MILWAUKEE (Legal Newsline) – Milwaukee County Sheriff David A. Clarke Jr. has accused District Attorney John Chisholm, a fellow Democrat, of “abuse of prosecutorial power” in the relentless criminal investigation of Republican Wisconsin Gov. Scott Walker and 29 conservative groups. Clarke’s forceful public criticism is of Chisholm and the so-called “John Doe” investigation that Chisholm has pursued since 2010 against Walker, his staff and virtually every conservative advocacy group in the state. Clarke, who has been sheriff since 2002 and is running for re-election on Tuesday as the Democratic nominee, has been elected and re-elected with heavy support both from […]
Corrected at 3:00 p.m. on March 12.
For far too long, public debate about terrorism has been dominated by right-wing and left-wing ideologues. In this corner, the Cheneys and their allies. In that corner, the American Civil Liberties Union, gonzo House Democrats and academics, and their allies. In neither corner, common sense.
Typifying the quality of the debate was the ACLU’s wildly overstated full-page ad in The New York Times on March 7 darkly suggesting that President Obama would be subverting "our Constitution and due process" if he abandons his administration’s politically toxic plan to move the prosecution of five accused 9/11 conspirators from a military commission to a federal civilian court. The centerpiece of the ad was a drawing of Obama’s face morphing into that of George W. Bush — who seems to be more hated in ACLU-land than Osama bin Laden.
Meanwhile, hard-right conservatives including Liz Cheney and William Kristol have been running a deeply misguided campaign, including a video emblazoned with "DOJ: Department of Jihad," to smear as disloyal several lawyers now working in the Obama Justice Department. They previously represented Guantanamo detainees or sought due process protections for people who might be innocent.
The best hope for replacing this sterile right-left shout-fest with a bipartisan, commonsense approach to terrorism may be the diligent efforts of Sen. Lindsey Graham, R-S.C., to find common ground with the Obama administration. And the time is ripe for the president to realize that a grand bargain with Graham — including comprehensive legislation on how to handle suspected terrorists, closing the Guantanamo prison camp, and related issues — could help him recover from blunders such as seeking to try the 9/11 defendants in Manhattan.
As one who has preached for years that presidents and Supreme Court justices should show more deference to Congress, I must admit that Congress seems less and less worthy of it. Might presidential and judicial despotism — if enlightened — be the lesser of evils?
Last week, for example, I criticized President Obama for failing to seek detailed legislation on detention and interrogation of terrorism suspects. This brought a reminder from an administration official that any effort to get a responsible detention bill past congressional Republicans — who seem far more eager to demagogue the president’s plan to close Guantanamo than to grapple with the hard issues — would probably be doomed.
A fair point. I still think that Obama should give it a try. But I would not bet on a constructive Republican response.
Harry Reid’s "no Negro dialect" line was a classic example of Michael Kinsley’s definition of a gaffe as a politician telling the truth.
And when Obama is faulted for letting Democratic potentates on the Hill festoon the stimulus and health care bills with special-interest favors, I wonder: Could he have forced the potentates to be responsible had he tried?
On another front, I have faulted the Supreme Court’s conservatives for seeking to stretch First Amendment law to the breaking point to gut campaign spending laws. But those laws are so pockmarked with congressional efforts to stifle critics and other incumbent-protection games as to command little respect.
Anyone who has seen a few congressional hearings and a few Supreme Court arguments has to notice that the more democratic branch often seems a sorry circus by comparison with the analytical rigor and intellectual seriousness of the unelected justices, liberal and conservative alike.
It’s hard for a broken political system to fix a broken financial system. That’s one lesson of the failure of the House of Representatives — and of its members’ constituents — on Monday to put aside partisan bickering and muster the seriousness necessary to contain the economic damage that is spreading so fast as to threaten calamity.
The 228 no votes on the bipartisan rescue plan — cast mainly by the most conservative Republicans, the most liberal Democrats, and the members most vulnerable to voters’ misguided wrath — not only destroyed nearly $500 billion in shareholder equity between Monday morning and Wednesday night. It was also symptomatic of our society’s increasing polarization into warring conservative and liberal camps pervaded by ignorance of economic realities, misinformed ideological certitudes, and unwillingness to trust even the consensus judgment of Democratic and Republican leaders and their expert advisers.
The damage done both to the economy and to international confidence in our capacity for self-government will be lasting even if Congress passes something like the administration’s $700 billion rescue plan by the time this is published, and even if that spurs a stock market rally.
Some banks that could have been saved if the rescue plan had passed on Monday may well go under. And the foreign lenders who hold about half of America’s nearly $6 trillion in public debt will be looking harder for other places to park their money.
The deepest cause of this failure is that many, many voters are at once stunningly uninformed about public affairs and deluded by populist simplicities ranging from Republican Rep. Thaddeus McCotter’s perception of "Bolshevik" tendencies in the Bush administration’s rescue plan to many Democrats’ reluctance to save the financial system if doing so might possibly enrich some undeserving Wall Street fat cats.
Did you know that the Bush administration is pushing Congress to approve a long-term regime of governmental eavesdropping without judicial warrants on the overseas phone calls and e-mails of countless Americans?
And that the administration still insists on using interrogation techniques so coercive that human-rights groups call them torture?
And that it claims the power to hold dark-skinned foreigners in Guantanamo Bay prisons without meaningful judicial review?
All true. And all horrifying to the American Civil Liberties Union, international human-rights groups, and self-righteous Europeans.
It’s also true, however, that most congressional Democrats support warrantless eavesdsropping on the overseas communications of countless Americans. (See my colleague Shane Harris’s "A Court at the Crossroads," p. 62.)
It’s further true that, although both have waffled lately, Sen. Hillary Rodham Clinton and former President Clinton have supported forms of coercive interrogation that horrify human-rights groups. So will the next president, no matter who wins.
Finally, the Clinton administration itself claimed the power to hold dark-skinned foreigners in Guantanamo Bay prisons without meaningful judicial review. Those were refugees fleeing Haiti, not suspected terrorists. And although most Democrats now support searching judicial review of the current Guantanamo detentions, as I do, there is broad bipartisan support for holding those found to be enemy combatants even if they have committed no crimes or cannot feasibly be prosecuted.
For all the partisan bitterness in the air and the messes that Attorney General Alberto Gonzales has made, it shouldn’t be that hard for President Bush to replace him with someone far, far more effective. Nor should it be hard to get a conservative Republican nominee of quality confirmed without giving away the store to Democrats or weakening the presidency.
In particular, the right nominee could get through the Senate without caving in to the demands of some Democrats that a special prosecutor be appointed to investigate the White House role in the firings of nine U.S. attorneys, or that Bush abandon his claims of executive privilege.
The big question, at this writing, is whether a president who so clearly values lapdog loyalty over competence, integrity, and independence can bring himself to invert those priorities.
If the nominee inspires bipartisan trust, who needs special prosecutors with their built-in bias toward investigative overkill? The amazingly still-unexplained U.S. attorney firings do smell fishy and do need to be investigated energetically. But this ain’t Watergate. The American people get that.
There is, to be sure, something to the complaint by David Rivkin and Lee Casey, in an August 29 Wall Street Journal op-ed, that "the only unifying theme congressional Democrats have exhibited since taking control last January is an unremitting hostility toward President Bush in particular, and executive power in general."
Any nominee will face a tough confirmation hearing.
But even those Senate Democrats most eager to rub Bush’s nose in the dirt understand that if they come off as obstructionist, or beat the tired "special prosecutor" drum too incessantly, the electorate will punish them. And their hostility to executive power is tempered by their confidence that it will belong to them as of January 20, 2009.
In 19 cases during the past year, the Supreme Court split down the middle along ideological lines. The court’s four conservatives-Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito-lined up on one side, and the four liberals-Justices Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and David Souter-lined up on the other. Each time, the tie was broken by a fifth vote belonging to Justice Anthony Kennedy. On 13 occasions, Kennedy aligned himself wi
In 19 cases during the past year, the Supreme Court split down the middle along ideological lines. The court’s four conservatives-Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito-lined up on one side, and the four liberals-Justices Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and David Souter-lined up on the other. Each time, the tie was broken by a fifth vote belonging to Justice Anthony Kennedy. On 13 occasions, Kennedy aligned himself with the conservatives. While the court is clearly moving to the right, it’s obvious that Kennedy holds the balance of power.
Kennedy is known for examining his conscience as well as the law books when he decides a difficult case. And justices caught in the middle of fierce ideological disputes sometimes agonize or brood over their opinions. But sitting with a NEWSWEEK reporter in his chambers overlooking the U.S. Capitol on the day after the court’s final decision of the 2006-07 term, Kennedy seemed cheerful, even enthusiastic, about his role. True, "the cases this year were more difficult than I thought they would be," he said. In closely divided cases when time is short, he added, the court’s "tone becomes somewhat more acrimonious." But he laughed and held up his hands and said, "Hey, I’m a lawyer. I’m trained to argue. I love it."
The most remarkable aspect of the Supreme Court’s big 5-4 decision on June 25 easing restrictions on corporate campaign spending has gone virtually unnoticed: Like Congress, the Court is so ideologically polarized that even when a principled, pragmatic, nonideological solution to a knotty problem was staring them in the face, all nine justices spurned it.
The knotty problem was that Congress, in the "issue ad" provision of the 2002 McCain-Feingold campaign finance law, had joined a legitimate goal with an illegitimate one.
The legitimate goal was to prevent business corporations — which have no mandate from their ideologically eclectic stockholders to use their money to meddle in election campaigns — from doing just that.
The illegitimate goal was to censor criticism of elected federal officials (along with other candidates) by nonprofit citizens advocacy groups — ranging from the National Rifle Association to the Sierra Club — whose members pay dues and band together precisely for the purpose of promoting political causes near and dear to them.
Congress quite deliberately, and cynically, accomplished both goals in the same provision (Section 203) by the simple and stealthy expedient of making it a federal crime for any corporation (excepting media corporations) to pay for a broadcast ad that refers to any federal candidate during the run-up to an election.
Because nearly all nonprofit advocacy groups are incorporated, the effect was to extend to such groups a ban ostensibly aimed at companies like General Electric and Dow Chemical. Indeed, it was the nonprofit citizens groups, not Big Business, that had bought many or most of the attack ads that legislators so resent.
Measured by the passion of the dissenters, today’s 5-4 vote to strike down two school districts’ use of race-based student assignments to promote integration could be the biggest Supreme Court decision of any kind in years. Justice Stephen Breyer’s 77-page dissent-which he summarized from the bench in a tone of mounting indignation, for a near-record 27 minutes-thundered that "to invalidate the plans under review is to threaten the promise" of "true racial equality" that Brown v. Board of Educ
Measured by the passion of the dissenters, today’s 5-4 vote to strike down two school districts’ use of race-based student assignments to promote integration could be the biggest Supreme Court decision of any kind in years. Justice Stephen Breyer’s 77-page dissent-which he summarized from the bench in a tone of mounting indignation, for a near-record 27 minutes-thundered that "to invalidate the plans under review is to threaten the promise" of "true racial equality" that Brown v. Board of Education established. Breyer added that the position of the four most-conservative justices "would break that promise."
During the hiatus between Supreme Court confirmation battles, we may as well settle the clash between the conservative and liberal approaches to constitutional interpretation. The battle lines are familiar. Conservatives, led by Justices Antonin Scalia and Clarence Thomas, say that the sole legitimate approach is to follow the literal text and original meaning of constitutional provisions and amendments. Justices’ policy preferences should play no role, assert conservative "originalists." But the claim is undercut somewhat by the consistency with which the conservatives’ votes on abortion, religion, race, gay rights, and many other big issues happen to fit their policy preferences.
Liberals and many moderates prefer the "living-Constitution" approach, which has been dominant at least since the Warren Court. It involves using ancient but conveniently vague constitutional phrases to enforce "evolving standards of decency," to promote equality, and to vindicate what sometimes-liberal Justice Anthony Kennedy likes to call "the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." Not surprisingly, constitutional evolution in the hands of liberals supports liberal policies.
Each school of thought is most persuasive in debunking the other. Justice Stephen Breyer skewers originalism in his 2005 book, Active Liberty: "Why would the Framers, who disagreed even about the necessity of including a Bill of Rights in the Constitution, who disagreed about the content of the Bill of Rights, nonetheless have agreed about what school of interpretive thought should prove dominant in interpreting the Bill of Rights in the centuries to come?"