Fruits and Votes » Judiciary

Planted by MSS
Planted in: Judiciary

The actual text of the AP story, and the words of some Democratic senators quoted therein, are rather more nuanced than the headline (from LA Times.com) suggests. (more…)

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26 December 2005

Alito and wiretapping

Planted by MSS
Planted in: Judiciary

From the Dec. 24 LA Times:

Supreme Court nominee Samuel A. Alito Jr. said in a 1984 memo that he believed the president’s top lawyer should be shielded from being sued for approving illegal, warrantless wiretaps on the grounds of national security, an issue that has flared anew and could complicate his Senate confirmation next month.

I wonder what, if any, effect this will have on his confirmation chances.

Propagation: Seeds & scions (1)

Fruits and Votes » Blog Archive » Alito and presidential signing statements grafted [...] He believes warrantless wiretaps are permissible Block where planted: US Constitution, Judiciary, Executive powers [...]

21 December 2005

Judge resigns from surveillance court

Planted by MSS
Planted in: Judiciary; Peace and war

A federal judge has resigned from a special court set up to oversee government surveillance, apparently in protest of President Bush’s secret authorization of a domestic spying program

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19 December 2005

The Miers nomination in a new light

Planted by MSS
Planted in: Judiciary

So, George W. Bush attempted to put a crony on the court with his first nomination to replace O’Connor. He looked to someone who owed her entire career to George W. Bush, and who had no constitutional-law experience.

In light of the violations of FISA and assertions of (unspecified) constitutional authority to wire-tap domestically, it all makes so much more sense now: Nominate someone who will be about as unlikely as anyone you can find to look askance at flagrant assertions of executive prerogative.

Not that Alito is likely to be much of a threat…

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24 November 2005

Alito’s reapportionment views deserve a filibuster

Planted by MSS
Planted in: Judiciary; Plurality; USA

As reported at Edward Still’s Votelaw, Senator Biden (D-Del.) says that the part of Supreme Court nominee Samuel Alito’s record that jeopardizes his confirmation more than his views on abortion is the part in which he expressed disagreement with the Warren Court’s Baker v. Carr decision on reapportionment.

As I have alluded to before, it is bad enough that our archaic, unrepresentative federal electoral systems (for President and Senate, as well as House) combine with the way we select Supreme Court justices to allow one party (even if it were a majority in the electorate, as the current seat-holding majority is not) to use court appointments in an effort to facilitate a partisan agenda. It is an order of magnitude worse if part of that agenda might include reversing one of the far-too-few advances this country has made in many decades towards more representative elections: the abolition of malapportionment in state legislatures.

The fact that Alito has specifically singled out Baker v. Carr as one of the Supreme Court rulings that drove him to pursue a legal career means he is unfit to serve on the highest court. If Democratic senators cannot filibuster a man with such profoundly reactionary views about democratic institutions, they might as well resign en masse.

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15 November 2005

How could a Robertsâ€“Alito court support the Republican agenda?

Planted by MSS
Planted in: Judiciary; Politics (general); POLITICS/POLICY

From an American Political Science Association press release about an article in the November APSR by Keith E. Whittington. The first two sentences say:

Judicial review can revive the stalled legislative agendas of the political majority. This finding challenges the widely held assumption that judicial activism generally contradicts the interest of elected officials.

(more…)

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Alito, malapportionment, Mugabe, and conservatism

Planted by MSS
Planted in: Judiciary; Plurality; Politics (general); POLITICS/POLICY

Malapportionmentâ€”legislative districts having significantly unequal voters-to-representatives ratios–is a good friend to conservatives. A malapportioned legislature favorsâ€”and increasingly over timeâ€”those legislative districts with smaller and declining populations (usually rural) at the expense of those with larger and increasing populations (mainly urban). While there is never a perfect correlation between the liberalismâ€“conservatism divide and the urbanâ€“rural divide, there is a very strong one. Not only in the USA, but virtually everywhere. That is why, for instance, Robert Mugabe, President of Zimbabwe, has created a Senate that will be biased towards the countryside (5 elected seats per province, plus traditional chiefs) precisely at a time when his urban support base is collapsing. (The Zimbabwe senate elections are on November 26, and have badly split the opposition.)

Given the inherent conservative bias in malapportioned legislatures, a statement about US Supreme Court nominee Samuel Alito’s views that was buried deep in an LA Times story this morning should be viewed with particuar alarm by any democrat (note small ‘d’). The Times story is about the already-(in)famous memo by Samuel Alito from his days in the Reagan administration.

As a college student, Alito said, he developed an interest in constitutional law, “motivated in large part by disagreement with the Warren court decisions, particularly in the areas of criminal procedure, the establishment clause and reapportionment.”

“Reapportionment” here is a reference to Baker v. Carr, the 1962 US Supreme Court decision that said that states and cities could not have significantly malapportioned districts. (more…)

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04 November 2005

Alito may not change left-right balance much

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Planted in: Judiciary

Great analysis at Political Arithmetik shows that Kennedy will replace O’Connor as the median vote on the court and that means not much net change (under the assumption of a single dimension of voting). (more…)

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03 November 2005

Figuring out the Alito nomination

Planted by MSS
Planted in: Judiciary

I previously made the claim that if Bush could have gotten a clear hard-line conservative (another Scalia, as opposed to a moderate-conservative in the O’Connor/Kennedy mold) confirmed, he would have nominated one in the first place. (more…)

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31 October 2005

Hamilton and Alito: Extraordinary circumstances?

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Planted in: Judiciary

[Updated, 1:40 PST, below]

The nomination of Harriet Miers now having failed, and the right having gotten a nominee it likes better, will Democrats be able to invoke the “extraodinary circumstances” clause of the current truce in the filubuster wars? Will the Republican base be rewarded for having gambled against Hamilton’s logic that opposition to one nominee can’t guarantee that a subsequent one will be more acceptable? (more…)

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PoliBlog: Politics is the Master Science grafted Hard-Hitting Reporting at WaPo
The Moderate Voice grafted Bush Nominates Solidly Conservative Nominee To Supreme Court: The Big Battle Begins? (UPDATED)
Fruits and Votes » Blog Archive » Figuring out the Alito nomination grafted [...] And so, I took the position that Bush selected a crony (Harriet Miers) because it was the best he could offer the right: Someone with no record, but about whom he could say to his base “trust me, I know you’ll like her.” Well, his base wasn’t buying it, and took the risk–spitting in the face of Hamilton’s logic–that they could get someone more acceptable on a second try. [...]

27 October 2005

The cronyism debacle ends: Miers withdraws

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Planted in: Judiciary

I was just reading California Yankee and saw his post that Harriet Miers has withdrawn her nomination. (more…)

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23 October 2005

I oppose the Miers nomination

Planted by MSS
Planted in: Judiciary

Yes, indeed:

I oppose the Miers nomination.

This post is part of a poll that TTLB is taking of associated blogs.

My previous posts articulating how I see the Miers nomination fitting into the confirmation process as envisioned by Alexander Hamilton in the Federalist papers and into the strategies of the two major parties can be found in one of the sudomains of this blog: judiciary.fruitsandvotes.com.

I have not previously articulated an explicit position on the nomination, though regular readers (always assuming that is not an oxymoron) could have inferred it.

It has never been my intent to make this blog partisan in any way. So let me be clear: I oppose Miers not because of her views (whatever they may be) or because of the partisan identity of the President who nominated her.

I oppose her confirmation because I believe she is unqualified. I oppose her nomination on “good government” grounds, in that appointments to important positions in our system of government, whether the head of FEMA or any other government agency, or most especially the Supreme Court, should not be conferred on cronies of the President or other politicians.

I believe Senators from both major parties have a duty to block this nomination on grounds of cronyism. I fear Democrats will not step up because they (wrongly, as I have argued) believe the replacement nominee would be worse for them, and that Republicans will fall in line because they fear (correctly, most likely) that a replacement nominee would be worse for them. I still think this is the most likely scenario, though the recent embarrassment of her questionnaire responses may be forcing people to stop overlooking the obvious: independent of partisan politics, Miers just does not deserve to be awarded, for the rest of her life, a 1/9 share of the world’s preemininent judicial institution.

Thanks to Poliblogger for the heads up.

The tracking page reveals that bloggers, in general, are not too pleased with the nomination.

Propagation: Seeds & scions (1)

PoliBlog: Politics is the Master Science grafted It isn’t Just DC/East Coast Elites Who Oppose Miers

22 October 2005

Miers: US Constitution requires PR

Planted by MSS
Planted in: Judiciary; PR-USA

Among the many puzzling things Harriet Miers has said comes yet another from the (in)famous judicidary committee questionnaire. In describing one matter on the Dallas City Council, Miers referred to “the proportional representation requirement of the Equal Protection Clause” as it relates to the Voting Rights Act.

From the Post:

“There is no proportional representation requirement in the Equal Protection Clause,” said Cass R. Sunstein, a constitutional law professor at the University of Chicago. He and several other scholars said it appeared that Miers was confusing proportional representation –which typically deals with ethnic groups having members on elected bodies — with the one-man, one-vote Supreme Court ruling that requires, for example, legislative districts to have equal populations.

Actually, either the Post or Sunstein is also confused, as the term “proportional representation” actually typically refers to the allocation of legislative seats in proportion to the votes obtained by parties. But it most certainly does not mean what Miers appears to mean.

I wish there were a proportional representation requirement of the Equal Protection Clause, but alas there is not.

I don’t have the Post story to link to; I am relying on a private e-mail I received from a trusted Post reader.

Propagation: Seeds & scions (0)

20 October 2005

Colombia: Constitutional Court rules in favor of presidential reelection amendment

Planted by MSS
Planted in: Colombia; Electing presidents; Judiciary; Presidential & Parliamentary Systems

Via El Tiempo, Colombia’s leading daily newspaper, comes word that last night the Constitutional Court upheld the constitutional amendment passed by congress to permit presidents to run for a second consecutive term. (more…)

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14 October 2005

Miers and the ‘L’ word

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Planted in: Judiciary

A lot has been written about how little has been written by Harriet Miers.

Some of what she has written is rather, well, liberal. From the LA Times:

…president of the State Bar of Texas, Miers used her monthly column in the Texas Bar Journal to condemn politicians who were trying to score points by disparaging the legal profession.

[...]

She called for increased funding for legal services for the poor and suggested that taxes might have to be raised to achieve the notion of “justice for all.”

[...]

And she was an unapologetic defender of her profession, even the oft-maligned “trial lawyer.”

“Lawyers are about seeking the truth, preserving a system to achieve fairness and justice and protecting the freedom of individuals against the tyranny of the majority view,” she wrote.

Good stuff. The story then says that:

Miers is believed to have undergone something of a political evolution since then.

Ah, but how would conservatives know? Oh, right, trust the President.

None of this changes my view that she will be confirmed, because the right is too weak to get anyone more clearly one of their own confirmed, and thus leftists/progressives are wrong, in my view, to think that she is better than the likely alternatives.

For instance, Scott Lemieux reiterates his earlier argument about potential back-up nominees like McConnell and Owens:

Miers can’t really be worse than most of these nominees, and she could be better. I’m going with the devil I don’t know.

I think this view will prevail, and I think it is unfortunate, given that the highest court is no place for cronies of a president.

But that argument is based on the assumption that a second nominee would be a judge with a conservative record. In turn, that assumes that Bush would be more capable of confirming such a nominee after his first choice was defeated. But if there exists a confirmable nominee that conservatives would rally around, would Bush not have nominated her (or him) in the first place?

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