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Thursday, July 9th, 2009

Emily Bazelton in interviewing Supreme Court Justice Ruth Bader Ginsburg for the New York Times magazine this weekend prompts Ginsburg to tell this small, charming story behind how a rumor about her health had gotten started:

[S]ome reporter said something like, it took me a long time to get up from the bench. They worried, was I frail? To be truthful I had kicked off my shoes, and I couldn’t find my right shoe; it traveled way underneath.

[This image is in the public domain as it is an official work of the U.S. government.]

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Posted in Humor, Law | 1 Comment »

Our Lady of the Law

Tuesday, July 7th, 2009

[digg-reddit-me]About a year and a half ago, looseheadprop at Firedoglake posted about a speech he called “Our Lady of the Law.” I’ve contacted Governor Cuomo’s offices a number of times in the past year asking if they could provide me a copy, and allow me to publish it on this blog, and last week, they graciously did.

Governor Cuomo gave this speech at a dark moment in the winter of 2007 as George W. Bush’s radical national security policies undermined the Rule of Law at home – from warrantless wiretapping to torture to the misuse of signing statements to the politicization of the Department of Justice to the unsupervised jailing of non-combatants under the authority of the executive branch. At the same time, the Lawyers Movement in Pakistan fought to restore the Rule of Law in Pakistan and marched against President Musharaff. looseheadprop quoted a line which isn’t in the prepared text I was given in which Governor Cuomo called on lawyers in America to follow the example of their brethren in Pakistan:

If US lawyers are marching in the streets in support of the rule of law in Pakistan, why aren’t we marching in support of the rule of law here?

Knowing human nature and his history, Governor Cuomo pointed out the George W. Bush was attempting to subvert the Rule of Law and “inflate the presidency into unconstitutional shape and power.” In this dark time, the winter of 2007, as revelation after revelation of George W. Bush’s misdeeds became public, Governor Cuomo called on the lawyers to fight for the Rule of Law – for Our Lady of the Law. He concluded with a call to arms – not against George W. Bush but to protect the institutions that enable us to be a state of consent and the liberal democracy that the Founding Fathers envisioned:

Surveys tell us that we believe our nation is not heading in the right direction and we have no clear notion as to how to change course.

It’s more than just the war in Iraq and threats of still another war that concerns us.

We have no heroes, no heroines, no soaring ideologies.

We are tired of, and frustrated by, political answers that seem impertinent, too shallow, too short-sighted or too harsh.

We are not even sure what we wish to be as a nation. We’re tempted to see ourselves as 300 million disassociated individuals struggling for survival and dominance in a dog-eat-dog world, instead of seeing ourselves as a fully integrated society, interconnected, interdependent, growing stronger together.

Some of us are frightened by 9/11 and terrorism into thinking we can be saved by a more powerful presidency even at the risk of creating the kind of monarchial power the Founding Fathers sought to protect us from in the Constitution.

We need something more ─ something better to believe in. To hold onto. To be guided by.

Something wiser than our own quick personal impulses.

Something sweeter than the taste of a political victory.

It would take more than the time we have now ─ and perhaps more than the wisdom that resides here today ─ even in this very gifted group ─ to find and to describe all we must do to relieve this profound discomfort.

But there is one thing we lawyers know will help relieve the unsureness that troubles us.

And that is “Our Lady of the Law,” as she comes to us in our Constitution ─ the nation’s bedrock.

Our 200 year old legacy of law and justice has been the foundation on which we have built all that is good about America. We must not allow that foundation to be weakened or even defaced by a political system whose claim to morality is the latest urge of the American people ─ however distracted, however mislead we may be on occasion.

We must not allow our eager presidents and timid Congress people to combine to weaken our system of checks-and-balances and threaten our republic by allowing a single individual to exercise monarchial powers.

For 200 years “Our Lady of the Law” has proven stronger than the sins of her acolytes and has made us better than we would have been.

Now she must be lifted above the political melee and the confusion before she is brought down and her guiding light is no longer visible to us.

Someone must lend their shoulders in the effort to do that.
If not, the lawyers, then who?

As we continue to experiment with national security laws, this message still rings true. We still need a Lawyers Movement in America to keep Barack Obama and our government honest – to ensure that they continue to protect the Rule of Law.

I’ve published the full text of the speech below the jump.

(more…)

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Posted in Law | 3 Comments »

The Collateral Damage in Honduras

Monday, July 6th, 2009

The Associated Press sums up perfectly the factual case against the coup d’etat by the military and other elements in Honduras:

Despite a Supreme Court ruling, Zelaya had also pressed ahead with a referendum on whether to hold an assembly to consider changing the constitution. Critics feared he might press to extend his rule and cement presidential power in ways similar to his ally Hugo Chavez in Venezuela.

But instead of prosecuting him or trying to defeat his referendum idea at the ballot box, other Honduran leaders sent masked soldiers to fly Zelaya out of the country at gunpoint, and congress installed Micheletti in his place. [my emphases]

These Honduran leaders feared what Zelaya might be intending – and so send soldiers to expel him from the country. The right-wingers defending these actions as “defense of democracy” are ignoring (or are ignorant of) these basic facts:

  1. These critics did not know Zelaya was proposing to amend the constitution to allow him to run again which would unconstitutional – they feared he was. (With good reason – but it is important to make the distinction.)
  2. Despite a range of options for blocking or removing Zelaya within the realm of law, they chose to go outside of this, thus subverting the law itself. They could have prosecuted him. They could have created some type of impeachment proceedings. Instead they asked the military to act against their commander-in-chief.

Another relevant fact is that the only Zelaya was not “removed” from office in a lawful proceeding. The military claims that Zelaya resigned – after being presented with the option of being imprisoned or resigning. Zelaya claims his signature on this document is fraudulent. This is a far different proceeding than – for example, Richard Nixon’s – when he resigned. The fact that all of this was done outside of legal channels makes it, by definition a coup, and as such, especially given the role of the military, it undermines any future executive as well as the institutions of democracy itself. Zelaya himself seemed to have little respect for these institutions – but they were collateral damage in these attempts to “defend democracy” and remove him as well.

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Posted in Latin America, Law | No Comments »

Experimenting With National Security Policy

Tuesday, June 23rd, 2009

[digg-reddit-me]On September 11, 2001, the Bush administration was taken by surprise. Their immediate reactions are forgivable, if disheartening – the 7 1/2 minutes reading a book after being told “America is under attack;” the quick spreading of false information at the top levels as officials thought that the State Department had been attacked and that taxi cabs were planning on blowing themselves up in front of major Washington buildings; the order by Cheney to take out a civilian airliner, usurping the role of the president. President Bush and Condi Rice clearly panicked – as Rice has essentially admitted since leaving office:

Unless you were there in a position of responsibility after September 11th, you cannot possibly imagine the dilemmas that you faced in trying to protect Americans. And I know a lot of people are second-guessing now, but let me tell you what the second-guessing that would really have hurt me – if the second-guessing had been about 3,000 more Americans dying because we didn’t do everything we could to protect them.

Karl Rove, seeing his dream of a realignment of the electorate threatened by the biggest terrorist attack in American history likewise panicked.

Cheney though was emboldened – his sense of purpose, his disdain for America’s delicate system of checks and balances, and his radicalism imbued Bush’s first term with a reactionary fervor. The War on Terror became synonymous with Cheney’s goal of creating an imperial presidency. At this point, in the aftermath of this devastating attack, Rove began to plan for ways to turn this glaring weakness into a strength; and Cheney attempted to change the American structure of government – believing that 9/11 would have been prevented if only the president had more power. Thus, Cheney began to systematically use this crisis to centralize more power in the White House – and to assert greater executive powers and to outright reject the powers of the legislative, judicial, and quasi-independent branches of government to check his or the president’s power. Laws were read in such a way as to maximally expand presidential power – with a statute declaring war on Al Qaeda secretly being understood to overturn decades of legislation, for example; vast areas of law were secretly held to be unconstitutional checks on the president’s power and were ignored. In so doing, Cheney began to fundamentally alter the American social bargain.

It wasn’t until far right-wingers from Office of Legal Counsel Director Jack Goldsmith, Attorney General John Ashcroft, FBI Director Robert Mueller, Deputy Attorney General James Comey, and quite a few other top CIA, FBI, and Justice employees were about to resign that Bush finally realized how radical his administration had become. By Bush’s second term, he began to walk most of his more radical policies back – though refusing to admit any fault and maintaining his authority to do all of it.

Now that Bush is no longer in office, liberals, libertarians, progressives, and other Bush administration opponents had two basic conceptions of how to move forward and how to look at the radicalism of Bush’s first term and his assertions of executive power that he maintained until he left office. The first conception was well expressed by Tom Malinowski of the Human Rights Watch at a Congressional hearing on June 11, 2009:

We should stop experimenting. We should not build yet another untested structure on a foundation of failure. We should finally, at long last, bring to justice the men who killed thousands of people on September 11, and others who have committed or planned or aided the murder of Americans. And we should do it in a system that works.

On the other side, some who opposed the radical actions of Bush-Cheney still saw within September 11 something similar to what Cheney did – a unique threat to our way of life. What these individuals are forced to do is balance the threat of catastrophic terrorism with the desire to preserve our way of life. Rather than starting with the assumption that a stronger president with fewer checks on his or her power is the only way to prevent terrorism, these individuals believe we must experiment with our laws and institutions, to tinker with them, to achieve this right balance – all within the public realm and with the consent of the people, rather than in secret.

In an interview with a British paper, Philip Bobbitt, for example, makes the case for why we need to experiment with our national security policy – focusing specifically on the idea of stockpiling laws:

I think when you go to weapons of mass destruction you’re talking about just a completely different level of horror and disruption…We must come, as societies, to some understanding of what we’re facing, and in these times of tranquillity organise ourselves and debate about what we will do if a catastrophe should come to pass. We should stockpile laws for such an eventuality, just as we stockpile vaccines. Then I think we have an excellent chance of getting through these attacks with systems of consent in place. But if we don’t do that, if we say oh, get real, this isn’t another second world war, surely you’re exaggerating the threat, this couldn’t possibly threaten our society now! It hasn’t yet! And if you don’t use the democratic process to put laws in place now, then in a way you become the ally of the terrorists because when a truly terrible series of mass atrocities really does occur and you don’t have anything to fall back on, that’s when you get martial law, that’s when you get the system that’s in democratic collapse, and you become the source of terror yourself. No, Bin Ladin isn’t going to invade and occupy Westminster and put Mullah Omar in the House of Lords, he’s not going to take over. If Britain becomes a state of terror it will be because we did it to ourselves and we did it because we did not prepare when we had the time and the peace to do so by law and by consensual systems.The United States can do the same thing. If we are busy throwing away laws, the one steady craft we have to get through this, Washington will turn us into a state of terror, we’ll do it. We’ll embrace it enthusiastically…

We need to focus on making our society more resilient in the event of an attack, on spreading information regarding terrorism so that citizens can make informed choices (as was successful in preventing the fourth attack on September 11). The laws regarding continuity of government – from my understanding – are incomplete Cold War relics. We need to take the threat of terrorism from the realm of fear and bring into the realm of rational thought. Obama, as president, is uniquely positioned to do this.

It seems to me that Malinowski’s approach – while understandable – is misguided. In a changing world,  our government must adapt, must experiment. And the threat from catastrophic terrorism – the threat inherent in a globalized world, with technology increasing the power of individuals exponentially – is real. It must change the calculus, the balancing test. We need to experiment with our national security policies – and get away from the Culture War politics that thanks to Rove and Cheney have come to dominate this arena. The Rule of Law and our way of life is better protected if we reflectively plan for an emergency now rather than overreacting in fear in the moment.

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Posted in Law, National Security, Political Philosophy, Politics, The Bush Legacy, The Opinionsphere, The War on Terrorism | 58 Comments »

NSA’s Secret Pinwale Program Used to Spy on Bill Clinton

Wednesday, June 17th, 2009

[digg-reddit-me]James Risen and Eric Lichtblau of the Times – who previously broke the wireless wiretapping story – relay concerns of a number of Congressmen about the extent of email surveillance by the NSA. These Congressmen are concerned about the number of domestic emails being intercepted and analyzed under the current program – which is identified as “Pinwale.” Marc Ambinder identifies this as the fourth NSA anti-terrorist surveillance program we’ve found out about in his piece responding to the story. Risen and Lichtblau also reveal for the first time that it was this Pinwale program that was at the heart of the dispute that led to the dramatic middle-of-the-night hospital room showdown between Acting Attorney General Comey, ailing Attorney General Ashcroft, and FBI director Mueller and White House Counsel Alberto Gonzalez and Chief of Staff Andy Card.

But what got my attention was a small side-note buried in the story:

The former analyst added that his instructors had warned against committing any abuses, telling his class that another analyst had been investigated because he had improperly accessed the personal e-mail of former President Bill Clinton.

I had presumed the program worked by screening vast amounts of email for keywords and perhaps tracking who particular people emailed, creating webs of relationships – with attempts to filter results to exclude Americans. This is how the program had been described – and through most of this most recent piece, it clearly suggests the program works this way. But this particular item here suggests that this NSA program is of a different sort – and  is capable of accessing any email account individually – and that this is so easy to do that one can look into a prominent former official’s emails just to see what’s up.

The possibility of abuse in this is clearly enormous  – from spying on one’s girlfriend or wife to fishing for embarassing information on politicians whose job it is to regulate you.

What this story confirms is that if the potential for abuse exists, abuse will occur.

[Image by jacromer licensed under Creative Commons]

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Posted in Law, National Security, Politics, The Bush Legacy, The Opinionsphere, The Web and Technology | 1 Comment »

The Supreme Court Holds Up the Chrysler Sale

Tuesday, June 9th, 2009

I actually decided to write a short piece stating my hope that the Supreme Court would look into Obama’s and Bush’s expansion of executive powers in tackling the financial crisis before the Supreme Court delayed the sale of Chrysler to Fiat. Now that they have, I’m relieved if a bit nervous. The key issue is the use of executive power in a crisis – as Michael J. de la Merced explained the issue:

In a broader context, such a decision would also give the justices an early opportunity to consider the scope of the wide-ranging but not unlimited authority that Congress granted the president to address the economic crisis.

I think this is a good thing – though I’m not sure how the timing of this will affect things. Generally, the strongest decisions restricting the executive’s freedom in a crisis have come after the crisis has past. With the rash of bad news on the economic front – even as most indicators seem to be levelling off – this financial crisis is not yet over. On the one hand, strong action by the Court at this time to curb the power of the president could destabilize the economy, as it is confidence in the power and determination of the executive branch and the Federal Reserve to backstop the financial system that seem to have restored confidence in the market and economy itself. At the same time, the Supreme Court is less likely to challenge the president’s authority in the middle of a crisis – making it more likely the decision will be deferential.

It is possible that all of these competing claims could be dealt with responsibly – with a Solomonic decision along the lines of Marbury v. Madison. It’s also possible that the Court may find Presidents Bush and Obama both acted constitutionally in their response. But as a matter of policy, the recent government interventions into the market are ill-advised if they extend beyond the minimum amount of time. As I wrote regarding Obama and the Rule of Law:

The power of the executive branch has grown enormously in the financial crisis – between the Stimulus Bill and the bank bailout. While in the short-term this may be necessary, if steps are not taken, this would undermine the balance of power between the federal government and the states. While this in itself is not a violation of the Rule of Law – it does weaken the system which together helps maintain the Rule of Law.

The one issue that strikes me as worth considering – on matters of constitutionality rather than policy – is whether or not Bush and then Obama acted within their powers in providing loans to Chrysler and General Motors; perhaps a Court should also look at the broad authority given by the TARP bill itself and set some standards regarding what authorities and monies can and cannot be extended to the executive branch by the legislative.

The whole process of drafting and passing the TARP bill was obviously flawed – though it’s difficult to judge legislation passed in the midst of a crisis. The only logical way out of this I’ve heard mentioned would be to “stockpile laws” as Philip Bobbitt once suggested with regards to terrorism.

But even as there is a flawed process, it’s not clear what if anything was unconstitutional.

At the same time, I’m glad to see the Court looking seriously at getting involved. I’m all for these checks and balances.

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Posted in Barack Obama, Economics, Financial Crisis, Law, Politics, The Bush Legacy | 9 Comments »

Judge Sotomayor Defends a Racist Cop

Tuesday, June 9th, 2009

[digg-reddit-me]

All the talk of Sonia Sotomayor’s racism tends to focus on a few of her remarks in her speeches (especially one in particular) and her ruling in a single case. But looking at her record on discrimination lawsuits, for example, she only ruled for the plaintiffs in 10 of the 96 racial discrimination claims that were before her. In one prominent case, she sided with a police officer who had sent out anonymously racist and anti-Semitic mailings in a strongly worded dissent. What’s more significant to me though is the extent to which Sotomayor interpreted the law to protect individual rights, in this case, the First Amendment.

Last week, I wrote I was concerned about Sotomayor’s decision in the “douchebag” case:

I think the role of Courts in checking the increasing power of corporations, schools, and other semi-voluntary organizations to monitor and police the private activities of citizens is going to gradually become a big issue. That Sotomayor signed onto an opinion then that allowed the restriction of free speech on a non-school affiliated blog because calling administrators “douchebags” presented a “foreseeable risk of substantial disruption” is a matter of concern.

The case of Pappas v. Guiliani shows a different side of Sotomayor’s jurisprudence. The plaintiff was an NYPD officer who was resposible for maintaining the department’s computers. He received several mailings at his home from charity groups associated with another police department and returned them anonymously filled with “offensive racially bigoted materials.” Or so he thought. The Nassau County Police Department started an investigation – and were able to determine Thomas Pappas’s identity because the return envelopes were coded to be tracked. The police department sent out another mailing to Pappas – and again received hate mail in return. They notified the NYPD which then performed the same experiment – and once again, Pappas sent them back an envelope filled with racist literature. At a disciplinary trial before the NYPD, Pappas explained his behavior was a form of protest as he “was tired of being shaken down for money by these so-called charitable organizations.” The NYPD then fired him – and in return he sued claiming his dismissal violated his First Amendment rights. The first judge to hear his case dismissed it – and Pappas then appealed to a three judge panel of which Judge Sotomayor was one member.

The panel upheld the dismissal – but Sotomayor registered her lone dissent in a strongly-worded opinion.

In upholding the dismissal, the Court determined that Pappas speech was protected under the First Amendment as it was “upon a matter of public concern.” But the Court explained, under certain circumstances, free speech rights were subordinated to the interest of the state – specifically with regards to the state as an employer. The opinion quoted Justice Oliver Wendell Holmes: “A policeman may have a constitutional right to [speak his mind], but he has no constitutional right to be a policeman.” Essentially, with regards to state employees, the protection of the First Amendment is limited to matters of public concern (to avoid an employee being protected while making privately disparaging or harassing remarks) and then must be balanced against the interests of the state in it’s public relations. If, for example, a police chief publicly states he is in favor of discriminating, he can then be fired – even though he is speaking on a matter of public concern – because his speech interferes with the ability of the police department to do it’s job. Court precedent states that each judge must evaluate the potential damage that would be caused by keeping the person and balance this against the First Amendment rights of the individual. In this case, the majority opinion found that the potential damage of a computer technician being a racist was vast – due to the publicity surrounding the case.

The other judge on the panel agreed that Pappas’s case should have been dismissed – but did not believe it was necessary to consider the First Amendment implications as the Court’s official opinion did, saying that Pappas’s speech was merely private – and thus not protected by the First Amendment.

Judge  Sotomayor though dissented:

Today the Court enters uncharted territory in our First Amendment jurisprudence. The Court holds that the government does not violate the First Amendment when it fires a police department employee for racially inflammatory speech — where the speech consists of mailings in which the employee did not identify himself, let alone connect himself to the police department; where the speech occurred away from the office and on the employee’s own time; where the employee’s position involved no policymaking authority or public contact; where there is virtually no evidence of workplace disruption resulting directly from the speech; and where it ultimately required the investigatory resources of two police departments to bring the speech to the attention of the community…The Court should not…gloss over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives because it is confronted with speech it does not like and because a government employer fears a potential public response that it alone precipitated.

She had several points. One was that while she did not dispute that someone “has no constitutional right to be a policeman,” the position one held was important. Thus, she writes:

In Rankin, the Supreme Court applied this analysis to the law enforcement context and found that “where . . . an employee serves no confidential, policymaking, or public contact role, the danger to the agency’s successful functioning from that employee’s private speech is minimal.” Rankin, 483 U.S. at 390-91.

She also attacked the Court’s opinion regarding how it attempted to balance the potential damage caused by Pappas’s mailing and his free speech rights:

At some level of abstraction or aggregation, the potential for racist statements to damage the NYPD may indeed be “immense.” But that is not how the fact-specific Pickering test is applied. The question is how potentially damaging is this speech — that is, these leaflets sent by this employee under these particular circumstances.

In the end, Sotomayor’s defense of Pappas is grounded in the precise principles I would hope:

The majority’s decision allows a government employer to launch an investigation, ferret out an employee’s views anonymously expressed away from the workplace and unrelated to the employee’s job, bring the speech to the attention of the media and the community, hold a public disciplinary hearing, and then terminate the employee because, at that point, the government “reasonably believed that the speech would potentially . . . disrupt the government’s activities.” Heil v. Santoro, 147 F.3d 103, 109 (2d Cir. 1998). This is a perversion of our “reasonable belief” standard, and does not give due respect to the First Amendment interests at stake.

Sotomayor’s opinion is exactly what I would want from a Supreme Court justice. It is grounded in law, precedent, and a reverence for our founding principles; in this instance, she is also defending the unsavory, even though she clearly disagrees with his positions; most importantly, she is protecting basic rights against powerful interests.

[Image by keithpr licensed under Creative Commons.]

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Posted in Law, Political Philosophy, Politics | 2 Comments »

Closed-Door Hearings

Monday, June 8th, 2009

Last week, at a closed-door Intelligence Committee hearing, Republican members claim they were told “the truth that enhanced interrogation of detainees is effective.” The members did not offer details as to what they learned – but by speaking about this, they clearly violated the closed-door policy. As Democrat Oversight and Investigations Chairwoman Jan Schakowsky said:

“I am absolutely shocked that members of the Intelligence committee who attended a closed-door hearing … then walked out that hearing — early, by the way — and characterized anything that happened in that hearing. My understanding is that’s a violation of the rules. It may be more than that.”

This reminds me of the recent controversies regarding Nancy Pelosi and the allegations of abuse of the Gang of Eight process. Wikipedia describes it:

[T]he President may elect to report instead to the Gang of Eight when he feels “it is essential to limit access” to information about a covert action.

They are all sworn to secrecy and there is no vote required.

In each of these circumstances, the power of legislators to do their job – and check the executive branch – is curtailed by secrecy. This is a situation crying for judicial oversight – or for political courage. Either immunity could be offered for Congressmen and -women – allowing them immunity from prosecution for what they reveal of classified information; or perhaps, they could create some judicial process to force classified information to be revealed.

This would help counteract the increasing trend to classify every document possible.

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Posted in Barack Obama, Law, National Security, Politics, The War on Terrorism | No Comments »

Judge Sotomayor

Monday, June 1st, 2009

My opinion of Judge Sotomayor hasn’t changed much since last week’s announcement. The right-wingers attempts to tar her as a racist bug me. But not all that much. The particular sentence they keep repeating is – without context a racist remark:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life. [my emphasis]

Within the speech she was giving though – when she made this remark – she seemed to be making a similar, but different point:

I would hope that a wise Latina woman with the richness of her experiences would as often as not reach a better conclusion than a white male who hasn’t lived that life.

It does seem – as Barack Obama said – that her original speech contained one sentence that was poorly phrased to convey the point she was making.

I agree with the many out there who think the right-wingers are hurting the Republican Party by making Sotomayor’s nomination about race.

The two areas that might potentially trouble me about Sotomayor are in the areas of executive power and civil libertarianism. She’s probably in the mainstream of the conservative/liberal consensus on these issues – which is an improvement over the right-wing extremism on these issues evident in Judge Roberts and Judge Alito. But I am not sure where within this conservative/liberal consensus she stands.

Sotomayor’s ruling the “douchebag” case – though it is certainly possible to view her deference to the school’s position as a judicial modesty which I can support. But I think the role of Courts in checking the increasing power of corporations, schools, and other semi-voluntary organizations to monitor and police the private activities of citizens is going to gradually become a big issue. That Sotomayor signed onto an opinion then that allowed the restriction of free speech on a non-school affiliated blog because calling administrators “douchebags” presented a “foreseeable risk of substantial disruption” is a matter of concern.

On the issue of executive power, Sotomayor’s record is thin. As Charlie Savage wrote in the New York Times:

[T]he effect on presidential power could be pivotal. Important rulings on executive authority — striking down military commissions and upholding habeas corpus rights for Guantánamo detainees — have been decided by a five-vote majority, including Justice Souter, on the nine-member court.

“Given that the decisions have generally been 5-4 in this area, this could be terribly consequential,” said David Golove, a New York University law professor. “We’re losing one of the court’s strongest leaders on the side of limiting executive power to reasonable bounds. If the person who replaces Souter is different than him, the balance of power may shift.”

The article was written before Sotomayor was nominated – but Savage briefly outlined her record in this area:

[O]ne person near the top of Mr. Obama’s short list — Judge Sonia Sotomayorof the United States Court of Appeals for the Second Circuit — has never worked in the federal executive branch and sits on a court that hears few executive power cases.

These issues – of executive power, war powers, of state secrets, of torture, and of national security in general – are becoming the new culture war. And it is a front in which the Court must take a strong position. I await the hearings to see what Sotomayor has to say on the issue – although I presume she will be as careful in her answers on this issue as past nominees have been on abortion.

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Posted in Barack Obama, Law, Politics, The Opinionsphere | 1 Comment »

A Week Off From Blogging

Tuesday, May 26th, 2009

You’d be surprised at how exhausting it is to churn out one to four posts a day, with at least one containing an original thought and most others some small spin. Or at least, you’d be surprised at how exhausting it is in addition to a full-time job.

So, to start the summer, I’m going to take a week off.

Now that Judge Sotomayor has been leaked as Obama’s nominee, I realize I don’t have much of a dog in this fight – at least not so far. My big concern for this nominee is their position on executive power. Sotomayor doesn’t have much of a public record on these issues – as Charlie Savage explained, she:

has never worked in the federal executive branch and sits on a court that hears few executive power cases.

I would have had to comment and get excited if the nominee had been Elena Kagan (negatively) or Diane Wood (positively). Or Harold Koh, though he wasn’t on the list this time around (positively.)

Matt Drudge is already on the case – bringing racial issues to the forefront and making the innuendo-driven case against the Judge – while acknowledging the opposition will be futile.

I’ll leave this fight to others. For this week, it’s time to take a break.

Of course, I reserve the right to jump in if I feel so compelled – so check back if something extraordinary happens in politics.

I will – of course, continue to Twitter this week. If you haven’t already, follow me there.

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Posted in Law, Politics, The Opinionsphere | No Comments »

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