Tag Archives: alito

Greenwald on Alito

Posted on by

Glenn Greenwald criticizes Alito’s conduct:

The Justices are seated at the very front of the chamber, and it was predictable in the extreme that the cameras would focus on them as Obama condemned their ruling. Seriously: what kind of an adult is incapable of restraining himself from visible gestures and verbal outbursts in the middle of someone’s speech, no matter how strongly one disagrees — let alone a robe-wearing Supreme Court Justice sitting in the U.S. Congress in the middle of a President’s State of the Union address? Recall all of the lip-pursed worrying from The New Republic‘s Jeffrey Rosen and his secret, nameless friends over the so-called “judicial temperament” of Sonia Sotomayor. Alito’s conduct is the precise antithesis of what “judicial temperament” is supposed to produce.

Obama and Alito

Posted on by

I’m glad Obama criticized the Supreme Court’s campaign finance decision in his State of the Union address last night. It was great political theater — Roberts, Kennedy and Alito sitting there stonefaced as everyone around them stood up and applauded the criticism. Um, awkward.

In response to one of Obama’s criticisms, Alito mouthed, “No way. Not true.” He probably didn’t realize the camera was on him — I doubt he would have muttered openly to himself otherwise.

(Oh, and Ruth Bader Ginsburg looked like she was asleep during half the speech.)

Now, I’ve read a couple of random blog comments from people who say it was “classless” for Obama to criticize the Supreme Court to their faces, or something like that. But that’s nonsense. It was perfectly appropriate for Obama to criticize a judgment of the Court. Despite the robes, Supreme Court justices are not gods; they’re a branch of the federal government, like Congress. If the President can criticize Congress, he can criticize a Supreme Court decision.

I really like this take on the matter and wish I had written it:

The Supremes are used to wafting into the House in their black robes, sitting dispassionately through the speech and wafting ethereally out again on a cloud of apolitical rectitude. It’s like they forget they’re there because they’re one of the three branches. And I truly don’t think it ever occured to them that crassly injecting themselves into the sordid partisan fray of what they like to call “the political branches” with that catastrophic decision would cause the President to treat them like people who’d injected themselves into the sordid partisan fray. (And why should they? After all, they got away with Bush v. Gore with barely a dent in their credibility). I even thought I detected a bit of “told you” coming from the four in the minority.

Prop 8 Trial Continues

Posted on by

During the Prop 8 trial, I’ve been following the Prop 8 Trial Tracker blog created by the Courage Campaign. It seems like our side has been putting on a great case, and the Prop 8 folks have been putting on a pretty lackluster case.

Of course, none of this really matters, because even if Judge Walker rules in our favor, and even if the Ninth Circuit upholds that decision, this will eventually wind up in the U.S. Supreme Court, where Justice Kennedy will be the deciding vote. No matter how rational our side’s arguments are, we’ll never get the votes of Roberts, Scalia, Thomas or Alito.

It’s really unclear what side Kennedy would be on. He’s written a couple of seminal pro-gay decisions — Romer and Lawrence. But what would he think about the validity of marriage equality?

No matter what happens in the Supreme Court, though, this trial has been a net plus. While I don’t know how much publicity the trial has had since the first week, it can only change people’s minds in favor of equality. I seriously doubt it would turn anyone againstmarriage equality who wasn’t already opposed.

Even if we lose in the Supreme Court, that’s not so bad. The Court wouldn’t outlaw marriage equality; it would just leave everything up to the states, which is where we are now. And any state-based marriage case that involved the interpretation of a state’s constitution would be unaffected, because the U.S. Supreme Court has no legal say over how to interpret a state constitution.

There are some who say that an adverse decision in the Supreme Court would set back the cause of equality, but that’s not necessarily so. As last week’s campaign finance case shows, the Court has no compunction about overturning its own precedents, even if those precedents are less than ten years old.

So I think that whatever happens, this trial has been a net win.

There’s a Martin Luther King quote that Obama has often used in the last couple of years:

The arc of history is long… but it bends towards justice.

In the long run, we’re moving toward equality.

SCOTUS: No Cameras in Prop 8 Trial

Posted on by

“Irreparable harm.”

Nobody expected the U.S. Supreme Court to get involved in the Prop 8 case so soon, but a couple of hours ago, the Court issued an order preventing the broadcast of the Prop 8 trial to five federal courthouses across the country after being asked to do so a few days ago by the pro-Prop 8 lawyers. The order doesn’t address whether the trial can be broadcast on the internet, because that issue is still being worked out at the lower level (“the technical staff encountered some unexpected difficulties preparing a satisfactory video suitable for on-line posting”).

This whole case has so many people on edge — me included — that anything the Supreme Court says about it, even on a supposedly tangential issue like cameras in the courtroom, is being given talmudic scrutiny.

What worries me is the makeup of the justices in this decision. It just so happens that the five justices who voted to bar cameras in this case — and therefore agreed with the pro-Prop 8 lawyers — are Roberts, Scalia, Thomas, Alito, and Kennedy, and that the four justices who dissented are Stevens, Ginsburg, Breyer, and Sotomayor. This is exactly the lineup a decision on the merits could have, with the possible exception of Kennedy.

The thing is, I tend to agree more with the majority here, that the lower court probably didn’t follow proper procedure in allowing cameras in this case. But I could be persuaded that the minority is right as well. This really isn’t an emotionally charged issue — except for the fact that it happens to involve a trial about Prop 8.

And the fact that the trial is about Prop 8 is relevant. The majority opinion, which is unsigned, isn’t just about proper procedure; it also endorses the claims raised by the pro-Prop 8 lawyers that some pro-Prop 8 people have been harrassed, even physically, and says that there could be “irreparable harm” in letting cameras in.

Never mind the fact that we’re not even talking about broadcasting the trial on the internet — we’re just talking about broadcasting the trial in five federal courthouses.

So, is this an attempt to paint pro-gay-rights people as crazy harrassers? What about the people who get gay bashed? What about kids who get driven to suicide because their classmates taunt them for being gay or even just for being effeminate? Granted, the anti-Prop-8 people apparently didn’t bring that up in their arguments. But in citing “irreparable harm,” the majority opinion seems a little too sympathetic to the anti-gay side here. And again, that worries me.

So “irreparable harm” rears its ugly head again. It’s a valid legal concept, and there’s nothing inherently wrong with it. But I can’t help but remember that it came up in Bush v. Gore, too. There, Justice Scalia said — in an example of great chutzpah: “The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”

I really hope this procedural order isn’t a portent of how the case turns out.

New Yorker on Marriage Equality Lawsuit

Posted on by

The New Yorker has a terrific article by Margaret Talbot on the marriage equality case, Perry v. Schwarzenegger, that began yesterday in San Francisco. It has pretty much everything you need to know about the case from soup to nuts.

I have to admit that while I was very leery of this lawsuit and thought it was a terrible idea, the more I read and think about it the more excited I am. It feels good to be going on the offensive. Ted Olson may be a Dark Lord, but in this case he’s our Dark Lord. By which I mean that he’s a top-notch lawyer, and it’s great that he’s finally using his powers for good. If there’s going to be a marriage equality case before the Supreme Court, we couldn’t have stronger legal representation.

And yes, it’s possible that the case will wind up in the Supreme Court and that we will lose. On our side: Ginsburg, Breyer, hopefully Sotomayor, and hopefully whoever replaces Stevens after he likely retires this summer. On the other side: Scalia, Thomas, Roberts, Alito. In the middle: Anthony Kennedy, who wrote Romer and Lawrence and therefore would seem to be on our side, but you never know, especially since it would be a really big deal for the Court to overturn the laws of 39 states. Some say that if we lose, it will set gay rights back for years. On the other hand, what do we really have to lose? And if not now, when? Roberts, Alito and Thomas are all young, and Scalia could be on the Court for another 10-15 years. The makeup of the Court isn’t going to change in our favor anytime soon.

More importantly, this case is a great teaching moment. From the list of witnesses that Ted Olson and David Boies have put together, it looks like the case will touch on everything from marriage to discrimination to child-rearing to children’s education to so-called “conversion therapy.” Despite the ballot initiatives and the state legislatures that keep going against us, the more we discuss marriage equality, the more the public gets on our side.

On the other hand, if the Supreme Court rules in our favor, it could give fuel to the movement to pass the Federal Marriage Amendment. But you know what? I can’t see 67 U.S. senators voting to enshrine discrimination in the Constitution. And I’m tired of worrying about what our opponents are going to do if we fight for our rights. We’ve been timid for too long. What happens, happens.

Interestingly, there’s another federal marriage equality case going on right now, Gill v. Office of Personnel Management, which seeks not to overturn state laws against marriage equality but rather to overturn part of the Defense of Marriage Act. Gill seeks to force the federal government to recognize same-sex marriages that were validly performed in a state that recognizes them. Normally, if, say, Massachusetts allows a marriage to take place, the federal government doesn’t second-guess Massachusetts and refuse to recognize that marriage. Why should it be any different in the case of same-sex couples? This is what the Gill plaintiffs argue, and in a sense it’s a more palatable case, because it seeks not to overturn state laws but rather to strengthen them. It’s not clear which case will get to the Supreme Court first, Gill or Perry.

In the meantime — still waiting for Obama to stop discharging U.S. soldiers for being gay, and for Congress to repeal Don’t Ask, Don’t Tell.

Damn, I’m tired of waiting.

Justice Stevens

Posted on by

So, it looks like Justice Stevens might be retiring next spring, or so say the Supreme Court kremlinologists. Justices usually hire clerks a year in advance, and Stevens has hired just one for the 2010-11 term instead of the usual four. The man’s going to be 90 years old in April, so it wouldn’t necessarily be surprising. But I thought he was going to stick around until death, and he apparently still plays tennis regularly. Anyway, retirement announcements don’t usually come until the spring, so we won’t know for a while.

If Stevens announces retirement effective at the beginning of the summer recess, like Souter did, that would peg his retirement at about 300 days from now, and he might just miss surpassing Justice Field as the second-longest-serving justice. If he announces a retirement upon the swearing-in of his successor, like O’Connor did, then that would be a couple of months longer (or even more, if we get a Roberts–>Miers–>Alito situation, like we did four years ago), and in that case he would definitely surpass Field, leaving him second only to William O. Douglas in longevity — who happens to be the man Stevens replaced on the bench in 1975.

Think about that. If Stevens retires next spring, then only two justices will have held that particular Supreme Court seat since 1939. And who held it before Douglas? Louis Brandeis! That’s how long it’s been.

Judicial Liberalism Not Happening

Posted on by

If you believe in judicial liberalism — which I sometimes do and, to be honest, sometimes don’t — the current direction of the Court is a little depressing. Tom Goldstein, Supreme Court analyst extraordinaire, points out that the conservatives on the Court are free to move at a measured pace in overturning liberal precedents, at least for a while:

For the moment, there is no reason to rush. Time permits a jurisprudence of not just originalism, or textualism, but actuarialism. The sand running through this hourglass will not expire for eight years.

Later in his term, President Obama will likely replace Justice Stevens with someone else on the left. If he is reelected in 2012, he will replace Justice Ginsburg with someone on the left. Nothing changes.

It isn’t until the election of 2016 at the earliest that there is a real prospect for a significant shift to the left in the Court’s ideology. Actuarially, that election is likely to decide which President appoints the successors to Justices Scalia and Kennedy (both on the right, and both 73 now) and Justice Breyer (on the left, and 70 now). Absent an unfortunate turn of health, between now and the summer of 2017 there is no realistic prospect that the Court will turn back to the left. Over the course of that eight years, it is possible to take enough measured steps to the right to walk a marathon. Again, no need to rush.

Unless something happens to Scalia, Thomas, Roberts, Alito, or Kennedy in the next few years, the Court is on a slow rightward trajectory.

On the issue dearest to my heart — gay rights — it probably doesn’t mean much. Kennedy has been pretty pro-gay (Romer, Lawrence), but I don’t expect the Court to take up same-sex marriage for a while. It didn’t overturn the nation’s sodomy laws until only 13 states were left with such laws; the Court is too cautious to constitutionalize same-sex marriage rights at this point, when only six states allow such marriage.

What else could the Court tackle? Don’t Ask/Don’t Tell will be history in the next few years — I’m pretty sure Obama will get around to it after health care and energy are taken care of. DOMA (full faith and credit clause) is a possibility — which would be a sidelong way to rule on same-sex marriage. But I don’t think the Court will touch that right now. Again, the issue is just too volatile, and the Court generally knows when to stay out of things. (It has learned from abortion; would Roe v. Wade come out the same way today? Who knows; the opinion would at least be less intrusive if it were written today.)

Of course, I could be wrong. Issues have a way of showing up on the Court’s docket unexpectedly, especially since it only takes four Justices to vote to hear a case.

But for now, things seem to be in stasis, at least where gay rights are concerned. As for everything else — drifting right.

Kristol Begins

Posted on by

Bill Kristol’s first column for the New York Times — which runs in tomorrow’s paper — shows that he at least has a sense of humor.

We don’t want to increase the scope of the nanny state, we don’t want to undo the good done by the appointments of John Roberts and Samuel Alito to the Supreme Court, and we really don’t want to snatch defeat out of the jaws of victory in Iraq.

Oh. You mean he was being serious?

[Mike Huckabee] began by calmly mentioning his and Obama’s contrasting views on issues from guns to life to same-sex marriage. This served to remind Republicans that these contrasts have been central to G.O.P. success over the last quarter-century, and to suggest that Huckabee could credibly and comfortably make the socially conservative case in an electorally advantageous way.

So Kristol advocates running on the wedge issues. Not only is he ideologically blinkered — he also supports cynical politics. Does he have any redeeming qualities as a thinker?

Concurrence Hell

Posted on by

I enjoy reading the little paragraph at the end of a Supreme Court decision syllabus summarizing who voted with whom. They tell you how complicated any particular court decision is.

Here are some examples, from simplest to most complicated.

First, there’s the per curiam opinion, which is unsigned, and therefore needs no summary at the bottom of the syllabus telling who voted with whom:

There’s the unanimous opinion:

SOUTER, J., delivered the opinion for a unanimous Court.

Then there’s the case with a lone dissenter or concurrer:

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion.

There’s the case with a few dissenters signing one opinion:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

There’s the case with a partial concurrence or dissent:

SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined, except as to Part IV.

There’s the case with both a concurrence and a dissent:

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, SOUTER, THOMAS, GINSBURG, and ALITO, JJ., joined. KENNEDY, J., filed a concurring opinion, in which ALITO, J., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, J., joined.

There’s the case with multiple concurrences and/or dissents:

ALITO, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and KENNEDY, J., joined. KENNEDY, J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined.

There’s the case where it gets a little more complicated:

SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined, and in which STEVENS and GINSBURG, JJ., joined as to Part III. THOMAS, J., filed a concurring opinion, in which SCALIA, J., joined. GINSBURG, J., filed an opinion concurring in part and dissenting in part, in which STEVENS, J., joined.

Or even more complicated:

ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III–A, and III–C, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined, and an opinion with respect to Parts III–B and IV, in which SCALIA, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

But I think my favorite is this one, from a 2003 campaign finance decision (which, incidentally, was gutted last week):

STEVENS and O’CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O’CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA §305, and in which THOMAS, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O’CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion SCALIA, J., joined as to Parts I, II—A, and II—B. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which REHNQUIST, C. J., joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which THOMAS, J., joined with respect to BCRA §213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA §305, in which GINSBURG and BREYER, JJ., joined.

So much for judges being mere umpires!

Supreme Court Struggle

Posted on by

If the Tony Awards are the gay Superbowl, then the last week in June is the Superbowl for law geeks. The last week in June is the final week of the Supreme Court’s term, the week when the Court usually issues its rulings on the toughest or most controversial issues on the year’s docket. These often result in the most complicated lineups, with pluralities, or splintered majorities, or numerous concurrences and dissents, which is why it takes so long to get the opinions issued. (Conveniently, this timing also gives the Justices an excuse to get the heck out of Dodge right after they rile up millions of people.)

There’s been a lot of anguish among liberals about Monday’s three 5-4 decisions that could be construed as leading to “conservative” results: Morse v. Frederick, in which the Court found it constitutional for a principal to punish a student for unfurling a banner that said “Bong Hits 4 Jesus” at a school-sponsored event; Federal Election Commission v. Wisconsin Right to Life, in which the Court essentially said that corporations and organizations have the presumption of freedom to endorse candidates by flooding the election system with their money; and Hein v. Freedom From Religion Foundation, Inc., in which the Court said that taxpayers do not have standing to challenge the White House Office of Faith-Based Initiatives merely because they are taxpayers. Additionally, tomorrow morning at 10 a.m., the Court will probably gut affirmative action laws in two school segregation decisions by a 5-4 vote.

None of this should be surprising. As the Washington Post’s Andrew Cohen wrote today:

Justice Samuel Alito is more conservative than was his predecessor, Sandra Day O’Connor? Go figure. Chief Justice John G. Roberts Jr. is a lot less beholden to court precedent than we were all led to believe? Can’t be. He told the Senate Judiciary Committee over and over again during his confirmation hearing that he would respect precedent and try to build consensus on the court. Justice Anthony Kennedy isn’t the second coming of the moderate O’Connor or the more liberal Souter? What a surprise! The election of 2004 (and 2000) mattered in shaping the court? Who knew?

However – and this is where my post take a 90-degree turn:

I don’t think the conservative justices are demons. (Not all of them, anyway.)

Because the thing is – law is hard. If these were easy decisions, they wouldn’t need to be decided by the Supreme Court.

Okay, not totally true – there are plenty of 9-0 decisions each term. But there are always a bunch of 5-4 decisions as well, and even 6-3 decisions.

Granted, not every 5-4 decision is hard. For example, Bush v. Gore was easy as pie but five justices blatantly and deliberately misread the law.

But they’re usually hard.

There are many times when I read (or read about) a Supreme Court decision and feel angry or annoyed at the result, and I think to myself, “Damn that Justice X!” or “Damn that Justice Y!” And yet… sometimes, underneath my anger and certitude, I find myself uneasy. Because even if I’m angry at the result, I’ll think to myself, actually… those justices do have a point. Or at the least they have a good argument.

I’m not too angry at the student speech decision – the majority made clear that it’s a narrow decision. (It was only Thomas, in his lone concurrence, who wrote that students should have no free speech rights at all, not even as to political speech.)

As for the decision about the Office of Faith-Based Initiatives, it wasn’t really a case about the separation of church and state; it was a case about standing. (This sums it up well enough.) Is the commingling of church and state an issue that’s so crucial that it should trump the usual rules of standing? You can argue no, because isn’t the Court only supposed to rule on actual controversies between aggrieved parties? You can argue yes, because if there’s no standing here, than where are we supposed to turn when the government violates the First Amendment? (Arguably, a secular institution could apply for Faith-Based Office funding and then sue when it’s denied that funding.)

Then there’s the campaign finance decision. On the one hand, shouldn’t Congress be allowed to make laws that try to fix our screwed-up campaign finance system? On the other hand, under the First Amendment right to free speech, shouldn’t an organization have the right to spend money on ads to take positions on the issues of the day, even if those ads happen to mention political candidates? Aren’t organizations allowed to campaign in favor of candidates?

I don’t really know where I stand with regard to many Court decisions. It doesn’t really matter what I think – I’m not a Supreme Court justice, I don’t have to make the decisions. But for my own benefit, for the sake of my own intellectual integrity, I sometimes struggle with these matters. (And heck – I just find it interesting.)

The fact is, I think I agree with the so-called “conservatives” more often than I’d like to. Not all the time – but more than I’d like to. And that bothers me.

The fact is, these are hard decisions. (Say it again: “Law is hard!”) They’re not cut and dried. The law does not exist in a vacuum; there is a tension between the law’s crisp, satisfying logic and the injustice it can wreak on actual human beings.

The problem, as Dahlia Lithwick pointed out today, is that the majority on the Roberts Court – and particularly the newcomers Roberts and Alito – just seem “mean.” But it’s not really that they’re mean; it’s that they seem to lack humanity.

We’re looking for some sort of acknowledgement from the majority that these are hard decisions, not cut and dried; that the law does not exist in a vacuum; that there is a tension between the law’s crisp, satisfying logic and the injustice it can wreak on actual human beings.

The justices avoid any mention of humanity because they’re afraid to admit to us that they themselves are human. That’s why they wear black robes – to create the illusion that they’re high priests with exclusive access to the knowledge of What the Law Is. They fear that if they admit that these are hard questions, they might lose legitimacy in the eyes of the American people.

But they would appear more legitimate to us if they openly struggled with these issues. They would appear more legitimate if they acknowledged the truth – that the world exists in shades of gray.

Oh, For a Helicopter

Posted on by

New Jersey’s two Democratic senators, Frank Lautenberg and Bob Menendez – the latter of whom is in a tight race against Republican Tom Kean, Jr. – both voted for the president’s awful torture/enemy combatant/habeas-corpus-stripping bill yesterday.

If I were still a New Jersey resident, I would consider not even voting for U.S. Senate this year. If Democrats can’t stand up for themselves, they don’t deserve to control either house of Congress.

Except.

Except that Glenn Greenwald makes an excellent point.

But a desire to see the Democrats take over Congress — even a strong desire for that outcome and willingness to work for it — does not have to be, and at least for me is not, driven by a belief that Washington Democrats are commendable or praiseworthy and deserve to be put into power. Instead, a Democratic victory is an instrument — an indispensable weapon — in battling the growing excesses and profound abuses and indescribably destructive behavior of the Bush administration and their increasingly authoritarian followers. A Democratic victory does not have to be seen as being anything more than that in order to realize how critically important it is.

A desire for a Democratic victory is, at least for me, about the fact that this country simply cannot endure two more years of a Bush administration which is free to operate with even fewer constraints than before, including the fact that George Bush and Dick Cheney will never face even another midterm election ever again. They will be free to run wild for the next two years with a Congress that is so submissive and blindly loyal that it is genuinely creepy to behold.

Greenwald also makes the point that Supreme Court Justice John Paul Stevens is 86 years old, so Bush might get another court appointment in the next two years. If the Republicans keep the Senate and Stevens dies or becomes incapacitated, then Bush can get nominate whomever he wants in his place, meaning that “the Supreme Court will be composed of a very young five-Justice majority of absolute worshippers of Executive Power — Thomas, Scalia, Roberts, Alito and New Justice — which will control the Court and endorse unlimited executive abuses for decades to come.”

Or, as she puts it:

Imagine you are stranded on your roof in rising floodwaters. Sooner or later you’re going to drown if you aren’t rescued. Yet you refuse to be rescued in an old rowboat because it might be leaky and you are waiting for a helicopter.

Well, folks, the Dems are the rowboat, and there ain’t gonna be a helicopter.

Sigh.

Tomorrow’s Front Page

Posted on by

Jeez – tomorrow’s newspaper front pages are going to be crowded: Coretta Scott King died, Samuel Alito was sworn in, Alan Greenspan stepped down, and Bush will have given his SOTU speech. And the Oscars were announced, although that’s not necessarily front-page news, depending on the paper.

Spineless Democrats

Posted on by

Yes, and yes.

I love the first link. Read the whole thing. Here are the first few paragraphs.

Effective immediately, the Democrats will be known as the lyin’-ass boyfriend party – the perfect date for progressive voters looking to be stood up, bullshitted blind, or left holding the tab.

For five years now it’s been “Please baby, baby, baby, please! I’m sorry I was a no-show last time, but hey, that was because I was working overtime to save up to do something extra special for next time, which is the really big event – right, baby?”

Last April, when the Democrats backed away from filibustering extremist appeals court nominees, it was, “Don’t you fret, baby. We’re not going to go to the mat over small fry like Owen, Pryor, and Brown because we’re saving the filibuster for the big one – you know, the Supreme Court, baby.” Months later, Democrats folded rather than fight John Roberts, the young-ish yes man with a penchant for executive privilege and a wife who used to head an anti-choice organization. After all, they said, they needed to save their energy, and the filibuster, for the next Supreme Court nominee, who would undoubtedly be worse.

Well, baby, the moment of truth has arrived. It’s Alito-time, and the lyin’-ass boyfriends are backpedaling again. Why aren’t they going to raise a ruckus this time? Aw, baby… the filibuster is just so darned hard to use with only 45 senators! And what’s the point of trying to do anything until we’ve recaptured the Senate or the White House?

I have terrible news for the Democrats: being the minority party is not their real problem.

As I said: continue reading.

Idiot Reid

Posted on by

From the Boston Globe:

Senator Harry Reid, Democrat of Nevada and the minority leader, insisted that Democrats are still considering a filibuster, though other senators and top aides say it is extremely unlikely that the party will use the parliamentary maneuver to block Alito. Reid said he would not pressure fellow party members, but he predicted that most Democrats will vote no. Reid said Bush should treat it as a warning to find consensus candidates — and preferably women — for any future picks.

“I think it sends a message to the American people that this guy is not King George, he’s President George,” Reid said.

Excellent. No filibuster, but hey, at least we’ll ineffectually vote no! And yeah, Bush should totally treat this as a warning to find consensus candidates, otherwise the Democrats might ineffectually vote no again. Stop, or I’ll say “stop” again! Idiots. Complete idiots.

You want to “send a message” to the American people, write a letter. You really want to send a message to the American people, stop being spineless wimps.

I’m so fucking fed up with the Democrats.

The Basic Case Against Alito

Posted on by

The Basic Case Against Alito.

By all accounts he is a low-key, pleasant man who respects disagreement and does not insult his colleagues on the bench. He is a cautious craftsman who takes small discrete steps towards his objectives rather than daring leaps. Where the law is hard and clear, he does not defy it or try to amend it judicially – though of course as a Supreme Court justice he will have scope to modify even well-settled law.

But wherever there is running room – opened up by gaps in application, conflicts in precedents, ambiguities in statutes – Alito is an activist who works steadily to push the law well beyond conventional boundaries of precedent.

The article delves into the issue of Alito’s views on executive power. Indeed, that issue seems to be a big one in the Alito hearings. But while Alito would likely be on the Court for at least 25 years, Bush has only three years left in office; today’s current events will eventually fade away. Or will they? Until recently, abuse of executive power hadn’t been a big issue since the Nixon years. It could be that the issue is just inherent in Bush’s and Cheney’s style of management and will disappear when the next president (either Democrat or Republican) comes to power with his or her own people and governing philosophy. On the other hand, fear of terrorism is probably going to be with us for a long time, even after Bush leaves office, and the presidency changes people. So executive power could continue to be a big issue from now on. It bears looking at – along with all the other issues, of course.

Alito and Crosswords

Posted on by

Alito will be great – for crosswords:

I mean, “Alito”? It’s a fantastic name for crosswords — a mere five letters long but brimming with regularly used consonants and vowels (and how generously alternating they are!). Alito, if confirmed, might find himself as the next Eero Saarinen (for years, the hottest architect on the crossword scene) or the next Ernie Els (the hottest crossword golfer, although Michelle Wie is creeping up on him).

Of course, cruciverbally speaking, everything would also have been just fine with a Miers appointment. Except that Miers, one could argue, was an even better find than Alito. Her last name, too, offers a compact, easy-to-intersect set of letters that would work well in crosswords, but the variant spelling of her middle name, Ellan, makes her the double threat that Alito is not.