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John Wirenius' LiveJournal:
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| Monday, June 29th, 2009 | | 9:04 pm |
Going Silent
It's that time of year; the laptop of the Wiro needs its annual maintenance, and it's time for me to take a few days off from the blogs. I'll be back after the July 4th weekend. I', mot that energized about the end of term decisions by the Supreme Court-- Ricci is hardly a blockbuster, though it does undermine prior disparate impact decisions. It's hint that race-conscious decision making may be unconstitutional? A possible blockbuster to come. We'll see. In the meantime, some lagniappe, as Fr. RF Smith used to say: object width="425" height="344"></param> (For those on FB, you want to click here.: | | Thursday, June 25th, 2009 | | 5:44 pm |
| | Tuesday, June 23rd, 2009 | | 9:45 pm |
The Roberts Court: My Crystal Ball Shatters
Back when Chief Justice John Roberts was nominated, I expressed some level of optimism that Roberts "does not appear to be a committed ideologue like Janice Rogers Brown." Well, let me just eat those words. Unjustly convicted of a crime, and hoping that the U.S. Constitution gives you a right of access to the DNA evidence that could prove your innocence? Nope; the state's interest in finality prevails (and besides, you may not have said "mother may I?" in the appropriate form--although Justice Stevens points out that Roberts misstates the record on this point). Pressing an age discrimination claim, based on "mixed motive" analysis, which prior Supreme Court decisions apply in other discrimination statutes using similar language? Not with this Court, pal. Mining interests need a declaration that the EPA can't regulate pollution because, well, they really need to cause some? No problem!Note that, with all of these cases, the reasoning is as gimcrack as the conclusion is Dickensian--all delivered with the bland smile of a middle manager who sees a chance to score. | | Wednesday, June 17th, 2009 | | 7:47 pm |
| | Saturday, June 13th, 2009 | | 7:02 pm |
What? WHAT?
1. Yet More Right Wing Terror I'm not looking for these stories, but here we go again: Shawna Forde, the executive director of the Minutemen American Defense, is one of three accused in the shooting deaths of 29-year-old Raul Flores and his daughter, 9-year-old Brisenia Flores, at their home in Arivaca, Ariz., a town 10 miles north of the Mexican border.</p>Two others - 34-year-old Jason Bush and 42-year-old Albert Gaxiola - were arrested. All three have been charged with two counts of first-degree murder, one count of first-degree burglary and one count of aggravated assault. According to the Pima County Sheriff's Office, two men and a woman posing as police officers forced their way into the Flores ' home in the middle of the night on May 30. It is not known exactly what transpired next, but Raul Flores and his daughter were shot and killed. The girl's mother was wounded and is recovering in a local hospital, deputies said. More here, including the report that robberies were a means by which Forde intended to finance the group's activities. (h/t: jblaque) 2. On a Positive Note...Jose Padilla's lawsuit against torture advocate John Yoo is going forward, and Yoo will be deposed. From the NYT: In the 42-page ruling, Judge Jeffrey S. White of Federal District Court in San Francisco characterized the conflict as one that embodies the tension “between the requirements of war and the defense of the very freedoms that war seeks to protect.”Mr. Yoo, as part of a senior administrative group called the War Council, helped to shape Bush administration policy in the war on terrorism, and as deputy attorney general in the Office of Legal Counsel from 2001 to 2003, wrote many memorandums authorizing harsh treatment. Mr. Yoo had argued that he should be immune from the suit because it was not clearly established that the treatment would be unconstitutional. Judge White, who was appointed by President George W. Bush, rejected all but one of Mr. Yoo’s immunity claims and found that Mr. Padilla “has alleged sufficient facts to satisfy the requirement that Yoo set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights.” 3. Far From Hating Us For Our Freedoms, the Iranians Would Appear to Want to Share in ThemDemocracy rising? Possible, possible.Quite a day for a Saturday. | | Friday, June 12th, 2009 | | 10:49 pm |
Political Philosophy and the Atlantic
Fascinating discussion between Ta-Nehisi Coates and Andrew Sullivan summarized here ; TNC's basic point reminds me of one made by fictional presidential candidate Matt Santos in the last season of The West Wing: Ganz richtig. | | Wednesday, June 10th, 2009 | | 7:59 pm |
More Terror
I take a little time off from this blog, and what happens? Another right-wing extremist terror attack. This time, an African-American guard at the Holocaust Museum in Washington, DC is shot murdered by, according to authorities, white supremacist James von Brunn. Von Brunn, who is according to TPM, "revered by some neo-Nazis," also stirred up the birthers over at Free Republic, in a post that has been deleted, but which the joys of Google cache has preserved. (Thanks, Balloon Juice). This terrible shooting at the Holocaust Museum is not, sadly, an isolated incident. As Ryan Sager notes: Is it time yet for Rush Limbaugh, Matt Drudge, and the rest of the hysterical right-wing media to apologize to Janet Napolitano for going batshit over her report about a possible spike in right-wing violence at home? Hmmm… It just might be.</p>First, Dr. George Tiller was gunned down at his church by an anti-abortion fanatic. Then, an unemployed tuck driver shot up a church because he hated liberals and gays. And now a white supremacist has shot up the Holocaust Museum and killed the security guard there. This is what DHS and Napolitano were warning about, not Ann Coulter or NRO. Get a clue, people. | | Sunday, May 31st, 2009 | | 7:50 pm |
| | Friday, May 29th, 2009 | | 7:56 pm |
Lies and the Lying Liars Who Tell Them Redux
Today, Karl Rove, courtesy of Media Matters: Wow. Inside scoop, from the guy's own research into Sam Alito for confirmation-- tres probative, no? No.Samuel Alito served on the Third Circuit Court of Appeals, covering Delaware, Pennsylvania, and New Jersey.. (I'm admitted to practice before this Court, but not to the bars of the District or State courts). Sonia Sotomayor serves on the Second Circuit Court of Appeals, covering New York, Connecticut and Vermont. (I am admitted to practice before this Court, the Southern and Eastern Districts of New York, and New York State courts). Note the total lack of overlap. Rove's account, that Alito and Sotomayor were colleagues and his investigation into Alito turned up dirt on her is, well, a lie. The argumentum excrementum taurorem, if you prefer. Rove apparently lies for sport; he could have just cited Jeffrey Rosen's hit piece on Sotomayor, exploded though it has been by Glenn Greenwald, but he felt the need to add some "personal knowledge" weight to it. By, as is his wont, making it up. Rove really does subtract from the sum of human knowledge every time he opens his mouth. | | Tuesday, May 26th, 2009 | | 9:59 pm |
Fantasy vs. Reality
How the Right sees the campaign against confirming Sonia Sotomayor: How the rest of us see it: Just sayin' (Tomorrow, a serious analysis). | | Thursday, May 21st, 2009 | | 7:39 am |
Better That a Millstone...
From the NYT: Tens of thousands of Irish children were sexually, physically and emotionally abused by nuns, priests and others over 60 years in a network of church-run residential schools meant to care for the poor, the vulnerable and the unwanted, according to a report released in Dublin on Wednesday.The 2,600-page report paints a picture of institutions run more like Dickensian orphanages than 20th-century schools, characterized by privation and cruelty that could be both casual and choreographed. “A climate of fear, created by pervasive, excessive and arbitrary punishment, permeated most of the institutions,” the report says. In the boys’ schools, it says, sexual abuse was “endemic.” The report does not give the names of either the acuused or of the victims, and was delayed "because of a lawsuit brought by the Christian Brothers, the religious order that ran many of the boys’ schools and that fought, ultimately successfully, to have the abusers’ names omitted." From Times (London) columnist Ruth Gledhill:'More than 30,000 children deemed to be petty thieves, truants or from dysfunctional families _ a category that often included unmarried mothers _ were sent to Ireland’s austere network of industrial schools, reformatories, orphanages and hostels from the 1930s until the last church-run facilities shut in the 1990s. The report found that molestation and rape were “endemic; in boys’ facilities, chiefly run by the Christian Brothers. Girls supervised by orders of nuns, chiefly the Sisters of Mercy, suffered much less sexual abuse but frequent assaults and humiliation designed to make them feel worthless. “In some schools a high level of ritualized beating was routine. ... Girls were struck with implements designed to maximize pain and were struck on all parts of the body,” the report said. “Personal and family denigration was widespread.” Victims of the system have long demanded that the truth of their experiences be documented and made public, so that children in Ireland never endure such suffering again. But most leaders of religious orders have rejected the allegations as exaggerations and lies, and testified to the commission that any abuses were the responsibility of often long-dead individuals. Wednesday’s five-volume report sides almost completely with the former students’ accounts. It concludes that church officials encouraged ritual beatings and consistently shielded their orders’ paedophiles from arrest amid a culture of self-serving secrecy. “A climate of fear, created by pervasive, excessive and arbitrary punishment, permeated most of the institutions and all those run for boys. Children lived with the daily terror of not knowing where the next beating was coming from,” the report concluded. Gledhilll notes that the Christian Brothers lawsuit to strip the report of all identifying information was won in 2004. What are we to make of this? Again, as I have written elsewhere, the problem must surely lie in the monarchical orientation of the Church's hierarchy--institutionalism crowding out the loving concern that is meant to animate the Church in its dealings with all people. When hierarchy, pomp, and self-righteousness crowd out the sense of service--or, to put it more bluntly, when "Christian" means cruelty, well, as we say on the Internet,"Ur doin it wrong." Pride is fostered by power and deference, and suffocates self knowledge. And, as C.P. Snow wrote in The Light and the Dark (1948), that self-knowledge, stripped of arrogance s crucial to those who hold power. Here's Snow's stand-in Lewis Eliot, debating the balance of power in 1937 with a young Nazi: "No one is fit to be trusted with power," I said..."No one. I should not like to see any group of men in charge--not me or my friends or anyone else. Any man who has lived at all knows the follies and wickedness he's capable of. If he does not know it, he is not fit to govern others. And if he does know it, he knows also that neither he nor any man ought to be allowed to decide a single human fate, Ian mot speaking of you specially, you understand; I should say exactly the same of myself.
Our eyes met. I was certain, as one can be certain in a duel across the table, that for the first time he took me seriously.
"You do not think highly of men, Mr. Eliot."
"I am one." The Light and the Dark pp. 148-149. That self-knowledge seems utterly lacking in the Roman Catholic hierarchy. | | Monday, May 18th, 2009 | | 9:05 pm |
| | Thursday, May 7th, 2009 | | 10:22 pm |
No Race Problem Here...
From TPM: When it became clear that Sen. Jeff Sessions (R-AL) was poised to become ranking member on the Senate Judiciary Committee, we recalled this 2002 article by Sarah Wildman which addresses some of the controversies that kept Sessions from being confirmed in 1986 as a U.S. District Court judge in Alabama. Wildman writes in particular that the testimonies of two witnesses--a Justice Department employee named J. Gerald Hebert, and a black Sessions subordinate named Thomas Figures--helped to doom Sessions, then a U.S. Attorney, at his Judiciary Committee confirmation hearings. According to Wildman, Hebert testified reluctantly "that in a conversation between the two men Sessions had labeled the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU) "un-American" and "Communist-inspired." And Figures--then an assistant U.S. Attorney--told the committee that "during a 1981 murder investigation involving the Ku Klux Klan, Sessions was heard by several colleagues commenting that he 'used to think they [the Klan] were OK' until he found out some of them were 'pot smokers.'"
Ok, we can all agree that's not good. But that's it, right? No? Today we obtained a copy of the transcript of the Sessions hearings--over 500-pages worth--and it turns out there's quite a bit more. We're still going through it, of course, but the Figures testimony alone contains some damning details. Figures recalled one occasion in which the Justice Department's Civil Rights Division sent them instructions to investigate a case that Sessions had tried to close: "We had a very spirited discussion regarding how the Hodge case should then be handled; in the course of that argument, Mr. Sessions threw the file on a table, and remarked, 'I wish I could decline on all of them.'" All of them, according to Figures, meant civil rights cases generally. As he explained at one point: "[T]he statement, the manner in which it was delivered, the impression on his face, the manner in which his face blushed, I believe it represented a hostility to investigating and pursuing those types of matters." Figures said that Sessions had called him "boy" on a number of occasions, and had cautioned him to be careful what he said to "white folks. "Mr. Sessions admonished me to 'be careful what you say to white folks,'" Figures testified. "Had Mr. Sessions merely urged me to be careful what I said to 'folks,' that admonition would have been quite reasonable. But that was not the language that he used."
That's my GOP! | | Wednesday, May 6th, 2009 | | 8:12 pm |
More Eloquently Put Than What I was Thinking
Jonathan Chait at TNR: Remember the Rule of Law? In the late 1990s, it was all the rage in conservative circles. Having maneuvered Bill Clinton into a position where he could either lie under oath or suffer massive personal and political embarrassment, conservatives reasoned that Clinton must be held accountable for perjury or the basic underpinnings of democracy would be shattered. The Republican sensibility was best reflected by the Wall Street Journal editorial page, which not only crusaded for impeachment but demanded, in 2001, that Bill Clinton be indicted even after leaving office. The Journal rejected the logic of promoting healing and insisted that a post-presidency indictment would uphold "the principle that even Presidents and ex-Presidents are not above the law." Over the last decade, though, the right's thinking on this question has evolved. Today, the administration malfeasance consists of illegal torture, a crime I'd argue is no less serious than lying under oath about fellatio. Yet Republicans now believe that the Rule of Law is not only consistent with letting administration crimes go unpunished but actually requires it. To prosecute the departed administration would make us (to use their new catchphrase) a "banana republic"--the premise being that banana republics are defined not by their use of torture but by their overly zealous enforcement of anti-torture laws.
Or, as the TNR puts it on its splash page, "Why do Republicans only apply the Rule of Law to Democrats?" Not the main question of course--but an interesting example of intellectual and moral bankruptcy. | | Saturday, May 2nd, 2009 | | 8:06 pm |
Who's Next?
The announcement that Davis Souter will retire from the Supreme Court has already sparked the usual guess-a-thon as to who will replace him. A few wods on that, in a moment. But first, let's appreciate Justice Souter as part of a dying breed--a GOP appointed Justice who is not rigidly ideological, or on a quest to reshape the Constitution to fit a partisan platform. And a man of integrity, on a Court that often lacked it. Here's Jeffrey Toobin's account of Souter's reaction to the decision in Bush v. Gore: With one exception, the justices tried to put Bush v. Gore behind them and resume business as usual. Three weeks later, Justices Antonin Scalia and Ruth Bader Ginsburg followed their custom of welcoming the New Year with each other's families. ...
David Souter alone was shattered. He was, fundamentally, a very different person from his colleagues. It wasn't just that they had immediate families; their lives off the bench were entirely unlike his. They went to parties and conferences; they gave speeches; they mingled in Washington, where cynicism about everything, including the work of the Supreme Court, was universal. </p>Toughened, or coarsened, by their worldly lives, the other dissenters could shrug and move on, but Souter couldn't. His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues' actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore. Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the court was never the same (For an interesting summary of two of the best books on the decision, see Ethan Bronner's review of Supreme Injustice by Alan Dershowitz, and Breaking the Deadlock, by Richard A. Posner. Dershowitz says that, as the Justices in the majority clearly contradicted rationales relied upon by them in past decisions, their voting their political preferences is a reasonable deduction, and thus the case "may be ranked as the single most corrupt decision in Supreme Court history.'' Posner, while agreeing that the Justices did not believe in the reasoning they employed to justify the decision, nonetheless defends it on the ground that somebody had to break the deadlock, and the Constitution's solution, committing it to the House of Representatives, would be inherently perceived as political, where the Supreme Court can veil the choice in an agreeable aura of legitimacy, an argument made by Posner in the remarkable Law, Pragmatism and Democracy (2003). I think Dershowitz has the better of the argument, as to agree with Psoner is to legitimate judges taking from the elected branches decisions explicitly committed to them by the Constitution based on pragmatic reasons, but employing formalistic logic which the judges do not themselves find convincing). So Souter was a liberal, we hear. But I think that's not true, really, and just shows the extent to which the political spectrum has shifted rightward. By the standards of the New Deal Court, the Warren Court, and the great liberals like Douglas, Black and Brennan, Souter was a conservative. The New York Timeshas a good graphic on this, limited to the Justices on the Court from the Reagan Era to the present:  Liberal? Holmes and Brandeis in the 20s were more so. No, Souter is a conservative of thought--one who treats the Constitution, precedent and tradition with respect. After three decades of hypertrophic conservatism, that only seems liberal. As to replacements, I'm with Sherlock Holmes in thinking that guessing " is a shocking habit--destructive to the logical faculty." My most likely prediction is that President Obama may appoint Judge Sonia Sotomayor. Not because she brings a compelling background and she's a woman on a nearly all-male court (both true, of course), but because she's widely respected, considered to be a lawyer's judge, in the sense that she thinks out her views based on solid legal analysis, not pre-planned results. Yet she isn't academic to the point of what CP Snow used to call "cat-humor"--absurd conceptual games triumphing over policy and facts. My least favorite likely nominee? Obama adviser Cass Sunstein, a professor whose work on free speech has been mostly in favor of regulation of speech. | | Saturday, April 25th, 2009 | | 7:54 pm |
"The Spirit of Liberty Has Left The Republic"
Judge Jay Bybee, on the subject of his Torture memos: "I've heard him express regret at the contents of the memo," said a fellow legal scholar and longtime friend, who spoke on the condition of anonymity while offering remarks that might appear as "piling on." "I've heard him express regret that the memo was misused. I've heard him express regret at the lack of context -- of the enormous pressure and the enormous time pressure that he was under. And anyone would have regrets simply because of the notoriety." "On the primary memo, that legitimated and defined torture, he just felt it got away from him," said the fellow scholar. "What I understand that to mean is, any lawyer, when he or she is writing about something very complicated, very layered, sometimes you can get it all out there and if you're not careful, you end up in a place you never intended to go. I think for someone like Jay, who's a formalist and a textualist, that's a particular danger." Tuan Samahon, a former clerk who recalled Bybee's remarks at the reunion dinner, said in an e-mail that the judge defended the legal reasoning behind the memos but not the policy decision. Bybee was disappointed by what was done to prisoners, saying that "the spirit of liberty has left the republic," Samahon said.
As Robert Mitchum said in the remake of Cape Fear, "Well. I'm just sorry all over." The spirit of liberty? Judge Bybee--you helped drown it; you don't get to speak its eulogy, too. | | Friday, April 24th, 2009 | | 10:36 pm |
Palate Cleanser
After two posts on torture, I need a break. What better then baby koala: Perhaps... new Who: | | 10:05 pm |
"Every time I think I'm out..."
And yet there is more:The military agency that provided advice on harsh interrogation techniques for use against terrorism suspects referred to the application of extreme duress as "torture" in a July 2002 document sent to the Pentagon's chief lawyer and warned that it would produce "unreliable information." "The unintended consequence of a U.S. policy that provides for the torture of prisoners is that it could be used by our adversaries as justification for the torture of captured U.S. personnel," says the document, an unsigned two-page attachment to a memo by the military's Joint Personnel Recovery Agency.
Unlike the Wa Po, the JPRA, which created the SERE program I'm always on about, has the stomach to call the tactics used by the Government pursuant to the OLC memos torture. Illegal and ineffective. What a twofer. Only Dick Cheney would look at this and want to emulate it: (trigger warning) I forget--what was it the Bushies wanted to restore to the White House? | | Wednesday, April 22nd, 2009 | | 9:10 pm |
The Purposes of Torture
Yeah, here's a shock: The Bush administration applied relentless pressure on interrogators to use harsh methods on detainees in part to find evidence of cooperation between al Qaida and the late Iraqi dictator Saddam Hussein's regime, according to a former senior U.S. intelligence official and a former Army psychiatrist. Such information would've provided a foundation for one of former President George W. Bush's main arguments for invading Iraq in 2003. In fact, no evidence has ever been found of operational ties between Osama bin Laden's terrorist network and Saddam's regime. ***
"There were two reasons why these interrogations were so persistent, and why extreme methods were used," the former senior intelligence official said on condition of anonymity because of the issue's sensitivity.</p>"The main one is that everyone was worried about some kind of follow-up attack (after 9/11). But for most of 2002 and into 2003, Cheney and Rumsfeld, especially, were also demanding proof of the links between al Qaida and Iraq that (former Iraqi exile leader Ahmed) Chalabi and others had told them were there." It was during this period that CIA interrogators waterboarded two alleged top al Qaida detainees repeatedly — Abu Zubaydah at least 83 times in August 2002 and Khalid Sheik Muhammed 183 times in March 2003 — according to a newly released Justice Department document.
Is there anybody left who finds this surprising? As I pointed out as early as November 2005, the tactics used in our "enhanced interrogations" were drawn from a program designed to teach American service members to resist such techniques,which were designed to extract false confessions. And that's just what they were seeking to obtain--justification for the war they wanted, against the foe they wanted. As Andrew Sullivan writes today: The assertion of total power through unchecked violence - outside the Constitution, beyond the reach of the law (apart from legal memos from hired hacks instructed to retroactively redefine torture into 'legality') - will be seen in retrospect as the key defining theory of Bush conservatism. It ended, as all regimes bent on total power always end, with torture. Why? Because reality may differ from ideology; and when it does, it is vital to create reality to support ideology. And so torture creates reality by coercing "facts" from broken bodies and minds. This is how torture is always a fantastic temptation for those in power: it provides a way for them to coerce reality into the shape they desire. This is also why it is so uniquely dangerous. Because it creates a closed circle of untruth, which is then used to justify more torture, which generates more "truth." This is the Imaginationland some of us have been so concerned about. Or, as a senior adviser to Bush told Ron Suskind, people like him were "the reality-based community,'' which he defined as people who ''believe that solutions emerge from your judicious study of discernible reality.'' I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ''That's not the way the world really works anymore,'' he continued. ''We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do." We're an empire now. Decline and Fall. | | Thursday, April 16th, 2009 | | 8:28 pm |
Cheers and Jeers
A day of good and bad news mixed. On the positive side, President Obama released the remaining Office of Legal Counsel torture memos used to justify the use of enhanced interrogation methods torture by the Bush Administration. Apparently, Obama was under significant pressure not to release the memos, or to redact them to the point of blandness. On the negative side, the acts legitimated in the memos are barbaric, KGB-style torture. Techniques such as slamming the detainee's head into the wall,waterboarding, dousing in cold water, forced nudity in front of interrogators of the opposite sex, being locked in small boxes or splayed in unnatural postures straining the muscles, sleep deprivation for up to 11 days, being shackled in diapers, or being locked in a small box with insects the detainee is led to believe are poisonous, if that's a serious phobia of the detainee in question. Back to the positive: the Administration is clarifying its earlier refusal to prosecute those who relied on these ice-cold memos, stating that the OLC DeSade Squad who wrote this cold-blooded, sickening drivel are not themselves off the hook and may yet be prosecuted. Good. Let us hope that Judge Bybee is impeached, and stands trial with his accomplices. In less important, but nonetheless interesting news, Sarah Palin's game of hardball with her state's Legislature backfired; her controversial, slightly nutty nominee for attorney general (no, no, ), Wayne Anthony Ross ("WAR", as he likes to be called), has been rejected by the Legislature, in a vote which the ADN states is the first such rejection of a nominee in the state's history. WAR in supporting Palin's decision to violate the state statute and established local practice governing appointment of a replacement to the state senate, and opting instead to repeatedly try to force a GOP nominee to replace a Democratic senator on the state Democratic party, first stated that "it seems to me the most important thing that can be done by the Senate is not argue with legal or illegal but to appoint somebody to represent Juneau," a statement he denied making, only for the ADN to post audio of him saying it. Meanwhile, Palin's most recent faux Democrat nominee withdrew from consideration. The vote rejecting WAR was bipartisan--the GOP split is what made the difference. In other words, Palin as Governor has lost not just her claim to bipartisan ability, but control of her own party. |
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