Supreme Court Checks and Balances in Boumediene

After the Supreme Court handed down its long-awaited opinion, upholding habeas corpus rights for the Guantánamo detainees, I was invited to appear on The O'Reilly Factor with guest host Laura Ingraham. Although she is a lawyer and former law clerk for Justice Clarence Thomas, Ingraham has no use for our judicial branch of government, noting that the justices are "unelected." Indeed, she advocated that Bush break the law and disregard the Court's decision in Boumediene v. Bush:

"Marjorie, I was trying to think to myself, look, if I were President Bush, and I had heard that this case had come down, and I'm out of office in a few months. My ratings, my popularity ratings are pretty low, I would have said at this point, that's very interesting that the court decided this, but I'm not going to respect the decision of the court because my job is to keep this country safe."

What did the Court decide that so incensed Ingraham (who has just been rewarded for her "fair and balanced" views with her own show on Fox News)? Will this decision really imperil our safety? And will Boumediene become an issue in the presidential election?

The Supreme Court held in a 5-4 ruling that the Guantánamo detainees have a constitutional right to habeas corpus, and that the scheme for reviewing 'enemy combatant' designations under the Combatant Status Review Tribunals is an inadequate substitute for habeas corpus, a result I predicted in a December 3, 2007 article.

Guantánamo detainees have constitutional right to habeas corpus

Article 1, Section 9, Clause 2 of the Constitution is known as the Suspension Clause. It reads, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." In section 7(a) of the Military Commissions Act of 2006, Congress purported to strip habeas rights from the Guantánamo detainees by amending the habeas corpus statute (28 U.S.C.A. § 2241(e)). In Boumediene, the Court held that section of the Act to be unconstitutional, declaring that the detainees still retained the constitutional right to habeas corpus.

Justice Kennedy, writing for the majority, reiterated the Court's finding in Rasul v. Bush that although Cuba retains technical sovereignty over Guantánamo, the United States exercises complete jurisdiction and control over its naval base and thus the Constitution protects the detainees there. Kennedy rejected "the necessary implication" of Bush's position that the political branches could "govern without legal restraint" by locating a U.S. military base in a country that retained formal sovereignty over the area. In his dissent, Chief Justice Roberts flippantly characterized Guantánamo as a "jurisdictionally quirky outpost."

Kennedy worried that the political branches could "have the power to switch the Constitution on or off at will" which "would lead to a regime in which they, not this Court, say 'what the law is.'" "Even when the United States acts outside its borders," Kennedy wrote, "its powers are not 'absolute and unlimited' but are subject 'to such restrictions as are expressed in the Constitution.'"

Thus, Kennedy observed, "the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers." Indeed, habeas corpus was one of the few individual rights the Founding Fathers wrote it into the original Constitution, years before they enacted the Bill of Rights.

"The test for determining the scope of [the habeas corpus] provision," Kennedy wrote, "must not be subject to manipulation by those whose power it is designed to restrain." It is such manipulation that Laura Ingraham would perpetuate. It was a Republican-controlled Congress, working hand-in-glove with Bush, that tried to strip habeas corpus rights from the Guantánamo detainees in the Military Commissions Act. The Supreme Court has determined that effort to be unconstitutional. Fulfilling its constitutional duty to check and balance the other two branches, the Court has carried out its mandate to interpret the Constitution and say "what the law is."

No adequate substitute for habeas corpus

Finding that the Guantánamo detainees retained the constitutional right to habeas corpus, the Court turned to the issue of whether there was an adequate substitute for habeas review. Bush established Combatant Status Review Tribunals ("CSRTs") to determine whether a detainee is an "enemy combatant." These kangaroo courts provide no right to counsel, only a "personal representative," who owes no duty of confidentiality to his client and often doesn't even advocate on behalf of the detainee; one even argued the government's case. The detainee doesn't have the right to see much of the evidence against him and is very limited in the evidence he can present.

The CSRTs have been criticized by military participants in the process. Lt. Col. Stephen Abraham, a veteran of U.S. intelligence, said they often relied on "generic" evidence and were set up to rubber-stamp the "enemy combatant" designation. When he sat as a judge in one of the tribunals, Abraham and the other two judges - a colonel and a major in the Air Force - "found the information presented to lack substance" and noted that statements presented as factual "lacked even the most fundamental earmarks of objectively credible evidence." After they determined there was "no factual basis" to conclude the detainee was an enemy combatant, the government pressured them to change their conclusion but they refused. Abraham was never assigned to another CSRT panel. It is widely believed that Abraham's affidavit about the shortcomings of the CSRT's in Boumediene's companion case caused the Supreme Court to reverse its denial of certiorari and agree to review Boumediene. This was the first time in 60 years the Court had so reversed itself.

While the Court declined to decide whether the CSRTs satisfied due process standards, it concluded that "even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal's findings of fact." The Court then had to determine whether the procedure for judicial review of the CSRTs' "enemy combatant" designations constituted an adequate substitute for habeas corpus review.

"For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context," Kennedy wrote, "the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government's evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding."

But in the Detainee Treatment Act ("DTA"), Congress limited district court review of the CSRT determinations to whether the CSRT complied with its own procedures. The district court had no authority to hear newly discovered evidence or make a finding that the detainee was improperly designated as an enemy combatant.

The Supreme Court noted that "when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner's release." Since the DTA's scheme for reviewing determinations of the CSRTs did not afford this authority, the Court held it was not an adequate substitute for habeas corpus and thus section 7 of the Military Commissions Act acted as "an unconstitutional suspension of the writ."

Boumediene will not imperil the United States

In his dissent, Justice Scalia sounded the alarm that the Boumediene decision "will almost certainly cause more Americans to be killed." Likewise, the Wall St. Journal editorialized, "We can say with confident horror that more Americans are likely to die as a result." Their predictions, however, are not based in fact.

Lakhdar Boumediene and five other Algerian detainees from Bosnia were accused of threatening to blow up an embassy in Bosnia. The Supreme Court of Bosnia and Herzegovina concluded there was no evidence to continue to detain them and ordered them released. The Bosnian officials turned them over to the United States and they were transported to Guantánamo, where they have languished since 2002.

Many of the men and boys at Guantánamo were sold as bounty to the U.S. military by the Northern Alliance or warlords for $5,000 a head. Indeed, Maj. Gen. Jay Hood, the former commander at Guantánamo, admitted to the Wall St. Journal, "Sometimes we just didn't get the right folks," but innocent men remain detained there because "[n]obody wants to be the one to sign the release papers . . . there's no muscle in the system."

The Boumediene decision will not directly impact the criminal cases against Khalid Sheikh Mohammed and the few others who will be tried in the military commissions. It is the 211 men who have filed habeas corpus petitions challenging their "enemy combatant" designations who will benefit from this ruling. No one will be automatically released. They will simply be afforded a fair hearing. Most Americans would not object to a requirement that our government fairly prove someone guilty before we imprison him indefinitely.

Even Justice Jackson, the chief prosecutor at Nuremberg, advocated due process for the Nazi leaders. "The ultimate principle," he said, "is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty." Jackson understood the importance of the presumption of innocence in our system of law.

Kennedy quoted Alexander Hamilton, who wrote in Federalist 84 that "arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny." Justice Souter cut to the chase in his separate opinion, citing "the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years." None of them has been charged with a crime and none has been brought before a fair and impartial judge.

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times." Kennedy wrote. "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law."

"Security subsists, too, in fidelity to freedom's first principles," according to Kennedy. "Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers ... Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person."

In responding to Laura Ingraham's false dichotomy between keeping us safe and protecting habeas corpus, I cited Benjamin Franklin's admonition: "They who would give up an essential liberty for temporary security, deserve neither liberty or security."

Attacking judges under guise of national security

The Boumediene decision split along political lines with the four so-called liberal justices - Ginsburg, Stevens, Souter and Breyer - in the majority, and the four conservative justices - Scalia, Thomas, Roberts and Alito - in the dissent. Kennedy, the swing vote, broke the tie. Curt Levy from the Committee for Justice, which seeks to pack the courts with right-wing judges, blogged that Boumediene has "teed up the Supreme Court issue nicely for the G.O.P."

Indeed, John McCain has already seized upon it as a campaign issue. The day the opinion came out, McCain said, "It obviously concerns me . . . but it is a decision the Supreme Court has made. Now we need to move forward. As you know, I always favored closing of Guantánamo Bay and I still think that we ought to do that." By the next day, McCain had changed his tune. "The Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country," he declared. McCain, who hopes to overcome the unpopularity of his positions on the war and the economy, will make national security the centerpiece of his campaign.

Barack Obama, who links our national security with how other nations view us, characterized the Boumediene decision as "an important step toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus."

It is very likely that the next president will make at least one nomination, and probably two, to the Supreme Court. Boumediene is the poster child for how delicately the Court is now balanced, and the disastrous consequences to the doctrine of separation-of-powers that await us if a President McCain makes good on his promise to appoint judges in the mold of Roberts and Alito.

(The views expressed in this article are solely those of the writer; she is not acting on behalf of the National Lawyers Guild or Thomas Jefferson School of Law)

Read on >>

The Unitary King George

As the nation focused on whether Congress would exercise its constitutional duty to cut funding for the war, Bush quietly issued an unconstitutional bombshell that went virtually unnoticed by the corporate media.

The National Security and Homeland Security Presidential Directive, signed on May 9, 2007, would place all governmental power in the hands of the President and effectively abolish the checks and balances in the Constitution.

If a "catastrophic emergency" - which could include a terrorist attack or a natural disaster - occurs, Bush's new directive says: "The President shall lead the activities of the Federal Government for ensuring constitutional government."

What about the other two co-equal branches of government? The directive throws them a bone by speaking of a "cooperative effort" among the three branches, "coordinated by the President, as a matter of comity with respect to the legislative and judicial branches and with proper respect for the constitutional separation of powers." The Vice-President would help to implement the plans.

"Comity," however, means courtesy, and the President would decide what kind of respect for the other two branches of government would be "proper." This Presidential Directive is a blatant power grab by Bush to institutionalize "the unitary executive."

A seemingly innocuous phrase, the unitary executive theory actually represents a radical, ultra rightwing interpretation of the powers of the presidency. Championed by the conservative Federalist Society, the unitary executive doctrine gathers all power in the hands of the President and insulates him from any oversight by the congressional or judicial branches.

In a November 2000 speech to the Federalist Society, then Judge Samuel Alito said the Constitution "makes the president the head of the executive branch, but it does more than that. The president has not just some executive powers, but the executive power -- the whole thing."

These "unitarians" claim that all federal agencies, even those constitutionally created by Congress, are beholden to the Chief Executive, that is, the President. This means that Bush could disband agencies like the Federal Communications Commission, the Food and Drug Administration, the Federal Reserve Board, etc., if they weren't to his liking.

Indeed, Bush signed an executive order stating that each federal agency must have a regulatory policy office run by a political appointee. Consumer advocates were concerned that this directive was aimed at weakening the Environmental Protection Agency and the Occupational Safety and Health Administration. The unitary executive dogma represents audacious presidential overreaching into the constitutional province of the other two branches of government.

This doctrine took shape within the Bush administration shortly after 9/11. On September 25, 2001, former deputy assistant attorney general John Yoo used the words "unitary executive" in a memo he wrote for the White House: "The centralization of authority in the president alone is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch." Six weeks later, Bush began using that phrase in his signing statements.

As of December 22, 2006, Bush had used the words "unitary executive" 145 times in his signing statements and executive orders. Yoo, one of the chief architects of Bush's doctrine of unfettered executive power, wrote memoranda advising Bush that because he was commander in chief, he could make war any time he thought there was a threat, and he didn't have to comply with the Geneva Conventions.

In a 2005 debate with Notre Dame professor Doug Cassel, Yoo argued there is no law that could prevent the President from ordering that a young child of a suspect in custody be tortured, even by crushing the child's testicles.

The unitary executive theory has already cropped up in Supreme Court opinions. In his lone dissent in Hamdi v. Rumsfeld, Justice Clarence Thomas cited "the structural advantages of a unitary Executive." He disagreed with the Court that due process demands an American citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker. Thomas wrote, "Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive."

Justice Thomas's theory fails to recognize why our Constitution provides for three co-equal branches of government.

In 1926, Justice Louis Brandeis explained the constitutional role of the separation of powers. He wrote, "The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy."

Eighty years later, noted conservative Grover Norquist, describing the unitary executive theory, echoed Brandeis's sentiment. Norquist said, "you don't have a constitution; you have a king."

One wonders what Bush & Co. are setting up with the new Presidential Directive. What if, heaven forbid, some sort of catastrophic event were to occur just before the 2008 election? Bush could use this directive to suspend the election. This administration has gone to great lengths to remain in Iraq. It has built huge permanent military bases and pushed to privatize Iraq's oil. Bush and Cheney may be unwilling to relinquish power to a successor administration.

Read on >>

Coming Up Short on Habeas for Detainees

The Bush administration has stopped the Supreme Court from giving the Guantánamo detainees their day in court - at least for now.

In Boumediene v. Bush and Al Odah v. United States, 45 men challenged the constitutionality of the habeas corpus-stripping provision of the Military Commissions Act that Congress passed last year.

On Monday Justices Stephen Breyer, David Souter and Ruth Bader Ginsburg fell one vote short of the four needed to grant review of the lower court decision which went against the detainees. It was no surprise that Justices John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas voted to deny review.

Two justices - John Paul Stevens and Anthony Kennedy - declined review on procedural grounds, saying the detainees had to exhaust their remedies before appealing to the high court. That means they must first go through the appeals process of the Combatant Status Review Tribunals (CSRTs).

The CSRTs are used to determine whether a detainee is an unlawful enemy combatant. They deny basic due process protections such as the rights to counsel, to see evidence, and to confront adverse witnesses.

The procedure for challenging a CSRT decision is found in the Detainee Treatment Act (DTA). It is limited to determining whether the decision was consistent with the CSRT's standards and procedures, and whether the use of those standards and procedures was legal and constitutional.

There are two issues the Supreme Court would have to decide if it did review this case. First, do the Guantánamo detainees have a constitutional right to habeas corpus? In 2004, the Court held in Rasul v. Bush that the habeas statute applied to those detainees because the United States maintains complete jurisdiction and control over Guantánamo.

Second, even if the Court applied its Rasul reasoning to constitutional habeas corpus, it would then need to determine whether the procedure for contesting Combatant Status Review Tribunal decisions constitutes an adequate substitute for habeas corpus.

It should have been a no-brainer for Justices Stevens and Kennedy to vote to hear this case. The DTA's review procedures cannot cure the sub-standard standards of the Combatant Status Review Tribunals.

Since Justice Stevens authored the Court's two prior decisions upholding rights for the Guantánamo detainees, his vote in this case is puzzling. But if he provided the fourth vote for review, there's no guarantee he could garner the five votes needed to overturn the lower court ruling. Justices Stevens and Kennedy left open the option of future review if "the government has unreasonably delayed proceedings" or causes the detainees "some other and ongoing injury." Justice Stevens evidently thought it prudent to side with Justice Kennedy at this point to cultivate the latter's vote on the merits down the road.

Meanwhile, the detainees languish in confinement that could last the rest of their lives if they are denied the right to have a U.S. judge hear their habeas corpus petitions. Of the 755 men and boys held at Guantánamo in the past five years, Bush has called only 14 of them "high value detainees." Just 10 - not including any of the 45 men appealing the current case - have been charged with a crime.

Although the Supreme Court has stood up to the Bush administration in the past, it is precariously balanced and cannot be relied upon to consistently provide justice. Congress has finally shown the will to challenge the Bush agenda - on the Iraq war, and the U.S. Attorney firing scandal. The ball is in Congress's court to rescind the habeas-stripping provisions of the Military Commissions Act.

Read on >>

Alito Sounds Death Knell for Individual Rights

Yesterday, the Senate Judiciary Committee began its confirmation hearings on the nomination of Samuel Alito for Associate Justice of the Supreme Court.

Alito is no John Roberts. Whereas Roberts had barely been a judge for two years when Bush nominated him for the Supreme Court, Alito has authored 361 opinions during his 15-year tenure on the federal court bench. Whereas Roberts is photogenic, with a winning smile, Alito is stiff and awkward before the cameras. Most significantly, whereas Roberts replaced Chief Justice William Rehnquist, who had a similar judicial philosophy, Alito would take the place of Justice Sandra Day O'Connor, who provided the swing vote 77 percent of the time.

If confirmed, Alito would tip the high court's delicate balance radically to the right. Nearly always favoring the government, corporations and universities, Alito has ruled against individual rights in 84 percent of his dissents.

In a 196-page report released last week, the Alliance for Justice (AFJ) determined that in split decisions - the "difficult cases" - "the reasoning Judge Alito employs and the results he reaches are not balanced. Rather," the report found, "they track the staunchly conservative political and legal views he expressed in his 1985 application to be Deputy Assistant Attorney General for the Office of Legal Counsel in President Reagan's Justice Department."

Alito's 1985 application stresses his commitment to federalism (states' rights), his view that "the Constitution does not protect a right to an abortion," and his disagreement with the criminal procedure, reapportionment (one-man, one-vote), and Establishment Clause (church-state separation) decisions of the Warren Court.

The members of the Senate Judiciary Committee drew clear lines in yesterday's session. Although abortion was a significant concern for three senators from each party, the limitation on executive power was a much more prominent theme during the opening statements.

Six Democratic senators, as well as committee chairman Sen. Arlen Specter (R-Pa.), expressed alarm at the recent revelation that Bush has been secretly spying on Americans since 2002. Five Democrats made reference to O'Connor's opinion for the Court in Hamdi v. Rumsfeld: "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

Alito's record reveals that he "has been extraordinarily deferential to the exercise of government power, especially executive branch power, except in cases involving alleged infringements on religious expression," according to the AFJ. His "judicial record strongly suggests that he will ... interpret the Constitution as giving the president greater authority to evade Congressional statutes and constitutional limitations whenever deemed essential to national security."

Indeed, in a memorandum he wrote as a lawyer in the Reagan Justice Department, Alito argued that the attorney general should receive absolute immunity from lawsuits when he illegally wiretaps Americans. The Supreme Court rejected Alito's view in a 1985 decision.

Alito also advocated that the president make a "signing statement" indicating what he thinks the law means when he signs a bill. Even though the Constitution grants the lawmaking power only to Congress, and thus courts look to congressional intent to interpret statutes, Alito hoped that the president could divert the courts' focus away from congressional intent in favor of what he called "the President's intent."

George W. Bush has issued at least 108 such "signing statements," according to the Washington Post. Most recently, Bush qualified his concurrence with the McCain amendment that outlaws torture and cruel, inhuman or degrading treatment, implying that he would be free to torture if he felt it was necessary for national security.

In 2000, Alito told a Federalist Society meeting that he was a strong proponent of the "unitary executive," which means that all federal executive power resides in the president. This theory would reject discretionary executive power of independent agencies Congress has created since the New Deal, such as the Securities and Exchange Commission, the Federal Communications Commission, and the Federal Reserve Board.

Alito argued in other memoranda that the Federal Bureau of Investigation should have broad latitude to investigate federal employees, and that an American Bar Association opinion prohibiting lawyers from secretly taping conversations should not prevent IRS lawyers from secretly taping as part of a federal criminal investigation.

Although the senators only touched on Alito's alarming civil rights record in yesterday's session, one would hope they would fully inquire into this area during the questioning.

In split decisions on claims involving violations of the civil rights of women, racial minorities, seniors and the disabled, Alito almost uniformly ruled against the claimants.

As America mourns the deaths of the 12 miners in West Virginia, we are reminded of the importance of mine safety regulations. Yet Alito disagreed with the Department of Labor and would not have applied mine safety rules to an area of a defunct Pennsylvania mine from which the company was still extracting materials to process into energy.

Sen. Edward Kennedy (D-Mass.) has raised the issue of Alito's credibility. Although he promised the Senate Judiciary Committee in his 1990 confirmation hearing for the Court of Appeals that he would recuse himself from cases involving Vanguard companies, in which he had substantial financial investments, Alito subsequently proceeded to sit on a Vanguard case. And on his 1985 job application, Alito boasted of his membership in the ultraconservative Concerned Alumni of Princeton, which opposed co-education and affirmative action. Yet he now denies any memory of being in that group.

In his opening statement, Alito told the senators, "A judge can't have any agenda. A judge can't have any preferred outcome in any particular case."

Yet Sen. Chuck Schumer (D-NY) advised Alito, "We need to know that presidents and paupers will receive equal justice in your courtroom. If the records showed that an umpire repeatedly called 95 percent of pitches strikes when one team's players were up and repeatedly called 95 percent of pitches balls when the other team's players were up, one would naturally ask whether the umpire was being impartial and fair." Schumer observed, "The president is not a king, free to take any action he chooses without limitation by law. The court is not a legislature, free to substitute its own judgment for that of elected bodies. And the people are not subjects, powerless to control their own most intimate decisions."

Sen. Patrick Leahy (D-Vt.) said, "It's important to know whether [Alito] would serve with judicial independence or as a surrogate for the president nominating him." Sen. Russ Feingold (D-Wis.) declared, "We need judges on the bench who will ensure that the judicial branch of government is the independent check on executive power that the Constitution requires and that the American people expect. And in these days of corruption investigations and indictments in Washington, we also need judges who are beyond ethical reproach."

We will see during the questioning whether the senators will indeed hold Samuel Alito's feet to the fire, and demand that he forthrightly state his beliefs on the critical issues. Sen. Dianne Feinstein (D-Calif.) correctly noted that Alito's nomination is a "pivotal" one in the history of this country.

Read on >>

The Death Penalty Is Not Pro-Life

In 1960, California Governor Edmund G. "Pat" Brown agonized about whether to grant clemency to death row inmate Caryl Chessman. Brown's refusal to commute Chessman's sentence haunted him for the rest of his life. He reversed 23 death judgments in the last 7 years of his term. Ronald Reagan, who defeated Brown in the 1966 gubernatorial election, used the death penalty as a weapon to unseat the incumbent governor.

Twenty years later, Rose Bird, one of the greatest chief justices ever to serve on the California Supreme Court, lost her confirmation election largely because of the way she voted in death penalty cases. In all 64 capital cases that came before her during her tenure, Bird voted to overturn every one. Her court as a whole reversed 61. Some of Bird's supporters advised her to affirm just one death verdict in order to win confirmation. Bird refused. She said, "It is easy to be popular. It is not easy to be just."

Republican Governor George Deukmejian and President Ronald Reagan both campaigned against Bird. "The defeat of Rose Bird was significant because it created a new danger in [California], the danger of politicizing a judicial branch that had not previously been subject to political pressures," Court of Appeals Justice J. Anthony Kline observed. Reagan's opposition to judges who "save the lives of killers" helped him in his bid for the presidency.

The fate of Stanley Tookie Williams now rests in the hands of California Governor Arnold Schwarzenegger. The governor is damned if he does and damned if he doesn't spare Williams's life. On the one hand, Schwarzenegger is under pressure from right-wing Republicans to refuse clemency. But there's also high-profile pressure on him in California to grant clemency and prove his campaign claims that he really is a moderate.

When Schwarzenegger denied clemency to Donald Beardslee, the governor was the subject of a mighty backlash in his native Austria, which has outlawed the death penalty. And he must deal with his conscience, much like Pat Brown did in 1960. Schwarzenegger said the Beardslee decision was "the hardest day" of his life.

If ever there was a condemned man who deserved clemency, Williams is the one. A co-founder of the Crips gang, Williams has undergone a remarkable transformation in the 24 years he has been in prison. The author of several children's books that decry gang violence (65,000 have been sold to schools and libraries), Williams has been nominated for the Nobel Peace Prize.

In 1993, Williams videotaped a message from death row supporting a truce between the Crips and the Bloods. He said, "Working together, we can put an end to this cycle that creates deep pain in the hearts of our mothers, our fathers, and our people, who have lost loved ones to this senseless violence." The videotape was shown during a peace summit meeting attended by over 400 gang members. If Schwarzenegger refuses Williams's plea, what message will it send to our children?

By granting clemency to Williams, Schwarzenegger would affirm the ideal of rehabilitation he claims to favor. A governor's pardon of Williams would signal that people can be redeemed, that mercy, not just retribution, is a worthy goal. "I have a despicable background," Williams said. "I was a criminal. I was co-founder of the Crips. I was a nihilist. But people forget that redemption is tailor-made for the wretched."

But even if Schwarzenegger pardons Stanley Tookie Williams, we must ask ourselves if we want to continue to engage in the state-sponsored killing of our people. "The reason to oppose capital punishment," the Los Angeles Times wrote in a recent editorial, "has to do with who we are, not who death row inmates are. The death penalty is inappropriate in all situations because it is unbefitting of a civilized society. Williams' case, though poignant, is irrelevant to this argument."

As it deliberates the nomination of Judge Samuel Alito, the Senate must also deal with what it means to be "pro-life." Alito, who claims to be pro-life when it comes to abortion, is pro-death when it comes to the death penalty.

During his tenure on the Court of Appeals, Alito has shown little solicitude for death row inmates bringing habeas corpus petitions, particularly claims based on ineffective assistance of counsel and racial discrimination in jury selection. His positions in these cases run contrary to recent Supreme Court decisions emphasizing the importance of both race-neutral jury selection and constitutionally adequate counsel.

In 2001, Alito voted to affirm the death judgment of an African-American man convicted by an all-white jury in Delaware. The prosecutor had struck all prospective African-American jurors from the jury pool. That same prosecutor had struck every prospective African-American juror in 3 other capital murder trials in the same county during the prior year. When Alito refused to infer racial discrimination from that pattern, he said, flippantly, "Although only about 10% of the population is left-handed, left-handers have won five of the last six presidential elections ... But does it follow that the voters cast their ballots based on whether a candidate was right- or left-handed?"

A majority of the full court accused Alito of "minimiz[ing] the history of discrimination against prospective black jurors and black defendants."

Stanley Tookie Williams, an African-American, was also convicted and sentenced to death by a jury cleansed of all prospective African-American jurors by the prosecutor, based on the testimony of paid police informants. Williams maintains his innocence.

If confirmed as a Supreme Court justice, Alito would have a powerful influence over whether many of our citizens live or die. In the past 5 years, the Court decided only 3 cases concerning abortion, but over 3 dozen involving the death penalty.

Capital cases are complex and often laden with error. A recent study at Columbia University found that 67 percent of death penalty cases had been reversed for serious constitutional error. Recurring features in these cases include prosecutorial or police misconduct; the use of unreliable witness testimony, physical evidence, or confessions; and inadequate defense representation. There is a growing number of cases where DNA or other evidence has proved conclusively that death row inmates are factually innocent. In some cases, that evidence has surfaced too late - after innocent people have already been executed.

The United States is the only industrialized Western democracy that still executes its citizens. In 2004, 97 percent of all known executions took place in China, Iran, Vietnam and the United States. Several major international human rights treaties eschew the death penalty. None of the 3 international criminal tribunals - the International Criminal Court, the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda - permit the death penalty as a sentencing option for the most heinous of crimes over which they have jurisdiction.

Scientific studies have consistently failed to find convincing evidence that that the death penalty deters crime more effectively than other punishments, according to Amnesty International.

"The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality," US Supreme Court Justice Arthur L. Goldberg wrote in a 1976 article in the Boston Globe. We must not be a society that rewards the meanest judges and elected officials. Let us choose and affirm life, not death.

Read on >>

Bush Taps "Scalia-Lite" to Replace O'Connor

On the day we honored Rosa Parks, Mother of the Civil Rights Movement, George W. Bush appointed a white male to replace Sandra Day O'Connor on the Supreme Court. Evidently unable to find a woman or Latino sufficiently "qualified" to sit on the high court, Bush reached deep into the trough of right-wing federal judges and pulled out Samuel Alito.

On Friday, at 12:40 p.m., the same hour that Patrick Fitzgerald announced the indictment of I. Lewis "Scooter" Libby, Bush called Alito. Desperate to stop the hemorrhaging from the withdrawal of Harriet Miers, the grim revelation that the 2000th American soldier had died in his unnecessary war in Iraq, and the pending indictment of a principal White House neocon, Bush tapped a judge adored by the right wing.

The conservatives' giddy reaction to the nomination of "Scalito" or "Scalia-Lite," as Alito is frequently called because of his affinity with Antonin Scalia, stands in stark contrast to that of the more moderate Miers. His record tracks the right-wing agenda.

Alito would gut abortion rights if given the chance. As a judge on the Third US Circuit Court of Appeals in Philadelphia, he voted in Planned Parenthood v. Casey in 1991 to uphold a Pennsylvania law that included a provision requiring women seeking abortion to notify their spouses. When the case reached the Supreme Court, the justices used it to reaffirm Roe v. Wade. Justice O'Connor wrote the decision, which struck down the state's spousal notification requirement. In his dissent in Casey, Chief Justice William Rehnquist quoted Alito's dissent from the lower court opinion.

But Alito's right-wing bona fides don't stop there. Alito engages in "judicial restraint" - the right wing's stated litmus test - only when the conservative ends justify the means. He showed little restraint when he voted to scuttle Congress's intent by making it much harder for civil rights plaintiffs to prove sex and race discrimination. In one case, Alito's colleagues on the Third Circuit observed that the federal law prohibiting employment discrimination "would be eviscerated if our analysis were to halt where [Judge Alito] suggests."

Alito voted to invalidate part of the Family and Medical Leave Act, which guarantees most workers up to 12 weeks of unpaid leave to care for a loved one. The 2003 Supreme Court decision in Nevada v. Hibbs upheld the FMLA, essentially reversing a 2000 opinion by Alito which found that Congress had exceeded its power in passing the law.

In Erienet v. Velocity Net, Alito dissented from an opinion that makes it easier for consumers to get relief in state courts for violation of the Telephone Consumer Protection Act.

Samuel Alito has also shown hostility to privacy rights by supporting the unauthorized strip searches of women and children who are not named in a search warrant. He voted to uphold the strip search of a mother and her 10-year-old daughter in Doe v. Groody in 2004. That vote drew harsh criticism from Bush's current Homeland Security Director Michael Chertoff, who was on the Third Circuit at the time. Chertoff accused Alito of rubber-stamping police misconduct. Alito's excessive deference to executive power in Groody could signal his willingness to defer to the power of the executive in Bush's wars on Iraq, terror and civil liberties. This is cause for great concern.

In 2001, Alito authored a decision that struck down a public school district's policy that prohibited harassment against students based on their sexual orientation. The policy focused on harassment that might interfere with a student's educational performance or create an intimidating, hostile or offensive environment. But Alito ruled this policy was unconstitutional because it could cover "simple acts of teasing and name-calling."

Alito pandered to the gun lobby when he voted to strike down a federal law prohibiting the possession of machine guns. His position led Alito's colleagues to accuse him of disrespecting the considered decision of Congress by requiring it to "play 'Show and Tell' with the federal courts."

Several progressive organizations, including the National Lawyers Guild (NLG), the AFL-CIO, NARAL-Pro Choice America, the Alliance for Justice, MoveOn.org and the Leadership Conference on Civil Rights are opposing the Alito nomination. NLG President Michael Avery stated, "Judge Alito's record on the Third Circuit Court of Appeals is replete with examples of how his extremely conservative views have led to decisions that ignore the legitimate interests of women, families, people of color, consumers and working people. These decisions run contrary to established Supreme Court precedent and the will of the Congress."

Alliance for Justice President Nan Aron said, "If confirmed to the pivotal O'Connor seat, Judge Alito would fundamentally change the balance of the Supreme Court, tipping it in a direction that could jeopardize our most cherished rights and freedoms." Karen Pearl, interim president of Planned Parenthood Federation of America, agreed. Alito's confirmation "would radically transform the Supreme Court and create a direct threat to the health and safety of American women," she said.

Key Democrats immediately stepped up to the plate and challenged the Alito nomination. Senate Democratic Leader Harry Reid said, "Conservative activists forced Miers to withdraw from consideration for this same Supreme Court seat because she was not radical enough for them. Now the Senate needs to find out if the man replacing Miers is too radical for the American people." Reid also criticized Bush's selection of another white male: "This appointment ignores the value of diverse backgrounds and perspectives on the Supreme Court. The President has chosen a man to replace Sandra Day O'Connor, one of only two women on the Court. For the third time, he has declined to make history by nominating the first Hispanic to the Court ... President Bush would leave the Supreme Court looking less like America and more like an old boys club."

Senator Patrick Leahy said, "Judge Alito's record on the bench demonstrates that he would go to great lengths to restrict the authority of Congress to enact legislation to protect civil rights and the rights of workers, consumers and women. Judge Alito has also set unreasonably high standards that ordinary Americans who are the victims of discrimination must meet before being allowed to proceed with their cases."

Other Democrats have reacted similarly. Senator Ted Kennedy said, "If confirmed, Alito could very well fundamentally alter the balance of the court and push it dangerously to the right, placing at risk decades of American progress in safeguarding our fundamental rights and freedoms." Senator Charles Schumer observed, "It's sad that [Bush] felt he had to pick a nominee likely to divide America." Senator John Kerry asked, "Has the right wing now forced a weakened President to nominate a divisive justice in the mold of Antonin Scalia?" And Senator Barack Obama said, "President Bush has ... made a selection to appease the far right wing of the Republican Party."

The precariously balanced Supreme Court will tip to the right if Alito is confirmed. Larry Lusberg, a former federal prosecutor who has known Alito for 22 years, affirms: "Make no mistake: he will move the court to the right, and this confirmation process is really going to be a question about whether Congress and the country want to move this court to the right."

With his nomination of Samuel Alito, Bush has thrown down the gauntlet. Although many Democrats are vociferous in their displeasure, it is not clear that 41 of them will agree to a filibuster. Several must stand for election next year in red states, and Alito's intellect and credentials - notwithstanding his radical ideology - may sway them in his direction. If the Democrats do filibuster, it will force the Republicans to use the "nuclear option" to override the time-honored filibuster for the first time.

As the Libby indictment continues to put on trial the lies on which the Iraq war was based, Bush's agenda - including the Alito nomination - may be hobbled.

Read on >>

Alito Threatens Dr. King's Dream

Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.
-Dr. Martin Luther King Jr., Letter from a Birmingham Jail

During his confirmation hearing for the Supreme Court, Samuel Alito Jr. pledged allegiance to the principle of one man-one vote and denied he was a bigot. It is astonishing that these issues even entered our national discourse in 2006. But it is Alito's record, both as a member of the Reagan administration and as a judge on the Court of Appeals, that raises allegations of racism. And it is that same record that betrays Dr. King's values and threatens the future of civil rights in this country if Alito is confirmed to the high court.

In his 1985 application for a job in the Reagan Justice Department, Alito noted that he became interested in constitutional law "in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment." The reapportionment cases that upset him were the landmark decisions that affirmed the bedrock principle of our democracy: one person-one vote.

Fred Gray, the veteran civil rights lawyer who represented Dr. King and Rosa Parks, testified at Alito's hearing. "As one who has been in the trenches and still is in the trenches," Gray told the senators, "I appear today to attest to the tremendous importance of the reapportionment cases - those cases decided by the Warren Court, one of which I actually litigated and was my brainchild, Gomillion versus Lightfoot ... The cases illuminate the inequities of mal-apportionment which deprived African Americans of voting strength across the nation. In my view, there is no more important body of law than that generated in the field of voter registration and in civil and human rights." Gray testified, "I am troubled, extremely troubled, by Judge Alito's comments made in his application, notwithstanding his testimony before this committee ... A nominee to the Supreme Court who has a judicial philosophy that's set against the Warren Court and against the reapportionment cases is in effect saying that he would turn the clock back."

Indeed, when Alito became a judge, he ruled against minority voters who claimed a school board voting plan illegally diluted their voting strength. If he is confirmed, Alito will vote on a series of cases alleging minority vote dilution now pending before the Supreme Court.

Moreover, certain important provisions of the Voting Rights Act that have enhanced the opportunities for African Americans and other minority groups to vote effectively are set to expire next year, unless Congress renews them. These special provisions allow for significant federal oversight of state and local voting functions for jurisdictions deemed to have the worst and most persistent histories of voting discrimination against their minority populations. This heightened oversight is intended to identify and prevent proposed voting changes that worsen the position of minority voters, or to deter covered jurisdictions from proposing such voting changes.

For example, section 5 of the act requires certain covered states and political subdivisions to obtain federal or judicial preapproval or "preclearance" of any voting law changes or practices before they can legally take effect. This oversight has resulted in the detection and prohibition of several harmful voting laws and practices. Appeals of district court decisions on these preclearance provisions go directly to the Supreme Court.

Alito will have the opportunity to rule on section 5 preclearance issues, and may also review the 2007 congressional renewal of the act's special provisions.

Besides his astounding statement opposing reapportionment, Alito also proudly touted his membership in the Concerned Alumni of Princeton in the same job application. CAP was formed to maintain Princeton as a white male college. It complained that increased numbers of "women and minorities will largely vitiate the alumni body of the future."

In spite of his avowed pride in being a CAP member, Alito denied any memory of the group after he was nominated for the Supreme Court. His amnesia is particularly surprising in light of his vast recall of the details of the myriad cases on his court's docket.

Alito's judicial record in civil rights cases corroborates his bias. In all split decisions in cases alleging race and sex discrimination, Alito voted against the claimants. His dismal record led the NAACP Legal Defense and Education Fund, the Hispanic Caucus Civil Rights Task Force, and the National Bar Association to oppose Alito's confirmation.

The mainstream media has fixated on Martha Alito's tearful exit from the hearing after Republican Senator Lindsey Graham's defensive rhetorical question about whether her husband was a "closet bigot." Unfortunately, that dramatic film clip obscured the merits of the issue.

Samuel Alito's record on and off the bench shows a consistent pattern of bigotry - a pattern that promises to continue once he becomes a justice of the Supreme Court. Senators from both parties who truly seek to realize the dream of Dr. Martin Luther King Jr. have a solemn obligation to filibuster and defeat Alito's nomination.

Read on >>