Monthly Archives: October 2007

Do My Students Know This?

In the warm-up to an excellent essay about styles of Supreme Court jurisprudence, U.Chicago Prof. Geoffrey R. Stone recites some basic truths that seem utterly lost on most of the US press. And I have to wonder how many law students today understand that the Supreme Court today is a reactionary court.

The University of Chicago Law School Faculty Blog: Constitutional Vision The current Supreme Court is not “balanced” in any meaningful sense of that term. It is, in fact, an extremely conservative Court – more conservative than any group of nine Justices who have sat together in living memory. Here are some ways of testing this proposition:

  • Seven of the current nine Justices were appointed by Republican presidents.
  • Twelve of the fourteen most recent Supreme Court appointments have been made by Republican presidents.
  • Four of the current Justices are more conservative than any other Justice who has served on the Court in living memory.
  • The so-called “swing vote” on the Court has moved to the right every single time it has shifted over the past forty years, from Stewart to Powell to O'Connor to Kennedy.
  • As Justice Stevens recently observed, every Justice who has been appointed in the past forty years was more conservative that the Justice he or she replaced.
  • If we regard Warren, Douglas, Brennan, and Marshall as the model of a “liberal” Justice, then there is no one within even hailing distance of a “liberal” Justice on the current Supreme Court.

In fact, the current Court consists of five conservative Justices, four of whom are very conservative, and four moderate Justices, one of whom, Ginsburg, is moderately liberal. As Justice Stevens recently observed, it is only the presence of so many very conservative Justices that makes the moderate Justices appear liberal. But this is merely an illusion.

My own views are probably somewhere between Justice Stevens's and Justice Brennan's, but whatever your views, this must surely be recognized as a factually accurate description of the current Supreme Court.

By the way, I do recommend the entire essay — that was just the warm-up.

Posted in Law: The Supremes | Leave a comment

Mukasey Waterboarding Reax

I don't need concrete facts to know whether beheading prisoners is legal. And Mr. Mukasey only needs non-hypotheticals to know if waterboarding is illegal if there exists some set of facts in which he imagines that it might be acceptable for the United States government to waterboard a prisoner.

And the winner for dullest, most-in-the-tank headline….The Washington Post: Attorney General Nominee Sends Letter to Dems.

Update: Honorable mention to the New York Times which, having started with this headline: Mukasey Unsure About Legality of Waterboarding, somehow changed it to Mukasey Says Harsh Interrogation ‘Repugnant’.

Posted in Torture | Leave a comment

It’ll Never Roll, Wilbur

Talk about articles that seem to confirm all of one's prejudices: In Doing what Detroit says is impossible, Daily Kos points to an amazing article about a guy who builds powerful fuel-efficient cars — the sort Detroit says can't exist with current technology.

There are some issues: price, availability of alternate and more efficient fuels, but still…

Posted in Science/Medicine | 1 Comment


Attorney general nominee Michael B. Mukasey today wrote a second, and much less artful, letter to the Senate Judiciary committee in response to its question about whether waterboarding is a permissible interrogation technique.

The man not only failed to answer the question, he wasn't able to bring himself to say the W-word: “waterboarding”.[*]

Here's the bottom line: “certain coercive interrogation techniques” may or may not be legal, but our poor ethically challenged AG-to-be can't say for sure in the context of a hypothetical question. Only a specific case would allow a judgment. And just because Mukasey finds them repugnant isn't enough to say these “coercive interrogation techniques” are illegal.

Part of the subtext is that were the Justice Dept to actually decide that waterboarding were illegal it would have to decide whether to prosecute the waterboarders on the federal payroll (especially at the CIA). And it doesn't want to do that, especially since this administration told them to go ahead. Indeed the people — Gonzales? Rumsfeld? Cheney? — who gave the orders might be the ones who become possible targets for prosecutors.

But ultimately, it's a basic decency issue. It may be that publicly admitting to basic decency is a disqualifying action for law enforcement officials in this administration, but if so, then the Senate shouldn't confirm anyone to the job. A vote for someone who will not disclaim waterboarding under any circumstances is a vote for someone who isn't fit to hold office under the Constitution of the United States.

In a positive development, Senator Clinton announced that she'll vote against Mukasey. However, none of the candidates have yet said they'll filibuster Mukasey's nomination.

Sadly, the candidates remain trapped in reactive politics. As far as I know, not one of the major candidates — not even Sen. Dodd — have ever touched the much more important issue of whether, if elected, they would prosecute any people in the current administration who are found to have ordered torture and who are found to have carried it out.

[*] Update: in fairness, I should note that Mukasey did bring himself to say the W-word in the context of the uncontroversial assertion that the military can't waterboard. What this artful distraction elides, however, is that the issue is what the CIA and other civilian agencies are allowed to do. (Note that the FBI, to its credit, seems to have not only stayed away from the darkest parts of the dark side, but even objected to them.)

Posted in Torture | Leave a comment

Is There an ABC Candidate?

For the past week or two I've been musing about writing something about why John Edwards's organizational imperfections were going to keep him — despite his good ideas and good speeches — from winning the race to be the “ABC” candidate, that is the person around whom all the “anyone but Clinton” factions would coalesce. My hypothesis was that things were getting to the point where, even though stately, boring, Senator Dodd had somehow turned into a fire-breather, the timing of early primaries and the need for serious campaign cash, all meant that Senator Barack Obama had become the only realistic contender for the ABC title. And even for him, time was running short.

Seems like the folks in the Obama camp were thinking something similar. But their reaction to that tactical observation has been so incredibly, well, stupid, that you have to wonder if there will even be an ABC candidate at all. Among the silly things were Obama's speech in which he promised to attack Senator Clinton, rather than actually doing much of it, and the inept 'gospel tour' of South Carolina.

Could it be, however, that these are not errors of execution, but the inevitable results of a fundamental strategic error on Obama's part? That's the surprisingly convincing argument of the observant Chris Bowers in his provocatively titled Obama Campaign Post-Mortem.

So here's my question, if Obama isn't going to be the ABC candidate, is there anyone who can grab the mantle and make this a horse race, or is it over already?

Posted in Politics: US: 2008 Elections | 2 Comments

We Need More of This

I don't endorse every word of this, but I like the spirit of it.


Yes, we need lots more of this.

Posted in Iraq | Leave a comment