otium cum dignitate

Enough About Abortion

I'm starting to get really tired of abortion dominating all of our discussions about anything even remotely political these days.  I would do anything to read a newspaper article about the Supreme Court that doesn't mention abortion.  PEOPLE, OUR JUSTICE SYSTEM DEALS WITH MORE ISSUES THAN JUST ABORTION!

Anyways, last night's West Wing episode introduced an interesting hypothetical:  what if both of the major candidates in a presidential campaign had the SAME views on abortion?  It would blow up the whole "moral issues" obsession that took hold of our last election. 

Bill Clinton recently had some interesting points on this topic.  In a speech to Democrats, he explained:

"So how come we can't talk about [abortion]?" he added. "Because we basically let political ads turn every player in this drama into a two-dimensional cartoon instead of a three-dimensional person."

Clinton also spoke about how most Americans fall somewhere in the middle when it comes to this issue.  Much like the two candidates in the West Wing episode, most people probably think abortion is a "tragedy" that should be limited, but not illegal. 

It still astounds me that people are so obsessed with an issue that was decided 30 years ago, and shows no signs of being overturned anytime in the near future.

Judy Miller, Bob Novak, and Valerie Flame

This week's culmination of the two-year long White House leak of Valerie Plame with the indictment of  "Scooter" Libby did little to resolve ongoing questions of who exactly leaked the information, and whether that leaking was against the law.  But it did help me to come to a number of conclusions in regards to the major players who have been involved in this whole controversy.

First, I now have great respect for  Patrick Fitzgerald, the special prosecutor who was in charge of the investigation.  His performance in the news conference on Friday indicated that he is an extremely smart, no-nonsense kind of guy who was interested first and foremost in doing his job to the best of his ability, rather than engaging in partisan destructiveness through his unique but temporary appointment to be the special prosecutor in this case (see Kenneth Star as an example).  Fitzgerald, like Justice John G. Roberts, inspires me as a law student, even as I just now begin my legal career.

Secondly, I think it is clear that the journalists involved in this case are a disgrace to their profession.  Judy Miller created a self-serving spectacle with her refusal to cooperate with Fitzgerald, and subsequently enjoyed the fanfare of her brief stint in prison.  After months of theatrics, Miller finally agreed to testify after receiving a waiver from Libby, her source, who apparently claims that he had given her the waiver to reveal him as her source far earlier in this whole process.  To make things worse, after all this nonsense, Judy Miller's testimony to the grand jury amounted to a confession that she just "didn't remember" how she found out who Valerie Plame was.  Still in question is why Miller had written the name Valerie "Flame" in her notes after a talk with Libby.  When pressed for elaboration, Miller again resorted to an excuse of ignorance and bad memory. 

Bob Novak, unlike Miller, succeeded in remaining a behind-the-scenes figure in this big mess.  We still don't know exactly what he told Fitzgerald, although he must have named someone as a source.  Novak's column in the post revealed Plame as a CIA agent and was the initial public announcement of the leak.  If it weren't for that column, this entire investigation may never have ensued.  How did Novak escape accountability?  And why aren't more people talking about his role in this case?

I know there has been no indictment concerning the actual foundation of the case, which was the leak of Plame.  Call me a conspiracy theorist if you must, but there are too many things indicating that someone DID break a law here, even though there might not be enough hard evidence for an indictment.  First, why would Judy Miller go to jail over information that she "could not remember?"  Was it really just to make a statement about journalists and how there should be a shield law protecting them from revealing sources?  Second, why did Novak storm off a CNN set and issue profanities on national TV after being pressed by James Carville to be candid about how he heard about Valerie Plame?  And thirdly, why did Libby lie to the grand jury?

Conservatives have little sympathy for Valerie Plame, and even less for Joe Wilson, her husband who went to Niger and supposedly found out information contradicting the administration's arguments that Saddam Hussein was seeking nuclear weapons.  Joe Wilson is no saint.  But he didn't break a law here.  Someone in the administration, on the other hand, clearly did.

Merlot Democrats

American politics is a mess.  Many columnists have been decrying the recent debacles of our politicians in recent weeks, but David Brooks takes the cake today.  As Thomas Friedman said yesterday, "If only it weren't so true."

From Brooks' column today:

"And yet Republicans are not panicked.  They know that if the election were held today, their base would stay home, but they look over at the Democrats and say: Thank God for Nancy Pelosi.  Thank God for Howard Dean.  They see that Dean refers to his base as "merlot Democrats," and it confirms their suspicion that the opposition party is really run by imbeciles."

It's easy being a moderate when both parties suck so much.

Beirut Lives On

Today, the NYT ran a front page story on one of my favorite college activities: Beer Pong, or as we liked to call it, Beirut.

"Beer pong seems to be the drinking game du jour. Legend has it that the game, also known for some reason as Beirut, started years ago at a Dartmouth College fraternity party. Now bars hold matches every week, often working with beer distributors who help advertise the events and supply the prizes."

Devoted readers may have remembered a classic picture of me and others in front of our Beirut table last spring.  It really is a wonderful game.  I kinda feel too old for it now though, and that's too bad.  Articles like this make me feel like maybe it wouldn't be so inappropriate or silly for me to get back into prime Beirut form

I hear there is a Beirut bar nearby...

So True

Mike Luckovich never disappoints.  This compliments my earlier post on the Braves from a few weeks ago.

My fantasy football QB

Eli Manning.  The starting QB of my favorite football team, and also my fantasy football team's QB.

"Activist" Judges On the Loose

I'm still trying to develop a personal opinion on how I feel about Judges who engage in so-called "legislating from the bench."  Of course, this is a phrase which has become quite popular among conservative groups in reference to recent court opinions that have "fabricated" rights to activities such as abortion, gay sex, and gay marriage.  Another favorite name-calling device you might have heard is "activist judges." 

Unfortunately, most of the think-tanks and political pundits quoted in newspapers and magazines have a very limited understanding of what they're even talking about when it comes to courts, judges, and the law.  Nevertheless, I have read a few "activist" cases this week that might have been fit for the editorial pages of the Washington Post, rather than the legally enforceable pages of a court reporter. 

Lawrence v. Texas, decided just a few years go, involved a statute in Texas which made it illegal only for homosexuals (not heterosexuals) to engage in sodomy.  Such a disparity in the law which is blatantly intended to limit a certain "class" of people is in direct conflict with the Equal Protection Clause of the Constitution, and therefore could have easily been disposed of by the Supreme Court on this basis. 

Instead, the Court, lead by Justice Kennedy, chose to ignore the easy argument against this statute, and instead launch into a discussion of a broad right-to-privacy and how it gave people the freedom to engage in whatever sexual acts they please in their own homes.  Problem is, there is no "right to privacy" spelled out in the Constitution.  Sure, there are plenty of ways to argue that the Constitution should or might contain words which imply a right-to-privacy, but such reasoning relies on tenuous and very controversial legal justification.  The Court, understanding this problem, declined to set out a "fundamental right" to engaging in sexual acts.

I'm not going to waste time on the right-to-privacy debate in this post.  My main point is that the Court could have attacked the Texas statute with a number of very sound legal arguments, but chose instead to editorialize or "legislate" from the bench.  Rather than respond to the very specific issue of the case, the Court wrote an exposition on what it thought about gay sex. 

Commentators who disdain this sort of  judicial "activism" often use Justice Scalia and his "originalist" thinking as an example of how judges should act.  But a Civil Procedure case we read today, Burnham v. Superior Court,  highlighted the problems with this very narrow approach as well.  "Originalist" legal theorists, such as Scalia, believe that laws should be interpreted in an exclusively historical and traditional context.  In other words, Scalia doesn't like judges who start make things up in their legal opinions.  In his dissent in Lawrence, besides exposing a disturbing level of homophobia, Scalia tiraded about the legally bankrupt reasoning of the majority's opinion.  Despite his politics, Scalia was right on that point.  But "originalism" can lead to very confusing and impractical results as well.  The "originalist" theory often refuses to let the law bend and change to fit contemporary norms and societal changes over time.

This discussion only scratches the surface of the importance of this debate between "activism" and "originalism."  Lawrence would make most people think that "originalism" is practically inept at dealing with real problems that come before the Court.  But not all cases are this obvious.  More on this soon...

By the way, Harriet Miers is a complete joke.  More on that soon as well...

The Roberts Court

Although I have yet to post directly on John G. Roberts (now justice Roberts), a careful reader  could have probably figured out my favorable disposition to the new chief justice.  After reading about Roberts after his nomination, and then watching him in the confirmation hearings, I became extremely impressed with his  pristine resume, legal brilliance, modest temperament, and what seems an affable personality.  He is going to be a great chief justice. 

Tomorrow marks the official beginning of the new term of the Supreme Court, and thus the beginning of the Roberts era.  Since the Court is so often split up historically in terms of the tenure of chief justices, there has been an ongoing dialogue both in the press and the legal community about what sort of personality and identity the Court will maintain under its newest chief justice.

It's hard to predict these sorts of things.  Roberts was understandably cagey during his nomination hearings and his unwillingness to express his legal opinions precludes us from being able to accurately predict how he may rule on the Court.  Although it seems frustrating and illogical for nominees to be able to refuse answering substantive questions concerning how they might feel on upcoming legal issues and controversies, the fundamental underpinning of separation of powers somewhat justifies Roberts' refusals to answer certain questions.  Arguably, this makes confirmation hearings somewhat pointless.  With a new round of confirmations coming up, perhaps this might be a good topic for a post.

Fortunately, the wait is almost over, and most of our questions will be answered over the coming year.  Because Roberts is the chief justice and will inherit the privilege of assigning who writes the majority opinion, we will get an immediate feel for where he falls on certain issues, even though his actual voting power is no greater than any other justice's. 

Although it seems fairly safe to call Roberts a "conservative," such political labels don't always transpose so precisely onto legal theories.  For example, Rehnquist's favoritism for states' rights was often cited as obvious evidence of his conservative leanings.  But states rights can work against Republicans just as it can work for them.  Rehnquist's federalist love lead him to dissent in the case last summer which ruled that the federal drug laws against marijuana supersede the local laws of any state.  This doesn't sound very "conservative" to me. 

Being a law student, I am developing a newfound appreciation for judges and how they formulate legal opinions.  More than anything, i'll be interested to see how Roberts thinks and writes about important legal topics.  Tomorrow starts an important new era in the history of the Court.  I plan on attending at least one session of the Supreme Court this fall, and i'll surely blog about it if I do.