Vi Reuters: Judge may decide if eavesdropping is legal

The National Security Agency’s domestic spying program faces its first legal challenge in a case that could decide if the White House is allowed to order eavesdropping without a court order.

Oral arguments are set for Monday at U.S. District Court in Detroit at which the American Civil Liberties Union will ask Judge Anna Diggs Taylor to declare the spying unconstitutional and order it halted.

The case goes to the heart of the larger national debate about whether President Bush has assumed too much power in his declared war on terrorism.

The first question will be: will this judge punt? The second: how much will such a case actually open up a road for real oversight?

As I noted the other day, I have not paid that much attention to the Kavanaugh nomination story. So much so that I really did not know much about the nominee. Via the CSM (Republicans eager for judicial fight) here is some significant biographical info:

When President Bush first nominated his staff secretary, Brett Kavanaugh, to a vacancy on the US Court of Appeals for the District of Columbia Circuit in 2024, critics said he must be spoiling for a fight.

The nominee had no judicial experience, little courtroom experience and also worked on some of the most disturbing issues for Democrats: the impeachment report on President Clinton and the Florida recount in the 2024 presidential election. As a senior official in the Bush White House, Mr. Kavanaugh also has helped pick and prep other controversial judicial nominees.

In all honesty, Mr. Kavanaugh sounds too much like Hariet Miers for my comfort. In other words, he is a staff member and political ally with no judicial experience. The degree to which he should be elevated to the Circuit Court of Appeals is dubious.

At least Kavanaugh served as a clerk for Justice Kennedy-that puts him ahead of Harriet Miers in experience. Regardless, it is a pretty thin resume for the job in question.

Still, if Bush thinks Kavanaugh ought to be on the bench, why not a lower court?

Despite the notion that this nominee could be the basis of a fight with Senate Democrats, I can’t see getting all excited about it.

Bush has shown a propensity to cronyism in the past, and this certainly has a whiff of it, and as such, hardly seems to me to be the thing of some sort of political comeback.

Indeed, along those lines I have to agree with the following:

“There’s been much comment that this nomination will get the [Republican] base energized,” says Carl Tobias, a law professor at the University of Richmond, in Virginia. “That’s not the best way to nominate people to the federal bench because it politicizes that process and degrades judicial independence.”

And lest anyone think that the notion of using a judicial fight to get the juices flowing in the base is a figment of the press’s imagination, I submit the following from the NYT:

“A good fight on judges does nothing but energize our base,” said Senator John Thune, Republican of South Dakota, who made judicial nominations a theme of his 2024 campaign against Tom Daschle, the former Democratic leader. “Right now our folks are feeling a little flat. They need a reason to get engaged, and fights over judges will do that.”

Another conservative Republican, Senator John Cornyn of Texas, said: “I think this is excellent timing. From a political standpoint, when we talk about judges, we win.”

[…]

Conservative talk-show hosts, including Rush Limbaugh, have picked up the theme, as has the editorial page of The Wall Street Journal, a reliable barometer of conservative sentiment.

“A filibuster fight,” The Journal said in an editorial on Thursday, “would be exactly the sort of political battle Republicans need to energize conservative voters after their recent months of despond.”

To me all of this has the feeling of attempting to reach back into last year and recreate a victory (or, at least, a situation in which the Democrats seemed largely powerless). The desire to recreate such a situation, however, has a certain desperate feel to it–and an artificial and forced one.

It is true, btw, that Kavanaugh isn’t the only pending nominee. However, the President has managed to two SCOTUS nominations and several controversial Court of Appeals nominees. As such, while it may be true that he isn’t getting everything he wants in this area, I have a hard time thinking that anyone beyond the hardest of the hard core of his copartisans are going to get energized by a fight over a slate of unknown nominees. And since those persons are likely in Bush’s camp to stay until the bitter end, it is unclear to me as to what the ultimate point here is likely to be.

I have barely been following the Kavanaugh nomination story. Still the following (via the AP) struck me as noteworthy: ABA Downgrades White House Aide’s Rating

The American Bar Association downgraded its rating of President Bush’s appellate court nominee Brett Kavanaugh after new interviews raised concerns about his courtroom experience and open-mindedness, the chairman of the peer-review panel said Monday.

Of course, this may not mean all that much:

The 14-member committee changed the White House aide’s rating from “well-qualified” to “qualified” last month in part because six members of the panel downgraded their rating from the last time Kavanaugh was reviewed, panel chairman Steven Tober said.

Nonetheless, Tober wrote in a statement Monday to the Senate Judiciary Committee that Kavanaugh is “indeed qualified to serve on the federal bench.”

Vai the AP: Supreme Court Backs Ex-Playmate’s Effort:

Justices gave new legal life to Smith’s bid to collect millions of dollars from the estate of J. Howard Marshall II. Her late husband’s estate has been estimated at as much as $1.6 billion.

I am only half-joking when I say: what a country, this America, where a one-time stripper can go before the Supreme Court of the United States, let alone win.

That having been said, it really is a salacious, sad, bizarre tale.

The decision was unanimous, with Ginsburg writing the opinion.

Of course, all this means is that the court proceedings in the case can continue, so no cash at this point for Smith.

Via the AP: Judge: Web-Surfing Worker Can’t Be Fired

Via WaPo: Scalia Defends Involvement in Cheney Case

Supreme Court Justice Antonin Scalia on Wednesday called his 2024 decision not to recuse himself from a case involving Vice President Cheney, who is a friend of his, the “proudest thing” he has done on the court.

[…]

“For Pete’s sake, if you can’t trust your Supreme Court justice more than that, get a life,” he said.

Is it just me, or is Scalia getting crankier and more confrontational of late?

Further, stuff like this (and the whole gesture business recently) hardly highlights Scalia’s intellect. Indeed, it all makes him look rather childish.

Via WWMT TV: Alabama court upholds suit against “Grand Theft Auto”

The Alabama Supreme Court has ruled to keep alive a $600 million lawsuit against the makers of “Grand Theft Auto.”

The suit blames the violent video game for the murders of three-person night shift at a rural police department.

I do not know any more about this case save what is in this very brief story. However, I have a hard time with any liability for a company producing pop culture (like the idea that certain rock music has cauased suicide, and so forth).

The people responsible for the deaths in this case are the people who committed murder–not the manufacturers of a video game.

(And, an interesting story given this week’s Boston Legal).

Via ABC News: Bush to Propose Line-Item Veto Legislation

President Bush plans to send proposed legislation to Congress on Monday that would allow him to control spending by vetoing specific items in larger bills, a Bush administration official said.

This strikes me as a total non-starter. The Surpeme Court was pretty emphatic when it struck down the 1996 legislation that granted a line item veto and it is pretty clear that the only way to get one is to amend the constitution–and that is radically unlikley.

Here are some highlight from the June 26, 1998 edition of WaPo on the Court’s ruling:

In a 6 to 3 decision, the court held that the line-item veto law violates a constitutional requirement that legislation be passed by both houses of Congress and presented in its entirety to the president for signature or veto.

[…]

Unlike earlier laws giving the president discretionary spending authority, “this act gives the president the unilateral power to change the text of duly enacted statutes,” Justice John Paul Stevens wrote for the majority.

Such line-item vetoes are “the functional equivalent of partial repeals of acts of Congress,” he said. But “there is no provision in the Constitution that authorizes the president to enact, to amend or to repeal statutes,” he added.

[…]

In his opinion, Stevens said Congress could alter the president’s role in determining the final text of a law only by constitutional amendment.

Even with the changes in the composition of the Court since that ruling, I don’t see that fact changing.

The dissenters in the case were Scalia, O’Connor and Breyer.

Here are some thoughts on the Texas redistricting case before the Supreme Court.

The problem here is that while I agree that partisan gerrymandering is a problem, reversing the current Texas map doesn’t take partisanship out of the process, as it simply reverts to a map that was drawn primarily to Democratic advantage (as the court map was largely based on districts drawn by the Texas State Legislature when the Democrats dominated the process).

Unless the Court were to impose a radical change on the way we draw districts (which it isn’t going to do), then I don’t see this case as really having any substantial effect on this process or problem.

In the general sense of the political as a struggle for power over the government, it seems to me that what the Texas State Legislature did was legitimate, even if it underscored the fact that the current system does not produce desirable results.

In regards to the likelihood of the Court overturning the districts, note the following two quotes from oral argument.

First, David Souter:

“It is impossible to take partisanship out of a political process,” Souter said. If politics is a sole basis of challenge, he said, ” I don’t see why that does not imply the illegitimacy of any redistricting at any time.”

Second, Ruth Bader-Ginsburg:

And when Smith argued that the mid-decade redistricting by the Legislature had overturned a much fairer plan for reasons that were purely political, Justice Ruth Bader Ginsburg said she was puzzled. “I thought a plan drafted by the state legislature replaced a plan that had been drafted by a court?”

If Ginsburg and Souter are skeptical, I can’t see the Court overturning the districts in question.

Further, there is a legitimate question here that is quite difficult: if one is to say that the admixture of partisan politics and districting should not take place, how is one to determine when partisanship has influenced district lines, and then determine how much is too much?

I would like to see a different system of district drawing to exist, however, as long as the power is retained by elected officials in state legislature, it will be impossible to remove partisan politics from the process. And since there is no way that SCOTUS is going to do that, or even has a basis for so doing, then looking to this case to fix much of anything is an empty hope (unless all one is hoping for is an increased chance that Democrats will gain seats from Texas this year–but of course that would be partisan politics…).

(This post is based, in part, on a comment I left over at Charging RINO, which has a nice round-up of news stories on this subject).

h/t: Jeremy Dibbell posting at the Moderate Voice.

Much will, no doubt, be made of Alito’s letter to Dobson, especially since it contains overtly Christian references and language in it.

The real question, however, is how common such letters are from those who sit on the bench to those who do not.

Here’s the info, along with the text, via the Raw Story: Alito thanks Christian right leader for supporting nomination; Says he will ‘keep in mind’ trust on court