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Glen Beck as civil libertarian and Joe Lieberman as authoritarian

Thu, 06 May 2010 00:00:00 -0700

Balkinization - By Sandy Levinson - May. 06 (Opinion) - consider the implications of the suggestion by this Yale Law School graduate, former Attorney General of Connecticut who believes that it is enough simply to allege that status to lose all "rights that come with that citizenship." No trial or conviction necessary in Sen. Lieberman's world. I'll take Glenn Beck (or, for that matter, the Antonin Scalia who forcefully dissented in Hamdi and said in effect that any policy like Lieberman's would require the Congress overtly to suspend habeas corpus) over the egregious junior senator from Connecticut. Will the Nutmeg State actually return this continuing embarrassment to the Senate in 2012?

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Why the Sotomayor Nomination Makes Sense

Tue, 26 May 2009 00:00:00 -0700

Balkinization - By Jack M. Balkin - May. 26 (Opinion) - Barack Obama's nomination of Sonia Sotomayor is a good example of how Presidents make Supreme Court appointments: they balance political constituencies they wish to favor or reward and the predicted ease or difficulty of confirmation with their desire to have jurists who will cooperate with their policy initiatives.

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Will Al Franken or Norm Coleman be able to claim to be "the people's choice"?

Sun, 28 Dec 2008 00:00:00 -0800

Balkinization - By Sandy Levinson - Dec. 28 (Opinion) - There is nothing in the Constitution that prevents states from adopting voting systems that would do a better job of meeting democratic criteria. It's also the case, incidentally, that several of the Democratic wins in 2006 featured non-majority winners who might have been helped by the presence of third-party candidates who deprived Republicans of likely votes. This might have been the case in Montana, and Sen. Webb in Virginia, too, might have been helped by the third-party candidate. So there's nothing partisan in my critique of the voting system that Minnesota, like almost all other states, has adopted.

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Some preliminary reflections on Heller

Fri, 27 Jun 2008 00:00:00 -0700

Balkinization - By Sandy Levinson - Jun. 27 (Opinion) - I begin with some "external" considerations. My own hope, spelled out in some prior Balkinization posts, was that the Supreme Court would unanimously accept the very well-written and -argued brief by the Solicitor General, in behalf of the Bush Administration, which argued both that the Second Amendment indeed protected an individual right to "keep and bear arms" and disagreed with the particularly rigorous test that the Court of Appeals for the District of Columbia had applied to the D.C. ordinance. Thus, according to the Solicitor General, the Court should remand the case back to the court below for reconsideration under a proper, somewhat looser, standard that would still have easily supported invalidating the ordinance.

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So What Does John McCain Think of the President's Constitutional Authority to Violate FISA?

Mon, 09 Jun 2008 00:00:00 -0700

Balkinization - By Marty Lederman - Jun. 09 (Opinion) - If one examines the entire series of statements, it soon becomes evident either that the Senator and his staff have no earthly idea what they're talking about or (more likely) that they are quite deliberately being as ambiguous, equivocal and contradictory as possible, so that they can embrace whichever view is politically expedient at any given time and with any given audience -- so that they can, for example, tell Charlie Savage that the President has no dictatorial constitutional power to disregard FISA, while at the same time reassuring the Republican base (i.e., the National Review) that, as President, McCain would scoff at statutes that get in his way.

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Is Google the New "Media Monopoly"?

Wed, 21 May 2008 00:00:00 -0700

Balkinization - By Neil Netanel - May. 21 (Opinion) - Microsoft's hastily renewed courtship with Yahoo --this time centered on a merger of the companies' search advertising businesses -- in order to compete more effectively with search engine leader Google raises issues not just of market competitiveness but of the shape of the new media landscape. In particular, might new media become as concentrated as the conglomerates and oligopolies that characterize much of traditional media? And if so, would new media concentration poses similar concerns about media concentration's deleterious impact on public discourse and expressive diversity?

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Dampen Your Expectations

Tue, 05 Feb 2008 00:00:00 -0800

Balkinization - By Marty Lederman - Feb. 05 (Opinion) - ... the nomination will be decided by the superdelegates, who make up about one-fifth of the voting delegates at the convention. The interesting question, I think, is whether those superdelegates (mostly elected officials and DNC members) would possibly vote to give the nomination to the candidate who goes to Denver with fewer delegates than the other.

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Obama's Beef

Wed, 30 Jan 2008 00:00:00 -0800

Balkinization - By Jeffrey K. Tulis - Jan. 30 (Opinion) - In Obama's vision, presidential success is not measured by how many detailed policy proposals he can ram through Congress. Rather, his vision sets a new standard, that presidential success will be measured by an improved functioning of the government as a whole. In this vision, the details of policy are not as important as the principles that guide policy. In this vision, it is less important to secure ones preferred version of a bill than it is to mobilize Congress to solve the problem for which the legislation was designed.

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What a Constitutional Crisis Looks Like

Tue, 08 Jan 2008 00:00:00 -0800

Balkinization - By Mary L. Dudziak - Jan. 08 (Opinion) - A question we must ask about current interventions in Africa and elsewhere is whether the "war on terror" drives the U.S. to support reliable friends and to ignore their failings.

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Fake Centrism/Bipartisanship

Mon, 31 Dec 2007 00:00:00 -0800

Balkinization - By Mark Graber - Dec. 31 (Opinion) - The real issue ought to be why some journalists are so excited about the possibility of a third party that might take a middle position between the party clearly to right of the electorate and the party that on its best day sometimes lurches very slightly to the left.

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Now Why Didn't I Think of That? Washington Post Proposes That Senate Ban Torture!

Fri, 02 Nov 2007 10:28:59 -0700

Balkinization - By Marty Lederman - Nov. 02 (Opinion) - Has it really come to this? Can one of the nation's leading newspapers actually decide to publish the words that it's about time "the Senate" finally "ban torture" -- something it has thus far "declined to do"?

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A new public media

Thu, 18 Oct 2007 09:32:59 -0700

Balkinization - By Ellen P. Goodman - Oct. 18 (Opinion) - New media platforms amplify and extend content that is by and large designed for traditional media, not for a world of searching, linking, sharing. To return to the question I asked - what if PBS or its member stations or some new entity wanted to change the game? The Public Broadcasting Act would make it difficult because it makes the physical act of broadcasting - the transmission technology - central to the funding and operation of the system.

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Parsing the Vice President's Careful Words

Tue, 21 Aug 2007 10:56:58 -0700

Balkinization - By Marty Lederman - Aug. 21 (Opinion) - The Vice President's office sent Pat Leahy this letter today, asking for an extension of time to respond to the Senate Judiciary's subpoena for documents relating to the NSA's warrantless surveillance between 2001 and 2007. I think it's fair to predict that, no matter how many extensions it receives, the Administration will not provide the Senate with the requested documents. Senator Leahy is threatening contempt citations. But putting those questions aside for a moment, today's letter is revealing in at least three other ways.

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There's a Reason Why We Call it the Bill of Rights-- Government Isn't Supposed to Violate Them

Tue, 14 Aug 2007 11:05:51 -0700

Balkinization - By Jack Balkin - Aug. 14 (Opinion) - It's important to remember that the Bush Administration did everything it could to deny Padilla even the basic right of habeas corpus. It argued that courts had no power to second guess the President's determination that Padilla was an enemy of the United States and could be held in solitary confinement indefinitely. It argued that no one had the right to contact Padilla and that no one had the right to know what the government was doing to him. It argued that courts should defer to the President's views about who was dangerous and who was not-- that once the President declared a person an enemy, that person had all the process that was due them and courts should respect that determination.

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Secret Court Strikes Down Bush NSA Program, Leading to Latest Fuss About FISA

Thu, 02 Aug 2007 11:01:09 -0700

Balkinization - By Jack Balkin - Aug. 02 (Opinion) - Key issues apparently arose from the fact that the Administration wanted to target information coming through fiber optic cables routing to telecommunications switches inside the United States. By targeting these switches, the Administration hoped to gain access to foreign communications that had been routed into the U.S. even though both parties are outside the U.S.. If that was all that was at stake, it would be fairly easy to get Congress to agree to amend FISA to allow warrantless surveillance as long as no U.S. persons located in the U.S. were involved.

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The Relative Power of Conservative and Liberal Blogs

Tue, 03 Jul 2007 10:36:06 -0700

Balkinization - By Jack Balkin - Jul. 03 (Opinion) - If the blogosphere was a way to connect to existing social and political networks and create synergies for the right, it was a way to break through the noise and find other like-minded individuals for the left. That is to say, the left found and employed the blogosphere differently in part because its social and political situation was different. Gradually, liberals used the Internet to form their own social networks and regain social movement energy. Liberal websites (not all of them blogs) helped create community and provided sounding boards for liberal ideas. They offered liberal counterweights to the conservative versions of current events emanating from conservative parts of the media. And the liberal Netroots-- however much it may upset mainstream politicians and traditional media types-- has been a crucially important feature in the resurgence of liberal political opposition and liberal political ideas.

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The Desegregation, Not Integration Mantra

Fri, 29 Jun 2007 10:57:34 -0700

Balkinization - By Jack Balkin - Jun. 29 (Opinion) - As soon as the Court delivered its opinions in Brown I and Brown II a debate began whether or not Brown required merely desegregation-- i.e., an end to official legal assignment of students based on their race, or integration-- that is, affirmative steps to break down racial barriers and to integrate public functions and public life. Southern critics of Brown, hoping to preserve the status quo, argued that Brown meant at most "desegregation, not integration." They followed a often cited statement by Judge John Parker in the Fourth Circuit (see Mark Tushnet's post below). Parker had personally rejected massive resistance but decided to read Brown in the narrowest way possible

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The President Asserts Executive Privilege

Thu, 28 Jun 2007 14:04:34 -0700

Balkinization - By Marty Lederman - Jun. 28 (Opinion) - In response to the congressional subpoenas for White House documents and testimony related to the removal of U.S. Attorneys, the President has formally asserted executive privilege. Talking Points Memo has posted the Fred Fielding letter here. The Fielding letter attaches the legal justification for assertion of the privilege, signed by Acting AG Paul Clement. Like most of Paul's work, it is a serious and substantial argument, consistent with similar arguments in analogous privilege memos in Democratic and Republican Administrations alike. (It was almost certainly drafted in the first instance by Paul Colborn and political appointees at OLC; but I'm confident Paul Clement's signature is not simply a formality, i.e., that Paul made sure he was comfortable with each of the arguments and probably contributed materially to the final draft.)

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The Most Important, Unanswered Question About Cheney

Mon, 25 Jun 2007 09:01:11 -0700

Balkinization - By Marty Lederman - Jun. 25 (Opinion) - Bart Gellman and Jo Becker of the Post are in the midst of publishing a terrific, very extensive set of stories on the role of the Vice President. Today's installment is about the Vice President's dominant role in determining virtually all of the Administration's responses after 9/11, especially with respect to detention, interrogation, the Geneva Conventions, and Executive power. Truth be told, there is not very much that is newly revealed in the two stories so far (with one important exception noted at the bottom of this post): They confirm the narrative that the writers on this blog, along with Jane Mayer and Sy Hersh of the New Yorker, and others, have surmised and written about for the past several years. But Gellman and Becker tell the story with flair, brio and evocative detail, and they've induced many Administration officials to confirm what we outsiders have gleaned from the tea leaves scattered throughout the documents and oblique statements that have been made public.

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Did Republicans Evolve From Earlier Forms of Life?

Mon, 11 Jun 2007 16:53:56 -0700

Balkinization - By jack Balkin - Jun. 11 (Opinion) - Following the launch of Sputnik, the United States invested considerable sums in science education and research both at the university level and in elementary and secondary schools in order to create a generation of young scientists and promote scientific research. The primary motivation for these reforms was to assist space and military research, but the long term benefits of the fifteen or so years while the Sputnik-era reforms lasted were considerable. Not only did these reforms produce more scientists and more innovation, but it also led to more Americans from all walks of life understanding and respecting the achievements of science and technology. Unfortunately, the money and political will for scientific education began to dry up after men first landed on the Moon. The result was predictable: a slow and steady degradation in the average American's understanding of science, and a reduction in resources and preparation for young people to become scientists. Luckily we have benefited from people from other countries who have come to America to do university research. But it seems clear that we cannot adopt this strategy of importing well-educated students from other lands forever. We must attend to our own children's education.

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The Meaning of 2008-- Partisan Entrenchment or Constitutional Moment?

Sat, 19 May 2007 11:09:12 -0700

Balkinization - By Jack Balkin - May. 19 (Opinion) - Goldstein points out that there are three Supreme Court seats in play as a result of the next election: Stevens, who is 87, Souter, who is 67 but is said to want to leave the Court, and Ginsburg, who is 74. All three are liberals. If the Democrats win in 2008, they will preserve the current ideological balance for the foreseeable future. But if the Republicans win the next Presidential election, and appoint new conservative Justices, they will have produced a six or seven person conservative majority. At that point, we might witness wholesale constitutional transformations in a number of areas of law, including affirmative action, abortion and gay rights, criminal procedure, and religion. It would be in some respects the vindication of the constitutional agenda of the New Right.

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Bad Science and Abortion Rights

Mon, 07 May 2007 10:39:01 -0700

Balkinization - By Julia Frank - May. 07 (Opinion) - Justice Anthony Kennedy in Gonzales v. Carhart justified his decision in part on his belief that abortion may be a cause of psychiatric disorder in women. This statement was a red flag to me, a psychiatrist involved in women's health and also a teacher of medical students. I spend my professional life trying to get medical students to appreciate the reality of psychiatric disorders and to distinguish valid and invalid medical reasoning. Medical students parrot popular misunderstandings of many medical issues. The casual belief that abortion causes psychiatric disorders is rampant in naive students, until we beat it out of them. To read that a Justice of the Supreme Court was equally cavalier and misguided in spreading information that might influence difficult, occasionally life or death, medical decisions, hit me like a brick

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The Bush Administration Vindicates Critical Legal Studies

Thu, 03 May 2007 11:06:01 -0700

Balkinization - By Brian Tamanaha - May. 03 (Opinion) - Critical legal studies is often dismissed today as a faddish movement of comfortable, radical leftist intellectuals at elite law schools who, in the 1970s and 1980s, spouted extremist nonsense about the law. For those who don't know, the core of CLS thought can be pared to its mantra: "law is politics" (through and through). CLSers criticized legal liberalism for putting up a surface neutrality that conceals the deeply ideological bent and bias of law. Although I have friends who participated in CLS, and I have always admired their conviction, much of what they said about law struck me as one-sided and exaggerated...until now.

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Moral Philosophy from the Godfather of Rendition

Sun, 29 Apr 2007 10:36:17 -0700

Balkinization - By David Luban - Apr. 29 (Opinion) - In today's Washington Post, Scheuer explains a bit more about his moral philosophy as compared with the old softie, George Tenet, who Scheuer evidently loathes: I did not - and do not - care about collateral casualties in such situations, as most of the nearby civilians would be the families that Bin Laden's men had brought to a war zone. But Tenet did care. "You can't kill everyone," he would say. That's an admirable humanitarian concern in the abstract, but it does nothing to protect the United States. Indeed, thousands of American families would not be mourning today had there been more ferocity and less sentimentality among the Clinton team. Almost every word of Scheuer's moral code deserves thought.

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Why the President Would Deny Our Troops the Resources They Need

Thu, 26 Apr 2007 15:21:50 -0700

Balkinization - By Marty Lederman - Apr. 26 (Opinion) - in addition to providing much more support and funding to the troops than the President himself proposed, the bill would also establish a presumption that redeployment of troops from Iraq is to begin by this July, if the Iraqis are not meeting the President's benchmarks, and if the President is unable to make the case to delay the beginning of redeployment to a later date.

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