Pack, Impeach or Cry?

July 26, 2007

With a month to reflect on the Supreme Court term most recently concluded, articles are coming out about the Court’s rightward movement and what liberals can do about it. I think Emily Brazelton summarizes things efficiently here.

The legal left is taking the summer to think. In the next few weeks, the American Constitution Society and the YearlyKos Convention will host panels on the Supreme Court’s future and what the left can do about it. The short answer, of course, is cry. And then try to win the next election.

But is there something else we can do in the here and now to avoid such bad terms as the one gone past? Lest we forget,

In one full term, this Court has severely curbed local efforts to promote racial diversity in schools, upheld a right-wing ban on a necessary medical procedure for women, curbed students’ free speech rights, crippled Congress’ ability to keep corporate money out of political advertising, prevented taxpayers from challenging the constitutionality of Bush’s faith-based initiatives, made it almost impossible for women to prevail on claims of longterm sex discrimination . . . and they’re just getting started.

In Thursday’s New York Times, author Jean Edward Smith actually suggested the possibility of the next Congress packing the Supreme Court by increasing the number of justices. Following a discussion of the history of such measures, Smith concluded:

If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.

That certainly sounds like a drastic measure that would be quite difficult to pull off politically, and nothing the cautious Democratic leadership would be willing to pursue any time soon from the looks of things.

Roberts and Bush

Is there some lesser option? The trouble is that the system is designed to protect judicial independence, which leaves us all largely at the mercy of bad justices, barring impeachable offenses. Congress does seem to be looking for alternatives, though, as Politico reported yesterday.

Sen. Arlen Specter (R-Pa.) plans to review the Senate testimony of U.S. Supreme Court Chief Justice John Roberts and Justice Samuel A. Alito to determine if their reversal of several long-standing opinions conflicts with promises they made to senators to win confirmation.

Specter, who championed their confirmation, said Tuesday he will personally re-examine the testimony to see if their actions in court match what they told the Senate.

“There are things he has said, and I want to see how well he has complied with it,” Specter said, singling out Roberts.

The Specter inquiry poses a potential political problem for the GOP and future nominees because Democrats are increasingly complaining that the Supreme Court moved quicker and more dramatically than advertised to overturn or chip away at prior decisions.

Making decisions contrary to testimony at confirmation hearings is not going to rise to the level of impeachment either, and the Specter probe is aimed at informing Congress on possible changes to its confirmation process (I thought the largely ceremonial hearings were a sham at the time, but that’s another topic). Perhaps this sort of thing will shame Alito and Roberts into being more moderate, but then again, we are dealing with two justices who willfully misled the Senate in hearings, so maybe they are impervious to being shamed.

If there’s any other course of action that might keep the Court from eroding individual rights so brazenly the next term, I would be interested to hear it. For now, crying and trying to win elections looks like the only viable option — along making sure 87-year-old John Paul Stevens has good enough medical care to make it through the next 18 months.



July 5, 2007

Don’t you wish you could just go down to the bank and get them to issue a cashier’s check for that sum?

Libby’s friends and supporters have raised more than $5 million to cover legal fees and were continuing to raise money but Libby paid the fine himself, according to someone close to the fund who spoke on condition of anonymity because details of the account are private. The cashiers check filed with the court was issued in Libby’s name.

Meanwhile, Tony Snow called “chutzpah” on the Clintons for criticizing the commutation, predictably bringing up Marc Rich, just like the cranks who write in to the Boston Globe (third item). The fun response: do you remember that Rich’s lawyer was none other than Scooter Libby? The serious response: Clinton’s act was payback for receiving campaign cash from Rich’s wife, which is bad, but Bush’s act shielded his own White House from the legal consequences of its law-breaking, which is shameful.

And while I’m at the Globe, here’s the Wasserman cartoon from July 4.

Wasserman 7.4.07

Unlike Either Fighter, Video Taken Down

May 8, 2007

By reading MJD’s post at Deadspin on Sunday, I learned that the De La Hoya-Mayweather fight was on YouTube and so I rewatched some of it on account of not having seen some of it that well the first time around. Now comes the inevitable news that HBO had YouTube pull the video as of 4pm Monday due to a copyright complaint. This is why MJD, in providing the link to the bout, wrote, “I suggest you enjoy it as soon as you possibly can.”

I’m not here to bash copyright law, though it would be nice if boxing could get away from the pay-per-view model and have title fights on network TV or basic cable (I know, not going to happen). What strikes me about this episode and various other recent events is that it was predictable this would get on YouTube, be watched by lots of people, then be removed. It’s an easy way to avoid paying the $55 for the fight if you’re willing to wait until someone posts it the next day.

I can’t help but think that copyright holders will get wise to this recurrent pattern and crack down on the YouTubes of the world more effectively in the future. We might remember this as the golden age of free web video, much like Napster circa 2000.

Also see the Bill Simmons rant about the “business arrangement” between the boxers and hilarious recap of Floyd Mayweather Sr’s interview.

Bill Donohue Wants More Catholics on the Court

April 26, 2007

That darling of the liberal blogosphere Bill Donohue, head of the Catholic League, is at it again, criticizing those who dare wonder about the all-Catholic five-justice majority in last week’s Supreme Court decision on partial birth abortion (the four dissenting justices were all non-Catholics). Here’s Donohue’s view on religion’s role in the legal system.

The pushback from conservative Catholics was immediate, even pre-emptive. Bill Donohue, president of the Catholic League for Religious and Civil Rights, declared, “We need more, not fewer, Catholics on the Supreme Court.”

I still subscribe to the quaint idea that judges should uphold the laws and the Constitution, rather than the tenets of any particular religious faith.

Things that Apparently Aren’t Torture

April 10, 2007

Judge Marcia Cooke of the federal district court in Miami rejected on Monday the claims of Jose Padilla’s lawyers that he was unfit to stand trial because of the torture he had been subjected to while in US government detention. This will allow Padilla’s trial to go forward next week.

It’s worth looking closely at what Padilla has endured while in government custody. In December, the New York Times reported on a video that was released of Padilla’s trip to the dentist:

Several guards in camouflage and riot gear approached cell No. 103. They unlocked a rectangular panel at the bottom of the door and Mr. Padilla’s bare feet slid through, eerily disembodied. As one guard held down a foot with his black boot, the others shackled Mr. Padilla’s legs. Next, his hands emerged through another hole to be manacled.

Wordlessly, the guards, pushing into the cell, chained Mr. Padilla’s cuffed hands to a metal belt. Briefly, his expressionless eyes met the camera before he lowered his head submissively in expectation of what came next: noise-blocking headphones over his ears and blacked-out goggles over his eyes. Then the guards, whose faces were hidden behind plastic visors, marched their masked, clanking prisoner down the hall to his root canal.

The videotape of that trip to the dentist, which was recently released to Mr. Padilla’s lawyers and viewed by The New York Times, offers the first concrete glimpse inside the secretive military incarceration of an American citizen whose detention without charges became a test case of President Bush’s powers in the fight against terror. Still frames from the videotape were posted in Mr. Padilla’s electronic court file late Friday.

To Mr. Padilla’s lawyers, the pictures capture the dehumanization of their client during his military detention from mid-2002 until [2006], when the government changed his status from enemy combatant to criminal defendant and transferred him to the federal detention center in Miami.

In case you don’t have Times Select, I’ll skip ahead to the most interesting bits about Padilla’s interactions with his lawyer.

Mr. do Campo said that Mr. Padilla was not incommunicative, and that he expressed curiosity about what was going on in the world, liked to talk about sports and demonstrated particularly keen interest in the Chicago Bears.

But the defense lawyers’ questions often echo the questions interrogators have asked Mr. Padilla, and when that happens, he gets jumpy and shuts down, the lawyers said.

I wonder if the lawyer was allowed to tell him the Bears lost the Super Bowl?

Padilla goggles

Anyway, the actual trial should be under way next week, barring some other delay, and I suspect we’ll be hearing a lot more about the Padilla case then. With today’s ruling, though, it sounds like the conditions of Padilla’s confinement will be set aside during the next court proceedings.