Souter, concurring in Boumediene:
It is in fact the very lapse of four years from the time Rasul put everyone on notice that habeas process was available to Guantanamo prisoners, and the lapse of six years since some of these prisoners were captured and incarcerated, that stand at odds with the repeated suggestions of the dissenters that these cases should be seen as a judicial victory in a contest for power between the Court and the political branches. The several answers to the charge of triumphalism might start with a basic fact of Anglo-American constitutional history: that the power, first of the Crown and now of the Executive Branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire into the legality of executive detention. And one could explain that in this Court’s exercise of responsibility to preserve habeas corpus something much more significant is involved than pulling and hauling between the judicial and political branches. Instead, though, it is enough to repeat that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny,today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation.
To think that permitting access to basic habeas rights to prisoners who have been arbitrarily detained by the American government in American-controlled territory for six years is some kind of massive judicial power grab is silly. More later.
UPDATE from bean: Marty Lederman has initial reactions to the decision.
UPDATE the second (SL): Matt beat me to my hobbyhorse, but I note initially that reasonable, moderate, thinking person’s conservatives Alito and Roberts not only dissented (the latter writing) but joined Scalia’s dissent — which begins with a some paragraphs of talk-radio demagoguery about how because of the Court Islamofascists will be come to kill your children — in full. Again, it seems worth noting that there is effectively no substantive difference between Bush’s appointments and Scalia and Thomas.
[Nixon would] top just short of calling the President a liar on Vietnam, then add that he would not be speaking of the war during Johnson’s “sensitive negotiations with Hanoi” before extending his sympathy to the President for all the “well-intentioned but mistaken Democrats who have taken the soft line, the appeasement line.” For we could only lose in Vietnam “if President Johnson fails to take a strong line that will preserve the peace by refusing to reward the aggressors.”
It’s a line of reasoning exactly as convincing now as it was then!
Bonus Nixon’s Piano edition:
In his press conference the next day, some Eastern establishment reporter asked Nixon if he found it embarrassing to share a party with “ol’ States’ Right’s Strom.” Nixon responded, “Strom is no racist. Strom is a man of courage and integrity.”
Both quotes from Rick Perlstein’s masterpiece Nixonland, available at the local independent and/or soulless corporate bookstore near you.
Shorter Verbatim Camille Paglia: “I suppose I shouldn’t have been surprised at the ecstatic media lockstep praising Hillary’s so-called concession speech last weekend. This is the same herd of sheep who bleated to Bush’s beat and brought us the Iraq fiasco. I first heard the speech on the radio as I was driving back to Philadelphia from a family event in upstate New York. I was shocked and appalled at Hillary’s inflammatory demagoguery, which was obviously intended to keep her candidacy alive through the August convention and beyond. The echo in the museum’s marble entry hall gave the event an eerily retro quality, as if it were a 1930s fascist rally. Hillary’s turgid, preachy rhythms were condescending and manipulative, and her climaxes were ear-splittingly strident. It was pure Evita, a cult of personality masquerading as populism. When I later saw the speech on TV, I was disgusted by how Hillary undercut her insultingly brief endorsement of Obama with a flat expression and cold, dead eyes. The only thing that got her blood racing was the blatantly stoked hysteria of her screeching worshipers.”
I don’t know what you can even say to this; I guess it’s what happens when you evaluate the speech you elaborately developed in your misogynist brain rather than the one actually given by Clinton.
I remain convinced. See also Drum.
Let me also add: Sebelius ’08! On the question of Joe Biden, I could see a case — if he hadn’t been in favor of the war. As it stands, I think it would be crazy to pick someone almost exclusively for foreign policy message who inevitably blurs the popular message of the Democratic candidate.
Patterico objects to an LA Times editorial asserting that McCain will appoint justices who share his views that Roe v. Wade is wrong and should be overturned. Patterico argues that McCain has said that he would appoint judges like Alito and Roberts, who have declined (so far) to argue explicitly that Roe should be overturned.
But this is a distinction without a difference: there’s no evidence of any meaningful distinction between Scalia/Thomas and Roberts/Alito on the issue of reproductive freedom. None of the four will ever vote to rule a restriction on abortion unconstitutional. Whether the Court explicitly announces that Roe is overruled doesn’t matter if the Court is going to stop providing any meaningful protection for abortion rights. This was Rehnquist’s strategy in Webster: the Court could uphold a draconian ban on abortion without overturning Roe as long as there was some minor difference (such as a rape/incest exception) between one ban and the Texas law struck down in Roe. And I’m not even sure that such differences are necessary. After all, if we remember Carhart II — the most ridiculous example of the Roberts’s Courts fake minimalism — you can apparently uphold a statute virtually identical to one struck down earlier without overturning the previous case.
So the LA Times is essentially right. What matters is whether McCain will seek to appoint justices who will provide meaningful protection to aboriton rights, and it’s clear that he will not. There’s no reason to pretend that the de farco overrulings of the Roberts Court actually leave precedents standing. Whether the Court dismantles abortion rights piecemeal or through a single dramatic opinion isn’t important except that the former is politically better for the Republican Party. Democrats are under no obligation to provide this political cover.
Matt asks, in re: a ridiculous LA Times editorial claiming that McCain and Obama are pretty much the same if you just ignore their massive policy differences on virtually every important issue:
Clearly, though, there’s a substantial difference between the candidates and I have no idea why the press would think that obscuring that is a good idea — conflict sells papers! And it’s true!
Ah, how quickly we’ve forgotten 2000. Blurring policy differences between the candidates, and in particular confusion personal claims of moderation from Republican presidents with moderate policies, is central to Republican strategy. And the media is generally willing to go along. World-weary High Broderism, of course, requires above all else the assumption that elections don’t have significant consequences, allowing elections to therefore turn on meaningless personal trivia. (And this wasn’t just conservatives, either; remember Frank Rich’s endless string of Gush/Bore columns.)
And in 2000, of course, the message that there was no meaningful policy differences between a center-left Democrat and a Republican who governed to the right of the Texas legislature was reinforced by a narcissistic third party candidate bent on electing the latter. Hopefully, the small portion of alleged progressives for whom one centrist Democrat was fine but another one with a somewhat more progressive record is completely unacceptable will not have similar influence.
Mark Penn washes his hands having helped to seal Clinton’s fate. (Penn’s column is also available in video form.)
The thing is that there’s actually considerable merit to Penn’s argument that money and organizational issues were the key defects of the Clinton campaign; their inability and/or unwillingness to compete in February primaries and caucuses was far more important than any “message” problems that could have been solved by shifts in campaign tactics. To the extent that message mattered, it was the substantive errors — Clinton getting the most important issue of the Bush era disastrously wrong, digging herself in deeper, and then compounding the error by voting for Kyl-Lieberman — that couldn’t easily be corrected after Obama won Iowa.
But this doesn’t really exculpate Penn. One way for the Clinton campaign to have freed up funds to create some organizational capacity in small caucus states would have been to not pay Penn’s firm millions of dollars for consulting services that Penn implicitly concedes to have been virtually worthless. If Penn is right about Clinton’s campaign, he must be wrong about the value of his “message” advice. Similarly, structural factors matter more than campiagn tactics in presidential elections — which is precisely why it was wrong for the Clintons to think that Penn was some sort of genius for helping a relatively popular incumbent in a booming ecomony win re-election. If Penn is largely right about the reasons for Clinton’s defeat, people are idiots to pay him what he charges for his services; he seems to be admitting the truth about the consultant racket in the Democratic Party.
So either Penn is wrong to evade responsibility like this, or he’s grossly overpaid. There’s no third option.
I have been criticized in comments for not properly acknowledging the Red Wings’ Stanley Cup victory, so consider it acknowledged. As Kaufman says, the series didn’t quite become a classic due to the inability of the Pens to win one of the first two in Detroit (or Game 6), but there were some exciting moments and Game 5 was great. Special kudos to Lidstrom, whose greatness I think is still underappreciated. And I also extend heartfelt thanks to the Dallas Stars for knocking the Ducks out of the playoffs.
Since I’m behind on trip blogging, I should mention that my trip to weekends ago to lovely metroplitan Detroit included a trip to Comerica Field. I liked it (probably moreso than if I had seen Tiger Stadium). The inner was a nice mallpark, but what I really liked was the team history displayed in the concourse and the outfield walkways. I wish I had a picture to capture two guys in Willie Horton jerseys getting their pictures taken in front of the Willie Horton jersey. The crowd wasn’t especially lively but it was a packed house despite the Red Wings and Pistons playoff games happening simultaneously and the game was over after the 4th inning (reminding at least one person in attendance how dumb they were to draft Boof Bonser.)
I guess that djw and I both neglected to blog about our first trip to Wrigley Field last month. I’m disposed to by cynical to all things Cub-related, but I admit: it was fantastic. It has the upper-deck proximity and unique charm of a really old park but was considerably more comfortable than Fenway, and a crowd that if not quite Fenway or Yankee caliber was very good. Just for fun, let’s rank the stadiums I’ve visited (with number of visits, so I can;t judge some as well, in parenthesis):
1. Wrigley (1)
2. Pac Bell (1)
3. Safeco (Dozens)
4. Comerica (1)
5. Fenway (3)
6. Yankee Stadium (3)
7. Shea (dozens)
8. Anaheim (1, in 1983, so not really relevant to the current stadium)
9. SkyDome (3)
10. Stade Olympique (hundreds)
11. Joe Robbie (4)
12. Exhibition Stadium (15 or so)
13. Kingdome (30ish)
With respect to the second tier, the ranking really depends on a couple factors. If it was just one game, I’d prefer Fenway to any of those except maybe Pac Bell, but if I went with any regularity the cramped seating, interminable trips to the bathroom, etc. of Fenway would start to get a little wearisome. On the other hand, the mallparks are only good if you’re not stuck in the upper deck that angles away from the field. SkyDome kinda sucked; just as Safeco feels outdoors even with the roof on it feels indoors even with the roof off. I really want to see Chavez Ravine and the new park in Pittsburgh…
Publius has a more optimistic take on last week’s civil rights enforcement decisions, in which (unusually in a major case) Alito and Roberts broke with Thomas and Scalia and (with Kennedy) joined the Court’s more liberal bloc, than I did. His case is, as always, worth reading.
However, I note a recent case that contained a split that I would still predict as being more likely. Earlier in the week, Thomas and Scalia joined with the three more liberal members of the Court to throw out a money laundering conviction, while Alito and Roberts joined with Kennedy and (the relatively statist) Breyer to uphold it. The case involved a classic use of prosecutors using money laundering statutes to apply more draconian sentences as part of the largely futile Wars on Gambling and (Some Classes of People Who Use Some) Drugs than are otherwise called for. In this case, the feds argued that the ordinary activities of an illegal gambling ring — paying runners and customers — also constituted money laundering. The case turned on whether the word “proceeds” in the statute should be read to mean “receipts” or “profits.” As Justice Scalia persuasively concludes, however, given the ambiguity of the statute and lack of federal precedent the state’s position “turns the rule of lenity upside-down. We interpret ambiguous criminal statutes in favor of defendants, not prosecutors.” This case provides another example of a civil libertarian streak in Scalia and Thomas than seems almost entirely non-existent in Bush’s two new appointments. And I also note that in this case Scalia and Thomas actually cast decisive votes, whereas in last week’s cases Alito and Roberts just made a 5-4 decision 7-2.
The rest of Publius’s argument probably merits a separate response. The short version of my reply would be here. It’s true that Roberts and Alito are more formally “minimalist” and less likely to explicitly overturn precedents than Thomas and Scalia. But this only matters if there’s some substantive difference in how they actually apply these precedents, and don’t see any evidence of this. What difference does it make if Carhart isn’t explicitly overturned if in applying the case the Court votes to uphold a virtually identical statute? If anything, the Roberts/Alito approach is worse, not only for progressive constitutionalism but for democracy.
Via Ezra, Michael Pollan has a good example of the problems that Matt discusses here. Evidently, it would be good if subsidies to wealthy agricultural conglomerates could just be eliminated (or severely curtailed.) But the structure of American institutions and policy path dependencies make simply eliminating these kind of subsidies entirely politically impossible. So the better course is to think about how this money could be used more effectively — such as, say, subsidizing nutritious vegetables rather than corn — and who can be bought off to make American food policy more sensible rather than daydream believing about simply eliminating agricultural pork altogether.
It may not be literally true that Larry Johnson is the biggest clown in the internets, but close enough.
Or at least I believed that until he was vindicated by exclusive video footage!