July 24, 2005

Teflon John

The perfect nominee for an administration that has turned dissembling and cover-ups into an art form:

President Bush’s Supreme Court nominee was a stickler for legal nuance who used a finely tuned political radar to steer officials away from entanglements on Capitol Hill, where Democrats then ruled.
… Roberts’ political instincts took charge when he alerted White House counsel Fred Fielding that an administration position in a racially sensitive Supreme Court case could rankle a political ally, a Mississippi congressman named Trent Lott.
In a case involving alleged discrimination and a church-run school, Roberts wrote in a memo dated Aug. 2, 1984, “There should be little press interest ... since we are on the side of the black parents at this point.”
Government officials had assured Lott they would not prevent the Mississippi church from having its day in court. “Just not the Supreme Court,” Lott should be told if he objects, Roberts, then 29, wrote.
In a memo from March 1984, Roberts warned an official at the White House’s Office of Management and Budget to avoid references to a touchy issue during upcoming immigration testimony.
The office should not cite the denial of visas to the widow of former Chilean President Salvador Allende and Nicaragua Interior Minister Tomas Borge, according to the memo. At the time, the Reagan administration was being criticized for denying entry to leftist foreign officials on ideological grounds.
“Those denials were, and continue to be, particularly controversial and there is no need to mention them,” Roberts wrote.

I’m with John Kerry: the hundreds of memos and other documents Roberts wrote while in the Reagan and Bush Senior administrations clearly need to be made public.

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July 21, 2005

Roberts: abortion is the issue

If Roberts is confirmed—and given how Democrats are rolling over, that seems inevitable—his stance on abortion will be tested pretty swiftly.

Back in May, the Supreme Court agreed to hear Ayotte v. Planned Parenthood, a critical New Hampshire case that explicitly challenges abortion rights:

The law in question would have required health care providers to notify a parent at least 48 hours before providing an abortion to a woman under the age of 18, or for young women to obtain a court waiver of this requirement. The law contained no exception for circumstances in which the delay would seriously threaten a young woman’s health. Instead the law would have forced physicians to wait to provide emergency medical care until the young woman was facing imminent death.
… The New Hampshire law […] was struck down by the Boston-based First Circuit Court of Appeals, which ruled the 2003 law unconstitutional for failing to provide an exception to protect the minor’s health in the event of a medical emergency.

As I pointed out in a previous post, it was never really clear why the Court decided to take Ayotte, particularly as it had recently turned down a similar case. There is, however, one possible explanation:

At the time cert. was granted, there was considerable speculation about which group of the nine Justices had agreed to hear it.
… One theory for the grant is that the more liberal Justices, concerned with the prospect of Justice O’Connor’s eventual retirement, had provided four votes to take the case before she left in order to solidify the holding of Stenberg v. Carhart that statutes substantially restricting the availability of abortion must have an exception for the health of the mother.
If that speculation is correct, then we now know that those Justices made a grave miscalculation. Ayotte, rather than a vehicle to reaffirm and potentially expand Stenberg, now stands as a ready-made vehicle to overrule or at least substantially limit it.

And that is exactly how Roberts—who has the support of hate groups such as Operation Rescue—will want to use it. As I wrote in my earlier post, it’s hard to imagine any conservative appointee reaffirming a precedent that restricts regulation of so-called partial-birth abortions (Stenberg struck down a Nebraska law banning the procedure). Particularly an appointee like Roberts, given his record on these issues.

Ayotte and its potential consequences mean that reproductive freedom must be at the heart of the Senate nomination hearings. Planned Parenthood nails it:

“All Supreme Court justices have a great impact on women’s health, but Justice O’Connor’s replacement will play a truly pivotal role,” [said Karen Pearl, interim president of PPFA]. “We expect Judge Roberts to state his position on reproductive freedom fully and completely and answer thoroughly any questions posed by the Senate on his commitment to upholding protections for women’s health and safety. Our own case, Ayotte v. Planned Parenthood, will determine whether the high court believes the Constitution protects the health and safety of women.”

This is a nominee in desperate need of borking. Not gonna succeed, of course, but I can dream (yet again).

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July 20, 2005

The right on Roberts

Proving beyond reasonable doubt that a Roberts nomination is wrong:

Bill Frist: “Judge Roberts is the kind of outstanding nominee that will make America proud. He embodies the qualities America expects in a justice on its highest court: someone who is fair, intelligent, impartial and committed to faithfully interpreting the Constitution and the law.”
Tony Perkins: “The president […] promised to nominate someone along the lines of a Scalia or a Thomas, and that is exactly what he has done.”
Rick Santorum: “I am very pleased that President Bush has chosen to nominate such a highly qualified individual to serve on our nation’s highest court. Judge John Roberts is a brilliant legal mind and a man of deep character who has earned the respect from both sides of the ideological spectrum.”

I’m guessing that means the spectrum from extreme right to extreme far right.

One other thing. Maybe I’m morphing into a conspiracy theorist, but both Frist’s and Bush’s use of the word “faithfully” to describe how Roberts would interpret the constitution increasingly bothers me. It sounds very much like a coded message to the religious right—a reassurance that Roberts really is one of them, a Scalia-clone who will in every sense keep the faith on the Court.

Of course, maybe Roberts will just set aside his anti-choice, anti-civil-rights, anti-minority views and be transformed into O’Connor reincarnate. No? Then why are some leading Democrats—like Joe Lieberman and Harry Reid (this really is the only place I could find his full statement, ironically)—talking as if that’s a possibility?

Because it isn’t—and Democrats need to unite and confront that reality now.

Posted by Stephen Ayer at 12:45 AM in Law | Permalink | Comments (0) | TrackBack (0)

July 19, 2005

The worst kind of wingnut

This is all you need to know about Bush’s Supreme Court nominee. From a report published by the Alliance for Justice when Bush picked Roberts for the U.S. Court of Appeals for the D.C. Circuit in 2003:

[Roberts] has a record of hostility to the rights of women and minorities. He has also taken controversial positions in favor of weakening the separation of church and state and limiting the role of federal courts in protecting the environment. The Alliance for Justice opposes his nomination to the D.C. Circuit.
… While working under Presidents Reagan and Bush, Mr. Roberts supported a hard-line, anti-civil rights policy that opposed affirmative action, would have made it nearly impossible for minorities to prove a violation of the Voting Rights Act and would have “resegregated” America’s public schools. He also took strongly anti-choice positions in two Supreme Court cases, one that severely resticted the ability of poor women to gain information about abortion services, and another that took away a key means for women and clinics to combat anti-abortion zealots.

NARAL Pro-Choice America spells out Roberts’ position on Roe v. Wade:

As Deputy Solicitor Roberts argued in a brief before the U.S. Supreme Court (in a case that did not implicate Roe v. Wade) that “[w]e continue to believe that Roe was wrongly decided and should be overruled… [T]he Court’s conclusion in Roe that there is a fundamental right to an abortion… finds no support in the text, structure, or history of the Constitution.”

Nice. And of course wholly predictable. You can read the Alliance for Justice report here, and find the NARAL report here.

Posted by Stephen Ayer at 08:25 PM in Law | Permalink | Comments (0) | TrackBack (0)

July 18, 2005

Specter on replacing O’Connor

For a few moments, at least, I found this quite encouraging. From a Brit Hume interview with Arlen Specter, chairman of the Senate Judiciary Committee:

HUME: Let me ask you about another matter. You’ve mentioned balance on the court. Justice O’Connor was viewed as a moderate, centrist justice. Do you think the president is under any obligation by this or any other nomination to preserve the existing balance on the court?
SPECTER: […] I think that’s a very weighty factor for him to consider.
The president is in his second term. Many people contributed to his election. But now I think he stands above the fray, and he stands in a position where he has to put a person on not where the president would be beholden to any group, no matter how much they contributed to his election, but something in the national interest.
And when you have these very delicate questions, it’s helpful to the country to have somebody who is a swing vote, which maintains the balance.
[…] Where you have cases like the right to die and whether you’re going to execute 17-year-olds, what you’re going to do with medical marijuana, it is important to have somebody who is not ideologically bound in one camp or the other on one extreme or the other.

Of course, Bush doesn’t give a flying fuck about such issues, but Specter’s comments can’t hurt. Plus I can dream.

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July 05, 2005

After O’Connor, retire the Court

Hanno Kaiser offers one solution to the Supreme Court issue:

Why not eliminate the Supreme Court as a standing body altogether? Inevitable circuit splits would be resolved by an ad-hoc supreme (constitutional) court, which would be in session twice a year. That court would be comprised of randomly selected judges, chosen, for example, from among the judges of the courts of appeal. Each so-selected court would hear and decide cases, selected by the outgoing court. The combination of (i) random composition, and (ii) separation of case selection and decision, would make ideological court-packing virtually impossible, depoliticizing the appointment of judges in the process. Random selection would also likely have a moderating influence on the courts of appeal, because an appeals panel, intent on adopting an extreme position, could no longer expect review by a politically, ideologically, or philosophically sympathetic Supreme Court. […] Genuinely legal considerations would gain in relative importance as a basis for judicial decisions. […] Random selection, as outlined above, would at the very least keep openly political jurisprudence at bay.

One argument against this—inspired—idea is that it would simply politicize all appellate-court nominations. But hasn’t that already happened?

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The Supreme Court and abortion rights

The Supreme Court Nomination Blog highlights an unintended—and unwelcome—consequence of O’Connor’s retirement:

Justice O’Connor’s retirement greatly enhances the importance of Ayotte v. Planned Parenthood, the New Hampshire abortion parental consent case. At the time cert. was granted, there was considerable speculation about which group of the nine Justices had agreed to hear it. The Court had recently turned down a case presenting similar issues, and there certainly was no obligation to hear Ayotte.
One theory for the grant is that the more liberal Justices, concerned with the prospect of Justice O’Connor’s eventual retirement, had provided four votes to take the case before she left in order to solidify the holding of Stenberg v. Carhart that statutes substantially restricting the availability of abortion must have an exception for the health of the mother.
If that speculation is correct, then we now know that those Justices made a grave miscalculation. Ayotte, rather than a vehicle to reaffirm and potentially expand Stenberg, now stands as a ready-made vehicle to overrule or at least substantially limit it.

Since no conservative appointee will willingly reaffirm a precedent that restricts regulation of so-called partial-birth abortions—Stenberg struck down a Nebraska law banning the procedure—Ayotte will be a key early indicator of the future of abortion rights after O’Connor.

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July 03, 2005

In the balance

On CBS’s “Face the Nation” today, Joe Biden made it clear that if Bush nominated Janice Rogers Brown (or a clone) to replace Sandra Day O’Connor, a filibuster would be inevitable. Rogers Brown, remember, has likened minimum-wage and national labor-relations laws to a “socialist revolution,” and suggested that even modest affirmative-action programs resemble the “Jim Crow” laws that once mandated racial segregation in the south.

Biden doesn’t think filibustering such a nominee is particularly radical, noting that one in five justices nominated by a president of the United States since 1789 has been rejected by the Senate.

He also has some words of advice for Bush:

“The bottom line is that whenever there has been a balance in the court that would change with the replacement of a nominee, the nominee has been more closely looked at relating to that balance … Replacing O’Connor with another O’Connor would not change it, but replacing an O’Connor with a Rehnquist, that would change it. So it does come closer into play than it ordinarily would.”
… “[T]his is a chance for the president to resurrect his second term here. This is a chance for him to get back on his game. And for him to go and pick some pure ideologue—does anybody in American think we need in this diverse country more pure ideologues on the Supreme Court? I’m confident he understands that. I don’t know whether he’ll be able to resist the pressure from the hard right, but I sure hope he does for the country’s sake and, quite frankly, his second term’s.”

Biden is being charitable, but I live in hope.

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July 01, 2005

O’Connor’s retirement

Official Republican view, courtesy of Dubya in the Rose Garden:

“Sandra Day O’Connor joined the nation’s highest court in 1981 as the first woman ever appointed to that position. Throughout her tenure she has been a discerning and conscientious judge, and a public servant of complete integrity. Justice O’Connor’s great intellect, wisdom and personal decency have won her the esteem of her colleagues and our country.”

Unofficial Republican view, courtesy of Robert Bork on CNN:

“[R]eferring to a moderate philosophy, conservative philosophy is quite wrong. The question is, those judges who depart from the actual constitution and those who try to stick to the actual constitution. She departed from it. Frequently. So that I wouldn’t call that moderate. I would call it unfortunate, but… as a result she often determined the outcome by swinging from one side to the other.”

Guess Bork is still smarting from 1987.

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June 28, 2005

Just desserts

Someone isn’t very happy with David Souter:

Justice Souter’s vote in the “Kelo vs. City of New London” decision allows city governments to take land from one private owner and give it to another if the government will generate greater tax revenue or other economic benefits when the land is developed by the new owner.
On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel on 34 Cilley Hill Road. This is the present location of Mr. Souter’s home.
Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to own the land.
The proposed development, called “The Lost Liberty Hotel” will feature the “Just Desserts Café” and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America. Instead of a Gideon’s Bible each guest will receive a free copy of Ayn Rand’s novel “Atlas Shrugged.”

Clements reckons that Souter’s land—as “the home of someone largely responsible for destroying property rights for all Americans”—is the perfect spot for his new hotel.

Thanks to Fark.

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June 27, 2005

File-sharing decision

Despite MSM hysteria, this isn’t the end of the world. What Matt says:

[A]s I read Justice Souter’s opinion (PDF) this may not be quite so bad as it seems. He upholds the old Sony rule that the mere fact that a technology has infringing uses is not grounds for holding its maker liable for infringement. He also seems to reject the plaintiffs’ desire to transform “substantial non-infringing use” from a qualitative standard (are there non-trivial legal uses of the technology) to a quantitative one (is the technology, in fact, mostly used legally). Instead what I think he’s saying is that Grokster and StreamCast can be held liable not for their technology, but for their marketing campaign which was allegedly geared toward advertising their products’ infringing uses.

More at TPMCafé.

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June 23, 2005

Property rites

I thought this was the kind of thing that usually happened in France:

Splitting 5-4, the Supreme Court ruled on Thursday that a local government may seize private property for purposes of profit-making private re-development, declaring that this constitutes a “public use” under the Constitution. (Kelo v. New London, 04-108).
While the opinion by Justice John Paul Stevens said that a local government could not take homeowners’ property “simply to confer a private benefit on a particular private party,” the New London. Conn., project involved in this case was “a carefully considered development plan.” While the resulting project would not be open for use by the general public, the Court said, there is no literal requirement of that outcome.

A “carefully considered development plan” feels like a pretty broad definition. This will give local governments wide power to generate tax revenues by demolishing residences for projects like shopping malls and hotel complexes.

Thanks to SCOTUSblog for the tip.

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June 13, 2005

Extreme prejudice

So Texas courts are biased against blacks. Gee, no surprise there, but it’s nice to have the Supremes on your side—and not for the first time on this particular issue:

WASHINGTON (AP) - The Supreme Court overturned the conviction of a black death row inmate who said Texas prosecutors unfairly stacked his jury with whites, issuing a harsh rebuke to the state that executes more people than any other. The 6-3 ruling Monday ordered a new trial for Thomas Miller-El, who challenged his conviction for the 1985 murder of a 25-year-old Dallas motel clerk. It was the second time justices reviewed the case after a lower court refused to reconsider Miller-El’s claims.
The 5th U.S. Circuit Court of Appeals in New Orleans was wrong to reaffirm the conviction by a state court in light of the strong evidence of prejudice during jury selection, justices said. The state court’s conclusion that the prosecutors’ strikes of people from the jury pool was “not racially determined is shown up as wrong to a clear and convincing degree; the state court’s conclusion was unreasonable as well as erroneous,” Justice David H. Souter wrote for the majority.
In the opinion, Souter noted that black jurors were questioned more aggressively about the death penalty, and the pool was “shuffled” at least twice by prosecutors, apparently to increase the chances whites would be selected … “At least two of the jury shuffles conducted by the state make no sense except as efforts to delay consideration of black jury panelists,” Souter said, adding that it “blinks reality” to deny jurors were struck because they were black.
Since capital punishment was reinstated in 1976, Texas has executed over one-third of the more than 900 people put to death in the United States. Justices last year issued stinging reversals in three cases involving Texas death penalty convictions on various grounds, a striking number for a conservative-leaning court that generally favors capital punishment. All the cases involved black defendants.

As I wrote back in April, the Death Penalty Information Center estimates that there are more than 3,400 inmates on death row in the U.S. On average, most remain there for at least a decade. Some 42% are black (compared with 12% of the U.S. population), and 46% white (compared with 75%). In recent years, 60-70 death-row inmates have been executed each year—the largest number in Texas. Since 1976, when the death penalty was reintroduced, more than 960 prisoners have been executed in the U.S.

But who they are matters much more than what they did. Criminologist Dee Wood Harper and computer scientist Stamos Karamouzis, of Loyola University in New Orleans, analyzed 28 years of death-penalty cases using an artificial neural network (ANN), a multiprocessor computing system that mimics the way the human nervous system processes information.

[W]e reconstructed the profiles of more than 1,300 death row inmates from a national population by using simple attributes such as the inmate’s sex, race, and highest year of education completed at the time of first imprisonment for capital offense. Then we performed various experiments in order to develop an ANN that is suitable to the profiles. We trained the network by letting it ‘witness’ 1,000 of the profiles more than 100 times each. Finally, we tested the ANN using 300 profiles that the network never witnessed before.

The ANN was fed 19 different basic data points about each inmate—but no details about the crimes themselves, or about whether each defendant had been fairly represented. Despite this, it was able to predict whether each inmate lived or died with greater than 90% accuracy.

In other words, if you’re a poorly educated black male, your chances of surviving death row are minimal. Particularly in states like Texas.

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May 12, 2005

Gunfight

Over at The Volokh Conspiracy, David Kopel opens a can of heavily armed worms:

The Brady Campaign, the largest of the gun prohibition lobbies, is holding a press conference today to “discuss how police officer’s jobs have become more dangerous since assault weapons with large capacity clips are more readily available.” There’s good reason to be skeptical about whatever claims the group will make. First of all, there are not many guns which actually use “clips” to store their ammunition. The venerable M-1 Garand from World War II used clips, but most guns of the last half-century store their ammunition in “magazines.”
…The group’s definition of “large” capacity magazines is also extreme. The now-expired 1994 federal gun ban defined “large” as anything over 10 rounds, even through millions of ordinary self-loading guns have a standard magazine capacity of 13-17 rounds. Notably, the group (under its previous name of “Handgun Control, Inc.”) testified before the New York City Council in favor of banning any magazine holding more than 6 rounds.

Assault weapons are used in only 1-2% of gun crimes, and account for a similarly small percentage of gun seizures. Many crimes popularly attributed to assault weapons—such as the DC sniper case—are committed with rifles. By contrast, guns of every type with a capacity of ten or more rounds do account for about one-quarter of gun crimes. But that’s hardly surprising: as Kopel notes, most semi-automatic handguns on sale or in circulation have at least this capacity.

In reality, magazine size is largely irrelevant. During the vast majority of gun-related crimes, only a small number of shots are fired—or no shots at all. The type and capacity of gun used has no bearing on the crime’s outcome.

Posted by Stephen Ayer at 06:59 PM in Law | Permalink | Comments (0) | TrackBack (0)

May 02, 2005

Lethal lottery

What determines which death-row inmates eventually get executed? Not their crimes, according to criminologist Dee Wood Harper and computer scientist Stamos Karamouzis of Loyola University in New Orleans.

The Death Penalty Information Center says there are more than 3,400 inmates on death row in the U.S. On average, most remain there for at least a decade. Some 42% are black (compared with 12% of the U.S. population), while 46% are white (compared with 75%). In recent years, 60-70 death-row inmates have been executed each year—the largest number in Texas. Since 1976, when the death penalty was reintroduced, more than 960 prisoners have been executed across the U.S.

Harper and Karamouzis analyzed 28 years of death-penalty cases using an artificial neural network (ANN), a multiprocessor computing system that mimics the way the human nervous system processes information:

The main characteristic of such a computing system is the number of highly interconnected processing elements (neurons) working together to solve specific problems without being programmed with step-by-step instructions. Instead, ANNs are capable of learning on their own or by example through a learning process that involves adjustments to the connections that exist between the neurons.
“[W]e reconstructed the profiles of more than 1,300 death row inmates from a national population by using simple attributes such as the inmate’s sex, race, and highest year of education completed at the time of first imprisonment for capital offense. Then we performed various experiments in order to develop an ANN that is suitable to the profiles. We trained the network by letting it ‘witness’ 1,000 of the profiles more than 100 times each. Finally, we tested the ANN using 300 profiles that the network never witnessed before.

In all, the ANN was fed 19 different basic data points about each inmate—but no details about the crimes themselves, or about whether each defendant had been fairly represented. Despite this, the software was able to predict whether each inmate lived or died with greater than 90% accuracy.

Harper now finds himself aligned with those who have long opposed the death penalty on the grounds that it is, in the end, arbitrary. As he puts it:

“Predicting execution outcomes for prisoners under a sentence of death utilizing essential attributes that have no direct bearing on the judicial process has serious implications concerning the fairness of the death penalty.”

No kidding: clearly who (and where) you are matters a lot more than what you did.

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April 26, 2005

Bulletproof

Law.com reports today’s Supreme Court 5-3 ruling that people convicted of a crime overseas may own a gun in the United States:

The Court reasoned that U.S. law, which prohibits felons who have been convicted in “any court” from owning guns, applies only to domestic crimes.
Justice Stephen G. Breyer, writing for the majority, said interpreting the law broadly to apply to foreign convictions would be unfair to defendants because procedural protections are often less in international courts. If Congress intended foreign convictions to apply, they can rewrite the law to specifically say so, he said.

Breyer was joined by Justices John Paul Stevens, Sandra Day O’Connor, David H. Souter and Ruth Bader Ginsburg, with Justices Clarence Thomas, Antonin Scalia and Anthony Kennedy dissenting.

The ruling was in favor of Gary Sherwood Small, who in 1998 answered “no” to the felony-conviction question on a federal form when he purchased a handgun. In fact, Small had just been paroled in Japan, where he had served time for a weapons violation. He was subsequently indicted for illegal firearms possession.

For resident aliens purchasing a gun in the U.S., the federal question has long been a source of bemusement. If their answer is “no,” a letter of confirmation from a foreign embassy or consulate is required. However at this point the system breaks down, because no checks are ever made—aliens simply pay a (small) fee, and get an official letter bearing witness to their spotless character. Regardless of how many people they massacred back home.

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