Archive for the ‘Presidency’ Category

Chief Justice Roberts

Written by Rebecca Zietlow on March 11th, 2010

justicerobertsI am both surprised and bemused at Chief Justice Roberts’ criticism of President Obama in a question and answer session with students at the University of Alabama School of Law last week. The Chief Justice said that Obama’s criticism of the Court’s recent ruling in the Citizens United case (in which the Court struck down a 100 year old campaign finance law) during his state of the union address was “very troubling.” It is not unusual for a president to criticize a Supreme Court decision. Both President Bushes and President Reagan repeatedly attacked the Court’s holding in Roe v. Wade that women have a constitutional right to choose an abortion. Richard Nixon ran for president on an anti-Warren Court platform. Franklin Roosevelt accused the Court of being out of touch when it struck down key New Deal measures. Indeed, Roberts conceeded that it was permissible for the president to criticize the Court, saying that he just didn’t think the state of the union address was the appropriate format for such critique.

What is highly unusual, if not unprecedented, is for a Supreme Court Chief Justice to criticize the President for his stance on a Supreme Court opinion. While it is appropriate for members of the political branches to criticize the Court, the Court is supposed to be insulated from politics. Others have accused Roberts of whining, but I am most concerned about the political overtones of Roberts’s remarks. Most likely, like his colleague Samuel Alito, Justice Roberts just does not like being criticized to his face. But given that the Citizens United opinion will almost certainly benefit the party of the President that appointed him, Justice Roberts should be a little more circumspect before he allows himself to be drawn into what is really a political, and not a judicial, debate.

The Ideal Supreme Court Nominee

Written by Rebecca Zietlow on May 7th, 2009

As a constitutional law professor who spends so much of my time analyzing Supreme Court opinions, I cannot resist opining on what I believe to be the most important qualifications of the next Supreme Court justice.  First, the qualifications which don’t matter as much to me: I would not apply any litmus test on any particular subject, and I neither expect nor particularly want the next Supremtmpphpeiswgm1.jpge Court justice to be able to restore the liberal activism of the Warren Court.  Instead, I agree with President Obama that the most important qualification should be empathy – the ability to understand and relate to the way that the law actually affects real people.  The current Supreme Court has shown a blind eye towards average working people in cases such as the Lilly Ledbetter case, instead consistently favoring the interests of big business.  The importance of empathy is one of the reasons why I argued two weeks ago that the President should appoint more women to the Supreme Court.  To be clear, this is not because I believe that women are inherrently more empathetic, but because Supreme Court justices, like everyone else, see the world through the eyes of their own personal experience.  Therefore, the more different experiences that the Justices bring to the Court, the better.   For the same reason, I hope that President Obama considers racial diversity in his decision-making process, and favors those with less privileged backgrounds.

The second most important characteristic of the ideal Supreme Court nominee would be that he or she has some respect for the political process, and for the ability of lawmakers to consider constitutional values and limitations when they are making laws.  The members of the current Supreme Court have shown a remarkable disrespect for legislatures, including Congress, for example striking down civil rights legislation in the name of separation of powers and sovereign immunity.  This disrespect may be due to the fact that none of the current members of the Supreme Court have ever held political office, and only one, Justice Stephen Breyer, has worked within that process, as special counsel for the Senate Judiciary Committee.  Such experience would not be a pre-requisite for the ideal Supreme Court nominee, but it would certainly be a plus.

Third, the ideal Supreme Court nominee whould have a good knowledge of history, especially United States history.  It should be a person who understands the momentous transformation that our country and our constitution underwent during Reconstruction, a person who appreciates the persistent and overwhelming prejudice that African Americans have suffered in our country since then.

Finally, the ideal Supreme Court nominee must be both young and healthy.  This observation is not “agist,” but pragmatic.  Supreme Court nominations are arguably the means by which the President makes the most lasting impression on the country, as both Presidents Bush recognized when they nominated young Justices who are likely to be around for many years.  I have every hope that President Obama will appoint an excellent, qualified person to the Supreme Court, one who can use his or her persuasive powers to start to move the Court away from its rightward trajectory of recent years.  Whoeever it is, I want that person to be around for a long time.

The Big Lie?

Written by Rebecca Zietlow on April 30th, 2009

Just before the United States invaded Iraq in 2003, I had an argument with a friend of mine who supported the invasion.  I tocheney.jpgld him that I did not think there was any reason for the United States to invade Iraq.  He asked me whether I thought that the President was lying about weapons of mass destruction, and was astounded by my answer.  My friend was astonished that I believed that  the President of the United States, leader of the free world, would lie to the American People about such an important issue.   Oh, what an innocent time that seems now!  Now, we know that not only was President Bush lying then, but that members of his administration continued to lie about the reasons we were in Iraq after it became clear that there were no weapons of mass destruction.  Most notably, Vice President Cheney spoke often about the supposed link between Sadam Hussein and the 9/11 attacks, even though no such link was ever established.

The release of the torture memos last week gives us an upsetting glimpse into the inner workings of the Bush administration during that time, and may provide evidence that the administration was involved in an even bigger lie.  Why would the US intelligence officials use torture on terrorist suspects when not only were those methods prohibited by US and international law, but those methods had never been proven to work better than other interrogation techniques?  We have now learned that the torture methods used by US intelligence officials were modelled on methods used by the North Koreans to illicit false confessions from captured members of the US military.  Why would our government want to illict false information?  Could it be that our government used torture to try to manufacture a link between Iraq and 9/11, betwee Al Qaeda and Sadam Hussein?  If so, then our government was using inhumane interrogation methods such as waterboarding, that we have prosecuted as war crimes in the past, not to protect us, but to keep us in the dark.  It’s a shocking proposition, to be sure, but given what we have learned, we need proof that it’s not true.  That’s why we need an investigation into the Bush administration’s torture policies – to make sure our leaders didn’t use torture to support their lies, and to keep from telling the Big Lie to us again in the future.

What’s the Fuss About?

Written by Rebecca Zietlow on April 9th, 2009

I was disappointed to hear that two of President Obama’s finest nominees, Prof. Dawn Johnsen and Dean Harold Koh, have recently been under attack by Republicans in Congress and their allies in the media.  As I earlietmpphplse92p1.jpgr commented on the page, Dawn Johnsen is a highly respected law professor who is an expert on executive power and mechanisms for ensuring that members of the executive branch comply with their ethical responsibilities.  It would be difficult to imagine a person who is better qualified to head the Office of Legal Counsel, which was plagued by questionable ethical practices during the Bush presidency.  Dean Koh is also a highly respected law professor, a towering intellect who awed me and my fellow students when he was a young new professor at Yale Law School.  Now Dean of that school, Koh also has served in both the Bush and Clinton administration and he is an internationally known expert on human rights and international law.   As with Johnsen it is impossible to imagine a person who is better qualified for the position in the State Department to which Koh has been nominated.  Yet Koh has come under attack in the media, and Republicans are threatening to filibuster Johnsen’s nomination.  What’s all the fuss about?

As Dahlia Lithwack has observed, “President Obama could have named a pair of mild-mannered tax attorneys to these high government positions. Instead, he opted to pick precisely the sorts of people we most need there: fierce advocates who care deeply about these agencies and the law as it applies to them.”

Earmarks and Executive Prerogative

Written by Henry L. Chambers, Jr. on March 11th, 2009

In his post a few days ago, Bobby ably discussed earmarks from the congressional perspective.  There is no point in replaying that discussion.  However, it is worthwhile to note that a congresswoman can quite sensibly say, “If a $787 billion stimulus bill is going to be passed, a particular project in my district had better be a part of the appropriation or I will not vote for it.”   The relevant project can be a building project (school construction) or a program that will tend to direct a disproportionate share of funds to the congresswoman’s district (foreclosure relief).  Of course, programs tend to be thought of less as earmarks than building projects, but there is little reason why they should be given that they are focused efforts to bring a chunk of money back to one’s district.  That issue can be left to the side for now.

A different vision of earmarks focuses on its role in cabining executive prerogative.  At one extreme, Congress could provide appropriations bills with few or no strings attached.  Such a bill might provide $x billion “to run the Department of Health and Human Services for fiscal year 2010.”   Congressional priorities wouearmarkpig.gifld be nonexistent and presidential prerogative would be at its greatest. The president would only be required to spend money in certain areas based on preexisting legislation creating mandated spending.  At the other extreme, Congress could provide appropriations bills with nothing but strings attached.  Congressional prerogative would be at its greatest and presidential priorities would be somewhat irrelevant.  The bill might provide such minute spending detail that the president would have little room to exercise independent judgment regarding how appropriations should be spent.  Broad appropriations bills that include earmarks fall between the extremes.  When they are part of a bill rather than merely part of the legislative history, earmarks reflect congressional priorities broadly and they cabin executive prerogative.  Interestingly and not surprisingly, President Obama has suggested that he will reassert executive prerogative with respect to earmarks by having his branch review specific earmarks to determine if they are beneficial.  What remains to be seen is how Congress will react if the president overrides a significant percentage of earmarks.  Stay tuned.

Naomi Klein Again

Written by Robert Justin Lipkin on February 10th, 2009

Check out this piece on Naomi Klein: “In her best-selling book, The Shock Doctrine: The Rise of Disaster Capitalism, Naomi Klein outlines the disturbing trend of governments using crisis as a means for corporate profit-advancement. She cites Hurricane Katrina, 9/11, and Pinochet’s Chile as exampltmpphpwssjg01.jpges of the practice.  . . . At her January 29 speaking engagement at Loyola University, the award-winning author made the case that America’s current economic crisis is just another “big bang moment” in this evolution.Klein cautioned listeners at the packed 750-seat Mundelein Auditorium against cheerily consenting to the wave of Obama-fueled optimism. Throughout his campaign, Obama rejected the “worn out dogmas” and suggested it was time for an ideological sea change. Klein isn’t ready, however, to embrace the recent market interventions as a shift in American policy, and instead implored her audience to work for a deepening, rather than deadening, of democracy in these tense economic times.  . . .  The concept of an American version of The Shock Doctrine is predicated upon two basic principles: panic forces the electorate to search out paternalistic political policy; and the resulting distraction stifles public debate.” For the complete article click here. Any politically savvy American citizen and any genuinely talented American president should realize that the most efficient means to effective political action is for the president’s supporters to make him keep his promises.

America, the World, Require a Reckoning

Written by Robert Justin Lipkin on February 3rd, 2009

Is it morally conceivable that the Obama administration will fail to pursue some institutional mechanism for determining whfinal1.jpgether George W. Bush is responsible for war crimes? The moral core of American values requires a reckoning. Even if the former president is never tried, the United States must take it upon itself in whatever venue possible to set the historical record straight on whether torture was authorized at the highest levels of American government.  The understandable instinct to move forward especially in light of the intractable problems facing the new president must be resisted for the sake of the nation’s honor.  We can more forward only after we take account of our past misdeeds, and we should never forget that George W. Bush’s misconduct is our misconduct. The precise character of the reckoning is far less important that thee fact of a reckoning. Call the endeavor “truth and reconciliation concerning possible war crimes committed during W.’s presidency.” Rule out criminal sanctions in advance. But something needs to be done for the moral character of the nation.  For an informative article on this matter click here.

Never “Misunderestimate” W.

Written by Robert Justin Lipkin on January 13th, 2009

George W. Bush has managed to become a transformative president after all. Consider how he has single-handedly metamorphosed presidential security surveillaf.jpgnce by alerting us to the possibility that shoes can be used to injure and insult presidents.  Of course, we already knew that shoes can be used as bombs on airplanes.  But now we also know that they can be used as missiles, of a rather ineffective sort, to insult visiting heads of states at press conferences. Did W. attempt to explain away the incident by saying that it’s the price we pay for freedom? If he did, he couldn’t have been serious. Could he? Throwing shoes at people even in a free country constitutes assault–and if the attempt is successful–battery.  Free countries typically have laws against assault and battery. Or am I “misunderestimating” W.’s remarks?

W.’s Final Press Conference: What a Relief!

Written by Robert Justin Lipkin on January 12th, 2009

With great pathos the man who never should have been president held his final press conference. His strident defiance, obtuseness, defensiveness, and absence of subtlety, and intellectual and emotitmpphpi1k4gz.jpgonal depth shown vividly throughout this exercise. Mr. Bush simply lacks the capacity to appreciate the nuances of public policy. He is paradigmatic of the sort of person who should never be given the job of making important decisions affecting the lives of others, certainly not decisions affecting the lives of vast numbers of people domestically and internationally.  Presidential historian Douglas Brinkley points out that ‘[a]s a . . . historian looking at what’s occurred on his watch, it is almost void of genuine accomplishment,’ and Pulitzer Prize historian Joseph Ellis  insists “I think President Bush might very well be the worst president in U.S. history.’ Perhaps some blame resides in the American electorate in not understanding how one-dimensional and incompetent this president really is.In any event, Americans will suffer the effects of the past eight years for decades.

W.’s Legacy

Written by Robert Justin Lipkin on January 9th, 2009

Salon.com has an tmpphp9zulli1.jpgimportant article evaluating the Bush-Cheney failures. Here’s a sample: “After a couple of presidential terms, mismanagement in every area of policy — foreign, domestic, even extraterrestrial — starts to add up. When George W. Bush entered the White House in January 2001, he inherited peace and prosperity. The military, the Constitution and New Orleans were intact and the country had a budget surplus of $128 billion. Now he’s about to dash out the door, leaving a large, unpaid bill for his successors to pay. . .  To get a sense of what kind of balance is due, Salon spoke to experts in seven different fields. Wherever possible, we have tried to express the damage done in concrete terms — sometimes in lives lost, but most often just in money spent and dollars owed. What follows is an incomplete inventory of eight years of mis- and malfeasance, but then a fuller accounting would run, um, somewhat longer than three pages.” Click here for the entire article.

However incompetent or malevolent Bush-Cheney has been, our constitutional and political systems mf2.jpgust bear the lion’s share of blame for failing to provide mechanisms to remove such nefarious leaders from office when they present a clear and present danger to America’s fundamental traditions and values. True, the Constitution permitted Americans to end W.’s presidency in 2004 by electing Senator John Kerry–and it is astounding that American citizens voted again for a president who lied to them about a matter of war–but I’m addressing the intra-term possibilities of removing a president or otherwise disciplining a president.  Impeachment and removal from office is much too blunt an instrument to guard against constitutional dictatorship within a four year term as president. We need a more narrowly tailored, deliberative method for guarding against wayward president within a four year term. For those still unconvinced that W.’s is responsible for major attacks on American constitutionalism and democracy that will plague the United States for decades click here.