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The Kennedy Question

[ 0 ] January 22, 2009 |

As someone who could very much do without Kennedy worship in general and JFK worship in particular, I suppose that I’m happy, on balance, that Caroline Kennedy has removed herself from consideration to be New York’s next senator. Unlike many people, though, I never cared enough to even blog about it roughly for the reasons suggested by Dana. First, what matters most about a senator is their votes and Kennedy’s would presumably would be fine. Second, I’m not really convinced that which particular wealthy, especially well-connected person is appointed is some sort of major issue of merit or justice (and nepotism always seems a bigger deal where women are concerned; somehow, I don’t remember all the outrage over the fact that Andrew Cuomo may not have gotten his current position strictly on merit.) And, finally, however unjustified I think JFK’s reputation is the brutal truth is that it is a real political resource.

None of this is to say that I actually wanted Paterson to pick Kennedy; I would prefer a legislator with more experience and (especially) a clearer record of progressive politics, like Carolyn Maloney or Jerrold Nadler. But Kennedy probably would have been fine.


Elections Have Consequences. Sometimes, This Can Even Be Good

[ 0 ] January 21, 2009 |

I forgot to post on this earlier in the week, but indeed Marty Lederman taking over the job once held by John Yoo is fantastic news. And, of course, these kinds of actions are even better.

False Choices

[ 0 ] January 20, 2009 |

My vote for the best (and most important) passage from the address:

As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience’s sake.

The MSNBC cut to Bush at this point was a nice touch.

A New President

[ 0 ] January 20, 2009 |

Somehow, I liked the non-smooth oath. There’s something reassuring to know that, amidst all the not-terribly-appropriate monarchical pomp, something so genuinely important is happening that even the generally cool new President is nervous.

It’s a great day for the country.

…To be clear, as many commenters pointed out, it was Roberts who flubbed the oath.


[ 0 ] January 20, 2009 |

My Country ‘Tis of Thee? Sweet.

A Gracious Tribute to the Outgoing President

[ 0 ] January 20, 2009 |

Or, if you prefer without the visuals of the originally intended target:

Sixth Amendment Switches

[ 0 ] January 19, 2009 |

In 2000, the Supreme Court ruled in Apprendi v. New Jersey that under the 6th Amendment’s right to a jury trial, any factor that increased a defendant’s sentence had to either 1)be admitted in a plea agreement or 2)proven in front of a jury. (The case was later held to make federal sentencing guidelines advisory rather than binding.) Although it didn’t seem to generate much discussion given the holding on the same day limiting the exclusionary rule, last week the Supreme Court created a siginifcant exception to the Apprendi rule, holding that factors that could permit the application of consecutive rather than cocurrent sentences could be found by a judge alone.

Unlike in many civil lberties cases, this result had nothing to do with Bush’s apponitments. Alito voted with the majority, but the justice he replaced (O’Connor) consistently dissented from Apprendi and its progeny. Somewhat surprisingly, the new Chief Justice dissented in this case while Rehnquist surely would have been with the majority, suggesting that Roberts is slightly more moderate on civil liberties than Alito (of course, so are J. Edgar Hoover and Harry Callahan.) The case came out he way it did because Stevens and Ginsburg switched sides , with the latter writing the majority opinion.

Since I’ve made fun of Scalia’s own flexibility in applying Apprendi in the past, I feel compelled to add that his dissent in this case seems quite devastating to me. The best I can say for Ginsburg and Stevens is that where Scalia flipped in a run-of-the-mill drug and gun possession case, the set of facts in this case were at least genuinely appalling: the defendant twice (after breaking and entering) sexually assaulted an 11-year-old girl. Still, even if we assume for the sake of argument that 28 years would be more just than a lesser sentence, I don’t think that justifies winking at a maor constitutional principle. It seems to me that Apprendi requires that Oregon prove the factors that went into aggravating a sentence be adduced at plea or proven in front of a jury, and I think that principle is sound. As much as I admire both, I think in this case Stevens and Ginsburg used a tough case to make bad law.

Republican Governance: Tragedy and Farce

[ 0 ] January 19, 2009 |

In fairness, I think the comparison is unfair to Hoover…

Undermining Civil Liberties For A Futile Policy

[ 0 ] January 18, 2009 |

As part of a comprehensive look at the costs of the War On (Some Classes of People Who Use Some) Drugs, Radley Balko notes that it’s where civil liberties go to die:

“The Fourth Amendment has been virtually repealed by court decisions,” Yale law professor Steven Duke told Wired magazine in 2000, “most of which involve drug searches.”

The rise of the aforementioned no-knock raid is one example, as is the almost comically comprehensive list of reasons for which you can be legally detained and invasively searched for drugs at an airport. In many areas of the country, police are conducting “administrative searches” at bars and clubs, in which an obvious search for criminality is cloaked in the guise of a regulatory inspection, obviating the need for a search warrant.

But the drug war has undermined the rule of law in other ways than its evisceration of the Fourth Amendment. Take the bizarre concept of asset forfeiture, an attack on both due process and property rights. Under the asset forfeiture laws passed by Congress in the 1980s (then reformed in 2000), property can be found guilty of a drug crime. The mere presence of an illicit substance in your home or car can allow the government to seize your property, sell it, and keep the proceeds. The onus is then on you to prove you obtained your property legally. Even the presence of an illicit drug isn’t always necessary. The government has seized and kept cash from citizens under the absurd argument that merely carrying large amounts of cash is enough to trigger suspicion. If you can’t prove where you got the money, you lose it.

If Fourth Amendment protections were being narrowed in cases where the police were otherwise unable to solve violent crimes, this would at least poses difficult questions. But this hasn’t been the case; the professionalization of police forces required by the Warren Court hasn’t — despite many hysterical predictions — substantially undermined the ability of police forces to fight violent crime. Rather, the worst watering down of the Fourth Amendment has generally come in cases where the effect of violations of constitutional liberties have the effect of Person Y selling drugs rather than Person X selling drugs. This isn’t even remotely defensible.

Taibbi on Friedman II 1/2: The Smell Of Fear

[ 0 ] January 17, 2009 |

OK, I wish he hadn’t opened with a but-John-Edwards-lives-in-a-big-house fallacy, but you’re looking for the quality of the venom rather than the quality of the ideas, and once again Taibbi delivers:

But whatever, let’s concede the point, forget about the crazy metaphors for a moment, and look at the actual content of Hot, Flat and Crowded. Many people have rightly seen this new greenish pseudo-progressive tract as an ideological departure from Friedman’s previous works, which were all virtually identical exercises in bald greed-worship and capitalist tent-pitching. Approach-and-rhetoric wise, however, it’s the same old Friedman, a tireless social scientist whose research methods mainly include lunching, reading road signs, and watching people board airplanes.

Like The World is Flat, a book borne of Friedman’s stirring experience of seeing IBM sign in the distance while golfing in Bangalore, Hot,Flat and Crowded is a book whose great insights come when Friedman golfs (on global warming allowing him more winter golf days:“I will still take advantage of it—but I no longer think of it as something I got for free”), looks at Burger King signs (upon seeing a “nightmarish neon blur” of KFC, BK and McDonald’s signs in Texas, he realizes: “We’re on a fool’s errand”), and reads bumper stickers (the “Osama Loves your SUV” sticker he read turns into the thesis of his “Fill ‘er up with Dictators” chapter). This is Friedman’s life: He flies around the world, eats pricey lunches with other rich people and draws conclusions about the future of humanity by looking out his hotel window and counting the Applebee’s signs.

And it gets better, especially with regards to Taibbi’s Friedmanesque contributions to social science. (See the previous iteration here.)


[ 0 ] January 17, 2009 |

Sad, and yet true:

Thinking back to George W. Bush’s farewell address it’s striking that the best thing the man can say about his record in office is that only once during his term in office were 3,000 people killed by foreign terrorists. And it’s really striking that other people in the conservative movement seem to take this “accomplishment” very seriously.

The man did warn us about the soft bigotry of low expectations…

Taking The Whaaaaambulance To Court

[ 0 ] January 15, 2009 |

Speaking of Supreme Court qualifications, I would definitely support trying to find justices who don’t cry like an especially immature four-year-old who just dropped their lolly in the sandbox just because some people voted against his confirmation. Admittedly, this may mean a pretty small pool of wealthy conservative Republican white men, seeing’s how they’re the self-described Most Oppressed People on Earth, but I’m prepared to make that non-sacrifice. (HT: Atrios)

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