Tag: Constitution

Obama’s Military Commissions

President Obama is expected to announce how his administration is going to prosecute prisoners for war crimes and perhaps other terrorist offenses.  Instead of civilian court, courts-martial, or new “national security courts,” Obama has apparently decided to embrace George W. Bush’s system of special military tribunals, but with some “modifications.”

Glenn Greenwald slams Obama for seeking to create a “gentler” tribunal system and urges liberals to hold Obama to the same standards that were applied to Bush:

What makes military commissions so pernicious is that they signal that anytime the government wants to imprison people but can’t obtain convictions under our normal system of justice, we’ll just create a brand new system that diminishes due process just enough to ensure that the government wins.  It tells the world that we don’t trust our own justice system, that we’re willing to use sham trials to imprison people for life or even execute them, and that what Bush did in perverting American justice was not fundamentally or radically wrong, but just was in need of a little tweaking.  Along with warrantless eavesdropping, indefinite detention, extreme secrecy doctrines, concealment of torture evidence, rendition, and blocking judicial review of executive lawbreaking, one can now add Bush’s military commission system, albeit in modified form, to the growing list of despised Bush Terrorism policies that are now policies of Barack Obama.

Greenwald is right.  The primary issue is not due process.  The tribunals might ultimately be “fair” and “unbiased” in some broad sense, but where in the Constitution does it say that the president (or Congress) can create a newfangled court system to prosecute, incarcerate, and execute prisoners?

For more about how Bush’s prisoner policies ought to be ravamped, see my chapter “Civil Liberties and Terrorism” (pdf) in the Cato Handbook for Policymakers.

Will the Government Be the New King of All Media?

Howard Stern swore off free broadcast radio in 2004 in part because of federally mandated decency rules. The self-annointed “king of all media” may have stepped off the throne in doing so. Them’s the breaks in the competitive media marketplace, contorted as it is by government speech controls.

Some would argue that a new king of all media is seeking the mantle of power now that the Obama administration is ensconced and friendly majorities hold the House and Senate. The new pretender is the federal government.

And some would argue that the Free PressChanging Media Summit” held yesterday here in Washington laid the groundwork for a new federal takeover of media and communications.

That person is not me. But I am concerned by the enthusiasm of many groups in Washington to “improve” media (by their reckoning) with government intervention.

Free Press issued a report yesterday entitled Dismantling Digital Deregulation. Even the title is a lot to swallow; have communications and media been deregulated in any meaningful sense? (The title itself prioritizes alliteration over logic — evidence of what may come within.)

Opening the conference, Josh Silver, executive director of Free Press, harkened to Thomas Jefferson — well and good — but public subsidies for printers, and a government-run postal system, model his hopes for U.S. government policies to come.

It’s helpful to note what policies found their way into Jefferson’s constitution as absolutes and what were merely permissive. The absolute is found in Amendment I: “Congress shall make no law…abridging the freedom of speech, or of the press…”

Among the permissive is the Article I power “to establish Post Offices and post Roads.” There’s no mandate to do it and the scope and extent of any law is subject to Congress’ discretion, just like the power to create patents and copyrights, which immediately follows.

I won’t label Free Press and all their efforts a collectivist plot and dismiss it as such — there are some issues on which we probably have common cause — but a crisper expression of “dismantling deregulation” is “re-regulation.”

It’s a very friendly environment for a government takeover of modern-day printing presses: Internet service providers, cable companies, phone companies, broadcasters, and so on.

Judge Sonia Sotomayor’s Philosophy of Judging

Judge Sonia Sotomayor of the 2nd Circuit Court of Appeals has been mentioned as a possible Supreme Court nominee.  She also has been caught on tape explaining her view of a judge’s role.  Reports the Washington Post:

As White House press secretary Robert Gibbs put it, Obama is looking for “somebody who understands how being a judge affects Americans’ everyday lives.”

Congressional conservatives have reacted anxiously to that qualification, fearing that it means a nominee who is more interested in making the law than in interpreting it.

One possible candidate for the seat, Judge Sonia Sotomayor of the U.S. Court of Appeals for the 2nd Circuit, appeared to walk close to that line in a video that emerged yesterday. Sotomayor would be the first Latino and the third woman to serve on the high court.

Speaking at Duke University in 2005, Sotomayor said, “All of the legal defense funds out there, they’re looking for people with court of appeals experience” because “the court of appeals is where policy is made.”

She then sought to soften the statement, adding lightly, “I know this is on tape and I should never say that, because we don’t make law, I know. Um, okay. I know. I’m not promoting it, I’m not advocating it.” The audience laughed as she brushed off the statement, perhaps sarcastically.

Making policy.  Yes, it is indisputable that that’s what judges often do.  But is that what they are supposed to do? 

President Barack Obama seems to think so, when he talks about the importance of “empathy” in judges.  (With whom do I empathize in this First Amendment case:  the U.S. Attorney General or the New York Times?  I vote for the Times!)  However, the Senate might want to debate this issue before approving someone to fill Justice David Souter’s vacancy, especially if the nominee shares the president’s apparent view that empathy is a substitute for jurisprudence in interpreting the law and Constitution.

Jim DeMint’s Freedom Tent

Sen. Jim DeMint (R-SC) has been a leader in the fight for fiscal responsibility in Congress. He’s even led on issues that many elected officials have shied away from, such as Social Security reform and free trade. Recently he said that he would support Pat Toomey over Arlen Specter in a Republican primary, which may have prompted Specter’s party switch. DeMint was widely quoted as saying, “I would rather have 30 Republicans in the Senate who really believe in principles of limited government, free markets, free people, than to have 60 that don’t have a set of beliefs.”

It may have been feedback from that comment that caused DeMint to write an op-ed in the Wall Street Journal on his vision of a “Big Tent” Republican party. He makes some excellent points:

But big tents need strong poles, and the strongest pole of our party – the organizing principle and the crucial alternative to the Democrats – must be freedom. The federal government is too big, takes too much of our money, and makes too many of our decisions….

We can argue about how to rein in the federal Leviathan; but we should agree that centralized government infringes on individual liberty and that problems are best solved by the people or the government closest to them.

Moderate and liberal Republicans who think a South Carolina conservative like me has too much influence are right! I don’t want to make decisions for them. That’s why I’m working to reduce Washington’s grip on our lives and devolve power to the states, communities and individuals, so that Northeastern Republicans, Western Republicans, Southern Republicans, and Midwestern Republicans can define their own brands of Republicanism. It’s the Democrats who want to impose a rigid, uniform agenda on all Americans. Freedom Republicanism is about choice – in education, health care, energy and more. It’s OK if those choices look different in South Carolina, Maine and California.

That’s a good federalist, or libertarian, or traditional American conservative vision. But is it really Jim DeMint’s vision?

DeMint says “that centralized government infringes on individual liberty and that problems are best solved by the people or the government closest to them.” And he says it’s OK if “choices look different in South Carolina, Maine and California.” But marriage is traditionally a matter for the states to decide. Some states allow first cousins to marry, others don’t.  Some states recognized interracial marriage in the early 20th century, others didn’t. And in every case the federal government accepted each state’s rules; if you had a marriage license from one of the states, the federal government considered you married. But Senator DeMint has twice voted for a constitutional amendment to overrule the states’ power to grant marriage licenses to same-sex couples. In his op-ed, he writes, “Republicans can welcome a vigorous debate about legalized abortion or same-sex marriage; but we should be able to agree that social policies should be set through a democratic process, not by unelected judges.” That’s a reasonable argument, but the amendment that DeMint voted for would overturn state legislative decisions as well as judicial decisions.

Does Jim DeMint believe that “it’s OK if choices [about marriage] look different in South Carolina, Maine, [Vermont, New Hampshire], and California”? If so, he should renounce his support for the anti-federalist federal marriage amendment. If not, then it seems that he opposes the Democrats’ attempts to “impose a rigid, uniform agenda on all Americans …  in education, health care, energy and more,” but he has no problem with Republicans imposing their own “rigid, uniform agenda on all Americans” from South Carolina to Vermont.

It might be noted that Senator DeMint also supported the federal attempt to overturn Florida court decisions regarding Terri Schiavo, but we can hope all Republicans have learned their lesson on that bit of mass hysteria.

Vetting the Future Supreme Court Justice

In choosing a Supreme Court nominee to replace Justice Souter, President Obama will have an opportunity to avoid the partisanship he promised to reduce on the campaign trail, which his legislative agenda has thus far only exacerbated.

But given the way Bush nominees were treated by Senate Democrats, it won’t be easy. After the stormy confirmation hearings for Judges Bork and Thomas, President Clinton’s nominations of Judges Ginsburg and Breyer sailed through the confirmation process with little opposition and even less acrimony. With the return of Republican nominees after the election of George W. Bush, however, Senate Democrats resumed their scorched earth practices, starting with appellate court nominees and continuing to the nominations of Judges Roberts and Alito to the High Court.

Hearings were never held, filibusters were threatened and reputations were tarnished.

The question now for Senate Republicans will be, is turnabout fair-play?

The answer may turn on just who President Obama selects. At the least, given this recent history, there is no reason Senate Republicans need to be unduly deferential to the president’s nominee. We will need to know both the judicial philosophy and the constitutional philosophy of the nominee.

That will require respectful but sharp questioning by members of the loyal opposition. Their duty under the Constitution requires nothing less.

Who Will Replace Justice Souter?

You could call it the end of an error.  David Souter, the “stealth justice” who George H. W. Bush nominated mainly to avoid a confirmation battle and who so disappointed conservatives, is finally free to leave a city he never took to and return to his native New Hampshire. 

Little more can be said about Justice Souter. He has always been inscrutable, at first leaning right, shifting toward the middle in the landmark 1992 cases of Planned Parenthood v. Casey (abortion) and Lee v. Weisman (prayer at high school graduation), and ending up at the left end of the Court alongside Justices Stevens, Ginsburg, and Breyer – all the while employing an unpredictable jurisprudential method.  And he has always been reclusive, refusing reporters’ and scholars’ interview requests and being the biggest opponent of video cameras inside the Court.  Perhaps most memorably, Souter gained notoriety after his vote in Kelo v. New London (allowing the taking of a private home for the benefit of a developer) spurred property rights activists to petition for the use of eminent domain to turn his farm into the “Lost Liberty Hotel.”

Speculation now turns to possible replacements, and what President Obama will do with his first chance to fill a seat on the high court.  Will he risk a big political battle on this issue so early in his term, or will he appoint someone more confirmable but less pleasing to his base? 

He is under great pressure to appoint a woman, and the three leading female candidates are new Solicitor General Elena Kagan, Second Circuit Judge Sonia Sotomayor, and Seventh Circuit Judge Diane Wood.  Kagan would be an almost-certain pick a year from now, but having been just confirmed to be the so-called Tenth Justice, she might be seen as too green for elevation.  Sotomayor — because she is Hispanic and despite a mixed judicial record — was the odds-on favorite until the Court took up the employment discrimination case of Ricci v. DeStefano (argued just last week), an appeal of a bizarre opinion Sotomayor joined that denied the claims of firefighters who had been passed over for promotion because of their race.  That leaves Wood, a renowned authority on antitrust, international trade, and federal civil procedure, whose age (58) suggests that this is likely the last vacancy for which she will be considered.  Wood offers a seriousness of purpose and no ideological ax to grind, and is thus the best nominee supporters of constitutionalism and the rule of law can hope for at this time.  (Full disclosure: I took two classes from Judge Wood in law school.)

Blogging from the Supreme Court - NAMUDNO v. Holder

I write this from the Bar Members’ line waiting to be let into the Supreme Court courtroom for the final argument of the term.

Today the Court hears Northwest Austin Municipal Utility District No.1 (“NAMUDNO”) v. Holder. This is a challenge to the controversial Section 5 of the Voting Rights Act, which requires, among other things, any change in election administration in certain states and counties to be “precleared” by the Department of Justice in Washington. This is, of course, a remnant of the Jim Crow era, and southern states’ massive resistance to attempts to enforce the 15th Amendment.

In 1965, Congress included Section 5 – which would otherwise be an unconstitutional infringement on peoples’ right to run their own elections locally – as a temporary remedy to an emergency situation. The section has been amended and extended several times (e.g., to add linguistic minorities, Pacific Islanders, etc.), most recently in 2006. But in this last renewal, Congress, despite introducing more than 15,000 pages into the record, failed to even allege the existence of the type of systemic voting discrimination as existed in the 1960s – because, of course, it doesn’t exist any more, and other parts of the VRA exist to cover specific discriminatory incidents.

Accordingly, a small utility district in Austin, Texas, contests Section 5’s continuing validity (if it cannot escape the section’s clutches via a confusing and little-used “bailout” provision). Specifically, NAMUDNO wants to change the location of its polling station to a public garage (from a less convenient location) – a move that obviously lacks discriminatory intent, and showcases the minutiae that the DOJ now has to micromanage.

Cato legal scholars support NAMUDNO’s challenge because, barring the widespread systemic unconstitutional actions of the Civil Rights Era, Section 5 violates our most basic principles of self-government and federalism, and is emblematic of governmental overreach.