******************** THIS BLOG HAS MOVED TO WWW.LEGALINSURRECTION.COM ********************

This blog is moving to www.legalinsurrection.com. If you have not been automatically redirected please click on the link.

NEW COMMENTS will NOT be put through and will NOT be transferred to the new website.

Sunday, May 31, 2009

Sotomayor "Meant What She Said and Said What She Meant"

Ruth Marcus is a columnist for the Washington Post. By any standard, Marcus is left-of-center, not an Obama-basher, and not hostile to liberal causes. So when Marcus rejects the White House spin on Sonia Sotomayor's "wise Latina" statement, it deserves attention:
Nice try, Mr. President, but I’m not buying the poor-choice-of-words defense for Sonia Sotomayor. “I’m sure she would have restated it,” President Obama told NBC News about his Supreme Court nominee’s now-famous 32 words: "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." Said White House Press Secretary Robert Gibbs, "I think she'd say that her word choice in 2001 was poor.”

You spin the speech that’s dealt you. But it seems clear to me that Sotomayor, to quote that great jurist Dr. Seuss, meant what she said and said what she meant. This was no throwaway line or off-the-cuff linguistic stumble along the lines of the judge’s other controversial comment about appeals courts making policy.

Rather, Sotomayor was deliberately and directly disputing remarks by then-Justice Sandra Day O’Connor that a wise old woman and a wise old man would eventually reach the same conclusion in a case.

I think Marcus has it right; the statement by Sotomayor was not a "poor" choice of words. Sotomayor was expressing the trite but common wisdom among critical legal thinkers and left-wing legal technocrats which pushes racial, ethnic and other identities to the forefront of almost any discussion.

Marcus does not believe the statement or philosophy should be a bar to Sotomayor's confirmation. My sense is that to get confirmed, Sotomayor has to run away from this ideology during her confirmation hearings, which is why the White House already is setting the stage for an "I didn't mean what I said" defense.

Otherwise, Sotomayor would put herself far outside the mainstream, which according to those who opposed Samuel Alito, including Barack Obama, disqualifies one from serving on the Supreme Court and justifies a filibuster.

Related Posts:
Prominent Constitutional Scholar Warns Of "Stealth Nominee"
Sotomayor's Damned Statistics

Follow me on Twitter and Facebook

Because I'm Entitled

I did it because I'm entitled to burn a jet-load full of fuel, even though:

  • I plan to cap industry's production of carbon emissions regardless of whether it destroys our global competitiveness
  • My carbon emission caps will cost consumers thousands of dollars per family in higher energy costs
  • I have made independence from foreign oil our nation's top priority
  • I took over the auto industry and will force you to buy itsy-bitsy cars
  • I hated it when auto executives took private planes to Washington, those pigs
  • We all need to cut back in these hard times

You see, I'm just like that. And there's nothing you can do about it.

Correction: I'm sorry. I made a mistake. I actually burned three jet-loads of fuel. I forgot about the two planes full of commoners with things in their ears who talk into their sleeves, who follow me everywhere I go.

Related Post: Those Other "Unfortunate" Words

Follow me on Twitter and Facebook

Those Other "Unfortunate" Words

“Scott, you said that – or the President said, repeatedly, that Harriet Miers was the best person for the job. So does that mean Alito is sloppy seconds, or what?”

CBS News Correspondent, John Roberts, at White House Press Briefing, questioning White House Press Secretary Scott McClellan. Roberts later apologized, saying he had used "an unfortunate choice of words."

After Roberts apologized, Huffington Post blogger Paul Krassner answered the question for McClellan: "Yes, sloppy seconds."

Related Post: Prominent Constitutional Scholar Warns Of "Stealth Nominee"

Follow me on Twitter and Facebook

Saturday, May 30, 2009

Prominent Constitutional Scholar Warns Of "Stealth Nominee"

Bruce Ackerman, a prominent constitutional law professor at Yale Law School, warned against the tactic of "stealth" Supreme Court nominations, where an ideologically driven President who seeks to change the direction of the Supreme Court nominates a relatively undistinguished appeals court judge whose lack of distinction and sparse ideological record conceals a secret agenda:
The job of the Senate is to make it clear to the American people which path the President is taking. Under the Constitution, the president’s judicial nominations are subject to the Senate’s ‘advice and consent’, and it deliberates under rules that give the minority party a special say. Unless 60 of the 100 senators agree to terminate debate, a minority can block a final vote by refusing to end discussion of the nominee on the floor.

The stakes are very high and the ... minority should be careful. In the first instance it should determine whether the president has nominated a ... radical.... Above all else, it must oppose any ‘stealth’ candidate whose record is so undistinguished that his judicial philosophy remains secret. Perhaps after hearing a ... nominee present his arguments before the Senate judiciary committee most Americans will support the case for radical change; perhaps not. But one thing should be clear: the Senate should not give its ‘advice and consent’ to a stealth revolution in constitutional law.

Law students under Ackerman's tutelage at Yale Law School urged law students to send a letter to Senators against the appointment of any nominee whose judicial philosophy was out of the mainstream:
As a Senator, you have the constitutional obligation to stand as a bulwark against the appointment of a Supreme Court Justice whose views represent only a narrow segment of our nation. Your Advise and Consent power means that you can and should ensure that American jurisprudence continues to be characterized by justice and freedom for all, rather than advancing the political agenda of a few.
The year was 2005. Ackerman's admonition in February 2005 against the Senate confirming stealth nominees was directed at the prospective nominees of then President George W. Bush. The law student group was "Law Students Against Alito" and the letter was in opposition to Samuel Alito upon his nomination in October 2005. Ackerman would go on to warn that "the confirmation of Samuel Alito carries a clear and present danger of a constitutional revolution on a very broad front" and that Alito was "a judicial radical."

Do the same standards apply to nominees of President Barack Obama?

Related Posts:
Sotomayor's Damned Statistics
Release The Sotomayor Memos
Sotomayor's Disparate Impact

Follow me on Twitter and Facebook

Sotomayor's Damned Statistics

"There are lies, damned lies, and statistics." So it is said. We now have reached stage three of the Sotomayor debate, because we are into statistical analysis of her opinions and dissents.

First, some backdrop on statistics as relates to Supreme Court nominees. During the confirmation process for Samuel Alito, then law professor Cass Sunstein did a statistical analysis of Alito's dissents at the request of Ted Kennedy. The analysis was filled with qualifications and caveats cautioning about reading too much into statistical analysis of judicial opinions. Here is Sunstein's punch line:
But to make that story short and simple: When there is a conflict between institutions and individual rights, Judge Alito’s dissenting opinions argue against individual rights 84% of the time. In almost all of the cases in which Judge Alito dissented in order to reject individual rights claim, he was sitting on a court with a majority of Republican appointees. A summary statistic of this kind must be taken with many grains of salt and with appropriate qualifications; let me now add a sense of context and a few complexities.
Among the difficulties of assessing voting records even for dissenting opinions, Sunstein noted, is that the opinions need to be "coded" to assess whether the vote is for or against "individual rights" and the one thing which does not enter into the analysis is whether Alito was correct as to the law:
An additional way of evaluating these dissenting opinions is less statistical; it involves an assessment of their merits and their relationship to preexisting law. Any such assessment will, of course, involve a high degree of discretion. But a preliminary analysis suggests two points. First, Judge Alito’s opinions are carefully reasoned, well-done, attentive to law, lawyerly, and unfailingly respectful to his colleagues. Second, it is fair to say that he has often dissented, in a way that rejects individual rights claims, even though the law, fairly interpreted, could well be taken to support those claims. Hence he has exercised his own discretion, not lawlessly but in a way that helps to illuminate his general approach to the law.
Sunstein went on in the letter to explain that while analysis of dissents may have some value, the analysis of majority opinions has little value as a predictor of how a Supreme Court Justice would vote once elevated to the Supreme Court:
Judge Robert Bork, for example, was in agreement on the D.C. Circuit with then-Judge Ruth Bader Ginsburg about 91% of the time – which did not suggest that they would vote in the same way on the Supreme Court! An important question for inquiry would have been the other 9%.
In plain English, Sunstein's attempt to statistically categorize dissenting opinions was full of caveats, assumptions, and value judgments rendering any such assessment political garbarge. Not surprisingly, Ted Kennedy (who invented Borking) took Sunstein's analysis, without mentioning the limitations and caveats, to argue that Alito would be hostile to individuals:
"In an era when too many Americans are losing their jobs, or working for less and trying to make ends meet, in close cases Judge Alito has ruled the vast majority of the time against the claims of individual citizens," Kennedy said. "He has acted instead in favor of the government, large corporations, and other powerful interests. In a study by a well-respected expert, Professor Cass Sunstein of the University of Chicago Law School, Judge Alito was found to rule against the individual in 84 percent of his dissents. To put it plainly, average Americans have had a hard time getting a fair shake in his courtroom."
Statistical noise now has entered the Sotomayor debate in her defense. At SCOTUS Blog, Tom Goldstein has read each of the race-related decisions in which Sotomayor participated, and finds as follows (italics mine):
Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.

Goldstein's analysis clearly is well-intentioned, but also subject to differing interpretations. One interpretation, advanced by Goldstein, is that the statistics show that "it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking."

But to use Ted Kennedy's interpretation of statistics for Samuel Alito, one also could conclude that Sotomayor is hostile to minorities and racial discrimination claims. Hogwash. There is nothing in Sotomayor's background to suggest such hostility, which simply proves the point that these sort of statistics are meaningless.

The other interesting aspect of Goldstein's analysis is how he treats dissents. By focusing on majority opinions, Goldstein is going against Sunstein's admonition as to Alito that majority opinions are not particularly meaningful for statistical purposes. Whereas Sunstein focused on Alito's dissents, Goldstein focuses on Sotomayor's concurrences.

Perhaps Goldstein focused on Sotomayor's majority opinions because Sotomayor had so few dissents in the subject-area, meaning that she voted with her co-panelists almost all the time:
In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times.
Goldstein treats the existence of a dissent as a "fair measure" of whether a judge is an "outlier," but that is not necessarily so. Does the lack of dissenting opinions mean that Sotomayor is in the mainstream? Maybe. Does it mean that she does not show judicial independence of thought? Maybe. Does it mean nothing? Maybe.

Needless to say, Goldstein's analysis of Sotomayor's opinions is being spun as "plainly provid[ing] the best evidence of the kind of judge she will be" or " fairly convincing evidence." Wrong. Statistical aggregation of judicial opinions certainly is part of the evidence, but not conclusive, for all of the reasons and caveats set forth in the Sunstein analysis of Samuel Alito. The actual opinions, not the statistics, tell us much more about the candidate.

The emptiness of statistical analysis of judicial opinions also highlights the need to really understand who a nominee is, what philosophy she brings to the table, and what nods and winks (if any) have been conveyed to the nominating President. I'd much rather see the internal White House memos and e-mails about Sotomayor than spend my days with illusory damned statistics.

If we knew as much about Sotomayor as the President nominating her, we could make a better-informed decision, and would not be reduced to reading judicial tea leaves.

UPDATE: Some more on the limitations of judicial data mining, circa 2005 (Alito):

  • When Alito Is Unbound: On Mining Judge Alito’s Judicial Record: "But when a judge is transformed to justice, all of a sudden Supreme Court precedent becomes much less sacred. Justices can bend and twist the precedent; they can overrule cases; they can radically alter the direction of the law. What happens when an appellate judge is unshackled in this way?"
    The Court's Dynamics Have a Way of Altering a Justice's Approach to the Law: "Lower court records can actually provide disinformation about a nominee's true preferences. Judges on lower courts, after all, are bound by Supreme Court precedent, and that constraint may explain why Souter -- thought to be moderately conservative as a state and federal appellate court judge -- emerged as liberal once on the high court. The Supreme Court that Judge Souter was bound to follow was somewhat conservative or, at least to the right of Souter's actual preferences. While Supreme Court nominees "respect" precedent, as they unfailingly tell the Senate Judiciary Committee, once elevated they are not compelled to follow it. Freed from that constraint, the "real" Souter came into view."
  • Reacting to claims by Yale Law Professor Bruce Ackerman and a group called "Law Students Againt Alito" (which eventually produced this statistical analysis) that Alito was a "judicial radical": "There is nothing "radical" or "too" steadfastly conservative about Alito; there is nothing remarkable, illegitimate, or extremist about his approach; there is nothing particularly surprising about any of the results he has reached or about any of the opinions he has written. His work is the work of a careful, conscientious, very smart, "conservative."
  • More on the Yale Law School effort against Alito: "The most preposterous thing is that anyone should think the faculty of the Yale Law School is particularly qualified to judge whether Alito would make a good Supreme Court Justice or not. Whether they intended to or not, their (for those who spoke seemed to speak for Yale) disgraceful behavior in both the Bork and Thomas nominations makes it obvious that they are just carrying water for the political left. I suppose someone has to do it, but it ain't law."
  • My thought (to be followed eventually by a post): Where are all the law professors doing a critical analysis of Sotomayor's writings, as happened with Alito? Is there a groupthink going on, is she so perfect that there is no legitimate criticism, or are they afraid to speak out?

UPDATE No. 2: Here are more people chiming in to give significance to these meaningless statistics, apprently without realizing that if the statistics are taken at face value they would prove that Sotomayor is hostile to minorities and race-discrimination claimants by an 8-to-1 ratio, which would put her in the fictitious Alito-like territory:

  • The Daily Dish ("The NYT is touting this as the now-central line of criticism. Tom Goldstein has actually looked at the record. It seems as if the critics should try another tack");
  • DailyKOS (Tom Goldstein does something novel over at SCOTUSblog and actually looks at Sonia Sotomayor's record);
  • Crooks and Liars ("On race, SCOTUSblog examines the record and says it's "absurd to say that Judge Sotomayor allows race to infect her decisionmaking"")

By contrast, The Reaction has a fairly reasonable take on the study from the point of view of whether the 8-to-1 denial ratio has any meaning, noting:

"Now, this doesn't tell us much. Each case should be examined individually, on the merits, because what really matters is not whether she rejected discrimination claims but whether she was right to reject them."

Related Posts:
Release The Sotomayor Memos
Misleading Sotomayor Headline Of The Day
Sotomayor's Disparate Impact

Follow me on Twitter and Facebook

Friday, May 29, 2009

Misleading Sotomayor Headline Of The Day

At a 2001 conference, Supreme Court nominee Sonia Sotomayor uttered these now-famous words:
“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.”
The White House has acknowledged that Sotomayor used a "poor" choice of words. Yet some people are trying to defend Sotomayor's comments not on the merits of the comments, or even by stating that Sotomayor misspoke, but by distorting comments by prior Republican Supreme Court nominees.

In a post titled Reagan Appointee Sandra Day O’Connor Said Gender, Race Impact Judging, The Plum Line blog gets the award for most misleading headline of the day. Here is the intro to the post:

Sonia Sotomayor is taking a beating from conservatives for her 2001 speech saying that gender and race will inevitably impact one’s judgment and jurisprudence.

But guess who said something very similar? Moderately conservative Sandra Day O’Connor, who was appointed to the Supreme Court by Ronald Reagan in 1981.

Said something very similar? Keep reading, and the opposite is true. Here is the O'Connor statement quoted (the bold highlighting is as printed at The Plum Line, the italics are mine):

“My experience as a legislator gives me a different perspective. Also, I bring to the court the perspective of a woman primarily in a sense that I am female, just as I am white, a college graduate, etc.

“Yes, I will bring the understanding of a woman to the court, but I doubt that that alone will affect my decisions,” she said.I think the important fact about my appointment is not that I will decide cases as a woman, but that I am a woman who will get to decide cases.”

O'Connors statement, as quoted, is the opposite of the headline, and nothing like what Sotomayor said. The author acknowledges this later in the post:
To be clear, O’Connor’s sentiments aren’t identical to Sotomayor’s. O’Connor was to a degree downplaying the impact her gender might have.
Sotomayor played up the importance of her gender and ethnicity, while O'Connor downplayed those factors, yet the point of the The Plum Line post -- until that final admission -- is that the two sets of comments were similar. A blogger at DailyKos cites The Plum Line post as authority, ignoring the admonition (quoted immediately above) that the headline and thesis of the post are not actually correct.

While some people will say anything to defeat the Sotomayor nomination, it is equally clear that others will say anything in support of Sotomayor.

UPDATE: Sister Toldjah has a good analysis of The Plum Line post as well as other posts misrepresenting comments by Samuel Alito.

Follow me on Twitter and Facebook

Ambassador "Vacuum Cleaner" Gets Company

Louis Susman of Chicago was nicknamed "the vacuum cleaner" because he was so good at cleaning out the pockets of the wealthy to get them to give to Democratic causes and candidates. As noted on this blog last February, Susman was in line for ambassadorship to Britain after having raised $240 milliion for Democrats.

The Susman appointment now is official, as are the appointments of numerous other wealthy contributors to the Obama campaign, including (via Bloomberg News):

-- John Roos, chief executive officer of the Palo Alto, California-based law firm Wilson, Sonsini, Goodrich & Rosati, to Japan. He raised more than $500,000 for Obama.

-- Charles Rivkin, chief executive officer of Wildbrain Inc., to France. Rivkin collected more than $500,000 for Obama’s campaign and $300,000 for his inauguration.

-- Laurie Fulton, a partner with Williams & Connolly LLP, to Denmark. Fulton, 59, raised $100,000 to $200,000.

Obama is continuing the presidential tradition of rewarding campaign contributors and denigrating career foreign service officers. So much for change, more like business as usual.

Related Post: Obama To Appoint "The Vacuum Cleaner" To Plum Ambassadorship

Follow me on Twitter and Facebook

Sotomayor's Disparate Impact

The New York Times has an article today about Sonia Sotomayor's board membership at the Puerto Rican Legal Defense and Education Fund (PRLDEP) starting in the 1980s until she joined the federal judiciary in 1992. According to the article, Sotomayor was far from a passive board member, and took an active interest in supervising and planning legal strategy.

The most interesting part of the article comes at the end, when the article notes that Sotomayor was involved in supervising a lawsuit brought by PRLDEP challenging test scores on the New York City Police exam, on the ground that too few minorities passed the test. Challenging employer conduct on the basis that test scores or other hiring criteria have a racially negative result is known as a "disparate impact" theory.

The PRLDEP case, as described by the Times, has a striking similarity to the Ricci v. DeStefano case in which white New Haven firefighters claimed that they were the victims of discrimination. In the Ricci case, the City of New Haven utilized a racially-neutral officer qualifying exam, specifically designed to avoid inherent or implicit biases which might discriminate against minorities. I'm not sure how a test on firefighting skills could be racially non-neutral, but out of an abundance of caution, New Haven had the test prepared by a third-party vendor which specialized in preparing fire-fighting tests.

New Haven had no intent to discriminate in administering the test, and had an actual intent not to discriminate. To the extent there was a fear of discrimination lawsuits, that fear was sufficient to result in a racially-neutral qualifying exam.

The result of the test, however, was that no blacks would be promoted (using New Haven's criteria for appointment in which test scores played an important part), but 17 whites and 1 Hispanic would get promoted. New Haven, fearing a lawsuit claiming racial discrimination under a "disparate impact" theory, similar to the types of lawsuits brought by PRLDEP, nullified the results. The case now is before the U.S. Supreme Court and may be decided prior to Sotomayor's confirmation hearings. More to come on Ricci, for sure.

The significance of the NY Times article and the Ricci case is not that Sotomayor had a hidden agenda in deciding Ricci. That may or may not have been true given her prior advocacy role at PRLDEP, but would be extremely difficult to prove. What is significant is how legal interest groups, such as PRLDEP, can shape conduct merely by creating a climate of fear of lawsuits focused not on intentional discrimination but on "disparate impact" theories of discrimination, and how Sotomayor was part and parcel of that strategy.

In some cases, the threat of a lawsuit claiming racial discrimination may shape conduct in a positive way, for example, when there is intentional discrimination. Intentional conduct can be deterred. Lawsuits focused merely on results, however, serve little social utility because there is no means of deterring unintentional conduct. Remember, in Ricci there was no evidence that the test itself was inherently biased or that New Haven intended to discriminate.

As the Ricci case shows, the threat of a lawsuit claiming disparate impact can go too far, causing employers to bend so far over backwards as to create absurd, and discriminatory, results. It would be as if the results of a running race, using the racially-neutral test of the time clock, were nullified based on the race of the winners.

Whether Sotomayor's position in Ricci was shaped by her history of using lawsuits as a social tool, or a dispassionate review of the law as applied to the facts of Ricci, is fair game for analysis as part of the confirmation process. Sotomayor's involvement at PRLDEP deserves more scrutiny, and the NY Times should be credited with starting that scrutiny.

Regardless, the failure of Sotomayor and some of her two colleagues to recognize the absurdity of the City of New Haven's conduct in the Ricci case shows a profound lack of judgment, which hopefully will be remedied by the U.S. Supreme Court. And Ricci needs to be explored at the confirmation hearings even though two other appeals court judges voted with Sotomayor, since a collective lack of judgment does not excuse a lack of judgment.

Related Posts:
Sotomayor's Damned Statistics
Release The Sotomayor Memos

Follow me on Twitter and Facebook

Thursday, May 28, 2009

Release The Sotomayor Memos

Barack Obama campaigned on the theme of a new era of transparency. Obama used that theme as a justification for the release of four highly classified internal Justice Department memos detailing strategies for interrogation of al-Qaeda detainees, over the objections of Obama's own Director of the CIA.

It's time to bring that same level of transparency to the nomination of Sonia Sotomayor to the Supreme Court. The New York Times is reporting that each of the candidates on Obama's short-list was the subject of an 60-70-page memo detailing the investigation into her background, including judicial writings and other information gleaned by the vetters. Obama should release the memos on Sotomayor, as well as any other documents used in the decision-making process.

The release of the memos will have a positive effect on the debate over Sotomayor. One of the problems in assessing the nomination, and why I have not opined on Sotomayor, is that the public really doesn't know who she is or where she stands on important legal issues. This is a concern mostly from the right, but also from pro-abortion activists on the left.

Sotomayor has few if any significant judicial decisions on many issues, which is not surprising since as a trial judge or appeals court judge she was bound by Supreme Court precedent. To the extent published judicial decisions are important, those decisions are being carefully analyzed, but do not tell the full story of who a nominee will be once confirmed.

And Sotomayor clearly was someone who protected her record. The most disturbing aspect to me of the 2005 Duke Law School video, in which Sotomayor stated that appeals court judges make policy, was not her words. Those words can be explained away, as I'm sure she will do at the confirmation hearings.

What troubled me about the video is that when Sotomayor uttered the words, Sotomayor immediately commented on the fact that the panel discussion was being videotaped, and that she really didn't mean it, or at least knew she shouldn't say it. The video gives me the impression of a judge who very much understood that one day she may be under scrutiny for a higher office, and that public comments would be fodder for debate.

Contrary to Sotomayor's statement when her nomination was announced that she never dreamed of being in this position, I believe that Sotomayor long has expected that this day would come. Certainly the possibility of her nomination to the Supreme Court one day was a topic of objection and discussion when Sotomayor was appointed to the appeals court in 1998. Sotomayor appears to have managed her public comments accordingly.

There is nothing wrong or disqualifying about such image maintenance; an ambitious judge is not necessarily a bad judge. But we are left to guess, as we did with David Souter, just who Sotomayor is, and how she would rule on the most important issues which affect the country.

We are entitled to know if there has been a nod and a wink relayed to the White House by intermediaries, as reportedly was the case in the Souter nomination. These nods and winks may not be reliable, as in Souter being touted in private as a conservative, but we are entitled to know.

Which gets me to the vetting memos and documents. If the memos are routine analyses of Sotomayor's writings, then there should be nothing to hide. If the memos are vetting of potential problems which ended up not being problems, then there should be nothing to hide. The only things which would be worthy of hiding would be the types of nods and winks which might affect the public debate, or problems the White House hopes will not surface, and it is precisely that type of information which needs to see the light of day.

Will releasing the vetting memos and documents have a chilling effect on the advice given a President for future nominees? Absolutely. But no more so than the release of the classified interrogation memos will have a chilling effect on the willingness of government lawyers to give advice to the President on matters of life and death in the war on terror.

If transparency is justified when it comes to national security, then transparency should be good enough for a Supreme Court nomination. Obama would achieve a great deal of change in the way Washington does business if he changed the way the Supreme Court nomination process worked, away from the political gamesmanship and interest-group politics which appears to drive this nomination.

A good first step would be the release of the Sotomayor vetting memos and documents. That would be change we could believe in.

Follow me on Twitter and Facebook

Wednesday, May 27, 2009

First Libby, Now Burris

On December 9, 2008, U.S. Attorney Patrick Fitzgerald held an emergency press conference to announce a criminal complaint against then Illinois Governor Rod Blagojevich. While there were many accusations, the most prominent and inflammatory was that Blagojevich attempted to sell Barack Obama's vacant Senate seat in exchange for campaign contributions.

Fitzgerald stated that he simply couldn't wait to complete his investigation because of the threat that someone might get appointed to the Senate in a tainted process. Several months later, in April 2009, Blagojevich was indicted on RICO and other charges.

In the intervening months between the press conference and the indictment, Illinois and the nation went through an intense legal and legislative process attempting to deal with the revelations. Illinois Attorney General Lisa Madigan unsuccessfully attempted to have the Illinois Supreme Court remove Blagojevich. Among Madigan's allegations was a possible bond funding crisis caused by the Fitzgerald press conference, which if true may have led to the fiscal collapse of Illinois state government. Had Madigan succeeded, there would have been long-term negative consequences to this precedent of judicial interference in the political process.

Just weeks later, Blagojevich appointed Roland Burris to the vacant seat, setting off more Illinois Supreme Court litigation when the Illinois Secretary of State refused to sign the certificate of appointment. The Illinois Supreme Court ruled that such a certification was unnecessary and that Burris was the lawful appointee.

More important, the refusal to sign the certificate of appointment almost caused a federal constitutional crisis when Harry Reid initially indicated that he would not seat Burris without the certificate, leading many to question whether Reid had such power. Reid eventually relented when Burris submitted alternative documentation (the exact nature of which never has been revealed). All the while, a central argument made by me and others was that the Burris appointment was valid, among other reasons, because there had been no suggestion that Burris in any way, shape, or form was involved in the alleged scheme to sell Obama's Senate Seat.

The Illinois House then impeached Blagojevich, and the Illinois Senate convicted him at a trial. During the impeachment hearings, Burris denied offering anything to Blagojevich in exchange for the appointment. Patrick Fitzgerald released four heavily redacted transcripts of wiretapped conversations, none of which involved Burris, but refused requests for greater disclosure of wiretaps, calling into question the fairness of the impeachment case.

Throughout these legal, legislative, political, and constitutional trials and tribulations, Patrick Fitzgerald was silent as to Roland Burris. Not a hint that Burris may have been involved in offering money for the appointment. Given Fitzgerald's statement in December 2008 that the U.S. Attorney's office was disclosing Blagojevich's alleged conduct out of a desire to avoid a tainted senatorial appointment, Fitzgerald's silence was taken as vindication for Burris.

Yet Fitzgerald knew better. It has been revealed that Fitzgerald had tapes, just disclosed, showing Burris talking with Blagojevich's brother about the possibility of campaign contributions as part of the appointment process. It is not clear that Burris committed a crime in those conversations, although Burris' Illinois Senate testimony will be scrutinized for possible perjury. But that is besides the point now.

How could Fitzgerald, having called a press conference to stop a tainted appointment, sit idly by while Burris was appointed and seated in the Senate without disclosing the tapes of Burris talking about contributing to Blagojevich's campaign? While the nation went through a legal crisis, sparked by Fitzgerald's own press conference, Fitzgerald watched it all in silence.

This is reminiscent of Fitzgerald's conduct in the Lewis "Scooter" Libby case, involving the leak of CIA employee Valerie Plame's name. Fitzgerald knew from the start of the investigation that Libby was not the person who leaked the name; Fitzgerald already knew who did. Yet Fitzgerald went through an elaborate investigation including taking testimony under oath, under the pretense of uncovering what Fitzgerald already knew. Libby eventually was convicted of perjury for lying to Fitzgerald about the leak during the investigation.

Patrick Fitzgerald has done the nation a favor by vigorously pursuing corruption in the Governor's office in Illinois. Fitzgerald did no one a favor, however, by selectively leaking some allegations and tapes while holding back on other tapes involving now Senator Roland Burris.

Maybe, as with Libby, Fitzgerald was setting a perjury trap for Burris knowing that Burris would testify under oath in the impeachment hearings. But Burris, unlike Libby, was on the verge of appointment to the Senate, so the stakes went far beyond Roland Burris. Fitzgerald's leaking of some allegations and tapes regarding Blagojevich while holding back on the Burris' tapes, for whatever purpose, affected the nation in profound ways far beyond the case at hand.

Once again, Fitzgerald allowed the nation to twist in a wind Fitzgerald created.

Follow me on Twitter and Facebook

Tuesday, May 26, 2009

Federal Challenge to Prop. 8

A federal lawsuit has been filed challenging Proposition 8 (via Instapundit and Volokh Conspiracy). The lawsuit was filed last Friday, May 22, 2009, by noted Republican attorney Ted Olson, and noted Democratic attorney David Boies. Olson and Boies were on opposite sides of the landmark Bush v. Gore lawsuit which resolved the Florida electoral dispute in the 2000 election.

The lawsuit, which effectively would nullify today's California Supreme Court decision upholding Proposition 8, seeks an injunction against implementation of Proposition 8 under federal law, including alleged violations of the Due Process Clause of the 5th Amendment to the U.S. Constitution and the Equal Protection Clause of the 14th Amendment.

Some may be surprised at Olson's involvement, but he gave this explanation:

"I personally think it is time that we as a nation get past distinguishing people on the basis of sexual orientation, and that a grave injustice is being done to people by making these distinctions," Olson told me Tuesday night. "I thought their cause was just."

I asked Olson about the objections of conservatives who will argue that he is asking a court to overturn the legitimately-expressed will of the people of California. "It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution," Olson said. "The constitution protects individuals' basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy…I also
personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation."
In what may have implications for the upcoming hearings for Sonia Sotomayor, Olson predicts that case will end up at the U.S. Supreme Court:
Technically, the suit Olson has filed is against the governor, attorney general, and other officials of the state of California. Ultimately, Olson said, it's a question that will be decided in Washington, by the Supreme Court. "This is an issue that will get to the Supreme Court, and I think it could well be this case," he said.
This highlights that gay marriage may be a key issue in Sotomayor's nomination process, as I predicted. [Added: If successful, the lawsuit would create a federal constitutional right to gay marriage, which would supercede not only California Prop. 8, but laws in other states banning gay marriage.]

The federal lawsuit was filed prior to the California Supreme Court decision, presumably because the outcome of the state lawsuit upholding Prop. 8 was predicted by just about everyone. What remains to be seen is how quickly the suit is pushed. The lawsuit does not seek temporary (emergency) injunctive relief, so it will take time to work its way through the court. On the other hand, the suit does seek preliminary and permanent injunctive relief, meaning that the Court will have to set a schedule to determine what briefing or other court actions are necessary and how quickly.

Perry v Schwarzenegger - Complaint

Follow me on Twitter and Facebook

Split Decision on Prop. 8

The California Supreme Court has issued a split ruling, upholding Proposition 8 but also upholding the validity of gay marriages which took place prior to passage of Prop. 8.

Proposition 8 enshrined in the California Constitution the traditional definition of marriage, providing that only marriages between one man and one woman shall be recognized. Prop. 8 was a reaction to a prior California Supreme Court decision which ruled that denying gay couples the right to marry violated the California Constitution. The passage of Prop. 8 gave rise to boycotts against supporters of Prop. 8, attacks on Mormons, and a Day Without A Gay protest which never gathered much momentum.

The Court rejected the notion that the People, through Constitutional amendment, could not restrict the right to marry:

In analyzing the constitutional challenges presently before us, we first explain that the provision added to the California Constitution by Proposition 8, when considered in light of the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757 (which preceded the adoption of Proposition 8), properly must be understood as having a considerably narrower scope and more limited effect than suggested by petitioners in the cases before us. Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.
In light of the above analysis, the Court upheld Prop. 8 as a proper Amendment of the Constitution, rather than a "revision" which would have required additional procedural steps:

Taking into consideration the actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws, and after comparing this initiative measure to the many other constitutional changes that have been reviewed and evaluated in numerous prior decisions of this court, we conclude Proposition 8 constitutes a constitutional amendment rather than a constitutional revision....

Petitioners contend, however, that even if Proposition 8 does not affect the governmental plan or framework established by the state Constitution, the measure nonetheless should be considered to be a revision because it conflicts with an assertedly fundamental constitutional principle that protects a minority group from having its constitutional rights diminished in any respect by majority vote. Petitioners, however, cannot point to any authority supporting their claim that under the California Constitution, a constitutional amendment — proposed and adopted by a majority of voters through the initiative process — cannot diminish in any respect the content of a state constitutional right as that right has been interpreted in a judicial decision.

The Court also rejected the substantive argument of the Attorney General, who unlike other Petitioners did not rely on the procedural argument that the "revision" procedure should have been followed:

In addition, no authority supports the Attorney General’s claim that a constitutional amendment adopted through the constitutionally prescribed procedure is invalid simply because the amendment affects a prior judicial interpretation of a right that the Constitution denominates “inalienable.” The natural-law jurisprudence reflected in passages from the few early judicial opinions relied upon by the Attorney General has been discredited for many years, and, in any event, no decision suggests that when a constitution has been explicitly amended to modify a constitutional right including a right identified in the Constitution as “inalienable”), the amendment may be found unconstitutional on the ground that it conflicts with some implicit or extraconstitutional limitation that is to be framed and enforced by the judiciary.
As to marriage which took place prior to the passage of Prop. 8, the Court ruled that Prop. 8 could not be applied retroactively, so such marriage were valid:

Finally, we consider whether Proposition 8 affects the validity of the marriages of same-sex couples that were performed prior to the adoption of Proposition 8. Applying well-established legal principles pertinent to the question whether a constitutional provision should be interpreted to apply prospectively or retroactively, we conclude that the new section cannot properly be interpreted to apply retroactively. Accordingly, the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid and must continue to be recognized in this state.
What does it all mean? The issue of gay marriage in California will be left to the political process. Having intervened in that political process by finding a Constitutional right to gay marriage (by a one vote majority), the Supreme Court Justices have had the issue taken away from them. Supporters of gay marriage will have to win in the court of public opinion. It will be interesting to see if supporters of gay marriage go the way of those who, in the aftermath of Prop. 8, engaged in boycotts and intimidation, or will argue the gay marriage case on the merits. In any event, the next electoral cycle should be interesting.

Related: See discussion at Gay Patriot, arguing that the Court reached the right decision, and discussing what comes next. JammieWearingFool is worried about whether Perez Hilton should be on suicide watch, and quotes in his post from comments at the San Francisco Chronicle.

Follow me on Twitter and Facebook

Monday, May 25, 2009

Playing The Nork Card

In an earlier post, I noted how one Huffington Post blogger, Allison Kilkenny, had called John Bolton "crazy" just five days ago for warning that North Korea was on the verge of another nuclear test. I wondered whether there would be an apology in light of the North Korean's nuclear test last night, and the answer is no apology.

Talk about crazy, how about this entry from Kilkenny's Twitter today, in which she worried about whether the term Norks (which appears to be used recently mostly by conservative bloggers as short-hand for North Koreans) is "considered offensive or racist."

I should have known, the North Koreans explode a nuclear device, and the Left is worried about political correctness:

Defining the term "Norks" as "offensive" or "racist" would be a game changer. Tag conservative bloggers and columnists who used the term "Norks" as racists, and shut down debate. I wonder where she learned that trick.

Follow me on Twitter and Facebook. Join the group Telling Dick Cheney To Keep Talking.

Will The Left Apologize To Bolton?

On May 20, 2009, John Bolton wrote an op-ed for The Wall Street Journal titled "Get Ready for Another North Korean Nuke Test" in which he noted that the complacency of the Obama administration about North Korea's nuclear ambitions (and Iran's) was misplaced:
"The curtain is about to rise again on the long-running nuclear tragicomedy, "North Korea Outwits the United States." Despite Kim Jong Il's explicit threats of another nuclear test, U.S. Special Envoy Stephen Bosworth said last week that the Obama administration is "relatively relaxed" and that "there is not a sense of crisis." They're certainly smiling in Pyongyang."
As usual, the Left lashed out at Bolton, who may be third after George Bush and Dick Cheney in being portrayed as crazy and paranoid. Bolton has been derided as "the neocon's neocon" who "laps up the hosannas of fellow knuckle-draggers."

Allison Kilkenny at Huffington Post applied the left-wing attack on Bolton specifically as to Bolton's North Korea position, in a post titled, Update: John Bolton Still Crazy:

You have to hand it to the Wall Street Journal. At a time when the newspaper industry is desperately trying to remind America it's important and relevant, the WSJ has carved out a nice little niche for itself as a halfway house for discredited political figures. I think it's really humane of them. Their most recent charity case is John Bolton, America's former ambassador to the United Nations....

Today, Bolton chose to growl at the old, but reliable, enemy of North Korea. This is a particularly vintage move when one considers North Korea already tried to strike fear into the hearts of Americans last month when they tested a missile that fizzled and fell into the ocean 1,300 miles off the east coast of Japan. Bolton's stance is pretty brave because his frenzied ideology flies in the face of scholarly counsel.

It turns out that Ms. Kilkenny's post proved just who still is crazy, and it's not Bolton. Please read all of Ms. Kilkenny's anti-Bolton diatribe. It is a lesson in why we cannot, cannot, cannot, trust the Left with our national security.

Don't take my word for it, read today's headlines:

North Korea declares it conducted nuclear test
Outrage over N Korea nuclear test
North Korea Announces 2nd Test of Nuclear Device

Which gets me to Iran. Here is what the Left is saying about the Iranian threat, the same psycho-political babble as Kilkenny, as in this guest-post, Break Out The NeoCon Fainting Couch, at Attackerman. The author argues that since Iran's religious leaders have said nuclear weapons are bad, Iran's military and intelligence leaders could not possibly want nuclear weapons:
The Supreme Leader [of Iran] can not get up and preach against the morality of nuclear weapons and call them "un-Islamic" and then wink and nod to his followers and have everything work out fine. One of the consequences of a theistic society is that the citizens follow the leader's spiritual teachings for better or for worse. So how would they even find someone to work on a program that they have been taught will guarantee them a corner of Hell?
Let's hope that the North Korean nuclear test is a wake up call for the Obama administration on Iran. So that we are not in a position of demanding another apology from left-wing bloggers when Iran detonates its nuclear device, or announces that it has constructed a device based on the North Korean testing.

UPDATE: Don Surber has a good round-up: Lefties on North Korea. And so does Troglopundit: If John Bolton writes a column predicting that I win a hundred million dollars, I’ll split it with him

UPDATE No. 2: There will be no apology. Quite the contrary, you should not believe your lying eyes when you read Kilkenny's original post quoted above, at least if you read the new post North Korea’s Unsurprising Actions:
I apparently have to clarify an important point. No one should be entirely surprised that North Korea has detonated a bomb. Kim Jong Il launches a missile or detonates a bomb whenever he wants attention or aid from the United States. He tested a bomb back in 2006, and also launched a missile in April. The detonation of this latest bomb does not somehow de-crazy the rest of John Bolton’s Wall Street Journal column from last week in which he orders Obama to “put down Kim Jong Il’s script.” Whatever that means. One presumes he means to “get tough.” Whatever that means.

Related Post: Playing The Nork Card

Follow me on Twitter and Facebook. Join the group Telling Dick Cheney To Keep Talking.

Sunday, May 24, 2009

Do President Thinker's Flip-Flops Fit?

When the NY Times takes Obama to task, I am always a little suspicious. Will this be a "he's not perfect, but at least he's not Bush" type of critique; a compliment disguised as a criticism.

So I don't know what to make of this piece in today's paper. Noting that Obama's detainee policy looks nothing like his campaign promises and more like the Bush strategy, the author went on:

He told Planned Parenthood that his first act as president would be to sign an abortion rights bill into law; now he says it is “not my highest legislative priority.” He promised gay rights advocates that he would work for the repeal of the military’s “don’t ask, don’t tell” policy, but he has pushed action into the future. A proponent of transparency, he released previously classified memos describing the C.I.A.’s harsh interrogation techniques. But then he moved to block the release of photos showing abuse of detainees — a 180-degree turn from his administration’s previous position....

And that raises a question: at what point is President Thinker in danger of being perceived as President Flip-Flop?

Notice the presumption that Obama is President Thinker, whereas the flip-flops are a matter of perception. I think I was right to be suspicious.

But what about the epithets President Thinker v. President Flip-Flop? I'm not sure there is such a contrast. Perhaps Obama has changed some of his campaign positions because he did not think them out properly, so he never was really President Thinker. Or perhaps he hasn't changed, but merely is compromising on some issues to avoid conflicts which would distract from his economic agenda to remake America, in which case he never was really President Flip-Flop.

Maybe, just maybe, President Thinker and President Flip-Flop really are just President Politician. Which is something the Times hasn't considered.

Follow me on Twitter and Facebook. Join Telling Dick Cheney To Keep Talking.

Remember Ilan Halimi

Gateway Pundit has a good update on the murder of Ilan Halimi:

Ilan was lured to his death by a woman he had met in his telephone store. They met up late on the night of January 20, 2006, in one of Paris's southern suburbs, Bagneux. She was what is called a "honey pot." She lured Ilan from his home and into the hands of a group of local radical Islamists called the Barbarians. They targeted him because he was a Jew. The Barbarians had connections with Hamas. They kept him naked and tied up for weeks. They tortured him and invited their friends and family over to torture him. They cut him and burned him with cigarettes and in the end stabbed him in the neck, poured flammable liquid on him, set him on fire, and pushed him from a train. Ilan died that day....

This week, two years after his murder, Choc Magazine published a new photo of Ilan.
Go to Gateway Pundit for the photo, and more. And remember what we are up against.

There is no difference between Khalid Shaikh Mohammed, the person who beheaded Daniel Pearl and now is in custody at Gitmo, and thousands of Islamist radical wannabees. They kill not because of anything we did, or even because of who we are, but because of who they are. And who they are cannot be changed through apologies by us.

Follow me on Twitter and Facebook. Join Telling Dick Cheney To Keep Talking.

Saturday, May 23, 2009

Distortion and Hypocrisy Galore

The latest internet outrage-bubble started with a post at Politico titled RNC's below-the-belt shot at Nancy Pelosi, regarding a Republican National Committee YouTube video about Nancy Pelosi. I agree with AllahPundit that the RNC should not have produced the video, among other reasons, because "they simply have to be more attuned to how their message will be received and whether they’re giving their opponents easy opportunities to distort it."

And most of the distortion comes from the fanciful post by Andie Coller at Politico, which reads way too much into the video. The point of the Politico post, right up front, is that "when you see Nancy Pelosi, the Republican National Committee wants you to think “Pussy Galore.” To substantiate its theory, Politico says that the video compares Nancy Pelosi to the fictional character Pussy Galore of the James Bond film Goldfinger.

But the opening camera-aperture shot and theme music are not from Goldfinger, but from the movie Dr. No. Politico also states that the video "puts Pelosi side-by-side with the aforementioned villainess" (Pussy Galore). Don't blink or you will miss the "side-by-side" screen shot, which lasts maybe a second, and doesn't clearly indicate who is the other woman next to Pelosi. And the closing tag line refers to: "Lack of Leadership. Democrats Galore."

So there is precious little in the actual video to suggest that the RNC intended to "equat[e] the first woman speaker of the House with a character whose first name also happens to be among the most vulgar terms for a part of the female anatomy." I agree, as stated at the beginning, that the RNC should not have produced the video, but the Politico has erred both in its facts and in asserting that the video "implies that Pelosi has used her feminine wiles to dodge the truth."

The Politico article is mostly about the inner-workings of Andie Coller's mind and the need to generate news on a holiday weekend, not about any true outrage.

The reaction from the blogosphere to the Politico post is mostly hypocrisy from the left. The left-wing blogs which savaged Sarah Palin and Carrie Prejean with the worst sexual innuendos and mockery, are aghast with feigned indignation at the RNC's dig at Pelosi.

Ta-Nahisi Coates writes of the video that the Republicans couldn't help demeaning an opponent rather than debating her because "it's just who they are." This is the same Ta-Nahisi Coates who wrote of John McCain's choice of Sarah Palin: "I don't care if you know a thing about foreign policy. I don't care if you know a damn thing about the economy. Here is what you are to me--breasts, hair and a lovely smile." And who referred to Sarah Palin's selection as being the result of "bigotry, ignorance and cravenness."

Taylor Marsh's comment on the ending tag line is as follows: "Imposed with a naked woman behind the tag line. Get it? Subtle it is not." Actually, very subtle. Look at it and it's hard to tell what is behind the tag line, much less a "naked woman." Don't stare too long, though, and or you might start making up more things, just like Andie Coller and Taylor Marsh.

A misguided video which fell far, far short of the abuse heaped on Republican or conservative women, yet fodder for the left-wing blogosphere on a slow news weekend.

UPDATE: I've been criticized for having a victim mentality because I pointed out the distortion by the left-wing blogs, yet still don't think the ad should have been run by the RNC. The two points are not inconsistent. As I well know, the left-wing blogs are shameless and dishonest in their ability to distort. I agree that such distortions should not shape our conduct. But the RNC, being an organization which has to carry a larger message and organizational effort, needs to be more careful in how it makes its point. What the RNC does as an organization affects not just the RNC, but candidates down the line. An individual blogger or non-party entity has no such concern. Take away the James Bond theme, and the video is compelling, effective, and appropriate for a national party to run.

Follow me on Twitter and Facebook. Join Telling Dick Cheney To Keep Talking.

Telling Dick Cheney To Keep Talking

In response to those who want Dick Cheney to "shut the hell up," a group in favor of "telling Dick Cheney to keep talking."

Follow me on Twitter and Facebook

Friday, May 22, 2009

Speech, Counter-Speech

Put aside the merits of the two speeches by Barack Obama and Dick Cheney. What is interesting is the timing. I think Toby Harnden has an interesting observation:
But the very fact that Obama chose to schedule his speech (Cheney's was announced first) at exactly the same time as the former veep was a sign of some weakness.
I think it's more than weakness. Rather, Obama seems uncomfortable with dissenting voices being heard without a rebuttal. The war of words is one Obama is confident he can win if only he is heard, which is why Obama constantly is holding prime time press conferences, giving major speeches, and so on. While the need to counter-schedule a speech to offset Cheney's previously planned speech reflects weakness for sure, it also reflects a lack of faith on Obama's part in the ability of the American people to decide important issues.

Follow me on Twitter and Facebook

Thursday, May 21, 2009

Obama Supports Indefinite Detention Without Trial

Obama is giving his speech now on the issue of terrorist detention policy and the closing of Gitmo. I'll leave it to others to parse all aspects of the speech, although it is clear that the overriding theme is: "It's not my fault, blame Bush." As if no other President in history inherited problems from his predecessor.

One headline worthy aspect of the speech, however, is that Obama signalled that he would continue to detain indefinitely those detainees who could not be tried either in court or in a military tribunal or transferred to another country, but who pose a threat to the United States. As examples, Obama cited those who have pledged allegiance to al-Qaeda, or undergone explosives training.

In other words, while Obama argues over the details of the Bush detention policies, Obama accepts the core principle that the United States has the right to detain enemy combatants who threaten the United States without subjecting that detention to domestic judicial review.

While we may quibble over the details of detention, this aspect of the speech reflects a mature assessment of national security which was lacking from campaign rhetoric, and stands starkly at odds with much of Obama's base of support.

UPDATE: The transcript is here, and the quoted language, as follows:

Finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people.

I want to be honest: this is the toughest issue we will face. We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

As I said, I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture – like other prisoners of war – must be prevented from attacking us again. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

Follow me on Twitter and Facebook

Wednesday, May 20, 2009

Greatest Sentence Ever (feat. H. Reid)

Harry Reid made the following statement yesterday regarding the Democrats' flip-flop on closing the prison at Guantanomo Bay, and bringing the detainees to prisons in the United States. Reid rejected the idea, stating:
"Can't put them in prison unless you release them."
The internal inconsistency of the wording and concepts puts this sentence in a league of its own. Reid's statement in April 2007 that the "war is lost" and "the surge is not accomplishing anything" (April 19, 2007) was wrong, but not internally inconsistent.

Reid's current statement is even better than John Kerry's "I actually did vote for the $87 Billion, before I voted against it" (March 16, 2004) because Kerry's statement was accurate, though comic in its presentation.

And unlike Kerry's statement, Reid has sown discord among his prior supporters in the left-wing blogosphere, who are all but tearing their hair out:
  • Washington Monthly: ""Can't put them in prison unless you release them"? What does that even mean? Isn't locking someone up the opposite of releasing them?"
  • The Daily Dish: "The Incoherent Cowardice Of Harry Reid"
  • Wonkette: "The Defining Interview Of Harry Reid’s Political Career, Maybe"
  • First Door On The Left: "What?! If there is one thing we Americans have proven ourselves fairly adept at, it’s building prisons and keeping folks in them."
  • D-Day: "This statement Reid's office released makes absolutely no sense, proving again Digby's point that, when politicians start speaking Engrish instead of English, you know they're hiding something."
  • Balloon-Juice: "Congratulations. That was the best impression of a fearmongering Republican wingnut that I have seen in a long time."
Incoherence. Inconsistency. Incompetence. In-fighting. A moment to remember, May 19, 2009.

Follow me on Twitter and Facebook