The Judiciary

The Bush executive branch of government has overreached so often, and straight-armed proper oversight so regularly, one is skeptical about all its claims of privilege. That said, there is an important question about just which internal work papers of the White House — of any executive department — are privileged from outside scrutiny, and which are not. The distinction is important, and the recent battle over access to White House legal memos may provide the courts with the opportunity to clear up this recurring question.

Remember the confirmation hearings of now-Chief Justice John Roberts and -Associate Justice Samuel Alito? Both were questioned by Senate Judiciary Committee members about their earlier positions when working as attorneys in the executive branch. Were their earlier advisory writings protected by the attorney-client privilege of confidentiality? There is precedent, and the line between protected and unprivileged work is clear. Read more...

The United States Supreme Court refused to grant C-SPAN prompt access to the audiotape of the arguments before it last week in Fox TV v. the Federal Communications Commission. The case raises interesting questions about the agency’s administration of its indecency laws — what language may not be broadcast. As Supreme Court reporter for The New York Times Adam Liptak noted, the high court is not a lexicographer, but it has been called upon to mediate the use of four-letter words by media. Given the level and ubiquity of foul language on radio and television, one wonders what standard is left to administer by the FCC. Do four-letter worlds necessarily have sexual or excretory meaning, exclusively? When is swearing “vulgar” or “indecent”? Indeed, should government be in the censorship business? Read more...

The blurb in The New York Times today caught my eye, and proved a point. Americans — right or left — need to clear their heads about capital punishment.

Today’s blurb (A21) reports that Richard Cooey, convicted of raping and killing two women in 1986, unsuccessfully appealed his execution to the United Sates Supreme Court. His reason: he is 5-foot-6 and weighs 267 pounds, so a lethal injection under Ohio law might cause Cooey agonizing pain, in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. Read more...

I’ve said it before, and I’ll keep saying it. The Iraq war will not be an issue in a year. We’ll grapple with our economic problems for years, digging out from the Bush years of deregulation and trickle-down. But the federal courts’ appointments will govern us for many decades, so pay attention.

On day one of the next administration, there will be 58 openings on federal courts. In the eight Bush years, about one-third of the federal judiciary — all lifetime appointments — were made in a highly partisan fashion, it was disclosed at a recent meeting of The Alliance for Justice in Washington. Projections advise that if John McCain is elected — he vows to appoint super-conservatives in the image of the Bush appointees — 74 percent of the federal judiciary will have been appointed pursuant to their specifications. If Barack Obama is elected, 58 percent of the judiciary will reflect his more moderate perspectives, if he governs for eight years. Read more...

It is the 221st anniversary of the United States Constitution. Voters not already decided about the upcoming presidential election ought to focus on the consequences this election will have on the federal court system, especially the Supreme Court.

The next president will be likely to have at least two appointments to the high court; and those two will come from the current “liberal” minority four. To preserve the current 5-4 conservative-liberal split, or to move the very conservative five to an imposing seven is a huge and consequential matter. Federal judges are appointed for life, and the recent and next appointees are likely to be sitting and deciding cases for decades. John McCain has been candid and consistent on this point — he will look for justices like the two (Roberts and Alito) whom President Bush appointed. “One more justice,” a McCain enthusiast exclaimed, “and we throw out Roe v. Wade.” Read more...

Surely, good laws and regulations are essential in ensuring orderly societal direction and providing for the public good. A just, sound legal system can, in many ways, foster entrepreneurship and international trade. And by protecting the rights of minorities, they exemplify the best that Western civilization has to offer.

One idea for simplification would be to abolish progressive taxation and institute a single flat tax on all personal and business income. The Bible teaches us to tithe 10 percent of our income. It does not ask one person to tithe more of his income if he is rich and less of his income if he is poor. By tithing 10 percent, each pays to the common trust an equal proportion of his means. This practice alone would virtually eliminate the need for the army of accountants, tax lawyers and government agencies dedicated to enforcing the laws of this country. Read more...

It is rare that I find myself in agreement with prolific jurisprudential gadfly Judge Richard Posner, though he is always interesting and provocative. Indeed, he is so prolific that I speculate there really is no one Richard Posner, but a basement full of Posner scholar-elves who, like Santa’s helpers, grind out countless articles, reviews, decisions and books. But to my surprise, I do agree with his interesting critique, in a recent issue of The New Republic, of the United States Supreme Court’s decision in District of Columbia v. Heller, the recent gun control case.

The Second Amendment states that “A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Before Heller, the Supreme Court ruled four times — in 1875, 1886, 1894 and 1939 — that the amendment restricts the national government’s powers over state militias, but does not assure people the personal right to bear arms. Even conservative jurists — the late Justices Lewis Powell and Warren Burger, for example — have said that the Second Amendment does not ban reasonable gun controls nor assure an individual right to bear arms. Despite those precedents, and the escalation of gun violence to shocking levels, gun advocates have effectively fought against all controls. Politicians who support modest, rational gun controls, which the majority of the public approves, have suffered for their advocacy. Read more...

Justice Antonin Scalia believes in the theory of originalism. In other words, he believes the Constitution is a dead document, intended to reflect things the way they were in 1787 and never to change.

Unfortunately, Scalia had a chance to apply that theory by leading the Supreme Court in overturning the city of Washington’s ban on handguns. For Scalia and four other conservatives on the court, if militia in colonial times could have a musket in their home, then men today can have an automatic killer pistol in their home.

How simplistic. How wrong. How dangerous. Read more...

Want to overturn Roe v. Wade and begin a new political civil war over abortion? How about a Supreme Court that supports the George Bush approach of executive power similar to royal monarchs, with massive and illegal wiretapping thrown in, legalized by a McCain court?

The Supreme Court is not only one branch of government, it is the branch that determines the powers of the other two branches. In the world of George Bush and John McCain, the executive branch is all-powerful with no meaningful checks and balances.

With a Supreme Court that would fully support this radical and extreme notion of unlimited, pre-emptive executive power, the sins of George Bush are only the beginning of what a McCain court would make the law of the land. Read more...

Republicans know how to use a message to define a presidential campaign. Remember Willie Horton, the ugly insinuation of racial fear by reference to one parole gone awry? I don’t recommend Democrats find their version of this mean message. But I do think they should use one emblematic person and incident to define their distinctive message in the present campaign.

Lilly Ledbetter, the woman from Alabama who was treated unfairly by her corporate employer — Goodyear Tire and Rubber Company — sued and won for economic discrimination based on sex, is the person and the message. The United States Supreme Court overruled her lower-court victory because she hadn’t sued on time, though she did bring her case when she discovered the discrimination. Lilly Ledbetter is the metaphor for those hardworking women with limited education and modest wages whom Hillary Clinton touched in her campaign. Barack Obama needs to reach out to these women; he has reached well-educated women already. Lilly Ledbetter should be on Democratic National Committee and Obama television ads, and with the senator in key appearances in areas where she is a metaphor and where he needs help — Pennsylvania, West Virginia and Ohio, for example. Read more...