Okay, not really, given that Earl Warren is dead.  But play along with me for a moment.

Earlier today I predicted that Michigan Governor Jennifer Granholm would be Obama’s choice to replace David Souter. That was a gut feeling, based largely on Obama’s capacity for out-of-the-box thinking.  But thanks to a post by Reihan Salam at The American Scene, my brain now can articulate what my gut already told me.

Despite the fact he is a conservative, Reihan argues that Obama should choose the strongest possible candidate:

Why does choosing the strongest nominee matter? My sense is that it is about networks. If John Paul Stevens retired, for example, the Supreme Court would move to the right and not the left, even if Obama named a similarly committed liberal, because Stevens has a lot of social capital — he can bring Kennedy on side, he can unite the liberals, etc. You need someone who, through force of personality and wattage, can move the Court in your direction.

I think Reihan right:  the left needs someone who, by the force of his or her personality, can move the court (and when necessary, challenge the right).  Stevens is too old for this role, Ginsburg is too frail, and Breyer seems not suited to it.

What the left really needs is not another John Paul Stevens or David Souter, but another Earl Warren.  Warren, like Souter, was appointed by a Republican President, only to dismay him (and his supporters) as a result of his strongly progressive jurisprudence.  Unlike Souter, however, Warren was a leader, an organizer, a smart politician who often managed to convince even those who disagreed with him to support key rulings.

Of course, the very suggestion of nominating an Earl Warren-style figure might cause Glenn Beck’s head to explode.  Warren remains a bete noire to the right, the symbol of everything they hate about liberal Supreme Court nominees.  The words “Warren Court” have become an epithet in conservative circles, synonymous with “judicial activism.”

So be it.  The hard right is going to go nuts no matter who Obama picks, so why not pick someone who knows more than just procedure?  Why not choose someone who might help end the court’s 4-1-4 gridlock?

My point isn’t that Obama should pick someone as progressive as Warren, but rather that he should pick someone as savvy.  What made Warren so effective was not his judicial philosophy but his ability to get others to agree to his views.  It was Warren, after all, who recognized that Brown v. Board of Education needed to be a unanimous vote.  He spent weeks working on his fellow justices, crafting his opinion to ensure their full support.  The end result was not a perfect decision, but it was exceptionally astute.  The unanimity of the Court closed the door to any further effort by segregationists to reverse the decision.

Warren was not the most brilliant of legal scholars, but he knew how to play the game.  The Court is, after all, a political institution, no matter what the civics textbooks may say.  In fact it is far more political today than it was at the time of Warren’s confirmation.

I think Obama gets that.  He says he wants to end the judicial wars.  How better to do that than to go outside the usual candidate pool (which in recent years has been exclusively appeals court judges)?

In that sense, Granholm would be a great choice — like Warren, she’s been a prosecutor, state attorney general, and governor, so she understands how the system works.  She’s been in the political trenches.   Given the often epic budget battles in Michigan, she knows what to do when the other side fights dirty.  And coming from Michigan, she understands the many challenges facing average Americans.

A Granholm nomination would not be without risk.  Like any politician (or judge, for that matter), she will face a greuling confirmation process, and I’m sure that Republicans will recycle past attacks, including charges of favortism, as well as her fraught political relationship with former Detroit Mayor (and convicted felon) Kwame Kilpatrick.

But that doesn’t mean Obama shouldn’t try.   It certainly would force both sides to revisit the debate over who should be named to the Court.

Related posts

• Two Predictions: SCOTUS and Specter (UPDATED)
• Specter, Souter, and the Opening on the Supreme Court
• Power Corrupts. Unenumerated Powers. . .
• Fallacies by the Whelan-Barrow
• You Have Got to Be Kidding Me, Hillaryland Edition

Sorry for the radio silence yesterday.  I went to the Nats game, which, I have to say, was as abysmal a game as I think I’ve ever seen.  The “final” score was 10-10, after the game was rained out in the bottom of the 11th inning.

In any case, back for more blogging goodness today.  To start, a couple of predictions, based more on gut than anything else.

1.  Michigan Governor Jennifer Granholm will be Obama’s choice for the Supreme Court.

2.   Joe Sestak will win the Democratic nomination for Senator in Pennsylvania, easily defeating Arlen Specter. Specter will then mull a run as a third party candidate.  If Pat Toomey is the Republican nominee and Specter runs, Cantor will win.  If Specter doesn’t run, Sestak wins.  If Tom Ridge is the Republican nominee, Sestak will win in either scenario, as conservative Republicans will stay at home rather than vote for the pro-choice Ridge, who many see as just another RINO.

I know the second prediction goes against the conventional wisdom, which argues that Ridge is a better candidate than Sestak, but I think that ignores the reality that conservative Republicans don’t want victory — if they did, Specter wouldn’t have been behind by 21 points in that Rassmussen poll — they want ideological purity.  They’ll flock to the polls to support Toomey, but lose interest in a Ridge candidacy.

Specter doesn’t have any credibility anymore.  He’s done, and I think Democrats know it.  Sestak will win easily, much as Ned Lamont easily beat Joe Lieberman.  If Specter decides to run as an independent and Toomey is the Republican candidate, Toomey wins because Specter splits the moderate-liberal vote.  If Ridge is the Republican candidate and Specter runs, you’re talking about three moderates running.  In that scenario, conservative Republicans won’t want any of the three, while Democrats will stick with Sestak to win the seat.  And Specter will see his support shrink and shrink until he is a factor only if Toomey is the candidate.

Ironic, isn’t it?  Specter’s decision to bolt probably did as much to kill his chances as staying would have.  And if he bolts. loses the primary, and still runs, the only thing he’ll do is significantly increase the chances of the very guy that caused him to leave the Republican Party.

UPDATE:  Readers Hannah and Jim note that Pennsylvania has a sore losers law, which means Specter can’t run in the general if he loses in the primary.  Knowing Specter, he’ll challenge its constitutionality, claiming it’s a violation of his right to get re-elected no matter what the cost to his integrity free speech.

Related posts

• The Best Candidate to Replace David Souter? Earl Warren
• Specter, Souter, and the Opening on the Supreme Court
• Power Corrupts. Unenumerated Powers. . .
• Fallacies by the Whelan-Barrow
• You Have Got to Be Kidding Me, Hillaryland Edition

Over the past few days, Ed Whelan, NRO’s resident obsessed Koh-hater strict constructionist, was all over the media this weekend, discussing David Souters retirement.  He was in The New York Times.  He was in The Washington Post.

And he made an appearance on the Glenn Beck Show.

One of these things is not like the others.

During his appearance on Beck, Whelan highlighted his unhappiness with Souter’s record, and explained why he thinks several candidates for the seat, including Harold Koh and Sonia Sotomayor, would not make him happy.

He’s certainly entitled to his opinion on specific candidates, and I certainly am entitled to think he’s mistaken.

But this goes a little bit beyond the realm of opinion:

GLENN: Any way to stop the steamroller? There’s none?

WHELAN: You know, well, to be realistic about it, all we can hope to do is increase the political costs of a bad pick but, you know, realistically President Obama, you know, could get, you know, Bill Ayers confirmed these days.

GLENN: Yeah. No, I really think he could. And I think there’s a lot of people in the population that will just be like, oh, stop with the Bill Ayers stuff; so what, he blew up a police station and the Pentagon; oh, stop it. There’s a lot of people who would do that.

WHELAN: You would get letters from Republicans supporting him.

To be clear here, I’m not defending Ayers, who a delusional, self-righteous, ideologue who has never apologized for his crimes.

But come on, Ed.  This is beyond the pale.

Let’s take a little tour of Whelan’s rhetorical fallacies flourishes:

To begin with, Whelan is using a straw man argument.  Obama is so powerful, Whelan says, that he could get Bill Ayers confirmed to the Supreme Court, and therefore we should regard any appointment with suspicion.  But the argument isn’t about Obama’s power and popularity, but rather over how he will use his authority as granted under the Constitution.

Second, Whelan’s suggestion that Obama could get Ayers through the Senate is a false presupposition.  It implies that Obama would want to nominate Ayers, which, of course, is not even remotely true. In addition, it assumes that Senate Democrats are so pliable that they would automatically do Obama’s bidding, a notion that runs counter not only to what has happened since January 20, but also to Whelan’s jeremiad against Koh, which is predicated on the notion that the Senate can and should block his nomination.

Third, Whelan’s use of Ayers is a classic red herring.  Ayers is never going to be a candidate for the Supreme Court, and suggesting that he could be represents a conscious decision to distract Beck’s viewers from the real question at hand — who Obama might pick to replace Souter.

Fourth, Whelan identifies a number of individuals as candidates — Koh, Sotomayor (in her case not by name), Deval Patrick, and Cass Sunstein.  He then suggests, rhetorically, that Obama could get Ayers confirmed.  This is a classic case of guilt by association.  In the mind of Beck’s viewers, they’re all one list — even though, I’m sure, Whelan would claim he had no such intention.

Fifth, earlier in the interview, Whelan describes Koh’s views as “crazy.”  That, of course, is what is known as an ad hominem attack, an attempt to discredit your opponent’s views by attacking his or her character.  Whelan has said he hates ad hominem attacks, so maybe I’m mistaken.  Maybe he defines “crazy” differently — perhaps he’s using it as a synonym for “cool,” “dope,” or “off the hook.” Then again, maybe his definition of ad hominem attacks includes only those made against him.

So let’s check our scorecard here.

√  Straw man argument

√  False presuppositions

√  Red herring

√  Guilt by association

√ Ad hominem attack

If Whelan ever gets tired of writing his blog and running his little NGO, he might want to consider a career in teaching fallacious reasoning.

One other thing:  I respect the right of the NYT and WaPo to publish diverse opinions.  But is it really necessary to include someone who, no matter how serious he may be in their pages, also indulges Glenn Beck’s paranoia?

Related posts

• Specter, Souter, and the Opening on the Supreme Court
• Power Corrupts. Unenumerated Powers. . .
• More Detail on the Koh Cloture Vote
• Messaging 101: Don’t Let the Other Side Define Your Message
• Koh: The Far Right’s Real Agenda

Anyone who thinks that the “controversy” over the nomination of my friend Harold Hongju Koh to serve as Legal Advisor to the Secretary of State is actually about, oh I don’t know, conservatives’ fear of the UN Convention of the Law of the Sea, should read this piece from The Hill today.  An excerpt:

“You’re already having chatter between conservatives on who is going to be the nominee, what type of nominee is going to be put forward by President Obama,” said Brian Darling, the Heritage Foundation’s Senate director and a former top Judiciary Committee staffer.

Groups like the American Center for Law & Justice, the Coalition for a Fair Judiciary and the Committee for Justice will all prepare background research on potential nominees, setting up the eventual, inevitable attacks on the nominee as a left-wing extremist. . . .

Early front-runners for the bogeyman nod have cropped up: Darling mentioned Yale University Law School Dean Harold Koh, whom he called “very extreme.”

Gee, what a surprise.  From the beginning, this has been not about Koh’s role at State but rather his fairly consistent appearance on short lists of potential Democratic nominees for the Supreme Court.  The current campaign against him is designed to make him radioactive, so much so that no President would nominate him.

The same, of course, is true of the campaigns against Dawn Johnsen and Cass Sunstein.  The idea is to destroy worthy candidates for the judiciary before they can even reach the position of being nominated.

The irony, of course is that this is how David Souter got on the court in the first place.  He was a nobody, an obscure justice in a small state who was picked because Bush 41 didn’t want a fight.  And Republicans have hated 41 for it ever since.

To Bush 44’s credit (the Harriet Myers fiasco notwithstanding), his team was able to identify extremely conservative attorneys who also happened to be extremely capable judges.  The end result was that many Democrats in the Senate felt they could not oppose Roberts and Alito even though their views were similar to or more conservative than Mr. Litmus Test himself, Robert Bork.

What makes Republicans think, especially given the Democrats’ numbers in the Senate, that the result will be any different for Obama?

So I say to the President:  go for it.  Stick it in their eye.  Nominate a young, talented, brilliant attorney who will stay on the court for thirty years.

There are a few folks who fit that description.  Harold Koh happens to be one of them.

And now the real motivation behind the smear campaign becomes pretty clear.

Related posts

• Fallacies by the Whelan-Barrow
• Your Long National Nightmare Is Over
• You’re Such a Blockhead, Charlie Brown
• You Know You’re Out of Touch. . .
• Why SCOTUS Should Hear the Al-Marri Case

So everyone thinks Obama has the votes to prevent a filibuster when he nominates someone to replace David Souter at the Supreme Court.  After all, folks note, newly-minted Democrat Arlen Specter will support the President!  And that makes 60 votes, assuming Al Franken can prevent Norm Coleman from hanging on to his legs for three more months.  So why worry?

Really?  Then how do we explain his decision to oppose the nomination of Dawn Johnsen to serve as the Director of the Office of Legal Counsel?

So since becoming a Democrat, Specter has made it clear he will oppose Administration nominations, the President’s budget, and I’m sure other stuff as well.

Remind me.  Why exactly is everyone so happy about this guy?

Related posts

• Power Corrupts. Unenumerated Powers. . .
• Fallacies by the Whelan-Barrow
• Why SCOTUS Should Hear the Al-Marri Case
• Two Predictions: SCOTUS and Specter (UPDATED)
• Torture: Something Old, Something New

So Ed Whelan over at NRO has started what he says will be a series of posts (first one here) on my former boss Harold Hongju Koh and what he regards as the “threat” of something he calls “transnationalism.”  Whelan:

Transnationalists aim in particular to use American courts to import international law to override the policies adopted through the processes of representative government. . . . What transnationalism, at bottom, is all about is depriving American citizens of their powers of representative government by selectively imposing on them the favored policies of Europe’s leftist elites.

So what are these dangerous European ideas that Whelan finds so threatening?  What are the radical concepts that will undermine the foundations of American government, law, and jurisprudence?  According to Whelan, they include customary international law; the treaty power of the Constitution; and the Supreme Court using ruling from other courts, including those operating internationally (such as the International Court of Justice).

I’ll leave questions of treaty law and international courts to others, but let me take a crack at the supposed danger of customary international law.

If understand Whelan correctly (and God knows that’s not easy to do), we’re talking about the unwritten (hence customary) laws that have governed relations between states since the Treaty of Westphalia ended the 30 years war and established (but did not codify) the principle of national sovereignty — and the idea of non-interference in the internal affairs of other nations.

Oh wait, national sovereignty and non-interference — aren’t they what Whelan is arguing is paramount?  But they’re customary international law!  Whelan can’t use it!  But his whole argument is based on sovereignty and non-interference!  But it’s customary international law!   If Whelan keeps this up, he’s going to go into brain lock like one of those fembots on the original Star Trek.

Customary international law is not a conspiracy to steal your rights.  In fact, if it’s anything, it’s an extension of American principles so that others may enjoy the same rights we do.  Take for example Article One of the Universal Declaration of Human Rights, which is widely regarded as customary international law:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Oh. My. God.  Lock up your children!  Those transnationalists are insisting that other people have rights! — and dignity!! — and a conscience!!!

Those bastards.  Have they no shame?

At this point, permit me to offer my standard disclaimer:  I’m not a lawyer.  Maybe I’m missing something here.  Maybe there’s a whole branch of secret customary law that I don’t know about.  Maybe the Illuminati are flying around in Trilateral Commission-owned black helicopters injecting customary international law fairy dust into our water supplies.

But somehow I doubt it.

Customary international law is just what it sounds like — a set of standards and practices which are not formally codified but which everyone agrees should be recognized. As a society, we have lots of names for it:  the golden rule; good manners; consensus; rules of the road; and. . . wait for it. . . common law.  It’s not like Koh or others started making this stuff up just to attack the Bush Administration.

In addition, the whole idea that international law is somehow pernicious and dangerous is just utter nonsense.  As Rosa Brooks noted back in 2005,

Although many Americans associate “international law” with controversial issues such as disarmament treaties or the International Criminal Court, the overwhelming bulk of international law has to do with the mundane but essential ways in which nations cooperate to make life possible in our interconnected world.

The postal system, civil aviation, telecommunications, visas, and maritime law all are based on mutually agreed-upon international standards.  No one questions their wisdom or value — except maybe Ed Whelan.

But don’t take my word for it.  Let’s hear from another profoundly dangerous transnationalist, writing back in 1983 about the Universal Declaration of Human Rights (emphasis mine):

When the Universal Declaration of Human Rights was adopted by the United Nations General Assembly in 1948, Americans hoped that the Jeffersonian vision was about to be realized at last. The Universal Declaration, it was believed, would embody the consensus of the international community in favor of human rights and individual liberty. . . .

Thirty-five years after the adoption of the Universal Declaration, it is clear that these hopes have been fulfilled only in part. Nevertheless, the Universal Declaration remains an international standard against which the human rights practices of all governments can be measured. Its principles have become the basis of a number of binding international covenants and conventions. At the United Nations, it has served to strengthen the arguments of those governments which are genuinely interested in promoting human rights.

Oh man, that’s just one step away from Bolshevism.  Talk about your Eurotrash latte drinking lefties punks.  I mean really, why isn’t Whelan going after this guy as well?

The good news (at least for Whelan) is that the author of this statement never got confirmed by the Senate.  He did, however, get elected the 40th President of the United States.  You may have heard of him — a guy by the name of Ronald Reagan.

As Publius over at Obsidian Wings notes, Whelan ignores a long and storied tradition in this country of respecting and integrating international law (including, yes, international customary law) into court rulings.  In fact, the founding fathers regarded the “law of nations” as a core principle.  Federalist No. 3 (Jay):

It is of high importance to the peace of America that she observe the laws of nations towards all these powers, and to me it appears evident that this will be more perfectly and punctually done by one national government than it could be either by thirteen separate States or by three or four distinct confederacies.

For Whelan to suggest that it’s suddenly un-American to believe that certain international principles are relevant to decisions being made by U.S. federal courts — particularly the Supreme Court — defies reality, reason, and even American history.  The real radical here isn’t Harold Koh.  It’s Ed Whelan.

Related posts

• The Debate behind the Koh Debate
• Koh: The Far Right’s Real Agenda
• Fallacies by the Whelan-Barrow
• Your Long National Nightmare Is Over
• You’re Such a Blockhead, Charlie Brown

Today, the Obama Administration released one of the infamous John Yoo memos from 2001, entitled “Authority for Use of Military Force to Combat Terrorist Activities within the United States.”  You can find the entire appalling document here.  A few highlights for your reading displeasure:

The Fourth Amendment. . .would not apply [to the use of the military domestically against foreign terrorists.]  Thus, for example, we do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant. . . .

[T]he courts would not generally require a warrant, at least when the action was authorizd by the President or other high executive branch official.  The Government’s compelling interest in protecting the nation from attack and in prosecuting the war effort would outweigh the relevant privacy interests, making the search or seizure reasonable. . . .

We believe that Article II of the Constitution, which vests the President with the power to resond to emergency threats to the national security, directly authorizes use of the Armed Forces in domestic operations against terrorists. . . .

Okay, so far we’re only on page 2 of a 35 page opinion.  It gets worse from there.

There’s the part where Yoo suggests that the rights of British kings — supposedly the thing we were trying to get away from in that whole Revolution thingy — were also a precedent:

[A]n executive power, such as the power to use force in response to attacks upon the nation, not specifically detailed in Article II, Section 2, must remain with the President.  This has been the general approach in regard to other powers not mentioned in the Constitution. . . .

These “exceptions” and “qualifications” are limited to those powers, in which the Framers unbundled certain plenary powers that had traditionally been regarded as “executive.”  Some elements of those powers were assigned to Congress in Article I, while other elemens were expressly retained as executive powers in the enumerations in Article II.

So for example, the King’s traditional powers with respect to war and peace were disaggregated:  the royal power to declare war was given to Congress under Article I, while the Commander in Chief authority was expressly reserved to the President in Article II.  Further, the Framers altered other plenary powers of the King, such as treaties and appointments, by including the Senate in their exercise.  Any other, unenumerated executive powers, however, were conveyed to the President by the Vesting Clause.

Such unenumerated power includes the authority to use military force, whether at home or abroad, in response to a direct attack upon the United States.

I’m not a lawyer, but if I read this correctly, the reasoning is that the President retains all authority vested in the British Crown in the 18th Century that the Constitution did not assign to other branches of government.

One of the more stunning passages talks about previous conflicts as precedents that justify the proposed action:

Although the exercise of such authority usually has concerned the use of force abroad, there have been cases, from the 1794 Whiskey Rebellion on, in which the President has deployed military force within the United States against armed forces operating domestically.  During the Civil war and the War of 1812, federal troops fought enemy armies operating within the continental United States.  On other occasions, the President has used military force within the United States against Indian tribes and bands.  In yet other circumstances, the Armed Forces have been used to counter resistance to federal court orders. . . . We believe that the text, structure, and history of the Constitution, in light of its executive, legislative, and judicial interpretation, clearly supports deployment of the military domestically.

A couple of things about this argument stand out.  First, I think Lincoln would be surprised to hear that the Confederate “enemy army” was the same as the British invaders of 1812-14.  As far as I know, he was careful never to portray the Confederacy as a sovereign nation — I mean, that was the whole point, wasn’t it?

Second, Yoo uses the Indian wars to justify proposed action — wars now widely acknowledged as one of the greatest embarrassments in American history.

Third, when the Armed Forces have been used to “counter resistance to federal court orders,” it was to enforce and uphold the Constitution, not ignore it.  To put it another way, the federalized National Guard units were deployed to enforce court orders, not trample on the prerogative of the courts to issue them.   Little Rock, Oxford, and Selma were a far different kind of action than what the Bush Administration was proposing.

Here’s another little gem:

Using the military to defend the nation requires action and energy in execution, rather than the deliberate formulation of rules to govern private conduct.

In other words, there are no laws when it comes to pursuing military action.  Don’t let those pesky little rules mess up your vision, el Presidente.

And yet another:

If a standing army and navy are required to repel or deter sudden attacks, then by creating such forces and placing them under the President’s command, Congress is necessarily authorizing him to deploy those forces.

. . . thus making a formal Declaration of War unnecessary?   That’s an enumerated power, but don’t let that get in the way of your logic, guys.

What I find particularly striking about all this is how it completely contradicts the strict constructionist theory of Constitutional law.  As I understand it, constructionists argue that if it’s not explicitly enumerated in the Constitution, it isn’t there — it’s the basis of the entire constructionist argument against Roe v. Wade, to cite one example.

But Yoo is arguing the exact opposite:  if it’s not enumerated in the Constitution, then it’s part of the President’s “unenumerated powers.”  To appreciate the absurdity of this, think about that term for a minute.  It basically means that anything not assigned to Congress or the judiciary is vested in the President.

That’s not a separation of powers.  It isn’t even a theory of a unitary executive.  It’s the prelude to dictatorship — a dictatorship that was to be justified thanks to memoranda diligently generated by Justice Department flacks.

I’m still reading this — I can only take so much in a single sitting.  I may have more later.

Related posts

• Torture: Something Old, Something New
• Here Come the Torture Memos: Ten Thoughts (UPDATED)
• Why SCOTUS Should Hear the Al-Marri Case
• The Torture Memos: The Two John McCains
• The Growing Campaign to Impeach Jay Bybee

Daphne Eviatar over at The Washington Independent has a good piece today on why Supreme Court probably will never hear the case of Ali Saleh Kahlah al-Marri even though it has agreed to review it.  Al-Marri is a legal U.S. resident who the Bush Administration alleges was an al Qaeda sleeper agent.  He was arrested on September 11, 2001 as a material witness to the attacks, and since then, the government has held him without charge in the same South Carolina brig where they held Jose Padilla.

As Eviatar notes, the Bush Administration may choose to charge al-Marri as a criminal (and move him to a regular prison) rather than risk losing the case.  Even if they don’t, the Obama Administration is likely to reverse the Bush Administration’s position, either charging al-Marri in civilian courts or releasing him.  Either way, the chances are pretty slim that the case will actually get heard.

That would be unfortunate for two important reasons.

First, it’s largely forgotten now, but al Marri was one of those picked up during the FBI’s post-9/11 profiling orgy dragnet, during which thousands of people were detained only because someone thought they looked or acted suspicious.  Some turned out to be violating immigration law, but in many cases, the FBI held legal U.S. residents and citizens, instead instead naming them as “material witnesses” in the 9/11 investigation.

Since then, the Bush Administration’s disastrous pursuit of the war on terror — torture, indefinite detention, rendition, Abu Ghraib, Guantanamo, etc. — has meant that these events have fallen down the memory hole.  As the Obama Administration weighs what to do to document and assign responsiblility for the Bush Administration’s past actions, it should not overlook the events of the first few months after the attacks, a time when the U.S. Goverment mounted the largest mass round-up of U.S. citizens and legal residents since the detention of Japanese-Americans in World War Two.

By hearing the al-Marri case, the Court would provide an important opportunity to remind Americans that the Bush Administration’s crimes did not start with its interrogation policies, that long before we knew about torture memos, secret renditions, and other crimes, average American citizens and legal residents were locked up just because someone thought they looked suspicious or acted strangely.  By arguing that al-Marri should not be detained, the Obama Administration would demonstrate its willingness to repudiate even the more obscure components of the Bush Administration’s policies.

Second, were SCOTUS to hear and rule on the case, they are likely to overturn the government’s argument that a U.S. resident can be detained indefinitely.  That would close another legal loophole, preventing a future president from taking similar action in the future.

The reality is that we need to do more than merely change the Bush policies and prosecute those responsible.  We also need to change the torture-permissive culture that celebrated such acts.

There are two components to that effort:  legal precedent and popular culture.

In the case of the former, SCOTUS already has begun to create a framework that will make much more difficult any future attempt to pursue Bush-like policies in the future.  The al-Marri case represents an important part of that effort, and therefore should be heard and decided.  (Yes, I am assuming that the case will be decided in al-Marri’s favor, in large part because that would be consistent with every other Supreme Court ruling on Bush’s policies).

In terms of the latter, changing the culture will take more time.  We need to rethink a world in which “24″ can repeatedly show brutal torture without public complaint while half the country goes nuts over the brief appearance of Janet Jackson’s breast.  One way to make that happen is to air out the Bush Administration’s dirty laundry.  The al-Marri case offers just such an opportunity to the incoming Administration.

To draw an analogy, the civil rights movement succeeded when it did not merely because of laws but also because Americans decided that they no longer would tolerate Jim Crow.  That represented not merely a legal triumph but also a fundamental change in American culture.

We need something similar to happen to ensure that we eradicate the torture culture once and for all.  To that end, the Obama Administration should actively encourage the Court to rule in al-Marri’s favor.  Only when we change the way we look at torture will we eliminate the risk of a future President pursuing similar policies.

Related posts

• The New Executive Orders: Guantanamo, Torture, Detainees
• Johnson and Johnsen
• Closing Guantanamo: Only The End of the Beginning
• Torture: Something Old, Something New
• Torture Memos: Humor vs. Satire

We all knew that the myth of the impartiality of Supreme Court justices died with Bush v. Gore, but who’d a thunk that the Supremes would get this nasty about the new Administration even before they take office?

Justice Samuel Alito, channeling Mick Jagger of all people:

At a gala dinner hosted by the American Spectator Wednesday, Supreme Court Justice Samuel A. Alito Jr. cracked wise at Vice President-elect Joe Biden’s expense, raising the Delaware senator’s past brushes with academic dishonesty to the delight of his conservative audience.

Recalling an incident in which an article he submitted to the Spectator was rejected for publication, Alito began by joking that his unpublished piece had detailed how he would vote on the most controversial issues facing the Supreme Court.

Then — in the process of suggesting things had turned out well for him despite this rejection — Alito trained his sights on Barack Obama’s running mate.

“To coin a phrase, in the spirit of the vice president-elect,” Alito began, “you don’t always get what you want, but you get what you need.”

Alito paused before continuing: “Did somebody say that before?”

But even worse, Clarence Thomas wants his colleagues to waste their time on a nutjob’s attempt to void the recent Presidential election:

In a highly unusual move, U.S. Associate Supreme Court Justice Clarence Thomas has asked his colleagues on the court to consider the request of an East Brunswick, N.J. attorney who has filed a lawsuit challenging President-elect Barack Obama’s status as a United States citizen.

Thomas’s action took place after Justice David Souter had rejected a petition known as an application for a stay of writ of certiorari that asked the court to prevent the meeting of the Electoral College on Dec. 15, which will certify Obama as the 44th president of the United States and its first African-American president.

The court has scheduled a Dec. 5 conference on the writ — just 10 days before the Electoral College meets.

The high court’s only African American is bringing the matter to his colleagues as a result of the writ that was filed by attorney Leo Donofrio. Donofrio sued the New Jersey Secretary of State Nina Wells, contending that Obama was not qualified to be on the state’s presidential ballot because of Donofrio’s own questions about Obama citizenship.

Imagine what would happen had Ruth Ginsberg made a joke about Cheney?  Or if David Souter had tried to overturn the results of the 2004 election?  So much for an end to the culture wars. So much for the impartiality of Supreme Court justices.  These guys aren’t even trying to pretend anymore.

This is something for which we can thank the Bush family.  And given the ages of Thomas and Alito, it’s the gift that will keep on giving for the next twenty or thirty years.

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Apparently, the worst is yet to come for Sarah Palin.  According to a number of sources, CBS will air the last part of its interview with her tonight.  It’s not good news for the McCain campaign

Of concern to McCain’s campaign, however, is a remaining and still-undisclosed clip from Palin’s interview with Couric last week that has the political world buzzing.  The Palin aide, after first noting how “infuriating” it was for CBS to purportedly leak word about the gaffe, revealed that it came in response to a question about Supreme Court decisions.

After noting Roe vs. Wade, Palin was apparently unable to discuss any major court cases.  There was no verbal fumbling with this particular question as there was with some others, the aide said, but rather silence.

Every school kid learns a few Supreme Court cases.  Roe v. Wade is one, but so are Marbury v. Madison, Dredd Scott, Plessy v. Ferguson,  Brown v. Board of Education, even Bush v. Gore.

She. Didn’t. Freaking. Know.

But just for a moment, let’s give the Sarahnator the benefit of the doubt.  Maybe she was sick the week her high school civics class covered the Supreme Court.  Maybe the Alaska Independence Party got a law passed prohibiting any mention of Supreme Court cases in Alaska’s school curriculum.  Maybe none of the six colleges she attended offered an American History class (or maybe she didn’t take any).

Even then, there’s a small problem:  Exxon v. Baker, from June of this year:

The Supreme Court on Wednesday reduced what had once been a $5 billion punitive damages award against Exxon Mobil to about $500 million. The ruling essentially concluded a legal saga that started when the Exxon Valdez, a supertanker, struck a reef and spilled 11 million gallons of crude oil into the Prince William Sound in Alaska in 1989.

And it’s not like Sunshine Sarah didn’t know about it:

Public officials in Alaska are reacting strongly to the U.S. Supreme Court’s decision Wednesday to slash the $2.5 billion damage award to Alaska fishermen to $508 million, nearly 20 years after the Exxon Valdez disaster. . . .

Gov. Sarah Palin [said,]  “I am extremely disappointed with today’s decision by the U.S. Supreme Court,” Palin said. “While the decision brings some degree of closure to Alaskans suffering from 19 years of litigation and delay, the court gutted the jury’s decision on punitive damages.”

Palin added, “It is tragic that so many Alaska fishermen and their families have had their lives put on hold waiting for this decision. My heart goes out to those affected, especially the families of the thousands of Alaskans who passed away while waiting for justice.”

Palin said the decision today undercut one of the principal legs of deterrence for those engaged in maritime shipping in Alaska waters. She called on state and federal agencies to be vigilant and firm in regulating such activities.

This was a huge deal in Alaska, generating bipartisan outrage.  Palin was right in the middle of it.  According to a friend who does public relations for progressive organizations, Palin appeared at several events to express her outrage over the decision.

Clearly she’s panicking.  She is so discombobulated, so completely freaked out that she can’t even remember the biggest Supreme Court case to hit Alaska in many years.  She isn’t stupid.  She’s cratering.

Either that, or Katie Couric scares the living crap out of her.  That doesn’t exactly reassure me that a President Palin could stare down Hu Jintao or Vladimir Putin.

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Earlier today, I wrote about the Republicans’ likely attack on Miranda v. Arizona.  Now, via SCOTUS blog, we have the fall Supreme Court docket.  It includes a case called Arizona v. Johnson:

Whether, in the context of a vehicular stop for a minor traffic infraction, an officer may conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but had no reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense.

This is not directly related to the Miranda decision, but it will provide a litmus test of where Alito and Roberts stand on these issues.

The Court will hear arguments on December 3.

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There’s a line from Sarah Palin’s acceptance speech that has rankled quite a few progressives and libertarians:

Al Qaeda terrorists still plot to inflict catastrophic harm on America … [Obama]’s worried that someone won’t read them their rights?

The partisan crowd responded, as you would expect, with an extended standing ovation — in fact, it was one of her most popular zingers in a speech filled with them.

Some have argued that Palin’s comment is merely an extension of McCain’s criticism of Boumediene v. Bush.  In that case, the Supreme Court ruled 5-4 that those being held at Guantanamo have a right to habeas corpus under the Constitution and that the section of the Military Commissions Act that took away that right was unconstitutional.  When Boumediene was announced, McCain called it “one of the worst decisions in the history of this country.”

Here, for example, is what Daniel Larison has to say:

[Palin's speech] is a fundamentally misleading framing of the issue of providing detainees with the ability to challenge the charges against them through a judicial process. . . .The question is whether the government has the right to seize someone, whether a foreigner or a U.S. citizen, accuse him of conspiring with terrorists, strip him of all legal protections and keep him detained indefinitely without access to due process.  The McCain/Palin position is apparently that the government can and should do this.

Andrew Sullivan describess Palin’s one-liner as her position on Boumediene, quoting Larison’s comments in even greater detail.  Daphne Eviatar calls Palin “Dick Cheney in a skirt,” arguing that

Palin’s speech last night suggests that in a McCain-Palin administration, the indefinite detention and abuse of foreigners without charges will remain an issue for at least another four years. And it could well be that if McCain has his way with the Supreme Court, we could easily end up with another decision as infamous as Korematsu.

Larison, Sullivan, and Eviatar have a point — it’s clear that the McCain campaign not only dislikes the Boumediene case but also sees it as an opportunity to hit Democrats for being soft on terrorism.

But the real target of Conservative attacks is not Boumediene.  It’s Miranda v. Arizona, the 1966 Supreme Court ruling that a suspect in police custody has the right to consult with an attorney, as well as the right not to incriminate themselves.  The Court also ruled that suspects must be made to understand their rights, and that police cannot interrogate a suspect without an attorney present unless the suspect has waived these rights.

Conservatives despise Miranda v. Arizona.  They hate it more than any other Supreme Court ruling, with the possible exception of Roe v. Wade.  They regard it as a leading example of judicial activism — which they define as the effort of certain judges (including Supreme Court justices) to create (”legislate”) law, rather than merely interpret it.

Since Nixon, conservatives have argued that judicial activists should be replaced by “strict constructionists,”  who, as Wikipedia wryly notes, believe in “a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation.”

Scalia, Thomas, Roberts, and Alito all are strict constructionists. Were a case challenging Miranda ever to come before the Court, they would favor overturning the original ruling. For example, in Dickerson v. United States (2000), Scalia, joined by Thomas, said

Miranda was objectionable for innumerable reasons, not least the fact that cases spanning more than 70 years had rejected its core premise that, absent the warnings and an effective waiver of the right to remain silent and of the (thitherto unknown) right to have an attorney present, a statement obtained pursuant to custodial interrogation was necessarily the product of compulsion. . . .Moreover, history and precedent aside, the decision in Miranda, if read as an explication of what the Constitution requires, is preposterous.

Here’s what John McCain had to say about strict constructionism in his acceptance speech at the convention:

We believe in a strong defense, work, faith, service, a culture of life, personal responsibility, the rule of law, and judges who dispense justice impartially and don’t legislate from the bench.

Much as was the case with Palin’s anti-habeas corpus line, McCain’s statement was greeted with thunderous applause.

I read McCain’s statement as an endorsement of the long-standing conservative practice of appointing strict constructionists to the Court (and to lower courts as well).  Larison therefore is right in suggesting that, under a McCain Administration, we could end up with a strict constructionist-dominated Supreme Court capable of overturning Boumediene.

But that’s not really the point.

The real danger is that such a Court would gut Miranda and other key ruling on defendants’ rights, thus opening the door to arbitrary detentions in the United States.

John McCain has stated repeatedly that he would end the practice of torture and close Guantanamo.  But such promises are meaningless if he also were to appoint Supreme Court justices who don’t believe that the Bill of Rights guarantees the right to silence, the right to legal representation, and the right not to incriminate oneself.

Were a strict constructionist-dominated Court to gut Miranda and other key rulings, Americans would live in a country were executive fiat had replaced the rule of law.  Even if McCain were not to use such powers himself, it would only be a matter of time that a future President — say a President Palin, for example — would suspend fundamental rights in the name of national security.

And that, my friends, is the kind of change that we should never believe in.

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The Hillary zombies will not die:

Thing is, it’s no longer about Hillary for many of them. I sat in on a group of high-powered Clinton supporters gathering in New York last week to create a nonpartisan group called The New Agenda. There was little discussion of the current campaign.

The New Agenda’s agenda is to look out for women’s political interests where the Democratic Party and old-line feminist organizations had failed. The attendees reserved special fury for the Democratic National Committee and its passivity before the misogynistic carnival. One of their specifics is getting MSNBC jester Chris Matthews fired — and if he intends to run for the Senate from Pennsylvania, to end that idea.

Every member has her own plans for November, including for a few, voting for Obama.  Co-founder Amy Siskind, a former Wall Street exec and Clinton fundraiser, told me, “I won’t vote for Obama, but I’m not sure what I’ll do.” Cynthia Ruccia, a Democratic activist from Columbus, Ohio, who twice ran against Republican John Kasich, is supporting McCain — and organizing other Democrats in her swing state to do likewise.

The McCain camp has noticed. Carly Fiorina, former CEO of Hewlett-Packard and McCain’s adviser, met with Siskind in New York. She flew to Columbus to confer with Ruccia, Nancy Hopkins, another New Agenda founder, and 75 other miffed Democratic women. (Hopkins is the MIT biologist who famously protested a suggestion by then-Harvard University President Lawrence Summers that boys might be innately better at science than girls.)

DNC chairman Howard Dean has called Ruccia twice. “He was just waking up to the thought that women around the country were upset over the treatment of Hillary,” she told me. Ruccia tends to doubt that putting Clinton’s name to a roll-call vote will mollify many of the female holdouts. “The train left the station a long time ago,” she said.

I have three words for these folks:  Stevens.  Ginsberg.  Souter.  Think all three will last through another Republican term?  Think you can afford for any of them not to?  How does that fit into your nice little New Agenda?

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