Sonia Sotomayor

Back from vacation but swinging directly into a big move this weekend. I have a lot to say on the California Supreme Court decision upholding proposition 8, the California budget, and the last two weeks of Obama’s assault on the rule of law, but it will have to wait. In the mean time, I have some links on Sonio Sotomayor.

I don’t have much of an opinion on Judge Sotomayor, so I’ll just point out some interesting links.

Jonathan Turley is ambivalent on the pick, and would have rather seen Diane Wood be the nominee.

While Sotomayor gives Obama a “twofer” with the first hispanic and a new female justice, Wood in my view has more intellectual firepower and would have been a better addition to the Court. One of the concerns from many is that Sotomayor, who is given bad marks on temperament, will be replaced one of the most easy going and civil justices on the Court. As I have mentioned on air, I am less concerned with this criticism. She is being selected as a justice, not a close friend or house pet. It is the weight of her opinions and writings that dictate the focus of our review. Even after this criticism, advocates have struggled to cite a single opinion that could be viewed as a brilliant or extraordinary treatment of the law. There are clearly important decisions in their result, such as the much cited baseball decision. However, unlike some of her colleagues, she was not cited as the intellectual powerhouse on that court. Does this mean that she may not prove to be such a powerhouse? Of course not. The question is the current record and the basis for the nomination.

This has echos of Jeffery Rosen’s hit-piece from a couple of weeks ago, but seems grounded in his reading of her opinions. When Justice Souter’s retirement was announced, I wrote that we needed a true progressive on the court. It is with this in mind, that Professor Turley’s analysis concerns me a little.

Sotomayor will be a very good justice and her life’s story will be an inspiration. She has obviously very intelligent. However, liberals openly called for a liberal version of Scalia. I am not confident that they found it in this nominee despite her powerful personal story.

Meanwhile, Erwin Chemerinsky takes a different view.

Sotomayor brings to the bench essential diversity. Every justice’s rulings are a product of his or her life experiences. As a woman, a Latina, a person who has faced a life-long serious illness (diabetes), and a person who grew up in modest circumstances, Sotomayor brings experiences that are unrepresented or largely absent from the current court. These certainly will influence her rulings and they also may help in the most important task for a Democratic appointee on the current court: persuading Justice Anthony Kennedy, the key swing justice on almost every closely divided issue. Sotomayor’s background, as well as her intellect and experience, make her ideally suited for this role.

[Snip]

But most of all, Sotomayor is an excellent choice because she is an outstanding judge. Her opinions are clearly written and invariably well-reasoned. My former students who have clerked for her rave about her as a judge and as a person. She has enormous experience as a lawyer and as a judge, both in the federal district court and the federal court of appeals.

Finally, over the weekend, Charlie Savage discussed the positions of various likely court nominees on presidential power. While Diane Hood is skeptical of expanded powers, and Elena Kagan supportive, little is known about Judge Sotomayor’s positions. Even though confirmation is very likely, without some kind of surprise scandal, this is a topic that will need to be fully explored in hearings. Judge Sotomayor will certainly be faced with a number of executive powers issues, from both the Bush and Obama administrations.

Addendum: SCOTUSblog has a discussion of a number of Judge Sotomayor’s opinions.

Published in: on May 27, 2009 at 10:24 pm  Leave a Comment  
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May 19 Special Election Wrap-Up

(I’ve been out of town for the past couple of days, and will continue to be through the weekend. Posting will continue to be light.)

So, Propositions 1A-1E were defeated, in thoroughly unsurprising fashion. I don’t have all that much to say, that hasn’t already been said by others, so I’ll just post some links.

It is disappointing to see the continuing fail of the state’s Democratic leadership. I find it shocking that they actually believe that this was a referendum on new taxes, when the revolt on Prop 1A at the state party convention was clearly no such thing. Why assume that the ‘voters’ sided with the Howard Jarvis Taxpayers Association rather than the Courage Campaign, especially when there is evidence to to contrary?

However, despite Democrat’s seeming acquisence to the governor’s Hooverite budget, there is finally a real discussion about the long-term structural reforms needed to get the state back under control. Of course, some people still don’t understand what the hell is going on. The problem is structural, not personal. On that note, an alliance of progressive organizations, including the Courage Campaign, have launched the Declaration of Democracy campaign, calling for a majority vote budget. Go here to support it.

Finally, OC Progressive has the run-down on the effect of the governor’s budget proposal on local police forces. I guess you’re only ‘soft on crime’ if you want sensible sentencing reform.

Teach the Controversy

controversy - pyramidOn Wednesday, Glenn Greenwald discussed the media’s tendency to call anyone who supports torture prosecutions the ‘hard left’. He makes the good, and self-evident, argument that those who are calling for prosecutions represent a bipartisan range of Americans; that pro-prosecution arguments are based on principle, not politics.

However, I was struck by this passage quoted from the comments of an earlier post:

I want to point out that the main reason, if not the only reason, for this overwhelming media view is because the only lens through which they can see this issue – like every issue – is the Republican/Democrat or conservative/liberal lens. When one’s entire point of reference for even issues of egregious lawbreaking goes no further than fixating obsessively over the identity of the people and parties to the “controversy” and the issue’s putative effect on partisan politics, whether a leader of one party was informed of the crimes of the other takes on a meaning perversely greater than the evil of the underlying conduct itself.

Our establishment media simply cannot get beyond this stultifyingly narrow framework. It is pathological.

In the face of repeated court-rulings, creationists have been unable to formally inject their beliefs into high school science classrooms, whether as creationism or ‘intelligent design’. Instead, they argue that we should ‘teach the controversy’ – if they cannot teach that God created the earth 6000 years ago, they want to teach the debate over whether God created the earth 6000 years ago. It is a crafty argument and finds some measure of support.

It is easy to see why – ‘teach the controversy’ speaks directly to the core beliefs of a liberal democracy. Through vigorous and unfettered public debate the truth, or the best course for the nation, can be charted. It is the premise behind both the 1st amendment and the principle of academic freedom. So, while the application of this kind of  modern disputatio to high school education is dubious, it is not surprising that a similar principle has wormed its way into the media.

In the interests of ‘balance’, we are told, it is necessary for the media to impartially present both sides of any argument. But this is not an arbitration – the adjudication of the truth is left as an exercise to the reader. This, in an open and intellectually honest debate, would be less objectionable. However, like calls to ‘teach the controversy’, the media now seeks out two-sides to all arguments – even those were no real argument exists. They actively present those among the fringe so as to create balance, giving an open microphone to anyone who disagrees with any position – frequently without providing any context whatsoever. Teaching the controversy is the traditional media’s default position. The effect of this behavior can be seen everywhere: evolution, climate change, ‘enhanced interrogation techniques’, even vaccine safety. It is the hallmark of the local news promo: Tonight at 11, why some people are questioning whether your children should eat carrots.

There are innumerable legitimate debates in this country and it is the media’s role to cover them. But, it is also the media’s role to help us learn about the important ones. By teaching the controversy, the media opens itself up to manipulation by any unscrupulous or fringe group that wants to bury a story  – by stirring up a fake debate, they turn real news into a petty his-says-she-says distraction. That the controversies come packaged in an easy partisan format is all the better.

And people wonder why newspapers are dying.

What Did Pelosi Know, and When Did She Know It?

This seems to be a matter of debate even among the pro-prosecution crowd, with Marcy Wheeler on one side with her fabulous timeline and Jonathan Turley and Glenn Greenwald on the other.

Frankly, I don’t care that much. There are, I think, three kinds of culpability Pelosi could have for the Bush torture regime: criminal, political, and moral.

On the moral front, Speaker Pelosi has already admitted to knowing that the administration might torture. Whether or not she knew they were going to or already had tortured, she already carries a great deal of moral responsibility for not speaking out, publicly. My moral calculus suggests she should have publicly opposed the program even if it resulted in a prison sentence. I know it’s existentialist, but she had a choice to make and made the wrong one.

On the criminal front, I doubt she’d have any even if she knew they were torturing. Intelligence briefings inform, but do not ask for consent. And Pelosi is not so oblivious so as to even cautiously support investigations if they were going to turn up her own criminal wrong doing.

So, I suspect that this tu quoque attack on Pelosi from the torture apologists rests largely on the political culpability issue. They believe that by revealing her knowledge they stand to cool the ardor for investigations among Democrats. They’re wrong.

The Democrats who don’t want to prosecute need no convincing. “Look forward, not back” is a Democratic motto. However, the Democrats who do want to prosecute are not doing it for political reasons. I do believe that torture prosecutions will be distracting and possibly politically damaging. However, we don’t have a choice. Even ignoring our legal obligations, for the good of the Republic we must confront this massive betrayal of our ideals. Evidence of Democratic complicity or complacency only increases this need. Only slightly less than seeing the torturers behind bars, I’d like to see the Democrats who enabled them shamed out of office.

The netroots gained so many members so quickly precisely because of Beltway Democrats’ refusal to stand-up to the Bush administration on anything. As many have said, now that we have more Democrats, we can focus on better Democrats. Any Democrat who allowed the torture program to proceed unimpeded is not a better Democrat. The Democratic party has a big tent with room for lots of policy differences; but when it comes to torture, I’m an ideological purist.

Published in: on May 16, 2009 at 10:12 pm  Leave a Comment  
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The LA Times on the May 19 Special Election, Again (Updated)

Faced with polling that shows that voters aren’t buying their last editorial, the Los Angeles Times tries, once again, to convince people to vote yes.

Some voters seem to think that rejecting these measures will send politicians a message. It will. It will tell them that Californians won’t stand for constructive compromise of the sort that Republican state Sen. Dave Cogdill of Modesto and Assemblyman Mike Villines of Clovis sought when they agreed to the deal, and that we’ll grant political points for intransigence but none for actual accomplishment. It will tell them that we are suckers for grandstanding. It will tell them to keep fighting and stay deadlocked.

California must get on a different road, change its political dynamic and perhaps its political structure, but it can do that only if it can move. And to move, voters must pass the ballot measures. There is little point in arguing over the next turn if the discussion takes place in the back seat of a rusted-out hulk.

First off, the entire car metaphor (not quoted), is ridiculous, but for those of you who bothered to follow through to the whole editorial, I’ll play along. The spending cap, prop 1A, is the equivalent of reducing the size of gas tank so we’ll never be able to travel as far while also deciding not to pay for regular maintenance. The car will keep running for a while and will cost less – right until the transmission falls out.

More seriously, passing the ballot propositions won’t actually keep the state running. Prop 1A doesn’t have any effects for 3-4 years. The education funding in Prop 1B is already owed to the schools by the state. Indeed, the California Federation of Teachers has sued the state to get that money. Prop 1c will only help the state if we can find anyone to buy our bonds – a problem we are already having – and with lottery revenues down there isn’t much incentive for potential purchasers. Propositions 1D and 1E just shuffle money around, at the cost of our state’s worst off; and prop 1F has nothing to do with the budget at all.

Even if all of the ballot measures pass, we are still looking at a budget short-fall of $10 billion dollars on May 20th. It would be nice if the LA Times recognized that simple fact. There is no significant up-side to passing these ballot measures, and a considerable cost in future  budget flexibility. Unless, of course, you are a centrism fetishist who cares more about ‘bipartisan compromise’ than actually solving our state’s problems.

Since we’ll still have a budget crisis on May 20, there is no good reason to create a spending cap on May 19. Instead, we need real long-term budget reform, in the form of a return to a simply majority requirement for both the budget and taxes. I agree that the majority vote won’t solve our immediate problem – but neither will Prop 1A. If nothing else, the Times should recognize that if we can afford to put off a majority-vote reform until the present crisis has passed, then surely we can do the same with an ill-conceived and poorly debated spending cap.

Update: The Sacramento Bee has different numbers:

The Republican governor’s Department of Finance has projected a budget gap of $15.4 billion if the May 19 special election ballot measures pass and $21.3 billion if they fail. The state would gain nearly $6 billion in solutions if Propositions 1C, 1D and 1E pass, including $5 billion in 1C’s borrowing against the California Lottery.

Meditations on Torture: John Donne

(For links to the other posts in this series, go here.)

I apologize for the delay in this second meditation. I had planned to write on Freidrich von Spee, but was unable to track down Cautio Criminalis in a convenient form. So, instead, we’ll move along this week to John Donne, a contemporary, and return to von Spee later.

John Donne (1572-1631), most famous as a poet of religious and romantic subjects, was ordained in the Church of England in in his forties. On Easter in 1625, as the Dean of St. Paul’s, he delivered this sermon, which discusses human transgressions against God’s dignificaton of the body of man. Donne cites torture as one such transgression. This point, that torture violates the dignity of the body of man, foreshadows the concern for human dignity in modern international human rights law. Indeed, the “inherent dignity of the human person” is cited as the source of human rights in preamble to the Convention Against Torture.

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Published in: on May 10, 2009 at 2:29 am  Leave a Comment  
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Ken Calvert’s Telephone Town Hall

So apparently Ken Calvert held a telephone town hall last week accompanied by a number of robocalls telling people that he had done so. According to his robo-call voicemail message, the major topics were the economy, Iraq/Afghanistan, illegal immigration, and local transportation.

Looking at the summary at the link above, I find it hard to believe that these were the real questions asked – the tenses of the opening paragraphs are all confused, suggesting this was drawn up before the call. More importantly, though, it is highly unlikely that there was not a single question about the state budget crisis, the bank bailouts, or the stimulus plan. Indeed, three of the eight questions appear to have been related in some way to immigration. This is certainly one of Calvert’s favorite topics, but I doubt that is true of 30,000 random constituents. Have I mentioned that this robocall was on Cinco de Mayo? Congressman, you are a classy classy man.

In case you are wondering, the Congressman’s call indicated that he is “fighting for” tax relief, job creation, and the development of new energy sources, while he opposes amnesty and wasteful government spending.

Finally, I don’t remember getting a single robocall from Calvert during the campaign last year. So, I’m going to take his efforts now as a sign that Bill Hedrick has him worried – a good sign.

Addendum: I’d be interested in knowing what was actually discussed during the town hall, if anyone knows.

Published in: on May 10, 2009 at 1:21 am  Leave a Comment  
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