George Will marks the tenth anniversary of the Bush v. Gore decision by reminding us of the facts that undermine claims by the left that the decision was hypocritical activism on the part of the Supreme Court's more conservative Justices. In reality, there is nothing "activist" about a higher court reversing the activist adventures of a lower court -- at least not in any sense that a conservative should find objectionable
Richard Reeves: The most powerful political operation in the country now is the Supreme Court, with the men and women in black are on their way to deciding their second national election in just the first decade of the century. In 2000, the justices stopped the counting of votes in the presidential election. This year they tilted (or mutilated) congressional elections by ruling corporations (and unions) may anonymously pump millions of dollars into campaigns. Citizens can give much smaller amounts, but have to reveal their names and addresses -- "transparency" they call that. "There is no legitimate case against transparency.
Judicial confirmation hearings are supposed to be about the fitness of the nominee to serve. Last week, however, the Democratic members of the Senate Judiciary Committee used the hearings over Elena Kagan's nomination to attack the "Roberts Court."
The DISCLOSE Act is a project of Rep. Chris Van Hollen (D., Md.), head of the Democratic Congressional Campaign Committee, and Sen. Charles Schumer (D., N.Y.), the most reliably anti-corporate Democrat that Wall Street money can buy. The bill is the Democrats response to the Supreme Court s decision in Citizens United vs. Federal Election Commission, which held that the First Amendment protects the right of an activist group to distribute a film critical of Hillary Clinton during her presidential campaign, even though some of the money for the project had come from businesses and non-profit corporations, the free-speech rights of which previously had been restricted by the McCain-Feingold Act. Citizens United restored the right of citizens to raise their voices and money for or against the candidate or cause of their choice, regardless of whether those citizens happen to be organized as a business or a group of businesses, a nonprofit corporation, etc. One would think that such a decision would be cause for general rejoicing in a country where free speech is the first item on the Bill of Rights. In reality, the decision sent incumbents into a panic; as it happens, most of the incumbents are Democrats this time around, but bear in mind that this mess was started by a piece of legislation named for the Republicans last presidential nominee.
The Supreme Court issued a decision today that prunes the rule it established in Miranda v. Arizona way back in 1966. The decision in Berghuis v. Thompkins holds that to invoke the right to remain silent such that the police must stop an interrogation, the suspect must say so expressly and unambiguously. And a waiver of rights may be inferred where the suspect received the warnings, understood his rights, and responded to questions anyway. Kurt Scheidegger of the Crime and Consequences blog states, correctly in my view, that the Court's ruling "moves the Constitution back in the direction of what it really says, that no person 'shall be compelled to be a witness against himself in a criminal case,' and away from artificial rules created by the Court." The vote was 5-4, with Justice Kennedy, who wrote the opinion, Chief Justice Roberts, and Justices Scalia, Thomas, and Alito forming the majority. Justice Sotomayor wrote the dissent. She criticized the majority for going further than needed to decide the case before it. Scheidegger finds that "it is kind of odd to make that criticism in a Miranda case, as Miranda itself is the exemplar of going further than necessary to decide the case." The Supreme Court issued a decision today that prunes the rule it established in Miranda v. Arizona way back in 1966....
A White House official said to be in the know reportedly has declared that "it doesn't matter who [President Obama] chooses [for the Supreme Court], there is going to be a big 'ol fight over it, so he doesn't have to get sidetracked by those sorts of concerns." This "realization" supposedly is "liberating. . .the president" to choose whomever he pleases, including someone from the hard left. This view cannot be taken seriously as a theory of whom to nominate. There may be no left of center jurist who would be confirmed unanimously, but a nominee like Judge Merrick Garland would almost certainly breeze through the confirmation process. Moreover, it can't be a matter of indifference to Obama whether he wins the expected "big 'ol fight." If he were to go too overtly far to the left with his pick, the nominee might not be confirmed (see Dawn Johnsen). Then Obama would have to try again, and by that time Senate Republicans might be substantially more numerous. The White House officials comments are best viewed as sending some sort of a message. Quite possibly, it was a message to supporters of Elena Kagan, the Solicitor General, whose backers are portraying her as easy to confirm, and to the leftist base, which seems to be concerned that Kagan isn't sufficiently liberal. The message to the former may be, "back off;" the message to the latter may be, "don't panic." The irony is that there's no reason to believe Kagan would be all that easy to confirm, and no reason for the left to be concerned that she would be anything like a centrist Justice. 31 Republican Senators voted against Kagan's confirmation as Solicitor General. With the stakes so much higher for a Supreme Court nominee, and with less deference accorded to a nominee outside of the executive branch, there's a good chance that the number of no votes would increase. K
In his Supreme Court opinion on the unconstitutionality of Jacksonville's vagrancy ordinance, Justice William O. Douglas somehow found it worthy of note that "Persons 'wandering or strolling' from place to place have been extolled by Walt Whitman and Vachel Lindsay." The Supreme Court, however, never got around to finding a constitutional right to funding for wandering and strolling. Walt Whitman and Vachel Lindsay might want to check in with their European offices. Mark Steyn reports: The European Union's Commissioner for Enterprise and Industry declares that there is a "human right to be tourists" and proposes government-funded vacations, initially for "seniors, youths between the ages of 18 and 25, disabled people, and families facing 'difficult social, financial or personal' circumstances". Steyn plaintively asks: "But what about imams and transsexuals?"
The retirement of Justice John Paul Stevens presents a test for Republicans as they weigh how much they want to wage anideological battle before midterm elections. "We need to do our due diligence, and we need to probably bend over backwards both in appearance and in reality to give the nominee a fair process," said Senator John Cornyn (R-Texas).
Justice Stevens has announced that he will retire from the Supreme Court in June. The announcement is hardly a surprise, and we (among many others) have been speculating for months about who will replace him. The three names one hears most often are Elena Kagan (currently the Solicitor General) and appellate court judges Diana Wood (7th Circuit) and Merrick Garland (D.C. Circuit). Kagan is considered the most likely nominee; Garland, I believe, would be the best of the three.
Politco reports that Rep. Bart Stupak is not going to run for re-election. According to Politico, Stupak's decision puts his seat into play as a potential Republican pick-up. President Bush won 53 percent of the vote in Stupak's district in 2004 and President Obama won only 50 percent in 2008. Friends reportedly say Stupak is retiring to avoid the exertion that would be required to hold his sprawling district in the Upper Peninsula of Michigan. I guess when you've been in Congress for a while, you become averse to exertion. However, there are plenty of Democratic members who will be required to exert themselves this year.