10/31/2006
Justice in America
by V on 9:37 am.
Salon reports on a serious problem in the appointment of American justices and campaign finance.
At least two dozen federal judges appointed by President Bush since 2001 made political contributions to key Republicans or to the president himself while under consideration for their judgeships, government records show.
Why is this a problem?
For one, it is bad for justice. One of the driving forces in campaign finance is a decision by the Supreme Court, Buckley v. Valeo. If campaign donations made to key members of the Judiciary Committee can buy a judgeship then we have a serious justice problem. If, too, the judges are the deciders of the bounds of political speech made by money, then their donations make any rulings on the subject suspect.
Far be it for me to quash the political free speech of persons who want to be judges, but I do think that they should have the good sense to stop themselves.
On the other hand, this article is not proof positive of favoritism for funds. It does raise the question and shed some uncomfortable light on the judiciary. Like so many modern questions about the judiciary, this is one of appearance and not necessarily actuality. Even if the judges were not part of a pay-to-play scheme to control the judiciary, these donations leave an impression that there might be such a scheme, and that these judges might be a part of it.
The integrity of the judiciary is too important to be tarnished in this way. We could ask for no greater proof than the recent accusations of activist judges, and the responses from virulent, anti-judge mobs. These jurists should know that the integrity is too important, and this more than anything makes me wonder if they are really qualified to sit on the bench at all.
The article is generally good, and it makes a lot of interesting points. Give it a read.
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10/30/2006
Irrational Fear of the International and International Law
by V on 11:32 am.
Focus on the Family has an article (highlighted by opiniojuris) that expresses fear about an early international focus in top tier lawschools. Here is a gem:
Bruce Hausknecht, judicial analyst for Focus on the Family Action, said law schools are following the lead of liberal judges who increasingly look to foreign law to interpret the U.S. Constitution.
“We saw (Supreme Court) Justice Anthony Kennedy in the Lawrence v. Texas decision on sodomy look to Europe and some of the courts of human rights elsewhere to help him justify striking down a Texas law prohibiting sodomy,” he said.
The shift is all part of getting future lawyers to think globally, Hausknecht added. Unfortunately, it’s lessening their respect for the Constitution.
Unfortunately, it is also nonsense. An earlier international focus can actually bolster respect for the American Constitution, because much of the world’s jurisprudence is based on our own.
It is the job of a lawyer to see issues form different perspectives so that they can creatively think through problems. International values can help as a contrast to our own, as well as to help us find a more tested definition of human issues as in the Lawrence case. None of this is harmful to the law or to lawyers and certainly not to lawyers-in-training.
It is particularly important in America, the Great Melting Pot, that we pay attention to the values of others, because in many respects they are our values. Focus on the Family can rest assured that there are an equal number of conservatives in the world abroad as there are liberals. True, few internationals are willing to take as narrow a view of human existence and potential as FoF is promoting. Perhaps that is an indication, not of the liberal values of the international community, but rather, of the insano values of the ridiculously far right here in America.
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8/31/2006
A Little Positive Thinking
by V on 10:34 am.
Democrats have threatened to filibuster on Terrence Boyle’s nomination to the Fourth Circuit. Here’s hoping that they follow through with that and stop making “compromises*” at the expense of serious and non-partisan justice and the civil rights and liberties of the American people.
*Not for non-grammerians: I took the time to snatch a definition of compromise from dictionary.com and what do you know it does include a clause about “mutual concessions.” I think we have the concessions part down. I am just not sure about the mutual part.
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8/27/2006
Checks and Balances
by Matt Singer on 5:49 pm.
Eldridge Jones says he is proud of his union, because “I have seen first hand what the tyranny of a system w/o checks and balances to protect workers could become.” That’s a key point. I do not defend unions because they are always right and good, nor do I defend the judiciary because the judiciary is always right and good. Rather, these institutions are important because multiple institutions jockeying for power prevents control of a system from being concentrated. And, over the long term, that is a good thing.
Inevitably, there will be some bad apples in the world of organized labor. Heaven knows that judges will write bad decisions. Likewise, I will sin. You will, too. We are all people. Preventing any of us from gaining too much power is critical and one of the best ways to do that is competing institutions. In other words, we aim not for perfection for we are incapable of it — instead, we seek the system that can bring us closest — James Madison knew that, so did Richard Lipsey and Kelvin Lancaster.
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8/26/2006
Professor Natelson
by V on 1:17 pm.
I just had my first introduction to Rob Natelson as a professor. He has been a topic for discussion from time-to-time on this blog, because he engages in politics on top of being a professor and his politics are abhorent. I found to my surprise, however, that he is a singularly gifted professor, both dedicated to his field and a charming orator.
Not just anyone can be a very good professor…let me back up. I hate powerpoint presentations. Why? They are always dull, and the people giving them usually consider them a substitute for thorough knowledge and interesting lecture material. Pictures from the internet are not a substitute for interesting lecture material. Not now. Not ever. It takes a combination of some complicated characteristics to really involve a classroom in a lecture that involves a powerpoint, because they are usually riddled with facts that students think they ought to write down in case they end up on a test. Students are usually wrong about this, but the powerpoint makes them want to write it down anyway.
Professor Natelson had a powerpoint to go along with his introductory lecture covering the basic history of the constitution and the time period that fomented its coming. He covered around 600 years of American/British history complete with topical, classical anecdotes within a span of an hour and fifteen minutes; no small feat. The powerpoint was well designed to supplement and not overpower the lecture. His examples and pictures were clearly found mostly in personal investigation of the topic.
Perhaps more surprising, the lecture was very personable and–though I am almost ashamed to admit it–he was quite charming. So much so that while I saw the little comparisons he was making to butress a view of the constitution which I do not hold, I was unwilling even to hold it against him. Since the time was short, I think, he strayed well away from most of the topics that would have raised red flags, but the lecture was ridiculously thorough. Anyway, color me glad that he is the constitutional law professor with a slight tint of confusion at me own glee.
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8/18/2006
Bush v. The Judiciary
by Matt Singer on 8:57 am.
It looks like we may be poised for one of the biggest Constitutional showdowns in American history. Glenn Greenwald notes that a series of recent court decisions make it clear that the Bush Administration has been breaking the law repeatedly, including the Foreign Intelligence Surveillance Act, which is a criminal law:
Thus, judicial decisions are starting to emerge which come close to branding the conduct of Bush officials as criminal. FISA is a criminal law. The administration has been violating that law on purpose, with no good excuse. Government officials who violate the criminal law deserve to be — and are required to be — held accountable just like any other citizens who violate the law. That is a basic, and critically important, principle in our system of government. These are not abstract legalistic questions being decided. They amount to rulings that our highest government officials have been systematically breaking the law — criminal laws — in numerous ways. And no country which lives under the rule of law can allow that to happen with impunity.
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8/17/2006
Ezra Klein on Science
by V on 3:49 pm.
Too funny not to report
US District Judge Anna Diggs Taylor has declared Bush’s wiretapping program illegal and unconstitutional, a clear violation of FISA. What “Judge Diggs” clearly forgets is that FISA was an unconstitutional abrogation of President Bush’s right to do whatever the fuck he wants. Can’t argue with that reasoning, Judge. It’s science.
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Judge Rejects Illegal NSA Spying Program
by V on 11:44 am.
All of the power in this country springs from the people and from our champion the constitution. The president’s power flows from the constitution and is also checked by it, as are the powers of all of the branches of government. The Fourth Amendment requires–not recommends, or suggests–that the government has a warrant, issued only if the government has probable cause, and which “particularly [describes] the place to be searched and the persons or things to be seized.” For context, it also says that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
September 11th changed the face of the Untied States. After the attack, nearly two-thirds of New Yorkers said that they would favor the internment of Arab-Americans. The President of the United States took it upon himself to carry the banner for these Americans, to be active and aggressive in finding the folks who attacked us and protecting Americans from attacks like this in the future. Through all of this, one thing did not change. The American constitution did not change. The protections, which it guarantees to each and every one of us did not shrink or grow or reform in any way.
In Michigan, District Court Judge Taylor has determined that the NSA wiretapping program is both unconstitutional and repugnant to the Foreign Intelligence and Surveillance Act. This case ACLU v. NSA has the potential to be a landmark case and bring the separation of powers back to our American system of governance. Bowers has more about the specific orders.
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8/11/2006
It is done
by Neal on 12:01 am.
As I post this, David Dawson is being executed by the State of Montana. It has been eye opening the last week or so to read the stories of his victims, the family he destroyed, not to mention the players in the case that decided his fate which finally concluded tonight. My thoughts are with the Rodstein family tonight as well as those connected to this horrible, despicable person.
My position on the death penalty has not changed, however. As I posted a few months ago, what Dawson did was beyond excuse.  But do all of us Montanans want to sink to his level? Tonight we have.
As a final thought, here’s a quote from Sen. Robert F. Kennedy the night the Reverend Martin Luther King, Jr. was slain on April 4, 1968:
We can move in that direction as a country, in greater polarization… filled with hatred toward one another. Or we can make an effort, as Martin Luther King did, to understand and to comprehend, and replace that violence, that stain of bloodshed that has spread across our land, with an effort to understand, compassion and love.
UPDATE: Governor Schweitzer Statement on Execution of David Dawson
Governor Brian Schweitzer today issued the following statement on the execution of David Dawson:
“Today I pray for the Rodstein family, may they find peace and closure. May all those affected by the tragedy 20 years ago and its consequences also find that closure.
“I commend Warden Mike Mahoney and the staff at the Department of Corrections for their professionalism throughout this process.
“I have reviewed the facts of this case and believe there was no question of guilt. David Dawson committed a horrible crime and was held accountable for that action.
“I fulfilled my oath to the people of Montana to uphold the Constitution and the laws of this great state.â€
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8/10/2006
Sentenced to Death
by V on 12:40 pm.
The Gazette reports today that the convicted inmate David Dawson has declined a request to meet with Governor Schweitzer. The governor has some thoughtful comments on meeting with a man sentenced to death justly, in his view. One of the interesting questions is about a possible conflict between Schweitzer’s favor for the death penalty in some limited circumstances and his personal religious convictions. I am against the death penalty for a handful of reasons, and, on reflection, I think that many of my reasons were shaped at a time when I was a faithful Catholic, as Governor Schweitzer is today. I have a lot of disjointed thoughts about these subjects, and so this post tends to meander. More after the break.
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8/7/2006
Another quality candidate
by Neal on 12:40 pm.
Tom Opre, Republican candidate for House District 91 against Rep. Kevin Furey, is currently in Missoula County lock up on misdemeanor charge of family or partner abuse. According to the Missoula County website, he was booked last night.
Another Republican, Rep. Rick Maedje (Fortine), was arrested on the same charge in May.
There’s nothing on the wire about the Opre arrest but I’ll update when there is.
UPDATE: Looks like Opre was released this afternoon. No bond was listed so we’ll see what happens next.
UPDATE #2: Here’s the article from the Missoulian. Opre’s lawyer thinks the wife got “overly agitated” when she called the police. Oh, by the way, she had bruises on her arms and the article claims she has photos from previous injuries. I hate this kind of stuff.
| Comments (15) | Permanent Link | Categories: '06, biographical, dickhead, law, montana, republicans, sex and abstinence |
8/2/2006
Saddam Insane
by V on 4:29 pm.
Saddam is absent at the end of his trial. His thoughts seem to be on his own legacy as his fate seals around him. The Hussein trial raises a number of interesting historical and practical questions about the use of international tribunals and courts. I will recommend my friend Peter’s thesis again and take up some of the questions raised in the last post on this topic. This is a fairly long post and I won’t bore everyone with it. More after the break. Gist = Justice is complicated.
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7/31/2006
Equality: The Train That Cannot Be Stopped
by V on 12:25 pm.
The Arkansas Supreme Court overturned a state regulation disallowing homosexuals from becoming foster parents. It also held that the sexual orientation of the parent has no negative effect on the child’s welfare. This is somewhat old-hat, since many other courts have already arrived at this same conclusion, but it is important to document the victories, be they great or small, in these trying times.
I spend a lot of time writing about this subject, and I realized that the tenor is rarely positive. It’s important to remember that the same-sex civil rights movement is moving a lot faster than some others have–partially because it only takes one gay friend to realize that homosexuality is no more a threat to normal life* than were condoms or interracial coupling, etc.. In this way, the same-sex struggle for a majority might be a matter of time alone (and the death of a confused generation), without the sort of deep-rooted racial purity overtones that similar struggles have had. To me, that is quite hopeful.
*Language of the realizer. I originally had “straight life,” but I found that lacking, considering that the folks who are anti-equality mostly think that homosexuality is a threat to all life.
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7/26/2006
State of Our Nation, Part Deux
by V on 11:22 am.
Warning: This post includes unmarked snark.
I am going to sympathize with President Bush–no kissing required–over the issue of totalitarian rule of these United States. For shame, but it is true. Walking among some of my favorite DC spots, I can understand where President Bush would consider himself the king of the United States of America. Bear in mind that sympathy is not the same as agreement, and we are off…
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7/10/2006
WaPo with Some Good Advice
by V on 11:39 am.
So the task for Americans who support same-sex marriage, as we do, has not changed. It is to convince a majority that couples who love each ought to have the state’s recognition for lifelong relationships — and that such recognition poses no threat to heterosexual marriage. Once that happens, it won’t matter what the New York court thinks. And until that happens, no victory there, or in any state court, will be safe.
This comes at the end of an editorial that talks about the NY Marriage decision as the “Gettysburg for Gay Marriage.” Asymmetry of the metaphor aside , this is good advice for most advocates, and the only counter-argument that I would make is that a government has to make good on its promises. That is, when a government promises equality to all, it cannot create second class citizen groups out of the other side of its mouth. This is the job of the courts in these cases. They are meant to explore whether substantive rights are violated by treating same-sex oriented folks differently and unequally.
| Comments (7) | Permanent Link | Categories: Front Page, law, same-sex marriage |
7/7/2006
The Kennedy Court
by V on 11:15 am.
The NYT has an editorial today, which describes this term of the Supreme Court as controlled by Justice Kennedy hopscotching from bloc to bloc. On whole, this article is worth a read. The percentages are disturbing, but not unforseen.
The two new justices, Chief Justice Roberts and Justice Samuel Alito, produced little of the term’s excitement since both men quickly fell into predictably conservative voting patterns. Justice Alito voted with Clarence Thomas 84 percent of the time in non-unanimous decisions, and with John Paul Stevens, a leader of the court’s liberal wing, just 13 percent. Chief Justice Roberts agreed with Antonin Scalia fully 88 percent of the time, and least often with Justice Stevens.
The editorial also foreshadows the coming conflict over the court, calling its “current centrism fragile.” If Democrats take back the Senate, as I hope that they do, then they have to be willing to fight on this issue. The Senate has a particularly important role in scrutinizing Justices put forth by the President, precisely because they are the final check of the people on the judicial branch.
The most important thing about the law for the people is that it remains relatively predictable, and ultimately reasonable. Everybody knows the quip that ignorance of the law is no excuse. Generally, this is a good rule, but it can only be a rule if the law is relatively constant. Mostly, this is where all of the bother about judicial restraint comes from. Bearing strictly in mind that restraint is not a value in itself nor a justification per se, it is valuable in many if not most circumstances. On the other hand, a lot of precedent is bad–either formed and followed based on the outcome of an awkward case or based on circumstances that just don’t exist anymore–and it is the job of the judiciary to purge its own bad rules.
All in all, this term has been a predictable one. The new conservatives fell right in line with Scalia and Thomas, and Kennedy carried the court towards an independent centrism. Let’s hope the next few years bring the same predictability, with only few addenda, to the American people.
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7/6/2006
Hazah!
by V on 1:07 pm.
It looks like you cannot break all of the rules, all of the time and then try to make up new rules when you get caught breaking the old ones.
The Texas Republican Party must keep Tom DeLay’s name on the November ballot, even though the former congressman has dropped his re-election bid, a federal judge ruled Thursday.
I am going to go ahead and chalk this one up as a victory for justice.
| Comments (17) | Permanent Link | Categories: '06, Front Page, corrupt, elections, law, republicans |
Scalia at a Loss
by V on 12:11 pm.
Slate has a good article, albeit a little Scalia/evil-doting, on Scalia’s decline into irrelevance. I have had often wondered to myself what Justice Scalia would do if his side started winning battles. Conner Clarke makes the observation that Scalia’s brilliance may well spring from his ineptitude as a consensus building jurist.
2004 also saw the release of a book, Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice—a fawning collection of opinions, compiled by Kevin A. Ring
…
His writing style is best described as equal parts anger, confidence, and pageantry. Scalia has a taste for garish analogies and offbeat allusions—often very funny ones—and he speaks in no uncertain terms. He is highly accessible and tries not to get bogged down in abstruse legal jargon. But most of all, Scalia’s opinions read like they’re about to catch fire for pure outrage. He does not, in short, write like a happy man.
But there was a lot less of his trademark style this year. And there’s a very simple reason to expect to see less of Scalia’s verbal pyrotechnics in the future: Scalia’s angry wit depends on having someone to criticize, and criticism tends to travel by way of the dissent. That’s why Ring’s book has the title it does, instead of, say, Scalia Delivers or Scalia Convinces Everyone That He’s Right.
Some of this article is solid gold, but it makes a fair point, too. A lot of the Scalia-hype surrounds his bitterly hostile and constant frustration. It adds just the spice that mundane legal opinions lack. Moreover, it offers folks looking to overturn rulings they disagree with for whatever reason cause to personally attack other justices. Put short, what is Nino without the “N,” capitalized by unhinged rage. Another babe in the wild, if you ask in Spanish instead of Italian.
Update: I hope the change up top helps clarify the point that my critics are missing. It might help a lot to read the blockquote or follow the link, though.
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6/29/2006
Hilarious…No Wait…Yeah, I was right the first time. Hilarious.
by V on 11:31 am.
Publius over at Legal Fiction delivers a gold star review of the Texas redistricting case. I probably won’t post on this one, so go read this.
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6/24/2006
Sometimes Legal Chilling is Good
by V on 12:34 pm.
A new decision designed to stop employers from retaliating against employees who allege discrimination in the work place just rolled down the pike.
In the case of Burlington Northern & Santa Fe Railway Co. v. White, the court affirmed a jury award for a female forklift operator who had been reassigned to menial job duties and then suspended without pay after complaining of sexual harassment by her supervisor. The Court concluded that employers could be held liable for retaliation even if the harm to the employee does not occur at the workplace or directly impact the terms and conditions of the employee’s employment.
This case is a 9-0 decision with all Justices joining in the decision, save Justice Alito who concurs from far right field.
The news article I linked semi-warns of the chill to employers, which almost automatically drums up images in my mind of the protection of speech and the First. Important to note, however, that this circumstance is different. The dangers of the chilling effect to speech, which is protected only in circumstances in the thin penumbra of fair speech is not the same as chilling actions that have great liklihood to cause harm.
For example, it makes sense to chill businesses in near faulty advertising, because the public is utterly reliant on businesses for information on products. Moreover, it certainly makes sense to chill employers from considering retaliation or even actions that smack of retaliation in the case of workers bringing concerns forward. This protection bolsters workers’ rights by insuring the use of the right as well as the simple protection on paper.
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