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As featured on p. 218 of "Bloggers on the Bus," under the name "a MyDD blogger."

Thursday, January 15, 2009

The Real Bush Legacy Project

For the last several weeks, and I'm sure until George Bush steps aside next week as well as in tonight's "farewell address," officials of the outgoing Administration are wearing themselves out selling an image of him as a wise, judicious, successful President with bold vision and unflappable will. 65-70% of the country think this is insane, nor do they believe it, and going on television to proudly announce that the death of 4,500 soldiers was well worth the foreign policy catastrophe created in Iraq, for example, isn't helping. The question of how history will judge these individuals can at this point only be altered by whether or not they are prosecuted for the crimes they willingly committed.

I'm wondering if they even need to bother with all this. The Bush regime will have a legacy, and not just the expansion of executive power or the model for future Presidents on how to break the law repeatedly, treat Congress with nothing but scorn, and get away with it. No, there's an even more tangible legacy than that, which will play out every day for the next couple decades at 1 First Street NE in Washington:

The Supreme Court ruled Wednesday that evidence obtained from an unlawful arrest based on careless record keeping by the police may be used against a criminal defendant.

The 5-to-4 decision revealed competing conceptions of the exclusionary rule, which requires the suppression of some evidence obtained through police misconduct, and suggested that the court’s commitment to the rule was fragile.

Chief Justice John G. Roberts Jr., writing for the majority, said that the exclusion of evidence should be a last resort and that judges should use a sliding scale in deciding whether particular misconduct by the police warranted suppressing the evidence they had found.

“To trigger the exclusionary rule,” Chief Justice Roberts wrote, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

That price, the chief justice wrote, “is, of course, letting guilty and possibly dangerous defendants go free.”


The case itself is noteworthy. Bernie Herring had an adversarial history with a cop in his Alabama town. His truck was impounded and he went to the sheriff's office to pick it up. The cop ran a check for outstanding warrants and found what he thought to be one, he arrested Herring. The officers detained Herring, and found a gun and traces of methamphetamines on him. Minutes later, the officers discovered that the arrest warrant was faulty. Nevertheless, he was tried for drug possession and sentenced to 27 months(!).

And the Supreme Court now has ruled that the evidence, gained through what amounts to a warrantless search, is admissable.

The decision in the case, Herring v. United States, No. 07-513, may have broad consequences, said Craig M. Bradley, a law professor at Indiana University.

“It may well be,” Professor Bradley said, “that courts will take this as a green light to ignore police negligence all over the place.”

Chief Justice Roberts, who was joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr., said the exclusionary rule was unlikely to deter isolated careless record keeping and should be reserved for “deliberate, reckless or grossly negligent conduct, or in some circumstances recurring systemic negligence.”


Of course, these 5 will decide what ought to be considered negligent conduct for the near future. And that line will get moved, and moved, and moved. Scott Lemieux has a lot more.

We'll be dealing with reactionaries on the Supreme Court for a long time, two of them placed there by this President. Civil liberties, women's rights, consumer protection, and a host of other issues will be at stake. Among the next up is the Voting Rights Act.

The Supreme Court agreed yesterday to examine whether a central component of landmark civil rights legislation enacted to protect minority voters is still needed in a nation that has elected an African American president.

The court will decide the constitutionality of a provision of the Voting Rights Act of 1965 that seeks to protect minority voting rights by requiring a broad set of states and jurisdictions where discrimination was once routine to receive federal approval before altering any of their voting procedures.

The Supreme Court has upheld the requirement in the past, saying the intrusion on state sovereignty is warranted to protect voting rights and eliminate discrimination against minorities. But challengers say it ignores the reality of modern America and "consigns broad swaths of the nation to apparently perpetual federal receivership based on 40-year-old evidence."


This comes conveniently before the 2010 Census and the next round of reapportionment and redistricting in the states.

That right-wing bloc on the Court is relatively young, incidentally. Weep not for George W. Bush. He's got a legacy. Not content just to screw us for eight years, the pain will be felt for decades.

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