CNN's Ticker

CNN is putting out the idea that Hillary Clinton might put her husband, Bill, on the Supreme Court.

What an interesting news flash to come out on the day of the Iowa Caucuses! Was this something that leaked from the Clinton campaign? Was it something Hillary said? Has Bill dropped some hints to CNN?

Uh, no. It's a "prediction" by conservative law professor Doug Kmiec, who worked for Reagan and Bush 41 in the OLC. You remember Kmiec... He penned a lackluster defense of the Bush administration after James Comey testified about the shenanigans in John Ashcroft's hospital room. During the Clinton years, of course, Kmiec was the champion of the "rule of law" and intense critic of executive abuse of power.

In short, Kmiec has no insight of value on Hillary's intentions. Certainly not enough for CNN to front page his "prediction." Absolutely not enough value to make this a top news item on Caucus Day.

I guess they didn't have enough stupid predictions to fill the airwaves and internets.

UPDATE: This didn't even register in my brain when I read it:

Kmiec worked in the Reagan and Bush 41 White Houses as a top lawyer, but said he has no personal or political "disdain" for Bill Clinton.

Disdain? What a joke. Trash reporting. Maybe they should have indicated in the article somewhere that the dean of Pepperdine Law School -- that is Kmiec's boss -- is Ken Starr. Actually, they shouldn't have printed this crap at all.

Shameful reporting.

UPDATE II: It's 6:50 pm ET and Wolf Blitzer just pushed this story, too -- without even mentioning Kmiec by name.

Here comes another one

(Cross-posted at Hullabaloo)

Just two weeks ago, we read this chapter in the closing-the-barn-door-too-late saga of the Bush years:

"Many of us feel very badly burned because of what both Justice Alito and Justice Roberts told us about their belief in stare decisis," said Sen. Dianne Feinstein (D-Calif.), a Judiciary Committee member who voted against both nominees. "So we will be very very cautious with respect to the next nominee — very cautious."

Feinstein supported a filibuster of Alito, after initially opposing it. She seems, from her votes and the above statement, to understand that Bush's nominees are willing to say anything to get a lifetime appointment to the nation's top courts. And, once there, they promptly go to work dismantling the progress America has made towards equal justice.

When Bush narrowly won reelection and the GOP controlled Congress, they were quick to throw the word "mandate" around. Today, Congress is completely in Democratic control and the president is as unpopular as any in history. One would think that his nominees would be more reflective of the nation as a whole. At a minimum, one would think that the nominee would be representative of the state from which he or she hails.

But it's George W. Bush we're talking about so, naturally, the nominee the Senate Judiciary Committee considered today is Leslie Southwick, Bush's third choice for the Fifth Circuit Court. His first two picks for this seat -- Charles Pickering and Michael B. Wallace -- didn't make it out of committee.

If the Republicans want to take advantage of their opportunity to fill these seats, they should have to present candidates that don't just satisfy the National Review and Wall St. Journal editorial boards. Especially in light of the fact that there's a distinct possibility that the next president will be a Democrat.

Here's what kind of move to the middle Bush was willing to make:

In 1998, Southwick joined a ruling in an employment case that upheld the reinstatement, without any punishment whatsoever, of a white state employee who was fired for calling an African American co-worker a "good ole nigger." The court's decision effectively ratified a hearing officer's opinion that the slur was only "somewhat derogatory" and "was in effect calling the individual a 'teacher's pet.'" The Mississippi Supreme Court unanimously reversed the decision.

In 2001, Southwick joined a ruling that upheld a chancellor's decision to take an eight-year-old girl away from her mother and award custody to the father, who had never married the mother, largely because the mother was living with another woman in a "lesbian home." Southwick went even further by joining a gratuitously anti-gay concurrence which extolled Mississippi's right under "the principles of Federalism" to treat "homosexual persons" as second-class citizens. The concurrence suggested that sexual orientation is a choice and stated that an adult is not "relieved of the consequences of his or her choice" – e.g. losing custody of one's child.

At the confirmation hearing, Sen. Dick Durbin asked Southwick for an example of when he stepped up to defend the powerless and he couldn't think of a single example. Today, Durbin revealed that he, in fairness, asked Southwick for an answer in writing, to give the nominee time to think of a good example. Again, Southwick was unable to think of a single episode.

The "Congressional Black Caucus, NAACP, Leadership Conference on Civil Rights, Magnolia Bar Association, Mississippi NAACP, NAACP Legal Defense Fund, AFL-CIO, SEIU, Society of American Law Teachers, Human Rights Campaign, National Gay and Lesbian Task Force, Alliance for Justice and People for the American Way among others" have all expressed their opposition to Southwick's nomination.

But Sen. Feinstein had a meeting with Southwick and he assured her that he is "not outside the mainstream." Despite her promise to be "very, very cautious" with Bush's nominees, Feinstein voted with the unanimous GOP to send Southwick's nomination to the Senate for a vote. When she announced her vote, she conceded that she "could be wrong" and that "maybe" she's been wrong before.

This president and his nominees have zero credibility on civil rights and most other issues. Why is Feinstein trusting them now?

UPDATE: Of course, I'm not surprised by Feinstein, just frustrated. Just had to add that since the comments at Digby's showed people really think I was expecting more from her.

Chief Justice George W. Bush

George Bush said he wanted Supreme Court justices like Thomas and Scalia. It would appear now that he got a Chief Justice just like himself -- a sloganeering promise-breaker, who campaigned for himself on a puffy cloud of unity, only to take his opportunistic victory and use it to further an extremist right-wing agenda by playing loose with facts and adhering to an inconsistent application of the law.

"[T]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race"

We might as well have Frank Luntz as Chief Justice. When I read this line, my blood began to boil. What a perfect example of a GOP bumper-sticker talking point. As Deborah Hellman writes, it's a "seeming truism" that appears on the surface to be perfectly logical, but isn't, and requires several hundred words to correctly refute. It's a Ken Mehlman Meet The Press Special, and it comes courtesy of the highest judge in the land. Clearly, telling kids that they cannot attend a school because of their race is a different kind of discrimination than identifying kids who have been discriminated against in that manner and providing them with opportunities they were denied. I suppose Roberts would stand in a scalding hot shower getting his skin burned off because the way to deal with an improper water temperature is to stop regulating the faucet.

It's no different than the president, who campaigned on a platform of Compassionate Conservatism and has been neither. Roberts pretended that he would respect precedent, but his court has overturned or mortally wounded precedents old and extremely young, proving that this court has no respect for where this country is now or how it got here. The only thing different from a few years ago is the personalities on the court, proving that the ideologies they carried with them are not just influencing their decisions, they are the sole mechanism behind the regression of the court.

Roberts had convinced even some of his biggest skeptics that he would work to build large consensus opinions, moving the court in a conservative direction, but only incrementally. Like our "uniter, not divider" president, that turned out to be hogwash. Just like the partisan 5-4 vote that put Bush in office, the slew of rotten decisions this court has vomited on the nation this term are tattooed with a 5-4 branding. Instead of reflecting the diversity of viewpoints in the country, Bush has sought to please only the narrowest and most extreme band of his base, the same segment of the nation cheering the court's rulings this week.

The radical U-turn the court has taken in the last term is the result of a GOP majority in both houses of Congress and a Republican president with "political capital." That temporary situation is toast. The GOP is the minority party in Congress and the president, it would seem, couldn't be more unpopular. Yet, the Supreme Court will set, for a generation or more, an agenda representing the most fervent views of that publicly-rejected government.

Like the president, Roberts can't even get his facts straight.

It may be useful to look at the facts the chief justice so remarkably overlooked or rearranged. In his very first sentence, Roberts wrongly said: "At a school-sanctioned and school-supervised event, a high school principal saw ..."

How's that again? At this public event, the high school sanctioned nothing and supervised very little. The parade was sponsored by the Coca-Cola bottling plant in Juneau and by several other private companies and private citizens. The school turned out a small band, but that was the beginning and end of the school's involvement.

The chief justice would not let it go. Eleven times he got it wrong. He said the torch-bearing parade was like a "class trip." This was palpable nonsense -- high-octane nonsense, but nonsense nonetheless. This was never a school function. The parade never touched school property.

One more point of fact: The chief justice said the Olympic torchbearers were to pass by the school "while school was in session." But this was not so. Not a single class was in session as the torch passed by. The students, including young Joe Frederick, were free to watch the parade, throw snowballs or stay home, as they wished.

Since it's too much to ask that the President of the United States base his decisions on reality, it's not much of a surprise that the Chief Justice is setting the bar so low. But nobody ever seriously considered Bush a brainiac. Roberts, on the other hand, was lauded by everybody with an office in D.C. as the most brilliant lawyer in the universe. Shouldn't this individual be able to discern the most simple facts presented to him? As with Bush, facts that have a "liberal bias" do not factor into his decision-making.

George Bush points to his snowflake-children props to point out how America needs to "err on the side of life." The same president who is responsible for countless deaths in Iraq and who, as governor of Texas, mocked a woman he had executed. It would seem Roberts is content with such a flimsy attachment to consistency, as well, his court issuing a decision defending free speech for the wealthy and powerful, while issuing another denying a student his political speech based solely on the unpopularity of the opinion expressed.

We couldn't have been stuck with a worse president. Predictably (for anyone named Vinny in a bathrobe, at least), we are now stuck with a terrible Supreme Court, created in George W. Bush's own image.

UPDATE: Once again, I got distracted and a finer blogger has scooped me.

Consequences

The Supreme Court is lost. Of course, we we fairly certain of that in November 2004. We knew it for sure after the worthless "Gang of 14" made the loss complete. Today, we can see the results of such a momentous failure.

It's hard for DB to decide which is the worst opinion of the term. The "Bong Hits 4 Jesus" case is clearly the most illogical. Today's decision on school desegregation is the most dispiriting. The McCain-Feingold and faith-based decisions were disappointing, but unsurprising and based, at least, on a consistent application of the law on the part of the majority.

Chief Justice John Roberts (and Justice Alito) both said they respect stare decisis, but that was clearly a distortion. They respect precedent only in the context of what things were like before cases were settled in ways in which they did not appreciate. President Bush said he wanted judges like Clarence Thomas and Antonin Scalia, and he got them.

Thomas, of course, told the Senate that he had never thought about Roe (an unbelievable claim) and then, as a Justice, stated that it was wrongly-decided. Scalia's willingness to violate his own rules in order to reach the decision that pleases him is well-documented.

The Roberts Court is not only failing America; Roberts is failing to meet the expectations he set for himself. Norman Ornstein says it quite well:

He did seem to be someone who would be respectful of stare decisis and would move to change the court in small steps, using a more consensus-driven approach, looking for narrow solutions that could command 9-0 or 8-1 decisions, rather than 5-4 votes. Such narrow decisions ultimately erode the legitimacy of the Supreme Court because they underscore a sense that rulings are not driven by careful adherence to law and precedents but by the political calculus, based on who retires and which president gets to make the replacement.

In his initial service on the court, I was encouraged that Roberts would fit that institution-building mold, working with a like-minded institutionalist on the other side of the philosophical divide, Associate Justice Stephen Breyer. Now, with the decisions this week, I see that I was wrong. We have fallen into a pattern of key decisions that come down 5-4, with Roberts and the more rigid Samuel Alito joining Antonin Scalia, Clarence Thomas and Anthony Kennedy to throw out precedents established only a few years ago, all driven not by changes in the law or objective deliberations over facts, but by the simple fact that Sandra Day O'Connor left the court and was replaced by a more conservative justice.

The good news is that these 5-4 decisions carry as little weight as possible (I know, that's not much silver lining) and Justice Kennedy's opinion actually does a little bit to protect affirmative action. The bad news is that we're stuck with this court for a long time and it could possibly get worse.

Thanks a lot, Joe Lieberman. The next time this blogger hears you talk about being a Freedom Rider, I hope somebody asks you why you helped destroy Brown v. Board of Education.

Slow down

Just once I'd like to return from a trip to find that nothing really happened while I was gone.

I missed Glenn Greenwald's FDL Book Salon, hosted by Digby, the NY Times article about Dick Cheney's ridiculous interpretation of his Constitutional role, and the first two Washington Post articles about the Cheney Administration. Oh yeah, and the Supreme Court decisions.

For the second time this month, I'm going to be playing catch-up.

In the meantime, here's another reminder to go buy Glenn's book if you haven't already.

Show some adaptability

(cross-posted at Hullabaloo)

At the Take Back America Conference today, in the Women Rising: The Issues that Count panel, Planned Parenthood president Cecile Richards made an important point that may only be just beginning to sink in for most of America: The Bush administration's changes to the judiciary are going to have a long-lasting impact on the nation.

I think the most lasting legacy of this administration, besides the war in Iraq, will be the total remake of the federal judiciary, which we're going to live with for decades. It's not... It is the Supreme Court, but it's obviously much, it goes much deeper.

And I do believe, actually though, this is the time that we... Litigation was a tool we used for years and at the end of the day, we always thought we could sort of rely on nine predominantly men in robes, and those days are over. And so I think this is our opportunity and obligation to rebuild a movement in this country. And it does mean building grassroots support in this country, state by state.

It's why it was so important for Planned Parenthood's action fund in the last election to demonstrate that being pro-women's rights and pro-women's health care was not only the right thing to do, it was the politically right thing to do. And I think that's why it was so important that we elected governors across the country and have to continue to do that. Because at the end of the day, the decisions that are being made, and some of them were spoken here, that affect women's access to health care, women's access to affordable health care and teen's access to comprehensive, medically accurate sex education... These decisions are being made by governors and state legislatures.

So, I think it is incumbent on all of us to do our work at the local level and as we know -- anybody who is spending time in Washington knows -- everyone on Capitol Hill came from somewhere else. So, if we change power in this country, we're going to change Washington.

The sooner this registers in everybody's skulls, the better. I hesitate to say that people who believe a woman has a right to control her own body have become complacent, but the fact of the matter is that the courts are no longer a reliable last line of defense for women's rights. The arena in which women's rights will be secured has shifted and become less concentrated, which means the burden of maintaining those rights will have to be shared by more Americans.

Furthermore, there is hardly a flatter lie than when a GOP candidate says these issues should be left to the states. Is there any doubt that the minute a woman no longer has a Constitutional, fundamental right to make these decisions, the pro-life movement will immediately attempt to have a federal ban? They've been trying to do that already, even with a woman's rights protected by Roe.

The ongoing struggle for women's reproductive rights is going to become increasingly a state and local issue, but it will remain a federal issue as well. Hopefully America won't waste too much time adapting to this new landscape because there isn't much time to lose and it's no longer up to a group of smart and dedicated lawyers to keep us free.

UPDATE: After reading some of Hullabaloo's excellent commenters, it is obvious to me that I missed a golden opportunity to point out that the president of any organization that endorsed Joe Lieberman has some chutzpah to be lamenting the fact that we can no longer rely on the Supreme Court to protect women's rights.

What a strange notion

When DB was in high school, one of my favorite history teachers used to show Fred Friendly Seminars from time to time. If you've never seen them, they were excellent. Friendly would assemble a panel of important figures from a wide spectrum of America's institutions and present them with incredibly well-thought out hypothetical scenarios.

I remember how impressed I was to see and hear Supreme Court Justice Antonin Scalia on those panels. He was quite an effective communicator and his answers to these difficult questions always seemed well reasoned and well grounded.

I'm not sure exactly when I lost respect for Scalia and his intellect, but it is long gone. Had I not watched those seminars, I would have no idea why anybody takes his arguments seriously. Still, I find myself surprised to hear or read praise for his logic. Perhaps it is a form of respect among Constitutional scholars that DB will just never appreciate.

Today, Andrew Koppelman takes on Scalia's poor application of the line between Church and State. Koppelman clearly identifies how sloppy the practical results of Scalia's interpretation are.

But in the post, we find this:

Justice Scalia’s logic is powerful. He reasons as follows: The Free Exercise Clause singles out religion as such for special benefit. Therefore, it is not possible to coherently read the Establishment Clause as prohibiting the singling out of religion as such for special benefit. “What a strange notion, that a Constitution which itself gives ‘religion in general’ preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general.”

No. That's not powerful logic. It is nonsense. The First Amendment gives us all the freedom to write, but it doesn't imply that we have to write. It doesn't imply that the government should tell us what to read, either. Freedom of the press means that the government stays out of the way in both production of ideas and consumption. Obviously, there is nothing in the Constitution expressly prohibiting the government from endorsing certain types of writing, certainly not from engaging in writing itself.

But the Establishment Clause exists. The Framers could have simply added "freedom of religion" to their enumeration. They didn't. That may be "strange," but it is not insignificant.

Nature is full of strange and wonderful phenomena that have been successfully exploited by living beings and systems from the dawn of time. Scalia is eager to endorse the idea that all of nature's successful oddities are the deliberate result of a creator.

What a strange notion, that such a person would find it incomprehensible that our nation's foundational legal document, drafted by a convention of great thinkers and ratified by the states, could contain a novel approach to protecting our most basic freedoms.

Stranger still is the notion that a Supreme Court justice would encounter such a novelty in the Constitution and then proceed to issue opinions as if it didn't exist.

UPDATE: How's this for a coincidence? Lou Dobbs just had author Peter Irons on to talk about the separation of Church and State. The last thing Irons said to Dobbs was in reference to Fred Friendly's seminars.

Life

DB would write about how dark today's SCOTUS decision on abortion is...

But a new member of DB's family entered the world this morning, so we're celebrating life over here today.

Scalia, Hypocrite

Don't always agree with Slate's William Saletan, but his article on Justice Scalia's boundless hypocrisy is a thorough smack-down.

Harriet, we hardly knew ye...

Why should Bush even bother nominating someone else? Why not ask Sandra Day O'Connor to stick around for another year? The term's already underway.

It might even be in the GOP's best interests to wait it out. They can have their big culture war they completely ducked with swift boats at the election last year. And Bush can ride out the storm brewing in Washington. After all, didn't he rush the nomination of Miers to beat the latest round of bad news? That didn't work out so well.