January 28, 2007

Review of Ben Wittes' New Book on the Judicial Confirmation Process

For whatever it is worth, in today's New York Post I have a review of Ben Wittes very interesting book CONFIRMATION WARS: PRESERVING INDEPENDENT COURTS IN ANGRY TIMES. Wittes really goes to great lengths to be fair to both sides, conservatives and liberals. Obviously, that is a very difficult task for this subject. That said, I think that people on both sides of the debate will gain from reading the book. While I wish that I thought that his proposal to eliminate the confirmation hearings would help elminate some of the bitterness, I think that this solution deals more with one of the symptoms than the causes. In the editing the review came out somewhat more critical than I think that it should have been.

January 23, 2007

Alito to the Rescue

CFJ's Executive Director Curt Levey is quoted in a First Amendment Center article speculating on the outcome of Supreme Court revisitation of a key provision of the McCain-Feingold campaign finance law.

The Jan. 19 CFJ press release chides judicial policy makers and emphasizes the powerful impact that even one solidly constitutionalist judge can have on important decisions.
“The five Justices who voted to uphold the law were clearly swayed more by their belief in campaign finance reform than by the letter and intent of the First Amendment. The addition of constitutionalist Justice Samuel Alito will likely be the difference between the Court’s 2003 McCain-Feingold decision and its expected ruling later this year,” Levey said.

January 17, 2007

A Fitting Eulogy

In response to Bush's withdrawal of nominees, a follow-up editorial mourned Terrence Boyle as another qualified judge fallen prey to the partisan power struggle that is dominating the judicial confirmation process.

Boyle's demise evinces the petty war against Bush's nominees because he is clearly not an ideologue, and has rightfully garnered bipartisan esteem.

"...he has displayed a strict, no-nonsense style in the courtroom that hasn't pleased some lawyers, but has earned respect from others. His rulings have typically been well-contemplated and clearly written. He seems to have a fair mind and an even hand, and he has not always been predictable. At times, he's offended the conservatives who have been among his strongest advocates for a seat on the 4th U.S. Circuit Court of Appeals in Richmond"

January 11, 2007

The Post-Kelo World

Today an article from Wall Street Journal's editorial page highlighted Kelo's lasting implications for eminent domain. It presents the story of the seven Strobel sisters of Burien, Wash., whose popular diner was condemned because it was not upscale enough to harmonize with the city's new development plans. Despite the clear provision in the Washington Constitution that "private property shall not be taken for private use (except in very limited circumstances)," the Washington Court of Appeals affirmed the decision to condemn.
"Washington state stands as evidence that a strong state constitution means little if the courts do not enforce it and local governments disregard it."
Decisions such as Kelo reflect a judiciary who dangerously interprets the constitution on matters better reserved for the legislative process. It is the job of the courts to demand government compliance with state and federal constitutions, not create policies which undermine constitutional rights.

January 03, 2007

Lithwick's civil-liberties blinkers

(cross-posted from Point of Law):

Dahlia Lithwick compiles a list of the ten worst civil liberties outrages of the past year, which turns out to consist entirely, with not a single exception, of Bush Administration policies relating to the War on Terror. #10 on the list, for example, is federal prosecutors' decision to seek the death penalty for enthusiastic Al Qaeda plot participant Zacharias Moussaoui. That counts as a more serious menace to civil liberties, in Lithwick's view, than any prosecutions of the innocent on terrorism-unrelated grounds in the past year, or any existent or proposed curbs on mainstream political speech, or any steps afoot to regulate the Internet. How comforting to know that state governments or courts deciding liability cases or drug warriors or for that matter non-state actors never appear in the top rank of threats to our civil liberties.

Radley Balko has drawn up a list of 2006 outrages that does a better job of conveying the range and diversity of government threats to liberty. RightRainbow is not particularly charitable toward Lithwick, describing her as "appallingly obtuse".