Jon Stewart’s Daily Show did a segment last night on a 60 Minutes interview with U.S. Supreme Court Justice Antonin Scalia.

I went back to watch the full 2-part profile by Lesley Stahl and found it to be an outstanding piece of television journalism.

Stewart made fun of Scalia on two points. Read the rest of this entry »

The New York Times reports the 6-3 decision to this controversial issue. As I understand it those who presume to represent the disadvantaged have resisted Voter Identification because they consider it an unreasonable barrier to voting access. Those supporting Voter ID maintain that in these modern times a requirement to have a photo ID is not unreasonable or unusual. Between the lines is the issue that the disadvantaged tend to vote Democratic. I tend to favor Democrats at this time but I agree with the ruling.

It seems to me that both parties might consider this a new opportunity to reach out to these disadvantaged folks and build goodwill by offering them help in getting not only the proper ID but rides to the Polling places and assistance for other necessary services.

Wouldn’t it be novel for these unfortunate folks to have the political parties competing for their hearts and minds.

There is an old saying that Americans have to live with the decisions of the Supreme Court for the rest of their lives and then some, but that takes on a perverse new meaning for those who are maimed or their lives cut short by shoddily researched and falsely advertised medications that are inadequately vetted by the Food and Drug Administration and let slide by President Bush’s activist Supreme Court.

It is deeply troubling that it is likely that the top court will soon rule the FDA — which has been co-opted by Big Pharma and politicized by the White House to a shocking extent — is the only agency with enough expertise to regulate drug makers and that its decisions should not be second-guessed by the courts.

A blood pressure medication and a cancer drug that is effective in controlling rheumatoid arthritis are coursing through my body as I write this. All have been long proven to be effective, have few side effects of consequence and are reasonably inexpensive when purchased in bulk through my employer’s prescription drug plan.

So I come not to knock all drug makers and all drugs, but to point out that some people have not been so lucky as myself because of an unfortunate confluence of events: Big Pharma’s capacity to be deceitful, its lust for profitable new drugs as opposed to new drugs that may be profitable, and an FDA that has proven time and again in the Age of Bush that it can be co-opted.

The New York Times, in a story that anticipates the Supreme Court ruling, cites the collusion between Johnson & Johnson and the FDA over a life-threatening problem with its once popular Ortho Evra birth control patch.

It turns out that Ortho Evra delivered much more estrogen than standard birth control pills, potentially increasing the risk of blood clots and strokes, according to the company’s own internal documents.

But because the FDA approved the patch, Johnson & Johnson is arguing in court that it cannot be sued by women or their families who claim that they were injured or killed by the product — even though its old label inaccurately described the amount of estrogen it released.

Read the rest of this entry »

In a huge victory for environmentalists and my fellow First State citizens, Delaware won an historic Supreme Court fight with New Jersey today, probably killing a proposed nearly half-mile-long liquefied natural gas terminal on the New Jersey side of the Delaware River.

The justices, in a surprising 6-2 decision, said Delaware can block the project even though it was proposed by energy giant BP for the other side of the river.

Associates of mine who had attended oral arguments on the case said that a majority of justices, as has been the high court’s wont in recent decisions, seemed to be leaning toward the pro-business arguments proffered by New Jersey.

Delaware, which owns the river bottom most of the way across the waterway, including the land on which a 2,200-foot-long pier would be built, sought to block the massive project because of safety concerns.

The terminal also was a violation of Delaware’s pioneering Coastal Zone Act, which bans new heavy industry along the river.

Both states agreed that Delaware owns the land, but New Jersey argued that a century-old agreement allows each state to control piers on its side of the river.

Justice Ruth Bader Ginsburg, writing for the majority, said Delaware cannot block ordinary projects from going forward. The proposal at issue, however, “goes well beyond the ordinary or usual,” she said.
Read the rest of this entry »

Harvey and Harriet Cedars are not just the breadwinners in a typical conservative Christian Republican family. They’re hard working middle-class folk who have been going through some very difficult times but were confident that their president, his government and the Supreme Court that he has molded over the last seven years were on their side, which is to say God’s side. This has been good enough for the Cedars because they knew that God was on their side — their God anyway.

Then things got all crazy this week.

Times had started getting tough for the Cedars right after George Bush’s second inauguration. In fact, the family was heading back home to Louisiana in Grandpa Cedars’ Winnebago after watching the president being sworn in when Grandpa complained of chest pains. He was diagnosed with a severe heart condition and treatment was going to be expensive, but the government would chip in for some of his care and Harvey and Harriet were making decent money. They had okay health-care benefits for themselves and the kids even if they worked a combined 100 hours a week to pay the bills.

Besides which, the pacemaker that Grandpa Cedars got is just like Dick Cheney’s, so Harvey and Harriet were sure that he’d be okay.

Then eldest son Chip’s National Guard unit was sent to Iraq. Not once but twice. Harvey was laid off from his job as a manager at the local textile plant, which was relocating to India, and the Cedars fell behind on the subprime mortgage on their house. Harvey got a part-time job at McDonalds to help make ends meet, but then Harriet lost her job as the accountant at the local savings and loan, which went bankrupt. Their health benefits went kaplooey and Harriet had to endure the shame of taking Melody to the emergency room after she developed a funny rash on her . . . uh, privates.

All of a sudden prayer and being proud conservative Republican Americans didn’t seem to be enough, but the Cedars are good Christian soldiers and onward they went even though their house was about to be foreclosed, they were defaulting on the loans on their SUVs (which were costing them 120 bucks worth of gasoline each week), Melody was staying out overnight without their permission, and Chip was cowering in his bedroom suffering from violent nightmares in which he killed Iraqis. He refused to take his PTSD medication.

Then the preacher at their local church absconded with the new pipe organ fund and ran off to Las Vegas with Melody. Grandpa got sick from whatever was in the walls of the FEMA trailer that he had to move into after Hurricane Katrina destroyed his Winnebago and now has to move out of. Then his pacemaker went haywire. He nearly died before it could be replaced because the local hospital had been bought-out by a big national company that soon closed it because its stock price was tanking. This meant that Harvey and Harriet had to drive Grandpa nearly 50 miles to New Orleans.

The Cedars had no choice. Prayer was not enough to pay the bills. They hired a lawyer to sue the maker of Grandpa’s pacemaker in state court. Fact of the matter was, they desperately needed money.

This week got off to a troubling start when Harriet finally found a new job after looking for months. It was at the Super Duper Mart stocking shelves with Mexicans on the night shift.

You can imagine their shock when the Supreme Court, the one with those fine men Alito, Roberts and Scalia, not to mention that Thomas fellow even if he is a Negro, ruled on Wednesday that Grandpa had no right to sue because the manufacturer of his Dick Cheney model pacemaker had the approval of the Food and Drug Administration and state courts had no say in the matter.

The coup de grâce (which the Cedars think is a Mexican expression) is that after the president, government and court betrayed them, their own Republican Party is casting Mike Huckabee out of the electoral temple.

Hillary Clinton’s health-care plan looks awfully good all of a sudden, but the Cedars believe that a woman’s place is not in the White House, and while they don’t consider themselves to be racists, well Barack Obama is . . . from Hawaii.

The Cedars could never vote for John McCain because James Dobson, whose voice of reason on the radio is such a comforting port in their storm these days, says McCain is a dirty rotten turncoat.

But if McCain is a turncoat, who can the Cedars turn to? What’s a good conservative Christian family to do?

“Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one’s taxes.” – LEARNED HAND

Billings Learned Hand is probably the most influential American judge you never heard of.

Hand served for many years as chief judge of and the intellectual engine for the U.S. Court of Appeals for the Second District in Manhattan. A philosophical pragmatist, his landmark rulings on free speech, tax law and economics are widely considered to be among the formative statements of contract and tort law.

Born in Albany, New York, 136 years ago today, Hand studied philosophy at Harvard College under William James and George Santayana, among other gurus, before receiving a degree from Harvard Law.

Hand was appointed to the U.S. District Court for the Southern District of New York by President William Howard Taft in 1909 and was promoted to the Second Circuit by President Calvin Coolidge in 1924, where he served for the rest of his life.

His 52 years as a federal judge is a record, and although he never was appointed to the Supreme Court, he is widely considered to have been a greater jurist than all but a few justices.

Please click here to read more at Kiko’s House.

As Democratic candidates make promises to voters about troop withdrawal, George W. Bush is in the Middle East trying to tie the hands of his successor in office.

In November, he joined Prime Minister Nouri al-Maliki in a declaration of principles to negotiate an agreement to guarantee US troop presence for years. It would replace the existing Security Council mandate authorizing multinational forces in Iraq and become a sworn obligation for the next president. Now, Bush announces in Kuwait that they are moving ahead with the plan.

According to Michael Hirsh of Newsweek, “The target date for concluding the agreement is July, says Gen. Doug Lute, Bush’s Iraq coordinator in the White House–in other words, just in time for the Democratic and Republican national conventions.”

The intention is to bypass Congress and commit the next president to Bush’s agenda. “We don’t anticipate now,” Gen. Lute has said, “that these negotiations will lead to the status of a formal treaty which would then bring us to formal negotiations or formal inputs from the Congress.”

Last month, Hillary Clinton urged Bush not to sign any such agreement without congressional approval since it would be difficult if not impossible for a future president to breach. White House silence has been deafening.

Touting the Surge’s success, Bush said this weekend that “long-term success will require active U.S. engagement that outlasts my presidency.”

If the Democratic Congress tries to head him off at the pass with legislation, its legality would be challenged and the Bush years might end where they started–in the Supreme Court.

Cross-posted from my blog.

Reasonable is not a word that most centrists and left-of-center folks would apply to the current Supreme Court.

But today in a racially sensitive 7-2 vote, the justices ruled that judges who disagree with federal sentencing guidelines can impose lighter prison sentences in crack cocaine cases.

The high court overturned a U.S. appeals court ruling in Kimbrough v. U.S. that judges cannot hand down a lighter punishment simply because they disagree with wide disparities for crack and powder cocaine sentences.

Justice Ruth Bader Ginsberg wrote for the majority. Justices Clarence Thomas (natch) and Samuel Alito (I would have guessed Antonin Scalia) dissented.

Blacks account for about 85 percent of the federal crack cocaine convictions. The guidelines call for lighter prison terms for the sale of powder cocaine, a drug more popular with whites and Hispanics.

Lyle Denniston, one of the best high court reporters of our time, summarizes the ruling at SCOTUSBlog:

“The Kimbrough ruling on punishing crack cocaine offenses marks a major shift in the debate that has raged for 21 years over the much more severe sentencing required for those whose crimes involved crack cocaine. The Sentencing Commission for years asked Congress to ease the 100-to-1 ratio, and usually failed, but only recently gained some flexibility to vary the Guideline range outside that ratio. The disparity in punishment has often been challenged as racially oriented, because black offenders more often are involved in possessing or distributing crack than powder. Justice Ginsburg noted that 85 percent of those punished for crack crimes in federal court are black.

“The 100-to-1 ratio is keyed to the quantity of the cocaine involved in the crime. As Justice Ginsburg explained it in practical effect: ‘A dealer in crack cocaine was subject to the same sentence range as a dealer in 100 times more powder cocaine.’ One effect of this, Ginsburg noted, is ‘that a major supplier of powder cocaine may receive a shorter sentence than a low-level dealer who buys powder from the supplier but then converts it to crack.’ The 100-to-1 Guidelines disparity has been somewhat relaxed as of Nov. 1 by the Sentencing Commission. The Commission is now pondering whether to make the reduced range retroactive. The change, allowed by Congress, would generally result in crack sentences between two and five times longer than for equal amounts of powder, rather than 100 times longer. With Monday’s decision, even that reduction is not binding on federal judges.”

In a separate case that involved the drug ecstacy, the court ruled 7-2 (with Thomas and Alito again dissenting) that judges can impose sentences that are more lenient than the recommended federal guidelines.

The minimum-maximum sentencing guidelines were adopted in the mid-1980s to help produce uniform punishments for similar crimes.

“The line-item veto is unconstitutional determined not by John McCain, but by the Supreme Court. And the Supreme Court found that the line-item veto is unconstitutional. If I hadn’t challenged that, I would not have been carrying out my fiduciary duties for the people of New York City. That was money that was illegally deprived to the people of my city. I fought for them.”

So said former New York City mayor Rudy Giuliani in Wednesday night’s Republican presidential debate. Giuliani was responding to a shot fired by Arizona Senator John McCain. McCain was speaking of how readily he would wield a veto pen as President to thwart pork barrel spending, also known by the harmless-sounding euphemism, earmarks.

Said McCain: “…we’ll give the president of the United States a line-item veto, which Rudy Giuliani opposed so that he can protect his $250 million worth of pork.”

McCain was referring to a lawsuit in which Giuliani, as mayor, successfully prevented former President Bill Clinton from exercising an asserted line item veto over federal spending earmarked for projects in New York City. The US Supreme Court ruled Clinton’s assertion unconstitutional, clearing the way for the pork to be sent to New York.

The line item veto, enjoyed by more than thirty US governors, gives chief executives the ability to sign spending bills into law while scratching out specific appropriations they deem exorbitant or unnecessary. Chester Alan Arthur was the first President to support the enactment of such a veto power. Ronald Reagan asked for legislation legitimizing the line item veto.

Giuliani is right in stating that the Supreme Court has ruled the line item veto unconstitutional. No one can dispute that, although McCain did on Wednesday evening. But in stating repeatedly, as he did in both the November 28 and the earlier October 9, debates, that “the line item veto is unconstitutional,” he also sort of avoids the issue. In the two debates, first Governor Romney and then Senator McCain, were challenging Giuliani’s bona fides as a proponent of fiscal responsibility.

Giuliani’s contention that in bringing the suit, he was simply protecting the interests of his city, may have some merit, although it sounds an awful lot like the argument of every sectional and special interest group when it comes to pork barrel spending. Their arguments roughly run like this: “I’m against earmarks, unless they’re earmarks that go to my community or to my preferred class of people.”

But Giuliani appears to want to drape his lawsuit in the wifty legitimacy of constitutionality. It’s a bit of a dodge.

The implicit question in McCain’s and Romney’s shots at him which Giuliani might more profitably address is, “Leaving aside the merits of the $250-million of New York pork, do you believe in a line item veto? Would you support a line item veto, something which even the Republican you and the other candidates for president invoke as the patron saint of your party, Ronald Reagan, supported? Or, was Mr. Reagan wrong?”

I would be interested in how Mr. Giuliani–and all the other candidates for his party’s nomination–would respond to that question. (I’d also like to know how the Democratic candidates stand on the line item veto.)

It was Andrew Jackson who first made energetic use of presidential veto power. He did so to stand up against the interests he thought controlled the Congress. He deemed it a legitimate weapon for the President, who was elected by the whole country, to use in preventing interest groups of various kinds from getting laws passed benefiting the few.

But the presidential veto is usually impotent when it comes to spending measures. Illegitmate pork can easily be folded into legitimate and necessary spending measures, forcing President’s hands. The President can choose to veto appropriations bills, which often go to the White House late any way, because they contain objectionable pork spending or simply accept such bills as the best that’s likely to be produced by a Congress prone, even when its members are personally incorruptible, to spend money in the ways that constituents, city councils, and important supporters want them to spend it.

While Presidents are human beings and therefore as subject to corruption as the next mortal, it’s easier for the President to speak for the whole country, as Andrew Jackson knew, than to push the petty, budget-busting agendas of congressional districts and individual states. The Constitution is a commendable, remarkable document. I have the deepest respect for it as the best thinking of what should be regarded, I think, as America’s greatest generation. (The Constitution is, I think, greater than the Declaration of Independence. That document enunciated principles of liberty. But the Constitution was how the generation who secured American liberty decided it would use its liberty effectively and well.) The Constitution was not without its flaws, as its countenancing of slavery attests. The Framers knew too, that the document wasn’t perfect and that circumstances would change, meaning that the power to amend it was essential and built into it.

The failure to give the US President the ability to veto specific items of spending within massive appropriations bills appears to me to be a design flaw in the Constitution.

For McCain to say that the line item veto is constitutional, which he did say on Wednesday night, is flat-out wrong. For Giuliani to say–repeatedly–that it’s unconstitutional is irrelevant. The question, as I say, is whether advocating an amendment or at least, advocating exploring the possibility of such an amendment, is advisable.

[This is cross-posted at my personal blog.]

I am pausing to note the 20th anniversary this week of Robert Bork’s rejection as a Supreme Court justice because I’ve just finished the best current-affairs book to come along since forever – The Nine, Jeffrey Toobin’s insightful story of the “secret world” of The Supremes.

Bork, of course, is best known as the origin of the pejorative verb to bork, which is defined as viciously attacking a candidate or appointee through misrepresentation in the media.

The fight over President Reagan’s nominee was indeed especially nasty coming as it did after the Democrats had regained control of the Senate in the 1986 election and amidst the low point of the Reagan era, the Iran-Contra Affair.

Democrats led by Senator Teddy Kennedy (with an assist by actor Gregory Peck, who did a Bork-bashing TV commercial) branded the legal scholar as an extremist who would roll back civil and women’s rights.

Newspapers had a field day delving into every nook and cranny of Bork’s life, including the videos he rented, such as A Day at the Races, Ruthless People and The Man Who Knew Too Much. But no porno movies, which we were to learn that future Justice Clarence Thomas had a fondness for some four years later, although not from the nominee himself, who was as silent during his stormy confirmation hearings as Bork had been verbose.

What is not as well remembered two decades after the Bork nomination crashed and burned is that, hyperbole aside, he was indeed the extremist that his opponents painted him to be.

But, as Toobin writes in The Nine, Bork’s nomination failed largely because his backers in the Reagan White House, led by Attorney General Edwin Meese, hadn’t done their homework:

“More than anything, the fight over Bork’s nomination illustrated that Meese and his allies had done a better job of persuading themselves of the new conservative agenda than they had of convincing the country at large. In truth, many of the Warren Court precedents – the ones Bork had attacked for so long – remained popular with the public, and consequently, in the Senate.”

I doubt that many people remember that Reagan then nominated Anthony M. Kennedy, a comparatively-moderate judge from his home state of California who was confirmed quickly and without anyone knowing his video-rental preferences. Nor that it was Kennedy who banded together with Justices David Souter and Sandra Day O’Connor in 1992 to help defeat the last head-on effort to overturn Roe v. Wade, which was led by Chief Justice William Rehnquist.

What is crystal-clear is that conservatives have gotten much better at imposing their agenda on the high court, helped in part by having the wind at their back in the form of a voting public that has tacked from left of center in the last 15 years, although now it shows every sign of tacking back.

Alas, too late.

Thomas, Antonin Scalia, Samuel Alito and John Roberts, nominees of Bush père and his son, are all conservatives except when it comes to their judicial activism, the very outrage that conservatives decried when Bill Clinton was president. And with O’Connor, the great equalizer, retired, these four white men (yes, Thomas, too) will be imposing their agenda on all of us for many years to come.

As Toobin notes in the final pages of The Nine, only the outcomes of presidential elections will determine the future of the Supreme Court:

“Presidents pick justices to extend their legacies; by this standard, George W. Bush chose wisely. The days when justices surprised the presidents who appointed them are over.

” . . . This is as it should be . . .the Supreme Court operates at a higher plane than the mortals who toil on the ground. But the Court is a product of a democracy and represents, with sometimes chilling precision, the best and worst of the people. We can expect nothing more, and nothing less, than the Court we deserve.”

You know that America’s drug policy is totally cattywampus when farmers in North Dakota go to court to try to force the Drug Enforcement Agency to lift its ban on industrial hemp, a harmless lookalike cousin of the Evil Weed.

The feds call industrial hemp (photo) a controlled substance — the same as marijuana, heroin and LSD — but it is in fact a harmless and renewable cash crop with thousands of applications that are good for the environment.

In one of several legal actions that cut to the core of the principle of states’ rights in challenging the federal government’s authority to prohibit states from legislating limited use of a comparatively harmless substance like marijuana and a completely harmless substance like industrial hemp, North Dakota farmers Wayne Hauge and Dave Monson filed filed a lawsuit against the DEA.

The federal agency says that it’s merely enforcing the law.

The farmers say comparing industrial hemp to marijuana is like comparing pop guns and M-16s. They’ve successfully petitioned the state legislature — of which Monson is a member — to authorize the farming of industrial hemp.

Marijuana and industrial hemp are members of the Cannabis sativa L. species and have similar characteristics. But hemp won’t get you high because it contains only traces of delta-9 tetrahydrocannabinol, or THC, the compound that gets pot smokers stoned. However, the Controlled Substances Act makes little distinction, banning the species almost outright.

Efforts to decriminalize marijuana to ease pain and nausea in critically ill people have succeeded through public referenda in 12 states, but the DEA and Department of Health and Human Services continue to claim that it has no currently accepted medical use.

A nonprofit group, Americans for Safe Access, is challenging the government’s position in a lawsuit. An earlier effort by two terminally ill women to challenge Washington’s active opposition to California’s medical marijuana law in the Supreme Court in the fascinating Gonzalez v. Raich case was rejected by a majority of justices because of their view that federal drug law trumped local law.

Meanwhile, for the fourth year in a row, marijuana arrests in the U.S. set an all-time record in 2006, according to the FBI Uniform Crime Reports.

Arrests totaled 829,627, an increase from 786,545 in 2005. Similar to previous years, 738,916 or 89 percent were for possession, not sale or manufacture, and marijuana possession arrests again exceeded arrests for all violent crimes combined.

For more on my take on medical marijuana and to learn why my parents and I engaged in what the federal government considers to be criminal behavior, please click here.

In his new book A More Perfect Constitution (Walker & Company, 2007) Larry Sabato, the founder and director of the University of Virginia’s Center for Politics lays out a series of twenty-three proposals for constitutional revision. These amendments would, he argues, bring the Constitution into the twenty-first century by making the structures of our government more fair, more representative, and more effective.

Most of us are instinctively leery of major structural changes to the Constitution, and with good reason - it’s lasted for more than two centuries, and has served the United States well. At first glance, some if not many of Sabato’s proposals seem unnecessary, unpalatable, or both. But after reading his justifications for them, I was convinced by both the desirability and the necessity of nearly all of them.

Since Sabato’s stated purpose with his book is to promote a great debate over these ideas, and to prompt what he terms a “generational process of moderate, well-considered change,” I’d like to begin a discussion here of his proposals by outlining them in brief and adding my own views as they currently stand (I will admit that some of them changed just in the course of reading this book). I will attempt as much as possible to keep Sabato’s proposals separate from my own opinions so as not to influence others’ perceptions of his ideas, but I do encourage everyone interested in this discussion to read his book, where he makes his case in much greater and persuasive detail.

The proposals, after the jump.

Read the rest of this entry »

Cross-posted to The Debate Link

The release of Clarence Thomas’ new book has led to a spurt of interesting blogging on the quietest and most conservative Supreme Court Justice. No comments from me, just a round-up of the variety of posts out there.

Sherilynn Ifill, a law professor at UMD blogging at BlackProf, takes issue with Thomas’ lynching metaphor (”an insult to the nearly 5,000 black and men and women who were lynched in the last century”) and urges Thomas to “get a grip.”

Scott Moss of the University of Colorado notes the intense bitterness Thomas appears to still nurse — and his lack of either honesty or self-awareness in acknowledging it.

Ilya Somin of George Mason notes the ideological slant of the folks who believe Thomas and those who believe Hill regarding her sexual harassment allegations, and suggests this is purely a function of partisanship. However, as someone noted in comments, it is generally true that liberals are more likely than conservatives to believe allegations of sexual harassment. The real outlier, as Somin indicates, is the Paula Jones case.

Also at Volokh, David Bernstein hypothesizes that the scorched-earth campaign the left waged against Clarence Thomas’ nomination may have backfired, by permanently entrenching him on the Supreme Court’s far right branch. By solidifying Thomas’ perception of liberals as his enemies, they precluded him from ever evolving his views or reaching “across the aisle” while growing as a Justice.

Richard Stern argues that Thomas’ book is a “inverse confession”, as he is unable to forget the “scene of the crime” against Ms. Hill, and compelled to revisit it even as he protests his innocence.

Powerline provides its summary of Thomas’ speech to the Heritage Foundation.

Michael Dorf of Columbia analogizes the two cases of “harassment by people named Thomas” (Isiah and Clarence). He notes that, even if Thomas was guilty of harassment, he still might have had a legitimate beef against many of the questioning (White) Senators who likely engaged in similar behavior but faced no similar scrutiny.

Feministe comments on Anita Hill’s defense of her character against Thomas’ renewed attack, contextualizing it within the broader procedures used to silence folks complaining about sexual harassment.

And, though I wrote it several months ago, I’ll abuse my blogger privileges to link back to one of my older (but, if I do say so myself, better) posts on Clarence Thomas, Taking Thomas Seriously.

A difference without a distinction?

MSNBC:

WASHINGTON - Chief Justice John Roberts suffered a seizure at his summer home in Maine on Monday, causing a fall that resulted in minor scrapes, Supreme Court spokeswoman Kathy Arberg said.

He was to remain in a hospital in Maine overnight.

Roberts, 52, was taken by ambulance to the Penobscot Bay Medical Center, where he underwent a “thorough neurological evaluation, which revealed no cause for concern,” Arberg said in a statement.

Roberts had a similar episode in 1993, she said.

AND

Doctors called Monday’s incident “a benign idiopathic seizure,” Arberg said. The White House described the January 1993 episode as an “isolated, idiosyncratic seizure.” Both descriptions indicate that doctors could not determine the seizure’s cause or link it to another medical condition.

MaineCoastNow.com:

St. George Ambulance responded to a call at about 2 p.m. Monday of a man who had fallen 5 to 10 feet and landed on a dock, hitting the back of his head. The patient was ashen and was foaming at the mouth. National news report quotes a Supreme Court spokeswoman as saying that Roberts was conscious the entire time of the incident. That spokeswoman has not returned a telephone call to the newspaper.

My analysis of Tom Goldstein’s list. Out of 30 finalists, only six are White men. Indeed, the list has an African-American plurality. But everybody on the list is extraordinarily qualified, and in a truly color-blind society it shouldn’t bother us to see radical underrepresentation of White men any more than radical underrepresentation of Black women (right?), so I’m sure there will be no claims that the next President is making an affirmative action pick when she or he nominates Hispanic 2nd Circuit Judge Sonia Sotomayor for his or her first open seat (my early prediction!).

As he goes off on vacation, perhaps to write the book for which Rupert Murdoch gave him a $1 million advance, Clarence Thomas can take satisfaction in having embarked on his real life’s work–dismantling the progress in race relations since Brown v Board of Education in 1954.

In her syndicated column today, Ellen Goodman points out a significant statement by the usually silent Supreme Court Justice in the decision striking down voluntary integration plans in Seattle and Louisville schools:

“One sentence leaps out of the footnotes: ‘Nothing but an interest in classroom aesthetics and a hypersensitivity to elite sensibilities justifies the school districts’ racial balancing programs.’ He trivialized the values of diversity to a matter of aesthetics and closed with a warning: ‘beware of elites bearing racial theories.’ So much for a half-century of civil rights.”

With Bush appointees Roberts and Alito enabling a 5-4 conservative majority on the Court, Thomas is, in the words of the man who made it possible for him to pursue his life goal, “free at last” to express his inner disdain for African-Americans without the skills, desire or coldness of heart to Uncle Tom their way to the top as he did.

Thomas didn’t invent the stereotype of a self-hating minority member–Jews have had their share–but he is practicing the art at the highest level ever.

Cross-posted from my blog

It was never just about abortion. The struggle for America’s soul goes deeper, as the Supreme Court and Congress have been showing us this week.

It was never as simple as faith vs. reason. Rational people can recognize a Higher Power, the religious can respect science and logic.

What it has been about is the conflict between our hopes and fears, between the risks of freedom and the comfort of control, between our needs to feel decent and to feel safe.

Before the trauma of 9/11, the tension between those impulses could be kept in balance. Without that, the vicious idiocy of Bush’s Neo-Cons would never had free rein. For a time, the frustrations of Vietnam allowed Nixon’s paranoia and secrecy to subvert basic American values, but it never came to this.

This is an Executive Branch that makes Nixon look like a paragon of openness and respect for the law.

This is a Congress without the will and guts to stop a war started out of fear and stupidity and too craven to resist the hysteria over immigration and navigate through competing passions and interests toward a responsible compromise.

This is a High Court retreating from messy freedoms such as individual privacy, racial equality, protections from predatory business practices and the right to express unpopular opinions.

A living symbol of all this is Justice Anthony Kennedy, who has emerged, at least for now, as the deciding voter in our losing 5-4 struggle to balance freedom and responsibility.

The duty of judges, he once told an audience, is to “impose order on a disordered reality.” But at what price?

By January 2009 we may, to our sorrow, have found the answer to that.

Cross posted from my blog

The news today that the Supreme Court will review two Guantánamo Bay detainee-related appeals prompts me to make a statement that seems outrageous on its face considering the high court’s recent sprint to the right:

It will side with the detainees in their assertion that they cannot be indefinitely confined without trial.

Howcum? Because this is more or less a replay of last year’s Hamdan v. Rumsfeld decision, which is possibly the Supreme’s most important of the young millennium, including yesterday’s school deseg blockbuster.

In Hamdan, the court eviscerated the junk law (as opposed to junk science) on which the Bush administration based its original plan for trying detainees before military commissions, rejecting out of hand the specious claim that the 9/11 attacks had changed everything and the president could turn 230 years of American jurisprudence on its ear and damned well do what he pleased where he pleased.

The court also rebuked Bush for attempting to suppress the habeas corpus provision of the Constitution (which was like telling it to go screw itself) and for violating the Uniform Code of Military Justice and Geneva Conventions.

The court ruled 5-3 against the administration in Hamdan with Chief Justice Roberts recusing himself because he had been involved in the case at a lower court level.

Given that the White House merely paid lip service to the ruling and then compelled a largely compliant Congress to again give it carte blanche in the form of a new but nearly identical law, I would anticipate that the Supremes will again slap the president — even with Roberts participating.

The stakes could not be higher for an administration that remains drunk with power despite enormous setbacks, as well as a world standing at low ebb.

I am not suggesting that terror suspects be treated with kid gloves.

But having claimed the right to determine who are enemy combatants and detain them indefinitely without charges, the White House cannot retreat from that position without appearing to be weak, and appearances in the Age of Bush have been more important than realities, just as politics often trumps policy, or in this case tramples on the very foundations of American jurisprudence.

It’s going to make a lot of people shake their heads, but it makes you wonder too, does the Daddy-Court of the Land really get to have the final say-so? Ought all good children still continue to eat their peas without pause? Or should something else occur… the thundercloud so many carry inside nowadays, when put together with all other thunderclouds, could make a perfect storm… the kind that cleanses, blows away the dead and dry, makes way for new…

In the meantime, the zeitgeist for today is that Paterfamilias has just nailed its newest proclamations to our doors. The Real New Rules, of how we all ought live, looks like this:

–the Supremes said No to environmentalists (what’s the matter with those gopher-loving, clean-water-worshipping, lovers of things wild anyway? We can all get plenty of the wild by driving on any freeway.)

– No to speech/ images by adolescents,(those pesky teenage individualists, what do they think they’re doing? Trying to grow up in a rat maze made by adults, or something? And besides, how do we know that t-shirt wasn’t advertising Thorazine? And more so, just because you wear a name on a t-shirt does that automatically mean you’ve become what’s on your shirt? If there were true, wouldn’t everyone by now have turned into a schizoid version of Calvin Klein, no! I can’t be Calvin Klein, because I’ve got Johnny Weissmuller underwear on, I must be Johnny Weissmuller, No! I’m wearing Gloria Vanderbilt shoes, I must have turned into a woman when I put them on, No! that can’t be because I am wearing a Hermes scarf, I must be Hermes… )

–No to taxpayers wanting equitable distribution of their taxes because many do not want their taxes to go to support religions they don’t believe or partake in (Yes, those godless Deists and atheists, they oughter read the Constitution. Ahem, mutter mutter another voice: Ah, Sir? the Constitution was written by some who were ah, not Baptists that we know of. Some were even Freemasons. [oh sacre bleu, quick, hide the daughters!).

But, don’t you sometimes wish for a Penultimate Court over the Supremes, an even higher court that could uphold or overturn the lower “Supreme” court? (I can still say things like that in this country right? I mean, without getting “cheneyed” so someone accuses me of ‘terrible thought crimes involving livid imagination”? Yes, I meant to say livid. Is that okay? I mean, I don’t want to be accused of making ‘traitor fries,’ when I only just meant to be making ‘tater fries.’)

And don’t you wish instead of the Supremes cherry-picking amongst which cases they will hear, that at least once a year, they had to take ten cases decided ‘by the people,’ the ballot for which would NOT include any of the ‘litmus test topics’ some Johnny-One-Notes in this country have been forever screeching? diverting us from other matters that really do matter.

Here are the pithy posts the Supreme Court itself posted, in brief, today displaying its work product over these last many months (below). I am taken by the idea in my very small study of the law so far, that the law’s greatest bloodline intent is to keep as much peace as can be had under trying circumstances of persons sometimes hostile to one another, going head to head. But will these bring peace? Or just gather more thunderclouds? And could that be turned to good?

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