Tag: law

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.)

New at Cato

New articles, videos and Podcasts today:

  • In the Chicago Tribune, David Boaz questions whether Arlen Specter’s party change will take the Senate further to the left.
  • Watch Brandon Arnold discuss Obama’s first 100 days in office on BNN Canada.
  • For  more on Obama’s first 100 days, watch Gene Healy’s interview on AP TV.
  • Chris Preble will be on Capitol Hill again on May 11 with Jim Harper to explain why overreaction and misdirection play into the strategy of terrorism.
  • In Thursday’s Cato Daily Podcast, legal scholar Ilya Shapiro discusses how a Supreme Court decision could change racial preference hiring laws in the United States.

DoJ Fails to Report Electronic Surveillance Activities

Unlike with wiretaps, law enforcement agents are not required by federal statutes to obtain search warrants before employing pen registers or trap and trace devices. These devices record non-content information regarding telephone calls and Internet communications. (Of course, “non-content information” has quite a bit of content - who is talking to whom, how often, and for how long.)

The Electronic Privacy Information Center points out in a letter to Senate Judiciary Committee Chairman Patrick Leahy (D-VT) that the Department of Justice has consistently failed to report on the use of pen registers and trap and trace devices as required by law:

The Electronic Communications Privacy Act requires the Attorney General to “annually report to Congress on the number of pen register orders and orders for trap and trace devices applied for by law enforcement agencies of the Department of Justice.” However, between 1999 and 2003, the Department of Justice failed to comply with this requirement. Instead, 1999-2003 data was provided to Congress in a single “document dump,” which submitted five years of reports in November 2004. In addition, when the 1999-2003 reports were finally provided to Congress, the documents failed to include all of the information that the Pen Register Act requires to be shared with lawmakers. The documents do not detail the offenses for which the pen register and trap and trace orders were obtained, as required by 18 U.S.C. § 3126(2). Furthermore, the documents do not identify the district or branch office of the agencies that submitted the pen register requests, information required by 18 U.S.C. § 3126(8).

EPIC has found no evidence that the Department of Justice provided annual pen register reports to Congress for 2004, 2005, 2006, 2007, or 2008. “This failure would demonstrate ongoing, repeated breaches of the DOJ’s statutory obligations to inform the public and the Congress about the use of electronic surveillance authority,” they say.

It’s a good bet, when government powers are used without oversight, that they will be abused. Kudos to EPIC for pressing this issue. Senator Leahy’s Judiciary Committee should ensure that DoJ completes reporting on past years and that it reports regularly, in full, from here forward.

Obama’s Transparency Average Drops

On the campaign trail, President Obama promised to post bills online for five days before signing them.

Last week, President Obama signed three new bills into law. None of them received the promised “Sunlight Before Signing” treatment - at least, not as far as our research reveals. (The White House has yet to establish a uniform place on its Web site where the public can look for bills that the President has received from Congress.)

The new bills put today’s podcast on Obama’s five-day pledge slightly out of date. He is not batting .091 on his transparency pledge. He’s batting .071. The substance of the podcast remains true, however: This is still a worse record than the Nationals.

President Obama waited more than five days to sign two of the three bills he passed into law last week. The simple matter of posting them on Whitehouse.gov would have fulfilled the promise as to those bills - and would have brought his average up to .214.

The current list of new laws, with presentment date and signing date, is after the break.

Public Law Date Presented Date Signed Posted (Linked) for Comment? Five Days?
P.L. 111-2, The Lilly Ledbetter Fair Pay Act of 2009 1/28/2009 1/29/2009 1/29/2009 No
P.L. 111-3, The Children’s Health Insurance Program Reauthorization Act of 2009 2/4/2009 2/4/2009 2/1/2009 No
P.L. 111-4, The DTV Delay Act 2/9/2009 2/11/2009 2/5/2009 Yes and No
P.L. 111-5, The American Recovery and Reinvestment Act of 2009 2/16/2009 2/17/2009 2/13/2009 No
P.L. 111-6, Making further continuing appropriations for fiscal year 2009, and for other purposes 3/6/2009 3/6/2009 No n/a
P.L. 111-7, A bill to designate the facility of the United States Postal Service located at 2105 East Cook Street in Springfield, Illinois, as the “Colonel John H. Wilson, Jr. Post Office Building” 2/26/09 3/9/2009 No n/a
P.L. 111-8, The Omnibus Appropriations Act, 2009 3/11/2009 3/11/2009 3/6/2009 No
P.L. 111-9, To extend certain immigration programs 3/18/2009 3/20/2009 No n/a
P.L. 111-10, To provide for an additional temporary extension of programs under the Small Business Act and the Small Business Investment Act of 1958, and for other purposes 3/19/2009 3/20/2009 No n/a
P.L. 111-11, The Omnibus Public Land Management Act of 2009 3/30/2009 3/30/2009 3/30/2009 No
P.L. 111-12, The Federal Aviation Administration Extension Act of 2009 3/24/2009 3/30/2009 No n/a
P.L. 111-13, The Generations Invigorating Volunteerism and Education Act 4/20/2009 4/21/2009 No n/a
P.L. 111-14, To designate the United States courthouse under construction at 327 South Church Street, Rockford, Illinois, as the “Stanley J. Roszkowski United States Courthouse” 4/14/2009 4/23/2009 No n/a
P.L. 111-15, The Special Inspector General for the Troubled Asset Relief Program Act of 2009 4/14/2009 4/24/2009 No n/a

Transparency for Thee but Not for Me

It appears that the Obama administration is high on transparency for everyone but its own allies.  There are a lot of good reasons to reduce federal regulation, but if the Labor Department is going to push coercive unionism, it should require unions to disclose their activities and finances to their members.

Not in today’s world, however.  The Obama administration is moving backwards.  Reports the Washington Times:

The Obama administration, which has boasted about its efforts to make government more transparent, is rolling back rules requiring labor unions and their leaders to report information about their finances and compensation.

The Labor Department noted in a recent disclosure that “it would not be a good use of resources” to bring enforcement actions against union officials who do not comply with conflict of interest reporting rules passed in 2007. Instead, union officials will now be allowed to file older, less detailed conflict reports.

The regulation, known as the LM-30 rule, was at the heart of a lawsuit that the AFL-CIO filed against the department last year. One of the union attorneys in the case, Deborah Greenfield, is now a high-ranking deputy at Labor, who also worked on the Obama transition team on labor issues.

The only people served by this move are union officials who want less oversight over their use of dues payments, much collected from unwilling workers.  The new policy certainly runs counter to the president’s promise to set a new tone in Washington.

(Hat tip to Philip Klein.)

Regrets over Bush Administration Torture?

Chris Preble has nicely detailed the reasons we should not torture.  The practice offers no guarantee of good information, harms America’s international reputation, and sacrifices the values that set this nation apart.

Now comes a report that Judge Jay S. Bybee, the head of the Bush adminsitration Office of Legal Counsel who signed off on the infamous torture memos, regrets his role in the matter.  According to the Washington Post:

“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.”

That notoriety worsened this week as the documents — detailing the acceptable application of waterboarding, “walling,” sleep deprivation and other procedures the Bush administration called “enhanced interrogation methods” — prompted calls from human rights advocates and other critics for criminal investigations of the government lawyers who generated them.

This regret could reflect convenient timing — after all, the torture stories have not exactly enhanced Bybee’s reputation.  But it might also demonstrate a sobering realization as to how his opinions were used or misused.  As a believer in human redemption, I’m going to play the optimist and go with the latter for now.