Get your institutional components right here
Writing for Legal Affairs, David Strauss begins "Kerry's Even Keel" briskly:

"IN 2000, MANY OF US THOUGHT THAT THE OUTCOME of the election would determine the composition of the Supreme Court. It turned out to be the other way around. The court decided the election, and President Bush has had no chance to affect the court. Whoever is elected in 2004, though, can confidently expect to make three or even four Supreme Court appointments in his first term.

Strauss lays his cards on the table:

It would be much better, for the law and for the country, if John Kerry, and not George W. Bush, made those appointments. The Republicans have an agenda for the federal courts, including the Supreme Court. The Democrats do not.

What is the Republican agenda? Strauss argues that at bottom, it's about restoring the so-called "Constitution in exile,"* which is "more like the one that the Supreme Court enforced for about 30 years at the beginning of the 20th century, when the court declared unconstitutional a wide range of social welfare and regulatory laws—minimum wage laws, maximum hours laws, child labor laws."

Strauss asserts that the chief proponents of this view within the present court are the usual suspects, Justices Scalia and Thomas. To be clear, Strauss has no problem with there being a Republican agenda for the federal courts, he just doesn't like what it is. I agree on both counts.

I came to this article via Mark Tushnet, who's guest-blogging at "Balkinization." His specific concern, or challenge, is that the Democratic Party's countering "[constitutional] vision has no significant institutional component," explaining:

By "institutional component," I mean some aspect of the constitutional vision that says, "These aspects of the promotion of equal dignity and respect are best done by the legislature, while these other aspects are best -- or at least appropriately -- done by the courts." For Democrats, I believe, statutes can promote equal dignity and respect. So can court decisions.

Well, I'd mean something a little different by "institutional components" to a constitutional vision -- and while they needn't be confined to one party, they seem to be.

One such component is -- or in my view, ought to be -- simply that the principle of "judicial review" be maintained, and not attacked as happened recently with the Republican-sponsored "jurisdiction-stripping" bill regarding the Defense of Marriage Act. I think that's a properly neutral-to-conservative position about the roles of our constitutional institutions, and one that reflects the spirit of the Constitution -- instead of pretending to read founding father's minds, pretending that would be definitive over 200 years later, or basically grasping at whatever cudgel comes handy when you want to win a fight. (See Brett Marston, however, for a different view about jurisdiction stripping.)

A second component is even more fundamental: restore true advice and consent to Senate judicial confirmations. This may be simplistic of me, but I think the proper opportunity for executive and congressional influence on the courts is in nominating judges -- and in carefully, fully considering those nominations. In this regard, the song and dance members of Congress and the public are regularly treated to when nominees refuse to "speculate" on how they would rule on hypothetical cases is an insult to all concerned, and should be ended.

For a typically entertaining and incisive dissection of this tactic, check out Michael Kinsley's Washington Post op-ed last year, "Estrada's Omerta":

Like gangsters taking the Fifth, nominees for federal judgeships have reduced their reason for not talking to a mantra. Repeat after me: "My view of the judicial function, Senator, does not allow me to answer that question." Miguel Estrada, President Bush's nominee for the U.S. Court of Appeals for the D.C. Circuit, used variations on that one many times in refusing to express any opinion on any important legal topic during Judiciary Committee hearings last fall. [...]

Most legal rulings come from judges who have been on the bench for a while. If that is not a problem, why is it a problem if they have thought and reached conclusions on some important legal issues before they join the bench? The answer is that it is not a problem. It ought to be a problem if a potential judge has not thought about important legal issues and has no views on them. But instead, the problem is how to keep a judgeship candidate's opinions hidden until he or she is safely confirmed for a lifetime appointment, and the phony issue of "prejudging" is a strategy for doing that.

Fine, refuse to answer simple questions; just don't expect to be confirmed. And what's good for the goose should be good for the gander; I'd expect nothing less from Kerry's judicial nominees. That's what the congressional duty to debate judicial nominations is all about. But these days, just upholding simple standards counts as a constitutional vision when your opponent is the G.O.P. Kinsley adds:

...Republican hypocrisy here is especially impressive. When Bill Clinton was appointing judges, the senior Judiciary Committee Republican, Sen. Orrin Hatch, called for "more diligent and extensive . . . questioning of nominees' jurisprudential views." Now Hatch says Democrats have no right to demand any such thing.**

This all kind of ducks Tushnet's challenge to delimit which avenues to "equal dignity and respect" are properly legislative and which are judicial -- but for now, that doesn't bother me too much. Personally, I'd find little to worry about if Democrats were to be charged with seeking "'equal dignity and respect' wherever they can get it." "Equal dignity and respect" seems like a circumlocution for "rights"; the more avenues to protecting them, the sooner they'll be protected (not that Tushnet says there's anything wrong with that).

Meanwhile, for those still on the fence about Kerry versus Bush, it seems to me that thinking about the quality and ideology of their likely Supreme Court nominees ought to tip the scales. I'll end with the top of an August 7 AP dispatch in the New York Times:

Clarence Thomas has been interviewed by White House lawyers as a possible choice to be the next chief justice of the United States, says the author of a new biography.

Nooooooooooooooooooooooooo!!!


=====
* Not being a legal eagle, this concept was new to me and may be new to many readers as well. I've found a few further discussions of this trend or movement, specifically a Duke University "Constitution in Exile" 2000 conference website, and a 2003 Washington Post article by Cass Sunstein -- who sees the Supreme Court's 5-4 ruling in favor of the McCain-Feingold campaign finance reform act as a tentative step towards greater Supreme Court humility in overruling Congressional legislation.
** Via Brett Marston, who commented extensively on the Estrada hearings, and enjoyed citing Kinsley's "hypocrisy" comment too.
posted by Thomas Nephew at 1:15:00 AM -- |    

 
Feeblest Republican Endorsements of Alan Keyes -- collect 'em all!

The runner up for Feeblest Republican Endorsement of Alan Keyes ... Illinois Congressman Ray LaHood: "If the party believes he's the best candidate for the race, then I'm with him."

And the winner for Feeblest Republican Endorsement of Alan Keyes goes to... Illinois State Senator Dan Rutherford: "I’ve got some people who are not real happy that he is from out of state. My response is that it’s done and that we have to move on."

--duh-duh-DAH-dah-dah!... Dan that was just fantastically feeble! You really didn't give it up for Alan! And let's all give a big round of applause to Rick Klau and Joshua Marshall for sorting through a crowded field! Both have plenty more!

posted by Thomas Nephew at 11:25:00 PM -- |    

 
Blast from the past
The New York Times reports "Bush Promotes His Plan for Missile Defense System":

"I think those who oppose this ballistic missile system really don't understand the threats of the 21st century," he said. "They're living in the past. We're living in the future. We're going to do what's necessary to protect this country."

Bush is on to something -- if (1) the North Koreans get a missile that can hit the U.S., (2) they decide there's some very compelling reason they actually want to hit the U.S., and (3) we had a missile defense system that, oh, I don't know, ACTUALLY WORKS -- in which case (4) the North Koreans unaccountably decided not to just load the bomb into a shipping container and float it into San Francisco Bay instead or (5) failed to just add two or three $1 Mylar balloons to the missile payload for a multi-million dollar ABM to choose from. Sure, that sounds like a good reason to spend $53 billion, $10 billion in FY 2005 alone.

There are so many better things to do with that kind of money for real security problems. Here's one, suggested by Nick Kristof in a New York Times op-ed piece yesterday: increase funding for the Nunn-Lugar Cooperative Threat Reduction program, which has deactivated thousands of nuclear weapons in the former Soviet Union, and which could continue to buy or secure weapons-grade uranium and plutonium there.

Earlier this year, Bush actually proposed cutting back this program from $451 million to $409 million. That is, Bush was dickering about $42 million for something that actually works now, as opposed to spending $10 billion for something that may never work.

Why would those extra $42 million be well spent? In a prior article, Kristof wrote:

...Al Qaeda negotiated for a $1.5 million purchase of uranium (apparently of South African origin) from a retired Sudanese cabinet minister; its envoys traveled repeatedly to Central Asia to buy weapons-grade nuclear materials; and Osama bin Laden's top deputy, Ayman al-Zawahiri, boasted, "We sent our people to Moscow, to Tashkent, to other Central Asian states, and they negotiated, and we purchased some suitcase [nuclear] bombs."

...But the White House has insisted on tackling the most peripheral elements of the W.M.D. threat, like Iraq, while largely ignoring the central threat, nuclear proliferation. The upshot is that the risk that a nuclear explosion will devastate an American city is greater now than it was during the cold war, and it's growing.

posted by Thomas Nephew at 11:40:00 PM -- |    

 
Zimbabwe to ban human rights NGOs
Mugabe strikes again. Via AEGiS, an August 12 Agence France-Presse report:

A draft bill which is set to be debated in parliament this year seeks to clamp down on NGOs through the banning of international human rights groups from Zimbabwe and cut off overseas funding to local organisations promoting rights. [...]

President Robert Mugabe has said Zimbabwe must not allow NGOs "to be conduits or instruments of foreign interference in our national affairs."

The leader confirmed that a bill tightening control over the NGOs would be introduced in parliament during the current session, which is the last one ahead of crucial legislative polls due in March next year.

Problem solved! No more pesky updates about Zimbabwe from wacko outfits like Refugees International, Human Rights Watch, or Amnesty International.

The measure may also be a serious blow to Zimbabwean groups like Zimbabwe Human Rights NGO Forum, which issues a cheery little item called Monthly Political Violence Reports. Since the document does tend to get a little long each month, the authors provide handy bar charts of the month's and year's politically motivated rapes, assault, torture, murder, and what not. Here are this year's totals as of April, 2004:


...and I'm guessing the tortures, rapes, assaults and killings in camps training "youth militia" in such techniques aren't fully known or counted.

Mugabe is also using food as a political weapon, and Zimbabweans who rely on the food outlawed or foreign-supported NGOs provide may find themselves at the mercy of Mugabe's ZANU-PF party for their next meal. The Zim Observer joins most other news media reporting the story by quoting the head of the Zimbabwean umbrella organization NANGO:

"The bill criminalises a sector that is providing social safety nets to a lot of communities,'' said Jonah Mudehwe, head of the National Association of Non-Governmental Organisations.

The online periodical New Zimbabwe reports that Secretary of State Colin Powell specifically spoke out against the NGO measure last week. Powell went further, calling for "regime restoration" in Zimbabwe:

For southern Africa as a whole, the situation in Zimbabwe is a threat to the common future. At this stage, Zimbabwe's problems transcend any one man. And clearly, solutions to those problems must come mainly from within, from among the people of Zimbabwe.

The political regime in Zimbabwe has been degraded, but its constitutional basis remains intact. Zimbabwe needs regime restoration. It needs to restore the rule of law, an unfettered Press, and the country's former pluralistic political life.

posted by Thomas Nephew at 9:50:00 PM -- |