Scalia Throws A Curve

While there's no question the Supreme Court has tilted significantly to the right, in one case at the end of this session, they squeaked through a very damaging policy for the banking lobby. And believe it or not, it took Antonin Scalia to do it - I guess he's the new "swing vote":

In a rebuke of the Bush administration, the Supreme Court ruled Monday that a federal bank regulator erred in quashing efforts by New York state to combat the kind of predatory mortgage lending that triggered the nation's financial crisis.

The 5-4 ruling by the high court was unusual. Justice Antonin Scalia, arguably the most conservative jurist, wrote the majority's opinion and was joined by the court's four liberal judges.

The five justices held that contrary to what the Bush administration had argued, states can enforce their own laws on matters such as discrimination and predatory lending, even if that crosses into areas under federal regulation [...]

The ruling angered many in the financial sector, who fear it'll lead to a patchwork of state laws that'll make it harder for banks and other financial firms to take a national approach to the marketplace.

"We are worried about the effect that this ruling could have on the markets," said Rich Whiting, general counsel for the Financial Services Roundtable, a trade group representing the nation's 100 largest financial firms, in a statement. The decision "hinders the ability of financial services firms from conducting business in the United States. Even worse, it will cause confusion for consumers, especially those who move from state to state."

If there's one thing I love seeing in print, it's the words "the ruling angered many in the financial sector."

The near-term practical effect of this is that the states can resume looking into the lending practices of the banks in their regions, and potentially take them to court. Andrew Cuomo, the winner in this lawsuit, has been doing some of the best work in the country fighting the banks, and now he's empowered to continue.

These kinds of rules preventing pre-emption of the state laws when it comes to financial services are one key element of the creation of the new Consumer Financial Protection Agency, which the banks also can't stand, because it would consolidate consumer protection laws and enforce rigid standards for mortgages, credit cards, payday lending and consumer credit. Cue the whining:

"We have the view that the market, left to its own devices, isn't always going to lead to an optimal outcome for consumers," Michael Barr, the assistant treasury secretary for financial institutions, said in a news briefing.

Financial institutions said the move went beyond a step back to regulation.

"This is going in headfirst," said Scott Talbott, the senior vice president of government affairs for the Financial Services Roundtable, the lobby for the nation's biggest financial firms. "This could take us back to the 1950s."

While denying that the legislation is heavy-handed, Barr acknowledged that it would open a new era of financial regulation.

"I don't think it's a surprise that big banks and institutions that benefited from the status quo want to keep it that way. It's unacceptable to us," he said.

Now, if we actually can get this modern-day Pecora Commission off the ground, we'll at least have a multi-pronged approach to going after those who caused the financial crisis and continue to rip off their customers. I'm not all that optimistic, given the fact that the banksters own the place. But at least we have a chance.

This Week In Torture

Some notable developments in the torture "debate" this week. Yes, there are some people out there who think that torturing other human beings is up for debate, people like Bill O'Reilly and Justice Antonin Scalia. Oh, and Karl Rove, though he comes down on a side that probably he didn't even envision.

Rove writes, "Another McCain story, somewhat better known, is about the Vietnamese practice of torturing him by tying his head between his ankles with his arms behind him, and then leaving him for hours." So, wait, now putting prisoners in stress positions is torture?

Whoops!

At the beginning of the week, we learned that the Justice Department is perfectly happy with undermining international law with the fig leaf of "fighting terrorism".

The Justice Department has told Congress that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law.

The legal interpretation, outlined in recent letters, sheds new light on the still-secret rules for interrogations by the Central Intelligence Agency. It shows that the administration is arguing that the boundaries for interrogations should be subject to some latitude, even under an executive order issued last summer that President Bush said meant that the C.I.A. would comply with international strictures against harsh treatment of detainees [...]

“The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act,” said Brian A. Benczkowski, a deputy assistant attorney general, in the letter, which had not previously been made public.

This is the Scalia argument, that the context of torture somehow matters for its legality. I would like to ask Mr. Originalist, who believes that the words of law are concrete and set in stone, if there is any other law in America or abroad that is mutable based on the context. The answer is pretty much no. And it's the argument of a scoundrel.

But it shouldn't be overlooked that this power is even being discussed due to the Military Commissions Act, which allows for the President to decide whether or not a specific action is in violation of the Geneva Conventions. See Glenn on this and how John McCain enabled this incredible offering of power to the chief executive.

It turns out that there are thousands of other documents relevant to the CIA's use of torture, secret detentions and rendition that the CIA doesn't want to give up, claiming that many are covered by a "presidential communications privilege". And yet later in the week, the White House offered disclosure of additional documents.

In a partial concession to Congressional pressure, the Bush administration agreed on Wednesday to show the Senate and House Intelligence Committees secret Justice Department legal opinions justifying harsh interrogation techniques that critics call torture.

The decision, announced at a Senate hearing where Democrats sharply criticized the administration’s secrecy on legal questions, did not satisfy other members of Congress who have pushed for the documents for several years, notably Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee.

A spokesman for the Justice Department said officials were discussing whether to share part or all the opinions with Mr. Leahy’s panel.

Plus, David Addington, Cheney's Cheney, the Cardinal Richileu of this Administration, after first having said that Congress has no constitutional power to investigate the Vice President's role in authorizing torture, suddenly turned tail and agreed to testify before the House Judiciary Committee.

Today, the Vice President’s office sent a letter to the House Judiciary Committee regarding the Committee’s request for testimony from David Addington, Chief of Staff to the Vice President. The letter is attached.

A committee spokeswoman had the following response: “We acknowledge the Office of the Vice President’s response. Pursuant to their request, we expect the committee to meet next week to authorize a subpoena. We look forward to coming up with a mutually acceptable date for Mr. Addington’s testimony.”

Addington clearly doesn't believe he's wrong about this, and it's unclear whether he's appeared on the record in any public setting. If that hearing goes through, it'd happen in a matter of weeks.

The Senate Intelligence Committee also again banned the CIA from using any techniques not proscribed by the Army Field Manual, from outsourcing torture to private military contractors, and from withholding detainee information from the Red Cross (ending the practice of "ghost detainees").

In the space of a few weeks, there has been a subtle shift on this issue, with some definitive movement. Will it amount to much? The final answer won't come as long as this Administration remains in power - it will come afterwards, in a Democratic Administration, when we discover whether or not Team Torture will be brought to justice and held to account. Until then, we can only keep up the pressure.

About That Voter Registration Drive

It had better come with a trip to the DMV:

The Supreme Court ruled Monday that states can require voters to produce photo identification without violating their constitutional rights, validating Republican-inspired voter ID laws.

In a splintered 6-3 ruling, the court upheld Indiana's strict photo ID requirement, which Democrats and civil rights groups said would deter poor, older and minority voters from casting ballots. Its backers said it was needed to deter fraud.

It was the most important voting rights case since the Bush v. Gore dispute that sealed the 2000 election for George W. Bush.

Stevens actually wrote one of the majority opinions in this one, in addition to the conservative bloc and Kennedy joining the ruling.

This is, as we know, a solution in search of a problem. Voter fraud is a made-up conservative issue, backed by no evidence. While Stevens suggested that there are no "excessively burdensome requirements" imposed on voters who must show ID at the polls, he's answering an unknowable question. We simply have no idea how photo ID centers (if there will be any outside the DMV) in Indiana or anywhere else would be managed, whether the same groups that truck elderly and poor voters to the polls on Election Day will be able to do the same to get people their IDs, and so on. If they require the same documentation that the DMV does, many poor and elderly people simply don't have them. If it requires an application fee, how is that not a poll tax?

Justice Scalia's broader ruling shows exactly what Republicans want out of this:

Scalia, favoring a broader ruling in defense of voter ID laws, said, "The universally applicable requirements of Indiana's voter-identification law are eminently reasonable. The burden of acquiring, possessing and showing a free photo identification is simply not severe, because it does not 'even represent a significant increase over the usual burdens of voting.'"

But during the arguments, Scalia conceded that such laws would "inconvenience... a small number of people," and the Solicitor General for the state of Indiana actually said that "an infinitesimal portion of the electorate could even be, conceivably be, burdened by" the ID law.

You know, that's how the 14th Amendment WORKS, with equal protection for all, even that "infinitesimal portion of the electorate". And, as Amanda Terkel notes, that's a major soft-pedal of the impact:

Voter ID laws, however, affect more than an "infinitesimal" number of Americans and are more than a "minor inconvenience." According to the federal government, there are as many as 21 million voting-age Americans without driver's licenses. In Indiana, 13 percent of registered voters lack the documents needed to obtain a license, and therefore, cast a ballot. These restrictions disproportionately hit low-income, minority, handicapped, and elderly voters the hardest, leading to lower levels of voter participation.

Those affected also tend to vote Democratic, which may explain why Karl Rove and his colleagues have pursued so-called voter fraud with such zeal. Several U.S. attorneys ousted in the Bush administration's infamous prosecutor purge even alleged that they were fired because they refused to aggressively prosecute baseless voter fraud claims.

Considering that we have at least one Democratic campaign predicated on bringing new voters to the process, this is an incredibly calamitous outcome that could upset the entire effort. Somebody in the Obama campaign had better get out in front of this; the courts are already stacked against them.

UPDATE: I found the part of the majority opinion referring to whether or not there's an application fee for a driver's license. Part of this is unbelievable (emphasis mine):

(c) The relevant burdens here are those imposed on eligible voters who lack photo identification cards that comply with SEA 483. Because Indiana’s cards are free, the inconvenience of going to the Bureau of Motor Vehicles, gathering required documents, and posing for a photograph does not qualify as a substantial burden on most voters’ right to vote, or represent a significant increase over the usual burdens of voting. The severity of the somewhat heavier burden that may be placed on a limited number of persons—e.g., elderly persons born out-of-state, who may have difficulty obtaining a birth certificate—is mitigated by the fact that eligible voters without photo identification may cast provisional ballots that will be counted if they execute the required affidavit at the circuit court clerk’s office. Even assuming that the burden may not be justified as to a few voters, that conclusion is by no means sufficient to establish petitioners’ right to the relief they seek.

See, they can just cast provisional ballots! And we all know that every single one of those are counted.

UPDATE II: These Democrats registering in record numbers might all have to re-register or obtain their ID cards before registering or any number of shenanigans in states where the election apparatus is controlled by Republicans. There are fortunately less of them now (Ohio, for example is safely in Democratic hands), but the precedent here is really, really bad.

UPDATE III: Publius at Obsidian Wings has an interesting take on why Stevens joined this opinion.

But that leads back to Justice Stevens. Whatever else you might think about him, Stevens is the most politically savvy Justice. My take is that Stevens knew it was a lost cause — Kennedy must have signaled that he would uphold the law. Thus, Stevens managed to maintain the viability of more narrow “as applied” challenges by upholding the law on more narrow grounds.

In other words, Scalia and pals would have shut down all possible challenges if they could have had a 5-4 opinion all to themselves. By picking off Roberts and Kennedy, Stevens maintained the ability of plaintiffs to bring “as applied” challenges. Or to be more cynical, he kicked the can down the road hoping for a better Court in the future.

That sounds right to me. Kennedy tipped his hand on joining the conservative bloc when the case was argued. The loss of "facial challenges" in this case is disturbing because it would be far more difficult for these "as applied" challenges to result in an actual change in votes. But it offers a small sliver of hope for the future.

Another Country Heard From

If the debate over torture ever gets appealed to the highest court in the land, it's going to go through intellects like this:

The most outspoken judge on the US Supreme Court has defended the use of some physical interrogation techniques.

Justice Antonin Scalia told the BBC that "smacking someone in the face" could be justified if there was an imminent threat.

"You can't come in smugly and with great self satisfaction and say 'Oh it's torture, and therefore it's no good'," he said in a rare interview [...]

In the interview with the Law in Action programme on BBC Radio 4, he said it was "extraordinary" to assume that the ban on "cruel and unusual punishment" - the US Constitution's Eighth Amendment - also applied to "so-called" torture.

"To begin with the constitution... is referring to punishment for crime. And, for example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime."

Justice Scalia argued that courts could take stronger measures when a witness refused to answer questions.

"I suppose it's the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?" he asked.

"It would be absurd to say you couldn't do that. And once you acknowledge that, we're into a different game.

"How close does the threat have to be? And how severe can the infliction of pain be?"

That these people are so concerned about the bomb that is about to blow up Los Angeles - by the way it's always Los Angeles, since it's a fictitious, Hollywood-style scenario - is touching for this Angeleno, but somehow, I don't believe that he's all that concerned about me. What Scalia really wants is to make sure the horrible judgment and lack of conscience from his duck-hunting buddies doesn't have any consequences.

By the way, Scalia - and his ideological soulmates on the Court - won't be going away after January 2009. This mindset - that human rights are OK for some but not for all, that as long as a crime is ALLEGED and not part of a conviction then you can torture whoever you want, that we should all be so afraid for our lives at every waking moment that it demands setting aside any sort of ethics or values, and that everything a suspected terrorist tells you under duress is absolutely and 100% true - isn't going anywhere.

Meanwhile, On The Court

Two major Supreme Court cases have been heard this week, and on each of them, it does not appear that the side of justice and the Constitution will be victorious. In the Kentucky case opposing the use of the lethal injection method in capital punishment, the conservative block was skeptical:

"This is an execution, not surgery," Justice Antonin Scalia told the attorney who was representing two Kentucky inmates who say the use of the three-drug compound poses "an unnecessary risk of pain" to the dying man.

"Where does that come from, that you must find the method of execution that causes the least pain?" Scalia continued. "We have approved electrocution. We have approved death by firing squad. I expect both of those have more possibilities of painful death than the protocol here."

Yes, where the hell does that come from, this idea that punishment should not be cruel or unusual? What first-year law student pulled that out of their ass?

So, it appears that we'll continue with a process that has been invalidated for the euthanizing of dogs.

In the other big case, the ruling on Indiana's voter ID law, the Court again appeared unswayed by arguments about equal protection and the deliberate efforts to suppress voter turnout.

Only two Justices — Ruth Bader Ginsburg and John Paul Stevens — even hinted at the real-world fact that the photo ID law in Indiana is at the heart of a bitter, ongoing contest reaching well beyond Indiana. It is a dispute between Republicans worried over election fraud supposedly generated by Democrats to pad their votes, and Democrats worried over voter suppression supposedly promoted by Republicans to cut down their opposition. The abiding question at the end: can a decision be written that does not itself sound like a political, rather than a judicial, tract? Can the Court, in short, avoid at least the appearance of another Bush v. Gore? [...]

It was apparent from the outset that the Court’s more conservative members were most interested in (a) finding that no one had a right to bring the constitutional challenge, at least at this stage, (b) putting off a challenge until the law has actually been enforced or at least until just before election day, or (c) salvaging as much as possible of the Indiana photo ID requirement on the theory that voter fraud is a problem that states have a legitimate right to try to solve. There was some hand-wringing, particularly by Justice Samuel A. Alito, Jr., over how difficult it is for a judge to “draw the line” on when a voting requirement would or would not pass a constitutional test [...]

In a notable way, therefore, it appeared that — once more — Justice Anthony M. Kennedy may hold the vote that controls the outcome. He displayed some skepticism about the challenge to Indiana’s law, somewhat impatiently suggesting at one point that the challengers would oppose any kind of voter ID requirement other than a simple signature match at the polling place. Kennedy seemed ultimately to be looking for ways to assure voters who demonstrably would be significantly burdened by the law that they could challenge it, perhaps even before election day came around.

Count me as not sanguine that Alito's handwringing will hold up. And Kennedy appears lost.

As has been said many times, this is a solution without a problem. The Indiana secretary of state, when pressed, could not come up with one documented instance of voter fraud in his state. Never has so much attention been paid to a crime that has not been proven to be committed. The agenda is as transparent as tissue paper.

These two cases reveal just how partisan, and really cowardly, the Court has become, as the arguments showed an unwillingness to engage on the Constitutional questions, while looking to uphold the rulings on narrower, more technical grounds. This has been the Roberts Court agenda since he rose to Chief Justice.

The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush's choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.

That article by Ronald Dworkin is important. Go read it. (I'll be here.)

And let's be very clear about what each and every Republican candidate has said, with total unanimity, on the subject of judges.

Rudy Giuliani

"I will nominate strict constructionist judges with respect for the rule of law and a proven fidelity to the Constitution -- judges in the mold of Justices Scalia, Thomas and Alito, and Chief Justice Roberts."

Mitt Romney

"I think the justices that President Bush has appointed are exactly spot-on. I think Justice Roberts and Justice Alito are exactly the kind of justices America needs."

Fred Thompson

"I like Roberts and Alito and Scalia and Thomas. One of the best things that I got to do as a private citizen was to help get Justice Roberts through the confirmation process... We're in a heck of a lot better shape because of Roberts and Alito, and one more gain would put us in even better shape."

Mike Huckabee

"My own personal hero on the court is Scalia, not least because I duck-hunted with him."

John McCain

"One of our greatest problems in America today is justices that legislate from the bench, activist judges. I'm proud that we have Justice Alito and Roberts on the United States Supreme Court. ... [When asked whether he admires any Supreme Court justice in particular] Of course, Antonin Scalia... I admire how articulate he is, but I also from everything I've seen admire Roberts as well."

The two parties have more than a dime's worth of difference on this, and the Supremes had better be right at the top of the issues that we talk about in the fall.

Who Would Convict Daffy Duck?

Sure, he didn't do everything within the law, but he was saving the world from alien invasion! What jury would punish him?

Oh yeah, here's what I mean:

Senior judges from North America and Europe were in the midst of a panel discussion about torture and terrorism law, when a Canadian judge's passing remark - "Thankfully, security agencies in all our countries do not subscribe to the mantra 'What would Jack Bauer do?' " - got the legal bulldog in Judge Scalia barking.

The conservative jurist stuck up for Agent Bauer, arguing that fictional or not, federal agents require latitude in times of great crisis. "Jack Bauer saved Los Angeles. ... He saved hundreds of thousands of lives," Judge Scalia said. Then, recalling Season 2, where the agent's rough interrogation tactics saved California from a terrorist nuke, the Supreme Court judge etched a line in the sand.

"Are you going to convict Jack Bauer?" Judge Scalia challenged his fellow judges. "Say that criminal law is against him? 'You have the right to a jury trial?' Is any jury going to convict Jack Bauer? I don't think so.

"So the question is really whether we believe in these absolutes. And ought we believe in these absolutes."

Kill me. Really, shoot me in the head.

You have a Supreme Court Justice using a FUCKING FICTIONAL CHARACTER as evidence that torture works. Never mind the fact that WRITERS WRITE THE SCRIPT to ensure that Bauer's methods work. See, Antonin, there are these things called scripts, and actors, and gaffers, and cameramen, and editors. Jack Bauer is not ACTUALLY saving anyone from anything. We can't ACTUALLY draw conclusions from his success.

What we do know is that torture debases us as human beings, and that anyone who tries to investigate the abuse which has obliterated our moral standing in the world will be lied to and dumped.

In the meeting, the officials professed ignorance about Abu Ghraib. “Could you tell us what happened?” Wolfowitz asked. Someone else asked, “Is it abuse or torture?” At that point, Taguba recalled, “I described a naked detainee lying on the wet floor, handcuffed, with an interrogator shoving things up his rectum, and said, ‘That’s not abuse. That’s torture.’ There was quiet.”

Rumsfeld was particularly concerned about how the classified report had become public. “General,” he asked, “who do you think leaked the report?” Taguba responded that perhaps a senior military leader who knew about the investigation had done so. “It was just my speculation,” he recalled. “Rumsfeld didn’t say anything.” (I did not meet Taguba until mid-2006 and obtained his report elsewhere.) Rumsfeld also complained about not being given the information he needed. “Here I am,” Taguba recalled Rumsfeld saying, “just a Secretary of Defense, and we have not seen a copy of your report. I have not seen the photographs, and I have to testify to Congress tomorrow and talk about this.” As Rumsfeld spoke, Taguba said, “He’s looking at me. It was a statement.”

At best, Taguba said, “Rumsfeld was in denial.” Taguba had submitted more than a dozen copies of his report through several channels at the Pentagon and to the Central Command headquarters, in Tampa, Florida, which ran the war in Iraq. By the time he walked into Rumsfeld’s conference room, he had spent weeks briefing senior military leaders on the report, but he received no indication that any of them, with the exception of General Schoomaker, had actually read it. (Schoomaker later sent Taguba a note praising his honesty and leadership.) When Taguba urged one lieutenant general to look at the photographs, he rebuffed him, saying, “I don’t want to get involved by looking, because what do you do with that information, once you know what they show?” [...]

“The photographs were available to him—if he wanted to see them,” Taguba said. Rumsfeld’s lack of knowledge was hard to credit. Taguba later wondered if perhaps Cambone had the photographs and kept them from Rumsfeld because he was reluctant to give his notoriously difficult boss bad news. But Taguba also recalled thinking, “Rumsfeld is very perceptive and has a mind like a steel trap. There’s no way he’s suffering from C.R.S.—Can’t Remember Shit. He’s trying to acquit himself, and a lot of people are lying to protect themselves.” It distressed Taguba that Rumsfeld was accompanied in his Senate and House appearances by senior military officers who concurred with his denials.

“The whole idea that Rumsfeld projects—‘We’re here to protect the nation from terrorism’—is an oxymoron,” Taguba said. “He and his aides have abused their offices and have no idea of the values and high standards that are expected of them. And they’ve dragged a lot of officers with them.”

Jack Bauer is not a role model, you idiots. Antonio Taguba is. He understands the meaning of America. Antonin Scalia only understands covering for his own party, and putting it above his country.