Sunday, April 29, 2007

Kudos to Congress

Kudos to the Democratic Congress for passing the Iraq War funding bill with timetables for withdrawal attached, even though it faces certain veto. Congress's action establishes on the record that this is George W. Bush's War, no ifs ands or buts.

More generally, the 110th Congress has restored some measure of trust that the institution is a productive body after the miserable 109th. As reported in the New York Times yesterday, 5 day workdays are again the norm, and proper separation of powers is again on display: "Divided government has clearly helped Congress regain its position in the constitutional order. After years of inattention, congressional oversight of the Executive has intensified.... And hearings have appropriately focused more on policy and administration than on personal scandal. The White House is being challenged on many domestic and security matters it took for granted with the largely compliant Republican Congresses."

It's high time.

Thursday, April 26, 2007

Law Professors' Annual Publishing Mating Ritual

Just as spring is the time when all young mens' thoughts turn to love, spring is the (optimal) time for law professors to send out the academic articles they've been working on during the prior year to student-edited "law reviews" for publication, since that is the time when the journals change their editorial boards and have a clean slate of open spots in the 4-6 editions they'll publish in the upcoming academic year. It's all about supply and demand.

So the mating dance goes like this: profs/authors send their articles out en masse to 25, 50, or even 100 journals from the 170+ American law schools; then, as they receive an offer (or, they hope, offers) sometime over the coming weeks, which they typically must accept or reject within one or two weeks, they attempt to leverage the offer(s) by requesting "expedited-review" from law reviews at the more prestigious law schools.

Some criticize the legal academy's practice of placing publication/editorial authority in the hands of students as inappropriately allowing the inmates to run the asylum, so to speak, but overall the positives outweigh the negatives. It's a good thing, from a freshness/innovation standpoint, to have a continually-changing group of bright people reviewing legal commentary instead of a staid establishment that may be reluctant to test its own comfortable boundaries.

Anyway, my own contribution to this year's publishing ritual, an essay with the suitably-obtuse title of "Government as Liberty's Servant: The 'Reasonable Time, Place and Manner' Standard of Review for All Government Restrictions on Liberty Interests," essentially further develops the basic gist of much of what I've spoken of in earlier postings to this blog. The full article is available at, and is summarized in the following abstract:

"This essay suggests that the American legal system fails to do proper justice to the robust conception of Liberty under which the nation was founded, and locates a major source of the problem in the Supreme Court’s current presumption-of-constitutionality approach to judicial review, prompted by post-New Deal backlash to Lochner v. New York. This essay offers a new due process clause-based presumption-of-liberty standard of judicial review, modeled on the Court’s existing First Amendment “reasonable time, place and manner” doctrine. This approach, already utilized narrowly by the Third Circuit Federal Court of Appeals in Lutz v. York in 1990, more accurately reflects the Constitution’s core Liberty-First ideals, while also recognizing the proper police-power role of government."

We'll see how the dance goes this year - stay tuned.

Tuesday, April 24, 2007

Bush and The Game of Risk

The train wreck that is the George W. Bush presidency just keeps piling up cars.

Just recently:

-the Iraq "surge" has led to a surge in bombings, leading to more U.S. and Iraqi casualties. This after all best advice from the Iraq Study Group, the November elections, Congress and other indicators suggested we should get the hell out of Dodge. The White House defied all of this, and went forward with its ill-fated plans - damn the consequences.
-the World Bank is in crisis as loyal Bushie Paul Wolfowitz gamely clings to his job despite evidence of corruption in gaining favors for his girl friend. Of course, the White House stands by its man - damn the consequences.
-the Justice Department is in crisis with an incompetent loyal Bushie Attorney General whose main qualification is his undying loyalty to the president, who barely knows his left hand from his right. Of course the White House stand by its man - damn the consequences.

And on, and on.... and on....

This guy doesn't listen to ANYbody - he's an unaccountable rogue, and he and his Gang That Couldn't Shoot Straight are dangerous menaces to the world.

What is it about "W." where he is SO obstinate and oblivous to reason? Maureen Dowd had some interesting - and very telling - observations in a January 13 2007 column titled "A Risky Game of Risk":

"W. always acts like he's upping the ante in a board game where you roll the dice and bet your plastic army divisions on the outcome. This doesn't surprise some of his old classmates at Yale, who remember Junior as the riskiest Risk player of them all, know for dropping by the rooms of friends for extended bouts of "The Game of Global Domination."

"Junior was known as an extremely aggressive player in the venerable Parker Brothers board game, a brutal contest that requires bluster and bluffing as you invade countries, all the while betraying alliances....

"His gamesmanship extended to sports - he loved going into overtime and demanding that points be played over because he wasn't quite ready.

"[As Gail Sheehey pointed out in a recent issue of Vanity Fair,] 'Even if he loses, his friends say, he doesn't lose. He'll just change the score, or change the rules, or make his opponent play until he can beat him.'

"W.'s best friend when he was a teenager in Houston, Doug Hannah, told Ms. Sheehy: 'If you were playing basketball and you were playing to 11 and he was down, you went to 15.'"

Enough already! How long before impeachment is off the table, Speaker Pelosi? Nothing else will reach him - he is beyond accountability to ANYone. Sure, there's no practical likelihood of success, but it's important on principle alone for We the People to make a statement on what sort of behavior is unacceptable from our "leaders."

Friday, April 20, 2007

Partial Birth Abortion Decision

Regarding the Supreme Court's decision day before yesterday in Gonzales v. Carhart upholding the federal Partial Birth Abortion Ban Act, I think many people, myself included, who favor abortion rights and agree with the underlying premise of Roe v. Wade and Casey of a woman's right to choose, are sympathetic with the desire to avoid especially grisly forms of abortion where possible. And it seems that so-called partial birth abortions, where the fetus is partially extracted and then its skull is collapsed, may fall within this category. There is some basis in the arguments suggesting such a technique approaches infanticide.

That said, the Court's upholding of the Act despite its lack of a health exception for the mother is inexcusable. First, this ignores the Court's own precedent requiring a health exception for any such ban on an abortion procedure. In the current Act, Congress passed the law without a health exception, stating the procedure was never necessary for a woman's health; and Justice Kennedy, writing for the Court, said this was acceptable because there was "medical uncertainty" over whether the procedure was ever necessary for the sake of a woman's health. He said that pregnant women or their doctors could claim an individual need for a health exception by going to court to challenge the law "as applied" to them.

Justice Ruth Ginsburg, in dissent, rightly responded that this approach was unrealistic and "gravely mistaken..., jeopardiz[ing] women's health and plac[ing] doctors in an untenable position." Absolutely right - by placing medical decisionmaking in these circumstances in the hands of, first, Congress, and then the courts, rather than in the hands of medical professionals, the Court exceeds its proper bounds.

We may agree that certain forms of abortion may be strictly limited (though the right of abortion itself may never be banned), but there always must be an exception for the health of the mother - a point the Court most regrettably failed to honor in this case.

Wednesday, April 18, 2007

Supreme Court Prognostication Tally - One for Two

Today the Supreme Court upheld the Federal Partial-Birth Abortion Act, so my humble prediction from September 2006 from the beginning of the current Term (below) was incorrect, making my tally now one-for-two (oh well) (I was correct on February's decision on the Philip Morris USA case).

Here's what I said in September:

"Humble prediction (Sept 2006): The Court will affirm the lower courts by a 5-4 vote and properly strike down the Partial-Birth Abortion Ban Act. This is a very close call, though, and the case could easily swing the other way, depending on where Chief Justice Roberts comes down. The Court struck down a substantially similar state law by a 5-4 margin six years ago in Stenberg, so it would seem easy to predict a similar fate for this Act were it not for the uncertainty created with the addition of the two new Justices just last year. Assuming the seven remaining Justices hold their votes from Stenberg, Justice Alito very likely will replace the late Chief Justice Rehnquist’s dissenting vote; and there is some reason to believe that Chief Justice Roberts, based on statements he made during his confirmation hearings, will replace Justice O’Connor’s majority vote. If he does not, however, and instead joins the Stenberg dissenters, these cases would represent a substantial step in the long-term conservative strategy, as laid out by Justice Alito in a mid-1980s memorandum, to attack Roe v. Wade with a “death by a thousand cuts” strategy rather than seeking an outright reversal."

As it turns out, Chief Justice Roberts did not replace Justice O'Connor's vote; rather, he joined the Stenberg dissenters.

I'm not as worried as some pro-choice folks about the larger impact of this decision on the right of abortion generally, though the failure to allow a health exception is deeply troubling. The statute bans a particular method of abortion (a particularly gruesome one, at that), not the right of abortion itself. As I noted in my prediction, this might seem like one of a "thousand cuts," and I'm sure that's the hope of pro-lifers, but I don't think a majority of the Court, even now with Roberts and Alito, would vote in favor of any sort of total bans on abortion.

Saturday, April 14, 2007

Bush & The Boy Who Cried Wolf

Reading today on MSNBC about George W. Bush's request to Congress for broader power to monitor terror suspects on U.S. soil, I'm reminded of the fable about the boy who falsely cried "wolf" so many times to meet his selfish needs that it's hard to believe him even when the wolf is truly present. Why should we believe anything said by this failed president and the Gang That Couldn't Shoot Straight? Bush/Cheney credibility is zippo. (Latest bulletin: Wolfowitz favoritism and hijinks at the World Bank - anyone surprised??)

So here are the details of the request:

"The proposal would revise the way the government gets warrants from the secret FISA court to investigate suspected terrorists, spies and other apparent national security threats.

The administration wants to be able to monitor foreign nationals on American soil if they are thought to have significant intelligence information, even without known links to a foreign power. Under current law, the government must convince a FISA judge that an individual is an agent of a government, terror group or some other foreign adversary."

On the face of it, who doesn't want government to have the necessary tools to be able to prevent a planned attack on a subway system or open-air market from occurring? And it seems reasonable that the government should not need to convince the secret FISA court the person is a part of a larger organization, if it has some other evidence that there's a strong possibility the person is planning such an attack. Imagine the foreign version of Timothy McVeigh, for example - McVeigh had his dalliances with militia groups, etc., but mostly he was working alone. Even better, how about Unabomber Theodore Kazinski, who was truly working alone out of a Montana shack? Wouldn't we want to know about people like them if we could do so without damaging our civil liberties?

The article goes on to say, "one effect of such a change would be that the National Security Agency would have the authority to monitor foreigners without seeking court approval, even if the surveillance is conducted by tapping phones and e-mail accounts in the United States."

Well wait a minute. Why shouldn't the government be required to go to the minimal trouble of telling it to a judge, just to be sure it isn't overstepping its bounds? The Bush Administration is exhibit A of why government needs to be monitored. They've proven time and again that they can't be trusted - with anything.

In the final analysis, let's give the government the power it needs to monitor dangerous people. But leave it all within the FISA courts' authority. There's absolutely no reason to believe the government needs to be able to operate out of the view of the secret courts. If the wolf is truly there, the FISA courts can give the boy the power to catch him; otherwise No Go - boy-Bush has long-since lost his right to be given any benefit of the doubt.

Friday, April 13, 2007

Missing E-Mails

I must say I share Patrick Leahy's skepticism about the White House's claim they can't find pre-2004 e-mails from 22 White House officials, including Karl Rove, regarding the Justice Department's firing of eight U.S. attorneys. The White House claims it's an honest error, and they're working on it - we'll see. But if they don't find them, Leahy is correct to issue subpoenas for their production, and to bring in IT experts who can testify that in this day and age, e-mails cannot simply be "lost."

Saturday, April 7, 2007

Iraq War & Separation of Powers

The recent events concerning Congress's votes setting dates for withdrawal from Iraq illustrate again something on which I've commented previously: President George W. Bush's extreme position on the scope of executive power vis-a-vis the legislative power.

Again, no surprise here - after all, puppet-master Dick Cheney's major lesson-learned from the Nixon Watergate era (in which he participated as a Nixon staffer) was that the president had been unfairly constrained in his activities by a snoopy Congress. The entire Bush presidency is characterized by Cheney's efforts, through Bush, to undo the constraints put on the executive during Watergate and to move more toward a "unitary executive."

So today, even though Congress, distinguished bi-partisan groups of American leaders (the Iraq Study Group), and the American people have overwhelmingly expressed their desire to wind things down in Iraq, the president believes he is accountable to no one; and, moreover, that Congress is in some way acting inappropriately, or "micromanaging," as it exercises its constitutionally-granted spending power to specify some of the terms under which its spending will proceed.

The Bush Administration's position is really quite extreme - it basically creates a limited-time presidential dictatorship, where the executive is accountable to NO ONE or NO OTHER BRANCH of government. Under this approach, the president is absolutely above reproach, and the only way to rein him in is impeachment.

It's really quite remarkable - and quite inappropriate under the letter and spirit of the Constitution, which sets up a system of separation of powers between co-equal branches of government in order to prevent any one of them from assuming too much power.

Gross abuses of power constitute "high crimes and misdemeanors" under the Constitution. How much longer before impeachment is "back on the table," Speaker Pelosi?

Wednesday, April 4, 2007

College Tours

Just returned from a New England college-hunting tour with my oldest kid, and I'm reminded of the old saying that "youth is wasted on the young." The handful of small liberal arts colleges we visited in Maine, Vermont and Massachusetts were attractive and stimulating - not to mention the dorm food has changed a lot (for the better) since I was in college these several decades ago. It was a delight to hear what the student tour guides had to say about their various programs and activities - what an exciting time of life, to be out on your own for the first time and exploring all sorts of new things!

It all makes a middle-aged guy wish (sort-of, for a minute or two anyway) he could go back and replay those years now that he can appreciate them more.

Monday, April 2, 2007

Democratic Congress - Proper Oversight

MSNBC reports today that "Democrats to Widen Conflict With Bush," challenging the Bush Administration "on a range of issues -- such as unionization of airport security workers and the loosening of presidential secrecy orders -- with even more dramatic showdowns coming soon," such as to "close the prison at Guantanamo Bay, Cuba; reinstate legal rights for terrorism suspects; and rein in what Democrats see as unwarranted encroachments on privacy and civil liberties allowed by the USA Patriot Act."

Finally - after six years we have a Congress with the guts to stand up to the executive, and attempt to rein it in when it goes too far. And this is non-partisan - Democratic presidents sometimes go too far as well, and (at least when politics has become so partisan as today) our system of separation of powers works best when government is divided so the Congress can act as a check and balance on the executive.