Not Leaving It Alone

Chris Dodd and some colleagues have announced a bill to repeal retroactive immunity from the FISA law:

Senators Chris Dodd (D-CT), Patrick Leahy (D-VT), Russ Feingold (D-WI), and Jeff Merkley (D-OR) announced today that they will introduce the Retroactive Immunity Repeal Act, which eliminates retroactive immunity for telecommunications companies that allegedly participated in President Bush’s warrantless wiretapping program.

“I believe we best defend America when we also defend its founding principles,” said Dodd. “We make our nation safer when we eliminate the false choice between liberty and security. But by granting retroactive immunity to the telecommunications companies who may have participated in warrantless wiretapping of American citizens, the Congress violated the protection of our citizen’s privacy and due process right and we must not allow that to stand.”

Senator Leahy, Chairman of the Senate Judiciary Committee said, “Last year, I opposed legislation that stripped Americans of their right to seek accountability for the Bush administration’s decision to illegally wiretap American citizens without a warrant. Today, I am pleased to join Senator Dodd to introduce the Retroactive Immunity Repeal Act. We can strengthen national security while protecting Americans’ privacy and civil liberties. Restoring Americans’ access to the courts is the first step toward bringing some measure of accountability for the Bush-Cheney administration’s decision to conduct warrantless surveillance in violation of our laws.”

Let's make it clear up front: This isn't going to pass. Even if you could get 60 votes for it, which you can't, you have an occupant in the White House who voted for immunity, opening the possibility of a veto if it miraculously got through the Congress.

What this does signify is that some members of Congress will not be content to let the past remain in the past, especially if a great wrong was committed. Maybe they get 30 votes for immunity this year. Maybe 35 next year. And so on. But they keep offering it up, because they don't see the justice in allowing companies immunity for perpetrating a great error by aiding and abetting the government in illegal activities that violated the constitution. So they'll continue to push this at the legislative level. Meanwhile, at the judicial level, EFF and other groups continue to sue the government for real civil penalties to this lawbreaking.

It seems to me that, to succeed in politics, you have to be relentless. Introducing bills like this year after year is one example.

Lisa Murkowski Plans To Melt The World

The Senate is a club bound and determined to do absolutely nothing in the most boisterous and attention-grabbing way possible. It is filled with the kind of people who get angry when told they're a bunch of do-nothings while holding fast to the ideal of doing nothing. Indeed, there are US Senators like Jim Inhofe who plan to lead a delegation to Copenhagen to tell the world proudly that the Senate will do nothing on climate change.

This is what the Administration has to deal with. So, unsurprisingly, faced with the prospect of Copenhagen fracturing, and rather than being left in China's wake as the world's biggest polluter without a strategy to deal with a warming planet, the White House instructed the EPA to come up with some goals under the law to reduce greenhouse gas emissions. The Supreme Court essentially ratified this already. So as a last-ditch attempt to do absolutely nothing, Lisa Murkowski wants to stop the EPA.

WASHINGTON — Environmentalists say they're disappointed in a proposal by Sen. Lisa Murkowski to force the Environmental Protection Agency to hold off for a year on regulating so-called "stationary" emitters of greenhouse gases, such as power plants.

The Alaska Republican's proposal essentially forbids the EPA from working to regulate greenhouse gas emissions from power plants and large manufacturers while the Senate continues to work on its own global warming proposal. It would not keep the agency from continuing work on emission standards from mobile sources, such as automobile emissions.

"The Senate is moving so slowly it's disingenuous to say we just need a time out," said Frank O'Donnell, president of Clean Air Watch. "They want to handcuff the EPA."

Murkowski, the top Republican on the Senate Energy and Natural Resources committee, plans to introduce the proposal in an amendment to a spending bill. Her proposal does not have the backing of the EPA, which is currently working to comply with a 2007 Supreme Court decision, Massachusetts v. EPA, which requires the agency to determine whether certain greenhouse gas emissions are harmful to the environment and public health.

Believe it or not, Murkowski is seen as one of the gettable votes in the Senate on climate change.

While the Senate dithers, the courts have consistently ruled, including just this week, that carbon is a pollutant and governmental entities can sue or create regulations to limit those emissions. Only some members of the Senate want to revoke that power, and they plan to use multiple steps to force the hand of the other branches.

It's quite a political system we've got here.

When Faced With A Parliament, Act Like A Parliament

Ron Brownstein has been unusually perceptive of late, but this isn't quite right.

America is steadily moving away from the ramshackle coalitions that historically defined our parties and toward a quasi-parliamentary system that demands lockstep partisan loyalty. It is revealing that Obama is facing nearly unanimous Republican opposition on health care just four years after President Bush couldn't persuade a single congressional Democrat to back his comparably ambitious Social Security restructuring.

Bush couldn't persuade many Republicans either. Republicans held the majority in 2005 when he tried to privatize Social Security, and they never even brought a bill through a committee. In this case, votes will be held on the floor of both houses on health care.

The truth is that one side acts like a Parliament while much of the other thinks we still live in the days of bipartisan consensus. Both parties have different visions of how to govern, and despite that giving Villagers the willies, it's OK and expected. But if you have one side bending over backwards to work together, and the other side unyielding, the debate necessarily tips in favor of that unyielding side, as a matter of basic physics.

Brownstein does acknowledge this to an extent:

Today, these centrifugal forces most affect the Republican Party. The Right has more leverage to discipline legislators because conservative voters constitute a larger share of the GOP coalition than liberals do of the Democratic Party. The Right's partisan communications network also remains more ferocious than the Left's.

The GOP's homogenization has been accelerated, moreover, by its losses in swing areas since 2006. Far fewer congressional Republicans than Democrats must worry most about moderate public opinion. Fully 31 of the 40 Republican senators, for example, were elected from the 18 ruby-red states that twice backed Bush and also opposed Obama. Just four Republican senators were elected by states that voted Democratic in at least two of the past three presidential elections. (Not coincidentally, those four include Maine's Olympia Snowe and Susan Collins, Obama's best GOP prospects on health care.) By contrast, 22 of the 59 Democratic senators were elected by states that voted Republican in at least two of the past three presidential elections.

But again, this is truly wrong:

Party-line governing is intrinsically flawed. Any bill that must pass solely with votes from the majority party can't realistically incorporate ideas that divide the party. And that fact of life rules out half the tools in our policy toolbox. Though medical-malpractice reform would advance Obama's cost-control goals, for instance, it's impractical to include it in legislation that must pass solely with Democratic votes. Legislation is more balanced when both parties shape it.

The entire Rube Goldberg formation of health care reform, the likes of which we see in all the Democratic bills, are fundamentally Republican ideas. They basically mirror a bill by Republican Senator John Chafee from 1994. The same on climate change and its market-based cap and trade formation. Democrats have very liberally borrowed from the bipartisan "policy toolbox," often to a fault. They haven't added ideas like privatizing everything (yet) or handing out cash to industry (only in part) or forcing poor people to live on cat food, but those are not what I would call the sharpest tools in the shed.

Because of the rump Southern faction taking over the GOP, and because of... well, people like Ron Brownstein, telling us that bipartisanship conquers all and hippies must be punched in the face repeatedly, the trajectory on all these issues has moved sharply to the right over the past few decades, such that a bill like Max Baucus', a virtual handout to the health industry (who love it), can be described on the right - and taken seriously by the media - as a government takeover of health care.

You need look no further to see how Democrats deal with these issues than Jeffrey Toobin's article in this week's New Yorker on the Obama Administration's judicial nominees:

The Obama Administration wanted to send a message with the President’s first nomination to a federal court. “There was a real conscious decision to use that first appointment to say, ‘This is a new way of doing things. This is a post-partisan choice,’ ” one White House official involved in the process told me. “Our strategy was to show that our judges could get Republican support.” So on March 17th President Obama nominated David Hamilton, the chief federal district-court judge in Indianapolis, to the Seventh Circuit court of appeals. Hamilton had been vetted with care. After fifteen years of service on the trial bench, he had won the highest rating from the American Bar Association; Richard Lugar, the senior senator from Indiana and a leading Republican, was supportive; and Hamilton’s status as a nephew of Lee Hamilton, a well-respected former local congressman, gave him deep connections. The hope was that Hamilton’s appointment would begin a profound and rapid change in the confirmation process and in the federal judiciary itself [...]

But then, as the first White House official put it, “Hamilton blew up.” Conservatives seized on a 2005 case, in which Hamilton ruled to strike down the daily invocation at the Indiana legislature because its repeated references to Jesus Christ violated the establishment clause of the First Amendment. Hamilton had also ruled to invalidate a part of Indiana’s abortion law that required women to make two visits to a doctor before undergoing the procedure. In June, Hamilton was approved by the Judiciary Committee on a straight party-line vote, twelve to seven, but his nomination has not yet been brought to the Senate floor. Some Republicans have already vowed a filibuster. (Republican threats of extended debate on nominees can stop the Democratic majority from bringing any of them up for votes.)

“The reaction to Hamilton certainly has given people pause here,” the second White House official said. “If they are going to stop David Hamilton, then who won’t they stop?”

The answer, of course, is that they will try to stop everyone and everything, if only to gum up the works and force the majority to move more slowly on its priorities. The new Republican Party comes up from the mold of the college Republicans, taught early to use every dirty trick, every strategy, not to govern but to beat your opponent. They may have poisoned American politics and taken it completely away from the high-mindedness where Villagers like to think it has always been (it hasn't), but there's really only one way to deal with that. Brownstein concludes:

But with Republicans operating as a parliamentary party of opposition, Democrats will have to pass health care reform virtually, if not entirely, alone. That leaves them with a binary choice: Democrats can either fragment into stalemate or function as a parliamentary majority party by unifying enough to advance their agenda. The choice would seem straightforward. If one side in a firefight is operating with military cohesion and the other devolves into ragged, undirected units, it's not hard to predict which will suffer more casualties.

That's just an obvious sentiment, though from the looks of things, one with which Democrats have not yet reconciled themselves.

The Corporatist Five

The Supremes heard that Citizens United case yesterday, and Dahlia Lithwick sez be very afraid.

When we first met this case, it involved a narrow question about whether a 90-minute documentary attacking Hillary Clinton could be regulated as an "electioneering communication" under McCain-Feingold. The relevant provision bars corporations and unions from using money from their general treasuries for "any broadcast, cable or satellite communications" that feature a candidate for federal election during specified times before a general election. A federal court of appeals agreed with the FEC that the movie could be regulated. Citizens United, the conservative, nonprofit advocacy group that produced the film, appealed. The issue last spring was whether a feature-length documentary movie was core political speech or a Swift Boat ad. But the court surprised everyone when it ordered the case reargued in September, this time tackling the constitutionality of McConnell and Austin.

Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas are already on record wanting to overturn these cases. Justice Samuel Alito and Chief Justice John Roberts have been inclined to wait. The question today is whether we wait no more [...]

Solicitor General Kagan stands to defend the FEC, not in a frock coat but a tasteful blue pantsuit, and when Scalia pounces on her, two sentences into her opening, she scolds him as if he were an impudent 2-L: "I will repeat what I said, Justice Scalia: For 100 years this court, faced with many opportunities to do so, left standing the legislation that is at issue in this case." Kagan is so loose and relaxed, you'd think this was her 100th argument. Which allows Roberts to dispense with the kid gloves and accuse her, respectively of "giving up" an argument she made in her opening brief and "changing positions." When she is asked, in effect, if she wants to lose this case in a big way or a little way, Kagan is eventually forced to reply, "If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses if it has to lose, the answer is yes."

One of the ways the Roberts Court hopes to make all conflicting case law in the campaign finance realm disappear is to blame all prior bad case law on Kagan. When everyone is thoroughly confused about what rationale the government may advance in order to limit corporate spending, Roberts can gleefully conclude that all of Austin "is kind of up for play. …" Poof. And Austin is a problem no more.

As Kennedy bemoans the "ongoing chill" of limiting corporate speech, Scalia recites a lyric ode to the greatness of America's "single shareholder corporations. … The local hairdresser, the local auto repair shop, the local new car dealer." Kagan points again to the "100-year-old judgment of Congress that these expenditures would corrupt the federal system," forcing Scalia to retort that "Congress has a self-interest" and that "I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents." Kagan corrects him, noting that "in fact, corporate and union money go overwhelmingly to incumbents." And that this law "may be the single most self-denying thing that Congress has ever done."

Kagan goes on to distinguish humans from corporations by pointing out that "we have beliefs; we have convictions; we have likes and dislikes." When she urges that it's in the corporation's self-interest to maximize profits and that "individuals are more complicated than that," Scalia does another verse on "the new auto dealer who has just lost his dealership." It's a vision of fluffy corporate bunnies so compelling, it makes you want to give Exxon a great big hug and an African violet for the holidays [...]

Olson very effectively uses his five minutes of rebuttal time to taunt Kagan for the government's changed positions. And while it looks as though there are five votes to fundamentally alter the way American elections will work, we've been through enough renditions of the Roberts Court slapping litigants around at oral argument then loving on them in decisions to make such predictions unwise. Of course, as Waxman suggests in his closing, it does take a somewhat "self-starting" institution to be deciding a case about campaign finance laws in which no litigant has directly raised the issues and no factual record even exists.

Aside from how wonderful it is to read Dahlia Lithwick, this severely depressed me. As we already have what amounts to corporate control of government, opening up the meager restrictions on campaign finance through corporate entities may not mean as much as everybody assumes. Corporations currently funnel hundreds of millions to candidates through PACs anyway. But two things stand out upon reading this. First of all, the kind of significant campaign finance reform we need right now - in particular public financing to level the playing field - will never make it through the brick wall of the corporatist Roberts Court, which clearly has a lock on these issues for 20 years at a minimum. Second, if you read through these arguments, and the general set of opinions of the Court over the last term, you can only conclude that George W. Bush was a successful President. With a legacy that far exceeds his lack of accomplishments in domestic or foreign policy. Bush handed the Court to the Federalist Society right for a decade or more, and while the legal system can still put up a fight with respect to civil liberties, on most issues the ultimate answer will fall on the side of the corporation over the people every single time without question. And that's a frightening prospect.

I think the only path to checking this power lies at the state level and with corporate charters. But state interests can be arguably more corruptible than federal ones.

Justice And Accountability By Inches

After 9/11, among the many deprivations of civil liberties and violations of federal and international law, Attorney General of the United States John Ashcroft gave the FBI the power to detain and interrogate thousands of Muslim-Americans across the country as "material witnesses" without charges. We know little about the number of people detained, the nature of the interrogations and the extent of the abuse heaped on the prisoners. We do know, based on Ashcroft's own words, that this policy sought to pre-emptively detain Muslim-Americans suspected by the Bush Administration of future acts of terrorism or extremism, despite not having any evidence required to charge the suspects.

Yesterday, a federal appeals court panel, composed of two Bush 43 appointees and a Reagan appointee, allowed a case to go forward that would hold John Ashcroft liable for violating one detainee's Constitutional rights under the 4th and 5th Amendments.

The court found that a man who was detained as a witness in a federal terrorism case can sue Ashcroft for allegedly violating his constitutional rights. Abdullah al-Kidd, a U.S. citizen and former University of Idaho student, filed the lawsuit against Ashcroft and other officials in 2005, claiming his civil rights were violated when he was detained as a material witness for two weeks in 2003.

He said the investigation and detention not only caused him to lose a scholarship to study in Saudi Arabia, but cost him employment opportunities and caused his marriage to fall apart.

He argued that his detention exemplified an illegal government policy created by Ashcroft to arrest and detain people -- particularly Muslim men and those of Arab decent -- as material witnesses if the government suspected them of a crime but had no evidence to charge them [...]

''Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world,'' Judge Milan D. Smith Jr. wrote. ''We find this to be repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history.''

You can read the 9th Circuit's opinion in the case, including the circumstances Abdullah al-Kidd found himself in back in 2003. Al-Kidd, a Muslim convert of African-American descent, planned a flight to Saudi Arabia to study on a law scholarship at a Saudi university. He was arrested at the airport under the material witness statute on a separate case, held for 16 days in detention centers in Virginia and Idaho, strip-searched on multiple occasions, and after several interrogations, eventually released. He was never called as a witness in the case on which he was arrested (a case where the individual was acquitted), nor has he been charged with any crime or called in on any other proceeding.

The ruling basically states that Ashcroft is liable for an unconstitutional policy that purposely violated the rights of al-Kidd, and by association thousands of other potential defendants, using the material witness statute just to hold anyone he fancied. If it survives appeal, the government will have to release all documents pertaining to the material witness policy under Ashcroft.

Glennzilla says the impact of this is to show the illegality and immorality of a preventive detention policy - one which this Administration might assert later this year. I agree with that, but I think its impact is slightly different. What it shows is that there are so many people whose lives have been touched - in some cases irreparably - by the terror practices of the Bush regime that there will be no limit to the actions to seek justice and accountability. The suits will continue, one by one, and the rulings made, over and over, and out of the thousands, at least one will find a crack. A legal hole in the framework of official secrecy and efforts by the executive branch to shut down the judiciary. And that hole will beget more holes. The groups and defendants striving for accountability will not stop because they rest on the principle of equal justice under the law, and to give up would signal the effective end of the American system.

Under the Bush Administration, officials in the highest levels of government committed heinous crimes, crimes to which they are only beginning to be held to account. The effort by the Obama Administration to indemnify those officials for those crimes just won't work. Little by little, good men and women with the law on their side will probe and appeal and file suit, and we will see justice. It's only a matter of time.

Sorry, Arnie: Federal Judges Reject Stay On Prison Plan

The message from the panel of judges to Sacramento yesterday was, you broke it, you bought it:

Reporting from Sacramento - A panel of federal judges, accusing California officials of obstruction, on Thursday denied the state's request to delay an order to produce a plan for reducing its prison population by 40,000 inmates.

Aides to Gov. Arnold Schwarzenegger said they would take their request to the U.S. Supreme Court today.

The judges issued their order on Aug. 4 in two long-running lawsuits by inmates. The state asked for a delay pending its appeal of the order to the U.S. Supreme Court, which was filed separately Thursday.

In rejecting the state's motion for the delay only two days after it was filed, the judges said they had been "more than patient with the state and its officials" and harshly criticized them for "conflicting representations" in court that have caused the cases to drag on.

It's getting comical at this point. Thelton Henderson initially found California's prison system to violate individual rights in 2005. Over those four years, state officials have resisted, bargained, shouted, and appealed their way into oblivion, trying all along to do as little as possible about the clear crisis. The judges are asking for a plan that essentially mirrors the Senate's version of prison reform working through the legislative process right now. For all the protests about "wasting taxpayer dollars" to come up with a workable plan, the judges are essentially asking for a copy of what's already being done.

The state doesn't want to give them one, because they now it's insufficient to conform with the clear guidelines on reducing the inmate population. And they'd rather appeal and appeal and be forced to respect Constitutional rights than do it themselves. With the taxpayer money and effort spent to studiously ignore this problem, we could have already solved it.

The Reaction: Tough On Crime Robots Cannot Come To Terms With Reality

The federal ruling to reduce the prison population by over 40,000 is the result of a years-long, if not decades-long process, where the failed leaders run amok in Sacramento have let the corrections system grow completely out of control, preferring to warehouse prisoners into modified Public Storage units instead of embarking on same, smart policies that would save us money and make us safer. In response to this damaging comment on the state's failure, the political leadership has... signed up for more failure:

Attorney General Jerry Brown said in an interview that the order is probably not appealable, but eventually the state will have to consider going directly to the U.S. Supreme Court, marking the first time the high court would face such a case.

"I think the Supreme Court would see it differently," Brown said.

State officials said the proper solution is for the governor and legislators to work out a reduction plan as funding becomes available. The state should not be forced to function under the hammer of a federal court order, they said.

"We just don't agree that the federal courts should be ordering us to take these steps," said Matthew Cate, secretary of the state Department of Corrections and Rehabilitation.

How dare the federal courts order anyone around to respect Constitutional rights against cruel and unusual punishment! Who the hell do they think they are, a co-equal branch of government?

What's so interesting about this is how abnormal it is. Federal courts grant a significant amount of leeway to the states to manage affairs. But when a state consistently and deliberately violates Constitutional rights without letup, they must act. And that's been true for a long time.

California's archipelago of 33 prisons houses more than 170,000 inmates, nearly twice the number it was designed to safely hold. Almost all of its facilities are bursting at the seams: More than 16,000 prisoners sleep on what are known as "ugly beds" — extra bunks stuffed into cells, gyms, dayrooms, and hallways. [Governor Arnold] Schwarzenegger has referred to the system as a "powder keg."

....Even as Schwarzenegger has promised reform, the corrections budget has exploded during his term, from $4.7 billion in fiscal 2004 to nearly $10 billion in fiscal 2007, or about $49,000 for each adult inmate.

....For more than three decades, California has been trapped in a self-perpetuating cycle where putting more people in prison for longer periods of time has become the answer to every new crime to capture the public's attention — from drug dealing and gangbanging to tragic child abductions. Spurred on by a powerful prison guards' union and politicians afraid of looking soft on crime, corrections has become a bottomless pit, where countless lives and dollars disappear year after year. And now that it has metastasized to the point where even a tough-guy governor and the guards agree that the prisons must be downsized or else (see "When Prison Guards Go Soft"), every attempt at change seems stymied by inertia. The sheer size of the system has become the biggest obstacle to finding alternatives to warehousing criminals without preparing them for anything more than another cycle of incarceration. "The public believes the prison population reflects the crime rate," says James Austin, a corrections consultant who has served on several prison-reform panels in California. "That's just not true. It's because of California's policies and the way it runs the system."

This is a policy failure driven by a political failure, a cowardly series of actions that arises from a broken system of government. Dan Walters happens to be spot-on today - politicians have played on people's fears for 30 years and, faced with the tragedy they created, delayed and procrastinated until it became so torturous that the courts had to step in. From the three-strikes law to the 1,000 sentencing laws passed by the Legislature, all increasing sentences, nobody comes out looking good in this failure of leadership. Even the Attorney General of the United States recognizes that we cannot jail our way out of crime problems.

“We will not focus exclusively on incarceration as the most effective means of protecting public safety,” Holder told the American Bar Association delegates meeting here for their annual convention. “Since 2003, spending on incarceration has continued to rise, but crime rates have flattened.”

“Today, one out of every 100 adults in America is incarcerated — the highest incarceration rate in the world,” he said. But the country has reached a point of diminishing returns at which putting even greater percentages of America’s citizens behind bars won’t cut the crime rate.

Mark Kleiman has additional good thoughts.

Federal Judges Order California To Reduce Prison Population By 40,000

A ruling by the three-judge panel who have effectively taken control of the California prison system has ordered the state to reduce the prison population by as much as 40,000 inmates within the next two years, finding the system in violation of Constitutional mandates. The Tough On Crime balloon has just popped.

The judges said that reducing prison crowding in California was the only way to change what they called an unconstitutional prison health care system that causes one unnecessary death a week. In a scathing 184-page order, the judges criticized state officials, saying they had failed to comply with previous orders to fix the health care system in the prisons and reduce crowding, and recommended remedies, including reform of the parole system.

The special three-judge panel also described a chaotic prison system where prisoners were stacked in triple bunk beds in gymnasiums, hallways and day rooms; where single guards were often forced to monitor scores of inmates at a time; and where ill inmates died for lack of treatment.

“In these overcrowded conditions, inmate-on-inmate violence is almost impossible to prevent, infectious diseases spread more easily, and lockdowns are sometimes the only means by which to maintain control,” the panel wrote. “In short, California’s prisons are bursting at the seams and are impossible to manage.”

This started as a series of lawsuits claiming that the overcrowded prisons violated inmates' Constitutional right to medical care through the 8th Amendment, which prohibits cruel and unusual punishment while under confinement. The judges concluded that massive reductions were the only way to get the balance right and restore Constitutional order to the process.

It's nothing less than an epic failure at all levels of leadership over the last thirty years which has brought us to the point where judges must mandate reductions in the prisons. A state that is unable to manage its finances can also clearly not manage its plainly illegal corrections system.

This now hangs over the head of lawmakers as they come back from recess in August and determine how to achieve $1.2 billion dollars in savings to the prison system. The Governor and Democrats in the legislature have proscribed various reform programs that would reduce the prison population, change mandatory prison sentences for technical parole violation, and create an independent sentencing commission to look at reforming our draconian sentencing policies. Many of these reforms are desperately needed, would save money for the state and also comprise a smarter, more sensible way to deal with prisons that actually makes Californians safer. Today's ruling makes this not only a good set of ideas, but a mandatory set, given that the state is now under court order to reduce the population.

The Governor's Prisons Secretary Matthew Cate is not ruling out appealing the ruling to the US Supreme Court. He also claims that the state has a plan to reduce overcrowding that would lower the number of prisoners by 35,000 in two years. That's less than required by the ruling. But this is no longer an option; unless they appeal, and it's no guarantee they can, the state must submit a plan to meet the judges' dictates within 45 days. End of story.

Breaking The Law To Balance The Budget - Again?

There's been quite a bit of confusion about whether or not the Governor was able to make line-item cuts in this budget. After all, it was a revision, not a budget agreement where spending appropriations are made. In those cases the Governor can make cuts, but this was a revision consisting of a series of cuts and fund shifts, and it's unclear whether the Governor can make additional cuts on top of cuts in a budget revision.

Craig Cornett, the Budget Director in the office of Darrell Steinberg, has sent out a letter to interested parties, which I've reproduced below. Cornett reiterates the argument that the revision do not constitute appropriations, and should not be subject to the line-item veto. This is particularly true with any appropriation reductions that passed with a simply majority vote, since a budget vote must have a 2/3 majority. Cornett offers the remedy here, but he confines it to the courts.

Should the Controller implement these vetoes, we suspect that some party that will be injured by the vetoes will file a lawsuit. Given the sweep of the reductions, this could come from any of a number of potential plaintiffs, such as children who will no longer have health insurance because of the reductions to Healthy Families Programs, battered women’s shelters that will be threatened with closure because of elimination of funding for the Domestic Violence Program, AIDS prevention and treatment programs that will no longer receive state support because of the elimination of Office of AIDS funding, or counties that will see cuts to their Child Welfare Services or Medi-Cal administration funding.

What Cornett leaves out of this analysis is the ability for the Legislature to override the Governor's blue pencil edits. Obviously that is off the menu, as far as we know.

I don't think it would surprise anyone to see Schwarzenegger break the law to balance the budget - so many provisions in this budget violate the law that it can be seen as a stimulus package for the legal system.

When the Governor signed ABx4 1—the bill that revised the 2009-10 Budget Act—and accompanying trailer bills this morning, he line-item vetoed about $500 million in General Fund expenditures in order to ensure that the state has a reserve for 2009-10.

Budget staff from both the Senate and Assembly worked closely with Legislative Counsel in construction of ABx4 1 and, based on that work, and follow-up conversations, we think that these vetoes—especially those of health and human services programs—are outside the Governor's Constitutional authority, for a couple of reasons.

First, reductions to amounts in the various budget schedules do not actually constitute appropriations and, thus, are not subject to line item veto. This argument is bolstered by Counsel’s long-held view that, unlike new or increased items of appropriation, the Legislature may reduce General Fund items of appropriation with a simple majority vote, and any General Fund action that takes place with a simple majority vote is not, by definition, an appropriation, and therefore not subject to line-item veto.

Second, most of the budget revisions for the health and human services departments were not even included in the scheduled items, but instead were placed in Sections of 568 to 575 of ABx4 1. These sections of the bill added new Control Sections 17.50 to 18.50 to the 2009-10 Budget Act that reduced the various appropriations for HHS departments in a descriptive manner, thus making it even clearer that they do not constitute appropriations. These control sections include departments that were specifically included in the Governor’s line-item vetoes—Aging, Health Care Services, Public Health, MRMIB, Mental Health, Developmental Services, and Social Services.

Should the Controller implement these vetoes, we suspect that some party that will be injured by the vetoes will file a lawsuit. Given the sweep of the reductions, this could come from any of a number of potential plaintiffs, such as children who will no longer have health insurance because of the reductions to Healthy Families Programs, battered women’s shelters that will be threatened with closure because of elimination of funding for the Domestic Violence Program, AIDS prevention and treatment programs that will no longer receive state support because of the elimination of Office of AIDS funding, or counties that will see cuts to their Child Welfare Services or Medi-Cal administration funding.

...Dan Aiello has a bit more about this.

No Right To Keep A Job You Don't Want To Perform

A federal appeals court ruled that pharmacists cannot refuse to dispense the Plan B "morning after pill" regardless of their religious beliefs:

Family-owned Ralph's Thriftway and two pharmacists employed elsewhere sued Washington state officials over the requirement. The plaintiffs asserted that their Christian beliefs prevented them from dispensing the pills, which can prevent implantation of a recently fertilized egg. They said that the new regulations would force them to choose between keeping their jobs and heeding their religious objections to a medication they regard as a form of abortion.

Ralph's owners, Stormans Inc., and pharmacists Rhonda Mesler and Margo Thelen sought protection under the 1st Amendment right to free exercise of religion and won a temporary injunction from the U.S. District Court in Seattle pending trial on the constitutionality of the regulations. That order prevented state officials from penalizing pharmacists who refused to dispense Plan B as long as they referred consumers to a nearby pharmacy where it was available.

On Wednesday, a three-judge panel of the U.S. 9th Circuit Court of Appeals lifted the injunction, saying the district court was wrong in issuing it based on an erroneous finding that the rules violated the free exercise of religion clause of the U.S. Constitution.

My freedom ends when I violate yours, essentially. If pharmacists don't want to distribute legal drugs to their patients, and cannot provide them with any recourse to obtain those drugs, they can find other work. I think the cost of denying legal medical treatment to women supersedes pharmacists' discomfort.

Two Bush 43-appointed conservatives and one Clinton appointee made this ruling, by the way.

Not Your Father's Supreme Court

Without the Internet, this level of detail almost certainly wouldn't exist, but we can now paint a pretty full picture of Judge Sonia Sotomayor's decisions on the 2nd Circuit Court, a body of evidence that can be used to form an opinion about what kind of Supreme Court Justice she will make. And it's a mixed bag. There are some hopeful signs, like her ruling in Hayden v. Pataki, where she argued that felon disenfranchisement laws do fall under the purview of the Voting Rights Act, suggesting an inclusive treatment of the franchise for all citizens. She based this on the plain reading of the statutory text of the Voting Rights Act. She dissented in the case of Pappas v. Giuliani, arguing that an anti-Semitic rant sent by the plaintiff was not enough to have him fired by the NYPD, and that he deserved a jury trial to determine if his First Amendment rights were violated. This is a powerful endorsement of the First Amendment, even in a case where the speech is distasteful. Her dissent in a strip-search case shows her defense of civil rights and the unreasonable search and seizure clause of the Fourth Amendment.

At the same time, in Jocks v. Tavernier, she strongly upheld, and convinced her Republican colleagues, police power and broad grounds for arrest in a case where a man who needed help with his truck in an emergency ended up being arrested and losing his job. And her general temperament is of a judge who hews extremely close to the law, never mind the bleatings of the right. Far from being a conquistador or leading with her race, she actually favored the law over blanket claims of discrimination the majority of the time.

Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1 [...]

In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times. Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred. (In another case (Pappas) she dissented to favor a white bigot.) She participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims. Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

I truly value this variety of treatment of the Sotomayor record, all of which came from blogs and not the traditional media. And I think you can get a full picture of Sotomayor from this treatment. What come sup for me is the overwhelming feeling that this is a highly qualified, competent, brilliant judge whose opinion sits pretty much in the middle of mainstream legal thought. Maybe in past years, that would be enough to put her as the swing vote on the Court. In the current makeup, it puts her on the far left - because this Court has moved sharply to the right over the past 30 years, particularly on corporate issues.

Here's a simple way to expose the Myth of Balance. In 1980, when I clerked at the Court, the justices were, roughly from left to right, Brennan, Thurgood Marshall, Harry Blackmun, Byron White, John Paul Stevens, Lewis Powell, Potter Stewart, Warren Burger, and William Rehnquist. Believe it or not, this Court was widely thought to be conservative. But think, just for a moment, about how much would have to change in order for the Court of 2007 to look like the supposedly conservative Court of 1980.

First we would have to chop off the Court's right wing, removing Scalia and Thomas and replacing them with Marshall and Brennan. Far to the left of anyone on the Court today, Marshall and Brennan believed that the Constitution banned the death penalty in all circumstances, created a right to education, and required the government not merely to protect the right to choose but actually to fund abortions for poor women.

Next we would have to replace Kennedy with Blackmun. Blackmun was also to the left of anyone on the current Court. Fiercely protective of the right to privacy and opposed to the death penalty on constitutional grounds, Blackmun believed that the social-services agencies were constitutionally obliged to protect vulnerable children from domestic violence and that affirmative-action requirements were broadly acceptable.

Then we would have to leave Breyer, Stevens, Souter, and Ginsburg essentially as they are. All of a sudden, the four would be perceived as the Court's moderates rather than its liberals, operating as a group much like White, Stevens, Powell, and Stewart. (The parallel between White-Stevens-Powell and Breyer-Stevens-Souter is very close; true, Ginsburg is somewhat to the left of Stewart in many domains, but their voting patterns and general approaches are pretty close.)

Finally we would have to assume that Roberts would vote more or less like Rehnquist (which is to say, definitely to the left of Scalia and Thomas) and that Alito would vote more or less like Burger (definitely to the left of Rehnquist).

To say the least, all this would represent a radical change in the Court's composition -- so radical that liberals cannot even fantasize about it. But this radically changed Court would be essentially identical to the supposedly conservative Court of 1980! [...]

The upshot of all these shifts is that what was once on the extreme right is now merely conservative. What was once conservative is now centrist. What was centrist is now left wing. What was once on the left no longer exists.

Cass Sunstein, who works in the Obama Administration, wrote that, and he's absolutely right. And Sotomayor does nothing to rebalance this debate. And I don't know that the President could have gone further than he did. She was generally a good pick. But that's a failure to stand up to conservative messaging. The end result for the country is that the Court shifts to the right, and nobody blinks an eye.

QED

A lot of people have got to this, but yes, empathy is not some alien notion but a common way of thinking about the role of life experience and how it relates, even to the law, and conservative judges like Sam Alito and Sandra Day O'Connor have invoked life experience and empathy in their judging, including race and gender, and white male conservatives consider themselves perfectly objective automatons uncorrupted by any perspective whatsoever, except when they don't like the law they have to apply under that standard, and then they go on and on about how unfair it all is to white people. This is because they view "the law" as anything reaching their desired outcome, intellectual honesty be damned. It's stupid. You can even play the home game on this.

Not much more to say than that.

The Military Commissions Would Be The Problem

They've hinted at this for weeks, and obviously the civil liberties and human rights communities didn't offer enough pushback, so the President is going ahead with modified military commissions to try suspected terrorists, the same commissions he decried as a candidate.

The Obama administration will announce plans Friday to revive the Bush-era military commission system for prosecuting accused terrorists, current and former officials said, reversing a presidential campaign pledge to rely instead on federal courts and the traditional military justice system [...]

White House officials insisted that Obama was not overturning a campaign vow. The president "never promised to abolish" military commissions, an administration official said. However, during his campaign Obama repeatedly called for change.

"It's time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice," Obama said in one such statement on the subject last August.

The administration still intends to prosecute some Guantanamo Bay detainees in federal courts, as Obama had pledged. But officials have concluded that a small number of detainees can be tried only in the military commissions, said a U.S. official familiar with the changes, speaking on condition of anonymity in advance of Friday's announcement [...]

The administration contends its revisions would improve the system by banning the use of any evidence obtained through coercion and will restrict the use of hearsay evidence.

The rule changes will also give detainees more latitude in choosing lawyers to represent them, according to the U.S. official, who described them on condition of anonymity because of Friday's announcement.

But those changes are widely viewed as cosmetic by critics both in and out of government.

No military judge has allowed evidence obtained through coercion or torture anyway. And these few safeguards did not form the basis of objections from civil liberties groups, as Glennzilla notes today. The problem was taking these cases out of the standard criminal justice system or the Uniform Code of Military Justice and creating a new system outside standard law that during the Bush Administration was correctly seen as nothing but a kangaroo court. If you argue that we need military commissions, you basically argue that the legal system is somehow insufficient to try terror suspects, despite the fact that prosecutors have obtained dozens of convictions for those suspected of terrorism in the past. It creates an authoritarian system that the President can determine to direct at certain suspects but not others. It weakens our legal system overall, by suggesting that it cannot properly try certain sensitive cases. And it would call into question any convictions gained through the process because of their existence outside the normal legal channels, seemingly for arbitrary reasons. Therefore it is not the specifics of the commissions that constitute the problem, but the very fact of the commissions themselves.

If we can use a court-martial system, we should. The message to the Islamic world would be much more powerful if we use the same system to try suspects of terrorism that we use to try our own members of the military. Obama's own deputy Solicitor General, Neal Katyal, explains:

In stating that the rules governing courts martial do not apply to commissions, the administration has placed itself in stark contrast to other administrations. Even in the midst of the Vietnam war, with thousands of dead, President Nixon's Defense Department examined the commissions option and concluded that "the specific protections of the Bill of Rights, unless made inapplicable to military trials by the Constitution itself, have been held applicable to courts-martial. Both logic and precedent indicate that a lesser standard for military commissions would not be constitutionally permissible."

Sen. Kerry's views closely resemble those of President Nixon's Defense Department, whereas (as I have said elsewhere in Slate) President Bush's closely resemble those of King George III. . . .

The danger with these commissions comes not only in their threat to our Constitution, and our standing in the world as a beacon of fairness, but also in their challenge to the perception of military justice. Our nation—whomever the next president may turn out to be—should admit it made a mistake and return to using our powerful and fair system of courts martial—a system that would generate swifter convictions of terrorists. As our nation's great Chief Justice John Marshall put it in 1803, ours is a "government of laws, and not of men."

You either believe in American law or you don't. The President has made his decision.

Souter To Retire?

NPR's Nina Totenberg usually has impeccable sources on Supreme Court issues.

Supreme Court Justice David Souter is set to retire from the Supreme Court when the current term ends, NPR is reporting.

Earlier in the day, the Associated Press had the legal word buzzing with a story that hinted at Souter's retirement due to the fact that he has yet to hire any law clerks compared to the other eight justices who have each hired their four clerks.

Great, because the hard right wasn't freaking out enough, they can now shriek about Obamanazi packing the Supreme Court with socialist fascist communists.

Here on Planet Earth, I'd expect the pick to be a woman, somewhat moderate, and demonized beyond all limits of creation.

...the full NPR report. Souter is expected to stay on the bench until a successor is named.

"...No, It's Iowa."

The Iowa Supreme Court today ruled unanimously that a 1998 state law banning same-sex marriage is unconstitutional.

The Iowa Supreme Court this morning struck down a 1998 state law that limits marriage to one man and one woman.

The ruling is viewed as a victory for the gay rights movement in Iowa and elsewhere, and a setback for social conservatives who wanted to protect traditional families.

The decision makes Iowa the first Midwestern state, and the fourth nationwide, to allow same-sex marriages. Lawyers for Lambda Legal, a gay rights group that financed the court battle and represented the couples, had hoped to use a court victory to demonstrate acceptance of same-sex marriage in heartland America.

Here's the opinion and the summary. You may be wondering whether Iowa can pull a Prop. 8 and reverse the decision at the ballot box. It's a little more difficult to do there under state law.

Some Iowa lawmakers, mostly Republicans, attempted last year to launch a constitutional amendment to specifically prohibit same-sex marriage.

Such a change would require approval in consecutive legislative sessions and a public vote, which means a ban would could not be put in place until at least 2012 unless lawmakers take up the issue in the next few weeks.

“If you’ll remember when we proposed the Iowa marriage amendment, the Democrats’ excuse for not taking it up was that it was in the hands of the Iowa Supreme Court,” Senate Republican leader Paul McKinley of Chariton said Friday. “It was implied that should they find against traditional marriage, that the Legislature would handle that. I would certainly hope they’ll keep their promise.”

Democrats run the House and Senate in Iowa, and could conceivably bottle this up in their respective Judiciary Committees. Even if they didn't, same-sex marriage will be the law of the land for a minimum of three years in Iowa.

Change happens slowly...

...I should add that the Vermont state House voted to allow gay marriage by a 95-52 count. The Republican governor Jim Douglas is expected to veto, but activists feel they have a shot to override it.

Most Dangerous Trouble Spot In The World Update

This is actually good news. The US and the UK have been leading hard on the Zardari government to arrive at a deal in their increasingly boisterous political standoff, and there are tentative signs that such a deal is being made.

The chief of the army, Gen. Ashfaq Parvez Kayani, met Friday with Mr. Zardari, and with the prime minister, Yousaf Raza Gillani, in what politicians said was an imminent decision to lift executive rule in Punjab Province, one of Mr. Sharif’s demands for stepping back from confrontation.

Mr. Zardari placed the Punjab, the most populous province in Pakistan and the stronghold of Mr. Sharif, under the rule of the governor on Feb. 25, and effectively dismissed the provincial assembly, where Mr. Sharif’s party predominates.

Pakistani leaders were also discussing a Feb. 25 Supreme Court decision that disqualified Mr. Sharif and his brother, Shahbaz, from elective office, politicians from both the ruling and opposition parties said.

That decision has been widely criticized in the Pakistani press and among politicians as a political ruling carried out at Mr. Zardari’s behest.

It's a good start, but considering that the reinstatement of the Chief Justice of the Supreme Court, Iftikhar Mohammed Chaudhry, was what sparked mass protests both against Pervez Musharraf and Zardari, and that is not to be found in this deal, I wonder how successful it would be in stopping the marches. This may appease Nawaz Sharif, who Juan Cole thinks is not respecting democracy by threatening open rebellion against the elected government, but it doesn't address the larger question.

This report from Middle East Progress gets at many of the thornier issues, which are complex. One thing is clear, however; this situation, no matter how unstable, is better than another military coup. An excerpt:

Mr. Sharif’s PML-N lost out to the PPP in the 2008 elections due to a sympathy vote after Ms. Bhutto’s assassination. Unable to digest the prospect of sitting out in the cold for another four years (Musharraf had exiled him earlier for nine years), Mr. Sharif desperately wants the restoration of the deposed chief justice, Iftikhar Chaudhry, in the fair expectation that the latter would hold all Musharraf acts illegal – including the reprieve from corruption granted to Mr. Zardari and several PPP leaders – and thereby compel a mid-term election later this year or next. Mr. Sharif is capitalizing on his rising nation-wide popularity in the wake of the plunging fortunes of the ruling PPP and its coalition partners, the results of a run of bad political decisions by Mr. Zardari, including retaining the chairmanship of the PPP while serving as president of Pakistan and having a party loyalist acting as prime minister. Mr. Zardari’s refusal to reinstate Mr. Chaudhry has led Mr. Sharif to join hands with a simmering country-wide lawyers’ movement in support of Mr. Chaudhry. The joint opposition has launched a “Long March” on Islamabad from all over the country, starting March 12 and reaching its destination for an interminable “sit-in” outside parliament in Islamabad on March 16 [...]

Pakistan is unraveling. The only recipe is more democracy, not less, so that civilian support for, and ownership of, the war on terror can be manufactured and strengthened. Western efforts must be focused on strengthening the economy (there is no substitute for jobs, well-being and upward mobility in ensuring a political stake in the system rather than Long Marches and terrorism) and retraining and re-equipping the Pakistani military to cope with insurgency. Above all, greater intervention is needed in discreetly but firmly knocking political heads together in Pakistan. The last thing the United States should consider is a wink and a nod to another army general to seize power. The war against Al Qaeda and the Taliban will eventually be won in the hearts and minds of the people.

Read the whole thing.

Play Hardball, Al

Eric Kleefeld has done America and the blogosphere a great service by painstakingly documenting the Minnesota Senate recount trial between Norm Coleman and Al Franken. Closing arguments were made today, and Senator-elect Franken's were pretty strong. But of course, like any trial, after Coleman loses this challenge he will have the right to appeal. And then perhaps an appeal up to the Supreme Court. So we're looking well into the summer before Franken could be seated, with the possibility that the Supremes would pull a Bush v. Gore and overturn a settled and well-adjudicated election.

However, Franken does have a tool in his toolkit, should he want to use it, and given how slimy Coleman has been throughout this entire process, I see no reason why he shouldn't.

The election-contest proceeding operates under a loser-pays system -- so if Coleman loses, his campaign committee would have to pay all the legal costs of Team Franken. Those numbers aren't publicly available, but Schultz estimates it at anywhere between $1-3 million.

And it's also normal procedure in such civil cases, Schultz explains, for a losing party that appeals to then be served a court order requiring them to place in escrow the amount for which they are currently liable. So if Franken's lawyers are smart people -- and nobody would doubt that they are -- Schultz sees it as very likely that they would seek to force Coleman's committee to procure millions of dollars up front just so they could start an appeal. "I think it's very likely -- not a certainty but very likely -- a court would agree with that," said Schultz, "for the Coleman campaign to provide the costs and legal fees."

And after some additional legal wrangling, a decision like this could effectively end it: "A one-two combination of asking for the escrow, and having the money dry up because of the credit-card problem, that could very well dictate how far he goes."

If Republicans are going to obstruct, they ought to be forced to pay for it. Considering that the RNC and the campaign committees are short on cash as it is, this is probably the only way to get Coleman to cut his losses. Franken's legal team should absolutely pursue this.

...Mitch McConnell is talking about going all the way to the Supreme Court. OK, Mitch, you can pay for it, then. And Al Franken's lawyers are pricey. Because they're actually good.

Most Dangerous Trouble Spot In The World Update

The "long march" has begun in Pakistan.

Police in the Pakistani city of Karachi have used sticks to beat up protesters as lawyers and political activists began an anti-government protest march.

Organisers intend the four-day march from cities across Pakistan to culminate in a sit-in at the parliament in the capital, Islamabad, on Monday.

They want President Asif Ali Zardari to fulfil a pledge to reinstate all judges sacked under his predecessor.

The government says the march is aimed at destabilising the country.

Police say they have arrested more than 400 opposition activists in the past few days.

The authorities have also banned political gatherings across the country, saying they could trigger bloodshed.

Right now organizers are describing this as a peaceful march. And I believe them. But mass arrests and violent incidents are not necessarily going to be met with calm. It's just a very tense situation, and Zardari's popularity is plummeting. Pervez Musharraf lost his job after fights with the same groups and attempts to crack down on the independent judiciary.

More in The New York Times. The government is saying that they've banned the protest march, but it continues. These are very nervous times in Pakistan. Banning the freedom to peaceably assemble is anti-democratic, and I don't know how the lawyers can possibly achieve their goals without toppling the Zardari government. I fear chaos.

Set It Aside

Norm Coleman thinks that we shouldn't argue anymore about who beat who and just try again in the spirit of compromise:

For more than a month, Norm Coleman stressed flaws in Minnesota's election system.

And on Monday, Coleman lawyer Jim Langdon wrote the three-judge panel to suggest the problems are so serious they may not be able to declare a winner.

"Some courts have held that when the number of illegal votes exceeds the margin between the candidates -- and it cannot be determined for which candidate those illegal votes were cast -- the most appropriate remedy is to set aside the election," Langdon wrote in a letter to the court.

Coleman continued this line of reasoning in an interview today, saying that "there is a question whether this court can certify who got the most legally-cast ballots."

This is basically an admission of defeat, as this DSCC spokesman said cleverly today ("I'm sure Senator John McCain would like to throw out the results of November 4, 2008 as well"), but even if it doesn't succeed, it furthers the conservative project. There has been a simmering effort in conservative circles to delegitimize the election process - to characterize any poor or black voter as a potential fraudster, to accuse community groups like ACORN of stealing elections, to cast doubt on the process in general. This serves two purposes - 1) it sets the stage for increasingly draconian voter ID laws that intentionally suppress Democratic votes, and 2) it throws a shroud of suspicion over any Democrat who happens to get elected. Al Franken will never be seen as a legitimate Senator to the majority of the right - despite his going through the regular channels of the recount process, he will be painted as a thief, a usurper, an illegitimate pol who used the activist courts to take away Norm Coleman's rightful place in the Senate.

And that's the other part of this - to question the impartiality of judges and the legal process. The Minnesota Supreme Court made a few rulings during the recount process, but by and large the elections system was allowed to work on its own. But that doesn't matter - if and when the court issues a final ruling, the Coleman camp will not only appeal but blast the legal system for handing the election to Al Franken. The more sinister prospect here is to further the depiction of judges as wild liberal activists who must be stopped. Related to that is Republicans' new demand to the President, signed by every Senator in their ranks, to confirm George Bush's judges or face filibusters:

President Barack Obama should fill vacant spots on the federal bench with former President Bush’s judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.

In a letter to the White House, the Republican senators said Obama would “change the tone in Washington” if he were to renominate Bush nominees like Peter Keisler, Glen Conrad and Paul Diamond. And they requested that Obama respect the Senate’s constitutional role in reviewing judicial nominees by seeking their consultation about potential nominees from their respective states.

“Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee,” the letter warns. “And we will act to preserve this principle and the rights of our colleagues if it is not.”

In other words, Republicans are threatening a filibuster of judges if they're not happy.

And thus we see how the conservative movement always moves forward, like a shark. I eagerly await the Republican Senator who says "Obama would rather deny these fine jurists and nominate people like the ones who stole the election for Al Franken in Minnesota." The Coleman lawsuit is really a textbook example of how one issue is used to chip away at multiple other ones. I know that conservatives appear to be imploding at the moment, but under the radar they are always working to undermine American institutions.

The Gitmo Trap

Change has come early to Guantanamo Bay.

A military judge on Tuesday postponed next week's trial of Canadian captive Omar Khadr, easing pressure on the new occupant of the White House to make a swift decision on military commissions.

Army Col. Patrick Parrish announced the delay at a pre-trial hearing Tuesday morning at the war court, which quit for the day before President Barack Obama took office. Hearings at both commissions courtrooms were scheduled to resume Wednesday morning [...]

Khadr, captured at 15, is charged with murder as a war crime for allegedly throwing a grenade in July 2002 in a firefight in Afghanistan that killed Sgt 1st Class Christopher Speer, 28, of Albuquerque, N.M.

Human rights groups had appealed to Obama even before he took office to halt the Jan. 26 trial.

Khadr, now 22, has grown into burly, bearded 6-foot-2 adulthood behind the razor wire of Guantánamo Bay, Cuba, to the consternation of children's rights advocates, who say he should have been treated as a ''child soldier'' -- not interrogated for years as a terror suspect.

In fact, the prosecutors of the ongoing trials want to halt them as they await Obama's new formulation on military commissions, calling for an indefinite continuance. Defense lawyers actually oppose this on the grounds that they fear a preservation of the flawed system. But it appears that Obama's advisors want to flush the system and try terror suspects in federal courts rather than the military commissions.

The president-elect's aides are still formulating their plan for shutting the lockup, which has come to symbolize indefinite detention without charges. Yet there appears to be agreement among many experts, including some Obama aides and outside advisers, on key points, such as turning over terror suspects to federal courts and ending the use of military commissions.

"I do have some predispositions on this subject which I think are similar to the President-elect's. I think it is preferable that we proceed in . . . civilian courts," said Jeh Johnson, Obama's choice as the Pentagon's top lawyer, at his Senate confirmation hearing on Thursday.

This is why I'm finding the leak to Bob Woodward of Susan Crawford's position on the torture of Mohammed al-Qahtani so disturbing. Crawford, a lifelong Republican, made the very specific point that she stopped Qahtani's military commission because he was tortured. By extension, he could never receive a fair trial in the US for this reason. And yet Crawford was insistent that Qahtani was one of the "worst of the worst" and that he should not be released. This is an argument for maintaining Gitmo, and I'm not the only one who thinks it's a trap.

GUDE: It does look very much as if the Obama is going to favor prosecutions in US courts, and any question about the psychological competence of the defendants could call into question those prosecutions. When you look at it in the bigger picture –- when you combine this statement by Crawford, her first ever interview, just days before the end of the Bush administration -– when you combine that with the story out of the Pentagon that they have upped the number of detainees that they claim have returned to the battlefield from 30 to 61, more than 10 percent of the detainees who have been released from Guantanamo since it opened in 2002, this looks like a coordinated effort to tie the hands of the Obama team, to make it much more difficult for the Obama administration to pursue its own policies on Guantanamo, and perhaps even down the road to undermine the Obama administration as it pursues its activities to close Guantanamo, pursue trials in US courts, and release some detainees either back to their home countries or transfer them to other countries for further incarceration.

DUSS: So, in your view, is this Dick Cheney, in his last moments in power, trying to lock in his methods, and his policies?

GUDE: You’ve seen in the numerous exit interviews that both he [Cheney] and Bush have been giving, they have been talking about this very issue about how they view that Guantanamo is going to be very hard. It’s going to be very hard to close, we’ve done what we could, and the reason why we’ve done what we could is because this is such a hard issue. And Susan Crawford used to work for Dick Cheney and a lot of people are saying, “you see, even Susan Crawford, who used to work for Dick Cheney, has seen the light and she’s admitting to torture.” Well, I choose to view it in a different way. And perhaps I have too negative a view of these things, but she’s still doing Dick Cheney’s work in my view. She is making it much more difficult now. This revelation makes it much more difficult to pursue the policy that the Obama team would like to pursue.

It's not just Qahtani, who is probably incapacitated, but Crawford is basically alluding to others who may be capable enough, but the torture of whom would allow them to be acquitted and released. And you know that the right will be calling Obama a terrorist sympathizer if one of these guys were set free, through no fault of his own. The Crawford interview did change everything, but maybe not in the way a lot of people think. She may have extended the lifespan of Guantanamo by months, years, or even indefinitely.