From the NYT:
The Supreme Court ruled on Monday, in a case with enormous implications for workplaces across the country, that white firefighters in New Haven suffered unfair discrimination because of their race when the city scrapped the results of a promotional exam.
“The city’s action in discarding the tests violated Title VII,” the court held in a 5-to-4 decision, referring to a section of the Civil Rights Act of 1964. The majority said the city’s fundamental arguments were “blatantly contradicted by the record.”
Monday’s decision in Ricci v. DeStefano, No. 07-1428, came on the last day of the court’s term and was one of the most closely watched discrimination cases in years. The ruling is sure to be closely studied by personnel departments and their lawyers for indications of how far employers can go, and under what circumstances, in considering race in decisions on hiring and promotion.
Monday, June 29, 2009
Friday, June 26, 2009
Expanding the 6th Amendment's Confrontation Clause
Another Supreme Court decision. From the NYT:
Crime laboratory reports may not be used against criminal defendants at trial unless the analysts responsible for creating them give testimony and subject themselves to cross-examination, the Supreme Court ruled Thursday in a 5-to-4 decision.
The ruling was an extension of a 2004 decision that breathed new life into the Sixth Amendment’s confrontation clause, which gives a criminal defendant the right “to be confronted with the witnesses against him.”
Four dissenting justices said that scientific evidence should be treated differently than, say, statements from witnesses to a crime. They warned that the decision would subject the nation’s criminal justice system to “a crushing burden” and that it means “guilty defendants will go free, on the most technical grounds.”
- Read the decision here.
- Background from Scotuswiki.
Crime laboratory reports may not be used against criminal defendants at trial unless the analysts responsible for creating them give testimony and subject themselves to cross-examination, the Supreme Court ruled Thursday in a 5-to-4 decision.
The ruling was an extension of a 2004 decision that breathed new life into the Sixth Amendment’s confrontation clause, which gives a criminal defendant the right “to be confronted with the witnesses against him.”
Four dissenting justices said that scientific evidence should be treated differently than, say, statements from witnesses to a crime. They warned that the decision would subject the nation’s criminal justice system to “a crushing burden” and that it means “guilty defendants will go free, on the most technical grounds.”
- Read the decision here.
- Background from Scotuswiki.
C Street
An interesting story from the Wapo on a unique residence for a handful of members of Congress.
Extra Credit Opportunity: Ning
I set up a Ning account a few months back, but gave it up because I though I was stretching the limits of what I should offer web-wise. Some lecture students have been wondering abut extra credit so I think I'll give it another shot.
Just so you know, Ning is a social network site, much like Facebook, but it allows for a network to be formed for a more limited groups of people--like students in my government classes. I've wanted to see if this would provide a convenient forum for back and forth exchanges, and I think it can, but it requires a lot of tlc.
If you'd like to give it a shot, click on the link on the right hand column and weigh in on an issue I post. Feel free to give me advice about what types of issues I should ask questions about. It's pretty user friendly so you should be able to figure it out.
Just so you know, Ning is a social network site, much like Facebook, but it allows for a network to be formed for a more limited groups of people--like students in my government classes. I've wanted to see if this would provide a convenient forum for back and forth exchanges, and I think it can, but it requires a lot of tlc.
If you'd like to give it a shot, click on the link on the right hand column and weigh in on an issue I post. Feel free to give me advice about what types of issues I should ask questions about. It's pretty user friendly so you should be able to figure it out.
Thursday, June 25, 2009
Age Discrimination Upheld
The Supreme Court has, by a 5-4 vote, made it more dificult to prove age discrimination. The case is Gross v. FBL Financial Services, Inc (Scotuswiki, docket).
From civil rights.org:
The lawsuit was brought by Jack Gross, a longtime employee of FBL Financial Services, Inc., who was demoted at the age of 54 through what the employer called a restructuring. Gross argued his demotion was the result of his age and filed suit under the Age Discrimination in Employment Act (ADEA) of 1967, which prohibits employment discrimination against workers over the age of 40.
In a broad decision, the Court reversed a longstanding rule used by many federal appellate courts that provided for a two-step process in some age discrimination cases under the ADEA. Previously, the employee had to demonstrate that age was a motivating factor in the employer's decision, which then shifted the burden to the employer to prove that the action was based on grounds other than age. Now, the employee carries the full burden of showing that age was the determining factor in a demotion or layoff by an employer.
The Denver Post editorializes against the decisison and argues that the Age Discrimination in Employment Act needs to be strengthened:
As the workforce gets older, times get tougher and workers need to stay on the job longer to make ends meet, anti-bias protections are increasingly important.
Congress ought to revise federal employment law to ensure older workers have adequate avenues of redress when they are wrongly terminated.
The case also illustrates a point we make in 2301 when we discuss discrimination and the various levels of scrutiny applied to different types of discrimination. Again, from the Post:
The practical impact of the decision will be to create an unfair distinction between age discrimination cases and other types of discrimination cases based on gender, race and ethnicity.
"It reinforces the notion that age discrimination is somehow different and not as bad as other types of discrimination," Thomas Osborne, lawyer for the AARP Foundation, was quoted as saying in The National Law Journal.
The remedy for this situation is for Congress to amend the Age Discrimination in Employment Act so the burden of proof mirrors that in Title VII of the Civil Rights Act, under which other discrimination cases are brought.
The Post's comment concludes by reminding us that the public policy process within the system of separated powers, is never ending. The decision, since it is based on the court's interpretation of statutory language, can be negated by clarifying that statutory language. This means revising the Age Discrimination in Employment Act of 1967:
Support for such a revision is brewing, and we're glad to see that. Senate Judiciary Chairman Patrick Leahy, D-Vt., expressed dismay over the decision. He and others in Congress ought to muster support for an ADEA revision and pass it.
Lengthening lifespans and delayed retirement dates make it clear that our society will be facing new issues involving workers staying on the job longer.
It is patently unfair that older workers should have to shoulder a heavier burden than others in proving workplace discrimination.
From civil rights.org:
The lawsuit was brought by Jack Gross, a longtime employee of FBL Financial Services, Inc., who was demoted at the age of 54 through what the employer called a restructuring. Gross argued his demotion was the result of his age and filed suit under the Age Discrimination in Employment Act (ADEA) of 1967, which prohibits employment discrimination against workers over the age of 40.
In a broad decision, the Court reversed a longstanding rule used by many federal appellate courts that provided for a two-step process in some age discrimination cases under the ADEA. Previously, the employee had to demonstrate that age was a motivating factor in the employer's decision, which then shifted the burden to the employer to prove that the action was based on grounds other than age. Now, the employee carries the full burden of showing that age was the determining factor in a demotion or layoff by an employer.
The Denver Post editorializes against the decisison and argues that the Age Discrimination in Employment Act needs to be strengthened:
As the workforce gets older, times get tougher and workers need to stay on the job longer to make ends meet, anti-bias protections are increasingly important.
Congress ought to revise federal employment law to ensure older workers have adequate avenues of redress when they are wrongly terminated.
The case also illustrates a point we make in 2301 when we discuss discrimination and the various levels of scrutiny applied to different types of discrimination. Again, from the Post:
The practical impact of the decision will be to create an unfair distinction between age discrimination cases and other types of discrimination cases based on gender, race and ethnicity.
"It reinforces the notion that age discrimination is somehow different and not as bad as other types of discrimination," Thomas Osborne, lawyer for the AARP Foundation, was quoted as saying in The National Law Journal.
The remedy for this situation is for Congress to amend the Age Discrimination in Employment Act so the burden of proof mirrors that in Title VII of the Civil Rights Act, under which other discrimination cases are brought.
The Post's comment concludes by reminding us that the public policy process within the system of separated powers, is never ending. The decision, since it is based on the court's interpretation of statutory language, can be negated by clarifying that statutory language. This means revising the Age Discrimination in Employment Act of 1967:
Support for such a revision is brewing, and we're glad to see that. Senate Judiciary Chairman Patrick Leahy, D-Vt., expressed dismay over the decision. He and others in Congress ought to muster support for an ADEA revision and pass it.
Lengthening lifespans and delayed retirement dates make it clear that our society will be facing new issues involving workers staying on the job longer.
It is patently unfair that older workers should have to shoulder a heavier burden than others in proving workplace discrimination.
The Presidency and The 24 Hour News Cycle
Given the attention given the office, presidents dominate the news cycle whether they want to or not. John Dickerson comments on how Obama handles this task:
At one point in the back-and-forth with reporters over Iran, the president said, "I know everybody here is on a 24-hour news cycle. I'm not. OK?" It was a good line. He has used a version of it in a previous press conference. But while the president doesn't like the demands of the news cycle, he knows just how to feed it. When outrage over AIG bonuses gripped the news cycle, he appeared before cameras to channel it. When Sonia Sotomayor's remarks about being a "wise Latina" caused controversy, Obama and his team knew it was better to say she misspoke than to keep arguing that she'd been taken out of context. During his campaign, Obama scrapped his opposition to wearing a flag pin for the same reasons. By modifying his position or habits a little, Obama feeds the news beast and the overheated controversy goes away.
In some ways the president is the 24-hour news cycle. He's everywhere—cable, sports channels, and late-night talk shows. He'll be on ABC tomorrow talking about health care. At the press conference he showed just how attuned he is to the rapacious news environment. He called on the Huffington Post's Nico Pitney, who has been following the Iran story closely, and asked him to relay one of the questions he'd gotten from one of the Iranian protesters.* The White House had called Pitney that morning to invite him over to ask the question, an act of stagecraft for which the previous president would have been excoriated by his critics.
....
For better or worse, this ability to adapt tends to determine the success or failure of presidencies. But while it allows presidents to adjust to the shifting political environment, it can raise questions regardign how firmly a president stands on certain issues. Are there areas where he will not budge. We'll see whether Obama falls into this trap.
At one point in the back-and-forth with reporters over Iran, the president said, "I know everybody here is on a 24-hour news cycle. I'm not. OK?" It was a good line. He has used a version of it in a previous press conference. But while the president doesn't like the demands of the news cycle, he knows just how to feed it. When outrage over AIG bonuses gripped the news cycle, he appeared before cameras to channel it. When Sonia Sotomayor's remarks about being a "wise Latina" caused controversy, Obama and his team knew it was better to say she misspoke than to keep arguing that she'd been taken out of context. During his campaign, Obama scrapped his opposition to wearing a flag pin for the same reasons. By modifying his position or habits a little, Obama feeds the news beast and the overheated controversy goes away.
In some ways the president is the 24-hour news cycle. He's everywhere—cable, sports channels, and late-night talk shows. He'll be on ABC tomorrow talking about health care. At the press conference he showed just how attuned he is to the rapacious news environment. He called on the Huffington Post's Nico Pitney, who has been following the Iran story closely, and asked him to relay one of the questions he'd gotten from one of the Iranian protesters.* The White House had called Pitney that morning to invite him over to ask the question, an act of stagecraft for which the previous president would have been excoriated by his critics.
....
For better or worse, this ability to adapt tends to determine the success or failure of presidencies. But while it allows presidents to adjust to the shifting political environment, it can raise questions regardign how firmly a president stands on certain issues. Are there areas where he will not budge. We'll see whether Obama falls into this trap.
Wednesday, June 24, 2009
Is Tobacco Advertisement Protected Speech
The NYT reports that the ACLU, among other groups, plans to challenge the recently passed restrictions on tobacco advertisement on First Amendment grounds (as Ron Paul suggested below):
The law’s ban on outdoor advertising within 1,000 feet of schools and playgrounds would effectively outlaw legal advertising in many cities, critics of the prohibition said. And restricting stores and many forms of print advertising to black-and-white text, as the law specifies, would interfere with legitimate communication to adults, tobacco companies and advertising groups said in letters to Congress and interviews over the last week.
The controversy, legal experts say, involves tension between the right of tobacco companies to communicate with adult smokers and the public interest in preventing young people from smoking.
Opponents of the new strictures, including the Association of National Advertisers and the American Civil Liberties Union, predict that federal courts will throw out the new marketing restrictions. They say, for example, a 2001 Supreme Court decision struck down a
Massachusetts rule that had imposed a similar ban on advertising within 1,000 feet of schools.
“Anybody looking at this in a fair way would say the effort here is not just to protect kids, which is a substantial interest of the country, but to make it virtually impossible to communicate with anybody,” Daniel L. Jaffe, executive vice president of the Association of National Advertisers, said in an interview Monday. “We think this creates very serious problems for the First Amendment.”
His group represents 340 companies spending more than $100 billion a year on marketing and ads.
Some take issue with the ACLU's taking part in this effort and have evidence that tobacco companies have become a leading contributor of the organization.
- Secret Documents Reveal A.C.L.U. Tobacco Industry Ties
- The ACLU's Tobacco Addiction - American Civil Liberties Union ...
- American Civil Liberties Union - SourceWatch
The law’s ban on outdoor advertising within 1,000 feet of schools and playgrounds would effectively outlaw legal advertising in many cities, critics of the prohibition said. And restricting stores and many forms of print advertising to black-and-white text, as the law specifies, would interfere with legitimate communication to adults, tobacco companies and advertising groups said in letters to Congress and interviews over the last week.
The controversy, legal experts say, involves tension between the right of tobacco companies to communicate with adult smokers and the public interest in preventing young people from smoking.
Opponents of the new strictures, including the Association of National Advertisers and the American Civil Liberties Union, predict that federal courts will throw out the new marketing restrictions. They say, for example, a 2001 Supreme Court decision struck down a
Massachusetts rule that had imposed a similar ban on advertising within 1,000 feet of schools.
“Anybody looking at this in a fair way would say the effort here is not just to protect kids, which is a substantial interest of the country, but to make it virtually impossible to communicate with anybody,” Daniel L. Jaffe, executive vice president of the Association of National Advertisers, said in an interview Monday. “We think this creates very serious problems for the First Amendment.”
His group represents 340 companies spending more than $100 billion a year on marketing and ads.
Some take issue with the ACLU's taking part in this effort and have evidence that tobacco companies have become a leading contributor of the organization.
- Secret Documents Reveal A.C.L.U. Tobacco Industry Ties
- The ACLU's Tobacco Addiction - American Civil Liberties Union ...
- American Civil Liberties Union - SourceWatch
Tuesday, June 23, 2009
Padilla v. Yoo: Made in America
Accused dirty bomber Jose Padilla's lawsuit against former Bush Administration official John Yoo can go forward, so says Bush appointee Judge Jeffery White. This creates the following scenario of checks and balances:
a conservative judge putting pressure on the Democrats in Washington to create some system of accountability for the Bush administration.
The judge has argued that private citizens do have the right to sue federal officials for abusive treatment, in this case torture.
Read on ...
a conservative judge putting pressure on the Democrats in Washington to create some system of accountability for the Bush administration.
The judge has argued that private citizens do have the right to sue federal officials for abusive treatment, in this case torture.
Read on ...
Twitter Effect Oversold?
George Friedman is not jumping on the Twitter bandwagon. He argues that the revolution in Iraq appears to have stalled partly due to its support not branching out beyond the "twittering classes." Western commentators may have misread the level of support that existed on the ground because the only voices they were hearing were those who used the technology:
The global media, obsessively focused on the initial demonstrators — who were supporters of Iranian President Mahmoud Ahmadinejad’s opponents — failed to notice that while large, the demonstrations primarily consisted of the same type of people demonstrating. Amid the breathless reporting on the demonstrations, reporters failed to notice that the uprising was not spreading to other classes and to other areas. In constantly interviewing English-speaking demonstrators, they failed to note just how many of the demonstrators spoke English and had smartphones. The media thus did not recognize these as the signs of a failing revolution.
The global media, obsessively focused on the initial demonstrators — who were supporters of Iranian President Mahmoud Ahmadinejad’s opponents — failed to notice that while large, the demonstrations primarily consisted of the same type of people demonstrating. Amid the breathless reporting on the demonstrations, reporters failed to notice that the uprising was not spreading to other classes and to other areas. In constantly interviewing English-speaking demonstrators, they failed to note just how many of the demonstrators spoke English and had smartphones. The media thus did not recognize these as the signs of a failing revolution.
Judicial Vacancies in Texas
Charles Kuffner updates us on a conflict between the Obama White House and our Texas Senators regarding two federal judicial vacancies in the state:
As we know, there are vacancies in the US Attorney's offices in the Southern and Western district offices in Texas, which will be filled by Presidential appointment. Normally, when the President is of one party and both of a given state's Senators are of the other party, "the primary role in recommending candidates for district court judgeships is assumed by officials in the state who are of the President's party." That's from a report last year by the non-partisan Congressional Research Service. Except that as Steve Benen noted, Texas' Republican Senators have refused to honor this practice, and instead have insisted on sending to Obama candidates who have been screened by the committee he and Hutchison have always used for making nominations -- a committee he admits is "heavily stacked with Republican lawyers." Because, you know, it's different when Democrats are in charge.
Read on ....
As we know, there are vacancies in the US Attorney's offices in the Southern and Western district offices in Texas, which will be filled by Presidential appointment. Normally, when the President is of one party and both of a given state's Senators are of the other party, "the primary role in recommending candidates for district court judgeships is assumed by officials in the state who are of the President's party." That's from a report last year by the non-partisan Congressional Research Service. Except that as Steve Benen noted, Texas' Republican Senators have refused to honor this practice, and instead have insisted on sending to Obama candidates who have been screened by the committee he and Hutchison have always used for making nominations -- a committee he admits is "heavily stacked with Republican lawyers." Because, you know, it's different when Democrats are in charge.
Read on ....
Monday, June 22, 2009
Voting Rights Act Not Overturned
From the NYT:
The Supreme Court on Monday left intact one of the signature legacies of the civil rights movement, the Voting Rights Act of 1965.
The court, in an 8-to-1 decision, ducked the central question in a case that was the most closely watched of the term. Most election law specialists had expected the court to rule on whether a core provision of the law was constitutional, and many were betting the answer would be no.
The court instead ruled on a narrow statutory ground, saying the utility district in Austin, Tex., that had challenged the constitutionality of the law — along with other government entities around the nation — might be eligible to “bail out” from being covered by it. The district, which manages water and other utilities and has an elected board, had pressed the bailout argument along with its constitutional challenge, and its lawyer said at the argument in the case that it would be satisfied with a ruling in its favor on the narrower ground.
Chief Justice John G. Roberts Jr., writing for the majority, acknowledged that the court’s approach stretched the statutory text, but he said the court should avoid deciding hard constitutional questions when it could.
“We are now a very different nation” than the one that first passed the Voting Rights Act, the chief justice said. “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”
It is not unusual for the court to defer or avoid constitutional questions in cases that can be decided on narrower grounds. But almost all of the signs in this case, including Chief Justice Roberts’s own skeptical questioning at the argument, suggested that the court was steeling itself to make a major pronouncement about the role of race in American democracy. In opting to put off such a ruling, the justices nonetheless made a powerful statement. They took a hard look at the current historical moment and decided that it has not yet come fully into focus.
Scotusblog thinks the language of the decision suggests that it may yet overturn it at some point in the future.
- Wikipedia: Voting Rights Act.
The Supreme Court on Monday left intact one of the signature legacies of the civil rights movement, the Voting Rights Act of 1965.
The court, in an 8-to-1 decision, ducked the central question in a case that was the most closely watched of the term. Most election law specialists had expected the court to rule on whether a core provision of the law was constitutional, and many were betting the answer would be no.
The court instead ruled on a narrow statutory ground, saying the utility district in Austin, Tex., that had challenged the constitutionality of the law — along with other government entities around the nation — might be eligible to “bail out” from being covered by it. The district, which manages water and other utilities and has an elected board, had pressed the bailout argument along with its constitutional challenge, and its lawyer said at the argument in the case that it would be satisfied with a ruling in its favor on the narrower ground.
Chief Justice John G. Roberts Jr., writing for the majority, acknowledged that the court’s approach stretched the statutory text, but he said the court should avoid deciding hard constitutional questions when it could.
“We are now a very different nation” than the one that first passed the Voting Rights Act, the chief justice said. “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”
It is not unusual for the court to defer or avoid constitutional questions in cases that can be decided on narrower grounds. But almost all of the signs in this case, including Chief Justice Roberts’s own skeptical questioning at the argument, suggested that the court was steeling itself to make a major pronouncement about the role of race in American democracy. In opting to put off such a ruling, the justices nonetheless made a powerful statement. They took a hard look at the current historical moment and decided that it has not yet come fully into focus.
Scotusblog thinks the language of the decision suggests that it may yet overturn it at some point in the future.
- Wikipedia: Voting Rights Act.
Sunday, June 21, 2009
Early List of Vetoed Legislation
Copied from Quorum Report:
Gov. Rick Perry vetoed 35 bills and resolutions, catering to his conservative wing with his veto of HB 130, the pre-K bill. He also tagged Rep. Todd Smith’s (R-Euless) bill that would have given a judge the discretion of not forcing someone to register as a sex offender if the only sin was underage consensual sex.
Also of note was Perry allowing HB 770 to become law without signature. The bill had become controversial after Rep. Wayne Christian (R-Center) attached language allowing he and 200 neighbors on the Bolivar Peninsula to rebuild their property following Hurricane Ike. Land Commissioner Jerry Patterson had argued that because of the erosion following Ike, rebuilding those properties would violate the Texas Open Beaches law. He had been urging Perry to veto HB 770.
Of the thirty-five vetoes, only seven were bills authored by Republicans.
To look at the Governor’s veto statements, click here.
The list of bills filed without signature and bills vetoed can be found here.
Gov. Rick Perry vetoed 35 bills and resolutions, catering to his conservative wing with his veto of HB 130, the pre-K bill. He also tagged Rep. Todd Smith’s (R-Euless) bill that would have given a judge the discretion of not forcing someone to register as a sex offender if the only sin was underage consensual sex.
Also of note was Perry allowing HB 770 to become law without signature. The bill had become controversial after Rep. Wayne Christian (R-Center) attached language allowing he and 200 neighbors on the Bolivar Peninsula to rebuild their property following Hurricane Ike. Land Commissioner Jerry Patterson had argued that because of the erosion following Ike, rebuilding those properties would violate the Texas Open Beaches law. He had been urging Perry to veto HB 770.
Of the thirty-five vetoes, only seven were bills authored by Republicans.
To look at the Governor’s veto statements, click here.
The list of bills filed without signature and bills vetoed can be found here.
No Right to DNA Evidence
The Supreme Court ruled by a 5-4 margin that the due process clause cannot be interpreted to include DNA tests. In other words, a state does not deny the 14th Amendment's guarantee of the due process of the law if it does not allow an individual convicted of a crime to pay for his own DNA test to prove his innocence.
The case is District Attorney’s Office v. Osborne.
From Scotusblog:
Splitting 5-4, the Supreme Court ruled Thursday that an individual whose criminal conviction has become final does not have a constitutional right to gain access to evidence so that it can be subjected to DNA testing to try to prove innocence. ....
Chief Justice John G. Roberts, Jr., writing for the majority in District Attorney’s Office v. Osborne (08-6), noted that DNA testing provides “an unparalleled ability” to prove innocence or guilt, but its availability “cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.” The opinion is available here.
The task of writing rules to control access to DNA evidence “belongs primarily” to the legislature, the Chief Justice wrote. Pursuing a “freestanding and far-reaching constitutional right of access” to DNA evidence through a civil rights lawsuit, Roberts wrote, would “short-circuit” efforts now being made by the federal government and many states to develop tools on access to such evidence. “There is no reason to constitutionalize” access through the courts when elected officials are making “a prompt and considered” response to the DNA phenomenon, the opinion concluded.
I highlighted what I think is the most important part of the decision. The majority wants the judiciary to defer to the legislature in this matter and to also limit the range of cases that can argued on civil rights grounds. Most commentary focuses on the ideological division in the decision reflecting the continued division between liberals and conservatives on the role of the court, the rights of criminal defendants (or convicts in this case), and civil rights. Since the court's have limited their ability to compel the states to abide by an expansive definition of constitutional language, this would probably also qualify as a an example of judicial restraint.
Commentary:
- Analysis: Handing off the DNA issue
- Justices Reject Inmate Right to DNA Tests
The case is District Attorney’s Office v. Osborne.
From Scotusblog:
Splitting 5-4, the Supreme Court ruled Thursday that an individual whose criminal conviction has become final does not have a constitutional right to gain access to evidence so that it can be subjected to DNA testing to try to prove innocence. ....
Chief Justice John G. Roberts, Jr., writing for the majority in District Attorney’s Office v. Osborne (08-6), noted that DNA testing provides “an unparalleled ability” to prove innocence or guilt, but its availability “cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.” The opinion is available here.
The task of writing rules to control access to DNA evidence “belongs primarily” to the legislature, the Chief Justice wrote. Pursuing a “freestanding and far-reaching constitutional right of access” to DNA evidence through a civil rights lawsuit, Roberts wrote, would “short-circuit” efforts now being made by the federal government and many states to develop tools on access to such evidence. “There is no reason to constitutionalize” access through the courts when elected officials are making “a prompt and considered” response to the DNA phenomenon, the opinion concluded.
I highlighted what I think is the most important part of the decision. The majority wants the judiciary to defer to the legislature in this matter and to also limit the range of cases that can argued on civil rights grounds. Most commentary focuses on the ideological division in the decision reflecting the continued division between liberals and conservatives on the role of the court, the rights of criminal defendants (or convicts in this case), and civil rights. Since the court's have limited their ability to compel the states to abide by an expansive definition of constitutional language, this would probably also qualify as a an example of judicial restraint.
Commentary:
- Analysis: Handing off the DNA issue
- Justices Reject Inmate Right to DNA Tests
Thursday, June 18, 2009
Senator Cornyn and the RSCC
Our Senator John Cornyn has the task of coordinating, to the degree that is possible, Republican Senate elections in 2010. The Washington Times thinks he might have a tough time.
Obama Proposes New Financial Regulations ...
... along with a new agency to boot.
- From Bloomberg.
- From USA Today.
He claims that this is the most comprehensive redesign of financial rules since the New Deal, but here's an argument that his proposals are insufficient, and fall short of what FDR accomplished:
... in terms of the scope and breadth of the Obama plan — and more important, in terms of its overall effect on Wall Street’s modus operandi — it’s not even close to what Roosevelt accomplished during the Great Depression.
Rather, the Obama plan is little more than an attempt to stick some new regulatory fingers into a very leaky financial dam rather than rebuild the dam itself. Without question, the latter would be more difficult, more contentious and probably more expensive. But it would also have more lasting value.
Others will argue that this is further unwarranted federal intervention in the economy.
I want my students to note the number of interest groups mentioned in the each story.
- From Bloomberg.
- From USA Today.
He claims that this is the most comprehensive redesign of financial rules since the New Deal, but here's an argument that his proposals are insufficient, and fall short of what FDR accomplished:
... in terms of the scope and breadth of the Obama plan — and more important, in terms of its overall effect on Wall Street’s modus operandi — it’s not even close to what Roosevelt accomplished during the Great Depression.
Rather, the Obama plan is little more than an attempt to stick some new regulatory fingers into a very leaky financial dam rather than rebuild the dam itself. Without question, the latter would be more difficult, more contentious and probably more expensive. But it would also have more lasting value.
Others will argue that this is further unwarranted federal intervention in the economy.
I want my students to note the number of interest groups mentioned in the each story.
Wednesday, June 17, 2009
Tuesday, June 16, 2009
Dr. Paul on the Tobacco Bill
Our very own Ron Paul argues that the recently passed Family Smoking Prevention and Tobacco Control Act violates the Constitution:
The Family Smoking Prevention and Tobacco Control Act will give sweeping new powers over tobacco to the FDA. It will require everyone engaged in manufacturing, preparing, compounding, or processing tobacco to register with the FDA and be subjected to FDA inspections, which is yet another violation of the Fourth Amendment. It violates the First Amendment by allowing the FDA to restrict tobacco advertising in multiple ways, as well as an outright ban on advertising any cigarettes as light, mild or low-tar. The FDA will have the power of pre-market reviews of all new tobacco products, and will impose new user fees, meaning taxes, on manufacturers and importers of tobacco products. It will even regulate the amount of nicotine in cigarettes.
We have a right to make bad decisions:
My objections to the bill are not an endorsement of tobacco. As a physician I understand the adverse health effects of this bad habit. And that is exactly how smoking should be treated – as a bad habit and a personal choice. The way to combat poor choices is through education and information. Other than ensuring that tobacco companies do not engage in force or fraud to market their products, the federal government needs to stay out of the health habits of free people. Regulations for children should be at the state level. Unfortunately, government is using its already overly intrusive financial and regulatory roles in healthcare to establish a justifiable interest in intervening in your personal lifestyle choices as well. We all need to anticipate the level of health freedom that will remain once government manages all health care in this country.
Regarding the first point, I'm reasonably sure that advocates would argue that the bill falls under the Commerce Clause, so he may not be convincing in his argument. I'm unfamiliar with the argument that an inspection is a search and seizure, but I'll do some homework on it. Tobacco advertisement has also been restricted for years so I'm also unsure about the strength of the First Amendment argument.
He raises an important point in the later paragraph about the role that government should play regarding lifestyle choices. One might argue however that certain lifestyle choices place costs on others and then become subject to governmental intervention. I also think that proponents of the law would question whether smoking is really a choice in the conventional sense. It's an addictive product, so by definition it is not a choice once one become addicted--but then again one could say that we can make a choice to become addicted (I'm wincing while I write that though). The law's backers might say that this is not about individuals and their choices, but firms and their efforts to promote the use of an addictive substances.
Does that make the law reasonable?
The Family Smoking Prevention and Tobacco Control Act will give sweeping new powers over tobacco to the FDA. It will require everyone engaged in manufacturing, preparing, compounding, or processing tobacco to register with the FDA and be subjected to FDA inspections, which is yet another violation of the Fourth Amendment. It violates the First Amendment by allowing the FDA to restrict tobacco advertising in multiple ways, as well as an outright ban on advertising any cigarettes as light, mild or low-tar. The FDA will have the power of pre-market reviews of all new tobacco products, and will impose new user fees, meaning taxes, on manufacturers and importers of tobacco products. It will even regulate the amount of nicotine in cigarettes.
We have a right to make bad decisions:
My objections to the bill are not an endorsement of tobacco. As a physician I understand the adverse health effects of this bad habit. And that is exactly how smoking should be treated – as a bad habit and a personal choice. The way to combat poor choices is through education and information. Other than ensuring that tobacco companies do not engage in force or fraud to market their products, the federal government needs to stay out of the health habits of free people. Regulations for children should be at the state level. Unfortunately, government is using its already overly intrusive financial and regulatory roles in healthcare to establish a justifiable interest in intervening in your personal lifestyle choices as well. We all need to anticipate the level of health freedom that will remain once government manages all health care in this country.
Regarding the first point, I'm reasonably sure that advocates would argue that the bill falls under the Commerce Clause, so he may not be convincing in his argument. I'm unfamiliar with the argument that an inspection is a search and seizure, but I'll do some homework on it. Tobacco advertisement has also been restricted for years so I'm also unsure about the strength of the First Amendment argument.
He raises an important point in the later paragraph about the role that government should play regarding lifestyle choices. One might argue however that certain lifestyle choices place costs on others and then become subject to governmental intervention. I also think that proponents of the law would question whether smoking is really a choice in the conventional sense. It's an addictive product, so by definition it is not a choice once one become addicted--but then again one could say that we can make a choice to become addicted (I'm wincing while I write that though). The law's backers might say that this is not about individuals and their choices, but firms and their efforts to promote the use of an addictive substances.
Does that make the law reasonable?
A Christian Nation?
An ex-student sent me the following YouTube of Obama's recent speech in Cairo where he states (roughly) that we are no longer "just" a Christian nation, but are also a Jewish nation and a Muslim nation and a Buddhist nation and a nation of non-believers.
He wondered if this was blasphemous and whether it might weaken the country.
What would you tell him?
And what about this segment from the Treaty of Tripoli (1796):
Art. 11. As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.
I'm confused.
He wondered if this was blasphemous and whether it might weaken the country.
What would you tell him?
And what about this segment from the Treaty of Tripoli (1796):
Art. 11. As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.
I'm confused.
Monday, June 15, 2009
Twitter Comes of Age?
Andrew Sullivan has several posts (here, here, here, and here, for a few) lauding the role twitter has played in not only providing information about the post-election violence in Iran but organizing protests.
Every new technology needs its opportunity to demonstrate its relevance. This seems to be twitter's moment.
Every new technology needs its opportunity to demonstrate its relevance. This seems to be twitter's moment.
Sunday, June 14, 2009
Elections and Legitimacy
Elections, as we argue in 2301, are devices which among other things connect the general population with the law, thereby lending it legitimacy. But if an election seems to have been fraudulent, the opposite can occur. This is especially true if the fraud seems obvious, and a large percentage of the population agrees. The governing system then loses legitimacy, society crumbles and either government does something to reestablish legitimacy or removes the pretense and just clamps down on the population.
This may help explain the results of the recent election in Iran. Its president was reelected by a comfortable margin, a result which seems improbable based on popular opinion. Fraud is widely suspected. Protests have erupted, and some suspect a coup is in the works.
Andrew Sullivan claims that this story is only breaking because the blogosphere is pushing it, not the mainstream media. Even Twitter helped.
This may help explain the results of the recent election in Iran. Its president was reelected by a comfortable margin, a result which seems improbable based on popular opinion. Fraud is widely suspected. Protests have erupted, and some suspect a coup is in the works.
Andrew Sullivan claims that this story is only breaking because the blogosphere is pushing it, not the mainstream media. Even Twitter helped.
Saturday, June 13, 2009
Tuesday, June 9, 2009
Kent Impeachment Recommended
From the CQ:
A special House Judiciary panel Tuesday voted 10-0 to recommend impeachment of a Texas federal judge convicted of obstruction of justice earlier this year for lying about unwanted sexual contact with two of his female employees.
U.S. District Judge Samuel B. Kent, who has served in the Southern District of Texas since 1990, pleaded guilty in February to one count of obstruction of justice after admitting that he gave false testimony to federal investigators looking into the sexual misconduct complaints. He was sentenced to 33 months in prison in May and is set to begin his sentence on June 15.
He would join a very small list of judges.
A special House Judiciary panel Tuesday voted 10-0 to recommend impeachment of a Texas federal judge convicted of obstruction of justice earlier this year for lying about unwanted sexual contact with two of his female employees.
U.S. District Judge Samuel B. Kent, who has served in the Southern District of Texas since 1990, pleaded guilty in February to one count of obstruction of justice after admitting that he gave false testimony to federal investigators looking into the sexual misconduct complaints. He was sentenced to 33 months in prison in May and is set to begin his sentence on June 15.
He would join a very small list of judges.
The Ivy Court
Some things change, some things don't:
President Obama may have broken with history by nominating a Latina to the Supreme Court, but in another respect he followed the path of almost every president in modern times who has successfully placed a justice: he chose a nominee groomed in an Ivy League university.
...
In the history of the court, half of the 110 justices were undergraduates, graduate students or law students in the Ivy League; since 1950, the percentage is 70. From the beginning of the 20th century, every president who has seated a justice has picked at least one Ivy graduate. Four of the six justices on President Obama’s short list studied at Ivy League institutions, either as undergraduates or law students.
President Obama may have broken with history by nominating a Latina to the Supreme Court, but in another respect he followed the path of almost every president in modern times who has successfully placed a justice: he chose a nominee groomed in an Ivy League university.
...
In the history of the court, half of the 110 justices were undergraduates, graduate students or law students in the Ivy League; since 1950, the percentage is 70. From the beginning of the 20th century, every president who has seated a justice has picked at least one Ivy graduate. Four of the six justices on President Obama’s short list studied at Ivy League institutions, either as undergraduates or law students.
Monday, June 8, 2009
On Elected Judges
From the NYT:
In a closely watched case involving the confluence of justice, politics and money, the Supreme Court ruled for the first time that the Constitution can require an elected judge to step aside in a particular case based on campaign spending in state judicial races.
Read Capperton v. Massey.
In a closely watched case involving the confluence of justice, politics and money, the Supreme Court ruled for the first time that the Constitution can require an elected judge to step aside in a particular case based on campaign spending in state judicial races.
Read Capperton v. Massey.
Sunday, June 7, 2009
Texas Monthly: Best and Worst Legislators
The full story from Texas Monthly.
Best: Sen. John Carona (R-Dallas), Sen. Robert Duncan (R-Lubbock), Craig Eiland (D-Galveston), Rob Eissler (R-The Woodlands), Brian McCall (R-Plano), John Otto (R-Dayton), Jim Pitts (R-Waxahachie), Senfronia Thompson (D-Houston), Sen. Kirk Watson (D-Austin), John Zerwas (R-Richmond)
Worst: Wayne Christian (R-Center), Yvonne Davis (D-Dallas), Jim Dunnam (D-Waco), Allen Fletcher (R-Tomball), Kino Flores (D-Palmview), Sen. Troy Fraser (R-Horseshoe Bay), Sen. Mario Gallegos Jr. (D-Houston), Richard Peña Raymond (D-Laredo), Debbie Riddle (R-Tomball), Sen. Tommy Williams (R-The Woodlands)
Honorable mention: Sen. Kip Averitt (R-Waco), Dan Branch (R-Dallas), Sen. Robert Deuell (R-Greenville), Ruth Jones McClendon (D-San Antonio), Mark Strama (D-Austin), Mike Villarreal (D-San Antonio)
Dishonorable mention: Betty Brown (R-Terrell), Norma Chávez (D-El Paso), Carl Isett (R-Lubbock), David Leibowitz (D-San Antonio), Tommy Merritt (R-Longview)
Furniture: Charles “Doc” Anderson (R-Waco), Fred Brown (R-College Station), Al Edwards (D-Houston), Joe Farias (D-San Antonio), Sen. Chris Harris (R-Arlington), Tim Kleinschmidt (R-Lexington), Sen. Eddie Lucio Jr. (D-Brownsville), Solomon Ortiz Jr. (D-Corpus Christi), Inocente “Chente” Quintanilla (D-El Paso), Ralph Sheffield (R-Temple)
Rookie of the Year: Sen. Wendy Davis (D-Fort Worth)
Best: Sen. John Carona (R-Dallas), Sen. Robert Duncan (R-Lubbock), Craig Eiland (D-Galveston), Rob Eissler (R-The Woodlands), Brian McCall (R-Plano), John Otto (R-Dayton), Jim Pitts (R-Waxahachie), Senfronia Thompson (D-Houston), Sen. Kirk Watson (D-Austin), John Zerwas (R-Richmond)
Worst: Wayne Christian (R-Center), Yvonne Davis (D-Dallas), Jim Dunnam (D-Waco), Allen Fletcher (R-Tomball), Kino Flores (D-Palmview), Sen. Troy Fraser (R-Horseshoe Bay), Sen. Mario Gallegos Jr. (D-Houston), Richard Peña Raymond (D-Laredo), Debbie Riddle (R-Tomball), Sen. Tommy Williams (R-The Woodlands)
Honorable mention: Sen. Kip Averitt (R-Waco), Dan Branch (R-Dallas), Sen. Robert Deuell (R-Greenville), Ruth Jones McClendon (D-San Antonio), Mark Strama (D-Austin), Mike Villarreal (D-San Antonio)
Dishonorable mention: Betty Brown (R-Terrell), Norma Chávez (D-El Paso), Carl Isett (R-Lubbock), David Leibowitz (D-San Antonio), Tommy Merritt (R-Longview)
Furniture: Charles “Doc” Anderson (R-Waco), Fred Brown (R-College Station), Al Edwards (D-Houston), Joe Farias (D-San Antonio), Sen. Chris Harris (R-Arlington), Tim Kleinschmidt (R-Lexington), Sen. Eddie Lucio Jr. (D-Brownsville), Solomon Ortiz Jr. (D-Corpus Christi), Inocente “Chente” Quintanilla (D-El Paso), Ralph Sheffield (R-Temple)
Rookie of the Year: Sen. Wendy Davis (D-Fort Worth)
Saturday, June 6, 2009
The $1 Trillion 2009 Debt
A blast from the past (1999).
Here's a sentence we aren't likely to see written in a very long time:
. . . Democrats and Republicans squabble over what to do with the growing US budget surplus.
Projections aren't worth much are they?
Here's a sentence we aren't likely to see written in a very long time:
. . . Democrats and Republicans squabble over what to do with the growing US budget surplus.
Projections aren't worth much are they?
Thursday, June 4, 2009
Health Care and the Blue Dog Coalition
One of the factors which makes the Democratic Party in Congress less cohesive than the Republican Party is a strong division between the liberal wing and the Blue Dog Coalition.
According to this CQ story, the Blue Dogs seems to be in a position to determine the direction that any health plan will go. They lie somewhere between the liberal Democrats who prefer a "public plan" and conservative Republicans who do not.
Democratic Party leaders must make the Blue Dogs happy if they are to pass anything:
It is not clear whether Republicans would support a public plan even with a host of restrictions — or if liberals would support a bill with the kind of restrictions demanded by the Blue Dogs.
Among their requirements: The public plan must negotiate payment rates with providers; participation in the plan must be voluntary for both providers and patients; premiums and copayments under the plan must pay for its operations; and the plan must follow the same actuarial standards and regulations required of private insurers.
The Blue Dogs claim to have 51 members, as opposed to 78 liberals.
- The official web site of the Blue Dog Coalition.
- Wikipedia: Blue Dog Coalition.
- Bluedogdems.com.
According to this CQ story, the Blue Dogs seems to be in a position to determine the direction that any health plan will go. They lie somewhere between the liberal Democrats who prefer a "public plan" and conservative Republicans who do not.
Democratic Party leaders must make the Blue Dogs happy if they are to pass anything:
It is not clear whether Republicans would support a public plan even with a host of restrictions — or if liberals would support a bill with the kind of restrictions demanded by the Blue Dogs.
Among their requirements: The public plan must negotiate payment rates with providers; participation in the plan must be voluntary for both providers and patients; premiums and copayments under the plan must pay for its operations; and the plan must follow the same actuarial standards and regulations required of private insurers.
The Blue Dogs claim to have 51 members, as opposed to 78 liberals.
- The official web site of the Blue Dog Coalition.
- Wikipedia: Blue Dog Coalition.
- Bluedogdems.com.
Public Opinion on Abortion
I posted previously on changing attitudes on abortion. Here's feedback on the possible impact of the recent killing of George Tiller on attitudes. The conclusion: not much.
Judges and Diversity
Jeffrey Toobin reminds us that diversity has always played a role in deciding who to appoint to the Supreme Court. At one point, it was regional diversity, now its gender and race. That's the only thing that's changed.
Did He or Didn't He?
Paul Krugman traces blame for the current economic crisis back to Ronald Reagan:
“This bill is the most important legislation for financial institutions in the last 50 years. It provides a long-term solution for troubled thrift institutions. ... All in all, I think we hit the jackpot.” So declared Ronald Reagan in 1982, as he signed the Garn-St. Germain Depository Institutions Act.
He was, as it happened, wrong about solving the problems of the thrifts. On the contrary, the bill turned the modest-sized troubles of savings-and-loan institutions into an utter catastrophe. But he was right about the legislation’s significance. And as for that jackpot — well, it finally came more than 25 years later, in the form of the worst economic crisis since the Great Depression.
Robert Sheer disagrees:
Ronald Reagan's signing off on legislation easing mortgage requirements back in 1982 pales in comparison to the damage wrought 15 years later by a cabal of powerful Democrats and Republicans who enabled the wave of newfangled financial gimmicks that resulted in the economic collapse.
Reagan didn't do it, but Clinton-era Treasury Secretaries Robert Rubin and Lawrence Summers, now a top economic adviser in the Obama White House, did. They, along with then-Fed Chairman Alan Greenspan and Republican congressional leaders James Leach and Phil Gramm, blocked any effective regulation of the over-the-counter derivatives that turned into the toxic assets now being paid for with tax dollars.
I don't know enough to weigh in on the merits of this issue, but I wonder whether Krugman's comments indicate a change in how Reagan's legacy is treated. So far there does not seem to be much of an effort to pin the policies he pushed -- loose credit, lower taxes, fewer regulations -- to have marked the turning point leading to the sizable debt levels, both public and private, that we have now. Perhaps liberals will start that offensive now, in much the same way that conservatives attempted to reshape how FDR and the New Deal were viewed.
“This bill is the most important legislation for financial institutions in the last 50 years. It provides a long-term solution for troubled thrift institutions. ... All in all, I think we hit the jackpot.” So declared Ronald Reagan in 1982, as he signed the Garn-St. Germain Depository Institutions Act.
He was, as it happened, wrong about solving the problems of the thrifts. On the contrary, the bill turned the modest-sized troubles of savings-and-loan institutions into an utter catastrophe. But he was right about the legislation’s significance. And as for that jackpot — well, it finally came more than 25 years later, in the form of the worst economic crisis since the Great Depression.
Robert Sheer disagrees:
Ronald Reagan's signing off on legislation easing mortgage requirements back in 1982 pales in comparison to the damage wrought 15 years later by a cabal of powerful Democrats and Republicans who enabled the wave of newfangled financial gimmicks that resulted in the economic collapse.
Reagan didn't do it, but Clinton-era Treasury Secretaries Robert Rubin and Lawrence Summers, now a top economic adviser in the Obama White House, did. They, along with then-Fed Chairman Alan Greenspan and Republican congressional leaders James Leach and Phil Gramm, blocked any effective regulation of the over-the-counter derivatives that turned into the toxic assets now being paid for with tax dollars.
I don't know enough to weigh in on the merits of this issue, but I wonder whether Krugman's comments indicate a change in how Reagan's legacy is treated. So far there does not seem to be much of an effort to pin the policies he pushed -- loose credit, lower taxes, fewer regulations -- to have marked the turning point leading to the sizable debt levels, both public and private, that we have now. Perhaps liberals will start that offensive now, in much the same way that conservatives attempted to reshape how FDR and the New Deal were viewed.
Texas Legislature Wrap Ups
Here are a few links summarizing the 81st Leg's regular session:
- The Waco Tribune bemoans lost opportunities: Editorial: Legislature's sorry conclusion; or is it over?
- The Dallas Morning News reports that key departments will stay open despite the fact that sunset legislation was not passed: GOP leaders vow to keep key agencies open
- The Chronicle tells us that Governor Perry considers the session a success: Perry declares session victory
- The Austin American Statesman reports that Perry is not anxious to call a special session to deal with unfinished business: Perry not calling an immediate special session, if any, but the Forth Worth Star Telegram tells u she might have to: Perry blasts senators who let bill die, says a special session may ...
- Burnt Orange Report Lists what it considers hits and misses: A Session of Missed Opportunities
- The Tribune blames failures to act on Voter ID: Voter ID a Long, Slow Burn for Legislature
- The Dallas Morning News speculates that Kay Bailey Hutchison may be '09 session's big winner
- The Waco Tribune bemoans lost opportunities: Editorial: Legislature's sorry conclusion; or is it over?
- The Dallas Morning News reports that key departments will stay open despite the fact that sunset legislation was not passed: GOP leaders vow to keep key agencies open
- The Chronicle tells us that Governor Perry considers the session a success: Perry declares session victory
- The Austin American Statesman reports that Perry is not anxious to call a special session to deal with unfinished business: Perry not calling an immediate special session, if any, but the Forth Worth Star Telegram tells u she might have to: Perry blasts senators who let bill die, says a special session may ...
- Burnt Orange Report Lists what it considers hits and misses: A Session of Missed Opportunities
- The Tribune blames failures to act on Voter ID: Voter ID a Long, Slow Burn for Legislature
- The Dallas Morning News speculates that Kay Bailey Hutchison may be '09 session's big winner
Tuesday, June 2, 2009
Mini Three Week Study Guide Questions
Mini Three students go here for the study guide questions for the final exam. Look on the bottom.
I'll give you the specifics tomorrow.
I'll give you the specifics tomorrow.
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