Month: August 2007

Congress, Constitutional Law, Politics

Mr. Frist Goes to Washington — and the Art of the Filibuster

Published 4/6/2005

If, like me, you hate sequels, stay away from the Senate floor this month. Senate Majority Leader Bill Frist, R-Tenn., may soon try to change one of the longest congressional traditions in the nation’s history — the 200-year-old right to filibuster. However, unlike the original movie, Mr. Smith Goes to Washington, this modern sequel has the makings of neither good viewing nor good politics.
For many Americans, Frank Capra’s 1939 classic work was their first introduction to the filibuster and contains perhaps the quintessential American film scene. Standing alone on the floor of the U.S. Senate, young Sen. Jefferson Smith refuses to yield to the corrupt plans of his powerful colleagues. Against all odds, he invokes the filibuster — the right of a single person to hold the floor against the world — as long as he can continue to stand and to speak. Continue reading “Mr. Frist Goes to Washington — and the Art of the Filibuster” →

Constitutional Law, Supreme Court

The Supreme Court and the Possibility of a Hard Right Turn

Published 6/26/2005

It is a true sign of desperate times when liberals are fretting over of the expected retirement of Chief Justice William Rehnquist. It is not that they have come to love Rehnquist — once called the “Lone Ranger” for his strident conservative dissents on the Warren Court. Yet, liberals have learned that there are actually judges to the right of Rehnquist, a number of whom are on the short list to replace him. It is like Luke Skywalker celebrating the demise of the Emperor only to learn that he was considered the mild-mannered runt of the litter. Continue reading “The Supreme Court and the Possibility of a Hard Right Turn” →

Justice, Supreme Court, Uncategorized

Candidates for the Supreme Court: Judging the Short List

Published 6/26/05

With the anticipated retirement of Chief Justice William Rehnquist, speculation is rife on the possible nominees on President Bush’s short list. Fortunately for Supreme Court handicappers, Bush has only a couple of simple known criteria. First, he wants ideological consistency. Second, he wants longevity. Short of nominating an embryonic stem cell, the White House would prefer a baby boomer with long-term potential. A few candidates have emerged as leading short-listers. For simplicity, each will be rated below based on the gold standard for conservative purity: Karl Rove. On the Rove-o-meter, five Roves represents the purest conservatism while one would represent marginal conservatism. Continue reading “Candidates for the Supreme Court: Judging the Short List” →

Constitutional Law, Justice, Supreme Court

John Roberts: The Before and The After

Published 8/30/2005

Imagine dating someone for a couple of weeks before you have to decide whether to make a lifetime commitment. That is precisely the situation of senators in confirming a Supreme Court justice. Because a confirmation is rarely a case of love at first sight, it usually comes down to the testimony of the nominee, who is invariably told by White House chaperones to say little and smile a lot.
John Roberts may be the ultimate example of the judicial blind date. Continue reading “John Roberts: The Before and The After” →

Congress, Constitutional Law, Politics, Supreme Court

What Qualifies One for the Supreme Court?

Published 10/5/2005

In his announcement of the nomination of White House counsel Harriet Miers to be an associate justice of the Supreme Court, President Bush concluded with a simple and direct statement to Congress: “I ask the Senate to review her qualifications thoroughly and fairly and to vote on her nomination promptly.”
On its face, it seems straightforward enough. Like the president, most senators speak of “qualifications” as if the term is self-defining or obvious. Yet, after more than 200 years, neither the Senate nor law professors have agreed on what constitutes a “qualification” for the nation’s highest court. Indeed, looking over the past 157 nominations (and 42 unsuccessful nominations since 1789), there is little consensus on what constitutes a truly qualified person to sit on the court. Continue reading “What Qualifies One for the Supreme Court?” →

Justice, Lawyering, Politics

The Plame Scandal and a Story In Search of a Redeeming Character

Published 10/31/2005
The indictment of I. Lewis “Scooter” Libby, former chief of staff to Vice President Cheney, has given the Valerie Plame scandal the pre-requisite indictee, a face for this ongoing drama. What is more troubling, however, has been the absence of a heroic or even positive figure.
On its face, this affair had all of the elements of a blockbuster political drama. An embattled president is accused of lying to the American people to take the country to war. Shadowy political operatives launch a campaign to punish the man who uncovered the lie by destroying the career of his wife, a covert CIA operative. Indeed, even the name — the Valerie Plame affair — carried a certain sexy and intriguing appeal. By this point, Washington should be crawling with book and movie agents except for the one missing element: a single redeeming character. Continue reading “The Plame Scandal and a Story In Search of a Redeeming Character” →

Justice, Supreme Court

Role Models for Roberts: Chief Justices and the Legacies

Published 9/11/2005

With the formal end of the Rehnquist Court, John Roberts will by definition hearken a new era on the Supreme Court if confirmed as the 17th chief justice of the United States. Before there is a “Roberts Court,” however, there must first be a clearly defined Chief Justice Roberts. With the start of his Senate hearings today, Roberts will begin the transformation from a circuit judge to chief justice. In doing so, he might want to consider the models left by 16 great and not-so-great predecessors. Continue reading “Role Models for Roberts: Chief Justices and the Legacies” →

Columns, Constitutional Law, Politics, Supreme Court

Parental Rights and Abortion

Published 12/5/2005

Last week, the U.S. Supreme Court heard arguments in Ayotte v. Planned Parenthood, a case concerning the right of parents to be notified on abortions given to minor children. The case is seen as a bellwether on the court’s shifting majority on abortion as well as the future of parental notice and consent laws in 43 states.
Cases like Ayotte are produced by a collision of two powerful interests: The right of parents to participate in major medical and moral decisions affecting their minor children vs. the right of children to have abortions. Continue reading “Parental Rights and Abortion” →

Congress, Constitutional Law, Justice, Politics, Supreme Court

Bush and Domestic Spying: A Threat to Our Principles

Published 12/21/2005

This week, President Bush is struggling to deal with rising accusations that he committed federal crimes in ordering the eavesdropping on hundreds, if not thousands, of people without court orders. It is a scandal that raises troubling questions not just for the presidency but also for the president.

In some ways, it was inevitable that we would find ourselves at this historic confrontation. Bush has long viewed the law as some malleable means to achieve particular ends, rather than the ends itself. In this sense, there is an eerie similarity between the views of Bush and two of his predecessors: Richard Nixon and Bill Clinton. Continue reading “Bush and Domestic Spying: A Threat to Our Principles” →

Congress, Constitutional Law, Politics, Supreme Court

Troubling Times for a Troubling Nominee: Samuel Alito

Published 1/9/06

Despite my agreement with Alito on many issues, I believe that he would be a dangerous addition to the court in already dangerous times for our constitutional system. Alito’s cases reveal an almost reflexive vote in favor of government, a preference based not on some overriding principle but an overriding party.

In my years as an academic and a litigator, I have rarely seen the equal of Alito’s bias in favor of the government. To put it bluntly, when it comes to reviewing government abuse, Samuel Alito is an empty robe. Continue reading “Troubling Times for a Troubling Nominee: Samuel Alito” →

Constitutional Law

Lap Dances, Wills, and You — The Legal Legacy of Anna Nicole Smith

Posted 2/27/2006

It is a classic American tale: Boy meets stripper, boy marries stripper, stripper goes to court to get the dead boy’s estate. Of course, in this case, the “boy” was 90-year-old oil magnate Howard Marshall and the stripper is the buxom reality-TV star Anna Nicole Smith. The court is none other than the U.S. Supreme Court, where Anna’s appearance Tuesday will draw more coverage than it would if Chief Justice John Marshall returned from the dead for the argument.
In the case of Marshall v. Marshall (Smith’s legal name is Vickie Lynn Marshall), the characters are more interesting than are the issues. Continue reading “Lap Dances, Wills, and You — The Legal Legacy of Anna Nicole Smith” →

Congress, Constitutional Law, Politics

How to End the Gay Marriage Debate: Civil Unions and You

Published 4/2/2006

With mid-term elections approaching, politicians are once again returning to one of their favorite themes: protecting the sanctity of marriage. When same-sex marriage is raised, citizens quickly forget about rampant corruption in Congress, towering budget deficits, or even the Iraq war. Not surprisingly, therefore, a constitutional amendment has been cited as a legislative priority by both President Bush and Republican leadership. The message is clear: What politics and religion have joined, let no one pull apart.
The fact is that the same-sex marriage fight is one that advocates on both sides would hate to end. Money is pouring in, membership rolls are expanding, and advocates have an issue that borders on obsession for many Americans. Continue reading “How to End the Gay Marriage Debate: Civil Unions and You” →

Columns, Congress, Constitutional Law, Media, Politics

Down to the Fourth Estate: The Failure of the American System to Protect Liberty

Published 5/16/2006

This month, Congress is faced with a most inconvenient crime. With the recent disclosure of a massive secret database program run by the National Security Agency involving tens of millions of innocent Americans, members are confronted with a second intelligence operation that not only lacks congressional authorization but also appears patently unlawful. In December, the public learned that the NSA was engaging in warrantless domestic surveillance of overseas communications — an operation many experts believe is a clear federal crime ordered by the president more than 30 times.
What is most striking about these programs is that they were revealed not by members of Congress but by members of the Fourth Estate: Journalists who confronted Congress with evidence of potentially illegal conduct by this president that was known to various congressional leaders.

In response, President Bush has demanded to know who will rid him of these meddlesome whistle-blowers, and various devout members have rushed forth with cudgels and codes in hand.

Now, it appears Congress is finally acting — not to end alleged criminal acts by the administration, mind you, but to stop the public from learning about such alleged crimes in the future. Members are seeking to give the president the authority to continue to engage in warrantless domestic surveillance as they call for whistle-blowers to be routed out. They also want new penalties to deter both reporters and their sources. Continue reading “Down to the Fourth Estate: The Failure of the American System to Protect Liberty” →

Constitutional Law, Justice, Politics

The Insanity Defense and the Future of Faith-Based Killings

Published 5/29/2006

In the National Gallery of Art in Washington hangs a cherished Rembrandt titled Abraham’s Sacrifice.
It is an etching of Abraham about to slay his son, Isaac, upon the orders of God, to show his faith. The scene from Genesis 22:1-12 is repeated in stained glass windows, paintings and other displays worldwide. It is also a scene being repeated in real life by demented individuals who believe that they have been given divine instructions to slay their loved ones.

In the past few months, the nation has found itself again in the middle of one of the law’s greatest quagmires: how to define insanity, and when it should be a defense. Continue reading “The Insanity Defense and the Future of Faith-Based Killings” →

Constitutional Law, Supreme Court

The Roberts Court: Seeing is Believing

Published 7/5/2006

With the end of the first term of the Roberts court, some liberals seemed to give a sigh of relief that the new conservative majority had not returned the nation to an antebellum legal system. But on closer inspection, the past term was no cause for hope, let alone celebration, for uneasy liberals, moderates or libertarians.
To the contrary, the only comfort these groups should take from the past term is that it will likely prove far better than the coming term when the court is poised to hear cases involving affirmative action, abortion, environmental law and other hot-button issues. Continue reading “The Roberts Court: Seeing is Believing” →