF in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), confirms that Congress in the AUMF gave its express approval to the military conflict against al Qaeda and its allies and thereby to the President’s use of all traditional and accepted incidents of force in this current military conflict—including warrantless electronic surveillance to intercept enemy communications both at home and abroad. [emphasis added]

Oh, so did Justice O’Connor write in the majority decision that the AUMF authorizes the President to engage in warrantless wiretapping? Um, well, Justice O’Connor didn’t write about wiretapping or surveillance at all in the Hamdi decision. She does address warrantless arrests of American citizens, and she took a dim view of them. But not a peep about surveillance.

To understand where the Right is seeing this authorization for warrantless wiretapping in Hamdi, I turned to Paul of PowerLine, who wrote,

Specifcally, the Court ruled that AUMF grants the president implied authority to detain U.S. citizens in the U.S. because detention to prevent a combatant from returning to the battlefield is a fundamental incident of waging war. In the same way, AUMF can be read as authorizing the president to conduct communication surveillance targeted at the enemy on the ground that it too is a fundamental incident of waging war. If so, then the intercept program does not violate FISA because that statute contains an exception for surveillance authorized by statute.

Yes, O’Connor’s decision does say that combatants can be detained: “The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by ‘universal agreement and practice,’ are ‘important incident[s] of war.’ … The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. … There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. … In light of these principles, it is of no moment that the AUMF does not use specific language of detention.”

My reading of O’Connor’s decision is not that the AUMF authorized detention, but that detention is indisputably something that soldiers in war can do to someone fighting them. If we extrapolate Paul of PL’s reasoning, we’d have to say that warrantless wiretapping of American citizens is indisputably something that the White House can do. That’s not workin’ for me.

And the Court ruled against the Bush Administration in the Hamdi case, remember. The Court said that the executive branch cannot arbitrarily declare that an American citizen may be stripped of his due process rights, even if that citizen is caught fighting against the U.S. in a foreign country. Justice O’Connor wrote,

Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. See Kennedy v. Mendoza-Martinez, 372 U. S. 144, 164-165 (1963) (“The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action”); see also United States v. Robel, 389 U. S. 258, 264 (1967) (“It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties … which makes the defense of the Nation worthwhile”). …

… We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. [emphasis added]

This, folks, is the legal decision that Bush claims supports his warrantless wiretapping program. This, folks, is called “blowin’ smoke” where I come from. There are a great many more colorful things one might call it.

The legal eagles in the New York Review of Books say that the Hamdi decision is limited to to people engaging in armed conflict against the United States in Afghanistan. Further, Congress cannot have implied authorization of the NSA program, because “Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.”

I will admit right now that I am no lawyer. Paul of PowerLine is a lawyer, or so he says. Someone on the Right might — no, will — say that he must understand this legal stuff better than I do. And maybe he does. But what he claims about Hamdi is pure fantasy. I may not be a lawyer, but I can read, and I can think. And I know bullshit when I see it.

SCOTUS Punts on Abortion

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Just posted at the New York Times, by the Associated Press:

The Supreme Court ruled unanimously Wednesday that a lower court was wrong to strike down New Hampshire abortion restrictions, steering clear of a major ruling on they placed an undue burden on women. …

… Justices said a lower court went too far by permanently blocking the law that requires a parent to be told before a daughter ends her pregnancy.

An appeals court must now reconsider the law, which requires that a parent be informed 48 hours before a minor child has an abortion but makes no exception for a medical emergency that threatens the youth’s health.

The opinion was written by Justice Sandra Day O’Connor. The AP points out this may be the last SCOTUS opinion she will write.

An appeals court must now reconsider the law, which requires that a parent be informed 48 hours before a minor child has an abortion but makes no exception for a medical emergency that threatens the youth’s health.

I’d like to read the decision before writing much about it. The AP story highlights the fact that the justices had been asked to decide if the Nebraska law had put an undue burden on young women seeking an abortion. Instead, the court punted the decision back to lower courts.

Update: Carnival of the Feminists at Feministe.

Update update: Written decision here (PDF).

Distant Thunder

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Unfortunately, in this editorial the Washington Post is more right than wrong about the Alito hearings:

Democratic senators often seemed more interested in attacking the nominee — sometimes scurrilously — than in probing what sort of a justice he would be. Even when they tried, their questioning was often so ineffectual as to elicit little useful information. Republican senators, meanwhile, acted more as fatuous counsels for the defense than as sober evaluators of a nominee to serve on the Supreme Court. On both sides, pious, meandering speeches outnumbered thoughtful questions. And the nominee himself was careful, as most nominees are, not to give much away. The result is that Americans don’t know all that much more about Judge Alito than they did before.

There were some exceptions among the Dems — Senator Schumer comes to mind — but unless you were curled up in front of the TV for gavel-to-gavel coverage, you didn’t see Senator Schumer. More casual news consumers saw the clip of intra-senatorial snarking between senators Kennedy and Specter (although clear explanations of what the snarking was about were hard to come by). They saw Mrs. Alito bolt from the chamber in apparent distress. They saw Senator Biden wearing a Princeton cap. That’s about it.

Although I don’t agree with the editorial that the Vanguard and Concerned Alumni of Princeton issues were frivolous, I’m afraid they came across to most news consumers as frivolous. The Senate Dems rumbled away like distant thunder while Judge Alito sat, unperturbed, in the shelter of a Republican majority.

E.J. Dionne writes,

It turns out that, especially when their party controls the process, Supreme Court nominees can avoid answering any question they don’t want to answer. Senators make the process worse with meandering soliloquies. But when the questioning gets pointed, the opposition is immediately accused of scurrilous smears. The result: an exchange of tens of thousands of words signifying, in so many cases, nothing — as long as the nominee has the discipline to say nothing, over and over and over.

Alito, an ardent baseball fan, established himself as the Babe Ruth of evasion.

What news consumers did not hear is that Alito is a guy who doesn’t understand why the strip-search of a ten-year-old girl is a big deal (disagreeing even with Michael Chertoff, for pity’s sake). They didn’t hear that he thinks police were correct to kill an unarmed 15-year-old boy by shooting him in the back of the head. The boy, after all, had not obeyed an order.

By now, only the brain dead don’t realize that Alito is itching to overturn Roe v. Wade at the first opportunity. But it seems hardly anyone outside the Left Blogosphere gives a damn about Alito’s alarming — and un-American — theories about presidential power.

I realize that these issues were probably brought up by some Dem or another during the hearings, but they’ve been left out of the “story about the hearings” as told by news media. So the public isn’t hearing about them.

Paul Brownfield writes in the Los Angeles Times,

The hearings are monumental enough to be carried live on cable news, home of the video sound bite and the whir of instant dissection, but entirely ill-suited to the constant churn of a 24-hour news network.

Inside the Hart Senate hearing room, we watched two competing shows — the Republicans making like Regis Philbin, plugging Judge Alito’s latest vehicle (“So tell me about this Supreme Court nomination … “), the Democrats conducting an episode of CBS’ missing persons drama “Without a Trace,” poking at Alito’s past decisions and his membership in the conservative Concerned Alumni of Princeton but unable to place him, in the present.

Alito’s membership, and the fact that his wife Martha broke down in tears over the controversy Wednesday, gave the networks something to chew on, which is to say a way out of penetrating the gamesmanship of the hearings — senators preambling their way to question the discursively elusive witness.

Martha’s running mascara was the perfect diversion. Even if it wasn’t staged, something like it will be next time there’s a hearing on something the GOP doesn’t want you to know about.

Brownfield continues,

To watch the hearings at any length has value, but only if you watch them at any length — the straight stuff on C-SPAN, preferably, if you can stomach it. Because then you can see the chasm that exists between the dense thicket of speechifying and stonewalling in the hearing room, and the way it’s squeezed down and sized to fit our many-screened lives, above the crawl that tells you the “gay cowboy movie” “Brokeback Mountain” took home the Critics’ Choice Award or that Lindsay Lohan, distancing herself from her own sort of controversial membership, denied statements attributed to her in Vanity Fair about battles with bulimia.

Fact is, the Republicans do the sound-bite, made-for-TV-camera-moments thing extremely well, and the Dems can barely do it at all. That’s why, John Dickerson writes at Slate, the White House wants hearings on Bush’s NSA warrentless wiretapping. Bush wants hearings not because he wants to explain and defend his policy. Rather, Dickerson writes, “He’s inviting Democrats to another round of self-immolation.”

In 2002, the Republican Party used the debate over the Department of Homeland Security to attack Democrats in the off-year election by arguing the party was soft on terror. The president and his aides hope the NSA hearings will offer the same opportunity in 2006. …

… Bush and his aides are eager to talk about the National Security Agency’s activities because they think the issue benefits them politically. While Democrats are often confusing, with too many leaders and no clear message to push back against the commander in chief, the president is passionate when he talks about fighting terrorists, and a majority of voters still approve of his handling of the issue. And because the spying program was initiated soon after 9/11, it offers Bush an opportunity to discuss his more popular days as a take-charge executive after the 2001 attacks. “We’re very comfortable discussing the issue for as long as they want,” says Counselor to the President Dan Bartlett.

I can see it already. The GOP will be prepared in advance to smear and discredit anyone who testifies the program is illegal. Anyone tuning in to Meet the Press or The Situation Room or Hardball (and don’t even think about Faux Nooz) will see the usual conservative shills expounding long-discredited nonfacts and junk legalosity to argue the accusations of illegality have no merit. And Tim, Wolf, and Tweety will nod, politely, and frame their questions in a way that legitimizes GOP talking points, however frivolous.

“Democrats will be frustrated and antagonized,” writes Dickerson. “The president hopes they will get red-faced and obstinate.” The Dems will rumble away like distant thunder, and White House representatives will sit, unperturbed, in the shelter of a Republican majority.

And if, by accident, someone on the Dem side actually lands a blow, expect Condi to spring a leak and dash for the door.

Update: See also Steve Soto, “Democrats Punt Another One Away On Alito.”

Mussolini v. Madison

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I have little hope that Sam the Sham won’t be confirmed to replace Sandra Day O’Connor on the Supreme Court. It was a long shot going in. But instead of focusing on the essential reasons why a Justice Alito would be bad, most of the Dems have been playing “Who’s the Biggest Windbag?” (I’d say Senator Joe Biden is winning.)

In spite of the verbiage overload, there is one phrase we haven’t heard enough, however — unitary executive. That’s the name of a doctrine, embraced by Alito, “that the president, as commander-in-chief, is sole judge of the law, unbound by hindrances such as the Geneva conventions, and has inherent authority to subordinate independent government agencies to his fiat,” writes Sidney Blumenthal in today’s Guardian.

In other words, Alito’s view of the Costitution is closer to Mussolini’s than to Madison’s.

Blumenthal continues,

The “unitary executive” is nothing less than “gospel”, declared the federal judge Samuel Alito in 2000 – it is a theory that “best captures the meaning of the constitution’s text and structure”. Alito’s belief was perhaps the paramount credential for his nomination by Bush to the supreme court.

Alito’s manner before the Senate judiciary committee’s hearings has been prosaic and dutiful. He seems like an understudy for the part of Willy Loman in Death of a Salesman. But behind the facade of the supplicant who wants to be liked seethes a man out to settle a score.

Few public figures since Nixon have worn their resentment so obviously as Alito. … In his application to the Reagan justice department, Alito wrote that his interest in constitutional law was “motivated in large part by disagreement with Warren court decisions … particularly in the area … of reapportionment” – which established the principle of one person, one vote. Alito’s law career has been a long effort to reverse the liberalism of the Warren supreme court.

In the Reagan justice department, he argued that the federal government had no responsibility for the “health, safety and welfare” of Americans (a view rejected by Reagan); that “the constitution does not protect the right to an abortion”; that the executive should be immune from liability for illegal domestic wiretapping; that illegal immigrants have no “fundamental rights”; that police had a right to kill an unarmed 15-year-old accused of stealing $10 (a view rejected by the supreme court and every police group that filed in the case); and that it should be legal to fire, and exclude from funded federal programmes, people with Aids, because of “fear of contagion … reasonable or not”.

In the case cited above by Blumenthal, Garner v. Tennessee, a police officer shot and killed an unarmed 15-year-old boy when he fled with $10 from a home. Alito supported the right of the officer to kill the boy for failing to stop when ordered. If the Senators have challenged Alito on that un-American opinion, it hasn’t been much reported. Instead, we get videos of Mrs. Sham’s running mascara. I also suspect the Senators should have been advised to spend more time grilling Alito on Garner than on Concerned Alumni of Princeton or Vanguard.

Law professor Jonathan Turley wrote in Monday’s USA Today that Alito’s deference to governmental authority knows no bounds:

Despite my agreement with Alito on many issues, I believe that he would be a dangerous addition to the court in already dangerous times for our constitutional system. Alito’s cases reveal an almost reflexive vote in favor of government, a preference based not on some overriding principle but an overriding party.

In my years as an academic and a litigator, I have rarely seen the equal of Alito’s bias in favor of the government. To put it bluntly, when it comes to reviewing government abuse, Samuel Alito is an empty robe.

Whoa.

These concerns are echoed in this editorial from today’s New York Times.

In his deadpan bureaucrat’s voice, Judge Alito has said some truly disturbing things about his view of the law. In three days of testimony, he has given the American people reasons to be worried – and senators reasons to oppose his nomination. Among those reasons are the following:

EVIDENCE OF EXTREMISM Judge Alito’s extraordinary praise of Judge Bork is unsettling, given that Judge Bork’s radical legal views included rejecting the Supreme Court’s entire line of privacy cases, even its 1965 ruling striking down a state law banning sales of contraceptives. Judge Alito’s membership in Concerned Alumni of Princeton – a group whose offensive views about women, minorities and AIDS victims were discussed in greater detail at yesterday’s hearing – is also deeply troubling, as is his unconvincing claim not to remember joining it.

OPPOSITION TO ROE V. WADE In 1985, Judge Alito made it clear that he believed the Constitution does not protect abortion rights. He had many chances this week to say he had changed his mind, but he refused. When offered the chance to say that Roe is a “super-precedent,” entitled to special deference because it has been upheld so often, he refused that, too. As Charles Schumer, Democrat of New York, noted in particularly pointed questioning, since Judge Alito was willing to say that other doctrines, like one person one vote, are settled law, his unwillingness to say the same about Roe strongly suggests that he still believes what he believed in 1985.

SUPPORT FOR AN IMPERIAL PRESIDENCY Judge Alito has backed a controversial theory known as the “unitary executive,” and argued that the attorney general should be immune from lawsuits when he installs illegal wiretaps. Judge Alito backed away from one of his most extreme statements in this area – his assertion, in a 1985 job application, that he believed “very strongly” in “the supremacy of the elected branches of government.” But he left a disturbing impression that as a justice, he would undermine the Supreme Court’s critical role in putting a check on presidential excesses.

INSENSITIVITY TO ORDINARY AMERICANS’ RIGHTS Time and again, as a lawyer and a judge, the nominee has taken the side of big corporations against the “little guy,” supported employers against employees, and routinely rejected the claims of women, racial minorities and the disabled. The hearing shed new light on his especially troubling dissent from a ruling by two Reagan-appointed judges, who said that workers at a coal-processing site were covered by Mine Safety and Health Act protections.

DOUBTS ABOUT THE NOMINEE’S HONESTY Judge Alito’s explanation of his involvement with Concerned Alumni of Princeton is hard to believe. In a 1985 job application, he proudly pointed to his membership in the organization. Now he says he remembers nothing of it – except why he joined, which he insists had nothing to do with the group’s core concerns. His explanation for why he broke his promise to Congress to recuse himself in any case involving Vanguard companies is also unpersuasive. As for his repeated claims that his past statements on subjects like abortion and Judge Bork never represented his personal views or were intended to impress prospective employers – all that did was make us wonder why we should give any credence to what he says now.

Pretty much sums it up.

A Supporting Actress?

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Righties have seized upon yesterday’s theatrics by Mrs. Sam the Sham as one more opportunity to enjoy self-righteous outrage over the perfidity of Democrats.

Remember, these tender hearts belong to the same folks who assure us that waterboarding isn’t so bad.

I only saw game highlights, but by some accounts Mrs. Sham was made to burst into tears by Republican Senator Lindsey Graham, not by the Dems. And by other accounts it was all fake, anyway.

Jane Hamsher observes,

Mrs. Strip Search Sammy sure had herself a Kodak moment today, didn’t she? Goober Graham left off his corn-pone homilies and played the hick card just long enough to set her up by using the B word –– the word they’re all terrified of, the word they wanted to use before the Democrats did — BIGOT BIGOT BIGOT BIGOT BIGOT BIGOT — that sent the low-rent Sarah Bernhardt shrieking for the cheap seats.

I’ve worked in the biz long enough to know a poorly executed little melodrama when I see it and that was the worst, the most shameless, most obvious. It’s the role you give a really bad actress, one that can’t even be counted upon to cry with conviction. The mad dash will obscure the crocodile tears and ensure that all the cameras follow, and any attempt at intelligent discussion of quite serious and weighty matters will undoubtedly get trumped by a moment of quick burlesque ripe for the evening news. A slavish press will need no coaching to play along.

Steve M. observes, “After telling us for months and months that al-Qaeda captives regularly claim torture when it hasn’t taken place, right-wingers have apparently decided to try this technique themselves.” Droll.

The rightie reaction reminds me of children made to attend a solemn, grown-up event. They were dozing off until somebody tripped over the microphone, or spilled his water, or picked his nose.

And if it wasn’t faked, Judge Sham might want to consider whether his fragile little frau can handle being the wife of a Supreme.