AFJ Releases Mukasey Nine Month Report

Today, Alliance for Justice released its Nine Month Report on Michael Mukasey’s tenure as attorney general. In it we discuss his failure to properly distinguish his role as the nation’s chief law enforcement official from his service as an agent of the hyper-partisan Bush administration.

With five months remaining in Bush’s term, Mukasey appears to be pursuing a strategy of delay and postponement in an effort to provide cover for the Bush administration’s many abuses of power. In the three months since AFJ’s last report, the most important events have come from outside Mr. Mukasey’s purview, as the Department of Justice’s Inspector General, Congress, and private citizens have started the arduous process of holding the Department accountable. Mr. Mukasey’s refusal to cooperate with these efforts has proved rather troubling.

Daily Dose

• Mukasey Plays Down Politicization [LA Times]
• ABA Suggests Nominating Commissions [WSJ]

Justices Won’t Consider Exxon Case Further

The Supreme Court will not decide whether ExxonMobil should pay interest on punitive damages owed to residents of Alaska who were affected by the 1989 Exxon Valdez oil spill. According to an article in the Associated Press, the Court determined that the Ninth Circuit should determine whether the corporation must pay up to 14 years of interest.

As we mentioned in a previous entry, ExxonMobil brazenly asked the Supreme Court to determine that the interest it owed should be calculated from the date that the Court reduced the punitive damages it owed to just $507 million (10% of the original amount awarded by a jury) in June. We noted the absurdity of this request considering that in this quarter alone, ExxonMobil reported more profits than any American corporation in our nation’s history, $11.68 billion. In order to put that into perspective for everyone, this means that the comparatively paltry punitive amount set by the Court is only 4% of ExxonMobil’s profits this quarter alone.

Still, the decision yesterday by the Court to let the Ninth Circuit determine how much interest the mega-corporation owes bodes well for the residents of Alaska whose lives have been ripped apart by this case for almost 20 years. As an attorney for the Alaskan residents, Jeffrey Fisher explained, the Ninth Circuit has never ruled against awarding interest in a similar case and there is “no reason to think the court would deviat[e] from its precedent.” We certainly hope so.

Daily Dose

• Mukasey Drops the Ball Again [SF Chronicle, WaPo]
• Immigration Judges Should be Fired [La Opinion]

Daily Dose

• Mukasey Refuses to Prosecute [CQ, NYT]
• Detainee Treatment Disgraceful [NYT, Sarasota Herald Tribune]
• SCOTUS Won’t Hear Exxon Appeal [AP]

Mukasey Discusses Semantics at ABA Conference

Speaking at the American Bar Association’s Annual Meeting in New York today, Attorney General Michael Mukasey attempted to alleviate attendees’ concerns that the environment at Justice remains politicized. He told the ABA House of Delegates that “[p]olitics must play no role in either the hiring of career [DOJ] employees or the investigation and prosecution of cases.” His assurances, however, only went so far.

Mr. Mukasey told the delegates that he would not fire any employees who were hired for political reasons because “they did nothing wrong.” While technically correct, many are concerned (particularly in Congress) that federal civil service protections - meant to keep political considerations out of career decisions - will end up handing tenured positions in the department over to potentially partisan operatives.

The attorney general also announced that there will likely be no prosecutions coming down the pike for the improper political considerations used by the department under Alberto Gonzales, stating that “not every violation of the law is a crime.” Does anyone else find it alarming that our nation’s chief law enforcement official seems so willing to play semantics with the definition of a crime?

Daily Dose

• Senate Asks for More Info on FBI Snooping [CQ]
• A “Better” Way of Selecting Judges? [Salisbury Post]
• Mukasey Says No to Prosecutions [AP, ABA Journal]

Daily Dose

• Honaker Nomination Stalled [AP]
• ABA Suggests Nominating Committees [AP]
• Government Snoops on Reporters’ Phone Calls [NYT]

Curt Levey’s Top Five

It’s hard to imagine that there’s anyone in this country who hasn’t heard the frenzied howls of “judicial activism” arising from the battle-ready ranks of movement conservatives each time a court releases an opinion contrary to their views. Apparently, decisions only count as “activist” if they upset the right…those that anger progressives are simply categorized as reasoned and restrained.

In this week’s Town Hall, Committee for Justice President Curt Levey attempted to define this ubiquitous phrase, as well as its supposed dangers in an article titled “Holding the Line.” In it, he classifies five distinct forms of “judicial activism” and eight reasons why they are dangerous. Of course, Mr. Levey’s list focuses solely on those trite conservative talking points and social hot button issues that are designed to rally their base while masking their true agenda of rolling back rights and protections for ordinary Americans. Still, considering the apparently imminent threat that these liberal justices pose to our nation, we thought it only prudent to examine his allegations further.

Activism’s Fab Five

1. Construing Black as White: Mr. Levey defines this “most blatant form” of judicial activism as an attempt to “conclude precisely the opposite of what the relevant statutory or constitutional provisions require.” To illustrate this, he references a First Circuit decision concerning Title IX, and that oft feared liberal principle: quotas. Of course, when the Supreme Court completely disregarded congressional intent by gutting Title VII protections in Ledbetter v. Goodyear, we didn’t hear any gnashing of teeth from Mr. Levey.
   
   
2. Twisting Doctrines Beyond Recognition: Apparently this form of activism involves mangling Constitutional clauses, particularly the Establishment Clause. Mr. Levey references decisions banning school prayer (long a victim of liberal ire) to further illustrate his point. We can’t help but wonder, however, if he would feel the same way if, say, his child were made to perform Salaat, the Islamic ritual prayer, each morning before class.
   
   
3. Inventing New Rights: Oh, that favorite whipping child of ultra-conservative thought – the formation of so-called “new rights" (although last time we checked, liberty and equality weren't new rights). Of course, when the Supreme Court completely disregarded 200 years of precedent and reinterpreted the Second Amendment as a guarantee of an individual (as opposed to a collective) right to “bear arms,” Mr. Levey and his colleagues simply viewed it as the correction of a two-century injustice.
   
   
4. Ignoring Old Rights: Apparently, a court’s determination that tradition doesn’t necessarily inform law displays a blatant disregard for, what Mr. Levey views as, established “rights.” To illustrate his point, he highlights a Massachusetts court decision stating that LGBT groups cannot be banned from participating in St. Patrick’s Day parades, arguing that “the court had no use for the First Amendment’s guarantee of freedom of expression and assembly.” And it seems Mr. Levey has no use for the Equal Protection clause.
   
   
5. Playing Policymaker: This most vile form involves “activist judges imagin[ing] themselves to be policymakers.” Of course, the clearest example of this, in Mr. Levey’s eyes, is that most hated of liberal court activism, Roe v. Wade. It seems odd then that Mr. Levey and his ilk have turned their backs on what he claims is the method provided by the Framers to deal with Constitutional questions – the amendment process – in favor of simply appointing hyper-conservative judges that will overturn the 1976 decision. And, of course, never mind conservative judicial activism like decisions that have eliminated laws establishing gun-free school zones, fair labor standards and violence against women, among many others.

We would discuss the eight “dangers of judicial activism” listed in the article but we feel we’ve made our point (and are getting a bit tired of pointing out Mr. Levey’s many hypocrisies). Movement conservatives, like those who belong to the Committee for Justice, portray themselves as protectors of the Constitution: crusaders for justice only interested in saving us from ourselves. But the truth is, they have their own (and rather widespread) agenda – packing the federal judiciary with like-minded ideologues that will force their political agenda on the rest of us.

Daily Dose

• Bolten and Miers Ask Judge to Delay Subpoena Order [WaPo]
• Senate Plays Hardball on Judges [Bloomberg]
• Editorial: What’s Next for D.C.’s Gun Laws? [WSJ]

Daily Dose

• Religion in the Courts [AP, Detroit Free Press]
• Hamdan Trial Kangaroo Court [NYT, LATimes]
• Hamdan Sentenced to 5 1/2 Years [WaPo]

Desperate Times, Desperate Measures

President Bush has never been one to play the nomination game fairly. His tenure in office has shown he is willing to nominate blatantly partisan candidates to various government positions, particularly the federal courts. In some cases, the Senate has managed to prevent some of these ideological nominees from taking the bench, other times, we haven’t been as fortunate. But just to make sure he packs the courts, administrative agencies and countless other government offices with his right-leaning ideologues, President Bush has tried to skirt the Senates constitutional role of advice and consent through the use of recess appointments. Recess appointments are constitutional, but were never designed to advance a partisan political agenda. By making nominations during the Senate’s recess, there is nobody around to beat back against the administration, but a handful of senators are making sure that it doesn’t happen this summer.

Every three days, Senate Democrats have been holding pro forma sessions (in which no legislative business is conducted) in order to avoid an August recess, and thus, recess appointments. Yesterday it was Senator Jack Reed (D-RI) who ran the session—all 28 seconds of it—with those colleagues that have homes in the D.C. metro area. The effort is being taken on in order to thwart an underhanded attempt to slip some unfavorable conservative nominees into our government. A spokesman from Reed’s office aptly called the tactic a measure to curtail “any mischief from happening.”

The strategy is likely a prudent one, as several Bush recess appointees now hold prominent positions in his administration. John Bolton, the U.S. representative to the United Nations, and Eleventh Circuit Court of Appeals judge William Pryor were both ushered into their positions after Senate filibusters (he was later confirmed as part of the Gang of 14 deal), and Charles Pickering sat on the Fifth Circuit as a result of his recess appointment.

The senators are taking the mantra “desperate times, desperate measures” to heart because of the, well, desperate situation President Bush has created in his time in office. And now our president has landed himself in the same category as certain elementary school teachers of our youth—both do all they can to ruin recess.

Daily Dose

• First Gitmo Trial Ends in Conviction [NYT]
• Gitmo Judges Fesses Up to Mistake [NYT]
• Editorial: No Executive Privilege For Presidential Advisers Means More Accountability [Fort Worth Star-Telegram]
• House Dems Seek Less-Rigid DC Gun Laws [WP]

It's the End of the Administration As We Know It (And We Feel Fein)

As a general rule in politics, you know you’re probably in for it when you have members of your own party on your case. It’s not an entirely novel situation for President Bush, who has gotten heat from all angles over the past few years, but today there was some more fuel thrown onto the fire.

Bruce Fein, a Justice Department official under President Ronald Reagan, tore into the Bush administration in a piece in the Washington Times today. Fein, an expert on constitutional law, makes a calculated argument against the ridiculous notion of executive privilege that President Bush has been trumpeting recently. This summer both political adviser Karl Rove and White House Counsel Miers have been issued subpoenas to appear before Congress to discuss the unjustifiable 2006 politicized firings of U.S. attorneys. And they both have failed to show up.

Sounds like grounds to hold the cronies in contempt, but President Bush thinks otherwise, citing a fictional right to absolute immunity for his advisers. It’s clear from the dearth of judicial opinions on the matter that no such precedent has ever existed, and Fein knows that better than anyone.

“No executive officer speaks to the president with an expectation of confidentiality,” Fein writes. “The president regularly waives any putative executive privilege, as President Ronald Reagan did in the congressional Iran-contra investigation. And executive branch leaks to the media pour forth like the Mississippi River at its high water mark.” Or, as former CIA Director George Tenet put it: “[Y]ou are never offstage. Anything you say can be used against you down the road to make someone else's point. That's the way Washington has evolved - there are no private conversations…”

As Fein points out, if there were indeed a right to such privilege, the Watergate scandal wouldn’t have unfolded as it did because John Dean, Richard Nixon’s White House counsel, wouldn’t have had to deliver his damning testimony. Maybe President Bush is trying to avoid repeating history—he doesn’t want to be the guy pleading with America to believe that he is not a crook.

But Fein’s most compelling reasoning is rooted not in the words of Nixon, but a more venerated ex-president, by the name of James Madison: The American people “have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge, I mean, of the characters and conduct of their rulers.”

You hear that, Mr. Rove and Ms. Miers? The Father of the Constitution is telling you that access to your conversations are a right, and not an executive privilege.

Daily Dose

• Gitmo Trial Update: Driver May Have Aided U.S.; Verdict Expected [NYT, AFP]
• U.S. Catches Gitmo Interrogation on Tape [WP]
• Editorial: Assault on Self-Government [Washington Times]
• Bush Administration Still Under Scrutiny [Christian Science Monitor]
• Editorial: More Heat on Karl Rove [Birmingham News]

Daily Dose

• Group Lunch at Gitmo For Some Detainees [LA Times]
• Editorial: Justice Corrupted [Buffalo Daily News]

Daily Dose

• Judge Rules Bush Advisers Can't Ignore Subpoenas [NYT, LA Times]
• Editorial: Suspect Justice [LA Times]
• Editorial: Defeated In Court--Again [WP]
• Ninth Circuit Will Push For More District Court Judges [Sacramento Bee]
• DC Circuit Revives Whole Foods Case [Reuters]