Archive for the ‘SCOTUS’ Category

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Supreme Court Gets Wingnuttier

Saturday, June 20th, 2009

by Brien Jackson

You can’t make this stuff up:

In 1993, William Osburne was convicted of kidnapping, assaulting and raping a woman in Anchorage, Alaska. He spent the next 14 years of his life behind bars. Osburne insists that he is innocent, the State of Alaska has in its possession DNA evidence which will once and for all prove his guilt or innocence, and Osburne has offered to pay for DNA testing out of his own pocket. Allowing Osburne to prove—or disprove–his claim of innocence will cost Alaska literally nothing.

Nevertheless, the Supreme Court held today in a 5-4 decision by Chief Justice Roberts that Osburne is out of luck. Although Roberts conceded that “[i]t is now often possible to determine whether a biological tissue matches a suspect with near certainty,” he determined that Osburne has no right to pay for a test that could exonerate him for a crime he did not commit. Allowing Osburne to prove his potential innocence, Roberts said, risks “unnecessarily overthrowing the established system of criminal justice.”

I was going to compare the decision to Dred Scott, but that’s not really fair; Dred Scott was probably decided correctly given the law of the day. But there really isn’t anyway to defend this decision, and I’d be very interested in seeing how someone tried to defend it. Scott Lemieux seems to classify it as a case of federalism run amok but, assuming some level of seriousness by the Justices, I’m really not sure how that could be the case. The 14th amendment pretty clearly extends the due process requirement to the states, which would trump any “state’s rights” claim, it would seem. Of course, it’s entirely possible that the Justices decided to just ignore the plain text (ignoring the ver existence of the 9th amendment is a cornerstone of conservative legal theory after all), or that the conservative members onthe court simply don’t think due process includes the right to present exonerating evidence in court.

It seems to me, however, that this is probably just an isolated case, and the Justices are primarily concerned with protecting the image of the criminal justice system. If the decision is absurd (and it is), it’s really not that much more absurd than the nature of the system itself, which prizes process over truth, and then tilts heavily in its own favor upon conviction.

The Unyielding Weakness of Strict Constructionism

Tuesday, June 9th, 2009

by Brien Jackson

Larison goes to the well of the weakest of “strict constructionist” tropes:

The amendment process is a somewhat indirectly democratic means to make changes to that system. This makes the amendment process a slow, drawn-out, but nonetheless democratic remedy to perceived flaws in the system. The amendment process is extremely slow and arduous because there was once a quaint idea that dramatic changes in the power and scope of government could and should only be achieved through this process. Likewise, there was an assumption that there needed to be numerous obstacles to amending the fundamental law to make it more difficult for majoritarian tyrannies to strip people of their constitutional protections. Once the Court began discovering rights, or, if we want to be less pejorative, extending the protections of existing rights in new ways, what had once been within the power of state legislatures and electorates to regulate as they saw fit was placed behind a series of huge obstacles that cannot be overcome without the building up of super-majorities throughout the entire country in favor of a certain position. That would all be well enough if the right in question were not so constitutionally dubious and morally outrageous, since this process is supposed to be extremely difficult and it is supposed to require the support of most of the people, but the so-called right we’re talking about is both of these things.

The key point here is the notion of “discovering rights” which, as Larison’s admission that the phrase is a bit pejorative belies, is the idea that such rights are not, in fact, protected by the Constitution. It’s an argument you’ve probably heard any random talk radio host make at some point or another, something along the lines of “show me where the Constitution says anything about a right to privacy.” Of course, excepting the 4th amendments protections against unwarranted search and seizure, the Constitution doesn’t say anything about privacy, or abortion, or owning a pet, or being able to choose which brand of gum you want to purchase. But there is the 9th amendment, which says, and I quote, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, one of the amendments in the Bill of Rights says in no uncertain terms that there are rights held by the people under the Constitution that are not specifically mentioned in the Constitution. But it doesn’t give any idea as to what those might be, which makes it hard to argue anything concretely under the 9th amendment. I can make the argument that there’s a right to anything I want there to be a right to under the 9th amendment, and there’s no way to definitively argue against me. At the same time, there’s no way to prove my affirmative argument either. You can make a fairly reasonable argument that this fact makes such a system inoperable in practice, since the only way to determine these questions is by the whim of the judiciary, or society, at the moment, which is anathema to the general theory of written law, and that a standard f only respecting specifically enumerated rights is more desireable from a social order standpoint, but doing so requires the person making the argument to wholly ignore the plain text of the 9th amendment, which obviously doesn’t really square with the way “strict constructionism” is commonly presented.

The bright-line-rules standard preferred by Scalia and Thomas, outlined most recently yesterday in Caperton, fails in similar ways. Roberts’s dissent, as Paul Campos notes, basically argues that no standards are better than vaguely defined “arbitrary” standards, but again, this pays no attention to the structuring of the Constitution, which at various points resorts to undefined subjective  language. The 8th amendment, for example, simply states that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” How should we define “excessive,” “cruel,” or “unusual?” The Constitution doesn’t say. And yet it explicitly bans such sanctions. Again, it might not be as cut-and-dry as the Scalias and Thomases of the world would like things to be, but it is in the Constitution.  

On the latter point, Larison’s logic simply doesn’t follow. If “the right in question is so Constitutionally dubiousand morally outrageous” as Larison accepts abortion rights are as a given, then we should expect that it would be easier to cultivate a super-majority in these cases than in other, less egregious, ones. That it isn’t suggests that reality is not quite what the right imagines it to be.

Supreme Court Conservatives Jump the Shark

Monday, June 8th, 2009

by Brien Jackson

You’ve really got to love that the Roberts-Scalia-Thomas-Alito wing of the Supreme Court is so insulated from any sort of reprisal that they can actually cast a vote declaring, in effect, that buying a vote on a state supreme court to influence a pending case isn’t a problem. At least not if it’s a corporation doing it.

What’s really galling here is how obvious the case is; even if you don’t assume there was anything nefarious going on, that one of the parties in a case gave one of the justices a $3 million contribution is a conflict of interest any way you slice it, and the justice in question should have recused himself. There’s no credible argument against that, and obvisouly, none of the court’s conservatives made any.

The Tragedy of Shelby Steele

Monday, June 8th, 2009

by Brien Jackson

Shelby Steele has a column in today’s Wall Street Journal that is, amazingly, quite possibly the single most pathetic thing Steele has ever written. Adam Serwer says that Steele has gotten “predictable,” but I’m not sure that’s right. For one thing, Steele has always been predictable. He’s only got one trick, after all. No, at this point Steele has just become dishonest. If before you could make the case that he was being obtuse or making problematic, broad based claims, reading this effort, there’s simply no way to argue Steele doesn’t understand exactly what he’s doing in getting basic facts wrong, things he’s gotten wrong before.

For example, Steele continues to downplay President Obama with the same rhetoric he was using before the election, even implying that he was correct then:

I have called Mr. Obama a bound man because he cannot win white support without bargaining and he cannot maintain minority support without playing the very identity politics that injure him with whites. The latter form of politics is grounded in being what I call a challenger — i.e., someone who presumes that whites are racist until they prove otherwise by granting preferences of some kind to minorities. Whites quietly seethe at challengers like Jesse Jackson who use the moral authority of their race’s historic grievance to muscle for preferential treatment. Mr. Obama has been loved precisely because he was an anti-Jackson, a bargainer who grants them innocence before asking for their support.

Now, the most obvious intellectual problem here is that Steele doesn’t note that the sub-title to his “bound man” critique included a cliam that Obama “can’t win,” which would seem to be significantly undermined by the fact that Obama, you know, won. And what’s more, Steele isn’t even making an explanation as to why he was really right, even though he seemed to be spectacularly wrong, he’s just disappearing the fact altogether. Secondly, Steele is continuing the rhetoric from his post-election column that Obama somehow seduced white people into voting for him, even though Obama didn’t improve much on the level of support John Kerry or Al Gore enjoyed among white voters. Again, it’s not that Steele is “wrong,” it’s that he’s explaining why something happened, even though it didn’t happen. And he’s just pretending no one ever pointed out that he was just wrong about the facts of the matter (which he might believe, since it really wouldn’t make sense for Steele to read criticism of his parlor act, would it?).

Even more dishonestly, Steele rips Sotomayor’s “wise Latina” remark out of context even more egregiously than most other conservatives have:

Throughout her career Judge Sotomayor has demonstrated a Hispanic chauvinism so extreme that it sometimes crosses into outright claims of racial supremacy, as in 2001 when she said in a lecture at the University of California, Berkeley, “a wise Latina woman . . . would more often than not reach a better conclusion [as a judge] than a white male.”

Steele doesn’t even note that the broader context of the speech related to racial discrimination cases, he eliminates Sotomayor’s reference to the differing experiences of people of different identity groups. So yes, in this context, you certainly could come away thinking that Sotomayor was making the claim that Latina women are inherently superior to white men, but this isn’t Sotomayor’s quote. It’s an edited snippet of the quote that drastically changes the meaning of the remark. Steele isn’t even attempting to provide an accurate depiction of Sotomayor’s opinion, he’s hacking her words up in such a way as to change what she said, and he knows it. So far, this is the first time I’ve seen someone of any political persuasion edit out the “experiences” part of the quote, and it’s not as though this hasn’t been remarked upon heavily. This is just intellectual dishonesty of the highest form, which shouldn’t really surprise anyone who’s familiar with the bulk of Steele’s work, but what’s really striking is the degree to which Shelby isn’t even trying to hide it anymore. It’s right out there, and it’s extremely lazy in its construction.

Of course, this is still Shelby Steele, so the cheap racism is still there because, well, that’s what Shelby Steele exists to provide:

The Sotomayor nomination commits the cardinal sin of identity politics: It seeks to elevate people more for the political currency of their gender and ethnicity than for their individual merit. (Here, too, is the ugly faithlessness in minority merit that always underlies such maneuverings.) Mr. Obama is promising one thing and practicing another, using his interracial background to suggest an America delivered from racial corruption even as he practices a crude form of racial patronage. From America’s first black president, and a man promising the “new,” we get a Supreme Court nomination that is both unoriginal and hackneyed.

But of course, Steele doesn’t actually demonstrate that Sotomayor lacks individual merit. He predictably brings up the Ricci case but, also predictably, does so without making any mention of the relevant statutes or precedent. Like every other conservative commentary on the case, the decision is simply taken to be wrong for the simple reason that conservatives don’t approve of the outcome. But other than that, there’s nothing. Steele doesn’t make the case that Sotomayor lacks formal qualifications (because that would be too absurd even for him), he doesn’t dig through her career to find any sort of example that would show her to be unqualified in a substantive manner, in part because that’s not what Shelby Steele’s work is built around. Rather, because Sotomayor is a woman and a racial minority, it must be taken for granted that affirmative action is at work he. An hispanic female is ipso facto less qualified than a white man, the same way any other minority is in Shelby Steele’s world. Minorities in general, and black people in particular, don’t get ahead in that world on their own merits, unless, of course, they’re conservatives. Someone ought to ask Shelby Steele what he thinks of Michael Steele, and whether or not the latter would have his current position if the Democrats hadn’t elected the nation’s first black President.

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Thomas vs. Sotomayor

Sunday, June 7th, 2009

by Brien Jackson

I will confess, the focus on race in Sonia Sotomayor’s SCOTUS nomination has left me comparing her to Clarence Thomas more than once, so today’s article on the topic in the New York Times was of high interest to me. But the article, as one would expect from the Times, leaves quite a bit to be desired. The conclusion is nauseating in the way it regurgitates right-wing conventional wisdom about both judges, and the particulars leave a lot of relevant information out, especially about Thomas.

There’s no shortage of references to the fact that Thomas purportedly “abhors affirmative action,” but what’s interesting to me is the way these accounts significantly underplay the central role race has always played in Thomas’s rise. There’s the obvious connection made; Thomas was a conservative black man appointed to replace the court’s first, and only, black justice, and would probably not have gotten that appointment were he not a black man. I think that’s a fairly banal observation given the context of the nomination, and I don’t think anyone who denies it ought to be taken seriously. And while I tend to think that people denigrating Thomas as not smart are being somewhat unfair, it is true that his academic accomplishments are objectively below the apparent standards of the contemporary court. But more striking than that is the way most accounts ignore Thomas’s professional history before being nominated to the court. We’re not talking about someone who spent a decade or so on the bench, or someone who was involved at the pinnacle of academia. Thomas was appointed Assistant Secretary for Civil Rights at the Department of Education in 1981, and from there moved on to chair the Equal Employment Opportunity Council before being appointed to the Circuit court about a year before his appointment to the Supreme Court. He is, in other words, someone whose professional life for the past 3 decades has been almost totally defined by his race. Moreover, it’s been defined that way by other. When Reagan-Bush needed a black man for a spot, they turned to Clarence Thomas, even for a job he wasn’t particularly qualified for. To be fair to Thomas, I suspect I would be deeply resentful of that as well.

But it seems to me that the problem with Thomas is that he’s projected his experience on to everyone else, and Sotomayor is, in many ways, his antithesis. Sotomayor may have benefitted from affirmative action in being admitted to Princeton, but once there she graduated summa cum laude before going on to graduate at the top of her Yale Law class. Rather than becoming a token minority in race-related positions in a conservative administration, Sotomayor went to work as an Assistant District Attorney in New York City, then into private practice, before being appointed to the District Court at roughly the same time Thomas was appointed to the Circuit Court. Unlike Thomas, however, who was quickly moved up to the Supreme Court, Bill Clinton picked two other people to nominate for the Supreme bench, and now that Sotomayor is being elevated to the highest court, her formal qualifications are more or less beyond question, a stark contrast with Thomas’s nomination.

I could write a much longer post psycho-analyzing Clarence Thomas, and maybe I will, but for now, I’ll just say that the comparison between the two nominees is very interesting, but not if you whitewash Thomas’s side of the story.

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You Are What You Say

Monday, June 1st, 2009

by Brien Jackson

There’s a lot to agree with in this post from Larison, but I want to take issue with this:

As for the other point, it is true that refraining from making baseless charges of racism against Sotomayor will not stop other baseless attacks against conservatives from being made. However, it does seem all but certain that making such baseless charges one of the main lines of attack against Sotomayor will make it far more likely that even those conservative arguments that were once given the benefit of the doubt will be willfully misread in just the same way that critics seem to have been misreading Sotomayor’s statements.

“Willful misreading” is one way to put it, I suppose, but it seems to me that a much more logical way to look at it is that once you develop a track record of playing to racist sentiments or employing racial tropes, you lose the right to be given the benefit of the doubt in the future, because you have a track record. If John Bolton or some other neoconservative hawk writes a column employing hardline rhetoric against, say, North Korea, but without explicitly calling for military action, it’s probably still pretty fair to assume they would be in favor of such a course, because they’ve got a track record of supporting military action against states who take courses they don’t approve of. All of which basically says two things; first, as Yglesias is fond of pointing out, conservatives are much more concerned about accusations of racism than they are with actual instances of racism and, secondly, if you don’t want people to think that you’re a racist, or that you’re comfortable making appeals to racialist sentiment, then maybe you shouldn’t traffic in the sort of rhetoric that calls a summa cum laude graduate of Princeton the recipient of “preferential treatment” based on their race and gender or disparage a Supreme Court nominee with more prior judicial experience than anyone currently sitting on the court an “affirmative action hire.”

Just a suggestion.

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Sotomayor Nomination Splitting Activists and Establishment Conservatives

Sunday, May 31st, 2009

by Brien Jackson

I’d certainly have to say that the most interesting deveopment of the past few days was Sen. John Cornyn (R-TX), currently chairing the NRSC, telling NPR that Rush Limbaugh and Newt Gingrich calling Sonia Sotomayor a racist was “terrible.” That marks the first time a high profile, demonstratablu conservative Republican has criticized either since Obama took office, so far as I’m aware.

Digby thinks this is just so much kabuki, but as I said in comments, a wider reading doesn’t really seem to support that. For one thing, Cornyn’s job is to win elections for Senate Republicans, a role that requires him to be somewhat more in touch with electoral reality than your average wingnut. That’s not to say Cornyn isn’t as bad as anyone from a policy standpoint, but he does realize that it’s going to be very hard for Republicans to regain majority status if they drive their support amongst Latino voters down to the levels they get from African-Americans. And given that he comes from a state with a hefty Hispanic population himself, there might even be a bit of self-preservation going on. Cornyn also pissed of the Redstaters by endorsing Charlie Crist in Florida, and offering to go to bat for Arlen Specter in a Republican primary, until Arlen switched parties. So he’s showing some inclination to sleight the base when it’s obviously better for the GOP’s electral prospects. And he’s pronouncing her name correctly.

On the other hand, Senate Minority Leader Mitch McConnell is still articulating the rationale for a filibuster of Sotomayor, which makes no sense. Ultimately, Republicans just aren’t going to have the votes to filibuster an obviously qualified nominee, which means that they’re going to look foolish for even talking about it, and alienate Latino voters for nothing. But then, no one ever accused them of being rational did they?

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Sotomayor=Palin

Thursday, May 28th, 2009

by Brien Jackson

I had thought that Mark Krikorian was a shoe-in for the title of Most Absurd Thing Written About Sonia Sotomayor, but I must confess, this Daily Beast column from Elaine Lafferty, arguing that Republicans shouldn’t attack Sotomayor’s intelligence because that’s what sexist Democrats did to Sarah Palin, is going to be incredibly hard to top.

To wit, Democrats didn’t “attack” Palin’s intelligence because they think women are stupid, but because she herself proved, over the course of two months of national campaigning, that she wasn’t that smart. She gave answers like “what the bailout does is help those people who are concerned about the healthcare reform we need” and “in the great history of American rulings there have…of course…been rulings…” She didn’t know what the Bush Doctrine was, indeed, didn’t even seem to know that it related to foreign policy. She couldn’t name a single media source, not even a local one, she reads regularly. Perhaps unintelligent isn’t the right way to describe this, but at the very least she proved to be deeply ignorant about national issues. And, in any event, it certainly seems bizarre to say that Democrats made a mistake in attacking Palin since, obviously, Palin’s ticket lost, and exit polls suggest Palin lost McCain more voters than she gained him.

On the other hand, maybe Sotomayor really isn’t that intelligent. I don’t know her, I’ve never spoken to her, so I’m not really in a position to make broad conclusions regarding her intelligence. But what evidence I do have available to me suggests that she is, in fact, incredibly intelligent, and a very competent jurist. She has, after all, already been confirmed for a spot in the federal judiciary twice, both points involving Republicans in some way (she was appointed by George H.W. Bush to the District Court, and confirmed to the Circuit Court by a Republican Senate). If anyone has counter-evidence I’m open to evaluating it, but there really hasn’t been anything of this nature presented. And that’s the crucial difference between attacks on Palin and attacks on Sotomayor; Democrats were basing their critiques on Palin’s statements and actions, whereas conservatives are arguing that since she’s a woman and an ethnic minority, she must necessarily be less intelligent.

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I’m Old Enough to Remember When George Will Was Respectable

Wednesday, May 27th, 2009

by Brien Jackson

It seems that, in addition to having a bit of a problem with honesty, George Will is also something of a racist, as evidenced by his latest column denouncing the Sotomayor nomination as “Identity Justice.” Publius already addressed this, but he was far too nice about it for my liking.

First of all, let’s establish one thing; anyone who tries to argue that Sotomayor is not qualified for the court should not be taken seriously, and is unquestionably attempting to construct the affirmative action appointment talking point. Anyone doing that is either, a) a racist, b) attempting to cultivate racial resentment in others. That’s because there’s no contemporary standard by which Sotomayor is not qualified from the court. She has an undergraduate degree from Princeton and a law degree from Yale, the exact same educational resume of one Samuel Alito. She first became a judge when George H.W. Bush appointed her to the District Court in 1991, then was promoted to the 2nd Circuit i 1998, meaning she’s been a federal judge for 18 years. Chief Justice John Roberts, by contrast, had all of 2 years of judicial experience when George W. Bush nominated him to replace William Rehnquist, who had no prior judicial experience whatsoever before joining the court in 1971. The Justice Sotomayor would replace, David Souter, spent less than 5 months on the 1st Circuit before being elevated to SCOTUS in 1991, although he did have 7 years eperience on the New Hampshire state Supreme Court.

What’s even more telling than the denigration of what, were Sotomayor a white male, would undoubtedly be considered an impeccable set of credentials is that, in all of 18 years, apparently the only case of Sotomayor’s that the right-wing can find to disagree with concerns affirmative action, and is about as textbook of an example of judicial restraint as you could find. But here’s how Will describes it:

Before Sotomayor’s confirmation hearings begin, the Supreme Court probably will overturn a ruling she supported on the 2nd Circuit — the propriety of New Haven, Conn., canceling fire department promotions because there were no African Americans (although there was a Hispanic) among the 18 firemen the selection test made eligible for promotion. A three-judge panel of 2nd Circuit judges, including Sotomayor, affirmed a district court’s dismissal of the firemen’s complaint, doing so in a perfunctory and unpublished order that acknowledged none of the large constitutional questions involved[…]

Perhaps Sotomayor subscribes to the Thurgood Marshall doctrine: “You do what you think is right and let the law catch up” (quoted in the Stanford Law Review, summer 1992). Does she think the figure of Justice should lift her blindfold, an emblem of impartiality, and be partial to certain categories of persons? 

 Except, as one should probably expect from Will, this isn’t an accurate representation of the Ricci case, or the 2nd Circuit’s ruling whatsoever. In Ricci, the city of New Haven decided to throw out promotion tests for the fire department after a disproportionate number of minorities failed to pass on the basis of counsel from the city attorney, who warned that using the tests could leave the city open to a lawsuit under Title VII of the Civil Rights Act. After the city did so, a dyslexic white male sued, claiming this was a violation of his Civil Rights. The 2nd Circuit’s ruling essentially affirmed two things; first, that discarding the first test and requiring all participants to take a new test was not a violation of anyone’s civil rights. Secondly, they found that the city was perfectly within their authority to attempt to comply with existing federal law, because the city attorney was absolutely right; the city almost certainly would have been sued, successfully, had they used the tests. The outcome certainly may not be optimal from a social policy standpoint, but if you feel that way then your problem is with the law, not tht court that applied the law as it is written. This is nice, however, because it blatantly affirms the obvious; conservatives don’t want “judicial restraint” or “strict construction,” they want very, very activist judges. They just want them to reach outcomes that they prefer. And they have no problem distorting facts either.

And The Washington Post will happily give them the media space to do so.

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It’s Sotomayor

Tuesday, May 26th, 2009

by Brien Jackson

President Obama announced that he would, in fact, be nominating Judge Sonia Sotomayor of the 2nd District Court of appeals to replace retiring Justice David Souter on the United States Supreme Court. Sotomayor had faced the most push back of any of the potential nominees rumored to be on Obama’s short list, punctuated by Jeffrey Rosen’s article in The New Republic arguing, based entirely on anonymous sources, that Sotomayor is “not that smart,” degrees from Princeton and Yale notwithstanding. If confirmed, Sotomayor would become the 3rd woman to ever sit on the Court, and the first Hispanic.

The question now, of course, is how the confirmation battle will shake out. Democrats have a large majority in the Senate, although Ben Nelson of Nebraska has indicated that he may be open to filibustering the nominee. Still, it seems likely that Sotomayor will easily have more than 60 votes in favor of confirmation. 8 current Republican Senators voted to confirm her when President Clinton nomiated her to the 2nd district in 1998, after 7 years on the Circuit Court, and a reversal now would be pretty hard to square away on the merits. Moreover, Sotomayor’s race makes it somewhat complicated to oppose her too vigorously. Hispanics are growing rapidly as a voting demographic, and represented the most dramatic shift in the 2008 election from 2004 (Obama bested Kerry’s performance amongst Hispanics by about 20%, whereas he improved on Kerry’s total with white voters by a mere 2%), and Republican Senators in the Southwest will have a particularly difficult time being overly aggressive in their opposition.

The conservative base will, of course, make a lot of noise (and raise a lot of money) over the prospect of opposing Obama’s nominee, but at the end of the day, the votes are just there to confirm, and Senate Republicans on the whole are unlikely to go all in on something of a landmine topic if they know there’s little to no chance of winning.

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John Roberts: Unsurprisingly Conservative

Tuesday, May 19th, 2009

by Brien Jackson

Jeffrey Toobin’s New Yorker article on John Roberts is, on the one hand, quite an interesting profile of the man who may shape the court more than any other justice over the next 30-40 years. But at the same time, there’s something painfully obvious about it. Consider, for example, the passage that seems to be getting quoted most often:

Roberts’s hard-edged performance at oral argument offers more than just a rhetorical contrast to the rendering of himself that he presented at his confirmation hearing. “Judges are like umpires,” Roberts said at the time. “Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” His jurisprudence as Chief Justice, Roberts said, would be characterized by “modesty and humility.” After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

It’s very nice prose, and at first blush it’s a devastating, succint, critique of the court’s “stealth conservative,” but at the same time, it sort of falls apart under the weight of its own conceit. Roberts invocation of umpires as a model for judges wasn’t, for example, developed in a vacuum, nor aimed into the ether, it was intended exactly as a dog whistle for conservative activists and ideologues, a made-for-cable rendering of “strict constructionist” legal theory. Indeed, it’s really not hard at all to imagine, say, Sean Hannity making essentially the same point, albeit probably much less eloquently and with decidedly less charisma. So with that in mind, I don’t think it ought to surprise anyone that a justice who deployed rhetoric straight out of the talk radio world in his confirmation hearing is using made-for-Rush rhetoric on legal issues regarding race, or that Roberts essentially votes the way you’d expect a Justice Hewitt to.

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Obama Needs to Pick a Woman

Monday, May 4th, 2009

by Brien Jackson

In the wake of the announcement that David Souter would be retiring from the Supreme Court, Mark Halperin loudly declared on his Time hosted blog that, regarding Souter’s replacement, “white men need not apply.” Halperin was probably right on the factual content of the headline. His problem, however, was in assuming that this is a bad thing.

Since the ratification of the Constitution, 110 individuals have sat on the Supreme Court. 2 of them were white females, two of them were black males, 106 of them have been white males. Of the current 9 justices, including Souter, 1 is a white female, one is a black male, 7 of them are white males. All of them are Ivy League graduates who sat on an appellate court prior to their nomination to the Supreme Court. And while Latinos now represent the largest minority group in the United States, there has never been a Hispanic justice on the Court. Similarly, there are no openly gay members of the Court, even though the most prominent Constitutional questions the Court will hear over the next decade will likely revolve around gay rights.

This sort of under representation is hardly unique to the Court, women and minorities hardly have proportional representation in Congress or other avenues of elected office either, but it is indisputably distorting of decisions that come out of the court. It’s hard to imagine, for example, that the Court would have ruled in favor of Goodyear in the infamous Ledbetter case if Sandra Day O’Connor had still been on the bench instead of Justice Alito, even though O’Connor, like Justice Kennedy, was generally favorable to business interests in such statutory questions, for the simple reason that, as a woman herself, O’Connor would simply have a better understanding of the reality of discrimination in the work force, and of the difficulty in fighting it. Her identity, in other words, would serve as a crucial part of her general outlook, the same way a white male’s identity plays a role in the way he views the world. Because, perhaps more than anything other than class, our identity fundamentally shapes the nature of our experiences. A woman, or a minority, has simply seen different aspects of our society, and experienced shared events from a different perspective than a white male.

What’s more, at this point in time, a Court that is 88% male is simply unjustifiable. Women make up 51% of the American population, and 48% of its law school graduates. There are hundreds of women on the federal bench, and thousands on state courts across the country.  Dozens of high profile legal scholars and professors are women, and women have served as the dean of prestigious law schools across the country. Considering that 8 justices have been confirmed to the court since Sandra Day O’Connor became the institution’s first female member, the fact that only one of them has been a woman should be a mark of national shame.

Critics would counter that Obama should nominate the “most qualified candiate,” but this largely misrepresents to pool of potentials. Across the realm of prior experience that has marked previous justices; prominent legal scholars, federal jurists, politicians, etc., there are hundreds of potential nominees for a President to select from, and no way to objectively quantify them. Any standard one could think of is fraught with subjectivity and determination of personal preference. Given that fact, there’s no reason some level of identity shouldn’t be taken into consideration, in seeking a court that will have a reasonable level of diversity in regards to experiences.

Sonia Sotomayor would be only the third woman to ever serve on the Court, as well as its first Hispanic justice. And while she graduated from Yale Law School, growing up in the Bronx is hardly a typical starting point for a Supreme Court justice. With that in mind, Sotomayor would make an excellent addition to the Supreme Court; she would challenge groupthink amongst the white male dominated Court (if Sotomayor does replace Souter, 2/3 of the Court would still be made up of white males), and she certainly has the qualifications for the job.

Equal Rights on the March

Tuesday, April 7th, 2009

by Brien Jackson

Stepping back and looking at the big picture for a second, it’s really astonishing to consider that, in the span of under a week, gay marriage has been legalized in Vermont and Iowa. The Iowa Supreme Court declared the states prohibition on gay marriage to be un-Constitutional last week, and the legislature has since indicated that they have no intention to pursue any action to nullify the decision, making them the only non-Northeastern state to currently have gay marriage on the books. Then, today, the Vermont legislature overrode the governor’s veto in overwhelming fasion, becoming the first state legislature to enshrine gay marriage in their state (the California legislature passed a bill to that effect twice, both of which were vetoed). This is somewhat monumental because it negates what, to this point, has been a typical “serious” right-wing criticism, which is that gay marriage has, thus far, required “judicial activists” to be put into place, something the right has regarded as anti-democratic. Of course, now that Vermont’s legislature has acted, the goalposts have been moved, and now, presumably, popular referendums will be required for anything to be “democratic” (never mind that Vermont has no referendum process).

To state the obvious, you expect this sort of thing from a right-wing (or, on a reversal, froma certain left-wing segment) whose less concerned about process, legitimacy, and law than getting what they want by any means necesary, but somewhat more bothersome has been this argument’s prevalence on the center-right, and in fewer case the center-left. Andrew Sullivan is a very good example. I certainly don’t want to impute sinister motives, because obviously this is an issue more near and dear to Sully than to myself, I simply don’t understand the logic. If you feel that the question is one of Constitutionality, and that the prohibition on gay marriage is un-Constitutional, then the only logical conclusion to draw is that the courts have an obligation to overturn bans on such. The only other logical conclusion is that bans on gay marriage are perfectly Constitutional. I suppose it’s also possible that Sully simply fears that court action will provoke a backlash against the movement and be a net-negative, but as Anonymous Liberal outlines, that just isn’t how istory has shown this sort of thing to work:

Today no one questions the correctness of the Perez decision from a legal standpoint. And that’s important to remember. It proves that just because a panel of judges is the first to recognize something, just because a judicial decision upsets prevailing societal norms, doesn’t mean it’s an example of improper activism or “legislating from the bench.” The first judge to say something is just as right as the last one to say it. Sometimes the right answer, from a constitutional perspective, is pretty clear; it’s just that no one has the courage to stand up and say it.

Years from now, the basic legal argument underlying the gay marriage decisions in Massachusetts, Connecticut, and Iowa will be utterly uncontroversial and will seem obviously correct to just about everyone. No one will think that these courts were “legislating from the bench” by stating such obvious truths.

I think this is important to keep in mind, especially when considering that the near term response to decisions like Brown vs. Board of Education was hardly one of universal acceptance. Riots erupted when black students tried to go to white schools, Southern governors and mayors showed up to physically block the doors of state schools, the National Guard had to be deployed to protect black students in Arkansas, Alabama, and Mississippi, etc. But 10 years later, the Civil Rights Act was passed by Congress. The year after that, the Voting Rights Act. And now we have a black President who carried Florida, Virginia, and North Carolina on the way to the White House, and the fundamental holding in Brown is understood to be so self-evident as to be downright shameful that it even had to come to that in the first place. Ultimately, I think, gay marriage will be much the same. More and more states will legalize, whether by legislative or judicial action, but some states will resist no matter what. The Supreme Court is ultimately going to have to step in, and they will, I think, ultimately strike down gay marriage bans across the country (and sooner than most people realize). This won’t make the holding any less correct, and any right-wing rendering of garments over it will not change the ultimate judgment of history, that the core finding in the decision will be so obvious, so uncontroversial, that future generations will view it much as we view Brown; a monumental moment and accomplishment but, at the same time, a national embarrassment that it ever had to come to that.

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Scalia’s Originalism

Monday, June 30th, 2008

I’ve never really understood anyone not firmly encased in the ideological right who could profess anything like admiration for Antonin Scalia. The man barely hides the fact that his aim is policy making and tilting the nation’s law to the extreme right in service of his own ideology, even if he tries to couch it in absurd on the face claims of history, text, and intent.

Without delving into the general absurdities of the whole notion of originalism and intentionalism, I’d like to quickly bring up this great article on Scalia over at TAP highlighting the sheer, blatant, and hardly hidden ease with which Scalia shifts his “judicial philosophy” in achieving the “right” vote.

Consider first the two opinions’ methodology. In the Guantánamo case, Scalia accuses his colleagues of having “blatantly misdescribe[d]” a key precedent and of having misread history. Yet in Heller, Justice Scalia simply discarded the key 1939 precedent of United States v. Miller, which rejected the individual rights theory of the Second Amendment in Heller. Worse, reminded by Justice Stevens of the literally “hundreds of judges” who had relied on Miller‘s holding, Scalia offered only a footnote mocking their “erroneous reliance.” Judicial precedent, in short, bites only when he wants it to.

The methodological heart of Heller, however, is Justice Scalia’s much vaunted theory of originalism: the idea that the Court reads the Constitution to mean precisely what its original audience, the ratifying citizens, would have understood it to mean. This has been a cornerstone of Justice Scalia’s tenure on the Court, and since the Meese era at the Justice Department, the rallying cry for conservatives seeking to rein in what they call judicial activism.

Yet Heller shows just how flawed (and activist) “originalism” in fact is. Having announced his originalist credentials, Justice Scalia then passes quickly over the ratification period in order to spend about a quarter of his opinion (15 of 67 pages) discussing the post-1800 understandings of the Second Amendment. As an “originalist” matter this is at best putting the constitutional cart before the ratifying horse since it’s hardly clear what people in the 1890s thought tells us anything about understandings at the time of the Founding. But then, as historian Jack Rakove has pointed out, the ratification history that an originalist would look to is not as favorable as the post-1800 texts Justice Scalia relies upon.

This is one of those glaring problems with originalist, or strict constructionist if you prefer, ideas. If you think “judicial activism” is courts being too reliant to make policy by ignoring the legislative works, you would think you might at least blush at the quickness to toss that aside if and when the “activism” favors your preconceived opinions. But then, that would require shame, and that’s a trait Justice “Get over it” was certainly not cursed with.

But even beyond that, the particulars of Scalia’s dueling opinions don’t even match up. Consider:

If there is a constitutional right to carry a gun, laws criminalizing weapons possession of various kinds, such as the federal law barring those convicted of a domestic violence from possessing a firearm, will be challenged. Perhaps criminal defendants will also rely on Heller‘s celebration of the “natural” right of self-defense to argue that states must give that a more ample right of self-defense than presently available. And while Justice Scalia’s opinion, in a brief aside, tried to wave back new challenges, his reasoning was scanty and unconvincing — and, more importantly, not binding as a matter of precedent.

But the greatest practical effect of Heller will be to disable crime-ridden urban centers from dealing with the plague of guns. Already, Chicago’s gun law has been challenged; San Francisco’s is next.

I’m not a big believer in the idea that strict gun control laws will have an enormous impact on crime, but I certainly suspect there must be a marginal effect, and when you consider Scalia’s shamefully partisan and crazed dissent in Boumediene, then the issue isn’t so much effects of policy, but intellectual consistency. Of course, there’s none to be seen, because what matters is that Scalia casts the vote that will effect the right-wing policy on a particular issue, how one gets there is secondary.

I’ve probably already wasted too much effort trying to ascribe a reasoned breakdown to a man who is simply a partisan sock puppet, so with that I’ll just leave it at this; Antonin Scalia is an embarrassment not just to the Supreme Court but to the country. And in a less partisan world, any judge who responded to extremely relevant decision on the magnitude of Bush vs. Gore with a flippant, “get over it,” would be tossed from the bench and disbarred.