Today, the Supreme Court heard the case of the California SWAT officer who sued the city of Ontario for violation of his privacy after his employer reviewed the messages he sent on his work-issued pager. He had been using the pager for personal text messages — notably for steamy SMSes to his estranged wife and to his girlfriend with whom he worked. (More background here.)
At first glance, the case might seem like an easy one. Of course the police department has the right to look at messages sent on an officer’s work pager, right?
But then think about it in your own context. Do you assume that your employer is reviewing every text you send from your work phone? Is it fair for your employer to look at every email that goes out from your work computer? Does it matter whether it’s going from your work account or your personal gmail account?
JEFFREY TOOBIN: He’s gone now, but probably Souter. He was so odd. No cell phone, no computer, didn’t like electric light, ate an apple (including core) and yogurt for lunch every day. And a brilliant guy. What’s not to like?
However, these idiosyncrasies aren't so cute when it comes to the law.
According to this post, at DC Dicta, the Court asked some questions of the lawyers which, well, the justices’ kids and grandkids could have answered while sleepwalking.
According to the story, the first sign of trouble came was about midway through the argument, when Chief Justice John Roberts asked what the difference was “between email and a pager?” (Cue sound of hard slap against forehead.)
At another point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.
“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked. (Cue sound of louder slap against forehead.)
Justice Antonin Scalia stumbled getting his arms around with the idea of a service provider.
“You mean (the text) doesn’t go right to me?” he asked.
Then he asked whether they can be printed out in hard copy.
“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.
Russell Wheeler, visiting fellow in Governance Studies at The Brookings Institution, predicts trouble for Obama's judicial nominees.
This Jeffrey Toobin piece in the latest New Yorker illustrates what I predict will be the fatal flaw of the Obama administration: this strange, intellectualized fixation with a non-partisan strategy that is in no way supported by the results on the ground - nor is it an appropriate response to the electorate, which overwhelmingly rejected Republican policies.
The president doesn't yet seem to understand that the continued opposition to his choices doesn't have anything to do with his choices. It's Republican obstructionism, plain and simple. (Although Orrin Hatch contends: "He started it!" Uh huh. Go take a nap, Orrin, you nasty old coot.)
The Obama Administration wanted to send a message with the President’s first nomination to a federal court. “There was a real conscious decision to use that first appointment to say, ‘This is a new way of doing things. This is a post-partisan choice,’ ” one White House official involved in the process told me. “Our strategy was to show that our judges could get Republican support.” So on March 17th President Obama nominated David Hamilton, the chief federal district-court judge in Indianapolis, to the Seventh Circuit court of appeals. Hamilton had been vetted with care. After fifteen years of service on the trial bench, he had won the highest rating from the American Bar Association; Richard Lugar, the senior senator from Indiana and a leading Republican, was supportive; and Hamilton’s status as a nephew of Lee Hamilton, a well-respected former local congressman, gave him deep connections. The hope was that Hamilton’s appointment would begin a profound and rapid change in the confirmation process and in the federal judiciary itself.
[...] “The unifying quality that we are looking for is excellence, but also diversity, and diversity in the broadest sense of the word,” another Administration official said. “We are looking for experiential diversity, not just race and gender. We want people who are not the usual suspects, not just judges and prosecutors but public defenders and lawyers in private practice.” Yet Hamilton and Sotomayor are the usual suspects—both sitting judges, who had already been confirmed by the Senate. Of Obama’s seven nominees to the circuit courts, six are federal district-court judges. The group includes Gerard Lynch, a former Columbia Law School professor and New York federal prosecutor, and Andre Davis, who was nominated to the Fourth Circuit by Bill Clinton. (At the time, Republicans blocked any vote on Davis.) Two of the seven are African-American; two are women; all but one are in their fifties. (None are openly gay.) The one non-judge is Jane Stranch, who has represented labor unions and other clients at a Nashville law firm and is nominated for the Sixth Circuit. They are conventional, qualified, and undramatic choices, who were named, at least in part, because they were seen as likely to be quickly confirmed.
But then, as the first White House official put it, “Hamilton blew up.” Conservatives seized on a 2005 case, in which Hamilton ruled to strike down the daily invocation at the Indiana legislature because its repeated references to Jesus Christ violated the establishment clause of the First Amendment. Hamilton had also ruled to invalidate a part of Indiana’s abortion law that required women to make two visits to a doctor before undergoing the procedure. In June, Hamilton was approved by the Judiciary Committee on a straight party-line vote, twelve to seven, but his nomination has not yet been brought to the Senate floor. Some Republicans have already vowed a filibuster. (Republican threats of extended debate on nominees can stop the Democratic majority from bringing any of them up for votes.)
“The reaction to Hamilton certainly has given people pause here,” the second White House official said. “If they are going to stop David Hamilton, then who won’t they stop?”
See what I mean? Why are they surprised? Why do they constantly split the difference on everything, watering down any meaningful differences? If I were making these decisions, I'd be pushing the most liberal judges I could find, and make the Republicans explain over and over why they don't want judges who rule in favor of working people. Why would you throw away that opportunity?
Republicans in the Senate have not allowed a vote on any of the other nominees, either. So far, the only Obama nominee who has been confirmed to a lifetime federal judgeship is Sotomayor. The stalemate provides a revealing glimpse of the environment in Washington. Obama advisers (and Democratic Senate sources) aver that all the nominees, even Hamilton, will be confirmed eventually, but contrary to the President’s early hope the struggle for his judges is likely to be long and contentious.
“The President did not set a good example when he was in the Senate,” Orrin Hatch, the senior Republican senator from Utah, told me, pointing to Obama’s votes against the confirmation of John G. Roberts, Jr., and Samuel A. Alito, Jr., to the Supreme Court. “You have to be a partisan ideologue not to support Roberts,” Hatch said. “There is a really big push on by partisan Republicans to use the same things that they did against us.” Hatch himself, who had voted for Ruth Bader Ginsburg, Stephen G. Breyer, and every other Supreme Court nominee in his Senate career, voted against Sotomayor. (The vote for her confirmation was sixty-eight to thirty-one.)
Aside from a few high-profile issues, most Supreme Court decisions are read into the casebooks without public notice. We've gone almost four full years since Bush restaffed the court with Alito and Roberts, yet there has been little examination of their impact on jurisprudence.
That's changing. As the fight over Obama's first appointment picks up and attention turns to the future of the Court, we can expect examination of the Court's present. Jeff Toobin gets the ball rolling, noting that its Chief Justice is a wingnut:
The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.
The article is a great foundation for understanding the stakes with this nomination.
Will you join me please and Sign the petition? With the revelations that Jay Bybee was in the middle of trying to legalize torture for the Bush administration, particularly with the evidence that he penned the disgusting torture memo in 2002, I fully support all efforts to have this man impeached. The OLC is supposed to give sound legal opinions to the executive branch, not bend the law to fit their sick world view which makes this all the more egregious.
The first, and very chilling memo in the group is an analysis of the various techniques that were used by C.I.A. interrogators on Abu Zubaydah. The author of the memo, which is dated August 1, 2002, is Jay S. Bybee, who was the Assistant Attorney General for the Office of Legal Counsel. Bybee concludes that all of these various techniques, including waterboarding, do not constitute torture under American or international law.
Bybee is generally the forgotten man in torture studies of the Bush era. The best known of the legal architects of the torture regime is John Yoo, who was a deputy to Bybee. For better or worse, Yoo has been a vocal defender of the various torture policies, and he remains outspoken on these issues. But whatever happened to his boss?
Today, Bybee is a judge of the United States Court of Appeals for the Ninth Circuit. He was confirmed by the Senate on March 13, 2003—some time before any of the “torture memos” became public. He has never answered questions about them, has never had to defend his conduct, has never endured anywhere near the amount of public scrutiny (and abuse) as Yoo. It is an understatement to say that he has kept a low profile since becoming a judge.
He certainly slipped under my radar. When you study men like Cheney, Yoo and David Addington---it's very easy for a man like Bybee to slip through the torture cracks. Now he's on the 9th circuit and for a man to be involved in one of the most revolting moral and ethical violations in American history, he has forfeited the right to be on the 9th circuit. The only thing left to figure out is how to do it.
That investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Mr. Bush rewarded him with.
These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him. And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it. After eight years without transparency or accountability, Mr. Obama promised the American people both. His decision to release these memos was another sign of his commitment to transparency. We are waiting to see an equal commitment to accountability.
Well, not surprising--it's up to us to do it and to push the tools we have at our disposal.
And there is an actual mechanism, a way to leverage grassroots anger and push the elected officials who can make these decisions, at least in one case. We can prove the desire for accountability in the country and take a systematic approach to restore democracy and the rule of law. And it starts with Jay Bybee.
Attytood: Newt Gingrich preps for 2012 by writing the preface to a creepy, right-wing survivalist novel. In other news of the deranged, Michele Bachmann is making sh*t up again, this crazyass Illinois congressman sure doesn't know where the line is, and Georgia passes a law honoring terrorists and traitors
OurFuture: House Speaker Nancy Pelosi this week vowed to begin a congressional investigation into what caused the financial crash of 2008
Supreme Court Justice Clarence Thomas was interviewed on 60 Minutes yesterday to promote his book, My Grandfather's Son, and he had some just odd things to say about his critics. When asked why there was so much controversy about his nomination to the highest court in the land, his answer: abortion. Huh? While he is correct that there was an overriding concern amongst Democrats of the time that a conservative majority would result in the overturning of Roe v. Wade, I think it's a vast oversimplification to put the focus solely on that.
But no less an authority than arch-conservative fellow Associate Justice Antonin Scalia told Thomas' biographer, Ken Foskett, that Thomas "doesn't believe in stare decisis, period." If you think nutcase is too strong a word to summarize that view, listen again to Scalia, as quoted in this Terry Gross interview with Jeff Toobin about his new Supreme Court book, The Nine:
TOOBIN: Clarence Thomas is not just the most conservative member of the Rehnquist court or the Roberts court. He's the most conservative justice to serve on the court since the 1930s. If you take what Thomas says seriously, if you read his opinions, particularly about issues like the scope of the federal government, he basically thinks that the entire work of the New Deal is unconstitutional. He really believes in a conception of the federal government that hasn't been supported by the justices since Franklin Roosevelt made his appointments to the court. You know, I went to a speech that Justice Scalia gave at a synagogue here in New York a couple of years ago, and someone asked him, `What's the difference between your judicial philosophy and Justice Thomas?' I thought a very good question. And Scalia talked for a while and he said, `Look, I'm a conservative. I'm a texturalist. I'm an originalist. But I'm not a nut.'
John Amato: I see that Logan started a post about this new development and I figured I would add some video to his post. CNN's Jeffrey Toobin analyses the new court ruling that once again proves the Bush administration's legal policy on the war on terrorism has been a wall to wall disaster. So what's new in BushCo. land?
The Bush administration cannot legally detain an immigrant it believes is an al-Qaida sleeper agent without charging him, a divided federal appeals court ruled Monday.
The case involves a Qatari national and suspected al-Qaida operative who is the only person being held in the United States as an "enemy combatant."
In the 2-1 decision, the 4th U.S. Circuit Court of Appeals panel found that the federal Military Commissions Act does not strip Ali al-Marri of his constitutional rights to challenge his accusers in court. It ruled the government must allow him to be released from military detention. Read more...
