The Bush administration loves it, but many Justice Dept. officials think it’s illegal…Now, it’s the Supreme Court’s turn to weigh in on Boss DeLay’s gerrymandering plan in Texas. “Two years ago, justices split 5-4, in a narrow opening for challenges claiming party politics overly influenced election maps. Justice Anthony M. Kennedy was the key swing voter in that case, and on Wednesday expressed concerns about at least part of the Texas map.” (Rehnquist and O’Connor sided against the map challenge then, so a switch by Roberts or Alito will only mean a larger majority against the DeLay redistricting, should the same votes hold.) Update: Justice Ginsburg finds the subject exhausting, and Dahlia Lithwick reports in.
Tag: Dahlia Lithwick
Specter v. S.P.E.C.T.R.E.
The Specter hearings into the illegal NSA wiretaps begin, and, so far despite Specter’s tough talk on Sunday, they’ve been pretty much a sideshow. For one, as they did with Big Oil, the GOP ensured by a 10-8 party-line vote that Gonzales didn’t have to testify under oath. For another, Gonzales has been falling back on the ridiculous Article 2 defense and saying little of import as of yet. Still, at least Republicans like Specter and Lindsey Graham are joining Feingold and others in calling out the administration’s dubious rationale for the Imperial Presidency, so perhaps these hearings may be of some service yet. Update: As the NYT points out, we’ve been here before. Update 2: Dahlia Lithwick is not amused.
The Kennedy Era.
“While it’s true that O’Connor has tended to vote with the majority more frequently than Kennedy, and that she has done so in some big 5-4 decisions, it’s also true that in other extremely contentious areas, it is Kennedy, not O’Connor, who has swung the court leftward.” As Dem begin to announce their no votes for Alito (while downplaying the likelihood of a filibuster), Dahlia Lithwick — who is concerned about Alito’s judgment in the relatively precedent-less world of anti-terror-law — gives us hope for the Court’s future in highlighting Anthony Kennedy as the new swing vote. (Clearly, the psycho-right despises him, which speaks well of his jurisprudence in my book.)
The Sam Alito Show.
Didn’t we just do this? Well, regardless, the Senate Confirmation hearings for Sam Alito are now underway. Given his dubious paper trail, his conflict-of-interest on the books, the recent disclosures about Dubya’s imperial pretensions and the possibility of a Dem filibuster, Sam “Scalito” Alito looks to have a tougher road ahead than John Roberts. But, who among the GOP, other than possibly Arlen Specter, might vote against him? Barring a Borkish meltdown before the Senate Judiciary, or, unlikelier still, an uprising over the issue of presidential power, I’d be surprised (but not at all dismayed) if Alito isn’t nominated to the bench, particularly with the public (slightly) behind him. That being said, having freakshow GOP pro-lifers like Sam Brownback and Tom Coburn froth at the mouth over Roe v. Wade probably isn’t doing Alito any favors in the court of public opinion. Update: Alito’s opening statement: Aw shucks, I’m just a humble, regular, working-class guy from Jersey, and in no way a scary conservative (although I do really dislike 60’s liberals.) Update 2: Slate‘s Dahlia Lithwick weighs in.
The I-Word.
“‘The fact is, the federal law is perfectly clear,’ Turley says. ‘At the heart of this [NSA wiretap] operation was a federal crime. The president has already conceded that he personally ordered that crime and renewed that order at least 30 times. This would clearly satisfy the standard of high crimes and misdemeanors for the purpose of an impeachment.'” Salon‘s Michelle Goldberg assesses the current political temperature for Dubya’s impeachment. “‘For Republicans to suggest that this is not a legitimate question of federal crimes makes a mockery of their position during the Clinton period. For Republicans, this is the ultimate test of principle.‘” Update: Slate‘s Dahlia Lithwick also muses on Dubya’s distaste for the rule of law.
Round 2: Miers.
In the early morning, Dubya chooses White House Counsel Harriet Miers as the next Supreme Court nominee. (Searching far and wide again, I see.) Well, let the vetting begin. On the plus side, the fundies seem perturbed, and she has some Dem donations in her past. On the other hand, she’s a rabid Bush loyalist, calling him “the most brilliant man she had ever met.” (Get out much?) Update: The Weekly Standard‘s Bill Kristol is disappointed, depressed, and demoralized by the Miers pick, while Legal Times was already unenthused about her. Update 2: Slate‘s Dahlia Lithwick and Emily Bazelon are similarly nonplussed: “Can anyone really imagine that she’d be the nominee if she weren’t a woman and the president’s friend and loyal adviser? Cronyism and affirmative action: It’s a nasty mix.“
Fallen Chief.
Breaking News: Segregationist, federalist, kingmaker, lousy historian, fashion maven, and Chief Justice of the Supreme Court William Rehnquist has died. Can’t say I’m looking forward to the Dubya gang getting to pick a new Chief Justice. Nope, not at all. Update: Dahlia Lithwick weighs in, and the nomination calculus begins anew. Update 2: It’s Roberts for Chief.
Mr. Nice/Ninth guy?
“And that’s why John Roberts doesn’t alarm me much. The same conservatism that leads him to decry judicial overreaching in the privacy and civil rights contexts is part and parcel of a larger conservatism that distrusts reckless grandiosity…Roberts cares a lot about looking temperate, and that isn’t a bad thing in a judge.” As Senators Ted Kennedy and Patrick Leahy turn up the heat on the Roberts nod, Slate‘s Dahlia Lithwick argues that, at the very least, he seems temperamentally unsuited to be a judicial bomb-thrower. That’s good, ’cause even with today’s news of a missing civil rights folder and a possible conflict-of-interest in a terrorism case, there doesn’t yet seem to be a silver bullet that could derail this nomination. Update: Dahlia Lithwick reconsiders after pondering Roberts’ “Woman Problem.”
Million Vote Baby (Redux).
Articles worth reading on GOP involvement in the continuing Schiavo fiasco:
Slate’s Dahlia Lithwick: “This morning’s decision by Congress and President Bush — to authorize new federal legislation that will obliterate years of state court litigation, and justify re-inserting a feeding tube into Terri Schiavo, based on new and illusory federal constitutional claims — is not about law. It is congressional activism, plain and simple; legislative overreaching and hubris taken to absurd extremes.”
Salon‘s Eric Boehlert: “The Schiavo episode highlights not only how far to the right the GOP-controlled Congress has lunged — a 2003 Fox News poll found just 2 percent of Americans think the government should decide this type of right-to-die issue — but also how paralyzed the mainstream press has become in pointing out the obvious: that the GOP leadership often operates well outside the mainstream of America. The press’s timidity is important because publicizing the poll results might extend the debate from one that focuses exclusively on a complicated moral and ethical dilemma to one that also examines just how far a radical and powerful group of religious conservatives are willing to go to push their political beliefs on the public.“
The Executioner’s Song.
“Fighting over the ‘evolving standards of decency’ underlying the Eighth Amendment’s ban on ‘cruel and unusual punishment,’ the 5-to-4 opinions reflect an all-out war between the proponents of a living (or at least medium-rare) Constitution and those who want to see it dead (or perhaps well-done, with a nice pinot).” Slate‘s inimitable Dahlia Lithwick explains the Kennedy-Scalia sniping undergirding the Supreme Court’s very welcome 5-4 decision to ban juvenile executions. To keep things in perspective, the only other nations besides us that have put juveniles to death since 2000 are China, Iran, Pakistan, and the Congo…not exactly what you’d call the Axis of Freedom.