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Wednesday, October 01, 2008

SCOTUS admits blunder on UCMJ, but says "Nevermind," and shows again how Obama's model judges pull constitutional law from thin air

When the Supreme Court is so wrong, I take small pleasure in being right in predicting that they'll perversely continue being wrong. But I nevertheless claim that credit in my latest guest-post at HughHewitt.com.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

On my own blog, I write a lot about politics, but also a fair amount about law — always with the intention of expressing my opinions in language that any well-educated layman can understand. On July 6, 2008, I wrote at my usual tedious length about the Supreme Court's embarrassing mistake in the case overturning Louisiana's capital sentence for a child rapist, Kennedy v. Louisiana, in which Justice Kennedy, writing for a five-Justice majority (which also included Justices Stevens, Souter, Ginsberg, and Breyer), insisted that neither any other state nor the federal government permitted the death penalty for child rapists. That was a major premise for their holding that "evolving standards of decency" under their "living, breathing" version of the Eighth Amendment no longer permitted Louisiana's death sentence for convicted child rapist Patrick Kennedy. And that statement was absolutely wrong: Congress and the president had recently acted to amend the Uniform Code of Military Justice to permit the death penalty for exactly that crime.

Even the editorial board of the Washington Post had urged the Supreme Court to grant rehearing in the case to address this enormous blunder. Here's what I predicted, however:

There assuredly will be a motion for rehearing filed, and even if there's not, the Court could consider reconsidering the case on its own, sua sponte. But only a naive wanker would expect the Emperor of America, Mr. Justice Anthony Kennedy, or any of the other four Justices who joined his opinion for the majority, to actually change their votes. At most, those five will permit limited supplemental briefing by both sides. There won't be additional oral argument. And in short order, Justice Kennedy will write a short supplemental opinion. It will announce the denial of rehearing. It will try to explain why the laws that America, through its Congress and president, has chosen to apply to its own uniformed sons and daughters are nevertheless absolutely meaningless data points in the SCOTUS' determination of America's "evolving standards of decency."

Today the Supreme Court did exactly what I predicted.

What shocked me about the Supreme Court's blunder was that it demonstrated how little the Supreme Court knew about the Uniform Code of Military Justice. And yet in Boumediene v. Bush, those same five Justices had, just a month earlier, overturned as unconstitutional a provision of a law passed by Congress and signed by the president that restricted the availability of habeas corpus as a remedy to individuals detained at Guantanamo Bay Naval Station as enemy combatants. It did so, in large part, based on the notion that the alternative procedures crafted by Congress and approved by the president in the Military Commissions Act were constitutionally inadequate — even though those provisions were modeled upon, and provided procedural and substantive protections generally comparable to those which govern our military personnel under, the UCMJ.

In a sentence: In June the SCOTUS said UCMJ-based provisions are inadequate; in July the SCOTUS proved that it has no clue what the UCMJ actually says.

Now, I emphatically do not believe that one need be a lawyer to be qualified to be president or vice-president. That's why we've had an Attorney General and a Department of Justice [see update below] since the founding of the Republic. Indeed, the fact that neither John McCain nor Sarah Palin are lawyers themselves is a definite feature — not a bug — of the McCain-Palin ticket!

But both Barack Obama and Joe Biden are indeed lawyers, and Barack Obama frequently reminds us that he's even been a "professor of constitutional law" (which is a slight overstatement, but whatever). He immediately applauded the Boumediene decision:

Taking audience questions in Pennsylvania, Obama praised Thursday's Supreme Court decision to allow detainees at Guantanamo Bay to challenge their imprisonment in federal courts. Enforcing habeas corpus rights, he said, is "the essence of who we are."

"Even when Nazis' atrocities became known in the 1940s, he said, "we still gave them a day in court" at the Nuremberg trials. "That taught the entire world about who we are," he said.

That was spectacularly clueless, and one of the many occasions on which Obama has demonstrated that for all his fine degrees from Columbia and Harvard Law, he's ignorant of world history. First, no one at Nuremberg was permitted to file a habeas corpus petition in the American courts. Second, the Military Commissions Act provides substantially greater procedural and substantive protection than what any of the Nuremberg defendants had.

Moral: A non-lawyer who will seek competent legal advice is far less dangerous than a lawyer who thinks he knows history and the law, but is demonstrably wrong about both. And every one of the SCOTUS justices whom Barack Obama has held up as "models" in the mold he's promised to appoint as president were among the majority who blundered in Kennedy v. Louisiana, and who pull their interpretations of the Constitution out of thin air to match their own sentiments.

Rights for foreigners accused of being terrorists that even our own service personnel don't get. A "living, breathing" Constitution whose answers, my friends, are blowin' in the wind. You do get an indirect vote on whether that's what you want — but you have to cast it through your choices for POTUS/VPOTUS and (even less directly) U.S. Senators. Judicial appointments are just one more issue on which this year's presidential election presents you with a stark, vivid choice.


UPDATE (Thu Oct 2 @ 2:22 a.m. CST): Proving my point about the dangers of lawyers who are convinced they know history that turns out to be just not quite so, an astute commenter on my own blog — a non-lawyer, in fact! — pointed out that although the Attorney General was indeed part of Washington's first cabinet, the Department of Justice as an institution only dates back to 1870. Mea culpa.

— Beldar

Posted by Beldar at 06:25 PM in 2008 Election, Congress, Global War on Terror, Law (2008), McCain, Obama, Palin, Politics (2008), SCOTUS & federal courts | Permalink


Other weblog posts, if any, whose authors have linked to SCOTUS admits blunder on UCMJ, but says "Nevermind," and shows again how Obama's model judges pull constitutional law from thin air and sent a trackback ping are listed here:


(1) Carol Herman made the following comment | Oct 1, 2008 7:52:51 PM | Permalink

Anthony Kennedy is a good example of "unintended consequences." For some reason conservatives thought they'd "get their wish list filled," if only "their justices" were put up on the bench. When the time came to fill one of the seats.

So, what happens?

You saw Bork UNLIKED by the majority! And, you then saw Anthony Kennedy and Souter, coming down the pike as "stealth candidates."

It's a very bitter feeling when people can't agree on talent. And, yes, there are talented judges out there. But they don't past "litmus tests."

Today? Here you have an example of an unpopular president Bush ... getting a "replacement" in McCain. And, McCain seems as desperate as Bush, in throwing opportunities away.

Yes, I'll probably vote for the Manchurian Candiate. Because I think the republicans are about to get blown out of the water! And, if we got Obama into the White House, with a democratic congress ... we fall into the pit of socialism.

And, yes. The MSM would declare victory!

ANd, what have you got? Women "won't get abortions." Which is very unlikely. And, it's the wrong issue!

While legislators don't mind "Bail outs" because the pork is in it for them, too.

Oh. I'll add another. IF Biden really can't make Palin "fade?" He fades. And, Hillary could come in as veep.

Then? McCain's chances of winning disappear.

Now, as I said, I'll vote for McCain! Because he won't get support, unless he "gives away the store to the democrats!" And, if he does that? He destroys the republican party.

But? He may be scared now.

He may figure out that Soros is behind the money mischief. Where the banks are still refusing to loan MAIN STREET.

Did you know bankers make their money making loans? How come the Fed, adding $630 BILLION to FDIC ... hasn't moved anyone forward, willing to compete to make loans?

Ya know? WE SURVIVED ENRON'S COLLAPSE! And, World Com. So, it doesn't matter. Greedy people, in our Capitalistic system, deserve to fail.

Hank Paulson should be facing jail time, just the way Michael Milken did.

(2) Gregory Koster made the following comment | Oct 1, 2008 9:32:43 PM | Permalink

Dear Mr. Dyer: First, a trifle: the Department of Justice wasn't created until 1870. Up till that time, the Attorney General had to do all the Washington work himself, and ride herd on the US Attys. Didn't even get paid so much as the rest of the Cabinet. Took the Civil War to change this. I find this odd, given that the Atty. Genl. has been in the Cabinet since the creation of the Republic, but didn't get a department for 82 years.

LOUISIANA v. KENNEDY was a dreadful decision, even before the discovery of the UCMJ code section. But I think you are prohibited from complaining. Why? Recall the recent sexual harassment complaint against Samuel B. Kent, a Federal District Judge in Galveston. His antics on the bench are notorious. But the latest one, concerning possible sexual harassment, was covered up, being heard behind closed doors by Sam's peers and a few of his bosses on the Fifth Circuit. Details from this hearing? None. I objected to such covering up. You objected to my objection, arguing that the judges were honorable men and women, and without my presenting any evidence to the contrary, we should not assume that judges are part of a conspiracy against the laity, to let Sammy get away with his swinish behavior.

It's an honest, honorable argument, though I don't agree with it. So why not stick to it in LOUISIANA v. KENNEDY? Viz: these were honorable judges who made a mistake, have acknowledged it, let's move on? Obviously because we know what the mistake was, and can see it. We don't know much about Sammy Kent and His Odious Behavior, because the honest, honorable judges slammed the door shut. Slamming the door shut, in my view, is more odious than LOUISIANA v. KENNEDY. Lv.K at least has the merit of being honest: "Whaddaya gonna do about sucker?" as opposed to the bunkum about judicial independence being compromised by Sammy having to answer for his actions just as you or I would if we were as boorish, tyrannical and corrupt as Hon. Sam.

Cynical? 200 proof, laced with strychnine. I don't see how anyone can have much faith, "the evidence of things not seen" in either the federal or state judiciaries, these days. You write:

"A non-lawyer who will seek competent legal advice is far less dangerous than a lawyer who thinks he knows history and the law, but is demonstrably wrong about both."

The joker in your sentence is "competent legal advice." EVERY LAWYER in Lv.K missed the section in the Uniform Code of Military Justice. When brought up, it's acknowledged with an indifference that rightly maddens you, but brings a shrug to me. What else do we expect from the judiciary?

I dislike making these points because they reek of ad hominem toward you, who've always been most cordial. If I receive a card in the mail, asking the names of my seconds and proposing places for the duel, I wouldn't blame you. I would invest in a Kevlar suit though, knowing how accurate your shots are. Nonetheless, I stand by my argument that the judiciary is badly corrupted with arrogance, and the uncorrupted judges are unable or unwilling to do anything about it.

Finally, I disagree with you that judicial picks are a stark contrast in this election. You are bang right about Obama being the candidate for judicial supremacy so long as it's from the left. But McC as a counterweight? I don't know. The more I think about it, the more alarmed I get on this issue. Consider: in the midst of the Wall Street blowup, McC suddenly explodes and bawls that it's all the SEC chairman's fault (most unlikely; the SEC's role was tangential), and he should be canned. When it's pointed out to him that the Prez can't fire SEC commissioners (though he could remove the Chairman, Chris Cox, booting him down into the galley rows with the other commissioners), McC growled , When I'm Prez, if I want a resignation, I'll get it. This roar of defiance, very reassuring when McC is dealing with foreign affairs, is unsettling in this case. But his pick for Cox's replacement?

Andrew Cuomo.

Andrew Cuomo. Good God. Good God. Forget the 200 proof cynicism, bring on the absinthe, laced with LSD. Why stop there, John? Why not appoint Eliot Spitzer and be done with it? If this is the sort of advice McC takes from his economic advisers in re CoX and Wall Street, who knows what sort of judges he'd nominate? No, McC's position on judicial picking, always unsettling to contemplate, is now dismaying, with a large helping of horror mixed in.

Sincerely yours,
Gregory Koster

(3) Beldar made the following comment | Oct 1, 2008 11:13:06 PM | Permalink

Mr. Koster: I did not know that the Justice Department was of such recent origins, and I too find it surprising. We also agree that the Grumpy Old Man's mention of Andrew Cuomo was frightening. Be assured that with respect to the balance of your remarks, no offense has been taken.

(4) A.W. made the following comment | Oct 2, 2008 10:27:08 AM | Permalink

I never really thought it made a difference, except in the sense that it gave them an excuse to reconsider an undemocratic and unconstitutional decision. Apparently even with universal blowback they didn't bite.

I honestly predict that within 20 years it will achieve a status identical to Roe: a decision whose reasoning is universally considered so poor as to be indefensible, even by those who feel it reached the correct outcome. What they did there was not to interpret the constitution as it was meant to be, or even making an honest attempt to do that and failing. Nor was it a faithful following of precedent. Nor was it a credible reading of the present zietgeist. It was pure judicial fiat.

I believe in God and Heaven. And on his day of judgment, God will have a few stern words for Justice Kennedy for his atrocious activism in defense of child rape.

And if you are wondering if it is fair to call it activism, try this simple test? Try this simple test. Which is worse. A traitor who literally never caused a single American death. A defendant who robs a bank with another man, whose accomplice shoots and kills a police officer over the defendant's objection?

Or the Defendant in this case, who raped his 8 year old daughter so violently, it ruptured the barrier between her anus and vagina?

(sorry to be graphic, but its necessary to get my point across.)

Now guess which ones can be executed under current law? The traitor, the bank robber, but not the child rapist. I believe in property rights and my patriot heart boils at the thought of treason, but there is no way those fictional examples were worse than the defendant in the present case (so who would i execute? all of the above!).

The decision is utterly indefensible.

(5) Milhouse made the following comment | Oct 2, 2008 10:54:10 AM | Permalink

Dear Mr. Koster

First of all, the president can fire the chairman of the SEC, completely at his will, for any reason or none. This is beyond question, and the attempt by those who made this stupid error to claim that what they meant was that he can't boot the chairman off the commission entirely won't wash. When one speaks of the chairman of some body being "fired" or "canned" or any other such term, one means that he is removed from that position, not from some other position that they also hold. When the Speaker of the House is ousted in a party room coup, she doesn't stop being a Representative. When a military officer is relieved of command he remains a uniformed member of his armed force.

Second, even if McCain had meant that he would have fired Cox completely, from all positions that he holds including that of SEC commissioner, guess what, the president can do that — not on a whim, but for cause, including "inefficiency" or "neglect of duty". Whether a commissioner has been inefficient or neglectful is of course entirely a judgment call, and it's the president's judgment to make. McCain clearly believes (incorrectly, IMHO) that Cox shares responsibility for the current crisis, and has therefore by definition been inefficient and neglectful of his duty. It follows that if he were president he would be able to fire him.

Third, "When I'm Prez, if I want a resignation, I'll get it" is not "defiance" but a statement of fact. Whether or not a president has the formal power to remove some member of the executive branch, that member still works for the president, and if the president wants him to resign he will resign.

Now this is all about whether McCain was right to claim that he could fire Cox, not whether he should. I thoroughly disagree with McCain, both about Cox needing to be fired and about his proposed replacement. If he's going to make the same appointments as Obama would, why vote for him in the first place? Unfortunately McCain's disdain for private enterprise is long-standing. He does not share the bourgeois values that are at the core of what we believe America stands for. He's a conservative, not a (classical) liberal, and his values are those of the upper class, not the middle class. He shares that disdain for "middleclassness" with, of all people, Jeremiah Wright and his church, and it's not a flattering aspect of his character. But the only alternative is Obama, who has almost all of McCain's faults in worse measure, plus some more of his own.

(6) Gregory Koster made the following comment | Oct 2, 2008 2:51:35 PM | Permalink

Dear Milhouse: I, middle aged, increasingly decrepit, admire your flexibility, I really do. Your statement:

"First of all, the president can fire the chairman of the SEC, completely at his will, for any reason or none. This is beyond question..."

is remarkably rubbery. The Prez can sack, as the British say, the Chair as Chair, but having done so, the sackee remains as Commissioner. I think it is fair to say that when McC said he would sack Cox, most of us had an image of Cox in the gutter outside 100 F Street, wincing and trying to rub McC's bootprint off his backside. Turns out that this image isn't correct, that Chris will still be lolling inside, smirking at McC with a "Whaddaya gonna do now, chum?" look on his face. As you say, commissioners can be removed for cause. But this isn't "at the pleasure of the Prez." No, indeed. I cannot find the actual procedure the Prez must follow, but I can direct you to the diary of David Lilenthal, specifically THE TVA YEARS . Lilienthal, one of the original commissioners of the Tennesee Valley Authority, got in a murderous struggle with Arthur Morgan, the chair. The war, by karl Cluasewitz out of CVILIZATION AND ITS DISCONTENTS, got bad enough that Franklin Roosevelt finally fired Morgan for cause in 1938, after a two year struggle. But this firing for cause was no simple matter, but trench warfare in the manner of Verdun, with the same results. McC is in for a nasty surprise if he thinks Commissioner, (formerly chairman)Cox will quail when he howls "Fix bayonets!" and charges. You may be right that the moral effect of the Prez telling a recalcitrant commissioner that the commissioner needs to get the hell out will be enough to get a resignation. This is certainly less likely if said commissioner feels he's been canned unfairly, as Cox likely would think.

Nowhere in McC's statement did I catch a whiff of nuance about remaining on the Commission after being canned as Chair. No, what came through was the atmosphere of a drumhead court martial, with plenty of bullets flying---one way---followed by the Funeral March as McC tramples Cox's hat in the dust and breaks Cox's sword over Harry Reid's head.

Next your statement:

"Whether or not a president has the formal power to remove some member of the executive branch, that member still works for the president, and if the president wants him to resign he will resign."

is interesting. If you'll move to one side, we'll have Leon Jaworski come in. Mr. Jaworski, you were a member of the executive branch in 1974 weren't you? Right, now isn't it true that Richard Nixon wanted to can you? Yes? So why didn't you resign? How interesting, isn't it Milhouse...Milhouse? Dear me, Milhouse has left. And I didn't get a chance to tell Milhouse that any party coup that would dispose of the Speaker of the House might indeed leave the coup victim out of the House, involuntarily. After all, Article I Section 2 of the Constitution does not require the Speaker to be a member of the House. Disingenuous and irrelevant? Well, sure, but why should Milhouse have all the hair splitting fun of defining what being fired means?

Meanwhile, having established that McC, if elected Prez, has all the vast powers of the Executive, including the firing of recalcitrant members of the Executive, such as Archibald Cox, whom Nixon canned and made stick by God, showing the country that he was Prez, roaring defiance to the depths---having established that in a run-on sentence of remarkable length, how much wisdom do I think resides with McC? Here, I am more uneasy every day, so far as domestic policies go. All that is left is foreign affairs. Good thing my confidence in McC remains sky-high. Otherwise I'd have no reason to swallow the dose of castor oil that McC is for a Republican of my stripe. Maybe Milhouse's too.

Sincerely yours,
Gregory Koster

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