EPA Action: Tardy, not Premature

If the Bush administration were honest, they would have renamed the Environment Protection Agency as the Corporation Protection Agency. Last week the Supreme Court sided with Massachussetts and other states in declaring that the EPA may regulate greenhouse gases. Yesterday EPA Administrator Stephen Johnson said the agency was looking at options, but it was premature to talk about it.

Premature indeed! When it comes to protecting our environment, this administration has always been a day late and a dollar short. It's a shame too. Even now the EPA is loaded with good people committed to protecting our environment, but often when scientists are ready to issue reports contrary to wishes of corporate big wigs in bed with the administration, those scientists are muzzled. When enforcement threatens the profits of companies too cozy with the Republican establishment, enforcement is defunded. And when regulating greenhouse gas emissions might cost Detroit too much, well the EPA Administrators assigned to rein in the environmental "excesses" of the rank and file declare that EPA lacks the authority to do so.

The Bush administration seems to have no problem exceeding its authority when it comes to abbrogating individuals' civil liberties in the so-called war against terror, but exercises illogical restraint on its authority when curbing corporate behavior that may risk our collective future.

The Supreme Court dealt a rebuke to that logic last week, when it instructed the EPA that it did have authority to regulate greenhouse gas emissions, and would be required to defend lack of such regulations on a scientific basis.

With all due respect to Linda Greenhouse, coastal dwellers in future generations will be far less concerned about John Roberts' trepidation about the legal doctrine of 'standing' than they will about excess corporate control of government if that is not reined in before their communities are inundated.

WA State Supreme Court Race Results

Of the major TV websites, it looks like King5 has the best primary night election coverage of those important races for Supreme Court.
At the moment Gerry Alexander vs John Groen is too close to call, the incumbent holding a 5 point edge with 25% counted. It looks like the presence of the extra candidates will cause a run-off to happen in the race between Susan Owens and Stephen Johnson, and nutcase Burrage will fail to get on the court.

It would be interesting to do in depth polling of the 22% of people who are voting for one of the other 3 candidates in the Owens-Johnson race, since Owens and Johnson by all previous reports were really the only serious candidates. Are these folks contrarians, guessing, or might those who voted for the other Johnson just be mixing up the names.

Well my fingers are crossed for Alexander - Groen seems downright creepy to me. We'll still have to drum up support for Owens in the General election in November.

"Exquisite Hypocrisy"

That's how Noemie Maxwell captioned the photo of unqualified Washington State Supreme Court candidate John Groen in her excellent article, Buying Justice & Lying About It over at Washblog.

This [Groen] is the man who touts his "eighteen years (of) experience before the Washington Supreme Court, advocating for property rights," He's raised, $276,061.56 for this race, according to Washington's Public Disclosure Commission records. Much of it's from from lumber, construction, and development interests. Scads of it was poured into the campaign right before a June deadline that made such contributions illegal. SDS Company, for example, which provided $25,000 right before that deadline, is a lumber company from Klickitat County. Then we've got $25,000 from the principals of another development company, Sundquist Homes. And so on.

Gerry Alexander, our current chief justice, known as a moderate, adhered to the letter and spirit of Washington's law and has raised only $47,581.60. Alexander, according to King County Bar Association, is exceptionally well qualified.

We have only a week to expose the hypocrisy of those attempting to buy justice for their narrow well-moneyed interests. I fear Susan Owens is in particular trouble in her race against a better qualified (better qualified than Groen is faint praise) property-rights ideologue, Stephen Johnson who has secured several more media endorsements in his attempt to unseat the incumbent, who bravely sided with the minority in the recent high profile case on gay marriage. Hopefully, nutcase Jeanette Burrage's reputation will keep her from unseating the outstanding sitting justice Tom Chambers.

In the long term, we need to get our state to revisit a system which allows a primary vote to be the final determinant for these important offices, but all we can do now is to make sure our friends and acquaintances are informed and don't let the real "activist judges" take over the court for the building industry.

Resources include
Voting for Judges
Public Disclosure Commission

The Election of Judges

Once again in my state of Washington, important Supreme Court Judges are about to be chosen in a likely low-turnout primary. Once again right-wing "property rights" advocates are attempting a stealth campaign to get their frequently under-qualified ideologues who do not represent the majority of our electorate into these powerful positions.

I fear the same sort of thing is happening across the country, as studies show that in recent elections money is being pumped into these judicial campaigns at unprecedented levels. Personally I question the wisdom of popularly electing judges. I want qualified judges who have gone through a thoughtful review process, not pretty faces who are good at waging an election campaign. Further, the majority of the electorate simply isn't interested in doing the research necessary to make a truly informed decision.

My short-term message to Washington voters is to reelect incumbent justices Owens, Alexander, and Chambers, and incumbent appeals judge Becker. My longer term question is can we work toward changing our silly system of electing judges in which unqualified candidates such as Jeanette Burrage are even allowed to run, and special interest money is allowed to hijack our judicial process?

Nationwide, most states do elect justices, though in many of those the vote is a referendum on retaining an already appointed judge, thus largely avoiding the danger of unqualified ideologues bypassing a more professional review. Of course appointments can result in bad choices as well, so I'm not sure what system is best, only that the popular election system currently in place in Washington and nearly half the other states is badly flawed. Here is a snapshot of the system in place in each of the states back in 1995. I do not know how much it may have changed since then. Here is a more recent document (pdf) with somewhat different information about the courts in all the states.

Gitmo & the SCOTUS decision revisited

Jack Grant of Random Fate asked this salient question 10 days ago:

In what twisted universe is it that the President of the United States has to be TOLD by the courts that an extra-legal prison that uses “stress positions” and other “coercive” means of interrogation is not only ill-advised in a war that depends more on image than on casualties but also completely contrary to the most fundamental of American values including the rule of law?

I've been catching up a little on some blogs I used to frequent but had dropped the habit. Jack and the "Rev. Gisher" are always good for keeping both sides of our political divide on their toes.

Idolatry: the Symbol over the Referent

Shall we protect our nation and our freedoms, or is our flag more important?

Earlier this week, the Senate came within 1 vote of wasting the time of legislators the country over by advancing the "cause" of a Constitutional Amendment to ban the desecration of the flag. My thanks go out to the 34 Senators who saved us from this nonsense - and shame on the 66 (or most of them) who voted for it.

Mark Kleiman stated it succinctly:

The notion of writing a restriction on freedom of expression into the text of the Constitution ought to offend every patriot. To pledge allegiance to the Flag instead of "the Republic for which it stands" is the political equivalent of the sin of idolatry: confusing a symbol with its referent, to the extreme of elevating the symbol above the referent.

The Bill of Rights is as central to that Republic as anything could be: surely more central than the Flag. So to deface the Bill of Rights in order to defend the Flag is political idolatry at its worst.

Then he goes on to allow that while sullying our Constitution is an offense, a statute against flag burning, if found constitutional would not be so objectionable. I can't agree - it would offend me - but I do see his point, and do agree with him that if the aye votes on the amendment by a few swing state Democrats help them retain their seats, that is probably worth it. Really it's the Republicans that ought to know better and speak sense to the American public. Few have much backbone when it comes to confronting the deep-seated emotional illogic which consumes so many Americans around reverence for the flag.

Lincoln Chafee of Rhode Island, Robert Bennett of Utah, and Mitch McConnell of Kentucky were the lone Republicans willing to defend the Constitution rather than pander to false patriotism. Mitch McConnell's statement shows that there is a way to frame such a vote, and still do the requisite pandering anyway. It also shows that this is not an ideologically tied position. McConnell and Bennett are not among the more moderate Republicans. In fact, I recall that in 1989 when the Supreme Court held that anti-flag burning statutes are unconstitutional, it was arch-conservative Scalia who cast the deciding vote.

So enjoy your Fourths, folks - wave your flags - attend your parades, but watch out for any demagogues who try to impugn the patriotism of any of the 34 who avoided idolatry this week.

Death With Dignity - Relief & Concern

This week the Supreme Court turned aside the old Ashcroft challenge to Oregon's voters' initiative to allow doctors to prescribe lethal doses of medication to their patients who want to keep their options open for controlling their own deaths. I wrote with some concern about this in October when Miers was Bush's nominee to replace O'Connor. As I hoped at that time, Kennedy sided with Oregon which eliminated any temptation to defer the decision until O'Connor's replacement, since a 6-3 decision would not be affected by a change of one justice.

My relief of course stems from the decision, my concern from Roberts' siding with the dissenting opinion in this case.

Aside from my gross lack of legal qualifications, I could never be on the SCOTUS. I would always want to rule in favor of the most aggrieved party, precedent or Constitution be damned. I understand the importance of moving cautiously when precedent IS being set, but the Court does have an important function in setting boundaries based on common decency as well. I heard Breyer explain it very well one evening when describing what the job of the court really is. The legislative branch is charged with defining the particulars of law, and the Supreme Court must only set the parameters within which those laws should operate. If public opinion has overwhelmingly moved to find certain restrictions or lack thereof repugnant, then it is not outside the purview of the Court to limit what lawmakers can do, but they are still obliged to find some Constitutional basis for it.

Personally I find it repugnant that some folks believe that other suffering people should not be given a dignified manner of ending their own life - in ANY state. I may or may not be in the majority, but I'm certainly not in the overwhelming majority in that regard. The SCOTUS cannot properly mandate that states create Death with Dignity provisions, though the current court can see that Ashcroft was overreaching in claiming that the Oregon law violated Federal drug laws. If Congress writes a more specific law outlawing doctor assisted suicide, however, we may be forced to take a step back from compassion. I must remind myself though, that in the long arc we as a society have been moving toward compassion more than away from it, and with an engaged citizenry I must believe that such a general trend will continue in the long run.

Prohibition

Aside from revenue questions, in judging what government should do, really the fundamental question is what should government prohibit. Extreme libertarians or anarchists sometimes feign a belief that prohibition is always bad, but I don't really believe them. Everybody has some things they want prohibited.

On the other side, extreme authoritarians want to prescribe a very narrow band of behavior that everyone should adhere to, often following the dictates of some particular religious practice.

But most people recognize, whether consciously or not, that things work best if people and institutions are granted considerable latitude in their choices, but prohibited from making a defined set of choices that are widely considered "bad".

Public debate about what should and should not be prohibited is a good thing, because we benefit from multiple perspectives. How people and institutions are defined politically is largely based on which activities they want to see prohibited and to what extent. Sometimes people get very passionate fighting over tiny distinctions, while at other times behaviors which most would find abhorrent are blithely ignored, while others which most would think to be no big deal are quietly disallowed.

Drawing lines for criminalization

Speaking generally, I believe in granting as much latitude as is practicable to human behavior, but defining clear lines beyond which certain behaviors are absolutely disallowed. For the smaller peccadillos, it is best if the morés of society do the job of regulating behavior. For really objectionable acts, though, the government should intervene, and assess punishment sufficiently severe to provide an unquestionable deterrent. This way government resources aren't wasted fussing with the small stuff, while people are legally allowed to push the limits of societies norms a little, with a strong deterrent from going too far.

This doesn't work for everything. It is vitally important for safety's sake that drivers not careen down residential streets at 70 miles per hour (110 kph), but the posted limit needs to guide the driver, who may not be familiar with the road, toward a truly safe speed, for instance 30 mph (50 kph). Hence we need a graduated punishment schedule ranging from a warning to a fine to a jail sentence depending on extent to which the limit is broken. But it is expensive to hire the cops to enforce these graduated punishments, so for most misbehaviors it is better to rely on the norms of society, rather than law, to encourage goodness, while relying on law to forcefully deter the clearly undesirable behaviors.

The rub is in determining what is clearly undesirable. As a liberal, I am inclined to draw the line more restrictively with respect to corporate and institutional behaviors, and less so with respect to personal behaviors. Often lost in the unnecessary rancor of these necessary debates is the fact that most liberals and conservatives agree on the overwhelming majority of which behaviors should be prohibited and which should not. Murder, rape, property theft, dumping lethal doses of toxins in rivers, forced labor, and blatant consumer fraud should be illegal. Personal insults, bad hygiene, hatred, leveraging a competitive advantage to drive smaller companies out of business, overcompensating executives, and creating waste in manufacture may all be undesirable, but most would agree that criminalizing them is not the appropriate measure for their control.

Examples of even the most blatant offenses on the corporate/institutional side of the equation are more awkward to describe, and so unfortunately defining the best reasonable lines for what should and should not be allowed is complex and nuanced. Where a simple law comes reasonably close to disallowing the undesirable while allowing mostly free commerce, that is preferable to a complex suite of regulations with multiple dependencies. It is reasonable to suggest that law should prohibit the blatant behaviors while industry should self regulate the details where complexity requires that. Unfortunately many industries become controlled largely by the bigger players, and the power they obtain in setting the rules mandates the need for independent oversight. Sometimes that means government intervening to look out for the interests of those without the power to insist on fair treatment.

Unequal Power

My liberal inclination to legislate corporate and institutional behaviors more strictly than personal behaviors has its basis in the fact that larger institutions and corporations accrue power as they grow. This does not make them a priori any more evil than an individual, but common sense dictates that it does make them more dangerous, and if they do misbehave the consequences are magnified. The corporate executives who are tempted to believe the report that the toxic release which would save their company millions over the alternative may not have the murderous intent of the criminal punk who has been hardened by years on the street, but if that report is wrong their choice may be far deadlier.

Economic conservatives often mock liberal "anti-corporatism", but I see their trust that the market is sufficient to control corporate excesses as frighteningly naive. I actually agree with them that the market is a good tool for directing the production of goods toward items which have actual value, but even if the market were truly free, which it isn't, that tool is certainly not sufficient for reining in excesses. And in an age where increasing monetary inequity exacerbates the power inequity, a healthy distrust of corporations should inform our politics. I'd like a show of hands - who thinks that corporations don't have enough power and influence? And yet the tired out Reaganesque arguments about burdensome regulations quashing innovation persist. I'm all for eliminating regulations which don't make sense, and am happy to stipulate that many exist, but give me a break, corporate behavior which is unseemly and ought to be stopped is rampant in our world.

We are hostages to Corporate Personhood & stockholder primacy

Two simple changes to U.S. law could go a long way toward righting the power imbalance between the common people and the mega-corporations. One would be the elimination of the concept of Corporate Personhood (not to be confused with the protection against liability afforded by incorporation), which was created out of a gross misinterpretation of the Fourteenth Amendment (pdf) in multiple court rulings late in the nineteenth century.

While society was grappling with bringing former slaves into U.S society, the power and influence of corporations was also on the rise. While very few people were turning their attention and energy to bringing former slaves into society – indeed, far more energy was being put into NOT bringing them into society – corporations were using a great deal of their wealth to hire lawyers to advance their interests in the courts. The Fourteenth Amendment offered an opportunity to advance corporate interests, and the corporate attorneys set out to exploit it.
Of the 150 cases involving the Fourteenth Amendment heard by the Supreme Court up to the Plessy v. Ferguson case in 1896 that established the legal standing of “separate but equal,” 15 involved blacks and 135 involved business entities. The scope of the Fourteenth Amendment to secure the political rights of former slaves was so restricted by the Supreme Court that blacks won only one case. The expansive view of the Fourteenth Amendment that comes down to Constitutional Law classes today is the result of corporations using the Fourteenth Amendment as a shield against regulation.

These cases sought to establish personhood for corporations, culminating in a statement by Chief Justice Waite in 1886 commenting on Santa Clara County v. Southern Pacific Railway:

The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.

Who believes that an amendment written to grant equal protection to all races really meant that corporations should be protected as citizens? Again I'd like to see a show of hands on that one. Call me a judicial activist, (ok, I AM a judicial activist), but this is one precedent that needs to be shot down, stare decisis be damned.

Stockholder primacy is the other concept which works in concert with a myopic devotion to free market principle to not only work against ethical behavior by corporations, but arguably to legally require it. Lawsuits by investors against corporations frequently cite actions which might go against the interest of investors. Taken to the extreme, such arguments suggest that where money can be saved by doing so, corporations are required to push right up to the limits of the law, even if moral compunctions might argue otherwise. Of course, such arguments can be countered by pointing out that long term investor interest is actually positively served by the good will generated by corporate responsibility. Still, I find it offensive that the interests of stockholders should take precedence over the interests of the workers, the consumers, and the communities where the corporations exist.

I love to imagine a million people marching on Washington holding signs "Eliminate Corporate Personhood" & "Our Interests Trump Stockholder Interests". Not exactly slogans there for a populist groundswell, I know. But the impact of these two legal principles are enormous, and I dare to believe that if you forced every civic minded person to learn about these issues and vote on them, both would be overturned by whopping majorities.

Alit... Shhhhhh!: War, Torture, Corruption, Deceit

The Democrats got an early Christmas gift from Republican Senator Arlen Specter, who correctly postponed hearings on the Samuel Alito SCOTUS nomination until January, rebuffing the anxious White House, saying "We have to do it right. We can't do it fast."

I agree with others who believe the GOP is in no position right now to be using the "nuclear option", so politically the Dems are in a great position to filibuster. But the process is important, and it seems to be clear that Alito is a thoughtful and decent man, as well as an intelligent constitutional scholar. The extent to which he would move the judicial philosophy of the court to the right, however, is a genuine concern to liberals and some moderates, and Senator Leahy, the ranking democrat on the Judiciary Committee will not rule out rejecting Alito on ideological grounds.

Two paragraphs, after saying "Shhhhhh!", I'm still writing about Alito. But the break until January gives Democrats more time to focus the nation on the Iraq war, use of torture, corruption, cronyism, and deceit, and that's what they should do in lieu of making more public comments about the Supreme Court nominee. Cheney's support is down to 19% in the latest poll, so I expect Bush's support to fall further. As much as I prefer the higher road, where people of disparate philosophies work together to hammer out sensible policies, the demonstrated unwillingness of the Bush White House or Republican Congressional leadership to engage with their adversaries, combined with their increasingly apparent criminality makes it clear to me that the best course is to pile on and do everything possible to discredit them and render them ineffective.

So I say it's time to be quiet about Alito, and make as much noise as possible about the outrages perpetrated on Americans and the world by Bush, Cheney, Rove, Rumsfeld, DeLay, Scanlon, Abramoff, etc. Reasonable Republicans like Specter can help us against the religious extremists, McCain against the torture promoters, Grassley against the too cozy relationship between Corporate heads and government regulators. Fully discrediting the current leadership will give an opportunity for reasonable voices to rise within the Republican party. We'll need those voices to be there if and when the Democrats take the reins of control back. For now, I will openly long for that day, and add my voice to the rising crescendo of dissent.

Libby Replaced by Two Who Are Unfit

While most of the press dutifully follows the important Supreme Court nomination, someone is paying attention to our administration's willful disregard for common sense and decency, by replacing indicted insider Libby with two other insiders linked to spreading misinformation and authoring pro-torture policies. It's a pretty sure bet that if the truth were all exposed, it would be a lot more than just Scooter Libby confined to a prison cell. I'm all for due process, but there are some who have been executed for less egregious offenses than Cheney, Rove, and Rumsfeld, to name a few are probably guilty of. Those who have inside knowledge of any crimes have a patriotic duty to expose them to the American public. There seem to be a whole lot of people who have gotten it backwards, and are endangering our national security in the name of protecting it.

Thanks to Basie! for keeping his eye on the ball.

Anticipating the Firestorm

The emails have not yet started to flood in. I'm sure the advocacy groups are currently working overtime collecting the data on Samuel Alito's judicial decisions so that they can make their case to their constituents to oppose or support his nomination to the Supreme Court. MoveOn was quick on the trigger, though, and have already launched their campaign to collect a quarter million signatures in 48 hours in opposition to Alito's elevation to the Supreme Court.

Really though, the firestorm I am anticipating is not the predictable one which will be waged in public among the various interest groups and their constituents, but the more subtle one which will take place in the Senate Judiciary Committee and if approved there on the floor of the Senate. I figure it is time to dredge up last May's Memorandum of Understanding on Judicial Nominations which was brokered in the famous compromise of 14 to avoid the rancor of the nuclear option. The agreement is only binding upon the 7 Republicans and 7 Democrats who signed it, and is not as broad as some would have us believe. Specifically the Democrats agreed:

Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

A frequent misreading of this document is that since the earlier section of the document exempted the use of the filibuster by the signatories against non-Supreme nominees Janice Rogers Brown, William Pryor, and Priscilla Owen, that there is an implicit acknowledgement that their nominations do not constitute extraordinary circumstances. Such a reading would equally imply that the Republican signatories were acknowledging that William Myers and Henry Saad did exemplify extraordinary circumstances which the Democrats would have a right to filibuster. No, Part I of the compromise, was just that - a compromise to avoid the protraction of debate on the then current set of judicial nominees, so that business could proceed and the threat of the "nuclear option" could be deferred at the least.

Nuclear Option: dispensing with the Senate rule that 60% of the Senate is required to stop discussion (invoke cloture) and force a vote on a nominee.

It does mean that any of the (Democratic) signatories who do take part in a filibuster are on the hook to defend their perception of a candidate's nomination as an extraordinary circumstance, as any of the (Republican) signatories would be on the hook to claim otherwise before ceding to any Republican attempt to invoke the nuclear option. These Senators actually know each other well enough to have a pretty good idea if the others are being disingenuous, but I really think the Democrats have the upper hand here. If one or several make a sincere case that a nomination is extraordinary - and note that the memorandum does not exclude ideological considerations - then any of these more moderate Republican signatories will be hard pressed to cry foul. Further, the weakened Presidency and embattled Republican party has already spent its political capital for this kind of fight. Now it's true that the Republicans, if they are otherwise united, only need to peel off two or three of their signatory fellows to reverse the cloture rule, but it's an even more risky game for them given the higher likelihood that they will become the minority party in 2006 or 2008.

Alito may not be the firebreather that Bork was, nor the lightweight that Miers was perceived to be, but he has a long record which won't play well among civil libertarians, consumer advocates, or the suburban social moderates. Roberts and Alito may not be that different, but Roberts record was shorter and afforded him better play under questioning. His confirmation without any recorded cloture vote - a voice vote I'm guessing - with only 22 Nays in the final tally also establishes that the Democrats are playing nice, so far.

My sense is that the fight is upon us, and with the weakening of public support for Bush and the GOP, right now I'm betting against his confirmation. He may not even get out of committee if Specter decides that it's time to stand up to the right wing of his party.

Rosa Parks

On the day of her passing, we thank Rosa Parks for her important role in bending the moral arc of the universe toward justice. But we also thank those who came before her, those who worked with her, and those who have come since.

The Rosa Parks story is frequently taken out of context, and there is a misimpression that it just happened one day out of the blue. Parks earned her renown after years of involvement. From Paul Loeb's article:

[the] familiar rendition of her story had stripped the Montgomery, Ala., boycott of its most important context. Before refusing to give up her bus seat, Parks had spent 12 years helping lead the local NAACP chapter. The summer before, Parks had attended a 10-day training session at Tennessee's labor and civil rights organizing school, the Highlander Center, where she'd met an older generation of civil rights activists and discussed the recent U.S. Supreme Court decision banning "separate but equal" schools.

In other words, Parks didn't come out of nowhere. She didn't single-handedly give birth to the civil rights efforts. Instead, she was part of an existing movement for change at a time when success was far from certain.

This in no way diminishes the power and historical importance of her refusal to give up her seat. But it does remind us that this tremendously consequential act might never have taken place without the humble and frustrating work that she and others did earlier on. It reminds us that her initial step of getting involved was just as courageous and critical as the fabled moment when she refused to move to the back of the bus.

As a white male in 2005, I live in greater freedom to the extent that oppression has been lifted from others. One of Martin Luther King Jr.'s great insights was in recognizing the oppressive effect of oppression not only on the oppressed, but also on the oppressor and upon those expected to take the role of the oppressor. To the extent that inequity was still palpable in the sixties when I was growing up in Georgia, I can tell you that it was unpleasant for me. Of course it was ever so much worse for those on the other end of the inequity.

[Addendum: For additional background on Rosa Parks's action, the role of others, and the Montgomery bus boycott, please see Sheelzebub's excellent post at Preemptive Karma.]

So Much News

So Little Time

These days it would be a full time job to do blogging any justice. I've never felt obliged to comment on all major current events here, but when everything seems to be happening at once, it's just overwhelming. So let me recommend some other sites:

For great insights on the Plame case and Rove's upcoming testimony, check out Firedoglake, where Jane Hamsher has recently teamed up with ReddHedd to deliver all the sinister speculations as the wheels are coming off BushCo. Great Photoshopping of Rove's recent trip up, Jane! ;-)

Ordinarily I'd be anxious to deliver some commentary on the excellent vote coming out of the Senate last night. John McCain has disappointed me frequently in the past year, but this is the arena where I expect him to shine, and he did not disappoint. 90-9! Way to go Senators! Oklahoma is the lone state of total shame on this one. My heart goes out to all you believers in human decency in the Sooner State.

With the Supreme Court season coming into full gear and a nomination still on the table, don't forget to check in on SCOTUSblog for all the latest.

There has been a lot of tragic local news in the Puget Sound area recently, with the crash of a Medic Helicopter carrying the pilot and two nurses, the death of two scientists, crushed by logs rolling off a truck on Tuesday, and the usual assortment of fires and crime.

That and a friend of mine is prominently featured on Grist, where he is ready to take all questions on the impact of Mangrove destruction and how we can help in the fight to abate it. Go Alfredo!

Finally, speaking of how we can help, here is a long overdue tip of the cap to one of the most positive blogs I've encountered, so what can I do? which always looks to action rather than complaint in encountering the injustices of the world. Karama Neal, the host, is currently celebrating the blog's anniversary by pledging a donation to three worthy organizations for each comment left here.

Death With Dignity Before the Court

Chief Justice Roberts was immediately thrust into presiding over a highly controversial case today. The ability of doctors in Oregon to legally prescribe lethal doses of medication to terminally ill patients is being challenged by the U.S. Attorney General's office. In his very last day in office, Attorney General Ashcroft drew my ire by ruling that under the Controlled Substances Act, doctors' licenses to prescribe drugs could be revoked if they prescribed lethal doses for terminally ill patients meeting the qualifications of Oregon's Assisted Suicide Law, approved twice by Oregon voters, most recently by a wide margin.

The case is controversial, but it boggles my mind why it should be. Common decency and compassion dictate that patients enduring great pain, or facing terminal conditions should be able to obtain prescriptions making it possible for them to painlessly hasten their own passing. Assuming that we get past the current push toward theocracy in our country, one can easily imagine a day when people of the future will look back on this case as we currently look back on the Dred Scott decision. They (hopefully) will shake their heads in amazement and ask "You mean back then you could only get those prescriptions in Oregon?!"

Early indications are that Roberts is leaning toward ruling for the Attorney General's office. Supreme Court scholar, Jan Crawford Greenberg was quoted tonight on PBS' Newshour:

Chief Justice Roberts asked lawyers on both sides of this issue very aggressive questions; he saved most of his aggressive questions for the lawyer for the state of Oregon who was defending Oregon's law.

Souter, O'Connor, and Ginsberg were clearly more aggressive in questioning DOJ lawyer Paul Clement. But O'Connor may not get to rule in this case if her replacement is confirmed before a decision has been written, and previous precedent has been that such decisions are deferred in cases where the retiring justice would render a deciding vote.

Onlookers are split in reading how the court is likely to rule on this one, with Greenberg calling it too close to say, death with dignity activists Compassion & Choices writing "the Court is unlikely to uphold the Ashcroft Directive", and SCOTUSblog seeming to lean toward believing the feds will prevail. The calculus is that Souter, Ginsberg, and O'Connor will likely be joined by Stevens and/or Breyer, while Kennedy is more likely to join Thomas, Scalia, and Roberts in upholding the Attorney General's strictures against these prescriptions. Precedent would then hold the decision up until Miers joined the court, where immediately we would have a test of whether Bush has succeeded in tilting the court toward a ruling for the religious right. Perhaps Thomas or one of the conservatives could surprise us by allowing states' rights considerations to trump their cultural conservatism.

Compassion & Choices provides a full set of links at their summary page which goes on to say

The Justices appear reluctant to read the Controlled Substances so broadly. Several Justices repeatedly asked how Congress had empowered the Attorney General to preempt Oregon's law. With no sufficient answer, it seems clear the Attorney General exceeded his authority.

While I appreciate concerns for abuse of any death with dignity law, the Oregon law has multiple safeguards, and the history of its application bears out that it has not been abused, with those taking advantage of its provisions being exactly the sort of cases for whom it was designed. Concerns that it might be applied disproportionately among the poor or those whose primary motivation is to not be a burden on their families have not been borne out. It has also provided great comfort to many who know they have the means to choose for themselves when enough is enough.

In my view, concern for the patient should trump all other considerations in determining medical care. When the patient cannot be made comfortable and is expected to die within six months, it strikes me as the height of audacity and hypocrisy for anyone else to shake their finger at the sufferer and tell them they have no right to hasten their own death. If an animal is suffering we consider it an act of kindness to put them out of their misery. How much clearer it is in the case of a human being who can cogently express their desire to hasten their death, to allow them a dignified and painless method of doing so.

Doctors opposing this law point to their oath "to do no harm." If they cannot save the patient or alleviate their suffering, then they ARE doing harm by denying the patient a painless way out.

Another View of Roberts

Having written "I'd rather have a Supreme Court Justice of sound temperament with whom I disagree, than one who might be more likely to make a ruling or two that I'd be happier with, but who has shown clear unsound judgment in matters of law" in commenting on John Roberts nomination to the Supreme Court, doesn't mean I won't also look at other views on the matter. Paul Loeb's article points out:

Challenging [Roberts] draws a line and invites our fellow citizens to stand up in other ways to this immensely destructive presidency.

How has a seemingly nice man like Roberts supported a politics of contempt for the voice of anyone but the wealthy and powerful? In a time when the Bush administration acts as if granted the divine right of kings, it’s troubling that Roberts defended Cheney’s right to refuse to name the corporate participants in his secret energy policy meeting. He advised Jeb Bush on the 2000 election, and denied being a member of the ultra-conservative Federalist Society, then turned up on the Society’s Washington steering committee. He’s argued that the Voting Rights Act can only be violated by intentional discrimination, saying laws that incidentally discriminate are ok. Most damning, Roberts just ruled that if this administration wishes to exempt someone from the Geneva Convention and international law, they have the absolute right to do so. The belief that a president can do whatever he chooses links this nomination, the Downing Street Memo and Plamegate in a common matrix of unaccountable power.

Roberts is also disturbingly loyal to dubious corporate interests, or at least to principles that allow these interests to run roughshod over ordinary citizens and communities. He argued that private individuals could not sue the federal government for violations of environmental regulations like the removal of mountaintops by West Virginia mining companies. He supported the rights of developers to ignore the Endangered Species Act. He denied the rights of workers injured over time as part of their jobs, supported criminal contempt fines to force the end of a strike, and helped a major car manufacturer avoid a recall of dangerous seatbelts.

I still hold to the premise that a Democratic filibuster of Roberts would be bad politics. In spite of the foregoing, we could do a lot worse, and Roberts willingness to assist a gay rights group with pro bono work shows at least that he is not the inflexible ideologue that Clarence Thomas is. Democrats, indeed all Senators, on the Judiciary Committee, and if (when) passed to the full Senate should ask the tough questions. After reasonable discussion however, I simply don't see, given what we know so far, a reasonable argument against voting for cloture (filibustering), at least among the signatories to the compromise. That doesn't mean that any Senator uncomfortable with this choice should not feel free to vote no when the final vote comes up. I also stand by my belief that advocacy groups should save their money for future fights. There will be plenty of those.

Conserving Energy for Important Battles

I hadn't really planned to write about the Roberts nomination to the Supreme Court once I found out a bit about the nominee. I think David Remer sums it up pretty well. But I find my friends asking for my spin, and have gotten several emails about it, the most disappointing coming from MoveOn.org, who are clearly trying to organize to block the nomination. Sure the Senate should do their due diligence on the nominee, but it's pretty clear any objection to Roberts would fall outside the scope of the "comity compromise", so it seems a waste of effort to spend energy to block this nominee. Most telling for me, though, is the radio interviews I've heard with liberal legal professionals who know Roberts personally and can vouch for his decency. I'd rather have a Supreme Court Justice of sound temperament with whom I disagree, than one who might be more likely to make a ruling or two that I'd be happier with, but who has shown clear unsound judgment in matters of law in the past, especially given the lifetime nature of these appointments. That's why I'm much happier with Roberts than Gonzales, even if it does increase slightly the fragility of Roe v. Wade for instance. There will undoubtedly be some 5-4 decisions going in what I consider the wrong direction due to Roberts' appointment, but I'd rather save our energy for a principled fight against a potential fire breather on the court.

Let's hope that Stevens, Ginsburg, Breyer, Kennedy, and Souter hold out until we get a moderate with some intellect in the White House.

O'Connor's Resignation

There was no need to turn on the news today for me to learn of Sandra Day O'Connor's stepping down from the high court. Five separate emails encouraged me to make my voice heard in one way or another about the selection of her replacement. Blogging about it is probably not what they had in mind. I can only imagine how many emails flooded the in-boxes of those who are involved in pro-choice politics. My own came from Democracy for America (Dean's old group), John Kerry, the ACLU, a gay rights group, and MoveOn.org. Of course the subtext here is mostly about choice/abortion since O'Connor was a swing vote, but fairly consistently voted to defend Roe v. Wade principles.

When conservatives complain that it's the Democrats who apply the litmus test to high court appointments they have a point. Of course there will be plenty of litmus tests to go around on both sides of the issue depending on who's doing the judging. In the Presidential debates though, it was Bush who rhetorically denied the application of a single issue litmus test, while Kerry in spite of eloquently expressing sympathy for pro-life sentiment, suggested that his court appointees would necessarily be pro Roe v Wade.

My concerns with O'Connor have largely been on other issues close to my heart, such as her dissent on the decision disallowing the death penalty for juveniles. Personally I would like to know a prospective justice's proclivities on a whole range of issues, and it does not necessarily follow that given a choice between two, my preference would go toward the one most likely to uphold Roe v Wade. I find it rather annoying that the Democratic Party's choice would almost automatically go to the pro-choice candidate regardless. Make no mistake, though, I still would much prefer that Kerry be making this choice than Bush. The political fallout will be interesting.

One email pointed me to this piece in the Washington Post in which Harry Reid publicly encouraged Bush to name one of the following Republican Senators: DeWine of Ohio, Graham of South Carolina, Martinez of Florida, or Crapo of Idaho. It seems quite unlikely Bush would do so, especially DeWine or Martinez, who come from states where Republican majorities are slim. I'm not sure, if for instance the just elected Martinez became a justice, whether brother Jeb, as Governor of Florida would get to name the replacement Senator for a brief interim until a special election, for a longer interval until the 2006 election where the voters would elect someone for the 4 remaining years of the term, or for the full remainder of the term.

More on Youthful Criminals

My previous post on the Supreme Court decision was also posted on WatchBlog, where it predictably drew a fair amount of comment from those who see the enormity of some of the crimes committed by juveniles as a reason to make an exception to their exemption from the death penalty.

The very first comment from Rocky was typical:

I couldn't disagree with you more. There are crimes that are so heinous that the death penalty cannot be taken off the table.

It obviously should be used sparingly, and I don't know at what age the cutoff point should be, but to drop the death penalty alltogether is unconscionable.

The discussion moved more toward the capacity for youth to understand fully the ramifications of their crime, with one 16-year-old, Leon, taking strenuous exception to exempting youth from responsibility.

I wasn't surprised to find that this issue doesn't divide people neatly along liberal or conservative lines, as Leon is a self-described liberal, whereas Jack, one of the most capable conservative voices over at WatchBlog came out in favor of the Supreme Court ruling, noting among other things that the factor of deterrence is least likely to have sway over rashful young offenders.

More recently someone commenting as K offered this:

There seems to be a lot of discussion pertaining to what a child "knows" to be "wrong" and an adult "knows" to be "wrong". These words can mean a great many things, but I think what we should mean by "wrong", is "immoral" in the sense of critical, rational morality. And I think many of us would question a teenager's ability to understand critical morality. However, I think the death penalty proponents mean "wrong" in the sense of "forbidden". Clearly, a child knows what is forbidden and what is not, as does a teenager, but it is doubtful, in my view, that either of them really understands WHY a great many things are forbidden, which is the real issue. Ultimately, understanding wrongness hinges upon the understanding of another person's pain, which is usually the underpinning for any sort of critical morality.

To which I responded:

Thanks K for some philosophical perspective.

Because I'm certain those who have argued for greater responsibility for youth will take exception to your assertion that a teenager does not yet understand WHY something is wrong, or have the ability to understand critical morality, I would refine your distinction. Let's all agree that between childhood and adulthood humans develop (or should develop) that critical morality which you speak of. Leon is quite certain at age 16 for instance that he CAN empathize with others and rationally understand the moral consequences of his actions. But he is continuing to mature in that regard, and cannot know at age 16 what his moral understanding will be in his mid-twenties. I would posit, for instance, that the angry retributive language that he used to describe what should happen to the worst offenders will likely be tempered by that time. In fact such a response is indicative of the rashness of youth which was referred to in the opinion. Leon's rashness will not manifest in barbarous acts against innocent victims because he is in fact much more mature morally and rationally (and likely the beneficiary of a much better upbringing - though I cannot know that) than the troubled youth who have committed awful crimes.

The court acknowledges in the ruling that drawing any age line is subject to arbitrariness, but 18 is the age "where society draws the line for many purposes between childhood and adulthood and the age at which the line for death eligibility ought to rest."

We all agree that an 8-year-old should not be put to death, and a line should be drawn somewhere. I believe that the line should be drawn nationally and not left to the whims of individual state legislatures which are subject to the political pressures of the day.

Another sentence from the ruling which was a bit difficult to parse, but which is important is:

An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death.

In other words the court felt that it was too likely that a jury would be too overpowered by the terrible brutality of a crime to properly account for the mitigating factors of youth. To me the discussion here proves that point.

I'm not saying these kids aren't bad, but there is a significant difference between their rashness and meanness and that of someone who has hardened that into adulthood. The awfulness of their crime tells us nothing of their fitness to be tried as an adult and sentenced to death. If 1000 teens commit heinous crimes over a 10 year period and 50 are put to death, I have no confidence that juries will have picked the "right 50" given the sensationalism of these cases. Simply put we are better off removing the option from the table. As Jack stated youthful offenders are the least likely to be deterred by what is arguably a meager threat of a death penalty.

People who do heinous things are sometimes redeemed, such as the author of the hymn Amazing Grace, and as a society it speaks ill of us if we give up on the possibility of redemption for such youthful offenders. For that reason I personally would take life imprisonment off the table as a possibility for minors, but that will have to wait a few decades before we mature as a society to understand that as well.

Proportionality is the Point

Thanks to Justice Anthony Kennedy for his role in bending the arc of the moral universe toward justice.

... and the Court's own determination in the exercise of its independent judgment, demonstrate that the death penalty is a disproportionate punishment for juveniles.

Significantly, Kennedy was chosen to write for the majority in the recent 5-4 Supreme Court decision which had the immediate effect of removing 72 individuals from death row who were convicted of crimes they committed when they were 16 or 17 years old. Kennedy had cast a deciding vote for the opposite position 16 years ago, which resulted in a 5-4 decision to retain executions of that same class of juvenile offenders.

While a lot of focus has been on the international trend away from allowing the death penalty in general, and for younger offenders even more broadly, the point of changing this isn't that times have changed, but that it's the right thing to do.

Drew Eldredge-Martin posts additional evidence that Kennedy's personal moral arc is swinging toward compassion, as has been a pattern for at least forty and possibly more years on the court if one follows individual careers. It makes sense to me that individuals, who persistently confront as part of their life work so many heady issues of great moral significance, would naturally as they gain wisdom and insight in that process move toward less doctrinal and more humane stances. It may be too much to hope for such a transition in the future of Justices Scalia or Thomas, but one can never know for sure.

By all means we should also thank Justice Stevens who voted for the moral position in both decisions, as well as Justices Souter, Ginsberg, and Breyer of the current court and the now deceased Justices Blackmun, Marshall, and Brennan of the 1989 court.

This court ruling, hereafter known as Roper v Simmons 2005, had three pieces to it: the first a constitutional one relating its relevancy to the Eighth Amendment; the third related to the movement of international opinion; but the meat of the decision for me is the second part of the ruling:

Rejection of the imposition of the death penalty on juvenile offenders under 18 is required by the Eighth Amendment. Capital punishment must be limited to those offenders who commit "a narrow category of the most serious crimes" and whose extreme culpability makes them "the most deserving of execution." (Atkins, 536 U. S. at 319). Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. Juveniles' susceptibility to immature and irresponsible behavior means "their irresponsible conduct is not as morally reprehensible as that of an adult." (Thompson v. Oklahoma, 487 U. S. 815, 835). Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. (See Stanford, supra, at 395). The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. The Thompson plurality recognized the import of these characteristics with respect to juveniles under 16. (487 U. S., at 833-838). The same reasoning applies to all juvenile offenders under 18. Once juveniles' diminished culpability is recognized, it is evident that neither of the two penological justifications for the death penalty--retribution and deterrence of capital crimes by prospective offenders, (e.g., Atkins, 536 U. S., at 319)--provides adequate justification for imposing that penalty on juveniles. Although the Court cannot deny or overlook the brutal crimes too many juvenile offenders have committed, it disagrees with petitioner's contention that, given the Court's own insistence on individualized consideration in capital sentencing, it is arbitrary and unnecessary to adopt a categorical rule barring imposition of the death penalty on an offender under 18. An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death. When a juvenile commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity. While drawing the line at 18 is subject to the objections always raised against categorical rules, that is the point where society draws the line for many purposes between childhood and adulthood and the age at which the line for death eligibility ought to rest.

Proportionality is the point!