There have been renewed calls for the confirmation of President Bush’s controversial Federal Election Commission (FEC) nominee Hans von Spakovsky following Monday’s Supreme Court decision upholding Indiana’s harsh voter identification law. Editorials in both the Wall Street Journal and the Atlanta Journal-Constitution suggest that the Supreme Court’s decision validates Mr. von Spakovsky’s restrictive views on voting rights and discredits Democratic objections to his nomination. This seems a peculiar conclusion to draw considering that Mr. von Spakovsky had no connection to the case whatsoever – other than serving as commentator for the conservative Heritage Foundation.
First, it’s important to point out that just because the Supreme Court says that requiring voters to have state-issued photo identification cards (with expiration dates) is legal, doesn’t mean that it’s right. Conservatives argue that laws like this are meant to protect against voter fraud. But the truth is that their efforts provide a solution to a problem that doesn’t actually exist. Instead, these voter ID requirements risk disenfranchising thousands of voters, disproportionately affecting racial minorities, the poor, the elderly, and the disabled - all of whom are less likely to have drivers’ licenses. Conveniently though, these groups also tend to vote Democratic – a consequence conservative legislators certainly considered before passing these laws.
But the Court’s decision in this case has no bearing on Mr. von Spakovsky’s suitability to serve as FEC commissioner. Senate Democrats opposed his nomination, not because of his support for voter identification laws, but because of his management of the Voting Rights Section at the Justice Department. This section, which is responsible for enforcing the Voting Rights Act, has historically focused on ensuring that local authorities did not impede minorities from participating in the electoral process. Under Mr. von Spakovsky however, it shifted priorities from protecting voters’ rights to rooting out so-called cases of voter fraud. This transition in focus is one of the problems that led to many of the allegations of politicization at the Justice Department.
As we said in an earlier post regarding Mr. von Spakovsky’s lack of concern for voters’ rights, “The Bush administration has repeatedly nominated people for high-level positions who are hostile to voters’ rights – first to the judiciary, then to the Justice Department and now to the Federal Election Commission. The Senate should have the courage to stand up and say, ‘Enough is enough.’”
Wednesday, April 30, 2008
Daily Dose
- Former FEC and DOJ official Von Spakovsky takes voter ID ruling as vindication [TPMMuckraker]
- Editorial: A voting setback [BaltimoreSun]
- Guantanamo detainee condemns military commission, refuses to participate in hearing [WP]
- Oversight, shmoversight: Cheney's lawyer tells Congress it "lacks the constitutional power" to conduct oversight over VP [TheRawStory]
Tuesday, April 29, 2008
Scalia Reinterprets History on ‘60 Minutes’
On Sunday, Supreme Court Justice Antonin Scalia sat down for an interview with Leslie Stahl of ‘60 Minutes.’ While interviewing the archetype of conservative judges – or, as CBS puts it, an “evangelist of originalism” – Ms. Stahl probed Justice Scalia’s views of the Constitution, his relationships with the other justices, and the controversial Bush v. Gore decision, which handed the presidency over to George W. Bush.
Throughout the interview, Justice Scalia made some particularly troublesome comments, leading us to question whether he can even tell the difference between historical truths and conservative myths. In an attempt to justify the Court’s decision in Bush v. Gore, Justice Scalia said that “the principle issue…whether the scheme that the Florida Supreme Court had put together violated the federal Constitution, that wasn’t even close. The vote was seven to two.” In reality, the decision in this case was split 5 to 4, not 7 to 2. While two of the dissenters did acknowledge that Florida’s recount procedures violated the Constitution, they suggested sending the case back to the state court to establish new standards.
Justice Scalia also claimed that it was Al Gore who asked the courts to intervene in 2000. “We didn’t go looking for trouble. It was [Gore] who said, ‘I want this to be decided by the courts.’” But this too is false. Al Gore did bring a case in Florida state court, but it was George W. Bush who asked the federal courts to intervene and overrule the state, and it was George W. Bush who was listed as the plaintiff in the Supreme Court case.
In an attempt to dismiss his critics once and for all, Justice Scalia told America to “get over it.” But as a result of the Court’s intervention, President Bush took control of the White House and was allowed to put his court-packing agenda in motion. While Justice Scalia may be thrilled to have new allies on the bench, millions of Americans have been abandoned by ideological judges more concerned with furthering a rightwing agenda than protecting civil rights.
Throughout the interview, Justice Scalia made some particularly troublesome comments, leading us to question whether he can even tell the difference between historical truths and conservative myths. In an attempt to justify the Court’s decision in Bush v. Gore, Justice Scalia said that “the principle issue…whether the scheme that the Florida Supreme Court had put together violated the federal Constitution, that wasn’t even close. The vote was seven to two.” In reality, the decision in this case was split 5 to 4, not 7 to 2. While two of the dissenters did acknowledge that Florida’s recount procedures violated the Constitution, they suggested sending the case back to the state court to establish new standards.
Justice Scalia also claimed that it was Al Gore who asked the courts to intervene in 2000. “We didn’t go looking for trouble. It was [Gore] who said, ‘I want this to be decided by the courts.’” But this too is false. Al Gore did bring a case in Florida state court, but it was George W. Bush who asked the federal courts to intervene and overrule the state, and it was George W. Bush who was listed as the plaintiff in the Supreme Court case.
In an attempt to dismiss his critics once and for all, Justice Scalia told America to “get over it.” But as a result of the Court’s intervention, President Bush took control of the White House and was allowed to put his court-packing agenda in motion. While Justice Scalia may be thrilled to have new allies on the bench, millions of Americans have been abandoned by ideological judges more concerned with furthering a rightwing agenda than protecting civil rights.
Daily Dose
- Rep. Conyers ready to subpoena White House aides on torture and interrogation policies [WP]
- “Getting Away With Torture: The failures of the legal system for both the torturers and the tortured” [Slate]
- More on the Supreme Court’s decision to uphold Indiana’s voter ID law [NYT, WP, Slate]
- Will court’s decision lead to more voter ID laws in more states? [NYT]
- Editorial: The Court Fumbles on Voting Rights [NYT]
- Editorial: Carded at the Polls [WP]
- DOJ names former drug prosecutor to head pardon attorney’s office [AP via WP]
Monday, April 28, 2008
Supreme Court Issues Blow to Voter Rights
Today’s decision by the Supreme Court in Crawford v. Marion County Election Board rejecting a challenge to Indiana’s onerous photo identification requirement is a grave disappointment for those of us hoping that the Court would approach the case from the standpoint that the Constitution should encourage voting, not make it harder for people to vote. For me it was also a symbol of serendipity, as I explain below.
The split decision has three Justices, led by Justice Stevens, joining an opinion that leaves the door slightly open to individual voters or groups of voters challenging such laws as applied to them. This result is preferable to Justice Scalia’s opinion for three justices that would shut the door forever to challenges to such laws, and, what is worse, open the door to any “universally applicable requirements” that could make voting difficult or impossible for many citizens. Indeed, Justice Scalia’s opinion could easily be read to support a poll tax were it not for precedent rejecting the poll tax.
The real puzzle about today’s decision is Justice Stevens, who we could speculate joined Chief Justice Roberts and Justice Kennedy to avert a far more draconian majority opinion like Justice Scalia’s. When I attended the oral argument in Crawford in January – where lawyers I knew from litigation I had done in Indiana (Ken Falk and Thomas Fisher) appeared on both sides of the case -- Justice Stevens gave numerous signals that he viewed the Indiana law as unconstitutional. For example, he pointed out that Indiana law does not require photo identification to register to vote, and pointed out to Indiana’s counsel “Is it the policy to have it tougher to vote than to register? That doesn’t make sense to me.” This sounds like the analysis of a judge ready to invalidate the law as irrational under any standard of review, an approach Justice Stevens took in an abortion case I argued before the Supreme Court in 2000, where he would pointed out that Nebraska’s abortion statute failed to serve “any legitimate interest,” a basis he identified with Seventh Circuit Judge Posner, who had written an opinion finding Wisconsin’s abortion ban irrational. Ironically, Judge Posner is the author of the opinion upholding Indiana’s voter ID law affirmed by the Supreme Court today.
To what can we attribute Justice Stevens shift, other than an inclination to affirm Judge Posner? (Note that Stevens has long served as the Circuit Justice for the Seventh Circuit.) My speculation is that he worked hard behind the scenes to craft an opinion that would garner the vote of Justice Kennedy – the Court’s crucial swing vote – and somehow along the way persuaded Chief Justice Roberts. If so, this is another mark of the extreme rightward shift that the Court has taken in the wake of Justice O’Connor’s replacement by Justice Alito, for it is difficult for me to imagine Justice Stevens voting to uphold the Indiana law for any reason other than to broker a measure of moderation in the Court’s holding; unfortunately, today’s “moderation” would seem completely out of the mainstream to the Warren Court, which struck down a $1.50 poll tax in 1966.
By Simon Heller
AFJ Legal Director
Friday, April 25, 2008
CREDO Says “Senator McCain Should Apologize to Women”
When the Senate fell just shy of overcoming a filibuster on the Lilly Ledbetter Fair Pay Act earlier this week, only two members failed to show up for the vote on this crucial civil rights bill: Senator Chuck Hagel (R-NE) and Senator John McCain (R-AZ). Senator Hagel has not issued a public explanation for his absence, leading to some speculation that he might have wanted to avoid a tough vote. But Senator McCain went on record against the legislation, saying that it would open the floodgates to too many lawsuits and positing that women simply need “education and training,” rather than the ability to enforce laws against discriminatory pay. Our friends at CREDO Mobile disagree with Senator McCain’s assessment and have started a petition asking him to apologize for his condescending comments and stop supporting the filibuster:
Lilly Ledbetter and women across the country are not only paid less when they have the same education and same training, but also for doing the exact same job as men. The only difference between men and women in the workplace is women bring home less money to take care of their families.Click here to sign CREDO Mobile’s petition and urge Senator McCain to show up and stand up for the civil rights of all Americans.
Daily Dose
- Senate ethics committee admonishes Sen. Domenici over role in Iglesias firing [AP, TPMMuckraker]
- Conservatives still pushing for telecom immunity [TPMMuckraker]
Thursday, April 24, 2008
Senate Republicans Pick Fight Over Judges (Yes, Again)
It appears that last week’s attempts by Senate leaders to resolve the issue of federal judges peacefully were short lived. The McConnell-Reid agreement, which called for movement on three circuit court nominees before Memorial Day now seems to be falling apart. Why? No one can agree on which judges to move.
According to Congressional Quarterly, Senate Democrats have agreed to hold a hearing on May 1st for Fourth Circuit consensus nominee G. Stephen Agee, who was recommended by both Virginia Senators Jim Webb and John Warner. Republicans, not satisfied with Agee’s conservative bona fides would rather advance DC Circuit nominee Peter Keisler. Anxious still that a separate agreement between Sen. Patrick Leahy (D-VT) and the White House might fill the other two slots with Sixth Circuit nominees who have bipartisan support, Senate Republicans are pushing for hearings on conservative ideologues Robert Conrad, Jr. and Steve Matthews, both nominated to the Fourth Circuit, instead.
Feebly arguing that Conrad and Matthews have been waiting for hearings longer than Agee, Senate Republicans suggested that nominees be evaluated in the order they were nominated – certainly not traditional practice in the Senate. Besides, Raymond Kethledge, one of the nominees included in the Leahy-White House deal, was put forward more than a year before Conrad and Matthews, suggesting their actual concern is ensuring the confirmation of two more ultra-conservatives judges to the federal bench.
Thankfully, Sen. Leahy, chairman of the Senate Judiciary Committee, has so far resisted GOP pressure to move only those nominees who meet their ideological criteria. In a letter to his Republican colleagues, Sen. Leahy wrote, “you can pick fights over a few of the more controversial nominations, or we can continue to make significant progress.”
According to Congressional Quarterly, Senate Democrats have agreed to hold a hearing on May 1st for Fourth Circuit consensus nominee G. Stephen Agee, who was recommended by both Virginia Senators Jim Webb and John Warner. Republicans, not satisfied with Agee’s conservative bona fides would rather advance DC Circuit nominee Peter Keisler. Anxious still that a separate agreement between Sen. Patrick Leahy (D-VT) and the White House might fill the other two slots with Sixth Circuit nominees who have bipartisan support, Senate Republicans are pushing for hearings on conservative ideologues Robert Conrad, Jr. and Steve Matthews, both nominated to the Fourth Circuit, instead.
Feebly arguing that Conrad and Matthews have been waiting for hearings longer than Agee, Senate Republicans suggested that nominees be evaluated in the order they were nominated – certainly not traditional practice in the Senate. Besides, Raymond Kethledge, one of the nominees included in the Leahy-White House deal, was put forward more than a year before Conrad and Matthews, suggesting their actual concern is ensuring the confirmation of two more ultra-conservatives judges to the federal bench.
Thankfully, Sen. Leahy, chairman of the Senate Judiciary Committee, has so far resisted GOP pressure to move only those nominees who meet their ideological criteria. In a letter to his Republican colleagues, Sen. Leahy wrote, “you can pick fights over a few of the more controversial nominations, or we can continue to make significant progress.”
Senate Fails to Move on Fair Pay Legislation
Last night, the Senate’s motion to end debate on the Lilly Ledbetter Fair Pay Act fell short of the 60 votes necessary to call an up-or-down vote. Just four votes shy, Senate Democrats were noticeably disappointed with the outcome and vowed to continue their fight for equal pay. Senator Barbara Mikulski (D-MD) was quoted as saying, “I have a terrible feeling the Senate just won’t get it, but the women will…and we will start a revolution.”
Alliance for Justice President Nan Aron released a statement after the vote. “Though we narrowly lost today’s battle, these equal rights protections are worth the fight. We must demand that the Senate stop ignoring the realities of the workplace, and that our lawmakers not allow corporate special interests to dictate public policy. We are on the side of millions of ordinary Americans who go to work each day to provide for their families. They deserve to have the promise of fairness fulfilled, and we won’t stop until it is.”
Alliance for Justice President Nan Aron released a statement after the vote. “Though we narrowly lost today’s battle, these equal rights protections are worth the fight. We must demand that the Senate stop ignoring the realities of the workplace, and that our lawmakers not allow corporate special interests to dictate public policy. We are on the side of millions of ordinary Americans who go to work each day to provide for their families. They deserve to have the promise of fairness fulfilled, and we won’t stop until it is.”
Daily Dose
- CIA claims it knew “harsh interrogations” would spark investigations [WP]
- FBI says it warned CIA interrogations might be "inappropriate" [AP, TPMMuckraker]
- Siegelman says Rove “hijacked” DOJ [TheRawStory]
- Was Rove looking to replace Chicago US Attorney Fitzgerald? [NYT]
- CIA witholding 7,000 documents related to secret detentions, renditions and torture [TPMMuckraker]
Wednesday, April 23, 2008
Fair Pay Legislation Facing Serious Hurdles
The Fair Pay Restoration Act - scheduled for a vote in the Senate today at 6 p.m. - is facing increasingly stiff opposition from President Bush and his allies in the Senate. The New York Times published an article this morning suggesting that Senate Minority Leader Mitch McConnell (R-KY) could have enough votes to prevent cloture, the procedural term for ending debate and holding an up-or-down vote.
If Sen. McConnell manages to stop the advancement of this legislation, it will be a devastating blow to equal employment rights, not just for women like Lilly Ledbetter, whose Supreme Court case inspired this bill but for all American workers - particularly those with disabilities, the elderly, and others who often face discrimination. Even if Sen. McConnell fails to stop the bill and Senate Democrats are successful in pushing it through to the White House, President Bush has promised to veto it.
The fight in Congress is just further evidence that the president’s ultra-conservative judicial appointments have succeeded in chipping away at countless consumer, worker and civil rights protections. While we can’t change their decisions, Congress can sometimes act to fix their mistakes. Thankfully, this is one of those opportunities. As today's vote approaches, we need your help! Contact your senators and tell them you’re watching! Demand fair pay for all workers and let them know that we must not keep victims of discrimination from seeking redress in our courts.
If Sen. McConnell manages to stop the advancement of this legislation, it will be a devastating blow to equal employment rights, not just for women like Lilly Ledbetter, whose Supreme Court case inspired this bill but for all American workers - particularly those with disabilities, the elderly, and others who often face discrimination. Even if Sen. McConnell fails to stop the bill and Senate Democrats are successful in pushing it through to the White House, President Bush has promised to veto it.
The fight in Congress is just further evidence that the president’s ultra-conservative judicial appointments have succeeded in chipping away at countless consumer, worker and civil rights protections. While we can’t change their decisions, Congress can sometimes act to fix their mistakes. Thankfully, this is one of those opportunities. As today's vote approaches, we need your help! Contact your senators and tell them you’re watching! Demand fair pay for all workers and let them know that we must not keep victims of discrimination from seeking redress in our courts.
Daily Dose
- Investigation into CIA tapes destruction continues [CQPolitics]
- States moving ahead with executions after court ruling [WP]
- Guess who's not coming to dinner: Yoo turns down Rep. Conyers' invitation to testify [TPMMuckraker]
Tuesday, April 22, 2008
Michael Mukasey’s Tenure Still Proves Disappointing
Legal Times published a profile yesterday on Attorney General Michael Mukasey’s tenure at the Justice Department. It appears to praise his leadership as well as his supposed efforts to “liberat[e] the department from political influences.” Referencing several “decisions to overturn policies…put in place by Alberto Gonzales,” the article seems to imply that the many concerns expressed by “critics outside of the department” are unjustified. We would certainly disagree with this assessment.
While it briefly mentions his controversial positions on “waterboarding, warrantless surveillance and expanded presidential powers,” the piece spends much more time focusing on ways in which Mukasey is unlike his predecessors. But when we set the bar that low, anyone seems like an improvement. It seems to us that mere competence does not in itself determine the quality of an attorney general but rather his or her independence and respect for the rule of law. And in that sense, Attorney General Michael Mukasey’s tenure has proved rather disappointing.
The article points to the absence of John Tanner from the Voting Rights Section of the Civil Rights Division, supposedly “one of its last polarizing figures” as evidence of an increase in morale at Justice as a whole. But the Civil Rights Division, which Legal Times acknowledges “suffered from years of friction…usually over differences in the direction of voter-fraud and voter-ID initiatives” is now being led by Grace Chung Becker, whose controversial nomination to the post of Assistant Attorney General for the Civil Rights Division can’t even make it out of committee.
Yesterday’s piece also points to Mukasey’s decision to lift a ban on DOJ Pride activities put in place by Gonzales and Ashcroft as proof of his benevolent leadership. Yet again, this evidence does not paint a complete picture of the department’s direction. The scandal surrounding the dismissal of Justice Department lawyer, Leslie Hagen, after rumors of her sexuality reached her supervisors set off a media firestorm. The controversy has even sparked an inquiry by Senate Judiciary Committee Chair Patrick Leahy (D-VT) and Ranking Member Arlen Specter (R-PA) to determine whether Hagen was “discriminated against in employment decisions on the basis of alleged sexual orientation or other improper factors.” While Hagen’s dismissal occurred during Gonzales’ tenure, little has been done by Mukasey to resolve the situation.
While Michael Mukasey is certainly an improvement on former Attorney General Alberto Gonzales, his tenure has displayed more of the same in regards to the department's strong defense of controversial White House policies. As we said in a blog post back in January, “during [his] confirmation hearings only a few short months ago, Democratic and Republican leadership alike encouraged Mukasey to provide an independent voice and to give new direction to the Justice Department. Unfortunately, his tenure has yet to put public fears to rest.” While Legal Times may view his term there in a different light, we still see a department shrouded in the shade of secrets.
While it briefly mentions his controversial positions on “waterboarding, warrantless surveillance and expanded presidential powers,” the piece spends much more time focusing on ways in which Mukasey is unlike his predecessors. But when we set the bar that low, anyone seems like an improvement. It seems to us that mere competence does not in itself determine the quality of an attorney general but rather his or her independence and respect for the rule of law. And in that sense, Attorney General Michael Mukasey’s tenure has proved rather disappointing.
The article points to the absence of John Tanner from the Voting Rights Section of the Civil Rights Division, supposedly “one of its last polarizing figures” as evidence of an increase in morale at Justice as a whole. But the Civil Rights Division, which Legal Times acknowledges “suffered from years of friction…usually over differences in the direction of voter-fraud and voter-ID initiatives” is now being led by Grace Chung Becker, whose controversial nomination to the post of Assistant Attorney General for the Civil Rights Division can’t even make it out of committee.
Yesterday’s piece also points to Mukasey’s decision to lift a ban on DOJ Pride activities put in place by Gonzales and Ashcroft as proof of his benevolent leadership. Yet again, this evidence does not paint a complete picture of the department’s direction. The scandal surrounding the dismissal of Justice Department lawyer, Leslie Hagen, after rumors of her sexuality reached her supervisors set off a media firestorm. The controversy has even sparked an inquiry by Senate Judiciary Committee Chair Patrick Leahy (D-VT) and Ranking Member Arlen Specter (R-PA) to determine whether Hagen was “discriminated against in employment decisions on the basis of alleged sexual orientation or other improper factors.” While Hagen’s dismissal occurred during Gonzales’ tenure, little has been done by Mukasey to resolve the situation.
While Michael Mukasey is certainly an improvement on former Attorney General Alberto Gonzales, his tenure has displayed more of the same in regards to the department's strong defense of controversial White House policies. As we said in a blog post back in January, “during [his] confirmation hearings only a few short months ago, Democratic and Republican leadership alike encouraged Mukasey to provide an independent voice and to give new direction to the Justice Department. Unfortunately, his tenure has yet to put public fears to rest.” While Legal Times may view his term there in a different light, we still see a department shrouded in the shade of secrets.
Daily Dose
- Detainees claim they were drugged, interrogated [WP]
- FISA compromise on the horizon? [Politico]
- AG aims to boost morale at Justice [LegalTimes]
Monday, April 21, 2008
Congresswoman Eleanor Holmes Norton Discusses the Fair Pay Restoration Act
This week the Senate will vote on the Fair Pay Restoration Act, a piece of legislation that would help undo some of the fallout from last year’s Supreme Court decision in Ledbetter v. Goodyear Tire. The bill, which has already passed the House, would restore prior interpretations of the Civil Rights Act that classifies each discriminatory paycheck is a separate illegal act – not just the first one.
Alliance for Justice and FireDogLake hosted a special chat this morning with Congresswoman Eleanor Holmes Norton (D-DC), one of the bill’s original House sponsors. The congresswoman, who chaired the Equal Employment Opportunity Commission (EEOC) during the Carter administration, was responsible for implementing the Title VII and has a unique perspective on the original intention of the law. Sadly, another former chair of the EEOC, Justice Clarence Thomas helped to cripple the protections that law provided by narrowly interpreting the statute of limitations it included.
Thankfully, this is one Court decision that can be fixed by Congress. Alliance for Justice has been at the forefront of the fight to pass the Fair Pay Restoration Act (which President Bush has threatened to veto) and we encourage all of our readers to contact your senators about this important piece of legislation.
To see today’s FireDogLake chat, click here.
Alliance for Justice and FireDogLake hosted a special chat this morning with Congresswoman Eleanor Holmes Norton (D-DC), one of the bill’s original House sponsors. The congresswoman, who chaired the Equal Employment Opportunity Commission (EEOC) during the Carter administration, was responsible for implementing the Title VII and has a unique perspective on the original intention of the law. Sadly, another former chair of the EEOC, Justice Clarence Thomas helped to cripple the protections that law provided by narrowly interpreting the statute of limitations it included.
Thankfully, this is one Court decision that can be fixed by Congress. Alliance for Justice has been at the forefront of the fight to pass the Fair Pay Restoration Act (which President Bush has threatened to veto) and we encourage all of our readers to contact your senators about this important piece of legislation.
To see today’s FireDogLake chat, click here.
Daily Dose
- "Few Clear Wins in U.S. Anti-Terror Cases" [WP]
- "Probe Sought in Alabama Prosecution" [WP]
- "Internal Justice Dept. Investigation Includes Yoo Torture Memo" [TPMMuckraker]
- Editorial: "Which came first: memos or torture?" [LATimes]
Friday, April 18, 2008
FISA Debate Still Going Strong
It looks like there may finally be some movement regarding FISA legislation. While congressional Republicans have been trying to focus on other issues in the hopes of distracting the public, there has been a renewed push lately for the Senate to take up the House’s version of this bill.
Despite attempts by the White House and its congressional allies to force the passage of legislation which included immunity for telephone companies who cooperated with the Bush administration's illegal wiretapping scheme, Speaker of the House Nancy Pelosi (D-CA) and her fellow Democrats held strong. Refusing to pass the Senate’s version and countering what she called “scare tactics” by White House officials, Speaker Pelosi would not budge on the issue of immunity.
Now Senate Judiciary Chair Patrick Leahy (D-VT) and House Judiciary Chair John Conyers (D-MI) have called on the American public to put pressure on the Senate to follow the House's lead in resisting pressure for immunity. In an action alert put out on Tuesday, Sen. Leahy and Rep. Conyers credited “grassroots activity” and the pervasiveness of “blog posts” for the success that House Democrats have had in resisting White House pressure. They called on the internet community to “help…make sure that our colleagues in the Senate know that the American people are watching.”
And the blogosphere has certainly responded. Progressive blog giants like DailyKos and Firedoglake have all posted entries in support of Sen. Leahy and Rep. Conyers’ call to action.
For our part, Alliance for Justice continues to applaud the courage of House leaders who are standing up to the White House and who refuse to give amnesty to phone companies for their illegal conduct. We sent a letter to the Senate opposing legislation which included immunity and have sent out several messages encouraging our supporters to contact their legislators. We also launched a campaign on our website called “Five Things You Can Do About FISA.”
We will follow these developments closely and be sure to update our readers on any new developments in the future.
Despite attempts by the White House and its congressional allies to force the passage of legislation which included immunity for telephone companies who cooperated with the Bush administration's illegal wiretapping scheme, Speaker of the House Nancy Pelosi (D-CA) and her fellow Democrats held strong. Refusing to pass the Senate’s version and countering what she called “scare tactics” by White House officials, Speaker Pelosi would not budge on the issue of immunity.
Now Senate Judiciary Chair Patrick Leahy (D-VT) and House Judiciary Chair John Conyers (D-MI) have called on the American public to put pressure on the Senate to follow the House's lead in resisting pressure for immunity. In an action alert put out on Tuesday, Sen. Leahy and Rep. Conyers credited “grassroots activity” and the pervasiveness of “blog posts” for the success that House Democrats have had in resisting White House pressure. They called on the internet community to “help…make sure that our colleagues in the Senate know that the American people are watching.”
And the blogosphere has certainly responded. Progressive blog giants like DailyKos and Firedoglake have all posted entries in support of Sen. Leahy and Rep. Conyers’ call to action.
For our part, Alliance for Justice continues to applaud the courage of House leaders who are standing up to the White House and who refuse to give amnesty to phone companies for their illegal conduct. We sent a letter to the Senate opposing legislation which included immunity and have sent out several messages encouraging our supporters to contact their legislators. We also launched a campaign on our website called “Five Things You Can Do About FISA.”
We will follow these developments closely and be sure to update our readers on any new developments in the future.
Thursday, April 17, 2008
Opposition to Puryear’s District Court Nomination Grows
With all the controversy surrounding the Senate’s handling of President Bush’s circuit court nominees, we shouldn't forget about district court nominees like Gustavus Puryear .
Mr. Puryear, nominated to the Middle District of Tennessee, has relatively minimal court experience. He has spent the majority of his career serving as the Executive Vice President and General Counsel for Corrections Corporation of America (CCA) and his tenure there raises serious red flags about his suitability to hold a federal judgeship.
CCA, headquartered in Nashville, TN is the largest private prison company in the country. In fact, it runs the fifth largest corrections system in the nation – only the federal prison system and those of three states are larger. In addition to conflict of interest and recusal issues that would naturally raise administrative concerns, it is Mr. Puryear's leadership of CCA’s legal department that is truly troubling.
Since its creation in 1983, CCA has faced widespread allegations of abuse and misconduct regarding the treatment of its prisoners. Mr. Puryear has acknowledged that as General Counsel to the company he bears the “ultimate responsibility” for defending CCA in all lawsuits, which according to his own testimony “typically stands between 700 and 1100 at any given time.” One of these cases involved a 34-year-old female prisoner who died after what the medical examiner suggested was a violent beating. When asked about this case during his hearing, Mr. Puryear refused to go into specifics but attempted to provide several explanations that were contrary to the findings of the medical examiner.
Frustrated with the opposition Mr. Puryear’s nomination has faced in the Senate Judiciary Committee, his former employer Dr. Bill Frist (formerly a senator from Tennessee as well as Senate majority leader), wrote an editorial in the Tennessean defending his former protégé. In his article, Dr. Frist claimed that “Gus enjoys broad bipartisan support within Nashville and in Washington” and that “despite the fact that the American Bar Association unanimously rated Gus qualified to be a U.S. district judge, some political-interest groups have criticized him.” Hmmm…
The Nashville Scene, which has written several articles about the controversy surrounding Mr. Puryear’s nomination, responded to the former senator’s claims in a piece titled “Confederacy of Dunces.” In it, the paper’s editorialists rightly point out that the “bipartisan” support that Dr. Frist alludes to is composed almost entirely of lawyers who work with CCA, including Thurgood Marshall, Jr., who happens to serve on CCA’s board of directors. As to the ABA rating, Mr. Puryear did not receive their highest rating of “well-qualified.” Furthermore, the ABA does not evaluate ideology – a critical question when it comes to the nomination of a federal judge, and one that the Senate and the American people should rightly consider.
Mr. Puryear's nomination is problematic, to say the least. Find out more by reading Alliance for Justice’s full report on Gustavus Puryear, or see our fact sheet on his nomination.
Mr. Puryear, nominated to the Middle District of Tennessee, has relatively minimal court experience. He has spent the majority of his career serving as the Executive Vice President and General Counsel for Corrections Corporation of America (CCA) and his tenure there raises serious red flags about his suitability to hold a federal judgeship.
CCA, headquartered in Nashville, TN is the largest private prison company in the country. In fact, it runs the fifth largest corrections system in the nation – only the federal prison system and those of three states are larger. In addition to conflict of interest and recusal issues that would naturally raise administrative concerns, it is Mr. Puryear's leadership of CCA’s legal department that is truly troubling.
Since its creation in 1983, CCA has faced widespread allegations of abuse and misconduct regarding the treatment of its prisoners. Mr. Puryear has acknowledged that as General Counsel to the company he bears the “ultimate responsibility” for defending CCA in all lawsuits, which according to his own testimony “typically stands between 700 and 1100 at any given time.” One of these cases involved a 34-year-old female prisoner who died after what the medical examiner suggested was a violent beating. When asked about this case during his hearing, Mr. Puryear refused to go into specifics but attempted to provide several explanations that were contrary to the findings of the medical examiner.
Frustrated with the opposition Mr. Puryear’s nomination has faced in the Senate Judiciary Committee, his former employer Dr. Bill Frist (formerly a senator from Tennessee as well as Senate majority leader), wrote an editorial in the Tennessean defending his former protégé. In his article, Dr. Frist claimed that “Gus enjoys broad bipartisan support within Nashville and in Washington” and that “despite the fact that the American Bar Association unanimously rated Gus qualified to be a U.S. district judge, some political-interest groups have criticized him.” Hmmm…
The Nashville Scene, which has written several articles about the controversy surrounding Mr. Puryear’s nomination, responded to the former senator’s claims in a piece titled “Confederacy of Dunces.” In it, the paper’s editorialists rightly point out that the “bipartisan” support that Dr. Frist alludes to is composed almost entirely of lawyers who work with CCA, including Thurgood Marshall, Jr., who happens to serve on CCA’s board of directors. As to the ABA rating, Mr. Puryear did not receive their highest rating of “well-qualified.” Furthermore, the ABA does not evaluate ideology – a critical question when it comes to the nomination of a federal judge, and one that the Senate and the American people should rightly consider.
Mr. Puryear's nomination is problematic, to say the least. Find out more by reading Alliance for Justice’s full report on Gustavus Puryear, or see our fact sheet on his nomination.
Wednesday, April 16, 2008
Senators Play “Lets Make a Deal” on Judges
Once again, we have news on the judges front. It seems there are two tentative deals in the works that would address the question of President Bush’s pending circuit court nominees.
One of these agreements appeared to be brokered directly between Senate Judiciary Chair Patrick Leahy (D-VT), Michigan Senators Carl Levin and Debbie Stabenow and the White House. In exchange for President Bush’s nomination of Michigan Court of Appeals Judge Helene White (a former Clinton nominee) to one of the vacancies on the Sixth Circuit Court of Appeals, Sen. Leahy agreed to also consider the nomination of Raymond Kethledge.
As part of this deal, President Bush withdrew U.S. Attorney Stephen Murphy from consideration for a seat on the Sixth Circuit and instead nominated him for a district court judgeship. In a statement released yesterday, Sen. Leahy referred to the agreement as “a significant development that can lead to filling the last two vacancies on the Sixth Circuit before this year ends.”
But wait, there’s more! Senate Majority Leader Harry Reid (D-NV) also appeared to have worked out an agreement with Senate Minority Leader Mitch McConnell (R-KY). In exchange for Sen. Reid’s efforts to push through at least three pending circuit court nominees before Memorial Day recess, Sen. McConnell agreed to stop blocking a bipartisan highway funding bill.
As of yet, it is unclear how these deals will work together and what aspects will eventually be implemented, but Alliance for Justice will be following the matter closely. We will be sure to keep you updated as developments unfold. For information on any of these pending nominees, check our website here.
One of these agreements appeared to be brokered directly between Senate Judiciary Chair Patrick Leahy (D-VT), Michigan Senators Carl Levin and Debbie Stabenow and the White House. In exchange for President Bush’s nomination of Michigan Court of Appeals Judge Helene White (a former Clinton nominee) to one of the vacancies on the Sixth Circuit Court of Appeals, Sen. Leahy agreed to also consider the nomination of Raymond Kethledge.
As part of this deal, President Bush withdrew U.S. Attorney Stephen Murphy from consideration for a seat on the Sixth Circuit and instead nominated him for a district court judgeship. In a statement released yesterday, Sen. Leahy referred to the agreement as “a significant development that can lead to filling the last two vacancies on the Sixth Circuit before this year ends.”
But wait, there’s more! Senate Majority Leader Harry Reid (D-NV) also appeared to have worked out an agreement with Senate Minority Leader Mitch McConnell (R-KY). In exchange for Sen. Reid’s efforts to push through at least three pending circuit court nominees before Memorial Day recess, Sen. McConnell agreed to stop blocking a bipartisan highway funding bill.
As of yet, it is unclear how these deals will work together and what aspects will eventually be implemented, but Alliance for Justice will be following the matter closely. We will be sure to keep you updated as developments unfold. For information on any of these pending nominees, check our website here.
Daily Dose
- Supreme Court hears arguments in child rapist death penalty case [AP via WP]
- Editorial: A Crime and Its Punishment [WP]
- Supreme Court upholds lethal injections in Kentucky [AP via LATimes]
- Sen. Whitehouse on justice and the rule of law [Firedoglake]
Tuesday, April 15, 2008
The Post Accuses Senators of “Playing Games” on Judges
Lately it seems that this blog has been laden with entries regarding the status of President Bush’s pending judicial nominees. But conservative senators, media outlets and editorial boards have been pushing the issue hard this month – no doubt because we find ourselves in an election year – and as a result, we find ourselves obliged to set the record straight.
Today, another editorial came out calling on the Senate to “stop playing games with judicial nominees.” The Washington Post accused senators of not following through on their “duty to evaluate those who have been nominated.” Apparently the Post gives quite a bit of deference to Republican talking points, because today’s piece sounded as if it had come straight from Sen. Arlen Specter’s playbook.
We find it curious that of all the pending nominees under Senate consideration, the Post chose to highlight only two of the nominees – ignoring highly controversial nominees with troubling records like Steven Matthews and Robert Conrad altogether. The Post also glossed over issues surrounding the nominations of both Mr. Rosenstein and Mr. Keisler – including the fact that the White House has continued to stonewall the Senate over documents that would shed light on Mr. Keisler's record and judicial philosophy. If the Post is going to call on the Senate to evaluate nominees, it should also call on the White House and nominees to provide the Senate with essential materials critical to that evaluation. For more on these nominees, please see our background information.
Just because the Senate is taking its advice and consent role seriously does not mean that it is playing politics. For proof, just look at how smoothly the nomination of G. Steven Agee (also from the Fourth Circuit) is proceeding. Agee was on a bipartisan list of suggested candidates provided to President Bush by both Virginia senators, and his nomination is expected to proceed without delay. Maybe President Bush and his allies should take the hint and put forward some consensus nominees for the remaining circuit court seats instead of attempting to start yet another election year fight over judges.
The truth is, President Bush has consistently put forward controversial nominees for lifetime appointments to the federal bench, and his allies in the Senate are attempting to make a last-ditch effort to push them through before his term expires. This however, would truly be unfair to the “plaintiffs, defendants, crime victims and businesses relying on the courts to…dispense justice,” for which the Washington Post editorial board seems so concerned. Because in truth, it is the American people who are being hurt as their rights are consistently being chipped away by decisions coming down from a judiciary with an increasingly conservative majority.
Today, another editorial came out calling on the Senate to “stop playing games with judicial nominees.” The Washington Post accused senators of not following through on their “duty to evaluate those who have been nominated.” Apparently the Post gives quite a bit of deference to Republican talking points, because today’s piece sounded as if it had come straight from Sen. Arlen Specter’s playbook.
We find it curious that of all the pending nominees under Senate consideration, the Post chose to highlight only two of the nominees – ignoring highly controversial nominees with troubling records like Steven Matthews and Robert Conrad altogether. The Post also glossed over issues surrounding the nominations of both Mr. Rosenstein and Mr. Keisler – including the fact that the White House has continued to stonewall the Senate over documents that would shed light on Mr. Keisler's record and judicial philosophy. If the Post is going to call on the Senate to evaluate nominees, it should also call on the White House and nominees to provide the Senate with essential materials critical to that evaluation. For more on these nominees, please see our background information.
Just because the Senate is taking its advice and consent role seriously does not mean that it is playing politics. For proof, just look at how smoothly the nomination of G. Steven Agee (also from the Fourth Circuit) is proceeding. Agee was on a bipartisan list of suggested candidates provided to President Bush by both Virginia senators, and his nomination is expected to proceed without delay. Maybe President Bush and his allies should take the hint and put forward some consensus nominees for the remaining circuit court seats instead of attempting to start yet another election year fight over judges.
The truth is, President Bush has consistently put forward controversial nominees for lifetime appointments to the federal bench, and his allies in the Senate are attempting to make a last-ditch effort to push them through before his term expires. This however, would truly be unfair to the “plaintiffs, defendants, crime victims and businesses relying on the courts to…dispense justice,” for which the Washington Post editorial board seems so concerned. Because in truth, it is the American people who are being hurt as their rights are consistently being chipped away by decisions coming down from a judiciary with an increasingly conservative majority.
Monday, April 14, 2008
The “Science” of Judicial Selection
Realizing the extraordinary power of the federal judiciary to interpret our laws and enforce constitutional protections, the right has had its sights set on our courts for decades. Movement conservatives have engaged in a decades-long campaign to pack the courts with like-minded ideologues.
Over that time, conservative strategists have become experts in the art of navigating the judicial confirmation process, coaching their nominees to say as little as possible, spout carefully crafted talking points, and dodge any questions that might touch on substantive issues. These strategists have attempted to frame the issue so that senators might no longer feel comfortable probing the judicial philosophy of nominees, while simultaneously trying to convince large portions of the American public that the Senate’s only constitutional responsibility is to rubberstamp the sitting president’s appointments.
Today, an opinion piece in the New York Times took issue with the diminishing role that the Senate has played recently in the vetting of potential judges, particularly those who are nominated to sit on the Supreme Court. The editorial references a recent study which compared decisions made by nine Supreme Court justices to statements they made during their confirmation hearings. According to “empirical evidence,” statements about a nominee’s judicial philosophy “provide very little information about future judicial behavior.” The study suggests that “inquiries into specific issue areas…may be…more informative.”
One of the most fascinating observations made in today’s piece involved Justice Antonin Scalia, who we recently criticized for telling a group of law students that “it is the duty of anyone going through a confirmation hearing…to answer as few questions as possible about how [they] would vote as a judge.” According to the study, Justices Scalia and Thomas, who both professed a deep respect for stare decisis – giving deference to prior decisions of the Court – during their confirmation hearings, turned out to be the two justices most likely to overturn previous court decisions. Despite the fact that during his hearings Justice Thomas said that “stare decisis provides continuity to our system [and]…is a very important and critical concept,” Justice Scalia has said that his colleague “doesn't believe in stare decisis, period.”
This disconnect between what nominees say during their confirmation hearings and how they act once seated, is something that Alliance for Justices has been concerned about for quite some time. In our films Quiet Revolution and Supreme Injustices, we examine the differences between the judicial temperaments displayed by nominees before the Senate versus how they acted once they were appointed to their seat.
This strategy of disguising one’s actual judicial philosophy by offering up vague assurances to the Senate is precisely why AFJ works so hard to research the judicial records of pending nominees. We have always argued that the best way to determine how a nominee will act in the future is to examine how he or she has acted in the past. As such, it is important that the Senate reassert its constitutional advice and consent role, and thoroughly scrutinize nominees’ records and views. After all, these individuals are nominated largely because of the beliefs they hold and ideology they espouse and the Senate as well as the American people have a right to know what those views are.
Over that time, conservative strategists have become experts in the art of navigating the judicial confirmation process, coaching their nominees to say as little as possible, spout carefully crafted talking points, and dodge any questions that might touch on substantive issues. These strategists have attempted to frame the issue so that senators might no longer feel comfortable probing the judicial philosophy of nominees, while simultaneously trying to convince large portions of the American public that the Senate’s only constitutional responsibility is to rubberstamp the sitting president’s appointments.
Today, an opinion piece in the New York Times took issue with the diminishing role that the Senate has played recently in the vetting of potential judges, particularly those who are nominated to sit on the Supreme Court. The editorial references a recent study which compared decisions made by nine Supreme Court justices to statements they made during their confirmation hearings. According to “empirical evidence,” statements about a nominee’s judicial philosophy “provide very little information about future judicial behavior.” The study suggests that “inquiries into specific issue areas…may be…more informative.”
One of the most fascinating observations made in today’s piece involved Justice Antonin Scalia, who we recently criticized for telling a group of law students that “it is the duty of anyone going through a confirmation hearing…to answer as few questions as possible about how [they] would vote as a judge.” According to the study, Justices Scalia and Thomas, who both professed a deep respect for stare decisis – giving deference to prior decisions of the Court – during their confirmation hearings, turned out to be the two justices most likely to overturn previous court decisions. Despite the fact that during his hearings Justice Thomas said that “stare decisis provides continuity to our system [and]…is a very important and critical concept,” Justice Scalia has said that his colleague “doesn't believe in stare decisis, period.”
This disconnect between what nominees say during their confirmation hearings and how they act once seated, is something that Alliance for Justices has been concerned about for quite some time. In our films Quiet Revolution and Supreme Injustices, we examine the differences between the judicial temperaments displayed by nominees before the Senate versus how they acted once they were appointed to their seat.
This strategy of disguising one’s actual judicial philosophy by offering up vague assurances to the Senate is precisely why AFJ works so hard to research the judicial records of pending nominees. We have always argued that the best way to determine how a nominee will act in the future is to examine how he or she has acted in the past. As such, it is important that the Senate reassert its constitutional advice and consent role, and thoroughly scrutinize nominees’ records and views. After all, these individuals are nominated largely because of the beliefs they hold and ideology they espouse and the Senate as well as the American people have a right to know what those views are.
Thursday, April 10, 2008
Republicans Ratchet Up Rhetoric over Judges
Today, Senate Republicans renewed threats to “shut down the Senate” if their Democratic colleagues didn’t start confirming President Bush’s pending circuit court nominees. Emboldened by the support of his party, Sen. Arlen Specter (R-PA), ranking member of the Senate Judiciary Committee, announced that “there is a growing movement in the Republican caucus to hold up legislation if we cannot move in any other way to get justice on the confirmation of these judges.”
Oddly enough, these complaints came on the same day that Catherina Haynes, Bush’s nominee to fill the final vacancy on the Fifth Circuit Court of Appeals, is expected to receive Senate approval for her appointment. Sen. John Cornyn (R-TX), who joined his fellow Republicans in condemning Senate Democrats, hinted at the peculiar timing of today’s outburst. In a statement, Sen. Cornyn thanked Senate Majority Leader Harry Reid (D-NV) for “his cooperation in dealing with…Catharina Haines [sic].” It seems that Sen. Cornyn’s office has been too busy bashing the Democrats’ so-called “stall tactics” to worry about something as trivial as spelling his home state nominee’s name correctly.
The Senate GOP seems determined to instigate an election-year battle over the issue of judges – a particular favorite of their conservative base. Sen. Orrin Hatch (R-UT) wrote an opinion piece for The National Review last week in which he claimed that “at both stages in the confirmation process, the Judiciary Committee and the Senate floor, Democrats are failing to meet both historical and their own standards.” Sen. Specter spoke with the Wall Street Journal editorial board last Wednesday to articulate his plan to initiate “a series of procedural stalls that would make it next to impossible for the Senate to get anything done.” And on the Senate floor today, Sen. Sam Brownback (R-KS) warned that “unless we start approving some circuit court judges, business isn’t going to happen around here.”
In a statement released today, Alliance for Justice President Nan Aron dismissed this rhetoric as partisan nonsense. “Senate Republicans lob quite a few stones from their glass house, bemoaning the actions of Senate Democrats as politicizing the process when it is the Bush administration and its allies that treat judicial selection as a take-no-prisoners item on a political agenda. It is not Senate Democrats who have threatened to grind the nation’s business to a halt - not once, but twice - because they aren’t getting their way. It is not Senate Democrats who use the federal bench as red meat for their base. This latest sally is nothing more than sound and fury signifying an election year.”
Oddly enough, these complaints came on the same day that Catherina Haynes, Bush’s nominee to fill the final vacancy on the Fifth Circuit Court of Appeals, is expected to receive Senate approval for her appointment. Sen. John Cornyn (R-TX), who joined his fellow Republicans in condemning Senate Democrats, hinted at the peculiar timing of today’s outburst. In a statement, Sen. Cornyn thanked Senate Majority Leader Harry Reid (D-NV) for “his cooperation in dealing with…Catharina Haines [sic].” It seems that Sen. Cornyn’s office has been too busy bashing the Democrats’ so-called “stall tactics” to worry about something as trivial as spelling his home state nominee’s name correctly.
The Senate GOP seems determined to instigate an election-year battle over the issue of judges – a particular favorite of their conservative base. Sen. Orrin Hatch (R-UT) wrote an opinion piece for The National Review last week in which he claimed that “at both stages in the confirmation process, the Judiciary Committee and the Senate floor, Democrats are failing to meet both historical and their own standards.” Sen. Specter spoke with the Wall Street Journal editorial board last Wednesday to articulate his plan to initiate “a series of procedural stalls that would make it next to impossible for the Senate to get anything done.” And on the Senate floor today, Sen. Sam Brownback (R-KS) warned that “unless we start approving some circuit court judges, business isn’t going to happen around here.”
In a statement released today, Alliance for Justice President Nan Aron dismissed this rhetoric as partisan nonsense. “Senate Republicans lob quite a few stones from their glass house, bemoaning the actions of Senate Democrats as politicizing the process when it is the Bush administration and its allies that treat judicial selection as a take-no-prisoners item on a political agenda. It is not Senate Democrats who have threatened to grind the nation’s business to a halt - not once, but twice - because they aren’t getting their way. It is not Senate Democrats who use the federal bench as red meat for their base. This latest sally is nothing more than sound and fury signifying an election year.”
Wednesday, April 9, 2008
Scalia Spouts Stale Judicial Philosophy
Justice Antonin Scalia has been traveling the country this week to promote his new book on legal argument. While speaking to students at Roger Williams University School of Law and Fairfax County high schools, Scalia attempted to explain the basis for his judicial philosophy, which he refers to as an “originalist” view, and criticized the current process of judicial confirmations in the Senate.
Scalia mocked recent Senate battles over judicial nominees, likening them to “mini constitutional convention[s],” and noted that while he received 98 votes for his seat on the Supreme Court in 1986, he doubted that he could even “get 60 votes today.” Ahem. Not to sound callous…but if we had our way, he wouldn’t even have be able to dig up that many. Justice Scalia has been one of the most reliably conservative voices the Supreme Court has ever had.
In his attempt to make a case for his philosophy of constitutional originalism, the 72-year-old justice rejected the view that the Constitution is a “living document,” arguing that “Reading new stuff into the Constitution will bring you what a constitution always brings – rigidity.” He opined, “You don’t need a constitution for flexibility. All you need is a legislature and a ballot box.” When students pushed back and suggested that judges should intervene when legislatures are slow to resolve tough social or moral dilemmas, Scalia was dismissive. “I am not a moralist-in-chief…[nor an] ayatollah who is supposed to tell America what its morality should be.”
It seems to us that those who espouse this so-called “originalist” view of the Constitution are in fact just being indolent. With one vague philosophical declaration, they have conveniently freed themselves of any responsibility to make this 200-year-old document applicable to the complexities of modern life. For evidence, one need only look as far as the Indiana Voter-ID case which recently came before the Supreme Court. Everyone acknowledges that the Constitution guarantees the right to vote, but judging from the questions Scalia asked during oral arguments, he is not inclined to extend this right much beyond the hypothetical. His views seem to imply that just because the government has to let you vote doesn’t mean it has to make it easy for you to do so.
Movement conservatives like Justice Scalia frequently throw around terms like "judicial restraint" and decry so-called "activist judges" who "legislate from the bench,” as if to minimize the Third Branch's authority. But they use these catch phrases to distract from their own agenda, which consists of overturning settled precedents when they conflict with desired results, restricting access to the courts, and promoting the interests of businesses over consumer protections. This ultra-conservative agenda is precisely why Alliance for Justice fights as hard as it does – not just to keep judges in the mold of Antonin Scalia off the bench, but to advance a vision of the law which champions fairness, justice and equality for all.
Scalia mocked recent Senate battles over judicial nominees, likening them to “mini constitutional convention[s],” and noted that while he received 98 votes for his seat on the Supreme Court in 1986, he doubted that he could even “get 60 votes today.” Ahem. Not to sound callous…but if we had our way, he wouldn’t even have be able to dig up that many. Justice Scalia has been one of the most reliably conservative voices the Supreme Court has ever had.
In his attempt to make a case for his philosophy of constitutional originalism, the 72-year-old justice rejected the view that the Constitution is a “living document,” arguing that “Reading new stuff into the Constitution will bring you what a constitution always brings – rigidity.” He opined, “You don’t need a constitution for flexibility. All you need is a legislature and a ballot box.” When students pushed back and suggested that judges should intervene when legislatures are slow to resolve tough social or moral dilemmas, Scalia was dismissive. “I am not a moralist-in-chief…[nor an] ayatollah who is supposed to tell America what its morality should be.”
It seems to us that those who espouse this so-called “originalist” view of the Constitution are in fact just being indolent. With one vague philosophical declaration, they have conveniently freed themselves of any responsibility to make this 200-year-old document applicable to the complexities of modern life. For evidence, one need only look as far as the Indiana Voter-ID case which recently came before the Supreme Court. Everyone acknowledges that the Constitution guarantees the right to vote, but judging from the questions Scalia asked during oral arguments, he is not inclined to extend this right much beyond the hypothetical. His views seem to imply that just because the government has to let you vote doesn’t mean it has to make it easy for you to do so.
Movement conservatives like Justice Scalia frequently throw around terms like "judicial restraint" and decry so-called "activist judges" who "legislate from the bench,” as if to minimize the Third Branch's authority. But they use these catch phrases to distract from their own agenda, which consists of overturning settled precedents when they conflict with desired results, restricting access to the courts, and promoting the interests of businesses over consumer protections. This ultra-conservative agenda is precisely why Alliance for Justice fights as hard as it does – not just to keep judges in the mold of Antonin Scalia off the bench, but to advance a vision of the law which champions fairness, justice and equality for all.
Daily Dose
- Trial, shmial: let’s make a corporate deal [NYT, NoComment]
- Rep. Conyers “invites” John Yoo to testify before Congress [TPMMuckraker]
- Vice Chair of 9/11 Commission disputes Mukasey’s recent surveillance claim [GlennGreenwald]
Tuesday, April 8, 2008
Specter Offers Judges Fight as Proof of Conservative Bonafides
Politicians attempting to pander to their base is nothing new. In fact, it's not even surprising. Both parties take advantage of this political strategy, but during the Bush years the Republicans have managed to turn it into an art form. Realizing that the end of their heyday (otherwise known as the Bush presidency) is rapidly approaching, Republican senators are shocked to find themselves on the losing side of the debate on health-care, the economy and the war in Iraq. As a result, beleagured GOP Senators have turned to an old party favorite: judges.
Leading this charge to the right is Sen. Arlen Specter (R-Pa.), ranking member of the Senate Judiciary Committee. Having faced a particularly tough challenger in his 2004 primary contest, Sen. Specter is all too acquainted with the dangers of a disgruntled conservative base. And according to The Hill, he is attempting to appease that base by starting an election-year row over President Bush’s circuit court nominees.
Over the past month, Sen. Specter has repeatedly threatened to “shut down the Senate” if his colleagues on the Judiciary Committee don’t start approving Bush’s pending judicial nominees. He argues that Senate Democrats unfairly stall these nominations, thumbing their noses at their constitutional responsibility to confirm judges. The senator’s frustration reached a boiling point last week during a Committee vote on Fifth Circuit Nominee Catherina Haynes. Sen. Specter and his fellow Republicans spent so much time denouncing their Democratic colleagues, that they almost forgot to vote on their own judge.
With the end of Bush’s term rapidly approaching, a certain amount of Republican pressure to push through his remaining judicial nominees was not unexpected. But the extent to which Sen. Specter has made this an issue has surprised many, and led some to infer that “Specter’s strong criticism and threats [are] motivated by his own political survival.”
Conservatives have historically been disappointed with Sen. Specter’s reluctance to support Bush’s tax-cuts. His general support of labor-unions and his opposition to Robert Bork’s nomination to the Supreme Court led several in his party to resist his nomination to chair the Senate Judiciary Committee. Having won his Party’s nomination in 2004 by a mere 2 points, Sen. Specter now finds himself with precious little time to set the record straight on judges. As Connie Mackey of the Family Research Council said, “He has reached out to some degree…but he doesn’t have any success to offer.”
It seems strange that Senate Republicans would accuse the Senate Democrats of “playing politics” on judges. Particularly considering that its senators like Arlen Specter who are attempting to use this issue as a wedge to energize their base. The Senate has a responsibility to the American public to ensure a fair and independent judiciary. It should resist the temptation to play election-year politics and refuse to confirm any controversial nominees, especially those who do not have the support of their home-state senators.
Leading this charge to the right is Sen. Arlen Specter (R-Pa.), ranking member of the Senate Judiciary Committee. Having faced a particularly tough challenger in his 2004 primary contest, Sen. Specter is all too acquainted with the dangers of a disgruntled conservative base. And according to The Hill, he is attempting to appease that base by starting an election-year row over President Bush’s circuit court nominees.
Over the past month, Sen. Specter has repeatedly threatened to “shut down the Senate” if his colleagues on the Judiciary Committee don’t start approving Bush’s pending judicial nominees. He argues that Senate Democrats unfairly stall these nominations, thumbing their noses at their constitutional responsibility to confirm judges. The senator’s frustration reached a boiling point last week during a Committee vote on Fifth Circuit Nominee Catherina Haynes. Sen. Specter and his fellow Republicans spent so much time denouncing their Democratic colleagues, that they almost forgot to vote on their own judge.
With the end of Bush’s term rapidly approaching, a certain amount of Republican pressure to push through his remaining judicial nominees was not unexpected. But the extent to which Sen. Specter has made this an issue has surprised many, and led some to infer that “Specter’s strong criticism and threats [are] motivated by his own political survival.”
Conservatives have historically been disappointed with Sen. Specter’s reluctance to support Bush’s tax-cuts. His general support of labor-unions and his opposition to Robert Bork’s nomination to the Supreme Court led several in his party to resist his nomination to chair the Senate Judiciary Committee. Having won his Party’s nomination in 2004 by a mere 2 points, Sen. Specter now finds himself with precious little time to set the record straight on judges. As Connie Mackey of the Family Research Council said, “He has reached out to some degree…but he doesn’t have any success to offer.”
It seems strange that Senate Republicans would accuse the Senate Democrats of “playing politics” on judges. Particularly considering that its senators like Arlen Specter who are attempting to use this issue as a wedge to energize their base. The Senate has a responsibility to the American public to ensure a fair and independent judiciary. It should resist the temptation to play election-year politics and refuse to confirm any controversial nominees, especially those who do not have the support of their home-state senators.
AFJ Asks Erwin Chemerinsky About Judges, Civil Liberties and the Fourth Amendment
Yesterday, Professor Erwin Chemerinsky of Duke Law School participated in a live chat on FireDogLake as part of our First Monday Series. The chat coincided with the launch of Alliance for Justice's latest short film, which you can watch below.
Professor Chemerinsky, one of the nation's leading experts on consitutional law, discussed civil liberties and Fourth Amendment protections:
To learn more about AFJ's First Monday Series check out our website at here. To read yesterday's entry on FireDogLake, click here.
Professor Chemerinsky, one of the nation's leading experts on consitutional law, discussed civil liberties and Fourth Amendment protections:
I think that [the] political candidates are appealing to what they think will get them votes. They believe that the American people don’t really care about the abuses that have occurred in the war on terror. They fear that complaining about...the war on terror will make them look soft. I believe that they are grossly underestimating the American people and [their] commitment to the rule of law and human rights.
To learn more about AFJ's First Monday Series check out our website at here. To read yesterday's entry on FireDogLake, click here.
Monday, April 7, 2008
Daily Dose
- Former Alabama Gov. Siegelman follows up with 60 Minutes [TPMMuckraker]
- 11th Circuit reverses ruling on Florida voter-ID law [MiamiHerald]
- Mukasey adjusting to life as AG [AP via WP]
- Editorial: Another Test for Habeas Corpus [NYT]
Friday, April 4, 2008
DC Circuit Considers Legality of Detainee Treatment Act
In yet another challenge to the Bush administration’s sweeping claims of executive power, a Chinese national who is being held at Guantanamo Bay, has disputed the constitutionality of the Detainee Treatment Act of 2005 (DTA). In an appeal brought before the DC Circuit Court of Appeals, Huzaifa Parhat and his attorneys question the legality of the broad “enemy combatant” definition enacted by the DTA, which was passed as a congressional attempt to undo the Supreme Court's holding (Rasul v. Bush, 2004) that non-citizens detained without charge at Guantanamo have a right to a hearing in U.S. court.
Parhat, who has been a prisoner at Guantanamo Bay for almost six years, is one of several men known as Uighurs who were detained in Afghanistan in 2001. Uighurs, Muslims from Western China, are a religious and an ethnic minority in their home country. Parhat claims that he and his fellow Uighur refugees came to Afghanistan in an attempt to flee persecution by the Chinese government. It turns out that persecution is not so easy to escape.
According to the Associated Press, the American government “acknowledges it has no evidence that Parhat…ever fought against the U.S. or its allies” but still considers him a threat. Officials at the Justice Department claim that he received “weapons training” from an organization known as the East Turkestan Islamic Movement (ETIM), which they allege has ties to al Qaeda. Even though they have no evidence that Parhat was ever actually a member of ETIM, officials claim that even a tenuous association with the group would justify his detention.
This issue, how a person is classified as an “enemy combatant,” is at the center of Parhat’s court challenge. According to Parhat’s attorneys, the DTA only provides the president with the authority to detain people directly affiliated with al Qaeda, not ETIM. The Justice Department dismisses this argument, and contends that the president should naturally have the authority to classify anyone associated with any organization affiliated with al Qaeda as combatants.
Parhat’s case joins several others currently being considered by both the DC Circuit and the Supreme Court which question exactly how much authority the president has to detain suspected terrorists. This case differs from the others in the sense that it actually challenges the very definition of an enemy combatant, rather than what procedures should apply to that class of people or whether there is evidence that a certain person actually falls within the definition.
The Bush administration has used the “war on terror” to dismantle the very bedrocks of our legal system which have made it a beacon of liberty and justice throughout the world. The Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 are shameful pieces of legislation which were passed in an atmosphere of paranoia and fear. They do not reflect the values that America holds dear and should be repealed immediately. Until Congress sees fit to fix these laws however, the federal judiciary has the responsibility to review them against the backdrop of the Constitution and strike them down when they conflict with its guarantees.
Parhat, who has been a prisoner at Guantanamo Bay for almost six years, is one of several men known as Uighurs who were detained in Afghanistan in 2001. Uighurs, Muslims from Western China, are a religious and an ethnic minority in their home country. Parhat claims that he and his fellow Uighur refugees came to Afghanistan in an attempt to flee persecution by the Chinese government. It turns out that persecution is not so easy to escape.
According to the Associated Press, the American government “acknowledges it has no evidence that Parhat…ever fought against the U.S. or its allies” but still considers him a threat. Officials at the Justice Department claim that he received “weapons training” from an organization known as the East Turkestan Islamic Movement (ETIM), which they allege has ties to al Qaeda. Even though they have no evidence that Parhat was ever actually a member of ETIM, officials claim that even a tenuous association with the group would justify his detention.
This issue, how a person is classified as an “enemy combatant,” is at the center of Parhat’s court challenge. According to Parhat’s attorneys, the DTA only provides the president with the authority to detain people directly affiliated with al Qaeda, not ETIM. The Justice Department dismisses this argument, and contends that the president should naturally have the authority to classify anyone associated with any organization affiliated with al Qaeda as combatants.
Parhat’s case joins several others currently being considered by both the DC Circuit and the Supreme Court which question exactly how much authority the president has to detain suspected terrorists. This case differs from the others in the sense that it actually challenges the very definition of an enemy combatant, rather than what procedures should apply to that class of people or whether there is evidence that a certain person actually falls within the definition.
The Bush administration has used the “war on terror” to dismantle the very bedrocks of our legal system which have made it a beacon of liberty and justice throughout the world. The Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 are shameful pieces of legislation which were passed in an atmosphere of paranoia and fear. They do not reflect the values that America holds dear and should be repealed immediately. Until Congress sees fit to fix these laws however, the federal judiciary has the responsibility to review them against the backdrop of the Constitution and strike them down when they conflict with its guarantees.
Daily Dose
- Justice Dept. memo created terror exception to 4th Amendment [WP]
- Appeals court takes up enemy combatant question [NYT]
- Rep. Conyers presses Mukasey on FISA statements [TPMMuckraker]
- Editorial: Tortured Logic [WP]
- Editorial: There Where Orders to Follow [NYT]
Thursday, April 3, 2008
Senate Judiciary Republicans Throw Fit Over Judges
In one of the most shocking displays of partisan squabbling we’ve seen in some time, the Senate Judiciary Committee broke into chaos today while attempting to hold a vote on controversial Bush nominee Catherina Haynes, who would fill the final vacancy on the Fifth Circuit Court of Appeals. During the Committee’s executive business meeting, all but one Republican Committee member joined Ranking Member Arlen Specter (R-PA), Orrin Hatch (R-UT) and Sam Brownback (R-KS) in blasting what they called efforts by Chairman Patrick Leahy (D-VT) and his fellow Democrats to derail several Bush circuit court nominees.
Republicans on the Committee, who seem to have galvanized behind Sen. Specter’s plan to stall Senate procedures, appeared to take turns denouncing their Democratic colleagues. According to Congressional Quarterly, Sen. Brownback griped, “I think we all know where this is headed right now,” and warned that slow progression on Bush’s nominees might “force guys like [him] to say ‘okay, I guess we have to take extraordinary actions.’”
While reports have been circulating for some time that Sen. Specter was considering “shutting down the Senate” in the hopes of forcing movement on judges, today’s Committee outburst was really only successful in delaying the vote on Fifth Circuit nominee Catherina Haynes, amounting to what Chairman Leahy called a “filibustering of [their] own judge.” When Chairman Leahy finally sounded the two-minute warning, the absurdity of the Republicans' endless bickering appeared to seep in, prompting Sen. Specter to call on his colleagues to wrap up their sniping in order to hold a voice vote on Haynes. Committee Republicans were left with just enough time to push through her nomination.
When the meeting adjourned, Sen. Charles Schumer (D-NY) dismissed the complaints of his Republican colleagues, claiming that “conservative[s]…know they no longer control the legislature…and their goal is [to] get as many hard-right people on the bench as possible.” In a statement released this afternoon, Alliance for Justice echoed Sen. Schumer’s concerns and called on the Senate to refuse hearings for all controversial nominees, particularly those who lack the support of their home-state senators.
Republicans on the Committee, who seem to have galvanized behind Sen. Specter’s plan to stall Senate procedures, appeared to take turns denouncing their Democratic colleagues. According to Congressional Quarterly, Sen. Brownback griped, “I think we all know where this is headed right now,” and warned that slow progression on Bush’s nominees might “force guys like [him] to say ‘okay, I guess we have to take extraordinary actions.’”
While reports have been circulating for some time that Sen. Specter was considering “shutting down the Senate” in the hopes of forcing movement on judges, today’s Committee outburst was really only successful in delaying the vote on Fifth Circuit nominee Catherina Haynes, amounting to what Chairman Leahy called a “filibustering of [their] own judge.” When Chairman Leahy finally sounded the two-minute warning, the absurdity of the Republicans' endless bickering appeared to seep in, prompting Sen. Specter to call on his colleagues to wrap up their sniping in order to hold a voice vote on Haynes. Committee Republicans were left with just enough time to push through her nomination.
When the meeting adjourned, Sen. Charles Schumer (D-NY) dismissed the complaints of his Republican colleagues, claiming that “conservative[s]…know they no longer control the legislature…and their goal is [to] get as many hard-right people on the bench as possible.” In a statement released this afternoon, Alliance for Justice echoed Sen. Schumer’s concerns and called on the Senate to refuse hearings for all controversial nominees, particularly those who lack the support of their home-state senators.
Wednesday, April 2, 2008
Senate Republicans Play Hardball on Judges
Senate Republicans are turning up the heat on their Democratic colleagues to push through President Bush’s remaining judicial nominees. Just two days after Sen. Orrin Hatch (R-Ut.) criticized Senate Democrats in The National Review for not moving fast enough on judges, the Wall Street Journal notes that Sen. Arlen Specter (R-Pa.), ranking member of the Senate Judiciary Committee, is attempting to make good on earlier threats to “shut down the Senate” if Committee Chair Patrick Leahy (D-Vt.) doesn’t start scheduling votes.
A Wall Street Journal opinion piece today was supportive of Sen. Specter’s calls for what essentially amounts to a work stoppage, claiming that “the Democrats' slow judicial roll” is an “abuse of the Constitution, which gives the President the responsibility of selecting judges while the Senate has an obligation to vote up or down.” Interesting. The Journal's interpretation of the Constitution seems a bit simplistic – not to mention awfully similar to Sen. Hatch’s. And, as we said yesterday in our response to Sen. Hatch, “nowhere in the Constitution did the Framers provide the caveat, ‘and by advice and consent we mean up-or-down vote.’”
Perhaps the most shocking aspect of today’s editorial, is the inconsistency of its arguments. The idea that Sen. Specter would be justified in promoting “a series of procedural stalls that would make it next to impossible for the Senate to get anything done” because he feels that the Senate is not fulfilling its confirmation duties seems absurd. As Sen. Hatch noted in The National Review Monday, this Congress’ approval ratings are at record lows. To presume that the American public would approve of legislative gridlock generated by Senate Republicans in order to get their way on judges seems highly unlikely.
Sen. Patrick Leahy and his colleagues on the Senate Judiciary Committee have repeatedly offered to work with President Bush to advance nominees who have the support of home-state senators. Nominees like G. Steven Agee, who Bush recently nominated to the Fourth Circuit Court of Appeals. But, it seems that the president and his allies in the Senate would rather play a game of judicial roulette, betting that they can push through a few more ultra-conservative judges before Bush’s term expires. As we’ve said time and again, senators should continue to stand up for the independence of our judiciary and resist mounting pressure to rubberstamp President Bush’s pending nominees.
A Wall Street Journal opinion piece today was supportive of Sen. Specter’s calls for what essentially amounts to a work stoppage, claiming that “the Democrats' slow judicial roll” is an “abuse of the Constitution, which gives the President the responsibility of selecting judges while the Senate has an obligation to vote up or down.” Interesting. The Journal's interpretation of the Constitution seems a bit simplistic – not to mention awfully similar to Sen. Hatch’s. And, as we said yesterday in our response to Sen. Hatch, “nowhere in the Constitution did the Framers provide the caveat, ‘and by advice and consent we mean up-or-down vote.’”
Perhaps the most shocking aspect of today’s editorial, is the inconsistency of its arguments. The idea that Sen. Specter would be justified in promoting “a series of procedural stalls that would make it next to impossible for the Senate to get anything done” because he feels that the Senate is not fulfilling its confirmation duties seems absurd. As Sen. Hatch noted in The National Review Monday, this Congress’ approval ratings are at record lows. To presume that the American public would approve of legislative gridlock generated by Senate Republicans in order to get their way on judges seems highly unlikely.
Sen. Patrick Leahy and his colleagues on the Senate Judiciary Committee have repeatedly offered to work with President Bush to advance nominees who have the support of home-state senators. Nominees like G. Steven Agee, who Bush recently nominated to the Fourth Circuit Court of Appeals. But, it seems that the president and his allies in the Senate would rather play a game of judicial roulette, betting that they can push through a few more ultra-conservative judges before Bush’s term expires. As we’ve said time and again, senators should continue to stand up for the independence of our judiciary and resist mounting pressure to rubberstamp President Bush’s pending nominees.
"When the president does it, that means that it is not illegal."
- Richard Nixon
John Yoo certainly subscribes to Nixon’s view of the power of the presidency. If you thought that Yoo had expended his shock value with claims that torture isn’t torture unless it causes organ failure or death, you should peruse yesterday’s declassified memo, which marks a surprising new low for the Bush administration’s Justice Department. His vehement defense of limitless executive power is a startling reminder of the role that the Office of Legal Counsel (OLC) has played in the Bush administration.
On March 14, 2003, Deputy Assistant Attorney General John Yoo dismantled domestic and international law in only 81 pages, issuing a secret OLC opinion that concludes that the president can authorize torture—and Congress can’t do anything about it. In his examination of "the legal standards governing military interrogations of alien unlawful combatants held outside the United States," Yoo finds that there are none.
First, he dismisses domestic criminal laws against torture, saying that they cannot apply to "the interrogation of enemy combatants undertaken by military personnel" because that would "conflict with the President’s Commander-in-Chief power" to defend the nation. Then he dismisses the Convention Against Torture (CAT), saying that even though the treaty was ratified by the Senate, "[a]ny presidential decision to order interrogation methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions." After deciding that the president can unilaterally and secretly terminate the U.S.’s participation in any treaty by simply ordering its violation, Yoo goes on to assert that even if criminal laws prohibiting torture did apply, "necessity or self-defense could provide justifications for any criminal liability." This marks a vast and unprincipled expansion of standard justifications that exist in ordinary criminal law – a body of law Yoo pages earlier said could not restrain the president or military interrogations. In a strikingly broad declaration invoking "the Nation’s right to self-defense," he proclaims:
Bush has routinely used the OLC to twist the law rather than to uphold it, and this document further underscores that pattern. But of all the stunning aspects of the newly declassified memo, the most dangerous is its tone. Rather than providing an independent and fair assessment of the law’s application, Yoo’s work offers a one-sided and outcome-driven interpretation of domestic and international law. As was stated bluntly in another secret OLC opinion recently declassified at the request of Senator Whitehouse (D-RI), "The Department of Justice is bound by the President’s legal determinations." The president’s lawyers are bound by his interpretation of the law, rather than vice-versa. So according to John Yoo and the Bush Justice Department, President Nixon was right all along.
John Yoo certainly subscribes to Nixon’s view of the power of the presidency. If you thought that Yoo had expended his shock value with claims that torture isn’t torture unless it causes organ failure or death, you should peruse yesterday’s declassified memo, which marks a surprising new low for the Bush administration’s Justice Department. His vehement defense of limitless executive power is a startling reminder of the role that the Office of Legal Counsel (OLC) has played in the Bush administration.
On March 14, 2003, Deputy Assistant Attorney General John Yoo dismantled domestic and international law in only 81 pages, issuing a secret OLC opinion that concludes that the president can authorize torture—and Congress can’t do anything about it. In his examination of "the legal standards governing military interrogations of alien unlawful combatants held outside the United States," Yoo finds that there are none.
First, he dismisses domestic criminal laws against torture, saying that they cannot apply to "the interrogation of enemy combatants undertaken by military personnel" because that would "conflict with the President’s Commander-in-Chief power" to defend the nation. Then he dismisses the Convention Against Torture (CAT), saying that even though the treaty was ratified by the Senate, "[a]ny presidential decision to order interrogation methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions." After deciding that the president can unilaterally and secretly terminate the U.S.’s participation in any treaty by simply ordering its violation, Yoo goes on to assert that even if criminal laws prohibiting torture did apply, "necessity or self-defense could provide justifications for any criminal liability." This marks a vast and unprincipled expansion of standard justifications that exist in ordinary criminal law – a body of law Yoo pages earlier said could not restrain the president or military interrogations. In a strikingly broad declaration invoking "the Nation’s right to self-defense," he proclaims:
Yoo goes on to argue that constitutional limitations on interrogation methods amounting to cruel, inhuman, and degrading treatment that would "shock the conscience" don’t apply if the interrogator "acted in good faith rather than maliciously and sadistically for the very purpose of causing harm.""If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions."
Bush has routinely used the OLC to twist the law rather than to uphold it, and this document further underscores that pattern. But of all the stunning aspects of the newly declassified memo, the most dangerous is its tone. Rather than providing an independent and fair assessment of the law’s application, Yoo’s work offers a one-sided and outcome-driven interpretation of domestic and international law. As was stated bluntly in another secret OLC opinion recently declassified at the request of Senator Whitehouse (D-RI), "The Department of Justice is bound by the President’s legal determinations." The president’s lawyers are bound by his interpretation of the law, rather than vice-versa. So according to John Yoo and the Bush Justice Department, President Nixon was right all along.
Justice Attempts to Justify Torture
Yet another in a series of secret Justice Department memos which provided the White House with a “legal justification” for its policy of “enhanced interrogation” was finally declassified and released to the public yesterday according to a report by the Washington Post.
The 81-page document, which was authored by former Office of Legal Counsel Deputy Assistant Attorney General John Yoo, explained that if the “government…were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, [it] would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network.” Apparently Yoo, who is now a law professor at Berkeley’s Boalt Hall, believed that the determination of what interrogation techniques are “conscience-shocking” and therefore constitute torture depends “in part on whether it is without any justification.” Basically, the ends justify the means and if a few laws get broken along the way...well, them's the breaks. Not exactly what you'd hope to hear from a Justice Department official who swears to uphold the law, rather than circumvent it.
While the existence of memos like Yoo’s has been known for some time, the release of this document provides one of the first opportunities for the public to examine these controversial documents which provided the basis for the White House’s controversial interrogation policy.
Alliance for Justice is currently examining the memo and we will be posting a more in-depth examination on Huffington Post soon. Until then, you can read the document yourself here: Justice Memo: Part I, Part II, Part III and Part IV.
The 81-page document, which was authored by former Office of Legal Counsel Deputy Assistant Attorney General John Yoo, explained that if the “government…were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, [it] would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network.” Apparently Yoo, who is now a law professor at Berkeley’s Boalt Hall, believed that the determination of what interrogation techniques are “conscience-shocking” and therefore constitute torture depends “in part on whether it is without any justification.” Basically, the ends justify the means and if a few laws get broken along the way...well, them's the breaks. Not exactly what you'd hope to hear from a Justice Department official who swears to uphold the law, rather than circumvent it.
While the existence of memos like Yoo’s has been known for some time, the release of this document provides one of the first opportunities for the public to examine these controversial documents which provided the basis for the White House’s controversial interrogation policy.
Alliance for Justice is currently examining the memo and we will be posting a more in-depth examination on Huffington Post soon. Until then, you can read the document yourself here: Justice Memo: Part I, Part II, Part III and Part IV.
Daily Dose
- Tortured logic: Pentagon releases ’03 memo authorizing harsh interrogation techniques [WP, NYT, Balkinization, GlennGreenwald]
- Senate approves O’Connor for no. 3 post at Justice [HartfordCourant]
Tuesday, April 1, 2008
Sen. Hatch Takes Revisionist Stance on History
Yesterday, Senator Orrin Hatch (R-Ut.) wrote an opinion piece for The National Review in which he criticized Senate Democrats for not moving fast enough on President Bush’s judicial nominees. The senator took a rather limited view of the advice and consent role that the Senate plays in the judicial confirmation process, claiming that it “provides advice about whether the president should appoint his judicial nominees by giving or withholding consent through up or down votes. That is what the Constitution assigns us to do…That is what the Senate is failing to do.”
No offense to Sen. Hatch, but we feel his interpretation of the Senate’s constitutional authority is a bit oversimplified. Nowhere in the Constitution did the Framers provide the caveat, "and by advice and consent we mean up-or-down vote.” The Senate has a crucial role in the confirmation process – to carefully consider each nominee for these life-time appointments in order to ensure the independence of our judiciary.
Sen. Hatch trots out several misleading figures to support his argument that Democrats are unfairly blocking the president’s nominees. One of the first points he makes – in a blatant attempt to seize the high ground – is that he has only “voted against…five…nominees to life-tenured judicial positions that the full Senate has considered.” While this figure sounds impressive, it is also conveniently deceptive. What Sen. Hatch forgets to mention is that, as a member of the Senate Judiciary Committee for over 30 years, he has enjoyed the luxury of being able to oppose nominees well before they reach the Senate floor for a vote.
The Senator criticizes his Democratic colleagues by comparing the total number of President Clinton’s nominees who were confirmed to the current number of Bush’s appointments. He claims that “at both stages in the confirmation process, the Judiciary Committee and the Senate floor, Democrats are failing to meet both historical and their own standards.” While it is true that Bush has not appointed quite as many judges as Clinton – mostly due to a significantly lower vacancy rate on the federal bench – most court watchers agree that his efforts to spearhead a conservative takeover of the judiciary have proved much more successful than these numbers would suggest. For proof, see USA Today’s article from just two weeks ago titled, “Bush’s Conservatism to Live Long in the US Courts.”
One of the most galling aspects of the senator’s article is his attempt to separate himself from the political maneuvering that he so strongly condemns. He proclaims that he has never taken a “partisan approach to judicial confirmations.” But a look at the record tells a different story.
Sen. Hatch has proven a staunch and useful ally for Bush in his campaign to pack the courts with ultra-conservative ideologues. As Chairman of the Senate Judiciary Committee, Sen. Hatch broke long-standing procedural agreements by holding hearings on several controversial nominees at the same time and reinterpreted a decades-old rule, which he himself had used to hold up previous Clinton nominees, in order to force votes on Bush’s conservative picks. Let us also remember that, as Chairman of that same committee, Sen. Hatch used his power to unilaterally block dozens of Clinton's nominees from even having hearings, much less a vote.
President Bush has used his two terms in office to advance movement conservatives’ 30-year crusade to take over the federal judiciary. To date, he has succeeded in appointing two ultra-conservative justices to the Supreme Court and tipping the balance of several circuit courts of appeals. And his presidency is not over yet. Bush still has 11 pending circuit court nominees, which if confirmed would put his total number of appointments above that of President Clinton. Sen. Hatch claims that Senate Democrats are unjustly delaying confirmation of these judges by playing partisan politics, but in reality it is the president and his allies in the Senate who refuse to compromise. Senate Judiciary Chair Patrick Leahy (D-Vt.) and his colleagues should hold strong, resist rhetoric like Sen. Hatch’s , and continue to stand up for our courts by refusing to rubberstamp President Bush’s pending nominees.
No offense to Sen. Hatch, but we feel his interpretation of the Senate’s constitutional authority is a bit oversimplified. Nowhere in the Constitution did the Framers provide the caveat, "and by advice and consent we mean up-or-down vote.” The Senate has a crucial role in the confirmation process – to carefully consider each nominee for these life-time appointments in order to ensure the independence of our judiciary.
Sen. Hatch trots out several misleading figures to support his argument that Democrats are unfairly blocking the president’s nominees. One of the first points he makes – in a blatant attempt to seize the high ground – is that he has only “voted against…five…nominees to life-tenured judicial positions that the full Senate has considered.” While this figure sounds impressive, it is also conveniently deceptive. What Sen. Hatch forgets to mention is that, as a member of the Senate Judiciary Committee for over 30 years, he has enjoyed the luxury of being able to oppose nominees well before they reach the Senate floor for a vote.
The Senator criticizes his Democratic colleagues by comparing the total number of President Clinton’s nominees who were confirmed to the current number of Bush’s appointments. He claims that “at both stages in the confirmation process, the Judiciary Committee and the Senate floor, Democrats are failing to meet both historical and their own standards.” While it is true that Bush has not appointed quite as many judges as Clinton – mostly due to a significantly lower vacancy rate on the federal bench – most court watchers agree that his efforts to spearhead a conservative takeover of the judiciary have proved much more successful than these numbers would suggest. For proof, see USA Today’s article from just two weeks ago titled, “Bush’s Conservatism to Live Long in the US Courts.”
One of the most galling aspects of the senator’s article is his attempt to separate himself from the political maneuvering that he so strongly condemns. He proclaims that he has never taken a “partisan approach to judicial confirmations.” But a look at the record tells a different story.
Sen. Hatch has proven a staunch and useful ally for Bush in his campaign to pack the courts with ultra-conservative ideologues. As Chairman of the Senate Judiciary Committee, Sen. Hatch broke long-standing procedural agreements by holding hearings on several controversial nominees at the same time and reinterpreted a decades-old rule, which he himself had used to hold up previous Clinton nominees, in order to force votes on Bush’s conservative picks. Let us also remember that, as Chairman of that same committee, Sen. Hatch used his power to unilaterally block dozens of Clinton's nominees from even having hearings, much less a vote.
President Bush has used his two terms in office to advance movement conservatives’ 30-year crusade to take over the federal judiciary. To date, he has succeeded in appointing two ultra-conservative justices to the Supreme Court and tipping the balance of several circuit courts of appeals. And his presidency is not over yet. Bush still has 11 pending circuit court nominees, which if confirmed would put his total number of appointments above that of President Clinton. Sen. Hatch claims that Senate Democrats are unjustly delaying confirmation of these judges by playing partisan politics, but in reality it is the president and his allies in the Senate who refuse to compromise. Senate Judiciary Chair Patrick Leahy (D-Vt.) and his colleagues should hold strong, resist rhetoric like Sen. Hatch’s , and continue to stand up for our courts by refusing to rubberstamp President Bush’s pending nominees.
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