[Update: Even the mainstream media have begun to make similar arguments that I make in this essay regarding the Supreme Court and Obama's national security decisions. Also, thanks to TalkLeft for initiating a thread on the issue (and graciously linking to this post).]
Obama made an interesting speech today. To summarize, Obama basically said he is doing the right things regarding national security, despite the difficulties, and that he has not abandoned any of his campaign promises. Nuance is key to understanding these promises, I suppose. For those of you who do not trust my sarcastic summary, here is the long version of the President's speech: Obama Speech Transcript.
More of the Same?
Throughout the Democratic primaries, the progressive wing of the party said that Obama was extraordinarily liberal, while Hillary Clinton offered "more of the same" (as Bush). But when Obama embraces "preventive detention," this sounds the same as Bush's maligned practice of "indefinite detention." Obama wants to detain dangerous individuals consistent with the "rule of law," but Bush did the same thing, although he called detainees "enemy combatants." "Enemy combatants" sound "dangerous" to me.
Obama has opted to utilize "kinder, gentler" military tribunals, but, like the Bush version, they will operate under a watered-down version of due process in order to secure easier convictions. As a compromise, Obama could have chosen to follow the stricter procedures contained in the Uniform Code of Military Justice -- which govern the prosecution of military personnel for crimes ranging from sodomy to treason. Instead, he has chosen to "stay the course" with slight modifications.
Obama reports that he will reform Bush's tribunals by giving defendants greater freedom to pick their own lawyers and by requiring the government to demonstrate the reliability of hearsay evidence. These reforms, however, will unlikely represent a substantial departure from practices during the Bush administration. Military courts receive so much criticism in part because one entity serves as police, prosecutor, judge, and jury. So, even if Obama changes the hearsay rule, the military (as judge) will still decide whether the military (as prosecutor) can introduce hearsay evidence collected by the military or the CIA (as police officer) for use in a military proceeding (a criminal prosecution). Focusing only on the promise to reform the hearsay rule and not the process for evaluating its reliability is a mere distraction.
Supreme Court Implications
Civil liberties organizations have already promised to file lawsuits challenging the military courts. In two different rulings, the Supreme Court invalidated the procedures used in Bush's military tribunals. Potentially, the Court could rule against Obama's courts, especially if he chooses a "true" liberal to replace Justice Souter.
I suspect that for this and other reasons, Obama will aim for the middle and for familiarity. This standard works against Judge Sonia Sotomayor (whom people have labeled as a leftist without reading her opinions) and Professor Pam Karlan (who is a bona fide leftist).
Elena Kagan, however, is probably the presumptive front runner. She is the most moderate of the individuals on the reported short list. More importantly, Kagan has already embraced the expansive notion of indefinite (sorry: "preventive") detention that Obama says he will utilize. Furthermore, she is a known quantity to President Obama, and he undoubtedly asked her many questions about law and national security before selecting her to become the Solicitor General. Also, after Souter announced his retirement, several leading Democrats floated a script that discouraged the selection of a sitting judge. Kagan is the the most popular front runner who is not a judge. Although this analysis sounds logical, I will decline to make a formal prediction. There are clearly many factors at stake.
Final Thoughts
Ironically, Obama, who ran as the antiwar candidate, is now the "war" president. He is the commander-in-chief in two ongoing offenses, including one in which he has authorized a "surge." As proof that his antiwar rhetoric is a distant memory, Obama has delivered a speech to justify his Bush-esque national security policy against liberal (and Cheney's) criticism in a building that houses the Declaration of Independence and the Bill of Rights, which rank among the most enduring of American symbols. This is a long road from the flag pin controversy.
Finally, I will leave readers with some "oldies but goodies" from Dissenting Justice. These articles argue that the Left set itself up for disappointment with its irrational exuberance surrounding Obama. He is, as Reverend Wright accurately stated during the campaign, a politician. All presidents before him were politicians as well. I was stunned that liberals refused to see this. So, to the formerly effusive and uncritical Left: I told you so. To everyone else, enjoy the articles.
Latest analysis on Dissenting Justice:
Cutting Through the Rhetoric Regarding Hate Crimes Legislation
Related Readings on Dissenting Justice:
* 2008 Is Not 1964: Why Liberal Mania and Conservative Panic Are Nothing But Melodrama
* Progressives Awaken from Obama-Vegetative State
* Head Explosion at The Nation: Left "Duped" by Its "Own Wishful Thinking"
* From the "Duh" Files: Effusive Political Adoration Does Not Lead to Social Change
* Warning to Progressives: NYT Proclaims Obama Will Govern From Center-Right
* Leftists Finally Realize Obama Is a Moderate; Huffington Post Suddenly Embraces Clinton and Political Center
* The "Left" Responds to Obama's "Centrist" Foreign Policy Team
* Reality Check: Obama's Election Victory Does Not Mean That Era of Race-Based Identity Politics Has Died
* Back Down Memory Lane: A Review of Anti-Clinton Rhetoric by "Progressives" on Daily Kos, Huffington Post, and AlterNet
* Don't Ask, Don't Tell, Don't Hold Your Breath
Thursday, May 21, 2009
Wednesday, May 20, 2009
Rosen's Reviewers Suddenly Get Names!
Jeffrey Rosen has published a glowing review of Judge Diane Wood, a person rumored to be on the "short list" of candidates for a position on the Supreme Court. Recently, Rosen wrote an extremely negative review of Judge Sonia Sotomayor, another potential Court nominee, in which he utilized negative comments by anonymous individuals whom he claims voluntarily contacted him to offer their bad reviews. The negative comments, however, came exclusively from clerks of other judges and prosecutors. Rosen's review triggered a wave of heavy criticism on the Internet.
By contrast, Rosen's review of Wood is laced exclusively with positive comments made by colleagues of Wood at the University of Chicago Law School where she was a Professor prior to becoming a federal judge and where she held the position of Associate Dean. Wood remains a "Senior Lecturer" at the law school. Although Rosen does not state the nature of his contact with the reviewers he quotes regarding Wood, the comments seem like the product of normal investigative reporting, rather than petty gossip (as his analysis of Sotomayor sounds). It is unclear why Rosen failed to solicit and publish positive commentary surrounding Sotomayor, including comments from law professors and other individuals with whom she has closely worked.
Of Interest: The SCOTUS blog has published a series of essays that analyzes the 150 opinions Sotomayor has written in civil cases as a federal appeals court judge. The blog explicitly comments on the lack of attention that other reviewers have given her body of judicial work.
By contrast, Rosen's review of Wood is laced exclusively with positive comments made by colleagues of Wood at the University of Chicago Law School where she was a Professor prior to becoming a federal judge and where she held the position of Associate Dean. Wood remains a "Senior Lecturer" at the law school. Although Rosen does not state the nature of his contact with the reviewers he quotes regarding Wood, the comments seem like the product of normal investigative reporting, rather than petty gossip (as his analysis of Sotomayor sounds). It is unclear why Rosen failed to solicit and publish positive commentary surrounding Sotomayor, including comments from law professors and other individuals with whom she has closely worked.
Of Interest: The SCOTUS blog has published a series of essays that analyzes the 150 opinions Sotomayor has written in civil cases as a federal appeals court judge. The blog explicitly comments on the lack of attention that other reviewers have given her body of judicial work.
Tuesday, May 19, 2009
Are Young People Really Progressive As New Study Claims?
Ruy Teixeira has published a few articles (and even co-authored a book), in which he argues that the United States is becoming a more "progressive" society. Now, Teixeira and his colleague David Madland of the Center for American Progress, have released a study which concludes that the "Millennial" generation is strongly progressive (view the full report here).
In the past, I have viewed these types of studies with a high degree of skepticism. First, I believe that it is very difficult to articulate a list of factors that define an individual as "progressive." Second, public opinion is highly malleable, and people's responses to a set of specific policy questions might reflect the politics of the moment rather than longterm ideological commitment. Third, younger people's views tend to be more fluid, thus exacerbating the problem of measuring their longterm ideological commitments. In addition to these general methodological problems, I have some specific "questions" about the Teixeira and Madland study.
Voting for Obama = Progressive?
The first nine pages of the study report how well Obama performed among voters in the 18-29-year-old category. Exit poll studies have already revealed that Obama received a huge share of younger votes. Madland and Teixeira interpret this fact as an indication of the age group's progressive values: "Millennials backed Obama primarily because he reflects their progressive view of the world and progressive policy preferences. . . ."
Obama represented many things to different individuals. But as many progressives who supported Obama are recently discovering, political campaigns and governance are not the same. A lot of liberals constructed Obama as being far more progressive than other candidates -- including, Hillary Clinton and John Edwards -- without having a tangible basis for such a claim. Madland and Teixeira demonstrate that Millenials' support of Obama was far greater than their support for Kerry, but Obama and Kerry are pretty close in terms of social policy. Saying that a candidate is progressive and then voting overwhelmingly for that person does not make the candidate or the voter progressive.
Post-Gender and Post-Racialism Are Not Inherently Progressive Positions
Despite the blatant role of race and gender in the 2008 election, many political commentators have celebrated the arrival of America's new "post-racial" and "post-gender" landscape. Even though Obama ultimately won the national election on the strength of black, women, and Latino voters, many commentators view his election and Hillary Clinton's strong performance as proof of the social irrelevance of race and sex. Not only is this view contradictory, but it is not inherently "progressive" as Madland and Teixeira assume.
To Madland and Teixeira identity-blindness is a positive thing. The authors applaud the Millennials for believing that race is not a "big deal," and they enthusiastically proclaim that: "Barack Obama’s election is just the beginning—America’s postracial future is fast approaching." They make a similar observation with respect to gender: "Just as with race, gender equality is rapidly becoming a nonissue with Millennials."
Critical theorists have produced a rich body of literature that contests the idea that race- and gender-blindness produce progressive outcomes. Not only is this argument inconsistent with Millennials' support for Obama, but this view has also justified conservative resistance to policies designed to create educational diversity and equal employment opportunity.
As long as social inequities correlate with race and gender, the post-identity rhetoric will preclude an honest discussion of and solutions to inequality. Conjoined racial isolation and poverty severely limit opportunities for advancement. Dismissing race and sex in the name of progress does not alter this harsh reality.
Lack of "Context": Measuring Future Generations By Past Standards
The study also questionably measures the "progressive" ideology of the Millennials based on their support of historically contested ideas that were considered progressive to earlier generations. The study fails to articulate a new set of values that might provide a more accurate measure of how cutting-edge today's Millennials are.
The study, for example, shows that Millennials are less likely to believe in creationism, do not believe a "woman's place is in the home," favor government-sponsored health care, believe in same-sex marriage, and support a move to renewable energy and a reduction in dependence on fossil fuels. Opposing the idea that a "woman's place is in the home" might have been a radical concept (especially if she were white and wealthy) up until World War II, but the post-War era and the second wave feminist movement greatly altered societal beliefs in "women's work." The fact that today's younger people embrace concepts that centuries of social movement activity and subsequent legal reforms have legitimized does not make them more progressive. Instead, it gives them a different set point than their predecessors.
Conflating Idealism With Progressive Ideology?
Finally, several aspects of the study suggest that the opinions of the respondents correspond with age, rather than ideology. The authors cite to studies which purportedly demonstrate a continuity in ideology across an individual's lifetime. Even if these studies are accurate, age could still determine an individual's response to many of the questions in the survey.
For example, younger respondents want much more regulation and governmental involvement in economic affairs. Younger respondents are also less cynical and more trusting of the government than older respondents. The authors attempt to dismiss this fact by explaining that younger respondents are more cynical than younger persons who completed similar surveys in the past. But this qualification does not answer how today's Millennial's would have viewed politics if they lived in the past.
Youthful idealism could also explain the Millennial's embrace of post-racial and post-gender politics. Once younger people and their friends report experiences with discrimination in the workplace, then their views on the insignificance of race and sex will likely shift.
Conclusion
Because public opinion is contextual and shaped by the media, social movements, politicians and contemporaneous events, it is very difficult to discern ideological commitments from short-term viewpoints. The Madland and Teixeira study focuses on "hot-button" social issues that have informed much of the "adult" lives of the Millennials. Hillary Clinton took "the bullet" on healthcare reform in the 1990s, but today, her thinking on the subject informs the so-called progressive commitment of the Millennials. The shift in public opinion on the subject resulted from years of political activity and statutory reform that predated the 2008 election.
The older folks in the Madland and Teixeira study engaged in vigorous protests over Vietnam, racism and sexism, and they showed a commitment to progressive causes that went far beyond simply casting a vote for certain issues or candidates. Yet, Madland and Teixeira describe these individuals as being more conservative than younger people who oppose the Iraq War and think race and sex are irrelevant.
Despite my skepticism, I took the "How Progressive Are You" quiz. I scored 288 out of 400, which makes me extremely progressive. The average score among Americans is 209.5. I even slammed the Millennials. Of course, I do not know what score I would have earned 20 years ago.
In the past, I have viewed these types of studies with a high degree of skepticism. First, I believe that it is very difficult to articulate a list of factors that define an individual as "progressive." Second, public opinion is highly malleable, and people's responses to a set of specific policy questions might reflect the politics of the moment rather than longterm ideological commitment. Third, younger people's views tend to be more fluid, thus exacerbating the problem of measuring their longterm ideological commitments. In addition to these general methodological problems, I have some specific "questions" about the Teixeira and Madland study.
Voting for Obama = Progressive?
The first nine pages of the study report how well Obama performed among voters in the 18-29-year-old category. Exit poll studies have already revealed that Obama received a huge share of younger votes. Madland and Teixeira interpret this fact as an indication of the age group's progressive values: "Millennials backed Obama primarily because he reflects their progressive view of the world and progressive policy preferences. . . ."
Obama represented many things to different individuals. But as many progressives who supported Obama are recently discovering, political campaigns and governance are not the same. A lot of liberals constructed Obama as being far more progressive than other candidates -- including, Hillary Clinton and John Edwards -- without having a tangible basis for such a claim. Madland and Teixeira demonstrate that Millenials' support of Obama was far greater than their support for Kerry, but Obama and Kerry are pretty close in terms of social policy. Saying that a candidate is progressive and then voting overwhelmingly for that person does not make the candidate or the voter progressive.
Post-Gender and Post-Racialism Are Not Inherently Progressive Positions
Despite the blatant role of race and gender in the 2008 election, many political commentators have celebrated the arrival of America's new "post-racial" and "post-gender" landscape. Even though Obama ultimately won the national election on the strength of black, women, and Latino voters, many commentators view his election and Hillary Clinton's strong performance as proof of the social irrelevance of race and sex. Not only is this view contradictory, but it is not inherently "progressive" as Madland and Teixeira assume.
To Madland and Teixeira identity-blindness is a positive thing. The authors applaud the Millennials for believing that race is not a "big deal," and they enthusiastically proclaim that: "Barack Obama’s election is just the beginning—America’s postracial future is fast approaching." They make a similar observation with respect to gender: "Just as with race, gender equality is rapidly becoming a nonissue with Millennials."
Critical theorists have produced a rich body of literature that contests the idea that race- and gender-blindness produce progressive outcomes. Not only is this argument inconsistent with Millennials' support for Obama, but this view has also justified conservative resistance to policies designed to create educational diversity and equal employment opportunity.
As long as social inequities correlate with race and gender, the post-identity rhetoric will preclude an honest discussion of and solutions to inequality. Conjoined racial isolation and poverty severely limit opportunities for advancement. Dismissing race and sex in the name of progress does not alter this harsh reality.
Lack of "Context": Measuring Future Generations By Past Standards
The study also questionably measures the "progressive" ideology of the Millennials based on their support of historically contested ideas that were considered progressive to earlier generations. The study fails to articulate a new set of values that might provide a more accurate measure of how cutting-edge today's Millennials are.
The study, for example, shows that Millennials are less likely to believe in creationism, do not believe a "woman's place is in the home," favor government-sponsored health care, believe in same-sex marriage, and support a move to renewable energy and a reduction in dependence on fossil fuels. Opposing the idea that a "woman's place is in the home" might have been a radical concept (especially if she were white and wealthy) up until World War II, but the post-War era and the second wave feminist movement greatly altered societal beliefs in "women's work." The fact that today's younger people embrace concepts that centuries of social movement activity and subsequent legal reforms have legitimized does not make them more progressive. Instead, it gives them a different set point than their predecessors.
Conflating Idealism With Progressive Ideology?
Finally, several aspects of the study suggest that the opinions of the respondents correspond with age, rather than ideology. The authors cite to studies which purportedly demonstrate a continuity in ideology across an individual's lifetime. Even if these studies are accurate, age could still determine an individual's response to many of the questions in the survey.
For example, younger respondents want much more regulation and governmental involvement in economic affairs. Younger respondents are also less cynical and more trusting of the government than older respondents. The authors attempt to dismiss this fact by explaining that younger respondents are more cynical than younger persons who completed similar surveys in the past. But this qualification does not answer how today's Millennial's would have viewed politics if they lived in the past.
Youthful idealism could also explain the Millennial's embrace of post-racial and post-gender politics. Once younger people and their friends report experiences with discrimination in the workplace, then their views on the insignificance of race and sex will likely shift.
Conclusion
Because public opinion is contextual and shaped by the media, social movements, politicians and contemporaneous events, it is very difficult to discern ideological commitments from short-term viewpoints. The Madland and Teixeira study focuses on "hot-button" social issues that have informed much of the "adult" lives of the Millennials. Hillary Clinton took "the bullet" on healthcare reform in the 1990s, but today, her thinking on the subject informs the so-called progressive commitment of the Millennials. The shift in public opinion on the subject resulted from years of political activity and statutory reform that predated the 2008 election.
The older folks in the Madland and Teixeira study engaged in vigorous protests over Vietnam, racism and sexism, and they showed a commitment to progressive causes that went far beyond simply casting a vote for certain issues or candidates. Yet, Madland and Teixeira describe these individuals as being more conservative than younger people who oppose the Iraq War and think race and sex are irrelevant.
Despite my skepticism, I took the "How Progressive Are You" quiz. I scored 288 out of 400, which makes me extremely progressive. The average score among Americans is 209.5. I even slammed the Millennials. Of course, I do not know what score I would have earned 20 years ago.
Sunday, May 17, 2009
THIS IS NOT CHANGE
As much as some political commentators try to dismiss the role of race (and gender) in the 2008 presidential election, the facts say otherwise. Obama won the election on the strength of women, black and Latino voters. McCain won a majority of white votes nationally, as has every other Republican candidate starting with the 1968 election.
During his campaign, Obama tried to downplay and market his race simultaneously. He ran as the "historic" candidate, which subtly referenced his racial background. He also ran as the post-racial candidate, in order to avoid being racialized and dismissed as the "black" candidate. Despite its sometimes subtle presence, race played a very powerful role in Obama's candidacy, message and election victory.
Although Obama relied upon identity politics for his electoral success, the White House is instructing GLBT, Latino and women's groups to kill the identity talk. Several GLBT, Latino and women's civil rights groups have urged the president to pick a candidate who will enhance the Court's diversity. No openly gay or Latino person has ever sat on the Supreme Court. Only two women (both white) have occupied a seat on the Court. And two black men have also served on the Court.
I agree that the candidate should not look like a "token" hire, but there are many persons of color, women, and GLBT lawyers who would make excellent Supreme Court justices. There is absolutely nothing wrong with considering diversity as a factor among evenly talented candidates. Reagan appointed the first woman, and gender played an explicit role in the selection process. Bush I appointed the second black justice only after the first black justice retired. Perhaps that was a mere coincidence.
Despite this history, White House officials sound more like Republicans picking a justice than Democrats. They are falling for the utterly hypocritical, ahistorical, and self-serving conservative rhetoric that condemns the consideration of ideology in the appointments process. Apparently, Alito, Roberts, and Scalia are coincidentally conservative.
Now the White House is doing its best to toss aside the very identity-based movements and politics that won the election for Obama. Press Secretary Robert Gibbs says that: "I don’t think that the lobbying of interest groups will help. . . .I think in many ways lobbying can – and will –be counterproductive." Of course, Gibbs never identifies the dangers the groups create by stating their preference for diversity. Also, it seems odd that Gibbs would disparage "special interest" groups, when labor, civil rights, feminist, pro-choice, anti-war, glbt, and many other "interest groups" are essential components of the Democratic Party. Without their support, neither Obama nor Gibbs would have a job at the White House.
This is not change.
During his campaign, Obama tried to downplay and market his race simultaneously. He ran as the "historic" candidate, which subtly referenced his racial background. He also ran as the post-racial candidate, in order to avoid being racialized and dismissed as the "black" candidate. Despite its sometimes subtle presence, race played a very powerful role in Obama's candidacy, message and election victory.
Although Obama relied upon identity politics for his electoral success, the White House is instructing GLBT, Latino and women's groups to kill the identity talk. Several GLBT, Latino and women's civil rights groups have urged the president to pick a candidate who will enhance the Court's diversity. No openly gay or Latino person has ever sat on the Supreme Court. Only two women (both white) have occupied a seat on the Court. And two black men have also served on the Court.
I agree that the candidate should not look like a "token" hire, but there are many persons of color, women, and GLBT lawyers who would make excellent Supreme Court justices. There is absolutely nothing wrong with considering diversity as a factor among evenly talented candidates. Reagan appointed the first woman, and gender played an explicit role in the selection process. Bush I appointed the second black justice only after the first black justice retired. Perhaps that was a mere coincidence.
Despite this history, White House officials sound more like Republicans picking a justice than Democrats. They are falling for the utterly hypocritical, ahistorical, and self-serving conservative rhetoric that condemns the consideration of ideology in the appointments process. Apparently, Alito, Roberts, and Scalia are coincidentally conservative.
Now the White House is doing its best to toss aside the very identity-based movements and politics that won the election for Obama. Press Secretary Robert Gibbs says that: "I don’t think that the lobbying of interest groups will help. . . .I think in many ways lobbying can – and will –be counterproductive." Of course, Gibbs never identifies the dangers the groups create by stating their preference for diversity. Also, it seems odd that Gibbs would disparage "special interest" groups, when labor, civil rights, feminist, pro-choice, anti-war, glbt, and many other "interest groups" are essential components of the Democratic Party. Without their support, neither Obama nor Gibbs would have a job at the White House.
This is not change.
Earth to Obama: Your Supreme Court Choice Is SUPPOSED to Galvanize Republicans
Democrats chose Obama because he promised change from eight years of Bush. This includes having liberal nominees for the federal courts. But many articles have portrayed Obama as seeking to avoid controversy with his choice for the Court.
But the judicial nomination process -- especially with respect to the Supreme Court -- is inherently a political battleground. Republicans know this, and so do Democrats. The political parties have known this from the start of the nation's history.
Judicial Appointments Have Always Been "Political"
Marbury v. Madison is the first case that law students read in about 99% of required constitutional law courses. The legal issue was fairly simple -- the plaintiff Marbury sought the delivery of his commission to sit as a justice of the peace of the District of Columbia. Madison, the Secretary of State, refused to deliver it at the request of newly elected President Jefferson.
The broader background facts, however, demonstrate that esteemed early Americans viewed courts in stark political terms. Before Jefferson took office, the lame duck Adams administration passed a law augmenting the size of the federal judiciary and rushed to fill the additional slots with Federalist Party nominees. Time ran out before some of the appointees could get their commissions, which they needed to sit as judges.
After Jefferson took office, he and the new Congress repealed the statute that enlarged the size of the judiciary and withheld the undelivered commissions because he did not want the Federalist Party nominees to sit in judgment of the Democratic-Republicans. In order to evade Supreme Court review, Jefferson shut down the Court for over one year. Despite this behavior, Jefferson is a exalted figure in United States history. Today, by contrast, politicians feign outrage over ideology -- that is, if their own party is not making the judicial nomination.
Politics Influences Judicial Appointments Today, and the Constitution Anticipates This Situation
Hearing the parties disingenuously assert that ideology should not play a role in the selection of judicial candidates is laughable. If both parties followed their insincere anti-ideology rhetoric, then Scalia, Thomas, Alito and Roberts would not sit on the bench, nor would Ginsburg and Breyer. Stevens and Souter are a bit more complicated. The normal script, however, describes both of these justices as Republican "errors," which supports my thesis that presidents pick candidates based on ideology.
If the Framers of the constitution did not want the process to have a political dimension, then they would not have allowed the President to make nominations and the Senate to confirm the appointments. The tremendous role of the President and Senate ensure that politics will continue to influence judicial selections.
Ideology Is Not Inconsistent With "Judging"
To say that a judge is "ideological" does not mean that a he or she lacks "judgment" or that he or she does not follow doctrine or principle. Conservatives have described Sotomayor as an ideologue, despite that fact that she has ruled against numerous civil rights plaintiffs and against the Center for Reproductive Rights in a case where she steered very closely to pre-existing precedent.
The Republicans have constructed their list of judicial nominee faux pas, and "gay marriage" has joined abortion as a potential judge-slayer. Articles in both the Washington Post and the Los Angeles Times outline the conservative (idelogical) strategy. For example, Republicans hope to go after Seventh Circuit Judge Diane Wood, if Obama picks her to replace Souter, because she dissented in a pair of cases in which the circuit upheld state bans on partial-birth abortion. But until recently, Woods' dissenting view mirrored Supreme Court doctrine on the issue, that is, until the five conservative justices -- minus O'Connor and plus Alito -- decided that Congress could ban the procedure. The majority's effort to distinguish precedent that undermined its conclusion was strained. Basically the contrary ruling happened because O'Connor left the Court, Alito replaced her, and Kennedy is squeamish about the procedure [Note: I am squeamish about medicine, which is exactly why I went to law school.].
Change Is Not More of the Same
From the very beginning of the Democratic primaries, I disagreed with my liberal colleagues who described Obama as a leftist dream come true. I suspect that many of them are beginning to see the light at this point.
Progressives, however, can push presidents to do things that they otherwise might not do. This is how broad political change has occurred historically. Unless liberals remind Obama that we did not vote for him in order for him to capitulate to Republicans or adhere to his own right-leaning instincts, then he will have no incentive to stop doing so.
Related Readings on Dissenting Justice:
Strikingly Similar: Comparing Sotomayor's Views on Sex and Race With Statements By O'Connor, Ginsburg, Scalia and Kennedy
Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"
Rosen Defends His Misreading of a Judicial Footnote: Says Judge Winter's Writing "Not a Model of Clarity"
Earth to Orrin Hatch: Even Conservative Judges Make Policy!
Talking Points on Souter Replacement?
Hatchet Job: Jeffrey Rosen's Utterly Bankrupt Analysis of Judge Sonia Sotomayor
But the judicial nomination process -- especially with respect to the Supreme Court -- is inherently a political battleground. Republicans know this, and so do Democrats. The political parties have known this from the start of the nation's history.
Judicial Appointments Have Always Been "Political"
Marbury v. Madison is the first case that law students read in about 99% of required constitutional law courses. The legal issue was fairly simple -- the plaintiff Marbury sought the delivery of his commission to sit as a justice of the peace of the District of Columbia. Madison, the Secretary of State, refused to deliver it at the request of newly elected President Jefferson.
The broader background facts, however, demonstrate that esteemed early Americans viewed courts in stark political terms. Before Jefferson took office, the lame duck Adams administration passed a law augmenting the size of the federal judiciary and rushed to fill the additional slots with Federalist Party nominees. Time ran out before some of the appointees could get their commissions, which they needed to sit as judges.
After Jefferson took office, he and the new Congress repealed the statute that enlarged the size of the judiciary and withheld the undelivered commissions because he did not want the Federalist Party nominees to sit in judgment of the Democratic-Republicans. In order to evade Supreme Court review, Jefferson shut down the Court for over one year. Despite this behavior, Jefferson is a exalted figure in United States history. Today, by contrast, politicians feign outrage over ideology -- that is, if their own party is not making the judicial nomination.
Politics Influences Judicial Appointments Today, and the Constitution Anticipates This Situation
Hearing the parties disingenuously assert that ideology should not play a role in the selection of judicial candidates is laughable. If both parties followed their insincere anti-ideology rhetoric, then Scalia, Thomas, Alito and Roberts would not sit on the bench, nor would Ginsburg and Breyer. Stevens and Souter are a bit more complicated. The normal script, however, describes both of these justices as Republican "errors," which supports my thesis that presidents pick candidates based on ideology.
If the Framers of the constitution did not want the process to have a political dimension, then they would not have allowed the President to make nominations and the Senate to confirm the appointments. The tremendous role of the President and Senate ensure that politics will continue to influence judicial selections.
Ideology Is Not Inconsistent With "Judging"
To say that a judge is "ideological" does not mean that a he or she lacks "judgment" or that he or she does not follow doctrine or principle. Conservatives have described Sotomayor as an ideologue, despite that fact that she has ruled against numerous civil rights plaintiffs and against the Center for Reproductive Rights in a case where she steered very closely to pre-existing precedent.
The Republicans have constructed their list of judicial nominee faux pas, and "gay marriage" has joined abortion as a potential judge-slayer. Articles in both the Washington Post and the Los Angeles Times outline the conservative (idelogical) strategy. For example, Republicans hope to go after Seventh Circuit Judge Diane Wood, if Obama picks her to replace Souter, because she dissented in a pair of cases in which the circuit upheld state bans on partial-birth abortion. But until recently, Woods' dissenting view mirrored Supreme Court doctrine on the issue, that is, until the five conservative justices -- minus O'Connor and plus Alito -- decided that Congress could ban the procedure. The majority's effort to distinguish precedent that undermined its conclusion was strained. Basically the contrary ruling happened because O'Connor left the Court, Alito replaced her, and Kennedy is squeamish about the procedure [Note: I am squeamish about medicine, which is exactly why I went to law school.].
Change Is Not More of the Same
From the very beginning of the Democratic primaries, I disagreed with my liberal colleagues who described Obama as a leftist dream come true. I suspect that many of them are beginning to see the light at this point.
Progressives, however, can push presidents to do things that they otherwise might not do. This is how broad political change has occurred historically. Unless liberals remind Obama that we did not vote for him in order for him to capitulate to Republicans or adhere to his own right-leaning instincts, then he will have no incentive to stop doing so.
Related Readings on Dissenting Justice:
Strikingly Similar: Comparing Sotomayor's Views on Sex and Race With Statements By O'Connor, Ginsburg, Scalia and Kennedy
Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"
Rosen Defends His Misreading of a Judicial Footnote: Says Judge Winter's Writing "Not a Model of Clarity"
Earth to Orrin Hatch: Even Conservative Judges Make Policy!
Talking Points on Souter Replacement?
Hatchet Job: Jeffrey Rosen's Utterly Bankrupt Analysis of Judge Sonia Sotomayor
Saturday, May 16, 2009
Strikingly Similar: Comparing Sotomayor's Views on Sex and Race With Statements By O'Connor, Ginsburg, Scalia and Kennedy
Charlie Savage recently published an article in the New York Times that discusses a 2001 speech that Judge Sonia Sotomayor delivered to a Latino and Latina law student group at the University of California at Berkeley. The speech, "A Latina Judge's Voice," discusses many different perspectives on the impact of race and gender upon judges.
In her speech, Sotomayor plainly rejects the idea that a monolithic perspective defines women and people of color, and she explicitly embraces the need to divorce judging from personal experience. Nevertheless, she recognizes the limitations and difficulties associated with this aspiration. Specifically, Sotomayor argues that:
Sotomayor's Position Is Far More Nuanced And Less Extreme Than Adler's Description of It
Sotomayor does not embrace an extreme view of judging as a battlefield of power over logic and reasoning, as Adler's description suggests. If anyone doubts this, the SCOTUS blog has posted an analysis of some of the 150 civil cases Sotomayor has authored as a court of appeals judge (a review of her criminal law opinions is forthcoming). The Supreme Court has reversed only two of her civil rulings, and the liberal justices, including Souter, dissented in both instances (By the way, the SCOTUS blog finds it peculiar that so many of Sotomayor's critics fail to cite her opinions in their work).
Rather than endorsing fatalism as Adler's analysis suggests, Sotomayor is examining the difficulty that judges encounter when they try to remove themselves from their own life experiences. Her speech demonstrates that she comes to these issues with a great deal of complexity, as a good legal theorist or jurist should. Accordingly, though Sotomayor explicitly states that she agrees that judges must neutralize the weight of their own personal experiences, she rejects the impulse to analyze this process simplistically:
Remarkably, none of the reviews of Sotomayor's speech discusses similar arguments made by other judges. By failing to do so, Sotomayor's critics do not provide an appropriate context for analyzing her comments, and as a result, they are able to portray her position as extreme and "troubling." But very esteemed judges have made strikingly similar observations concerning the role of race and gender in the law.
O'Connor and Gender Perspectives
In the case J.E.B. v. Alabama, for example, the Supreme Court held that prosecutors could not use their peremptory challenges to exclude prospective jurors based solely on gender. Justice O'Connor agreed with the decision, but she wrote separately to take issue with the notion that gender is socially irrelevant:
O'Connor made a similar argument about race in her majority opinion in Grutter v. Bollinger, a ruling that upheld the use of affirmative action by the University of Michigan Law School, based on the school's asserted need to create viewpoint diversity. And while she voted with the majority in J.E.B, her concurrence asserts that the Court should not extend the case to cover the decisions of private lawyers. She is specifically concerned that lawyers representing women in sexual harassment and other cases related to gender would no longer have the opportunity to place a helpful amount of women on juries. O'Connor's reasoning would have carved out an explicit role for gender in legal decision making. The distinction between judge and juror in this context is meaningless.
Justice Ginsburg
As a former feminist lawyer, Justice Ginsburg has a long record of work related to gender equality. But even on the bench, Ginsburg has embraced gender as a source of diversity, and her opinions have challenged male judges for embracing gender-based stereotypes.
In United States v. Virginia, the Court invalidated VMI's exclusion of women. Justice Ginsburg's opinion for the Court, however, approvingly quotes a long list of Court precedent in order to hold open a possible role for permissible gender-based decision making:
Justice Scalia
Even a conservative like Justice Scalia has acknowledged race-based decision making among jurors. Shockingly, Scalia believes that the Court cannot remedy these decisions -- even when a litigant's life is at stake. In McCleskey v. Kemp, the Court rejected a constitutional challenge to the Georgia death penalty. A study showed that race strongly impacted prosecutors' decisions to seek the death penalty and jurors' decisions to impose it. Race operated most severely in cases involving black defendants accused of killing white victims, but the statistics showed that any person who killed a white individual had a greater likelihood of receiving the death penalty.
The majority found that, nothwithstanding the study, McCleskey failed to prove discrimination in his particular case. Scalia voted with the majority, but he wrote a memorandum to the other justices in which he expresses a far more fatalistic view of race-based decision making than Sotomayor embraces in her speech:
Justice Kennedy
Currently, Justice Kennedy is a moderate judicial icon. He is often the swing vote in the Court's 5-4 rulings. Although Kennedy receives praise for his judicial record, recently, he authored a decision that reflects very paternalistic and outmoded notions of gender -- the very type of decision making the Court's equal protection precedent prohibits. In the case, Gonzales v. Carhart, the Court sustained the federal partial birth abortion statute. Justice Kennedy's majority opinion discusses "legitimate" reasons for the law. Justice Kennedy makes the following argument about women in order to validate the law:
Ginsburg's dissenting opinion uncovers the gender bias in Kennedy's reasoning:
Many of the examples this article provides of judges accepting the reality of race- and sex-based decision making within law concerns jurors. But court doctrines prevent judges from overturning or even inquiring about the basis of jury decisions in most instances. Accordingly, juries have a central role in law -- particularly in criminal cases. Furthermore, it would take a lot of argumentation and empirical evidence to demonstrate that these same identity categories and experiences do not impact judges, and most of the evidence, where available, seems to confirm the opposite. In fact, Sotomayor's speech cites to several empirical studies which demonstrate that in particular types of cases judges tend to reach different outcomes depending on their race or sex.
The reality of race and sex does not mean that judges discard judgment and analysis or that they abandon precedent and rely solely on force and power. Instead, Sotomayor's position acknowledges what psychologists and sociologists deem as self-evident: Decision making takes place through a prism of experience. Having diversity, rather than homogeneity, actually permits judges to isolate "fact" from identity-based biases. I applaud Sotomayor's honest reflection on this subject.
Related Readings on Dissenting Justice:
Strikingly Similar: Comparing Sotomayor's Views on Sex and Race With Statements By O'Connor, Ginsburg, Scalia and Kennedy
Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"
Rosen Defends His Misreading of a Judicial Footnote: Says Judge Winter's Writing "Not a Model of Clarity"
Earth to Orrin Hatch: Even Conservative Judges Make Policy!
Talking Points on Souter Replacement?
Hatchet Job: Jeffrey Rosen's Utterly Bankrupt Analysis of Judge Sonia Sotomayor
In her speech, Sotomayor plainly rejects the idea that a monolithic perspective defines women and people of color, and she explicitly embraces the need to divorce judging from personal experience. Nevertheless, she recognizes the limitations and difficulties associated with this aspiration. Specifically, Sotomayor argues that:
I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address. I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought.Sotomayor's comments have raised eyebrows at The Volokh Conspiracy. Blogger Jonathan Adler, for example, accepts the proposition that individual experiences inform judges' perspectives. Nevertheless, he interprets Sotomayor's arguments as embracing "the idea that judging is ultimately an exercise of power instead of judgment" and that "a judge's personal experiences are license to impose his or her preferences through an exercise of judicial power." Adler finds this idea "troubling." Adler's co-blogger Orrin Kerr believes that Sotomayor's empirical analysis of the impact of experience on judging is "unexceptional," but he finds that her normative discussion of the value of experience in judging will lead to "different conclusions" among readers.
Sotomayor's Position Is Far More Nuanced And Less Extreme Than Adler's Description of It
Sotomayor does not embrace an extreme view of judging as a battlefield of power over logic and reasoning, as Adler's description suggests. If anyone doubts this, the SCOTUS blog has posted an analysis of some of the 150 civil cases Sotomayor has authored as a court of appeals judge (a review of her criminal law opinions is forthcoming). The Supreme Court has reversed only two of her civil rulings, and the liberal justices, including Souter, dissented in both instances (By the way, the SCOTUS blog finds it peculiar that so many of Sotomayor's critics fail to cite her opinions in their work).
Rather than endorsing fatalism as Adler's analysis suggests, Sotomayor is examining the difficulty that judges encounter when they try to remove themselves from their own life experiences. Her speech demonstrates that she comes to these issues with a great deal of complexity, as a good legal theorist or jurist should. Accordingly, though Sotomayor explicitly states that she agrees that judges must neutralize the weight of their own personal experiences, she rejects the impulse to analyze this process simplistically:
I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.This passage exhibits a positive humility that so many lawyers, legal scholars, and jurists lack. Perhaps nuance is off the table in this cut-and-paste "gotcha" generation, but if people actually take the time to read Sotomayor's entire speech, they might become more impressed by her (as I am). Sotomayor's speech on race and sex is refreshingly honest and provocative, particularly for a judge on the shortlist of potential Supreme Court nominees.
Remarkably, none of the reviews of Sotomayor's speech discusses similar arguments made by other judges. By failing to do so, Sotomayor's critics do not provide an appropriate context for analyzing her comments, and as a result, they are able to portray her position as extreme and "troubling." But very esteemed judges have made strikingly similar observations concerning the role of race and gender in the law.
O'Connor and Gender Perspectives
In the case J.E.B. v. Alabama, for example, the Supreme Court held that prosecutors could not use their peremptory challenges to exclude prospective jurors based solely on gender. Justice O'Connor agreed with the decision, but she wrote separately to take issue with the notion that gender is socially irrelevant:
We know that like race, gender matters. A plethora of studies make clear that in rape cases, for example, female jurors are somewhat more likely to vote to convict than male jurors. . . .Moreover, though there have been no similarly definitive studies regarding, for example, sexual harassment, child custody, or spousal or child abuse, one need not be a sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case.. . .Individuals are not expected to ignore as jurors what they know as men--or women. . . .Sotomayor's analysis mirrors the thoughtfulness that O'Connor brings to this issue. In particular, Sotomayor, like O'Connor, accepts the gender-neutrality mandate, but she believes that the law loses something in pursuit of this goal. Although O'Connor focuses on jurors instead of judges, given the importance of jurors to legal process -- especially in criminal law -- her analysis, if true, means that a good amount of legal decisions potentially rest on race and gender factors. Furthermore, if this analysis is true, then it suggests that judges could potentially operate on the same impulses.
[T]o say that gender makes no difference as a matter of law is not to say that gender makes no difference as a matter of fact. I previously have said [the same thing about race]. . . .Though we gain much from this [ruling], we cannot ignore what we lose. [W]e have added an additional burden to the state and federal trial process, taken a step closer to eliminating the peremptory challenge, and diminished the ability of litigants to act on sometimes accurate gender based assumptions about juror attitudes.
O'Connor made a similar argument about race in her majority opinion in Grutter v. Bollinger, a ruling that upheld the use of affirmative action by the University of Michigan Law School, based on the school's asserted need to create viewpoint diversity. And while she voted with the majority in J.E.B, her concurrence asserts that the Court should not extend the case to cover the decisions of private lawyers. She is specifically concerned that lawyers representing women in sexual harassment and other cases related to gender would no longer have the opportunity to place a helpful amount of women on juries. O'Connor's reasoning would have carved out an explicit role for gender in legal decision making. The distinction between judge and juror in this context is meaningless.
Justice Ginsburg
As a former feminist lawyer, Justice Ginsburg has a long record of work related to gender equality. But even on the bench, Ginsburg has embraced gender as a source of diversity, and her opinions have challenged male judges for embracing gender-based stereotypes.
In United States v. Virginia, the Court invalidated VMI's exclusion of women. Justice Ginsburg's opinion for the Court, however, approvingly quotes a long list of Court precedent in order to hold open a possible role for permissible gender-based decision making:
Physical differences between men and women. . . are enduring: "[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both". . . .Sotomayor's comments mirror Ginsburg's majority opinion for the Court. Ginsburg asserts that gender has a proper place in the law -- "for celebration" rather than "denigration." Similary, Sotomayor argues that gender-based decision making is not inherently inappropriate. Instead, she believes that as a judge, she must do as "the Supreme Court suggests. . .[and] continuously. . .judge when those opinions, sympathies and prejudices are appropriate." Their positions are indistinguishable.
"Inherent differences" between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity. Sex classifications may be used to compensate women "for particular economic disabilities [they have] suffered,". . . to "promot[e] equal employment opportunity," . . . to advance full development of the talent and capacities of our Nation's people. . .But such classifications may not be used, as they once were, . . .to create or perpetuate the legal, social, and economic inferiority of women.
Justice Scalia
Even a conservative like Justice Scalia has acknowledged race-based decision making among jurors. Shockingly, Scalia believes that the Court cannot remedy these decisions -- even when a litigant's life is at stake. In McCleskey v. Kemp, the Court rejected a constitutional challenge to the Georgia death penalty. A study showed that race strongly impacted prosecutors' decisions to seek the death penalty and jurors' decisions to impose it. Race operated most severely in cases involving black defendants accused of killing white victims, but the statistics showed that any person who killed a white individual had a greater likelihood of receiving the death penalty.
The majority found that, nothwithstanding the study, McCleskey failed to prove discrimination in his particular case. Scalia voted with the majority, but he wrote a memorandum to the other justices in which he expresses a far more fatalistic view of race-based decision making than Sotomayor embraces in her speech:
Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot say that all I need is more proof.Sotomayor, like Scalia, believes that race and sex impact legal decision making, but Sotomayor believes that judges have to struggle to overcome this limitation. Scalia, by contrast, acknowledges race-based decisions among jurors and prosecutors, but he would not exercise his authority as a judge to remedy the situation -- even in a life or death situation.
Justice Kennedy
Currently, Justice Kennedy is a moderate judicial icon. He is often the swing vote in the Court's 5-4 rulings. Although Kennedy receives praise for his judicial record, recently, he authored a decision that reflects very paternalistic and outmoded notions of gender -- the very type of decision making the Court's equal protection precedent prohibits. In the case, Gonzales v. Carhart, the Court sustained the federal partial birth abortion statute. Justice Kennedy's majority opinion discusses "legitimate" reasons for the law. Justice Kennedy makes the following argument about women in order to validate the law:
Respect for human life finds an ultimate expression in the bond of love the mother has for her child. . . .Whether to have an abortion requires a difficult and painful moral decision. . . .While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. . . . Severe depression and loss of esteem can follow. . . .While many women certainly form love-bonds with their children, many men do as well. Some men and women, however, do not. And women decide, for many reasons, to abort pregnancies. Kennedy's nostalgic argument about the wonderment of mother and child leads him to the sweeping conclusion -- admittedly unsupported by any specific statistical evidence -- that in order to protect women from making an uninformed choice, Congress can outlaw partial-birth abortion altogether. Kennedy's analysis portrays women as unsophisticated consumers of medicine and as emotionally unbalanced.
Ginsburg's dissenting opinion uncovers the gender bias in Kennedy's reasoning:
[The majority concludes without any] reliable evidence [that]: Women who have abortions come to regret their choices, and consequently suffer from "[s]evere depression and loss of esteem". . . . The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. . . .Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety [because the statute lacks a health exception].Final Thoughts
This way of thinking reflects ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited. . . .
Though today’s majority may regard women’s feelings on the matter as "self-evident". . ., this Court has repeatedly confirmed that "[t]he destiny of the woman must be shaped. . .on her own conception of her spiritual imperatives and her place in society". . . .
Many of the examples this article provides of judges accepting the reality of race- and sex-based decision making within law concerns jurors. But court doctrines prevent judges from overturning or even inquiring about the basis of jury decisions in most instances. Accordingly, juries have a central role in law -- particularly in criminal cases. Furthermore, it would take a lot of argumentation and empirical evidence to demonstrate that these same identity categories and experiences do not impact judges, and most of the evidence, where available, seems to confirm the opposite. In fact, Sotomayor's speech cites to several empirical studies which demonstrate that in particular types of cases judges tend to reach different outcomes depending on their race or sex.
The reality of race and sex does not mean that judges discard judgment and analysis or that they abandon precedent and rely solely on force and power. Instead, Sotomayor's position acknowledges what psychologists and sociologists deem as self-evident: Decision making takes place through a prism of experience. Having diversity, rather than homogeneity, actually permits judges to isolate "fact" from identity-based biases. I applaud Sotomayor's honest reflection on this subject.
Related Readings on Dissenting Justice:
Strikingly Similar: Comparing Sotomayor's Views on Sex and Race With Statements By O'Connor, Ginsburg, Scalia and Kennedy
Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"
Rosen Defends His Misreading of a Judicial Footnote: Says Judge Winter's Writing "Not a Model of Clarity"
Earth to Orrin Hatch: Even Conservative Judges Make Policy!
Talking Points on Souter Replacement?
Hatchet Job: Jeffrey Rosen's Utterly Bankrupt Analysis of Judge Sonia Sotomayor
When Will Obama Close the Guantanamo Bay Prison?
Now that the Obama administration has confirmed that it will retool and revive that controversial military tribunals to prosecute terrorism suspects, one glaring question remains: When will Obama close the Guantanamo Bay prison? During his first week in office, President Obama issued an executive order that directs a team of experts to devise a plan to close to prison by January 2010. The revival of the military courts, however, complicates this issue.
Many Legal Issues
Even though Obama's January executive orders included a carefully worded loophole that contemplated the possible use of military courts, his decision to use the tribunals has angered civil libertarians. Most of the progressive voters in the Democratic Party lambasted Hillary Clinton, whom they believed offered "more of the same," and they constructed Obama as a leftist dream come true.
Although progressives exaggerated Obama's leftist credentials, he offered enough teasers to win their trust. For example, Obama's campaign disparaged the use of military courts and repeatedly praised the ability of the ordinary federal courts to prosecute terrorism suspects. As a good lawyer, Obama left room for the possible use of reformed military courts, but this qualification certainly was not the loudest element of his campaign.
Thus far, Obama's proposed reform of the military courts does not seem to make dramatic changes over the previous system used by Bush. Although Obama says he will limit the use of hearsay evidence to situations where the court concludes it is "reliable," Bush used the same standard. Under Bush's rules, however, the burden rested with the defendant to disprove the reliability of hearsay evidence; Obama's reform would place the burden on the government. Nevertheless, if the military courts use a low standard to evaluate the reliability of hearsay evidence, then this "reform" might not differ much at all from the old system.
Obama has also stated that the new rules will not permit the use of evidence collected through torture and other abusive methods. According to an article published by the Associated Press, however, Bush never relied upon tainted evidence to prosecute individuals, even though his rules authorized him to do so.
No Prosecutions in the Near Future
Regardless of the ultimate content of Obama's new procedural rules, the military courts will probably not become operational in the near future. In fact, Obama will soon order an additional 120-day freeze on proceedings in the military tribunals. The original stay will expire on May 20.
Before any prosecution can occur, the President must spell out the reforms he wishes to make. Also, Congress needs to pass legislation implementing the changes. Furthermore, courts must preside over the inevitable litigation challenging the constitutionality of the Obama's military tribunals. These factors will likely result in a considerable delay in the use of the military tribunals.
Possible Impact on Guantanamo Bay Closure
While the legal process concerning the military tribunals takes place, the deadline on Obama's promise to close the Guantanamo Bay prison could expire. Although the president could extend the time period for closing the facility, he might also consider abandoning the closure plan altogether.
Both Obama and Secretary of Defense Robert Gates have stated that some detainees that the government deems "dangerous" are unsuitable for transfer to other countries and are too risky for prosecution (due to insufficient evidence). An overlooked provision (Section 4(c)4) of Obama's executive order regarding Guantanamo Bay anticipates this category of detainees.
In March, the Washington Post reported that officials in the Department of Justice were considering whether to "create a new system of detention for cases where there is not enough evidence to prosecute someone in the regular courts, but the suspect is deemed too dangerous to release." At the time, this concept seemed vague, but recent media reports indicate that the government will likely seek to detain these individuals indefinitely, adhering to another one of Bush's most criticized policies. Furthermore, the revival of the military tribunals means that the government has decided not to limit prosecution to "regular courts," as the Washington Post article suggests.
Members of Congress, however, do not want terrorism suspects prosecuted or detained within the United States. If Congress wins this battle, then Obama must continue to hold the detainees at Guantanamo Bay or at another United States-controlled facility located outside of the country.
Although Obama has promised to close the Guantanamo Bay detention center, he could later revisit this decision. Earlier this year, the Department of the Navy completed a study, ordered by Obama, which found that the Guantanamo Bay prison complies with the Geneva Conventions. Although many civil liberties lawyers dispute this finding, Attorney General Holder subsequently visited the facility and gave it a favorable review as well. Due to the constraints that Obama now faces, a decision to keep the Guantanamo Bay prison open beyond January 2010 (or even longer) does not seem completely "off the table."
Many Legal Issues
Even though Obama's January executive orders included a carefully worded loophole that contemplated the possible use of military courts, his decision to use the tribunals has angered civil libertarians. Most of the progressive voters in the Democratic Party lambasted Hillary Clinton, whom they believed offered "more of the same," and they constructed Obama as a leftist dream come true.
Although progressives exaggerated Obama's leftist credentials, he offered enough teasers to win their trust. For example, Obama's campaign disparaged the use of military courts and repeatedly praised the ability of the ordinary federal courts to prosecute terrorism suspects. As a good lawyer, Obama left room for the possible use of reformed military courts, but this qualification certainly was not the loudest element of his campaign.
Thus far, Obama's proposed reform of the military courts does not seem to make dramatic changes over the previous system used by Bush. Although Obama says he will limit the use of hearsay evidence to situations where the court concludes it is "reliable," Bush used the same standard. Under Bush's rules, however, the burden rested with the defendant to disprove the reliability of hearsay evidence; Obama's reform would place the burden on the government. Nevertheless, if the military courts use a low standard to evaluate the reliability of hearsay evidence, then this "reform" might not differ much at all from the old system.
Obama has also stated that the new rules will not permit the use of evidence collected through torture and other abusive methods. According to an article published by the Associated Press, however, Bush never relied upon tainted evidence to prosecute individuals, even though his rules authorized him to do so.
No Prosecutions in the Near Future
Regardless of the ultimate content of Obama's new procedural rules, the military courts will probably not become operational in the near future. In fact, Obama will soon order an additional 120-day freeze on proceedings in the military tribunals. The original stay will expire on May 20.
Before any prosecution can occur, the President must spell out the reforms he wishes to make. Also, Congress needs to pass legislation implementing the changes. Furthermore, courts must preside over the inevitable litigation challenging the constitutionality of the Obama's military tribunals. These factors will likely result in a considerable delay in the use of the military tribunals.
Possible Impact on Guantanamo Bay Closure
While the legal process concerning the military tribunals takes place, the deadline on Obama's promise to close the Guantanamo Bay prison could expire. Although the president could extend the time period for closing the facility, he might also consider abandoning the closure plan altogether.
Both Obama and Secretary of Defense Robert Gates have stated that some detainees that the government deems "dangerous" are unsuitable for transfer to other countries and are too risky for prosecution (due to insufficient evidence). An overlooked provision (Section 4(c)4) of Obama's executive order regarding Guantanamo Bay anticipates this category of detainees.
In March, the Washington Post reported that officials in the Department of Justice were considering whether to "create a new system of detention for cases where there is not enough evidence to prosecute someone in the regular courts, but the suspect is deemed too dangerous to release." At the time, this concept seemed vague, but recent media reports indicate that the government will likely seek to detain these individuals indefinitely, adhering to another one of Bush's most criticized policies. Furthermore, the revival of the military tribunals means that the government has decided not to limit prosecution to "regular courts," as the Washington Post article suggests.
Members of Congress, however, do not want terrorism suspects prosecuted or detained within the United States. If Congress wins this battle, then Obama must continue to hold the detainees at Guantanamo Bay or at another United States-controlled facility located outside of the country.
Although Obama has promised to close the Guantanamo Bay detention center, he could later revisit this decision. Earlier this year, the Department of the Navy completed a study, ordered by Obama, which found that the Guantanamo Bay prison complies with the Geneva Conventions. Although many civil liberties lawyers dispute this finding, Attorney General Holder subsequently visited the facility and gave it a favorable review as well. Due to the constraints that Obama now faces, a decision to keep the Guantanamo Bay prison open beyond January 2010 (or even longer) does not seem completely "off the table."
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