Sotomayor Says Roe v. Wade Is Established Law

The Huffington Post

Judge Sonia Sotomayor declared unequivocally on Tuesday that the right to choose an abortion, as determined by Roe v. Wade, was established as law by the Supreme Court. In the process, the Obama nominee left the clear impression that she would vote to uphold abortion rights should the she be confirmed to the bench.
"The court's decision in Planned Parenthood vs. Casey reaffirmed the court holding of Roe," Sotomayor told the Senate Judiciary Committee. "That is the precedent of the court and settled in terms of the holding of the court."
Earlier in the question and answer session, Sotomayor was pressed to explain her view on the right to privacy, which provides the constitutional basis for the Supreme Court's ruling on abortion rights.
"There is a right of privacy," she replied. " The court has found it in various places in the Constitution.... It is found in the Fourth Amendment's prohibition against unreasonable search and seizures ... It's also found in the 14th Amendment of the Constitution when it is considered in the context of the liberty interests protected by the due process clause of the Constitution.

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Ten Things To Know About Judge Sonia Sotomayor

Moveon.org

1. Judge Sotomayor would bring more federal judicial experience to the bench than any Supreme Court justice in 100 years. Over her three-decade career, she has served in a wide variety of legal roles, including as a prosecutor, litigator, and judge.
2. Judge Sotomayor is a trailblazer. She was the first Latina to serve on the Court of Appeals for the Second Circuit and was the youngest member of the court when appointed to the District Court for the Southern District of New York. If confirmed, she will be the first Hispanic to sit on the U.S. Supreme Court.
3. While on the bench, Judge Sotomayor has consistently protected the rights of working Americans, ruling in favor of health benefits and fair wages for workers in several cases.
4. Judge Sotomayor has shown strong support for First Amendment rights, including in cases of religious expression and the rights to assembly and free speech.
5. Judge Sotomayor has a strong record on civil rights cases, ruling for plaintiffs who had been discriminated against based on disability, sex and race.
6. Judge Sotomayor embodies the American dream. Born to Puerto Rican parents, she grew up in a South Bronx housing project and was raised from age nine by a single mother, excelling in school and working her way to graduate summa cum laude from Princeton University and to become an editor of the Law Journal at Yale Law School.
7. In 1995, Judge Sotomayor "saved baseball" when she stopped the owners from illegally changing their bargaining agreement with the players, thereby ending the longest professional sports walk-out in history.
8. Judge Sotomayor ruled in favor of the environment in a case of protecting aquatic life in the vicinity of power plants in 2007, a decision that was overturned by the Roberts Supreme Court.
9. In 1992, Judge Sotomayor was confirmed by the Senate without opposition after being appointed to the bench by George H.W. Bush.
10. Judge Sotomayor is a widely respected legal figure, having been described as "...an outstanding colleague with a keen legal mind," "highly qualified for any position in which wisdom, intelligence, collegiality and good character would be assets," and "a role model of aspiration, discipline, commitment, intellectual prowess and integrity."
Judge Sotomayor is an historic, uniquely qualified nominee to the Supreme Court. Let's get the word out and make sure we get a prompt, fair confirmation on her nomination.
Thanks for all you do,
-Nita, Kat, Daniel, Ilyse and the rest of the team
Sources for each of the 10 things:
1. White House Statement, May 26, 2009.
2. White House Statement, May 26, 2009a
3. Cases: Archie v. Grand Cent. Partnership, 997 F. Supp. 504 (S.D.N.Y. 1998) and Marcella v. Capital Dist. Physicians' Health Plan, Inc., 293 F.3d 42 (2d Cir. 2002).
4. Cases: Flamer v. White Plains, 841 F. Supp. 1365 (S.D.N.Y. 1993), Ford v. McGinnis, 352 F.3d 382 (2d Cir. 2003), and Campos v. Coughlin, 854 F. Supp. 194 (S.D.N.Y. 1994).
5a. "Sotomayor's Notable Court Opinions and Articles," The New York Times, May 26, 2009.
5b. Cases: Bartlett v. N.Y. State Board, 970 F. Supp. 1094 (S.D.N.Y. 1997), Greenbaum v. Svenska Hendelsbanken, 67 F.Supp.2d 228 (S.D.N.Y. 1999), Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001), and Gant v. Wallingford Board of Education, 195 F.3d 134 (2d Cir. 1999).
6. "Sonia Sotomayor: 10 Things You Should Know," The Huffington Post, May 26, 2009.
7. "How Sotomayor 'Saved' Baseball," Time, May 26, 2009.
8. "Sotomayor's resume, record on notable cases," CNN, May 26, 2009.

9. "Sotomayor's resume, record on notable cases," CNN, May 26, 2009.
10a. Judge Richard C. Wesley, a George W. Bush appointee to the Second Circuit.
10b. "Sotomayor is Highly Qualified," The Wall Street Journal, May 9, 2009.
10c. Honorary Degree Citation, Pace University School of Law, 2003 Commencement.

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Coleman appeal to U.S. Supreme Court would find Bush v. Gore foe in Souter

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Minnesota Independent

Norm Coleman should be crying crocodile tears over David Souter's imminent departure from the U.S. Supreme Court. The former senator may yet bring an election case to the nation's high court that relies on the 2000 Bush v. Gore recount ruling. Souter abhorred the Bush v. Gore decision more viscerally than any successor ever could.
Here's how much Souter despised the Bush v. Gore decision, as recounted in New Yorker reporter Jeffrey Toobin's 2007 book, "The Nine":

David Souter alone was shattered. He was, fundamentally, a very different person from his colleagues. It wasn't just that they had immediate families; their lives off the bench were entirely unlike his. They went to parties and conferences; they gave speeches; they mingled in Washington, where cynicism about everything, including the work of the Supreme Court, was universal.
Toughened, or coarsened, by their worldly lives, the other dissenters could shrug and move on, but Souter couldn't. His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues' actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.
Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the court was never the same. There were times when David Souter thought of Bush v. Gore and wept.

Souter was more restrained in his written dissent in Bush v. Gore. More remarkable was that the majority opinion that gave George W. Bush the presidency also famously proscribed using the decision as precedent:

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

Yet in the brief he submitted to the Minnesota Supreme Court on April 30, Coleman cited Bush v. Gore five times.

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McCain to Attack Obama for Public Radio Comments from 2001

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This is typical McCain. He's going to try to make hay on an out of context comment that Obama made in 2001. Actually, Obama here acknowledges a conservative belief that change shouldn't come from the courts, but from the community. He says he agrees with McCain. McCain plays to the ignorant. Or maybe HE is the ignorant, doesn't understand the theoretical constitutional legal argument!
Political Punch

On September 6, 2001, then-state senator Barack Obama appeared on a public radio chat show to discuss "Slavery and the Constitution." You can listen to the whole show HERE.
In that show -- WBEZ-FM's "Odyssey" -- Obama discussed the role of the courts in civil rights.
Today, aides say, Sen. John McCain, R-Ariz., will seize on some of those remarks, as hyped by Mr. Drudge.
Obama in that interview said, "If you look at the victories and failures of the civil rights movement, and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples, so that I would now have the right to vote, I would now be able to sit at a lunch counter and order and as long as I could pay for it I'd be okay."
"But," Obama said, "The Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent as radical as I think people tried to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the founding fathers in the Constitution, as least as it's been interpreted, and Warren Court interpreted in the same way that generally the Constitution is a charter of negative liberties, says what the states can't do to you, says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf. And that hasn't shifted."
Obama said "one of the, I think, the tragedies of the civil rights movement, was because the civil rights movement became so court focused, I think that there was a tendency to lose track of the political and community organizing activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change, and in some ways we still stuffer from that."
A caller, "Karen," asked if it's "too late for that kind of reparative work economically?" And she asked if that work should be done through the courts or through legislation.
"Maybe I'm showing my bias here as a legislator as well as a law professor," Obama said. "I'm not optimistic about bringing about major redistributive change through the courts. The institution just isn't structured that way."
Presumably McCain will go after Obama in ways some on the conservative bloggosphere are today, accusing Obama of calling it a "tragedy" for not venturing into "the issues of redistribution of wealth" -- though Obama's campaign says that's a twisting of his words.
"In this interview back in 2001, Obama was talking about the civil rights movement - and the kind of work that has to be done on the ground to make sure that everyone can live out the promise of equality," Obama campaign spokesman Bill Burton says. "Make no mistake, this has nothing to do with Obama's economic plan or his plan to give the middle class a tax cut. It's just another distraction from an increasingly desperate McCain campaign."
Burton continues: "In the interview, Obama went into extensive detail to explain why the courts should not get into that business of 'redistributing' wealth. Obama's point - and what he called a tragedy - was that legal victories in the Civil Rights led too many people to rely on the courts to change society for the better. That view is shared by conservative judges and legal scholars across the country.
"As Obama has said before and written about, he believes that change comes from the bottom up - not from the corridors of Washington," Burton says. "He worked in struggling communities to improve the economic situation of people on the South Side of Chicago, who lost their jobs when the steel plants closed. And he's worked as a legislator to provide tax relief and health care to middle-class families. And so Obama's point was simply that if we want to improve economic conditions for people in this country, we should do so by bringing people together at the community level and getting everyone involved in our democratic process."
-- jpt

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Something is Wrong with Our Justice System

There is something wrong with our justice system. Michael Vick gets 23 months in prison Monday for his role in a dogfighting conspiracy, and Barry Bonds faces a 30 year in prison term if convicted for lying to a grand jury about steroid use.
The US has the highest rate of imprisonment of any country in the world, 40 percent greater than those of our nearest competitors (the Bahamas, Belarus, and Russia). One in 32 Americans are in jail or prison. Too many are young African Americans and way too many are imprisoned for petty drug offenses. Not only are we creating more victims, we're ensuring their future success as criminals in the best training grounds (prisons). We can no longer afford this sick system, by taxes, or moral responsibility.

Supreme Court Judge Bought and Paid For by Murdoch

The Nation

The long-awaited publication of Clarence Thomas's memoir, "My Grandfather's Son," out Monday, makes you wonder: how come none of the presidential candidates have said a word about the Supreme Court in any of their debates? Three sitting justices are expected to resign in the next four years--and they're all on the liberal side: John Paul Stevens, David Souter, and Ruth Bader Ginsburg.


The publication facts behind Thomas's book ought to be discussed by all the candidates: he received an advance of $1.5 million in 2003 from HarperCollins, which is owned by Rupert Murdoch. If you thought the Court dealt with any issues of relevance to Murdoch, you might call it a conflict of interest for Thomas to accept that payment--far more than any sitting justice ever received from any single source. At least you might mention the fabled "appearance of impropriety." You might call the $1.5 million a thank-you gift from Murdoch for services rendered. You might even wonder if it might be a subtle suggestion to other justices who will be ruling on Murdoch-related issues in the future.


Of course Thomas could avoid that "appearance of impropriety" by recusing himself for the rest of his career from any case raising issues concerning Murdoch, Fox, the First Amendment, copyright law, libel, or any other issues in media or communications law. That would give him a lot of time off.

White House in Contempt

ConyersBlog | John Conyers for Congress

I wanted to take the opportunity to update you on the status of the contempt of Congress resolution in the House of Representatives.


As you may know, the Judiciary Committee passed a resolution before the August recess holding the White House and Harriet Miers in contempt of Congress for their failure to provide documents and appear before the committee as legally required by subpoena.


The information we have received to date from the Justice Department from our U.S. Attorneys investigation indicates the White House played a central role in the firing of the nine federal prosecutors. Yet, the White House has stonewalled and consistently refused to cooperate with inquiries into this matter.


At the heart of our investigation is the evidence uncovered suggesting that the nine U.S. Attorneys were fired for politically-motivated reasons, while others may have been retained because they were pursuing partisan investigations.


We have also discovered that job candidates' political contributions and affiliations were considered in hiring decisions for nonpartisan positions in the Department of Justice. Our job has been made more difficult by apparent misleading testimony from the Attorney General and other Department of Justice officials.


This politicization of our judicial system cannot be tolerated. Our citizens have a right to expect that federal prosecutions will be conducted in a fair and nonpartisan manner.


There are many steps we can take in this confrontation with the White House. Some are more extreme than others. What we must first do is get the facts that show who made these decisions in the White House. Only once we have this evidence can we adequately pursue justice.


What is now required is for the House to pass these contempt of Congress citations and pursue legal action against the White House and Harriet Miers for their failure to meet the requirements of the subpoenas. Hopefully this contempt of Congress resolution will soon have a vote on the floor of the House. I am not prepared to allow this administration to operate above the law.


Thank you for your continued support for a better democracy.


John Conyers, Jr.

Bush's Damage to Rule of Law

Never before in the US history I'm aware of, has been rule of law so undermined by a President. Clearly, Bush and Cheney believe the President and Executive branch is above the law. Here is a must read editorial from the New York Times.

President Bush is notorious for issuing statements taking exception to hundreds of bills as he signs them. This week, we learned that in a shocking number of cases, the Bush administration has refused to enact those laws. Congress should use its powers to insist that its laws are obeyed.


The Government Accountability Office, a nonpartisan arm of Congress, investigated 19 provisions to which Mr. Bush objected. It found that six of them, or nearly a third, have not been implemented as the law requires. The G.A.O. did not investigate some of the most infamous signing statements, like the challenge to a ban on torture. But the ones it looked into are disturbing enough.


In one case, Congress directed the Pentagon in its 2007 budget request to account separately for the cost of military operations in Iraq and Afghanistan. It was a perfectly appropriate request, but Mr. Bush issued a signing statement critical of the rule, and the Pentagon withheld the information. In two other cases, federal agencies ignored laws requiring them to get permission from Congressional committees before taking particular actions.


The Bush administration’s disregard for these laws is part of its extraordinary theory of the “unitary executive.” The administration asserts that the president has the sole authority to supervise and direct executive officers, and that Congress and the courts cannot interfere. This theory, which has no support in American history or the Constitution, is a formula for autocracy.


Other presidents have issued signing statements, but none has issued as many, or done so with the same contemptuous attitude toward the co-equal branches of government. The G.A.O. report makes clear that Mr. Bush’s signing statements were virtually written instructions to executive agencies to flout acts of Congress. Senator Robert Byrd, Democrat of West Virginia, has said that the report shows that Mr. Bush “is constantly grabbing for more power” and trying to push Congress “to the sidelines.”


Members of Congress have a variety of methods available to make the administration obey the law. They should call the agency heads up to Capitol Hill to explain their intransigence. And they should use the power of the purse, the authority the founders wisely vested in the people’s branch, as a check on a runaway executive branch.


When the Bush presidency ends, there will be a great deal of damage to repair, much of it to the Constitutional system. Congress should begin now to restore the principle that even the president and those who work for him are not above the law.

Motives Behind Prosecutor's Firings

Tomorrow Gonzales testifies to the Senate Judiciary Committee about the firings of US Prosecutors. This morning the news had his latest CYA statement about having a hazy memory of the affair.
Some people still say the President can choose whomever he wants to prosecute federal cases. If that were true, every President could cover any wrong-doing by party hacks by simply threatening the job of the prosecutor. One can be sure that this has happened in the past. But a wholesale firing at the top is about manipulating rule of law. AlterNet has an interesting theory of the reason behind the firings.

[..]the Supreme Court declared in Berger v. United States that a prosecutor's job is to see that justice is done, not to politicize justice. The mass ouster of the top prosecutors had more to do with keeping a grip on power -- by manipulating voting rights -- than with doing justice. And like the Watergate scandal, the evidence points to a cover-up.


This cover-up revolves around efforts by the Bush administration to disenfranchise African-American voters in communities where the vote would likely be close. George W. Bush came to power in 2000 by a razor- thin margin awarded him by the Supreme Court. During the 2004 election, there were allegations of attempts to disenfranchise African-American voters, especially in Ohio. Yet no voting discrimination cases were brought on behalf of African-American or Native American voters from 2001 to 2006.


Instead, the administration instigated efforts that would further disenfranchise these voters. U.S. attorneys were instructed to prosecute "voter fraud" cases. "Voter fraud" has "become almost synonymous with 'voting while black,'" the New York Times' Paul Krugman observed. Also, Republican lawmakers enacted voter ID laws which established new hurdles for voters to jump.


Former staffers in the Justice Department's civil rights division said they were "repeatedly overruled when they objected to Republican actions, ranging from Georgia's voter ID law to Tom DeLay's Texas redistricting, that they believed would effectively disenfranchise African-American voters," Krugman added.


The administration's effort to prosecute voter fraud is a sham. The New York Times reports that voter experts have found "widespread but not unanimous agreement that there is little polling place fraud." [..]


The Bush administration has been hyping voter fraud since the last election; Karl Rove called it an "enormous and growing" problem. Two of the fired U.S. attorneys, David Iglesias from Albuquerque and John McKay from Seattle, were dismissed because they refused to file voter fraud charges after being warned to do so by well-placed Republicans. Others were fired for pursuing investigations of Republicans.


Kyle Sampson, Alberto Gonzales' former right-hand man, wrote in an email that the qualification to be a U.S. attorney was to be a "loyal Bushie."


[..]Likewise, there is a suspicious 16-day gap in the email records between the Justice Department and the White House just before seven of the U.S. attorneys were fired in December. Moreover, many of the communications about the matter were conducted using email accounts of the Republican National Committee instead of government accounts, possibly in violation of the Presidential Records Act.


The Los Angeles Times reported that senior Justice Department officials prepared documentation to justify the firings after the dismissals. One Justice Department official threatened to "retaliate" against the eight fired U.S. attorneys if they continued to publicly speak about their dismissals.


Attorney General Alberto Gonzales, who heads the Justice Department, denied he was involved in discussions about the firings. But Sampson testified that Gonzales was consulted at least five times and signed off on the plan to fire the U.S. attorneys. "I don't think it's entirely accurate what he [Gonzales] said," Sampson told the Senate Judiciary Committee.


Gonzales is reportedly sweating bricks over his own testimony before that Committee, slated for April 17. As a result of Gonzales' stonewalling in response to the House Judiciary Committee's request for documents, committee chairman Rep. John Conyers has subpoenaed the records. If the Justice Department defies the subpoena, the Judiciary Committee, and the full Congress, could cite the department for contempt of Congress, and a federal grand jury could issue criminal indictments for obstruction of justice.


The White House has indicated it will not allow Karl Rove and former White House Counsel Harriet Miers to testify under oath. Why the resistance unless they intend to lie?


Alberto Gonzales should be fired, not just for malfeasance in the U.S. attorney affair, but also for advising Bush to violate the Geneva Conventions which led to torture and abuse of prisoners in U.S. custody. Recall that Gonzales told Bush the Geneva Conventions were "quaint" and "obsolete." Those were the same words the Nazi lawyers used at Nuremberg to describe the Geneva Conventions.


Firing Gonzales may temporarily stanch the flood of accusations about the U.S. attorney matter. But the corruption, the lawbreaking, and the cover-up go deeper -- all the way up to the Oval Office. Hopefully, Nancy Pelosi and John Conyers will put impeachment back on the table.

Iglesias: Why I Was Fired

Bush and the Republicans have systematically undermined rule of law to benefit themselves and to further a fascistic agenda to roll back our civil rights under the guise of "never ending war." This in and of itself undermines the Constitution and American values and is in my mind an impeachable offense.
We see just how far our system has been undermined when a President who can't keep his pants zipped is impeached where as a President who would be king is still supported by a major political party.
There are so many impeachable offenses, yet none so far appears to be sticking. Hopefully, the latest will.
New York Times

WITH this week’s release of more than 3,000 Justice Department e-mail messages about the dismissal of eight federal prosecutors, it seems clear that politics played a role in the ousters.


Of course, as one of the eight, I’ve felt this way for some time. But now that the record is out there in black and white for the rest of the country to see, the argument that we were fired for “performance related” reasons (in the words of Deputy Attorney General Paul McNulty) is starting to look more than a little wobbly. MORE

washingtonpost.com

Mr. Iglesias, it turns out, was a late addition to the target list. He was a "diverse up-and-comer" considered for promotion and, in a March 2005 assessment, was placed in the category of "recommend retaining; strong U.S. attorneys who have produced well, managed well and exhibited loyalty to the president and attorney general." Indeed, Mr. Iglesias's name didn't turn up on the list of those to be terminated until Nov. 7, 2006. How and why? The answers, though still incomplete, do not paint the Bush administration in an attractive light.


It was already known, before testimony last month by D. Kyle Sampson, former chief of staff to Attorney General Alberto R. Gonzales, that two New Mexico Republicans -- Sen. Pete V. Domenici and Rep. Heather A. Wilson -- had called Mr. Iglesias before the election to inquire about a criminal investigation involving a Democratic politician. Mr. Domenici, having reached Mr. Iglesias at his home, hung up when the prosecutor informed him that no indictment would be forthcoming before the election; he also placed repeated calls to the attorney general and deputy attorney general complaining about Mr. Iglesias.


In addition, New Mexico Republican Party Chairman Allen Weh complained to White House adviser Karl Rove about Mr. Iglesias. And, last but not least, President Bush himself passed on to the attorney general complaints about U.S. attorneys, including Mr. Iglesias, who were allegedly failing to aggressively pursue voter fraud cases.


Mr. Sampson's testimony showed that Mr. Iglesias was added to the list after Mr. Rove also complained to the attorney general about Mr. Iglesias's supposedly poor performance on voter fraud. This revelation not only adds to the evidence undercutting the attorney general's professions of ignorance about the whole episode; it deepens the sense that the judgment about whom to fire was influenced, if not dictated, by political considerations.

Supreme Court: America's Have No Right To Elect A President

E. J. Dionne Jr. - Bypassing the Electoral College - washingtonpost.com
"The individual citizen has no federal constitutional right to vote for electors for the President of the United States. . . . "
That is not some reactionary piece of propaganda denying your right to choose the next president. It is one of the more memorable sentences from the Supreme Court's decision in Bush v. Gore, the hard-to-forget 2000 case that put the current occupant in the White House.
And strictly speaking, the court was right. As the majority opinion went on to note, we have the right to use our ballots to pick members of the electoral college -- which in turn chooses the president -- because every state legislature has decided on "statewide election" as the way to get the job done. In theory, legislatures have the power to pick electors without even consulting the voters.
The American way of electing presidents is antiquated, impractical and dangerous. It is odd indeed that in 2000, a nation devoted to spreading democracy throughout the world gave power to a man who received 543,895 fewer votes than his opponent. Under our system, George W. Bush's disputed 537-vote margin in Florida was deemed more important than Al Gore's half-million-ballot advantage nationwide.
And please, dear Republican friends, don't shout "Get over it!" Think back to 2004, when Bush defeated John Kerry by 3 million votes nationally. If just 59,300 people in Ohio had voted for Kerry instead of Bush, Kerry would have won the electoral college and become president. You can write the scripts for the Fox News commentaries about Kerry stealing the White House.
It does not have to be this way. As someone who lives in Maryland, I am proud that my state may pioneer a process that could lead to popular election of the president. The state Senate passed a bill last Wednesday that would commit Maryland's 10 electors to voting for the winner of the nationwide popular vote. The bill is expected to pass in the House of Delegates this week, and Gov. Martin O'Malley has said he would sign it.

Prosecutory Incompetence Convicts an Innocent Teacher

I just don't understand why prosecutors are elected. It would seem to me that the sensitivity and objectivity of the situations that involve the job would require an objective attorney without a political ax to grind. Here is an example of what can go wrong. Here a Detective over his head in a computer porn case gets an innocent woman convicted.
AlterNet

Julie Amero, a 40-year-old substitute teacher from Connecticut is facing up to 40 years in prison for exposing her seventh grade class to a cascade of pornographic imagery. Amero maintains that she is a victim of a malicious software infestation that caused her computer to spawn porn uncontrollably.


Amero's attorney, John F. Cocheo, argued that malware was responsible for the pornographic images, not his client.


Detective Mark Lounsbury, a computer crimes officer at the Norwich Police Department testified as an expert witness for the prosecution. He maintained that Amero was intentionally surfing for pornography while her seventh grade class busied itself with language arts.


Lounsbury told the court that Amero musts have "physically clicked" on pornographic links during class time in order to unleash the pornographic pictures. However, he admitted under cross-examination that the prosecution never even checked the computer for malware.


[..]Why didn't the police check for malicious software? According to prosecutor David Smith, the police didn't check for malware because the defense didn't raise the possibility of a malware attack during the pretrial phase, as required by law. Defense attorney Cocheo could not be reached for comment as of press time.


Herb Horner, the proprietor of the consulting firm Contemporary Computing Solutions, testified as an expert witness for the defense. His exhaustive independent forensic analysis of Amero's hard drive showed that the machine had been infected with multiple pieces of malicious software before she arrived at the school, and that these hidden programs were responsible for the pornographic deluge.


Horner arrived in court with two laptops filled with the voluminous records of his investigation. However, the judge only let him present two slides. Prosecutor Smith objected because his team hadn't been previously informed about the malware defense.


On Jan. 5, 2007, a Norwich jury found Amero guilty of four felony counts of "injury or risk of injury to, or impairing morals of, children." Each count carries a maximum sentence of 10 years and while it is unlikely that Amero will receive the maximum penalty, incarceration remains a very real possibility. Even if Amero avoids jail, she will be stripped of her teaching credentials unless the convictions are reversed.


News of the guilty verdict sparked widespread outrage, particularly in the IT community. How could a 40-year-old woman with no prior criminal record be facing such serious charges over a few pop-up ads?


"The fact that the machine was never scanned for spyware by the investigating authorities is outrageous. In fact, this alone should have resulted in the case being dismissed, as the defense found a major spyware infection by their expert forensic evidence," wrote Alex Eckelberry, the president of Sunbelt Software, a Florida-based firm that makes anti-spyware products.


Detective Lounsbury has completed two two-week FBI training seminars on computer security and other continuing education programs. He is also a certified user of the computer monitoring software ComputerCOP Pro.


[..]Lounsbury says he is satisfied that Amero intentionally viewed porn in class because the logs show that her computer accessed various inappropriate sites while she was sitting at the computer.


"I take that at face value," Lounsbury told Alternet. "It's evidence. It speaks for itself. The pop-up defense is a Twinkie defense."


Lounsbury said that Amero must have navigated to pornographic sites in order to have infected her computer with obscene popups. "You've got to get that ball rolling," he said.

Chief Justice Roberts A Minimalist

Perhaps Roberts can avoid being a revolutionary in the Supreme Court. His philosophy certainly minimized the chance of overturning major interpretations by focusing on the most narrow legal questions. On the other hand we might see a flurry of legal cases attempting to force a change or affirmation of, for example, Roe v. Wade.
Los Angeles Times

Last week, when Chief Justice John G. Roberts Jr. delivered his first commencement address, at Georgetown University Law Center, he offered an original, substantive and unambiguous defense of narrow, minimalist rulings.


Roberts began by arguing in favor of unanimous or near-unanimous opinions, which, he said, serve the rule of law by ensuring that the court's message is not confused by its own internal divisions. He went on to suggest that such a consensus on the part of the justices would, almost by necessity, lead to narrow rulings, limited in most situations to the particular issue at hand.


"The broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible ground," he said. After all, the nine justices have highly diverse views, and if they are able to join a single opinion, that opinion is likely to be narrow.


This, in the chief justice's view, is entirely desirable. "If it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more," he said.


Roberts made several approving references to Justice Felix Frankfurter, one of American history's great minimalist judges who consistently called for narrow rulings, especially on the issues that divide the nation most sharply. Writing more than 50 years ago, Frankfurter said that the court has an obligation "to avoid putting fetters upon the future by needless pronouncements today."


It was advice Frankfurter followed himself. In his opinion voting to strike down President Truman's 1952 seizure of the nation's steel mills, Frankfurter refused to say much about presidential power in general. He emphasized that "rigorous adherence to the narrow scope of the judicial function" is especially important when national security is at risk, notwithstanding the national "eagerness to settle — preferably forever — a specific problem on the basis of the broadest possible constitutional pronouncement."


Roberts referred, with unmistakable enthusiasm, to Frankfurter's suggestion that courts should focus on the concrete issue and "not embarrass the future too much."


What makes Roberts' argument noteworthy is that it takes a side in one of the deepest and most long-standing divisions in American jurisprudence — a division that cuts across the standard ideological lines.


One strand of that jurisprudence, associated with justices Antonin Scalia and Hugo Black, prizes broad, ambitious rulings on the ground that they give the clearest signals to lower courts, potential litigants and the nation as a whole. Scalia has long attacked minimalism on the ground that a court that resolves "one case at a time" leaves far too much doubt. If the court focuses on particular facts, people won't know, for example, when affirmative-action programs are permissible, when government can interfere with private choices and what, exactly, the president may or may not do to protect the nation.


The competing strand, associated with Frankfurter and Justice Sandra Day O'Connor, prizes narrow rulings. O'Connor emphasized the need for humility, which would require the justices to acknowledge what they do not know and to leave many questions undecided.

Breaking: Bush Selects Alito for Supreme Court

Cowed by a mutiny in his own party, Bush goes for his base. I think we'll see a brawl on this guy.
Bush Selects Alito for Supreme Court

President Bush today named appeals court Judge Samuel A. Alito Jr. to the U.S. Supreme Court. Alito, 55, serves on the Philadelphia-based U.S. Court of Appeals for the Third Circuit, where his record on abortion rights and church-state issues has been widely applauded by conservatives and criticized by liberals.
Alito, appointed to the appeals court in 1990 by George H.W. Bush, has been a regular for years on the White House's short list for the high court. He was also among those proposed by conservative intellectuals as an alternative to Harriet Miers, the White House counsel who withdrew as the nominee last week.


The Washington Post's Fred Barbash followed the step-by-step process of choosing a new chief justice. He'll continue to blog all of the events as President Bush nominates a candidate for associate justice.

[...]
Alito's resume, including his service in the Justice Department during the Reagan administration, is very much unlike Miers's, who had no appellate experience, and very much like that of Chief Justice John Roberts. Like Roberts, Alito served during the Reagan administration in the office of the Solicitor General, which argues on behalf of the government in the Supreme Court. Unlike Roberts, he has opined from the bench on both abortion rights, church-state separation and gender discrimination to the pleasure of conservatives and displeasure of liberals.


While he has been dubbed "Scalito" by some lawyers for a supposed affinity to conservative Supreme Court Justice Antonin Scalia and his Italian-American heritage, most observers believe that greatly oversimplifies his record. Alito is considered far less provocative a figure than Scalia both in personality and judicial temperament. His opinions and dissents tend to be dryly analytical rather than slashing.


In addition, his appeals court record is not uniformly conservative on the sorts of issues that arise in Supreme Court confirmation battles. In 2004, he ruled in favor of a complaint brought under the Individuals with Disabilities Education Act by a boy badly bullied by his classmates who was seeking legal relief but had been rebuffed by a U.S. District Court. He also authored a majority opinion granting federal court review to an African American who could not get state courts to hear his claim of racial bias on the part of a juror in his trial. The case involved a juror who used racial epithets outside the confines of the jury room. His record on the appeals court makes Alito less liable to suggestions made about Roberts, with only two years as a judge, that he is somehow a judicial mystery.


Rather, liberals are likely to focus on his opinions and dissents, most notably in the 1991 case, Planned Parenthood v. Casey. In that case, Alito joined joined a Third Circuit panel in upholding most of a Pennsylvania law imposing numerous restrictions on women seeking abortions. The law, among other things, required physicians to advise women of the potential medical dangers of abortion and tell them of the alternatives available. It also imposed a 24-hour waiting period for abortions and barred minors from obtaining abortions without parental consent. The panel, in that same ruling, struck down a single provision in the law requiring women to notify their husband's before they obtained an abortion. Alito dissented from that part of the decision. Citing previous opinions of O'Connor, Alito wrote that an abortion regulation is unconstitutional only if it imposes an undue burden on a woman's access to the procedure. The spousal notification provision, he wrote, does not constitute such a burden and must therefore only meet the requirement that it be rationally related to some legitimate government purpose.

[...]
While lauded by conservatives, Alito has also been criticized by women's rights organizations for his 1996 dissent in a sex discrimination case, Sheridan v. Dupont , in which he argued that the Third Circuit that had made it too easy for discrimination complaints to reach a jury trial. The standards for deciding when a discrimination case reaches trial are hotly controversial as they determine whether such a case moves forward at all.

To Bush and Roberts, Discrimination Doesn't Exist

Los Angeles Times

Speaking about the black residents of New Orleans, who were the storm's most visible victims, Dean said that Roberts' "entire legal career appears to be about making sure those folks don't have the same rights everybody else does."


"That's probably not the right thing to do," Dean continued, "two weeks after a disaster where certain members of society clearly did not have the same protections that everybody else did because of their circumstances…. I know Judge Roberts loves the law. I'm not sure he loves the American people."


Obama, appearing on ABC's "This Week," picked up the same head-and-heart theme: "I think what we do need to ask ourselves is whether he has the heart, the breadth of perspective and the recognition that historically the role of the court has been to look out not just for the powerful but also the powerless. "I think that Katrina does indicate that we've got a lot of problems in our midst … in terms of poverty, in terms of the differences in life opportunities for blacks, whites, Hispanics," Obama said. "That has to inform how we think about every branch of government and their functions, and I think that the Supreme Court is no different."


Obama, like Roberts, is a magna cum laude Harvard Law School graduate and a former top editor of the Harvard Law Review. He said Roberts had not appeared to take racial issues seriously in his judicial thinking. "There is an underlying concern that a judicial philosophy that ignores the possibilities of racial discrimination or gender discrimination, a political philosophy that typically errs on the side of the powerful, rather than the powerless, that's a judicial philosophy that can … exacerbate some of the problems that we have in this country," Obama said.
MORE

In another demonstration of the pendeluum swing, the back lash to busing and affirmative action, makes the color/gender blind perspective very popular. However, the truth of discrimination is real and growing. Discrimination comes in many forms. Race is just one form, another is gender, disability, and religious belief. America has an intolerent history. The only way it has made progress on this issue has been through legislation and favorable court decisions.
The Bush Administration and the Republicans wish to push back our common beliefs to one where behavior is a matter of character and religious practice. Then punishment and natural consequences are divine retribution. Any sort of support or a hand up interferes with the will of God. So, conveniently, the powerful rule.

FBI Whistleblower Is Getting No Justice

Is George Bush Above the Law?


"When the President does it, that means it's not illegal."
Richard Nixon
David Frost Interview


"Authority to set aside the laws is inherent in the president."
Memo to President Bush from the Justice Department

President George W. Bush is opposed to rule of law for the Executive Branch and its allies. To that end, he has invoked various forms of Executive Privilege to cover illegal activities of his administration and its allies. America can not be the home of the free and the brave unless we have a government contained by the laws of the land. Our very freedom is in jeopardy.
American Civil Liberties Union

The American Civil Liberties Union today urged the U.S. Supreme Court to review a lower court's dismissal of the case of Sibel Edmonds, a former FBI translator who was fired in retaliation for reporting security breaches and possible espionage within the Bureau. Lower courts dismissed the case when former Attorney General John Ashcroft invoked the rarely used "state secrets" privilege.


The Court created the so-called state secrets privilege more than 50 years ago but has not considered it since. The need for clarification of the doctrine is acute, the ACLU said, because the government is increasingly using the privilege to cover up its own wrongdoing and to keep legitimate cases out of court.


"Edmonds' case is not an isolated incident," said ACLU Associate Legal Director Ann Beeson. "The federal government is routinely retaliating against government employees who uncover weaknesses in our ability to prevent terrorist attacks or protect public safety."

Corporate Crime Reporter

Turkish officials boasted of giving “tens of thousands of dollars in surreptious payments” to House Speaker Dennis Hastert (R-Illinois) in exchange for political favors. That allegation is contained a profile of Federal Bureau of Investigations (FBI) whistleblower Sibel Edmonds in the current issue of Vanity Fair magazine.


The article, “An Inconvenient Patriot,” by British writer David Rose, reports that Edmonds was asked to listen to wiretaps as part of what appeared to be an FBI public corruption probe into bribes paid to members of Congress – both Democrat and Republican. Rose, citing “some of the wiretaps,” reports that “the FBI’s targets had arranged for tens of thousands of dollars to be paid to Hastert’s campaign funds in small checks.”


The article notes that under Federal Election Commission rules, “donations of less than $200 are not required to be itemized in public filings.” The article reports that Edmonds has given confidential testimony on several occasions – to congressional staffers, to the Inspector General, and to staff from the 9/11 commission.

The Turn of the Supreme Court

Bush's nomination to the Supreme Court really couldn't be much worse. He is a highly respected young judge on The Court of Appeals and so very likely hard to oppose by group of Senators that ended the filibuster debate.
But he carries just the sort of credentials Bush needs.
The only real hope left is that he will follow the legacy of his predecessor who also was thought to be an extreme conservative. Sandra O'Connor instead has served to maintain the more liberal mood of the court through the later part of the 20th Century.
IndependentJudiciary.com

John Roberts, Justice of the Court of Appeals, District of Columbia Circuit
Confirmed 5/8/2003


Reproductive Rights: As Deputy Solicitor General, Mr. Roberts co-wrote a Supreme Court brief in Rust v. Sullivan, for the first Bush administration, which argued that the government could prohibit doctors in federally-funded family planning programs from discussing abortions with their patients. The brief not only argued that the regulations were constitutional, notwithstanding the Supreme Court's decision in Roe v. Wade, but it also made the broader argument that Roe v. Wade was wrongly decided - an argument unnecessary to defend the regulation. The Supreme Court sided with the government on the narrower grounds that the regulation was constitutional.


Environmental Issues: As a student, Mr. Roberts wrote two law review articles arguing for an expansive reading of the Contracts and Takings clauses of the Constitution, taking positions that would restrict Congress' ability to protect the environment. As a member of the Solicitor General's office, Mr. Roberts was the lead counsel for the United States in the Supreme Court case Lujan v. National Wildlife Federation, in which the government argued that private citizens could not sue the federal government for violations of environmental regulations.


As a lawyer in private practice, Mr. Roberts has also represented large corporate interests opposing environmental controls. He submitted an amicus brief on behalf of the National Mining Association in the recent case Bragg v. West Virginia Coal Association. 3 In this case, a three-judge panel of the Fourth Circuit reversed a district court ruling that had stopped the practice of "mountaintop removal" in the state of West Virginia. Citizens of West Virginia who were adversely affected by the practice had sued the state, claiming damage to both their homes and the surrounding area generally. Three Republican appointees - Judges Niemeyer, Luttig, and Williams - held that West Virginia's issuance of permits to mining companies to extract coal by blasting the tops off of mountains and depositing the debris in nearby valleys and streams did not violate the 1977 Federal Surface Mining Control and Reclamation Act.4 This decision was greeted with great dismay by environmental groups. In another case, Roberts represented one of several intervenors in a case challenging the EPA’s promulgation of rules to reduce nitrogen oxide emissions.


Civil Rights: After a Supreme Court decision effectively nullified certain sections of the Voting Rights Act, Roberts was involved in the Reagan administration's effort to prevent Congress from overturning the Supreme Court's action. The Supreme Court had recently decided that certain sections of the Voting Rights Act could only be violated by intentional discrimination and not by laws that had a discriminatory effect, despite a lack of textual basis for this interpretation in the statute. Roberts was part of the effort to legitimize that decision and to stop Congress from overturning it.


Religion in Schools: While working with the Solicitor General's office, Mr. Roberts co-wrote an amicus brief on behalf of the Bush administration, in which he argued that public high schools can include religious ceremonies in their graduation programs, a view the Supreme Court rejected.


Pro Bono: Mr. Roberts has engaged in significant pro bono work while at Hogan and Hartson, including representation of indigent clients and criminal defendants.


Other Information: Mr. Roberts is a member of two prominent, right-wing legal groups that promote a pro-corporate, anti-regulatory agenda: the Federalist Society and the National Legal Center For The Public Interest, serving on the latter group's Legal Advisory Council.


Mr. Roberts lists his net worth as over $3.7 million.

Cole/Madison/Biden Stand Up Against Tyranny

On Sunday, Juan Cole in his Informed Comment posted the best I've seen from him on a topic I also wrote on that day, the nuclear option against the filibuster and the influence of James Madison on the checks and balances in the constitution. It's an outstanding lesson on the system of checks and balences built into the Constitution by our forefathers. Referencing the Constitution, be begins his point.

US Constitution:

Article 2, Section 2, Clause 2: He shall have power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court . . .

[Juan:]The senators have to consent. In the case of the presidents' treaties (which affect their prestige and often policies much more than a mere judicial appointment) there even has to be a 2/3s majority in concurrence. Such a supermajority is not required for the appointments, but there is clearly no presumption that the president should be deferred to by the senate. The president should be consulting beforehand, which would have made consent easier to obtain. The issue isn't the filibuster. The issue is the
independence of the Senate and of the judiciary. The question is whether we have 3 branches of government, or only one.
Cass Sunstein puts it well:

It may be granted that the Senate ought generally to be deferential to Presidential nominations involving the operation of the executive branch . . . The case is quite different, however, when the President is appointing members of a third branch. The judiciary is supposed to be independent of the President, not allied with him. It hardly needs emphasis that the judiciary is not intended to work under the President. This point is of special importance in light of the fact that many of the Court's decisions resolve conflicts between Congress and the President. A Presidential monopoly on the appointment of Supreme Court Justices thus threatens to unsettle the constitutional plan of checks and balances.

Madison became convinced that a large country could have a democratic government because its various local factions could never sufficiently unite to impose a tyranny of the majority: "the parts are so distant and remote, that it is very difficult, either by intrigue, prejudice, or passion, to hurry them into any measures against the public interest."

[...]
Madison was convinced by Hume that a federal government erected over a number of state governments, with a separation of powers, would be so beset by small diverse factions that no one could hope to impose its will on the entire country. So a country's very bigness could work, in a Madisonian system, to prevent a tyranny of the majority. [His concern was that a] simple majority rule would inevitably sacrifice the interests of the weaker party (even of the party with just 49 percent). How to avoid this tyranny of the majority?

[...]
The two-party system was itself a big step away from the Hume/Madison vision. But with with the regimentation of the parties made possible on a nation-wide basis by new media and new political techniques, and with the subordination of the judiciary to political party considerations, it has proved possible for the Republican Party to capture all three branches of the Federal government. In essence, the "large" and diverse Republic of the United States with many
unsubdueable factions is being reduced to being no different from the small and regimented demagogic "democracies" that Madison feared, dominated by a disciplined, majority faction.

Senator Joe Biden of Delaware in an appearance on MS-NBC's Hardball, made several important points about the risks involved in eliminating the filibuster. He notes that until 1947, judges had to be confirmed UNANIMOUSLY by Senate rules. This was because the constitution explicitly states:
US Constitution:

Article 2, Section 2, Clause 2: "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court . . .

The whole point is to ensure the independence of the judiciary. Each branch of the US Government is require by the Constitution to be independent so that they can check and balance the powers of the other branch. In fact, our forefathers, when they were writing the Constitution, the very right of the President nominating the judges at all was controversial. His role was passed by three votes. Our forefathers were very concerned about the tyranny of an authoritarian central  leader who had too much influence on the other branches of government. The power of the Senate was to represent State's rights. They were to represent the states, not the majority. The government of the states were to counter balance the power of the Federal government. Our government has drifted a long way from the concepts of State's rights and the intent that they compete with each other to ensure balance, equity, and justice.

If 40 senators want to block anybody for nomination, they have the right to do that. And the reason they have the right to do that it`s the one bulwark against pure majoritarianism . . .In their heart, they know this is not the thing to do. This is a fundamental change in our constitutional system that exceeds the issue of judges. And it is dangerous. We are not a parliament. We were never intended to be. The states were intended to be equal. This will change that dynamic, not just for judges, but across the board.


Just the plain old politics in me says that the Faustian* bargain made with the Christian right -- and not all Christians are right and not all right Christians are Republicans . . .Well, guess what? Read what the scholars on the right are writing. They want to change the Constitution.

*To “strike a Faustian bargain” is to be willing to sacrifice anything to satisfy a limitless desire for knowledge or power.
Biden pointed out that over the history of America, twenty-four Supreme Court justices were rejected; fourteen of them were rejected in committee without a vote. The filibuster against Abe Fortas, the most recently rejected Justice, was led an honorable Republican named Griffin who became the minority leader from the state of Michigan. And when Franklin Roosevelt attempted to stack the Supreme Court to increase his power, it was Democrats in the Senate who stopped him.
The Constitution never intended that the President get his choice for judges. It was Madison's brilliant and delicate balancing of the realities of power, the President would propose a nominee, basically because a committee can never agree on a single candidate, and the Senate would dispose of inappropriate candidates.
Finally, Biden pointed out that the Democrats are not being obstructionist. Of the 215 nominees Bush sent to the Senate, 205 were accepted. Only ten were deamed so inappropriate to warrant opposition.

Faith 'War' Rages in U.S., Judge Says

Wondering what all the fuss is about regarding the filibuster in the US Senate? Here is one of the Judge's own words. Is this the sort of Judge you want on a fast track to the US Supreme Court?
Faith 'War' Rages in U.S., Judge Says

Just days after a bitterly divided Senate committee voted along party lines to approve her nomination as a federal appellate court judge, California Supreme Court Justice Janice Rogers Brown told an audience Sunday that people of faith were embroiled in a "war" against secular humanists who threatened to divorce America from its religious roots, according to a newspaper account of the speech.

[...]
Her comments to a gathering of Roman Catholic legal professionals in Darien, Conn., came on the same day as "Justice Sunday: Stop the Filibuster Against People of Faith," a program produced by evangelical leaders and simulcast on the Internet and in homes and churches around the country. It was designed to paint opponents of Bush's judicial nominees as intolerant of believers.

[...]
"There seems to have been no time since the Civil War that this country was so bitterly divided. It's not a shooting war, but it is a war," she said, according to a report published Monday in the Stamford Advocate.


"These are perilous times for people of faith," she said, "not in the sense that we are going to lose our lives, but in the sense that it will cost you something if you are a person of faith who stands up for what you believe in and say those things out loud."


A spokeswoman for the California Supreme Court, Lynn Holton, said no text was available because "it was a talk, not a speech." Brown's office did not dispute the newspaper's account.


The Advocate quoted Brown as lamenting that America had moved away from the religious traditions on which it was founded.


"When we move away from that, we change our whole conception of the most significant idea that America has to offer, which is this idea of human freedom and this notion of liberty," she said.


She added that atheism "handed human destiny over to the great god, autonomy, and this is quite a different idea of freedom…. Freedom then becomes willfulness."

[...]
Democrats have questioned speeches in which she called the New Deal the "triumph of our socialist revolution." She has described herself as a "true conservative" who believes that "where the government moves in, community retreats, civil society disintegrates…. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible."


Questioned in 2003 about her comments, Brown conceded that she was blunt when addressing conservative audiences.


"I don't have a speechwriter," she said. "I do these myself. And it speaks for itself."


As the article describing Brown's remarks was circulated Monday on websites and in e-mails, one advocacy group opposing Bush's nominees charged that her remarks were a timely reminder of why the California judge should not be promoted.


"It's so shocking that in the middle of this battle she would say such extraordinarily intemperate things," said the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State.

Poll Says Americans Oppose Ending Filibuster

Filibuster Rule Change Opposed

...by a 2 to 1 ratio, the public rejected easing Senate rules in a way that would make it harder for Democratic senators to prevent final action on Bush's nominees. Even many Republicans were reluctant to abandon current Senate confirmation procedures: Nearly half opposed any rule changes, joining eight in 10 Democrats and seven in 10 political independents, the poll found.

Hope springs eternal. One can only hope the rest of the crap unfolded by Bush can be rolled back