Progressive Viewpoints

Spelunking

Just as the news breaks about Torture Memos #2 and #3 by Gonzales (with good commentary here, here and here), Senator P. Leahy caves on his promise to hold up Bush's Mukasey nomination to replace Gonzales until the White House and Judiciary Department deliver the documents they've withheld from congressional oversight in order to preserve their “plausible legality” and hide their crimes.

And let's not forget that Judge Aiken recently rules key parts of the so-called Patriot Act unconstitutional.

The Democratic Party symbol may need to be changed from an ass to a spelunker given how good they are at caving at every opportunity.  And like every good caver, change the motto to “how low can we go”?  Still, there's some hope in the party.

Maybe there's a strategy hidden behind the cave-ins, but no one seems able to get to it.

Technorati Tags: George_Bush, Torture

Michael B. Mukasy our AG??

by Michael B. Mukasy, 'The Spriit of Liberty', in  the Wall Street Journal, 5/10/2004:

A bill of rights was omitted from the original Constitution over the objections of Patrick Henry and others. It may well be that those who drafted the original Constitution understood that if you give equal prominence to the provisions creating the government and the provisions guaranteeing rights against the government--God-given rights, no less, according to the Declaration of Independence--then citizens will feel that much less inclined to sacrifice in behalf of their government, and that much more inclined simply to go where their rights and their interests seem to take them.

What  a grotesque misunderstanding of our Bill of Rights, one of the great governmental innovations of all time, the only guarantors of freedom and liberty.  The Bill of Rights is not guaranteeing rights against the government, it is guaranteeing us freedom to us from other people using the apparatus of the government to oppress us, providing some means of making the branches of government substantially beholding to us, to We the People -- so that it is a government by the people and not a government just for some people.

This guy is another constitutional dunderhead like Gonzales and should not be confirmed.

The Shame of Republican Senators - Alberto Gonzales

As the fallout of firings of Attorney Generals continues to proceed, we shouldn't forget how we got here.  It was one thing for President Bush to nominate Alberto Gonzales, a man who advocated torture, isn't sure about the constitutionality of the filibuster and doesn't think there is a constitutional right to Habeaus  Corpus in the Constitution.  But it was another for the Republican-controlled Senate to approve his nomination two years ago in the face of clear knowledge of his constitutional incompetence and Bush loyalty-first approach to life.

As I wrote at that time, Gonzales should have been rejected on grounds of an incompetent understanding of our Constitution, an evident unwillingness to uphold his oath to the Constitution over personal loyalties and of lying and evasion to Senators while under oath.

The question for Democrats is, how to ensure that neither John Woo nor Alberto Gonzales hold a position of responsibility in any future administration?

Technorati Tags: Alberto_Gonzalez, Constitution, George_Bush, government, Habeas_Corpus, John_Yoo, Judicial_nominations, judiciary, Republican_characteristics, Rot_at_the_Top, Values_and_principles, Writ_of_Habeas_Corpus

To Senator Smith : Re: William Haynes II

William J. Haynes II represents the most reprehensible of the administration tactics of creating obfuscating legalisms in which to circumvent duly passed laws, in this case, at the least, the circumventing of “common article” three of the Genva Conventions.  Treaties, as you will recall, having the full force of the US Constitution per Article VI:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;

“Supreme Law of the Land.”  What a phrase!  What force!  What utter clarity.  No nuance.  And yet, Haynes was complicit in trying to find legalisms in which  to hide torture so that, in violation of this treaty, this “supreme law of the land”, the administration could torture people.

He has demonstrated supreme lack of judgment and limited moral character.

This is not the sort of person who could ever hold the public’s trust and must not be confirmed.  He has already shown that he unwilling to be “bound by Oath or Affirmation, to support this Constitution,” but rather to support illegal policies as proposed by his bosses.

Technorati Tags: Constitution, Judicial nominations, Judicial_nominations, Judicial_Nominations, Torture

Re: Fighting for our values (myDD)

[Posted on MyDD re: Fighting for our values]

We should also look for ways to reinforce our beliefs with people.

For example, combining the call for a filibuster of Alito with a strategy of declaring the importance to all Americans of having a right to mainstream judges -- and backing up that claim by simultaneously announcing the launch of a constitutional amendment to that effect, one requiring either 60% like a filibuster, or 66% like a treaty which also needs to sustain over the political winds of time).

To have legitimacy, court results need to be accepted as fair and unbiased by the vast majority of citizens.  Such an amendment can increase that legitimacy.

By announcing the constitutional amendment at the same time, it elevates the discussion above claims of mere “partisan politics” regarding one nominee, to the greater principles of a democracy of, by and for the people that are motivating the concern.

Technorati Tags: Constitutional amendments, Judicial nominations, Supreme Court, Values and principles

To Ron Wyden re:Alito and constitutional amendment for mainstream judges

Ron -

I applaud your decision not to support the nomination of Samuel Alito to the Supreme Court.  He does not a represent the highest ideals of this country for justices that would uphold the great principles behind our constitution over his own ideologies.  He should be filibustered if necessary.

However, the threat of the “nuclear option” against any filibuster seems ultimately to become as effective as having no filibuster at all -- it never gets used.

I believe that America should have mainstream judges, not left nor right.  This is much more important than some “presidential perogative”, which in fact has no value to Americans.  Currently, there is a view that a President “deserves” to get nominees approved, but our Constitution provides for the President to choose not in order to shift the political tides on the Court and leave a legacy, but simply to provide for an efficient candidate identification process.

Because justices are seated for life and the Supreme Court is the final arbiter of the interpretation of the Constitution, Supreme Court decisions need to be ones that will have both broad acceptance and enduring acceptance of the vast majority of Americans for decades through shifting political winds.

To this end, until the threat of the nuclear option, the filibuster rule in the Senate has helped prevent the tyranny of the bare majority.  However, it is a Senate rule subject to change or elimination and not a right of the people.

So, while I would encourage using the filibuster against Alito, I would also suggest combining that with a strategy of declaring the importance to all Americans of having a right to mainstream judges -- and backing up that claim by simultaneously announcing the launch of a constitutional amendment to that effect, one requiring either 60% like a filibuster, or 66% like a treaty which also needs to sustain over the political winds of time).

To have legitimacy, court results need to be accepted as fair and unbiased by the vast majority of citizens.  Such an amendment can increase that legitimacy.

By announcing the constitutional amendment at the same time, it elevates the discussion above claims of mere “partisan politics” regarding one nominee, to the greater principles of a democracy of, by and for the people.

Technorati Tags: Constitutional amendments, Filibuster, Judicial nominations

Re: Abortion Opponents Rally, Saying the End of Roe Is Near [NYT]

[Response to Abortion Opponents Rally, Saying the End of Roe Is Near 1/23/2006 in NYT]

The triumphalism of the radical right and of anti-abortion foes shows how far out of the mainstream Samuel Alito really is ... and how poorly our confirmation process is that he could cover his positions so well.  His positions should be known for the country to evaluate not snuck in, known but to a few by a wink and nod.

Technorati Tags: Abortion, Judicial nominations

To Senator Smith re: Nomination of Samuel Alito to Supreme Court

Dear Senator Smith -

While we don’t always agree on every issue, I consider you to be a principled man.  After following the Samuel Alito hearings, I can’t say the same about him and encourage you to vote no on his nomination.

Two things struck me particularly, besides the typical evasiveness of nominees:  first, a rigidity of thought and second, a weakness of character.

First, as he  reviewed his perspective on past decisions he has made as a judge, one thing troubled me: he always defended his overturned decisions and never seemed to have learned from them about constitutional interpretation -- he still believes he was right.  So he appears to bring his own view to these things about which he learns how to make his case better, perhaps, but not learning to see things differently.

Second, was his defense of some of his older applications and writings.  There are basically two reasonable positions available: he believed them or didn’t ... and might have changed his view over time.  But he regularly defended them as appropriate because of trying to appeal to the hiring boss.  In other words, a nominee for Supreme Court basically said, unapologetically, he’s a suck-up, which is not really a very good self character reference.

Elect

Finally, Bill Frist said Friday that he thought Alito was “the worst nightmare” for Democrats.  Given that half of the country votes Democrat, this would seem to indicate the Alito is pretty far out of the mainstream.

Rigid in his thinking about the constiution and weak in character, even if charming in person, is not what we should have on the highest court.

Technorati Tags: Constitutional interpretation, Values and principles

Re: Presidential Powers, Connecting Alito ...

[Sent to David Saranson, associate editor at The Oregonian on 1/11/2006 re: Presidential Powers and Connecting Alito to the presidential power surge (no online copy available yet)]

David - Thanks for your columns recently regarding Presidential powers.

It seems to me that there have been some elements missing from the debate, though I'm no constitutional scholar, merely an interested citizen, regarding the president's assertion of unilateral power to ignore the law if he claims it is part of his duty as commander in chief.

With respect to the President's assertion of exceptionality to the law as Commander in Chief, our constitution instead says,

Technorati Tags: Congressional Powers, Constitutional interpretation, inherent consititutional powers, Judicial nominations

Re: Connor and the Parameters of Possibility [The Nation]

[Submitted 7/7/2005 to The Nation]

The vast majority of Americans just want judges that the vast majority of Americans think are unbiased.

Bruce Shapiro wrote in "'Connor and the Parameters of Possibility" on 7/6/2005 that, "The meaning of the Constitution's advise-and-consent clause will get reinvented with this upcoming Supreme Court nomination."

How right he is.  A lesson from the fight about the "nuclear option", and his observation, should be the warning that American citizens have only the most tenuous hold, based on Senate parliamentary rules, on mainstream judges.

We should have this as a right.  We should have constitutional amendment requiring a 2/3 vote in favor of supreme court justices, so that these selections will stand for all Americans through the shifting politicals winds sure to blow during the decades they serve on the bench.