Saturday, May 30, 2009

Injecting sanity into the torture/prisoners debate - waterboarding, anyone?

Okay, that was sort of/completely a joke. I am not actually advocating we waterboard Congressional leaders, members of the media, or advocates regarding how ridiculous these discussions have become. At least I won't suggest such measures publicly. Sorry...some more torture humor. But there are a few important points that I think these discussions are just flat-out missing overall. Some folks are raising them, but in general, we don't hear enough about them.

1. Let's drop the moral issue for a second. Not to say that's not important/the most important issue at stake here, but I wonder if we even need to get that far. The question that might make all this debate pointless torture useful? Seriously...can we try to really get a handle on this question? I realize we're not going to get a definitive answer, but I do think we can get a consensus view about how reliable torture actually is. Remember, the whole point is for intelligence, not to break somebody. This is why back-engineering SERE for interrogation seems to be doesn't really seem to serve any intelligence purposes.

Friday, May 29, 2009

Bush v. Gore Rears Its Head (Part IV): A New Check on the Court to Defend the Rule of Law

Shahid's most recent piece on Judge Sotomayor's nomination...

Parts I (The Politicization of Voting Rights) and II (The Triumph of Politics Over Law) of this series demonstrated how the Supreme Court, under the leadership of Chief Justice John Roberts, has usurped what once passed for law in pursuit of a conservative political agenda. As noted by Si Lazarus, the Court's conservative majority has "systematically contravened statutory goals, misconstrued statutory terms, twisted or ignored congressional intent, and shown disrespect for democratic decision making by legislatures at all levels..."

Part III (Souter's Resignation as an Invitation to Balance a Politicized Court) examined President Obama's first nomination in the context of this historical politicization and suggested potential nominees whose vision and assertiveness could help counter the Court's conservative majority.

Rather than select a visionary legal academic willing & able to champion a more fair jurisprudence, the President chose instead this week to replace Justice Souter with a moderate nominee drawn from the ranks of the nation's appellate judiciary. While Judge Sotomayor will be a groundbreaking nominee and a thoughtful Justice, she will be unable to balance the Court. To be fair, no single appointment possibly could suffice, given the magnitude of the Court's slide to the right over the past generation.

This article examines the process of recent appointments to the Court in the context of the Court's politicized jurisprudence. It explores various ethical violations committed by several sitting conservative Justices: Kennedy, Scalia and Thomas contrived the Court's future nine years ago; Roberts and Scalia have decided cases despite direct conflicts of interest; and Roberts and Alito committed structural violations by intentionally misleading the Senate when seeking confirmation. These examples of inter-branch collusion with Executive officials violate not only the separation of powers doctrine, but also antitrust principles routinely applied to economic markets.

Concluding its examination, this article challenges the legitimacy of the Court's current composition and suggests how to restore the institution as a guardian of neutral legal principles, immune from politicization or violations of its process. Even if unwilling to leverage the unique coincidence of Souter's retirement and Senator Specter's defection by appointing an assertive legal visionary to the Court, the Administration and the Senate should introduce a new structural check on the Court to prevent its future politicization. Specifically, Congress should enact legislation to set 18-year terms for service in the Article III Judiciary. This approach would prevent the Court from being co-opted, ensure regularity in appointments, and preserve the Justices' insulation from political pressures.

Path Dependency...

Souter's replacement will be, in fact, the first legitimate appointment to the Court since Bush v. Gore usurped the judicial appointments process nine years ago. Yale Law School Professor Bruce Ackerman observed at the time that "the Court pack[ed] itself" by aggrandizing to its Justices the power essentially to choose their own successors -- through the intermediary of the President five of them selected. As the Bush Administration first took office, Ackerman noted concern that "[t]he Supreme Court cannot be permitted to arrange for its own succession." Bush v. Gore was:

not the first time in history that the Supreme Court... made a decision that called its fundamental legitimacy into question. But on past occasions, the normal operation of the system provided a remedy... [T]his time, the president... [wields the appointment power] in the White House as a result of an unprincipled judicial decision... [H]e will be acting as an agent of the narrow right-wing majority that secured his victory....

President Bush's appointments of Roberts and Alito in 2005 reflect precisely this result: the conservative majority in 2000 effectively contrived the Court's future composition. This path dependency not only represents a severe violation of the separation of powers doctrine, but one that remains ongoing, reiterated with every passing case in which today's Justices wield the legitimacy of their forbears to eviscerate their legacy.

...and Conservative Judicial Aggrandizement

The first article in this series examined the Court's "politicization of voting rights." Unfortunately, its conservative political effort to undermine the right to vote continues: this spring, Northwest Austin Municipal Utility District v. Holder invited the Court to overturn Section 5 of the Voting Rights Act ("VRA"). The VRA was a cornerstone of the civil rights movement, first enacted in 1965 and reauthorized four separate times, mostly recently by a 98-0 Senate vote only three years ago. Section 5 was the provision that "gave the legislation teeth," described by one constitutional historian as "one of the civil rights movement's crowning legislative accomplishments."

Barring a judicial switch of the sort that in 1937 enabled the New Deal, or Souter's surprise vote that in 1992 saved reproductive rights from conservative repeal, the Court most likely will strike down Section 5, denying Congress the power to require particular states to pre-clear changes to their voting rights laws with Justice Department officials.

For the first time since the Johnson Administration, specific jurisdictions known to have historically discriminated against racial minorities could be unconstrained from doing so again. Without a pre-emptive federal check, individual plaintiffs will be able to mount only after-the-fact individual challenges when states violate their voting rights -- without either resources to do so, or incentives, since their litigation will not impact elections already skewed by discriminatory exclusion.

Ultimately, the invalidation of Section 5 would scale back the north's victory in the Civil War by granting to states the power to once again deny their citizens rights ensured by the federal Constitution. We fought a military struggle 150 years ago to establish the principle of federal supremacy. It took us another 100 years to effectively ensure voting rights in the south.

Now, 40 years later, the law that effectively extended voting rights to minorities in the South may be declared unconstitutional, for no reason beyond exceeding limits on congressional power invented by Justice Scalia and his allies on the Court. Smelling the right-wing writing on the proverbial wall, Justice Souter was reportedly "visibly angry" throughout oral argument, "disappointed that he might be leaving the Court with a dissent in this case as being his parting gesture."

The Failure of Traditional Checks on the Court

Traditionally, the only checks on the Court have been the President's power to nominate Justices, and the Senate's equally important power to confirm or reject nominees. However, both sets of checks have failed in recent years.

The appointment power was first usurped in 2000 when the Justices chose the President who, in turn, appointed their chosen successors. As Ackerman predicted, the results of this circularity are apparent: the nation's current Chief Justice was the personal protege of his predecessor, whose vote decided the outcome of the 2000 presidential election. As Linda Greenhouse of The New York Times noted, "A 25-year relationship as mentor and protege ended only with Rehnquist's death days before his former law clerk was named to succeed him."

Meanwhile, the Senate's confirmation power has eroded. First, the Senate itself has repeatedly resigned its independence. Senators of both major parties, including then-Senator Obama, have framed their confirmation votes as obligatory to defer to the President's appointment preferences. This institutional capitulation resembles Congress authorizing previously illegal Executive acts, as it did when passing FISA in 2008 or the Military Commissions Act in 2006.

Nomination Hearings as "Kabuki Theater"

In addition, judicial nominees have learned from the example of Robert Bork, whose 1987 nomination to the Court was rejected after Senate hearings revealed his radical philosophy. Today, nominees actively conceal their judicial philosophies from the Senate and the American public. And they do so with disturbing success. Try as they might to investigate nominees, Senators (for whom personal wealth is a greater qualification than legal acumen) lack the training, skills or experience necessary to engage with judges or scholars inclined to mask their thinking. Ultimately, the failure of the confirmation process undermines democratic transparency.

These concerns are familiar to those who watched the Roberts and Alito confirmation hearings before the Senate Judiciary Committee. The process -- described by Vice President Joe Biden as a "kabuki dance" -- garnered tremendous attention, but ultimately shed little light on the Justices' prospective jurisprudence. Seth Rosenthal observes that while "the Court has begun charting a new course... no one could have confidently offered any such prediction based on what little meaningful information senators obtained during the... confirmation hearings" of Roberts and Alito. Senator Kennedy (D-MA) was more blunt:

When pressed on issues such as civil rights and executive power, Roberts and Alito responded with earnest assurances that they would not bring an ideological agenda to the bench... After confirmation, we saw an entirely different Roberts and Alito -- both partisans ready and willing to tilt the court away from the mainstream. They voted together in 91 percent of all cases and 88 percent of non-unanimous cases -- more than any other two justices.

While claiming to serve as "neutral umpires," Roberts and Alito instead conspired with the executive branch (and quite likely each other) to hide their views from the Senate and the American people. Once on the bench, they pursued a political agenda, while still masking their aims in the "judicial obfuscation" decried even by their ally, Justice Scalia. Two years after Roberts & Alito began their judicial crusade, Senator Schumer (D-NY) suggested simply that Congress had been "duped."

The system of constitutional checks & balances can not function when nominees lie to secure Senate confirmation. Indeed, deliberately impeding the Senate's ability to play its constitutional function is a structural violation of judicial ethics far more insidious than deciding cases presenting judicial conflicts of interest -- a more traditional sort of violation also committed by some Justices.

Judicial Conflicts of Interest

Roberts and Scalia, in particular, have decided cases of enormous significance, in spite of their personal conflicts of interests.

When interviewing with the Bush Administration in 2005 for his current position, Roberts was a judge on the D.C. Circuit, sitting in judgment over the Administration in the most significant detainee rights case to have emerged at that point. The case was Hamdan v. Rumsfeld, which challenged the military tribunals created to provide a veneer of justice for Guantanamo detainees. Roberts joined a poorly reasoned appellate opinion legalizing the Bush tribunals that the Supreme Court reversed the following year.

In fairness, Congress ultimately authorized the Bush Administration's military commissions in 2006, and the Obama Administration has shockingly proposed in 2009 to reinstate them, effectively reversing the Court in Hamdan and ratifying the most ignorant elements of the War on Terror. But the Military Commissions Act and President Obama's frustrating reversals of his campaign promises reveal more about Washington's co-optation by "national security" politics than the legitimacy of the tribunals themselves. And neither excuses the intervention of a lower court judge deciding a case as an agent of the President in order to secure his nomination for higher office.

Even earlier, Scalia cast a vote -- while privately vacationing with Vice President Cheney -- to maintain the secrecy of Cheney's meetings with energy executives. One of the most significant court rulings involving the Bush Administration, the decision ultimately laid the foundation for the Enron meltdown and the disastrous invasion of Iraq. Scalia's attempts to explain his decision not to refuse himself failed even to recognize his obvious ethical lapse, let alone mount a coherent defense of it.

These examples of judicial collaboration with executive officials further violated the constitutional separation of powers doctrine well after Bush v. Gore. The charades of Roberts and Alito before the Senate Judiciary Committee, and the conflicts of interest ignored by Roberts and Scalia, offer only more evidence of the mounting crisis in judicial ethics.

The appointment of two radical Justices in 2005 skewed the Supreme Court, transforming it into a source of conservative political activism. But even overlooking the bias pervading the Court's substantive decisions, the Court's current composition is illegitimate from a strictly process standpoint.

Antitrust Principles...

Antitrust principles explain why executive-judicial collusion threatens society and our constitutional separation of powers among the branches of government.

Section One of the Sherman Antitrust Act prohibits agreements among horizontal competitors, such as businesses that sell to the same market. Whether they fix a certain price or divide sales territory, horizontal agreements undermine the competitive process and ultimately harm consumers.

In much the same way that antitrust law aims to protect markets, one theory of constitutional interpretation views the Constitution, taken as a whole, as a textual mandate to protect political processes from co-optation. And with good reason: while historically applied only in economic markets, principles of competition law are even more necessary in political markets.

First, the potential co-optation of political competition holds far greater and more expansive consequences than the failure of economic markets. When any particular economic market is co-opted by colluding dominant actors, consumers suffer by paying higher prices or receiving sub-par goods or services. But when political markets are co-opted, literally every facet of public life -- from decisions about which economic markets to regulate, to whether minorities get to vote -- is placed at risk.

Moreover, because there we have only one federal government, the political process is more centralized than the numerous markets for goods & services. As a result, it is more vulnerable than economic markets to co-optation and manipulation, whether through agreements among major parties to impede participation by minor parties, or collusion between independent branches of the federal government.

... vs. Executive-Judicial Collusion

The Executive and Judiciary were designed to be institutional competitors within the system of divided powers articulated by Madison in The Federalist No. 10. This founding text is a seminal description of the Republic's constitutional structure, in which Madison writes of pitting factions against one another to prevent any single one from seizing control and imposing a tyranny of the majority.

At its most ambitious, No. 10 represents a forceful call for a multi-party system, requiring the expansion of the political process to include minor parties able to check collusive behavior by the major parties. (The false consensus that national security should trump constitutional protections for liberty and privacy exemplifies such collusion today.)

At a minimum, Madison argued for sharp separation between -- indeed, adversarial contention among -- the Judiciary and the other branches. On the one hand, the executive and legislature coordinate routinely; the President can even propose legislation for Congress to enact. But, as Alexander Hamilton noted in The Federalist No. 78, "The complete independence of the courts of justice is peculiarly essential" to our constitutional fabric.

In our Founders' vision of democracy in America, Congress was the primary branch. It is the subject of the Constitution's first substantive section, largely because it is the only branch intended to represent We the People. Yet Congress is being taken to the cleaners, not only by judicial nominees who have intentionally "duped" it, but also by a self-aggrandizing Court willing to blithely strike down seminal legislative acts on which tens of millions of Americans have relied for generations (like the Voting Rights Act), as well as new 21st century reforms sought by an emerging "progressive majority" in Congress. For the Court to collude with the Executive deeply threatens our Republic.

Yet the Executive and Judiciary did precisely this at several recent points: (1) in Bush v. Gore; (2) when Roberts was nominated to the Court during the Hamdan appeal; (3) when Scalia cavorted with Cheney while blocking efforts to expose his Energy Task Force; and when (4) Roberts and (5) Alito each coordinated with White House officials to hide their judicial philosophies and pro-Executive bias from the Senate and the American people during their 2005 confirmation hearings.

The Switch in Time: A History of Post-Appointment Checks

To restore the Supreme Court as an independent guardian of neutral legal principles, the political branches must impose a new check on the Court. The current checks -- nomination & confirmation -- operate only when new Justices join the Court. As a result, the country has no way to reign in a Court run amok.

FDR faced this problem when the Lochner Court impeded the New Deal by declaring unconstitutional any legislation carrying economic consequences. Frustrated by the conservative Court's self-aggrandizement and invention of laissez faire as a constitutional principle, FDR politically challenged the Court in 1937 with his "infamous" Court packing plan.

His challenge to the Court was the political low-point of FDR's historic Administration. But while unpopular, it proved vitally necessary to create the federal government as we now know it. Without FDR's effort to reign in the Court, its politicized jurisprudence would have prevented federal efforts recover from the Great Depression. Had the Court's conservative activism been allowed to proceed, we today would have no federal agencies: no CDC, USAID, ATF, FAA, FCC, EPA, FEMA, NASA or any of the hundreds of other agencies that comprise Washington's alphabet soup. It is to this entire apparatus, dating from the 1930s, to which the legal right-wing ultimately objects.

The history of post-appointment checks on the Court thus appears mixed: the only President to propose one lost his battle, but won the war.

Can Congress Check the Court?

But in fact, post-appointment checks on the Court are already accepted: Congress' power to enact and construct legislation gives it a de facto veto over those Court decisions that construe statutes. The 1982 re-authorization of the Voting Rights Act offers a timely example: 30 years before this year's challenge to its constitutionality, Congress revised the statute to reverse the Court's decision in City of Boerne v. Flores (which attempted to import a judicially-invented doctrine requiring plaintiffs to prove not only the impact of challenged discriminatory policies, but also their discriminatory intent).

On the other hand, this congressional "check" on the Court is neither effective nor comprehensive. First, Congress can not influence constitutional questions because the Court holds for itself the last word on constitutional interpretation. For instance, Congress was able in 1982 to amend the VRA to remove the Court's intent standard, but that standard continues to limit challenges under the 14th Amendment's Equal Protection Clause.

Moreover, even Congress' check on statutory construction is limited. Constrained by the collective action dilemma inherent in a body of over 500 members, Congress typically takes years to enact a single piece of substantive legislation, whereas the Court evaluates thousands of cases a year and decides roughly 100 each Term.

To balance the Court, then, a new check is required.

What Changed?

The risk of politicizing the Court has historically undermined any suggestion along these lines. But a neutral process to prevent judicial politicization would satisfy these objections. Moreover, the particular circumstances of our age render these concerns less apt than in the past.

First, today's public seems unfazed by executive aggrandizement. The "imperial presidency" crafted by Bush & Cheney represented the zenith of executive fiat, yet executive power remains undiminished even after their electoral repudiation. Even abuses as fundamental as disregarding habeas corpus, a bedrock principle dating to the 13th century, have been tolerated. Challenging the Court is hardly daring in comparison.

More fundamentally, the Court is already politicized: an article recently published in Britain lambasted the Supreme Court for "providing immunity to... corporate law breakers," excoriating "the zealots... led principally by Justice Scalia."

Rather than threaten its independence, efforts to balance the Court could thus help restore it -- especially if carefully structured to ensure substantive neutrality. Efforts to balance the Court need not replicate FDR's ham-handed institutional intimidation.

Comparing the Alternatives

Several proposed solutions would supplement nomination & confirmation with a formal post-appointment check on the Court. The most crude -- FDR's -- entails a legislative statute expanding the number of seats on the Court. A more sophisticated approach requires mandatory retirement for Justices, perhaps at the age of 70. Finer still is a regular schedule of retirements among Justices with staggered terms of service, so that each President appoints a new Justice every two years.

While forcing Justices off the bench may seem alien, there is no positive basis for lifetime judicial service. Nor, for that matter, is it constitutionally required. The Founders appropriately wanted judges to be free from political influence, but they could not possibly have contemplated Justices remaining on the bench for several decades, if only because life expectancies have expanded so dramatically since then. In any event, the goal of insulting judges from political influence can be achieved through means less extreme than life tenure.

Either a mandatory retirement age or fixed judicial terms would be immune to politicization. Both measures are substantively neutral: neither could be abused in order to subvert the Court's independence or politicize its jurisprudence.

Between a mandatory retirement age and fixed terms, the latter is the better option. Mandatory retirement seems to ensure capable deliberation by preventing Justices from serving beyond their intellectual prime or past the time when they lose touch with the country's changes. However, the incentives of a mandatory retirement regime would encourage Presidents to appoint younger and younger Justices in order to maximize the nominees' time and their (as well as the Presidents' own) influence on the bench.

In contrast, staggered terms would achieve the same goals (adding a post-appointment check without risking political co-optation), while avoiding the discouraging incentives of a mandatory retirement age. In addition, 18-year terms for Supreme Court Justices would ensure that Justices enjoy an opportunity build institutional memory and expertise, yet -- unlike the Justice who in 1986 claimed to have never met a homosexual while deciding to demean LGBT rights even as he relied on the labor of a gay clerk -- still remain attuned to the social realities of the society they often control.

A Moderate Path Forward

The opportunity to appoint a new Justice is one the nation welcomes with the eagerness of an ape in the desert approaching a mirage. But the relief offered by a single appointment is equally ephemeral.

Unless the President and Congress balance the Court, it will continue to impose the conservative will of five unelected judicial activists on the rest of the country. No result could make a greater mockery of democracy -- with the possible exception of decisions denying voting rights (which today's Court has also turned into a cottage industry).

While most efforts to balance the Court could suffer from accusations of partisan bias, a legislative statute requiring fixed judicial terms would be substantively neutral, ensuring the independence of the institution and protecting it from being politicized yet again in the future.

(Originally published at HuffingtonPost, May 29, 2009,

Bush v. Gore Rears Its Head (Part III): Souter's Resignation as an Invitation to Balance a Politicized Court

Folks, we're glad to cross-post pieces from Spoon friend and colleague Shahid Buttar. Shahid posts over at The Huffington could say he's our Huffington Post correspondent! Anyway, Shahid, a civil rights lawyer, has written fantastic articles on seemingly every topic, from domestic politics, to foreign policy, to social movements, to legal analysis...and he even kicks rhymes in his spare time. From time to time, we'll drop his latest pieces on the blog. Here's the first installment, looking at the resignation of Justice Souter. Enjoy!

Bush v. Gore Rears Its Head (Part III): Souter's Resignation as an Invitation to Balance a Politicized Court (originally appeared on The Huffington Post, May 12, 2009,
by Shahid Buttar

Any vacancy on the Supreme Court, regardless of the historical context, presents questions of monumental significance. With life tenure and the power to interpret the Constitution as requiring whatever they collectively see fit, the Court's Justices are among our nation's most powerful figures.

But as observers examine potential nominees to replace the retiring Justice Souter, most have overlooked the extraordinary importance of this particular nomination. As President Obama's first opportunity to help shape the Court, his choice will determine whether the nation's jurisprudence will follow -- or instead be freed from -- the politicized grip of conservative judicial insurgents.

Parts I (The Politicization of Voting Rights) and II (The Triumph of Politics Over Law) of this series reviewed the Roberts Court's recent cases affecting reproductive rights, the right to equal education, workplace discrimination, environmental protection, punitive damages, fraud liability, access to justice, and more. Across all of these judicial doctrines, what once passed for law has been usurped by an institutionally aggressive Supreme Court wielding a political agenda.

In this context, the timing of Souter's resignation appears to reflect not only a brilliant man's pursuit of a simpler life, but also an invitation to the Obama Administration to boldly reshape the Court and restore its eroded legitimacy as a guardian of neutral legal principles. At a minimum, the Administration should choose a nominee who brings vision, depth, and assertiveness to the Court, "one who sets agendas, forges consensus and has a long-term vision about how to shape the law."

This article examines the timing and context of Souter's retirement, suggests criteria for his replacement, and identifies Stanford law professor Pamela Karlan and Michigan Governor Jennifer Granholm as the potential nominees most suited to this historical moment.

The Court's Politicized Decisions...

Numerous observers have noted that among President "Bush's lasting legacies will be the politici[z]ation of democratic institutions," including the Justice Department and the Supreme Court. Shortly before the 2008 election, The New York Times agreed that President "Bush...had a profound impact on the judiciary, reshaping it with a conservative tilt that could long outlast his administration."

Some who overlook conservative policy-making from the bench have characterized the Court as "balanced" under the leadership of Chief Judge Roberts. For instance, former Rehnquist clerk R. Ted Cruz suggests that "this is very much an almost exquisitely balanced court, with Justice Kennedy remaining at the fulcrum of most -- if not practically all -- close decisions."

But a split between competing blocks of nearly equal voting strength does not establish the Court's "balance," especially since those blocks are skewed to the right. Reacting to the mid-20th century jurisprudence that expanded individual rights & liberties, Presidents Nixon and Reagan each shifted the Court sharply, transforming the institution over the past 50 years.

Today, four Justices practice a moderate jurisprudence lacking overarching principles, such as the fairness or opportunity norms that animated decisions like Brown v. Board, Miranda v. Arizona, and Roe v. Wade. The five Justices in today's majority actively promote a conservative political agenda, and casually discard long established precedents.

Meanwhile, the constitutional tradition that proudly defined the Court in the mid-20th century has been entirely extinguished. Justice Stevens noted as much in the Parents Involved decision that in 2007 gutted Brown by striking down voluntary busing programs that school districts initiated to prevent racial isolation in schools. As he wrote then in dissent, "no Member of the Court that I joined in 1975 would have agreed with today's decision." Similarly, as Stanford law professor Pamela Karlan recently noted, Justice Souter "was not a true liberal, and he would not have been a liberal on the court of the 1960s or 1970s. But he believed in privacy and civil rights and precedents. That made him a liberal on the court today."

...Raising Tensions on the Bench

As the Court slid to the right over the past generation, the depth of the Court's division also deepened and may now be unprecedented. After Roberts and Alito were appointed in 2006, the right-wing majority undermined individual rights & liberties and defended corporations even more aggressively than it had under Rehnquist. More experienced Justices reacted with concern, indicated through the frequency, assertiveness and tone of their dissenting opinions, as well as the previously rare practice of reading them from the bench.

In the 2008 Heller case, conservatives conjured a novel reading of the 2nd Amendment never before accepted in our nation's 230-year history. Justices Stevens and Scalia traded sharp barbs in their competing opinions: Scalia likened Stevens to "a mad hatter" and accused him of "flatly misread[ing] the historical record," while Stevens argued that Scalia's approach was "feeble," as well as "strained and unpersuasive," and "fundamentally failed to grasp the point" of rudimentary analytical principles.

Roberts & Alito sparked the most recent escalation when they joined the bench in 2006. Linda Greenhouse of The New York Times wrote at the end of their first Term that "members of the court...gave voice to their frustration and pique with colleagues who did not see things their way." Their full year on the bench found moderate Justices voicing extraordinary dissent in several cases.

Justice Breyer read his dissent in Parents Involved from the bench for nearly half an hour, presenting the functional effect of the majority's 2007 decision as betraying the "promise of Brown." The same year, Justice Ginsburg followed suit in two cases that restricted women's rights: Carhart, which "circumruled" Roe by forcing women to carry pregnancies to term even when doing so could threaten their health; and Ledbetter, which limited relief for women subjected to pay discrimination in the workplace. Challenging the biased and pejorative language pervading Justice Kennedy's controversial analysis in Carhart, Justice Ginsburg observed that "[t]he Court's hostility to the right Roe...secured is not concealed."

Justice Ginsburg's forcefulness, according to Marcia Greenberger, was "a signal of how alarming she found the majority decision....[H]ow unusual it was for her to [read a dissent from the bench], let alone twice in such a short period of time....She sounded the alarm, but all in America need to hear it."

Justice Souter's resignation may represent a second source now sounding the same alarm. He was reportedly disillusioned after Bush v. Gore, and "visibly angry" during an oral argument last month in a case that could potentially witness the most significant portions of the Voting Rights Act being struck down as unconstitutional. The departing Justice may have resigned for the sake of institutional fidelity, to make space for the kind of jurist able to resist the Court's conservative majority.

Aspiring Towards an Assertive Appointment

The resignation of David Souter will do little to reduce tensions between the Court's judicial moderates and its conservative majority. But Souter's replacement could have an enormous impact on the Court in other ways -- if the nominee holds a strong vision of the law and the tools to express it in compelling terms.

A nominee in Souter's moderate mold would disappear quickly into the footnotes of history. Casting the same votes as would Souter, without mounting a meaningful challenge to the conservative majority's jurisprudence, he or she also would fail to capture the interest of civil society or inspire lay observers to care about the legal system.

In contrast, an assertive progressive visionary could transform the Court over time. First, a Justice able to articulate a compelling overarching vision of the law -- which the moderates lack -- could lay a foundation in dissenting and concurring opinions for future rulings to cite. Moreover, someone able to translate the arcane world of legal theory into accessible, memorable, and ideally even entertaining opinions could engage civil society and lay observers in the Court's otherwise inaccessible work.

Translating the law in this way has transformed the Court before: Justice Scalia has done so adeptly and is an apt model to emulate. When he first joined the Court in 1986, his arguments were often viewed as extreme, untenable expressions of conservative judicial fancy. But Scalia's strident and often witty opinions achieved several ends.

First, Scalia built a textual trail in his dissenting opinions, which later Justices who shared his vision were able to cite in support of their own arguments. Second, as a leading light of the conservative movement, he captured the attention of lay conservative activists who, in various ways, helped promote his vision of the law.

Some called their Senators demanding support for conservative circuit court nominees, who in turn either issued rulings that Scalia could uphold on appeal or, in some cases, ultimately joined him on the bench. Other activists reinforced Scalia's legal theories in the academy, slowly shifting the legal culture through scholarship and lectures. Some promoted legislation in their towns and states to force contested social questions into the courts, leveraging the presence of their judicial allies on the bench. And the direct actionistas of the political right took to the streets, for instance, by parading at public gatherings with gruesome images of abortions to build opposition to fundamental reproductive rights.

President Obama's nominee will either stride onto the Supreme Court and begin laying a foundation for the recovery of law as a neutral institution, or capitulate to the right-wing judicial revolution of the last generation.

Judges vs. Justices

The ideal nominee to replace Souter would, like Scalia (before his 1982 appointment to the D.C. Circuit), come from the legal academy. Roberts has noted with praise that, "for the first time in its history, every member of the Court was a federal court of appeals judge before joining the Court...." But the lack of experiential diversity on the bench is not worthy of praise.

Judges today are hardly known for the "empathy" of which President Obama has spoken highly. Observers have noted the President's "disdain for formalism, the idea...that law can be decided independent of the political and social context in which it is applied." A competing functionalist legal paradigm, focused on the impact of rulings on the parties and interests before the Court, has a long and proud history in the law but has fallen out of favor over the past generation. A Justice whose philosophy remains untainted by years of applying laws based on an outmoded formalist model would be best positioned to articulate a new alternative, even one building on well-established historical roots.

In addition, many of our nation's brightest legal lights evaded lower courts on their path to the Court. Justices Earl Warren and Sandra Day O'Connor both joined the bench only after successful political careers. While politicians are not necessarily known for empathy, either, they at least hear regularly from real people about their concerns. Legal academics -- especially those who actively champion social causes -- share many of those same concerns themselves, and also interact constantly with young people.

The President, of course, was an engaged legal academic before embarking on his career in politics, and as a hands-on participant in the selection process for Souter's replacement, can presumably relate to potential nominees from either arena. In contrast, appellate judges are removed from society, unfamiliar with daily life on the ground, and therefore especially unqualified to resolve our nation's most pressing disputes.

The Ideal Nominee

At this point, the President's preferences among Souter's potential replacements are inscrutable. Without statements indicating his perspective of the nomination, few indicators are more relevant than President Obama's own assertiveness on other issues. Unfortunately, that measure offers cause for concern.

As an example, whether the President remains committed to restoring the Rule of Law has grown unclear. His Administration continues to maintain the secrecy of FBI policies that mandate racial & religious profiling. And the President remains reluctant to hold his predecessors accountable for torture and war crimes. Each decision suggests a hesitance to wield the President's formidable political capital.

If the Administration proceeds with equal caution when choosing a nominee, it will decide upon a moderate, allowing conservatives to continue to dominate the Court. But despite the Administration's cautiousness in other contexts, some hope remains that President Obama cares more deeply about the Court he studied for years as a student and scholar.

If judicial independence and impartiality matter to the President, he should defend the institution's integrity by nominating an assertive visionary from outside the federal judiciary to replace Justice Souter. Presuming that the nominee will be a woman -- which is necessary but still quite insufficient to render the Court representative of either the population or the legal profession -- two particular candidates stand out from the rest.

Pamela Karlan is a legal academic at Stanford Law School, the nation's leading authority on voting rights (an area of legal doctrine in which the Court's jurisprudence has grown especially indefensible), a respected advocate before the Court, and a bona fide lion of the legal left. Karlan's writing is extraordinary, her wit is unparalleled, and having just authored a book exploring "constitutional fidelity" as an interpretive model, she is among the nation's few legal experts wielding the vision to assertively challenge the Court's conservative majority.

Should the President prefer a nominee with political experience, Governor Jennifer Granholm of Michigan is a less ambitious alternative. She served as a federal prosecutor; chief legal officer for a major county; and Michigan's first female Attorney General. As Governor since 2002, Granholm has led the state in exemplary fashion: the Pew Center on the States' Government Performance Project recognized that her leadership "demonstrate[s] that it is possible to manage well even in the most difficult of times." Whether she shares Karlan's legal brilliance, however, is unknown.

With Democrats holding a filibuster-proof majority in the Senate, few Presidents will hold as strong a hand to reshape the Court's future course as does Obama today. The choice among nominees will thus carry a lasting impact in constructing Obama's legacy -- which could either boldly reverse the painful and sad course of the Bush years, or merely chart a thoughtful alternative while preserving its predecessor's worst elements.

Karlan and, to a lesser extent, Granholm would be bold nominees, worthy of the first Supreme Court nomination by a President who himself has broken so much new ground already.

Tuesday, May 19, 2009

Honor Malcolm: Support Troy Davis and Fight Police Brutality

This post will not be a lofty tribute to Brother Malcolm, if you would like to see one like that, check it out here. This will be a call to action, because that is one of the things El Hajj Malik El Shabazz was about. Today is a National Day of Action to Stop the Execution of Troy Davis and today I saw a heinous video of a young teenager brutalized by the Police of Toledo. I do not doubt that Malcolm would have been disturbed to action by both. Let's honor him by doing the work!

Today is global day of action for Troy Davis who is set to be executed if we, that includes you, do not demand a retrial. You have probably seen Davis' name and maybe even read up on the case. Well there is plenty of material online but I'll summarize. Davis was convicted of shooting an off-duty police officer in 1989 in Savannah, Georgia at Burger King (there was also a shooting at a party earlier that evening). The scene of the shooting was a Burger King where Sylvester Coles got in an altercation with a homeless man. Coles and Davis are physically similar in size and the overlap in Davis and Coles' night is eerie. The State of Georgia put its resources into investigating Davis and little into properly investigating Coles. As a result they arrested Davis and convicted him on 9 eye-witness testimonies. Since conviction, Davis has maintained innocence. In 2001, 7 out of 9 "witnesses" re-canted their statements saying they were coerced into saying Davis was the shooter via improper police and legal procedures. Through a railroading and denial of a re-trial Troy Davis is scheduled to be executed in the near future. If you're in NYC, join us at Union Square from 6-8 for a National Day of Action for Troy Davis or find a local event or activity here

Davis' stays of execution and case have only gotten this far because everyday people are putting pressure on the State of Georgia, to be "fair" and not "final". Let's keep up the pressure and stop the loss of another innocent Black man's life.

As I was typing this post, I came across a video of police brutalizing a 14 year old boy, Trevor Casey, in Toledo, Ohio. The video footage (which is graphic) is here. While I do not know the circumstances leading up to his arrest, choke and bloodying, I do know that the young man's life would likely have been in even greater danger if this was not caught on tape. Police brutality is common in our communities, but seldom gets taken seriously, let's not let this be the case.

The reality is that our young Black youth everyday come in contact with a police force that fears them more than protects and serves them. It's all too often that I walk down the street in Harlem and see "undercovers" jump out, harrass youth, and then continue on with their patrol. Even more disturbing then these "stop and frisks" is the way that many of the young brothas and sistahs I see harrassed respond. They get searched, often illegally, and continue on with their day as if it has been or should be a routine occurence.

If we truly want to honor Malcolm, then we cannot let the State (of Georgia and Toledo) in these cases go unchecked. Troy Davis, like many on death row and those killed on death row, was railroaded and we cannot let his case go quietly. While we celebrate the arrival of a Black Attornery General, the real power to respond to judicial injustice must come from the people. Stand up, speak out! Trevor Casey was brutalized in front of his home and the community is crying out for help. The disease of racism and fear of young Black men runs deep, don't let his case be "investigated" (the Oscar Grant trial from Oakland is now happening) and dismissed as so many cases of brutality are. Stand up, speak out! Don't read about this stories and get sad, in fact, get angry. Because if Brother Malcolm taught us, "Usually when people are sad, they don't do anything. They just cry over their condition. But when they get angry, they bring about a change."

Saturday, May 9, 2009

Manufacturing Consent

Sometimes I feel like we forget just how problematic the media's coverage of the lead-up to the Iraq War was. I don't care if you're on the left, right, north, south, whatever, if your media is incapable of deciphering pure government propaganda for a war, your society is in a lot of trouble. We cannot be "oh, we know the media stinks, la di da" about this.

This is the kind of stuff that can bring down a (quasi) democratic system. If your press recites the government's talking points with minimal effort to double-check the information (or, is run with an eye towards the bottom line so that they cut budgets to the point that they don't employ many people who actually do real research on the supposed facts), and your government puts out disinformation (which all governments anywhere want to do), how exactly do you correct the problems? This is a really frightening problem, one that the FCC hasn't helped on at all.

The only thing we can hope for is that some journalists call out the propaganda, and get recognized for it. David Barstow of the NY Times was awarded the Pulitzer Prize in 2009 for his stories about the Pentagon's propaganda machine leading into the war. As a reminder...they basically bought out a bunch of military types to go on the airwaves and follow their scripts about Iraq leading up to the war, without disclosing the fact that they were following a script and on the payroll. That, my friends, is called manufacturing consent. Get people who others think are good sources to go out and lie to the masses. These military officers who sacrificed for America before, basically sacrificed America with these despicable actions. But the story didn't stay in the news cycle for a long time when it came out. Shocking. Anyway, Barstow had a great interview on Democracy Now! with Amy Goodman on Friday that I recommend you all listen to.

In terms of what we can do about this...make sure people are aware of what was done, and what is still going on. The media still does minimal research. Their coverage of Afghanistan and Pakistan is abysmal, and might lead us to support actions that are not in our, or Pakistanis and Afghanis, interests. Same with Iran. We need to make the public aware just how dangerous the media situation is. Our government, whether Republican or Democrat, has an incentive to lie. What the Pentagon did prior to Iraq was borderline treasonous. Its up to the press to do their job as the fist line of defense for the public. But they are asleep at the wheel. The only way that will change is a) if the masses know they're being had, and b) putting pressure on the FCC and the networks. David Gregory gives this line about how he thinks the media did a good job leading up to the Iraq War. I was 20 feet from him when he said this once. He should be booed and challenged every time he utters that nonsense. All the press members who mutter that crap should. Make them feel real heat. Challenge the FCC to do their job in regulating the press. Oppose media consolidation efforts. Support independent news sources if you can. Write letters. Get out in the streets. Organize groups to confront your congressional leaders on this issue. The future of our democracy depends on it.

Note: I guess this was well-timed...I totally forgot the White House Correspondents' Dinner is tonight. A few hours after writing this, I biked right by it - lots of journalists in tuxes and gowns, a handful of celebrities, and tons of security - the Obama's were supposed to arrive a few minutes after I rode by. A few years ago, Stephen Colbert used this event to skewer Bush and the media. Hopefully Wanda Sykes drops some gems tonight. The dinner is, of course, a prime example of the entirely-too-friendly relationship between the media and the government. Frank Rich wrote a great piece in 2007 about this, and the NY Times, a paper I both like and hate, has since boycotted the event.