Wood v. Kagan on Executive Power
In his book, Takeover, Charlie Savage argued that the true unifying theme behind Bush’s SCOTUS picks (including Harriet Miers, had she survived) was strong support for executive power. So not only did Bush expand executive power with his signing statements, he did so even more by packing SCOTUS with Justices who would vote to support this expansive view of executive power.
Appropriately, then, Savage has a review of Obama’s top contenders to replace Justice Souter in those same terms: what have the candidates said about executive power?
While he suggests there is little to indicate how Sonia Sotomayor, Jennifer Granholm, and Janet Napolitano would rule on executive power (aside from the fact that the latter two have themselves been executives), he does map out a clear difference between Diane Wood and Elena Kagan:
But in a 2003 essay, [Wood] warned that steps proposed in the fight against terrorism, like diminishing privacy to facilitate executive surveillance, posed a threat to the rule of law.
“In a democracy, those responsible for national security (principally, of course, the executive branch) must do more than say ‘trust us, we know best’ when they are proposing significant intrusions on liberties protected by the Constitution,” she wrote.
And in a lecture about legal issues related to natural disasters, published in 2008, Judge Wood suggested that she would view trying terrorism suspects in military commissions, as Mr. Obama has proposed, with suspicion.
[snip]
Ms. Kagan’s history, by contrast, suggests a greater sympathy for executive interests.
[snip]
Later, in her solicitor general confirmation hearing, Ms. Kagan said the president had the authority to indefinitely detain, without a trial, someone suspected of helping to finance Al Qaeda.
She also said that she, like any solicitor general, would not defend a statute that “infringes directly on the powers of the president,” because “there are occasional times where presidential power still exists, even if Congress says otherwise.” But, she added, that category was “exceedingly narrow.”
There’s more there, so click through to read the whole thing. This is one of the most useful articles I’ve read on the whole SCOTUS search, because it really does point to an area where even moderate Democrats like Kagan could have a devastating effect on our Constitution going forward. Obama has already proven a little too fond of executive power for my taste. Let’s hope he doesn’t institutionalize that with his choice for SCOTUS.
If a country has an unlearned and unaware populace, then an executive can govern without constraint.
The Founders expected the citizenry to limit government via the legislature. And the longevity of those limitations were to be enshrined in the Supreme Court. Too bad we have leased our legislative oversight to the corporations long term. At least America got over 184 channels of a-muse-ment in return. (Thank god for this website – at least there are some democratic fires being tended by true citizens.)
My take on the Miers nomination was it was done so that the Bush Administration could game the Supreme Court when it came time to ruling on all the illegal and extra legal activities being run by both the WH and the OVP. Maybe I’m wrong about that since Alito has been a rubber stamp, which now makes me wonder if she was “sacrificed” to put a doctrinaire Federalist on the court like Alito and that was the plan all along. The misdirection would be classic Rove, but I can’t imagine the WH would be so stupid to put up an unqualified hack lawyer like her as a nominee to SCOTUS.
Imvho, if Miers’ situation was like the rest of Bush’s Henchpeople – for instance, analagous to Bybee’s – then a seat on the Supremes was the carrot dangled in front of her for Acts of Loyalty to Bush the UE and his ‘Unlimited Executive Power.’
Since we know Bybee defrauded the Geneva Conventions and Green-Lighted the Monster’s Delight Chinese Menu of Torture – and he Only got a seat on the Federal Bench…
…what could Harriet possibly have done – out of ‘Loyalty’ to Bush’s ‘Executive Power’ – to ‘deserve’ the Reward of a seat on the Supremes?
Going way back, she had a hand in covering up the drunk driving information, for a start.
Don’t ignore your paranoia wrt Bushies. I think they knew after Roberts it would be tougher to get their pick, so they just assumed Dems couldn’t expect to succeed at opposing two in a row. That made it easy, just put Meiers in (knowing Dems would reject her) and then put Alito in and let Dems stew a while before acquiescing.
It’s similar to the question of whether to impeach Reagan after the recent Watergate & Nixon resignation. How much of that kind of political tumult can the public take? How many judge nominations could Dems expect to reject before the public would assume it was just politics?
Bushies weren’t in it to govern, they wanted to rule.
EW, I simply must say that you are the best clearinghouse and commenter, with some of the best commentary to your threads, on the crucial, the vital issues of our day! To my mind there is nothing as important, right now, as The Rule of Law, our civil rights, the Constitution – as the issues of torture and detention put into question the very foundations of our Republic and the role of the executive. I’ve been looking at this in terms of the very oath of office the president takes. I’ve been thinking of that for a long time actually. And I found an interesting website and some info on the history of the oath, which you and others might want to read.
Just a flavor of what caught my eye and which I posted in the comments to my own blog on these very issues (the detention issue and executive power), which the Supreme Court is likely to rule on:
And re Common Sense by Paine, with reference to the the president’s oath:
All these issues have now become interconnected, I think. And I just want to once again express my deep appreciation to you, and others, for staying on top of this!
Tried to edit @ 3 and post a link to that blog of mine (from Sat) – which was specifically trying to look at executive power in the light of the proposed detentions, balance of powers, civil rights etc. But couldn’t get it to work in the above comment. So am trying with a link here, just in case it might be pertinent to all these ongoing, interconnected issues.
Back to EW’s previous post, here’s Greenwald on preventive detention:
Backlash grows against Obama’s preventive detention proposal
Glenn Greenwald
MONDAY MAY 25, 2009 08:26 EDT
“As acknowledged by two of the leading proponents of preventive detention — Bush OLC lawyer Jack Goldsmith and Obama’s Deputy Solicitor General Neal Katyal — the real purpose of preventive detention (contrary to what some are arguing) is not to classify and treat all detainees as “prisoners of war” (since some of them, by Obama’s own description, will get trials in real courts and others in military commissions), but rather, to give ”the government an overwhelming incentive to use trials only when it is certain to win convictions and long sentences, and to place the rest in whatever detention system it creates” ‘
http://www.salon.com/opinion/g…../25/obama/
Korematsu.
Mary, I went to wikipedia concerning Korematsu. Here’s the link:
http://en.wikipedia.org/wiki/K…..ted_States
I was particularly impressed with the quotes from both Justice Robert Jackson and Justice Frank Murphy in opposition to the majority’s opinion and in defense of the Constitution. It is deeply unsettling that Justices Jackson and Murphy were unable to prevail, and it is particularly bitter that “the government had knowingly submitted false information to the Supreme Court that had a material impact on the . . . decision.”
Is it still the case, Mary, that Judge Marilyn Hall Patel’s ruling in 1984 did correct “errors of fact, not errors of law”? That is, those errors of law are still intact? At the time of her ruling, I (most definitely not a lawyer) had blithely assumed things had been set right.
A friend of mine was born in one of those camps and, once released, the family considered themselves fortunate–their former home long gone–to be able to obtain a bit of land on which sat a chicken coop that they converted into living space. Just another example among many of the painful outcome of government deception and flawed judicial decision.
those errors of law are still intact
Yes. And it’s why almost all Judges are asked about the case during their nomination process. People like Roberts and Alito parrot a tsk tsk line when asked.
I’ve been cringing at the thought of Kagan – but I cringed at her as Sol. Gen for that matter. Another problem (that I guess Obama wouldn’t see as a problem) with Kagan is that on all the most awful assertions of Presidential power, she’d probably have to recuse or make the correct excuses to recuse anyway – handing over that seat and vote.
Think about a system where there are all kinds of cases stacked up in the courts now where the Office of the President has been involved in crimes and war crimes and it is the Office of the President that is picking the candidates for the court that will review the Presidential power to commit those crimes.
Mary, you have surely put your finger on the nub of so many problems!
Yeah, Kagan is probably my last choice for this seat of the named finalists. But this is a very good way to express why.
This post got me to thinking of the consternation among the Congress-pigeons that would result if some President were to say to Congress, “All right. Vacation time is over. You are going to be running the country the way you’ve been supposed to be doing it all these years that you’ve been playing footsie and stab-in-the-back. You’ve got the wheel. I’ll be down in the engine room.”
Imagine taking on the job of the Presidency and looking around to see whether you had any help in keeping this ship on some sensible course and off the rocks. Congress? Mostly squalling brats. *sigh* OK; what did the last Prez leave in the drawers here for me to find and use? *gives a regretful nod to the Constitution*
It is Memorial Day and Marcy has written a post making us think about executive power. May I tell a story my father told us as children?
Early in the American participation of WWII, the few American POWs shot down in German terriotory were moved to several POW camps. Allied POWs were separated by nationality in each camp and formed distinct governing systems for themselves quite apart from the prison restrictions. The English system evolved around rank while the Americans developed an electoral system with periodic elections as their numbers increased. One of the last camps before Stalag 17 had been aconcentration camp, evidence of the despair and courage remained strewn about the wooden barracks and parade ground. After uncomfortably settling into a couple of the lice infested barracks, there was an election and a president, vice-president, attorney general and a few other cabinet members were elected to serve the common good. Although he never told us position in that goverment, my father was part of the newly elected administration. A short time later, as a “goodwill gesture of sorts”, the German commandant gave the POWs some gallons of lye whitewash so they could paint the interiors of the barracks to kill the lice. But instead of painting the interior of each of the barracks, including the as yet unoccupied ones, the president and the vp decided to paint one barrack, inside and outside, a deep white- the White House- as a symbolic image of America. In his quiet Carl Sandburgian voice, my father ended: “I left that government in despair and went to live in one of the unpainted barracks with the other soldiers. It wasn’t my symbol of America.”
Thank you- Marcy, Bmaz, TheraP and all the rest of you for working to help us atone for American short-(and long) comings.
Wonderful tale. I suspect that there are more levels of meaning in there than I can make out yet, so I’m going to keep thinking about it. For some reason, I flash on “Animal Farm”, although not as a parallel.
Palli
It’s a great story. It’d make a great Oxdown, in honor of the day.
is there any reason to believe that Sonia Sotomayor would support the bushco position ???
cuz from what I’ve heard, we can’t do any BETTER than her
empathy, brains, understanding of the law, and a sense of the common man
plus she pisses off the wingnuts
and there is a good chance that she would rhetorically flay scalia and alito during oral arguements thru counter questioning of their positions
what’s not to like
I represent the average ignorant American on this topic, so somebody convince me
let’s get the best, an forget the rest
Thanks for this article, too, EW. Here’s hoping Sen. Nelson will see Kagan as an “activist”. I wish.
It’s not about empathy, generally understood. It’s about adherence to the will of government and corporate executives over those they are in conflict with. Empathy is, among other things, shorthand for taking into account both sides: labor’s as well as management’s; the individual’s as well as government’s; the tax-paid commitments as well as the taxpayer angst.
Obama will be able to reshape the judiciary more than any president in generations. Will this, “Show me the middle, the center be damned,” president really advocate for Sup. Ct. versions of Dawn Johnsen? He hasn’t done much for her nomination to head the OLC – she languishes unvoted on in the senate.
Obama has adopted many, thankfully not all, of Bush’s policies. Will he adopt them in his Sup. Ct. nominations, too? Two more executive power over individual rights justices and kiss the Constitution as we know it goodbye for your lifetime.
I’m beginning to wonder if the main characteristic We the People need in a Supreme Court Justice is one who has empathy with the other Two Branches as a check on Executive Power, rather than just We the People versus the corporations.
Now, if we could combine the two, that would be great!
The common denominator seems to be a need or willingness to adhere to the will of authority when it is in conflict with those with less power, but more rights. It’s a classic conflict between law and power. The former is often the tool of the latter, but it’s just a tool. Its utility depends on whose hand it’s in.
As for emotions, have you noticed in your practice that sometimes the most difficult patients are the really bright ones, those most able to intellectualize and joust with the therapist in order to avoid looking at themselves? They do not make good judges.
As for “empathy”, my priority would be nominating those with whole, integrated personalities. Top lawyers all have confidence in abundance and street smarts. Some are intellectually brilliant. The most interesting are those who can look at themselves with the same sharp eye they cast on others.
But that’s not enough. Litigation for the advocate is about winning. Judging is about enforcing process, to test the claims of the parties, and about which side has the better right.
At times, too, it’s about recognizing that the law can work an injustice. Sometimes, that requires accepting it, while pointing it out for the legislature to fix. At times, it requires creating novel solutions in order to recognize the equities involved, a necessity long recognized by the courts.
With rare exceptions, those in power write the laws. They normally oppose the latter because it limits the reach of the favoritism or injustice they may intend. Personalities like Scalia sometimes use it in an inverse way, to limit the law’s plain meaning so as to invoke that favoritism or injustice. Which gets us back to whether the lawyer favors power over the law. Dawn Johnsen seems to favor the law. Roberts and Scalia are well versed in it, but they favor power instead.
You are describing someone with a character disorder, whether they tend to use intellectual defenses or not. But someone who views problems as caused by others, as coming from “without” – and thus is unwilling to look within, to consider their own role in what’s going on.
I completely buy your analysis that the common denominator is “will” of the “authority” versus We the People. And I am reminded once again of how the strassians divide the world into a ruling “elite”, “inferior” masses, and a middle group of folks who are willing to fight for ideals of governance (that’s how I interpret the middle group).
Those who consider themselves “elite” – those with character disorders, as you seem to suggest – yes, would not make good judges. After all, they hold the citzenry in contempt. And contempt is the opposite of empathy, a term I once described as “dumpathy” (I coined it in grad school!).
And when you say:
your words also rebut the neocons/straussians, who believe that the “elite” should control what is deemed just:
Seems to me we are at a point where all of that is up for grabs! Executive power, what is its reach? Constitution, whose rights are really addressed? Things like that. And EW’s blog, together with comments in her threads, in my view, has become a hinge-point in this discussion. We are at a fateful moment.
You.Are.Exactly.Right. Much of what we hold dear, the civil order and society we grew up in is up for grabs. The hyperbolic claim is that it is not.
The man in charge is more conservative than he sold himself to be, not a surprise for a politician, but disappointing after the even more false selling of George Bush. Obama has found himself at the center of a storm that could wash away the beaches of American civil society, and he keeps telling us, “this will all blow over”. Indeed it might, but with consequences the elite refuse to debate, much less avert.
Very troublesome. Whatever is going on back there? What/who is the impetus? The one O-team member I had high hopes for was Steven Chu (Energy Sec’y). But even he is making major u-turns.
http://www.guardian.co.uk/envi…..list-anger
Glennzilla and Dahlia Lithwick weigh in on this, too. The former on my concern about whether Obama’s adoption of Bush’s GWOT policies, adjusted by an afternoon with a good tailor; and the latter on what the GOP hopes to gain by so ardently attacking the empathy question.
All judges – like doctors, politicians, engineers, and moms and dads – come complete with their emotional baggage. Their emotional profile and emotional awareness, or lack of it, their past experiences, their social concerns.
No one honestly thinks Scalia or Thomas are unemotional. Scalia’s frequent scathing comments express anger and derision, emotional states he’s aware of, which leads him to ban recording his comments even off the bench. Thomas is full of pungent, roiling self-hate; it’s one reason he doesn’t expose himself and rarely asks questions. But they are not empathetic. They are unable to process the concerns of others that don’t mirror their own. That’s the definition of someone who should not sit in judgment of others.
Strikes me that the fundamental tenet of Christianity is empathy, from the Golden Rule to the Lord living on earth as Man. And don’t Christians who anticipate a Last Judgment hope for a sympathetic ear when that time rolls around? I can hardly think that they are jumping up and down demanding to be judged solely on their own merits and actions, with no attention paid to goodwill and circumstance.
This demand for a non-empathetic judge is not even internally consistent, and so it can be nothing but code for some other aim.
(I realize that I have not considered the case of other religions or atheists, but I tend to make short comments … No slight intended.)
You’ve hit on the great schism within the church and all great institutions.
An old quote from Rumpole of the Bailey has to do with not confusing Christianity with the Christian Church. Great institutions take power and demand loyalty. Whenever a conflict arises, they put protecting themselves ahead of their stated mission. See the most recent church sex scandal in Ireland.
Outsiders, prophets, the weak, the noble, the whole and the balanced are as quick to criticize as to support their government, their church or school. They demand that their own needs be met, too, not just those of the institution. (Self-sacrifice is useful, but it can be as readily manipulated as it is sometimes noble.) As they do with their presidents, they judge them on their actions, not their institutional need for power.
Wood actually I do not have much bad to say about. Nothing great, but not bad. Chemerinsky she isn’t, but she strikes me as better than the other named short listers; which I am sure probably means she won’t be selected. I will help Savage out a little on Napolitano. she was tutored under the wing of John P. Frank, an eminent Constitutional scholar (a real one), and he was very big on individual and civil rights versus the executive branch of government. Janet was a pretty devoted disciple of Frank’s, although I should suspect it has been tempered a bit by her history as AZ AG, US Attorney and Governor. Still, I think in the more pristine and abstract world of the Supreme Court, she would likely return to the roots of Frank. She would make a decent justice, but I think it is puffery and boredom that people are mentioning her as a possibility. The locals here talk about it like she is a serious candidate; me, I don’t see it at all. I will say this, I don’t much care for Sotomayor. I don’t know enough about what Granholm might would be like, but I trust Marcy’s read that she would be good.
Nice analysis. I’m worried about Kagan. She has credentials and bureaucratic infighting skills to die for, but I’m not sold on her priorities, especially her too great a willingness to support the executive. The court has five of those already, thanks.
I didn’t like Kagan one bit as Solicitor General material, much lees for the Supremes. I start with her unbridled joy and self satisfaction she got from personally recruiting Jack Goldsmith and Cass Sunstein to Harvard Law. Quite frankly, that is enough to disrespect her all by itself as far as I am concerned, but there is nothing in her record that makes her any better aside from that as far as I have seen. Then there is the bit Marcy hit on in the post coupled with the fact that I think she basically doesn’t know what a real courtroom looks like. Well, it all adds up to Bleeeech!
Her recruiting standards at Harvard suggest she excels at promoting institutional power. How has she become Solicitor General – the US Government’s chief litigator and frequent Sup. Ct. advocate – with no courtroom experience? Those aren’t the credentials we need in the Sup. Ct. at any time, let alone where we find ourselves now.
I don’t know how good Granholm would be, particularly WRT the actual justicing part. I think she could crack Nino’s and Sam’s heads together and look great doing so. I think she is the kind of surprise candidate that Obama has been hinting at (a politician with a pol’s ability to engage people). I thikn on some of the social issues Dems care about she is personally moderate enough to avoid the Johnsen false abortion outrage, but still someone who will defend choice. But on executive power? Dunno.
But hey, if she gets picked then I would know a Justice.
Yeah, well I knew Sandra Day about that well, and it got us nowhere.
At some point that “actual justicing part” is of less importance — reference Earl Warren. At this level every member has the pick of the law school litters for the grunt work: researching lines and chains of reasoning, precedents, exceptions and trends; even drafting opinions. She’s plenty capable, as are all the reported “frontrunners”; and to the extent some have arguably more in that vein than others, then what Obama’s got is the luxury of looking to bonus points — which, again, they’ve all got.
I’d like to see some strength in oral argument. Under the stewardship of Rehnquist, the Court got to the point where the sort of meaningful questioning of the legal counsel by the judges in the Socratic tradition that at one time, certainly thru the 1980s into the 1990s, allowed for a lot of discussion about real effects on real people and society as a whole, has been cut down to the point where now, if performed at all, it’s ceded to the left side of the court and Kennedy. Souter has been RELATIVELY strong in this setting, with or near Ginsberg, even Stevens, and IMO routinely better than Breyer [Kennedy talks — a lot — but, to me, it feels like having to indulge a concern troll elst he might somehow motivated to release the hounds one of his suppressed fringe ideas; Scalia’s ‘contribution’ is on par with Simon Cowell; Alito’s predictable; Robert’s the true ideologue; Thomas ballast]. One’s tempted to conclude this is so because Rehnquist figured out that, far more often than an informed populus might tolerate, the position of conservatives, from the right, for the executive branch, by Big Corp, on behalf of the gummint, what have you, simply cannot bear scrutiny.
No need to accept my opinion on any of this: http://www.oyez.org/
You know
Is something that i think Sandra Day was very good at. I certainly didn’t always agree with her, likely not even a majority of the time (including Bush v. Gore which even she regrets), but she was very adroit about asking questions that really cut to the quick of issues and how decisions would affect real people.
Agreed; she was very often the voice that cut through to the ‘practical’ — plus linoleum, plywood, asbestos …
I don’t worry about Scalia. Once you pierce the bluster, he is a hack.
The one to keep your eye on is Roberts. He is damn good and dangerous.
Obama needs to appoint someone who can match him in terms of scholarship and personality.
Yes. Roberts has the intellect to be a fine judge if he would just drop the ideology nonsense. Scalia perhaps had that too, but maybe lost it somewhere along the way.
I think you all give more credit to the wingnut Justices than they deserve. Authoritarian power, unified executive, the state sez moi, it’s all a right wing desire. The liberal tendency is for a nation of laws not Cheneys. However, that same right wing will ignore their principles if it is a Democratic President asking for power. For example, if Bush v Gore has been whether to stop the vote if Gore had been ahead, does anyone think they would have ignored precedent and law ?. I think Scalito, Alito, Roberts, and The Tom will shoot down anything that gives more power to Obama. Does anyone think that Roberts cares for anything except power to his consituency ?
Their problem is that shooting down decisions that give power to Obama also leaves Bushco open to contininuing civil suits even if Obama and Holder continue to leash and abuse the criminal law, like a pound puppy they’ve chosen to taunt and torture and experiment on before putting it “to sleep.”
I’m not big on Obama’s choice of words, but I think it is the case that the only way to enforce Constitutional due process standards and provide equal protection under the law is to have Justices who do have empathy and who can put themselves in the position of “would I think this was a reasonable police power if it were being applied to me, my children, my elderly parents, my disabled family members” etc.)
Equal treatment doesn’t exist “but-for” empathy.
The whole of the evolution of equitable argument and decision making would not have existed but-for the requirement of empathy in the law.
OT – worth the read, this gets at why Obama’s approach of just closing GITMO and ignoring the related problems won’t win popular support either at home or Afghanistan.
http://www.cnn.com/2009/WORLD/…..cnnSTCText
Super piece IMO) at Huffpo by David Bromwich
http://www.huffingtonpost.com/…..07252.html
Admittedly, I’m biased in favor of his final point:
emph added
Terrific piece of writing. Echoes of Kafka, Dostoevsky, Shakespeare — well, why not throw the book at Cheney? All the books.
No wonder! He’s a professor of literature. Talking of w’s favorite nouns and verbs too! I love the article! And it shows just how crucial these issues are. That people from so many disparate fields are chiming in with such eloquence, such vehemence. I hope it means we have a chance to gain some traction.
I join you in willingness to throw all the books. Literary and otherwise!
There is a tribute page for O’Connor, which seems to convey the moderation which is the usual voice of the supreme court; I enjoyed O’Connor’s aphorism warning the Bush administration of its exaggeration in the claims it pursued in the Hamdi matter, O’Connor’s famed abjuration concerning Bush’s not having a ‘blank check.”
One of the interesting currents in government continues to be part of what Sen. Rockefeller tried to summarize in his opening remarks in 2007 at Rizzo’s hearing for the nomination to be general counsel at the central Intell agency. pp1-3, pdfpp5-7/88. Namely, that there is a sense in which the central Intell agency’s GC acts much like Olc in the DoJ, in secret. I agree with ew, that hearing’s public segment was abbreviated. Gonzales’ resignation occurred ten weeks after the Rizzo nomination hearing.
Dahlia Lithwick wrote a survey of videos of nominees bruited to be on the president’s Scotus replacement list three weeks ago; she favored Granholm’s eyeglasses frames; liked Sotomayor’s inclination toward stridence; appreciated crimsontide prof Martha Minnow’s international law sensibilties; yet, DLithwick ascribes quick wit to Wood for having the sense to avoid occasions which might place her image on YouTube.
So CO newly seated judge Christine Arguello is mentioned in one account as an alumna of Obama’s alma mater and acquaintance of CO’s former gov Salazar.
I think Scotus has opted to remain aloof from the fray over congress’ truncations of due process in the cases involving internationalization of terrorism, and I doubt the Court would agree with Specter’s idea of letting the government pay for Fisa violations in lieu of the telcos. The latter would be a wierd borrowing of Scotus’ page on protecting private enterprise.
Maybe Obama’s foreign policy will reduce the global pressures on the US in this area of human relations, a subtext of many years of wrangling about what modern nations look like. It is going to take more than a sole president to infuse creativeness into global citizenship. Perhaps it is fortuitous that some of the bean counting labor of resetting the rules of finance are one of his first challenges, as that could provide a foundation for a more realistic concept of our direction. The instaMessage so far from this administration often issues sounding like the so called cap and trade pollution credits; two steps backward with pretty rhetoric about the cooperation. But I have hope his work as a community organizer resonates with some of the sorts of personal drive and ideals which united the founders of the breakaway colonies when the US formed.
Remember, however, that there is a very real possibility that the government is already contractually in that position. Despite my forthright challenge, nobody has shown me any reason to vary substantially from what I wrote almost a year and a half ago.
O/T, or back to GM. Good grief!
G.M. Bankruptcy Would Be History’s Most Complex
By MICHELINE MAYNARD and MICHAEL J. de la MERCED
Published: May 25, 2009
DETROIT — “The decline of General Motors may be putting thousands of auto workers and managers out of work, but it will be putting a lot of lawyers to work.
. . .
“Because of its size and scope, the bankruptcy would be the most complicated that any American company has gone through — more complex than those of Chrysler and Lehman Brothers, two other notable bankruptcy cases now making their way through the system.”
http://www.nytimes.com/2009/05…..38;emc=rss
How typical. Give them an opportunity and the lawyers swarm like locusts. Of course, GM is rather complicated. If we’re lucky they will do most of it behind closed doors, so we the public don’t have to see it. Yeech.
O/T this particular post, but not the thread of blogs. A TPM poster, PseudoCyAnts, who has for years been studying the early letters related to the founding of the nation, has posted a most interesting blog related to the Constitutional Article regarding treaties. This same poster suggested on Saturday that a particular aspect of Geneva allowed for a loophole, which would permit indefinite detentions, links to which can be found in Update I to this blog.
It might be helpful for some of the lawyers to take a look at what PCA has concluded. He is not a lawyer, but as I say, has conducted a careful study of early documents pertaining to the Constitution, following events of 9/11 and the actions of bushco.
I hope before anything happens, related to detentions, that we have a full and fair debate and consideration of all relevant issues.
two points:
1. as is clear from his
moving the democratic national committee to chicago post haste,
claiming signing statements as his own,
asserting states secrets as a reasonable position for the government of the unites states to take,
and,
denying habeas corpus, aka, supporting preventive detention,
obama REALLY likes power, welcomes power, and aggregates power to himself.
regrettably for the 200 year old american democratic experiment,
2. president obama is, by virtue of his background and raising, the president least emotionally and intellectually involved in the fundamental premises of the american democracy of any president we have ever elected.
it was bound to happen sooner or later; it has happened with this president.
yes, i know…..
orion, I think you’re blowing things out of whack.
New Justice Could Hold the Key to Presidential Power
By CHARLIE SAVAGE
Published: May 24, 2009
WASHINGTON — “As President Obama prepares to replace Justice David H. Souter on the Supreme Court, conventional wisdom says his nominee will have little chance to change the court because all the contenders appear to share Justice Souter’s approach on social issues, like abortion rights.
“But the effect on presidential power could be pivotal. Important rulings on executive authority — striking down military commissions and upholding habeas corpus rights for Guantánamo detainees — have been decided by a five-vote majority, including Justice Souter, on the nine-member court.”
http://www.nytimes.com/2009/05…..power.html
loo hoo @54
i may be; it wouldn’t be the first time.
my comment is not intended merely as a slur, but as an observation, and as a prediction, a hypothesis.
just keep it in mind and test it out from time to time; we have at least four years of this guy to gauge where he is coming from.
oh, and this,
from obama’s acceptance speech to the demo natl convention. i had to go back and check the transcript to be sure i had heard what i thought i had heard:
“…And it is that promise that 45 years ago today, brought Americans from every corner of this land to stand together on a mall in Washington, before Lincoln’s Memorial, and hear a young preacher from Georgia speak of his dream.”
“…to stand together on A mall in washington…”
who calls the washington mall, the campground of american democracy, “a mall in washington”?
our prez, that’s who.
you expect a person who speaks this way to have a feel for the british and colonial governor’s despotism that gave rise to the bill of rights?
to be worried about the abuse inherent in “state secrets”, in “preventive detention”, i.e., ignoring habeas corpus?
to be HIGHLY protective of the bill of rights freedoms?
to repeat, you’ve plenty of time to observe and decide just how absurd my comment is.
FWIW:
New York Times:
“The president has narrowed his list to four, according to people close to the White House — two federal appeals judges, Sonia Sotomayor of New York and Diane P. Wood of Chicago, and two members of his administration, Solicitor General Elena Kagan and Homeland Security Secretary Janet Napolitano.”
http://thepage.time.com/final-four/
NO to Kagan
I can figure that much out
hat tip to fatster
great
the FBI just handed the terrorist a “How to” recruiting manual
fookin brilliant
does anybody ever think this shit thru ???
“A mall in Washington” scans a lot better than “the Washington Mall”. He might have said “a large green space” or something similar. But the word mall is mythic in the context of the March on Washington IMHO. It has little to do with a shopping mall.
On Orion’s other post, I don’t think anyone who has come out against preventive detention has mentioned habeas. Armando keeps hitting that if these people are POWs you give them some right to say if they are rightly held or not, but that’s not habeas. Habeas is for criminal cases.
Better yet, these people may have some opportunity to challenge their detention according to what the other two branches say about it. The problem with indefinite detention is the “no charge” part.
“This mall” fixes the scanning. It introduces an explicit Obama-King comparison however.