- Tort law (see Democratic opposition to tort reform)
AGAINST states' rights for:
- Segregation (see Brown v. Board of Education, 1964 Civil Rights Act, 1968 Civil Rights Act, 1968 Voting Rights Act,
Kennedy, John F., Kennedy, Robert F., Johnson, Lyndon B., 1982 Voting Rights Act, Cong. Lewis (D-Ga), etc, etc.)
- Nonspecific check on the democratically elected Federal Government's misguided attempts to improve its citizens' lives.
(see any 5-4 Supreme Court Federalism case since 1996)
Now, I'll grant that abortion is a difficult issue which may not fall into a tidy category (more from Glenn Reynolds here), but it seems to me that although states' rights are often embraced by either political party whenever it suits their policy goals, that the Democrats view states' rights and the independence of the state governments as means to enhance people's rights whereas the Republicans view states rights as a way to restrict peoples' rights and as a way to counter the federal government, where they -gasp- have to obey laws passed by people who think differently than they do. Law aside, on states' rights, we're right, they're wrong.
posted by Adam
Take an Ounce of Consistency and Call Me the Morning After...
The Senate this morning passed S.3, banning so-called partial birth abortions in every circumstance where there is not a threat to the mother's life (having rejected a provision making the mother's health a valid consideration as well). The bill was sponsored by Sen. Rick Santorum, R-PA, and, although there are many points here worth discussing, the one that is particularly frustrating to me at the moment is the sheer hypocrisy of the bills' proponents.
The Republican party is continually asserting that is it the party of states' rights. For example, conservatives argue, loudly, that federalist principles preclude the federal government from passing gun control legislation. At the same time, the presumption of this bill is that the federal government can intrude into an area of policy currently defined by the laws of individual states (within the constitutional framework of Roe v. Wade and its progeny) to prohibit a specific medical procedure that has considerably less to do with interstate commerce than, say, the sale and manufacture of a gun. (As a side note, I'm not especially worried about the downfall of states' rights, I just happen to think this stance doesn't make any damned sense.)
In fact, here's what Santorum and Sen. Lott had to say about federalism vis-a-vis the Patients' Bill of Rights: "Senator Rick Santorum (R-PA) a conservative and a dyed-in-the-wool constructionist . . . suggested that, 'This is about arrogance. It's about people thinking we'll (Congress) decide. We here in Washington think we're enlightened and know what's best for you.' Senate Majority Leader Trent Lott (R-MI) was more specific: 'Congress should not imperil the continuing transformation of American medicine. It's not our job to dictate or control that transformation.'" Hey, they said it, not me.
CNN wants everyone to rest assured: Don Rumsfeld is keeping a list of all the things that could go wrong if we go to war with Iraq, at least when he has a few minutes to spare from walking in light snow looking troubled and thoughtful. Now if the administration could just figure out who has the list of diplomatic solutions, they might really be onto something.
posted by Amanda
Oh, and by the way, don't we get a bird? Hasn't someone thought of this before? Pro war = hawks. Anti-war = doves. Not opposed to military action under certain circumstances = ??? (and don't say dodo!).
posted by Adam
The de-frenched fries made the front page of the NY Times this morning, including a great quote on the topic from the always-quotable Barney Frank: "Making Congress look even sillier than it sometimes looks would not be high on my priority list." Fox News's talking heads this morning weighed in (startlingly) in favor of freedom fries, and added that it is "snooty" of the French to point out that french fries aren't French. In fact, the existence of a product that is one of the staples of McDonald's business and has "french" in the name is probably infinitely more irritating the the French than all this renaming, but that observation is apparently too subtle for Congressman Ney.
The fry uproar brought me back to Adam's original question about what Democrats should be doing regarding the impending war in Iraq. It seems to me that the right strategy is to combat Bushism more holistically, rather than acceding to its obsession with war. After all, the Republicans are pushing a huge domestic agenda while they think the public isn't looking. Democrats who support the war--and there are plenty of them--should be dispatched to take on the swarm of domestic assaults that Bush would like to sneak through under cover of war. There should be a big blue blimp flying over Portland (if it can get past Tom Ridge) with a sign that says "A Tax Cut Won't Educate Your Children," and there should be Democrats there stumping on the same point. There should be a sign on John Ashcroft's lawn that says "Surgeon General's Warning: Eating Freedom Fries Does Not Protect Your Civil Rights," and Democrats railing against Patriot II. And there should be bumper stickers all over Washington that ask "It's Ten O'Clock--Do You Know What Your Supreme Court Nominee is Doing?" and organized, articulate resistance to putting ideologues on the bench. And, yes, the Democrats should be making the administration explain how it's going to pay for every last MOAB. In other words, the Democrats need to remember how to be an effective opposition party, and give the Republican agenda a big enough shove to make it collapse under its own weight.
This takes the big, fat, German chocolate cake: House cafeterias change names for 'french fries' and 'french toast'. You guessed it, they're now going to be called "freedom fries" and "freedom toast" because otherwise there might be some doubt that we're mad at the French. Too bad they don't have more creativity--it would at least be funnier to be featuring "Eggs Chirac."
posted by Amanda
Beyond political expediency, there are significant reasons to oppose any
conservative extremists that President Bush may nominate to the Circuit
Courts (Which is not to label Estrada as an extremist, as the administration
refuses to divulge the information necessary to determine whether he is).
Jack Balkin posted an interesting blog post on this Sunday
based on an article he and Sanford Levinson published in the Virginia Law Review.
Here are three reasons he gives for why the judicial philosophy of federal appellate judges can be
1) The lower courts handle many more cases than the Supreme Court on a day
to day basis, and thus have more of a direct impact on outcomes as far as
litigants are concerned.
2) They are often called on to apply (and in the process interpret) Supreme
Court cases, and can spin them in a more (or less) conservative manner.
3) The lower courts act as testing grounds for constitutional movements,
allowing theories to be developed and refined in the case law before they
ever reach the Supreme Court.
A federal judge Tuesday ordered the government to allow lawyers to meet with alleged "enemy combatant" Jose Padilla, an American citizen accused of being an al Qaeda operative who plotted to detonate a radioactive "dirty bomb" inside the United States.
The decision is a legal setback for the Bush administration, which sought to block Padilla from meeting his defense lawyers under any circumstances, saying national security is more important than a detainee's right to counsel.
U.S. District Judge Michael Mukasey rejected the government's argument in a 35-page decision, ordering the government to permit Padilla's New York-based attorneys to visit the prisoner, who has been held incommunicado in a South Carolina Navy brig since June.
"The government's arguments here are permeated with the pinched legalism one usually encounters from non-lawyers," wrote Mukasey, who had signaled his impatience with the government's views at a January hearing.
"At a minimum, had the government permitted Padilla to consult with counsel at the outset, this matter would have long since been decided in this court," Mukasey wrote.
It seems almost beside the point to discuss anything other than the impending war (and, BTW, what changes on the left when the shooting starts? I know most of the other posters here are adamantly against the war. How does the start of the war affect y'all? Do you say or do anything differently? I think it will just make me more confused.). Nevertheless, there's a very interesting article in this week's NY Times magazine on the makeup and functioning of the Fourth Circuit.
The article does a good job of discussing the Fourth Circuit's role in influencing the Supreme Court in cases like Morrison, VMI, etc. The article also gives great insight into Judges Wilkenson and Luttig, and shows why the Democrats should be concerned more about the latter than the former. Much virtual and actual ink has been spilled over Estrada and the proper measure of "judicial temperment." It seems to me (as a former Southerner, among other things) that Wilkenson has one and that the jury is still out on Luttig.
Politically, the debate over judicial nominations is a bit of a tempest in a teapot. Lower court nomination fights are great fun in D.C., where the concentration of lawyers is extreme, and they don't mean much in most cases in the rest of the country. Estrada has been great in generating blog posts, op-eds, and fundraising money on both sides, but I'm not sure if there's a real public awareness of the filibuster. In other words, he's been great for both bases, but has no broad political salience (perhaps excepting the Latino community where I understand both sides have been running Spanish-language ads on the issue).
Since judicial nomination fights are red meat for the base, there's no reason the Democrats shouldn't fight like hell over each one. Yes, the courts are understaffed, and yes, the quality of justice in the federal system has suffered as a result. However, it takes two to tango. If Estrada can generate between 50 and 60 yes votes in the Senate, then all Bush has to do to get his nominees approved is select people slightly less conservative. You know, like Clinton did. Clinton's nominees were nowhere as liberal as Bush's are conservative. The Republicans still fought many of them tooth and nail, but that is neither here nor there. Until Bush moves his nominees to the center, the Democrats shouldn't give an inch.
...and now for the veto. From Russia and from France. Meanwhile, the White House is just sure they can talk them out of it. And if not, hey, they'll have a war anyway. But somehow it's the French who are making the UN irrelevant?
posted by Amanda
Amen to that. I find Patriot Acts I and II to be doubly frustrating. Not only do they impinge on our civil rights, they don't seem to me to be particularly useful in the fight against terror. More here:
Citing the arrests of some al-Qaeda members this week, Mr Ashcroft told the Senate Judiciary Committee that the new approach is doing well. He declared that America is “winning the war on terrorism” and that “our strategies and tactics are working”. Even Mr Ashcroft's critics will hope that this claim does not come back to haunt him. Nevertheless, successful arrests will not dispel alarm about the administration's appetite for new domestic policing powers and its apparent impatience with concerns about civil liberties.
America is not the only democracy to have reduced the legal constraints on its policemen since the terrorist attacks of 2001. But the change in the balance between liberty and security is especially striking in the United States. Americans have enjoyed unusually explicit and deeply rooted protections for individual rights. It was these freedoms that were exploited by the September 11th hijackers.
I mean, denying Padilla a lawyer for months on end doesn't seem to serve any enforcement or prevention purpose. And there doesn't seem to be any new accountability in the FBI or the CIA. No one in any position of power was fired after 9/11. Why not? Even if these agencies could not have prevented the attack, they clearly could stand some reorganization and some accountability. Let's say that there was a 10/100 chance that law enforcement could have put together the bits of data floating about prior to 9/11 in time to prevent 9/11. Can't we do better than that? If some firings and reorganization can improve the odds to 50/100, isn't that worth it? Plus, it seems to me that our civil liberties are so valuable, that the burden should be on the government to clean up its own house before it starts invading its citizens'.
The difficult question for the future is that of the next attack. If there is another large terrorist attack on U.S. soil, will the Democrats blame Bush? Are they justified in doing so? I'm not sure in an absolute sense, but their justification would be less if Bush had done all he could to (1) re-do the Dept. of Homeland Security in a more meaningful way; (2) funded it properly, and (3) properly investigated 9/11.
UPDATE UPDATE: Just wanted to be more clear: it would be disingenuous for a Democrat to say that the FBI and/or CIA "missed" 9/11 or that if the gov't "misses" the next attack, that it's Bush's fault. At a policy level, it can't really be about results, it has to be about process. Are our intelligence and enforecement agencies constituted to best prevent terrorism? Are they sufficiently accountable if they're not? The crucial question is not whether they miss things, but how and by how much. That sounds really cold and clinical, and it would be easy for a Dem to make the causal argument because it would be personal and would speak directly to the victims of terror. IMHO, an honest political message or rhetoric should be more balanced.
This, of course, might make it less effective, which kind of brings things full circle. The new awareness of terror, the impending war in Iraq, these are difficult issues to approach from a Democractic perspective. If you're not willing to take the anti-war, absolute civil libertarian position, you don't have a whole lot of room. As someone who is not against the idea of military action in Iraq, it feels a bit like musicial chairs. The hawks and doves have seats, and the rest of us are left standing.
There's always been something a little farcical about the anti-terrorist steps you can take at home that Tom Ridge and his buddies have been advocating. By now we're all fairly clear that there isn't a whole lot you can really do to protect yourself with a roll of duct tape. But the larger purpose of them may not be as silly and benign as the government-sponsored web sites would lead us to believe; the more scared we are, the more willing we are to give up the various freedoms we're supposedly going to war to protect. (It's not true, by the way, that when a citizen gets scared, the first things she'll give up is her civil rights; the first thing she's willing to toss are the civil rights of the guy next door.) So all the silliness and fuss may actually be properly understood as the most cynical kind of fronting for bills like Patriot II, a draft of which was apparently leaked recently, and which, among other things, attempts an end run around the sticky question of citizenship and its attendant civil rights by creating a presumption that people engaged in "terrorist" activities intended to give up their citizenship. Talk about scary. Pass the duct tape.
Couple brief thoughts. First of all, Friedman's column in the Sunday Times was excellent, I thought (sorry-don't have the link). I thought he nailed it pretty well-- or maybe I just liked it because he echoed what I believe to be my position on the war. Check it out if you can. On a more worrisome note, have you seen this about news that Iran may be very close to having Nukes. And Powell uses it to justify fighting in Iraq?! That clearly is the administration's answer to EVERY foreign policy issue that arises in the world. "This just further proves there are people out there who hate America. This we should attack Iraq because it hates America." What?!?
posted by Jeremy
Additional Random thought prompted by reading The Economist's Lexington column on the train this morning:
Bush's domestic style is to be super-aggresively partisan. He plays to his base, browbeats the middle, and ignores the rest. This worked well in Texas, where the middle is pretty conservative, and it did him well enough in 2000. It has been a modestly successful legislative strategy. On the foreign front, however, this attitude has been a disaster. His inability to even listen to opposing points of view (even if only to placate them) has made things worse. His partisanship and single-mindedness is so ingrained in him (due to its domestic success) that he can't change his tone or attitude when dealing abroad.