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Today's
Stories
November 5
/ 6, 2005
Lawrence R.
Velvel
Lying,
Law Schools and Executive Power: What Senators Should Ask Alito
Roosa / Nevins
The
Mass Killlings in Indonesia, 40 Years Later
Niranjan Ramakrishnan
Missing
the Bus: When Conscience Bows to Calculation
John Ross
The Zapatistas' Otra Campaign for Mexico's Presidential Elections
Mark Engler
Will Big Business Turn On Bush?: the Economic Nightmare Unfolds
Mitchel Cohen
People of the Dome, Revisited
Charles Sullivan
When Courage Fails: a White Southerner on Rosa Parks
November 4,
2005
Jeffrey St.
Clair
Blood
on the Tundra, Betrayal in the Rotunda: Losing ANWR
Dave Lindorff
A Majority Now Favors Impeachment: If He Lied, He Must Be Tried
Phillip Cryan
Crackdown
in Colombia
Christopher Brauchli
Katrina and Tax Breaks for the Very Rich
William S.
Lind
Exit Strategy: You Can't Stay the Course in a Lost War
Daryl G. Kimball
Of Madmen and Nukes
George Beres
Laurels for Negroponte?
Peter Montague
Why We Can't Prevent Cancer
November 3,
2005
James Petras
The
Libby Affair and the Internal War
Saul Landau
Torn
Families and Shot Down Planes: a Cuba Story
Rep. Cynthia McKinney
An Occurrence at Gretna Bridge
Michael Dickinson
Bang! Bang! You're Deaf! Sonic Weapons Over Palestine
Joshua Frank
Sham Behind Closed Doors
Remi Kanazi
Dancing with Perseverance
Reza Fiyouzat
Taxation or Racketeering?
Website of the Day
CIA Leak Investigation: Bigger Fish, Deeper Water?
November 2,
2005
Cockburn /
St. Clair
Holy
Alito!: Not as Crazy as Scalia, But Just as Bad
Robert Oscar Lopez
Saving Rosa Parks from American Hypocrisy
John Walsh
The Philosophy of Mendacity: From Leo Strauss to Scooter Libby
Brian J. Foley
Why Most Americans Don't Care About Gitmo (and Why They Should)
Ramzy Baroud
Rolling Back Syria
M. Junaid Alam
What Moral Values?
Todd Chretien
Judgment Day for the Governator
Bruce K. Gagnon
The Democrats' Slap Happy Day
Website of the Day
Hands Off Dave!
November 1,
2005
Ron Jacobs
An
Interview with Kent State's Dave Airhart
Gary Leupp
The Plame Affair Leads to Rome
John Ross
Days
of the Dead on the Border
Bill Quigley
Why
Are They Making New Orleans a Ghost Town?
Joseph Nevins
From a Boundary of Death to One of Life
Dave Lindorff
Thinking About Impeachment
Linda S. Heard
Bashing Syria: Another Trojan Horse from the UN?
Heather Gray
Thank You, Mrs. Parks
Michael Dickinson
To Di For: Charlie and Camilla Cross the Pond
Jeffrey St. Clair
Kent State: Wise Up and Back Off
October 31,
2005
Elaine Cassel
Libby's
Lies
Mark Weisbrot
Pop Goes the Bubble: Bernancke and the Fed
Mike Whitney
Carry On, Patrick Fitzgerald
Norman Solomon
After the Libby Indictment, the Press Acquits Itself
Farooq Sulehria
Trading Weapons While Kashmir Burns
Nicole Colson
Scapegoating Immigrants
Madis Senner
Dhafir Sentenced to 22 Years: Another Erosion of Civil Rights
Paul Craig
Roberts
Scooter
and the Neocons
October 29 / 30, 2005
Cockburn /
St. Clair
The
Libby Indictment: Gotterdammerung for the Bushies?
Peter Linebaugh
The
Wedges of Hephaestus
Tim Wise
Framing the Poor: Katrina, Conservative Myth-Making and the Media
John Chuckman
Bushspeak: Dark and Garbled Words
Steven Higgs
Green Hoosiers: Forging a New Democracy in the Heartland
Brian Cloughley
The Fifth Afghan War
M. Shahid Alam
Israel and the Consequences of Uniqueness
Nikki Robinson
Crack Down at Kent State
Ralph Nader
Let the PIRGs Begin!: Student Activism Thrives
Joe DeRaymond
Requiem for Bethlehem Steel?
Joshua Frank
Karl's Great Escape: Did Rove Rat on Scooter?
Laura Santina
Tongue-Tied on Iraq: Why Aren't the Dems Screaming Bloody Murder?
Fred Gardner
Death of an Organizer
Michael Dickinson
Insult Your Country
Ron Jacobs
Autumn in America
Dr. Susan Block
Fear and Sex: a Halloween Greeting
Vanessa S. Jones
Self-Portrait, 1994. Bronte Beach
Jeffrey St.
Clair
Playlist: What I'm Listening to This Week
Poets' Basement
Marbet, Gardner, Ford, Albert, Engel, Krieger & St. Clair
Website of
the Weekend
Red State Update
October 28,
2005
Jared Bernstein
Inflation
Up; Wages Down: Fastest Decline in Wages on Record
Virginia Tilley
Embracing
the Anti-Aparthied Movement in Israel/Palestine
Phil Gasper
The
Race to Execute Tookie Williams
Jennifer Matsui
It's Mardi Graft Time!
Manual Garcia,
Jr.
Is the US Really Against Torture?
Monica Benderman
In the Name of Justice
Jason Leopold
Fitzgerald
Focuses on the Forgeries
Dave Lindorff
Suddenly, Bush Endorses Right of Fair Trials
Otober 27, 2005
Saul Landau
The
Scandal Isn't the Leak, But the Illegal War
Stuart Hodkinson
Bono
and Geldoff: "We Saved Africa" Oh No, They Didn't!
Ingmar Lee
Stop
the Troops!: No Glory or Honor in Iraq
Lila Rajiva
License
to Bill: Gates Does India
Ilan Pappe
The
Last Moment of Hope
Niranjan Ramakrishnan
Waiting for Fitzgerald
Michael Donnelly
Look Who's Talking Now: the GOP on Perjury
Ron Jacobs
Escape the Weight of Your Corporate Logo
Cockburn / St. Clair
White House in Meltdown
October 26,
2005
Kathy Kelly
For
Whom They Toll
Gary Leupp
Dialectics
of the Plame Affair
Mike Marqusee
Empire of Denial
Eric Ruder
War Crimes in Afghanistan
Patrick Cockburn
Iraq: a Constitutionally Divided Nation
Joshua Frank
Fitzgerald v. the Bushies: Hold Your Elation in Check
J.L. Chestnut, Jr.
The Legacy of Rosa Parks
Website of
the Day
Decent Work in America: the 2005 Work Environment Index
October 25,
2005
Paul Craig
Roberts
Condi
and Syrian Regime Change: Could Somebody Recommend a President?
Ken Sengupta / Patrick Cockburn
Attack on the Palestine Hotel
Conn Hallinan
Sleight of Hand: Iran, India and the US
Nafeez Mosaddeq Ahmed
Pulling the Court Strings
Jackie Corr
Barbara Bush: Poster Gorgon of the Houston Astros
Robert Day
Talk to Strangers
John Sugg
Judith
Miller and Me
October 24,
2005
Dave Lindorff
Revoke
Judy Miller's Pulitzer
Michael Donnelly
Shades of Iran/contra
Patrick Cockburn
A Nation Stands on Trial
Mike Whitney
Apres Rove
Norman Solomon
Iraq is Not Vietnam, But...
Bill and Kathleen
Christison
US
Foreign Policy and Palestine
October 22
/ 23, 2005
Alexander Cockburn
When
Divas Collide: Maureen Dowd v. Judy Miller
Billy Sothern
Letter
from the Circle Bar, New Orleans
Saul Landau
Bush, an Assessment
Ralph Nader
An
Open Letter to Bush on Harriet Miers
Behrooz Ghamari
Whose Justice Does Saddam's Trial Serve?
Brian Cloughley
Bush the Strategist: Pyrrhus Without a Victory?
Diana Barahona
Venezuela's National Workers' Union
Fred Gardner
Dershowitzed!
Lee Sustar
What the War on Terror is Really About
Patrick Cockburn
Murder of Saddam Trial Defense Lawyer
Laura Carlsen
Mexico City Seamstresses Recall 1985 Quake
James Petras
China Bashing and the Loss of US Competitiveness
Joshua Frank
Invading Iran: Who is to Stop Them?
Manuel Garcia,
Jr.
Disasters are Us
Michelle Bollinger
When Abortion Was Illegal
Missy Comley
Beattie
CSI: Iraq
Kona Lowell
Intelligent Design: Making High School Fun
Ben Tripp
Tanks for the Memories
Jeffrey St. Clair
Playlist: What I'm Listening To This Week
Poets' Basement
Albert and Engel
Website of
the Day
Indictment Watch
October 21,
2005
Dave Lindorff
The
Democrats' Abortion Hypocrisy
Winslow T. Wheeler
Paying for Their Mistakes: Incompetence, Deception and the Defense
Budget
Col. Dan Smith
The Destruction of the National Guard
Norman Solomon
Media at Crossroads: 25 Years After Reagan's Triumph
Madis Senner
Abusing Katrina
Michael Donnelly
Richard
Pombo: DeLay in Cowboy Boots
October 20, 2005
Dave Lindorff
Impeachment
Comes to NYC
Ray McGovern
16
Fatal Words: Cheney's Chickens Come Home to Roost
Jeremy Brecher
/
Brendan Smith
Attack Syria? Invade Iran?: By What Constitutional Right?
Patrick Cockburn
Saddam Refuses to Recognize Court
Kevin Zeese
Was the Iraqi Constitution Vote Fixed?
Ross Eisenbrey
Millions Would Lose Pay and Protections Under Enzi Amendment
Randy Shields
James McMurtry Makes It in Dayton
Justine Davidson
Prosecuting Bush in Canada for Torture: a Small Victory
After Lucas
Cranach
Judy and Holofernes
Joe Allen
The
Scandalous History of the Red Cross
October 19,
2005
Christopher Reed
Koizumi and the Rape of Nanking
Stephen Soldz
Bush
and Avian Flu: the Excuses Begin to Fly
Chet Richards
War
and Intelligence
Patrick Cockburn
Saddam on Trial
Scott Richard
Lyons
Multicultural
Columbus?
Ralph Nader
An Interview with Rev. William Sloane Coffin
Website of
the Day
Shocking Video: Why Birds May Be Taking Viral Vengeance on Humans
October 18,
2005
Chet Flippo
Merle
Haggard: "Let's Get Out of Iraq"
Ron Jacobs
Dual Devotions: the Catholic Church and the US Flag
Keeanga-Yamahtta
Taylor
A Tale of Two Cities: From DC to Toledo
Dave Lindorff
Judy Miller: Little Miss Run Amok
Virginia Rodino
A Winter Patriot: Reflections on the Antiwar Movement
Thomas Healy
The Weather in Goshen: Still Radical After All These Years
Ralph Nader
A New New Orleans
Stephen Lendman
The Sorrows of Haiti
Patrick Cockburn
On the Eve of Saddam's Trial: a Divided Iraq
October 17,
2005
Peter Linebaugh
Spinoza
and the Black Limos
Norman Solomon
Judith Miller, the Fourth Estate and the Warfare State
Cockburn /
Sengupta
"If
the Sunnis Don't Like It, That's Their Problem"
Mike Whitney
Miller's Confession: Last Gasp Before Indictments?
Uri Avnery
Iraq Now: What Awaits Samira?
Harold Pinter
Torture & Misery in the Name of Freedom
Website of
the Day
Al Joudi v. Bush
October 15
/ 16, 2005
Alexander Cockburn
Ayatollahs
of the Apocalypse
Patrick Cockburn
"This Constitution Won't Get Me a Job"
Saul Landau
Two Terrorists and a Lush: Osama, Posada and Bush's Drinking
Neve Gordon
"Beyond Chutzpah": Exposing Grave Moral Distortions
Moshe Adler
Poverty in New York City
Christopher Brauchli
Lynndie England's Burden
Diane Farsetta
The Emperor Doesn't Disclose: the Fight Against Fake News
Sam Husseini
Notes on Current Reporting About Judith Miller
Monica Benderman
From Chaos to Conscience to Peace
Mickey Z.
POW Abuse by US: Nothing New Going On Here
Douglas C.
Smyth
George W. Bush, the Honorius of Our Time
Lee Sustar
Will Delphi Bust the UAW?
Fred Gardner
Cannabinoids Arrive in Realm of Established Fact
Elizabeth Schulte
A Former Panther's Georgia Campaign: an Interview with Elaine
Brown
Joshua Frank
Will the Democrats Save Harriet Miers?
David Vest
Down with Formalism! Up with Values!
Ben Tripp
Epistle II: the Reawakenign
Poets Basement
Engel, Albert, Ford and Louise
Website of
the Weekend
The
Hidden Canyon
October 14,
2005
Farrah Hassen
A
Somber Ramadan in Syria
Ron Jacobs
The
Black Panthers: They Haven't Forgotten; Neither Should We
Sasha Kramer
USAID
and Haiti: the Friendly Face of Imperialism?
Katrina Yeaw
The Student Struggle in Italy
Nicole Colson
Bird Flu: Militarizing Health Care
Raúl Zibechi
Survival and Existence in El Alto
Nikolas Kozloff
Hugo
Chávez and the Politics of Race
Website of the Day
LA Filmmakers Cooperative
October 13, 2005
Jeremy Scahill
Mr.
Bush Goes to Tikrit (Sort Of)
Jeff Birkenstein
A
Thoreau for Our Time: Why Cindy Sheehan Matters
Brendan Smith / Jeremy Brecher
Harriet Miers: Bush or the Constitution?
Stan Cox
Did You Know This About Iraq?
Anis Memon
The Curious Case of Russ Feingold
Gary Leupp
Miller, Libby and the June Notes
Dave Zirin
A Tribute to August Wilson
Matthew Koehler
America's Endangered Forests
Werther
The
Two-Headed Monster
Website of
the Day
Hurricane Song
October 12, 2005
Omar Waraich
Britain
and the Quake: Mean and Stingy
William Cook
Voices
Behind the Entombment Wall
Phil Gasper
Countdown
to a Legal Lynching
Dave Lindorff
Impeachment Now and Then: Clinton, Bush and the Polls
Matt Vidal
Capital, Power and Class
John Gautreaux
New Orleans will Never be the Same
Diana Johnstone
Srebrenica
Revisited: Using War as an Excuse for War
Mark Weisbrot
The IMF Has Lost Its Influence
Brian J. Foley
Gitmo Tribunals Endanger Public Safety
Website of
the Day
Columbus Day Lies
October 11,
2005
Roger Morris
/ Steve Schmidt
Strategic
Demands of the 21st Century
Lila Rajiva
Live from New Orleans: Abu Ghraib
Bill Quigley
New
Orleans: Leaving the Poor Behind Again
Paul Craig Roberts
Natural Born Liars
Dave Lindorff
Recruiters in Schools: No Lie Left Untried
Dr. Teresa Whitehurst
Suspect Thy Neighbor
Mitchel Cohen
Showdown at Chuck E. Cheese
Tariq Ali
Pakistan will Never Forget This Horror
Website of
the Day
L'Heure Americaine
October 10,
2005
Cindy and Craig
Corrie
Rachel's
Words Live
Joshua Frank
Washington's War Dems
Gideon Levy
The Beautiful Life Without Arafat
Alan Wallis
The Fight for Free Speech at Union Square
Mickey Z.
In Defense of Liars
CounterPunch News Service
Vermont Independence Convention
Paul Craig
Roberts
The
Police State is Closer Than You Think
Website of the Day
Dylan's Chronicles
October 8 /
9, 2005
Alexander Cockburn
Rhetoric
and Reality in the Business of Getting Rid of Black People
Ralph Nader
Katrina
and the Growls of Greed
Jennifer Van Bergen
New American Law: Legal Strategies in the Dharfir Case
Saul Landau
An Oily Religious Dream
Jeff Halper
Setting Up Abbas
Lenni Brenner
The Millions More Movement and Zionism
Nikolas Kozloff
Bird Flu and Bush
Brian Cloughley
Training Soldiers in Iraq
Alice Slater
A Nobel Prize for Chernobyl?
John Gautreaux
A View from Cajun Country
Fred Gardner
Does the Controlled Substances Act Mean What It Says?
Niranjan Ramakrishnan
The Leveethan Approach
M.G. Piety
Rot in the Ivory Tower: Collusion, Cover-Up and Kierkegaard
Tom Gorman
The Hitchens Doctrine
Mike Whitney
Bunker Days with George
Aseem Shrivastava
Beyond the Wasteland: Lessons from Afghanistan
Ben Tripp
Religion, an Epistle
Poets' Basement
Albert, Engel and Ford
October 7,
2005
Larry Johnson
The
Plame Case: the Real Issues
Will Youmans
Why
Do We Hate Our Freedom? Recruiters and Thugs on Campus
Dave Lindorff
Bird Flu: Evolution or Intelligent Design?
Judith Scherr
Haiti's Children's Prison
Russell D. Hoffman
Nukes for Peace, Revisited?: Nobel Prize Debacle
Jared Bernstein
Katrina and Jobs
Jennifer Van
Bergen
New
American Law: the Case of Dr. Dhafir
Website of
the Day
FBI Witchhunt
October 6, 2005
P. Sainath
"Take
That, Tom Friedman": Indian Masses Reject NYT's Neoliberal
Idol Again
Scott Parkin
When Antiwar Activists Get Mugged
Paul Craig
Roberts
Blundering
into Syria
Andréa Schmidt
Haiti's Biometric Elections: a High-Tech Experiment in Exclusion
Dave Lindorff
Easy
Money in the Big Easy
Joshua Frank
In Defense of Lew Rockwell
M. Junaid Alam
Jackboots at George Mason
Matthew Koehler
Cock and Bull on the Bitterroot
Robert Pollin
Is
the Dollar Still Falling?
October 5,
2005
Heather Gray
Militarization is Not an Answer for
Reconstruction: the Case of the Philippines
Robert Jensen
Is
Bush a Racist?
Ramzy Baroud
Bush's Final Choice: America or
the Empire
Col. Dan Smith
Keeping Promises to Iraq: "Everything
is Bad"
Dave Zirin
Barry
Bonds Laughs Last
Paul Craig Roberts
Liberal Guilt? How the Neocons
Took Over
Alan Maass
Doing
the Right Wing's Dirty Work
October 4, 2005
Nikolas Kozloff
Shocking the Two Party System:
a Political Opportunity for Sheehan and the Antiwar Mvt.
Mike Roselle
Houston,
You've Got a Problem
Joshua Frank
The Scoop on Harriet Miers
John Chuckman
War
Porn: What the Gruesome Images Say
Alan Farago
Storm Warning for Jeb: Developers,
Hurricanes and the Keys
Mickey Z.
An
Interview with Thaddeus Rutkowski
Christine & Ethan Rose
Home Depot Exploits Hurricane Victims
Gary Leupp
An
Earlier Empire's War on Iraq: a Lesson from Roman History
Website of the Day
Rodney
Crowell on Bob Dylan
October 3,
2005
Vijay Prashad
Desperation at Holyoke
Paul Craig
Roberts
Condi
Rice: Gunslinger
Joshua Frank
An Interview with Cindy Sheehan
Seth Sandronsky
The
Hiring Crisis for Black Teens
Jeffrey St. Clair
The Great Green Scare
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November 5 / 6, 2005
What
the Senators Should Ask Judge Alito
Lying, Law Schools
and Executive Power
By LAWRENCE R. VELVEL
Above all else, prosecutor Pat Fitzgerald
stressed, is the need for truth. Without truth, one cannot get
to the bottom of things. Without truth the judicial system is
only a broken promise. The need for honesty and truth, the view
that they are the most important of all virtues, has been stressed
many times here and in books this author has written. The need
for trustworthiness was regarded as a linchpin by the educated
in the 17th Century, was regarded then as a key aspect of morality,
while "'[l]ying was seen as incompatible with a civilized
society.'"
It is, I think, a shame, even
if totally understandable given the context in which he made
his remarks, that Fitzgerald confined his remarks to the need
for truth in our grand jury system and said the need for truth
is especially important in national security matters.
His point about the need for truth has much broader application
than in grand juries or national security alone. But maybe now,
with the country seeing the lies, malevolence and horrible conduct
that have pervaded our system, and their terrible results, the
way will be open to greater concern for truth on a wider basis.
Unhappily, however, one should not hold one's breath. The same
opportunity existed fruitlessly after Johnson, after Nixon, after
Clinton, after the extensively fraud-induced stock market debacle
of the early 2000s, but was never seized. Dishonesty always would
out.
It is, perhaps, not entirely
a coincidence that the prosecutor who brought the indictment
comes from a working class family (his father was a doorman in
New York City), while the indictee is the son of an investment
banker. As is said by persons like Alfred Lubrano who have studied
the subject, the working class has historically placed a lot
more emphasis on honesty than the white collar class (whose motto
might be "whatever works"). I'll not get into the reasons
for this discrepancy here, but what Lubrano says seems very right
to me. My personal view stems from having come from parents (and
an extended family) who started out as working class immigrants
and (I much later realized) held many working class views even
when they had become middle class economically, and from having
lived among the white collar class for at least 45 years. That
an immigrant working class Fitzgerald would believe in truth
while a Libby (and a Bush and a Cheney, etc.) lives by lies is
not a surprise to those who are familiar with class differences.
This is not to say that all
working class people are truthful and all white collar class
people lie. Nor does one overlook the fact that Fitzgerald is
a prosecutor. By the nature of their job, and regardless of the
class from which they come (which historically has often
been the working class, however, partly because fancy law firms
were long closed to Jews, Irish, Italians, etc.), prosecutors
must place a great value on truth in the grand jury process.
But while the point is not a universal, and there are additional
reasons for it with regard to prosecutors, still it is a by and
large truth that the working class places a higher value on speaking
truthfully than the white collar class.
Am I the only person who is
struck by the fact that, if Alito is confirmed, the Supreme Court
will have six alumni of the Harvard Law School and two from Yale,
with "lowly" Northwestern having one? (Ruth Bader Ginsberg
attended Harvard for two years, but then transferred to Columbia
because her husband (who decades later was instrumental in getting
her appointed to the Supreme Court) joined a New York City law
firm, the now famous Weil, Gotshal & Manges.) That is to
say, am I the only one who is struck by the fact that the high
court has become the plaything of a tiny number of the most "elite"
schools. Not even other law schools with pretensions to eliteness
are represented: there is nobody from Chicago, nobody from Stanford
or Penn or Virginia, etc., etc. And as for having anyone from
a so-called non-elite school -- like SMU, for example -- well,
you can just forget it (along with Harriet Miers).
Am I the only person who thinks
there is something wrong here? The only one to wonder about the
extent to which the "elite" law schools, including
ones other than Harvard and Yale, may populate, even dominate,
the lower federal court benches too, as well as two of them dominating
the Supreme Court? Did everyone who is worthwhile go to the elite
schools? How did those schools become so dominant even though
the Senate (and the House), while disproportionately comprised
of lawyers, and perhaps even ones from "elite" law
schools -- I really don't know -- do contain lots and lots of
people from other schools?
You know, law schools generally
tell their students -- it is sometimes propaganda, of course
-- that a law degree will enable them to get ahead in a whole
variety of ways. One thing we were never told in Ann Arbor, however,
and one thing that most law students anywhere probably are never
told, is that there are large elements of this country that are
run by Harvard and Yale (and Princeton, too, though it doesn't
have a law school). When it comes to the east, and the national
government, and the highest reaches of the judiciary, you can
pretty much forget it if you are a lawyer but not a graduate
of Harvard or Yale. So I elaborate my question(s): why is this,
isn't it bad rather than good, and doesn't it make much of what
we are taught a lie?
Now let me get down to cases
in a different but inevitably intimately related problem, the
nomination of Sam Alito to be a Justice of the Supreme Court.
Alito may be a very good candidate, albeit people think a very
conservative one. He is smart, accomplished, etc. But it seems
there are also some questions about his candidacy. He possibly
could vote to overturn Roe v. Wade. He apparently has
issued some opinions that are antagonistic to civil rights and
to the powerless of society. So conceivably he could be bad for
societal and human progress. He may not be friendly to broad
Congressional power to remedy ills of society, a problem much
on the minds of Senators.
And then there is another possible
problem, one on which I've seen only a relatively small amount
of discussion in the media. Where does Alito stand on executive
power? Is he for more of it at the expense of Congress? Or is
he for more Congressional power at the expense of the Executive?
It has been said here before
that executive power is one of the questions of the future,
a question pregnant with consequences, maybe disastrous consequences,
for America. As said before here and elsewhere, this Administration
seeks to expand executive power to an extent that would be exceptionally
dangerous, both at home and abroad. Does the President, in the
name (or under the pretext) of national security, have the power
to fight wars as big as he wants, for as long as he wants, any
time he wants, against whomever he wants, without declarations
or very specific authorizations of war from Congress. Can the
President withhold from Congress crucial documents bearing on
vital matters? Can he declare previously available documents
to be unavailable? Can he decree that people can be tortured?
Can he decree that people shall be held in jail for the rest
of their lives without trial? To this Administration the answer
to these and related questions is always yes. These people are
dangerous to our liberties.
The irony is, of course, that
this Administration claims to favor the constitutional theory
of so-called originalism. The truth is, however, that these people
are anything but originalists. The originals -- the founding
fathers -- were deadly afraid of too powerful an executive, the
more so having seen George III. They set up a government in which
the legislature was to be supreme, not the executive.
The drive for executive power launched by this administration
-- following, to be sure, in the presidential footsteps of many
of its predecessors, Democrat and Republican alike and including
Johnson and Nixon -- is not an originalist idea. It has far more
in common with the drive to executive power of the German National
Socialists, the Italian Fascists, the Russian Communists, the
two bit dictators of Africa, and the despotic tyrants of the
Arab middle east, than with the views of America's founding fathers.
And this Administration continues
marching forward in its drive for executive supremacy. Secrecy
is vital to a powerful executive -- the executive may not be
able to do what it wants, may not be able to run torture camps
abroad, for example -- if relevant matters are not kept secret
and thus free of potentially withering public opinion and even
possible Congressional action. Harriet Miers, though in fact
savaged unto withdrawal by Bush's conservative friends, gave
as her reason the need to keep executive documents secret. Libby
was replaced as Cheney's counsel by a right-wing nut named David
Addington, who believes in unlimited Presidential power, has
been for war, torture and secrecy, and may be more evil and dangerous
than even John Yoo was.
So there are lots of areas
in which the Senate should learn Sam Alito's views before approving
him as a Justice. From abortion, to Congressional power, to torture
and secrecy his views may, and in some cases, like abortion,
almost certainly will have dispositive effect on the Supreme
Court.
But, it is objected, Senators
cannot question a nominee about his political views, cannot ask
him what he would do in specific cases, cannot do anything other
than determine his legal competence and his integrity. This,
however, is so much bushwa, and only bushwa. It is a recent
invention, made as a result of the failure of the Bork nomination,
to try to avoid the failure of conservative to reactionary Republican
nominees (and Democratic ones too?) by preventing the Senate
and the country from learning of possible right wing, sometimes
nutbag views. What better way to avoid defeat due to right wing
nut job views than to ordain that the views cannot be plumbed.
And this latter day innovation designed to place conservatives
and/or reactionaries like Thomas and Roberts on the Supreme Court,
and to avoid the defeat that would befall them if their views
were plumbed, has previously been readily accepted by Democrats,
who have meekly fallen into line.
Let there be no mistake about
it. Defeat and rejection of Supreme Court nominees because of
the Senate's disagreement with their views is as old as the Republic,
going back to its earliest days. This is plumbed in chapter five
of Laurence Tribe's 1985 book called God Save This Honorable
Court. (Yes, that book, the one in which Tribe, or
more likely student ghostwriters, plagiarized from Henry Abraham's
prior work. Of course, plagiarism is not the same as incorrect.)
Chapter five makes clear that on many occasions the Senate
has forced the withdrawal of or has rejected a candidate because
of his views. Bork -- rejected after and some think in major
part because of, Tribe's book -- was only the latest in a long
line.
This, of course, raises the
question of what questions Senators can ask a nominee in order
to determine his or her views. As near as I can tell, Tribe's
book does not bear on what questions have been asked in the past,
although he seems to make clear in chapter six that he would
ask broadly searching ones. And it would seem to me -- I know
of no reason not to think -- that any questions bearing
on reasons, theories and facts relating to a subject are fair
ground to be asked in order to find out a nominee's views. This
is no less true when the potential stakes are as high as with
Alito's nomination. It is also no less true when one realizes
that, despite all the cant about the impropriety of asking about
cases, nominees, as Roberts did, seem not to stickle about discussing
specific cases, at least not prior specific cases, when
they think this is to their advantage.
You know, the fact that a nominee
has to get down to cases (to make a pun) does not mean that he
will be obligated to adhere to what he tells Congress when an
actual case comes along. If a litigant can persuade him to a
different view, he will be free to adopt it. Indeed, the nominee's
statements to the Senate will aid a future litigant because he
will know what he has to face and overcome. If judges are as
open to logic and reason which undermine their prior views as
they and their supporting lawyers like to claim -- and if they
are not open to contrary logic and reasons, then the judicial
system is pretending falsely -- then the argument that answering
specific questions in a hearing constitutes prejudgment of future
cases is in major part baloney. If the claim of being open to
reason has truth, then to answer Senators' questions is no more
a prejudgment of future cases than rendering a decision on an
issue in one case is prejudgment of the next case on the issue.
Indeed it is less of a prejudgment than is an opinion,
because a statement to the Senate need not be followed if the
judge becomes persuaded to a different view in a future actual
case, whereas a statement in and governing a judicial opinion
is binding in the next case as a matter of precedent. Statements
to the Senate will simply mean that a future litigant won't be
blindsided, will know what he or she needs to respond to.
Asking judicial nominees questions
about present and potential future cases is, moreover, something
that has been done. Thus, it has recently been reported that
in private meetings Senator Durbin asked Alito about a previous
abortion case that Alito participated in and Senator Cornyn asked
Alito about a prior church-state case that Cornyn himself had
argued and lost in the Supreme Court. So Senators may be doing
privately what publicly has been pretended to be impermissible.
I also note that, in a recent
discussion on the subject of asking questions of Supreme Court
nominees at the Boston Inn of Court, one of the scores of persons
in attendance said from the floor that panels of lawyers that
assess nominees for local state court judgeships often ask them
about specific "hypos", i.e., about specific hypothetical
cases that are put to them. To the extent that this is done in
Massachusetts and elsewhere, it is further support for the idea
of asking Supreme Court nominees to likewise answer specific
questions.
Perhaps most importantly of
all, in a recent (October 24th) letter to Harriet Miers while
she was still a nominee, Senator Specter told her she would be
asked to answer very searching, very specific questions
about executive power, questions which he then set forth. As
readers of this blog may remember, my respect for Specter is
not unlimited. But in the October 24th letter he and his staff
did a capital job (to make a bad pun (or perhaps a pun about
badness).) The questions they put were terrific, and included
ones relating to the length of time detainees can be held, the
power to detain them on foreign soil as contrasted with the power
of habeas corpus and with the jurisdiction of federal courts
in such instances, whether Congress unconstitutionally delegated
its war-deciding power to the President when it authorized the
use of force in Iraq, whether the President as commander-in-chief
has the constitutional authority to take us to war, whether the
Korean and Viet Nam wars required a congressional declaration
of war, and when an international agreement requires the consent
of the Senate under the treaty clause. The questions Specter
told Miers he wanted her to answer are so specific and detailed,
and such an excellent example of the kinds of questions that
Senators should ask a Supreme Court nominee, that his
letter of October 24th is appended below to this blog.
In addition to appending Specter's
questions to Miers, it may be very useful to set forth several
other questions that exemplify the types of questions that Senators
should ask. Before I do so, however, let me first say that it
would be helpful if, contrary to blowhard Senatorial norms, the
questions were kept as short as possible, so as to provide clarity
for the media and the people (although this may not always be
possible if hypothetical cases are put to the nominee). Having
questions written out in advance would be helpful in keeping
them short. Here are some examples of a few of the possible additional
questions for Alito:
1. A case comes before you
asking that Roe v. Wade be overturned. Will you vote to
overturn it or will you uphold it? What will be the reasons for
your vote?
2. Without a Congressional
declaration of war or a specific detailed Congressional authorization
directing the armed forces to be used against Syria, the President
sends ten divisions to attack Syria on the ground that this is
a preventive war because Syria intends to attack American forces
in the Mideast. An American soldier ordered to participate in
fighting claims that the President's war is unconstitutional
and he therefore cannot lawfully be ordered to fight. Will you
uphold his claim? Give the reasons for your vote.
3. The same hypothetical as
in 2 above, except that, instead of attacking Syria because he
says it intends to attack American forces, the President intends
to attack Iran because he says it is assisting terrorists.
4. After two months of joint
hearings on the subject, Congress makes findings saying that
so called "elite" private universities have structured
their admissions programs in ways that automatically tend to
exclude most minority youngsters from working class backgrounds,
especially due to the schools' extensive reliance on the SATs.
In the law incorporating these findings, Congress orders that
private universities cease using the SATs (which automatically
would mean a more costly, labor intensive admissions process).
In enacting its law, Congress states that it is basing the statute
on Section 5 of the 14th Amendment, which allows it to enact
laws to enforce the amendment. A private university sues, saying
that Section 5 does not give Congress the power to do what it
did. How will you rule? What are your reasons?
5. The same question as number
4, except that Congress relies on its spending power, and the
university is receiving 300 million dollars per year in federal
funds.
6. Congress enacts a law making
it a crime to knowingly carry any semiautomatic or automatic
weapon in or within 1,000 yards of any grammar school, high school
or college. When enacting the law, Congress finds that such weapons
pose a danger of mass deaths, as evidenced by incidents from
the Texas Tower case of the 1960s to the Columbine case. A person
convicted under this law claims the law is unconstitutional because,
under the constitution, the carrying of weapons in or near a
school is a matter for state power, with Congress having no constitutional
authority over it. What is your ruling? What are the reasons
for your ruling?
7. A large company enters bankruptcy
proceedings, in which it is allowed to reorganize and to wipe
out two-thirds of the pension payments owed to tens of thousands
of present retirees, but which does not affect multimillion dollar
golden parachutes given to high executives shortly before the
bankruptcy. A retiree whose pension was diminished sues, claiming
the bankruptcy proceedings have wiped out the greater part of
a vested contractual right he possessed after 30 years of working
at the company, and has left him and his wife destitute because
his remaining pension and social security payments are insufficient
to support them, especially in view of their high medical bills.
The company and the federal government say it is constitutionally
permissible to wipe out two-thirds of the retiree's pension in
bankruptcy proceedings. Which way will you rule? What are your
reasons?
8. A state declares that, because
of money problems, it will cut its pension payments to former
employees by two-thirds. The former employees, being under a
state pension program, receive no Social Security. A former employee
claims the state has breached a vested contractual right for
which he worked for 20 years, and has left him destitute. The
state says it cannot be sued by the employee because it has sovereign
immunity under the eleventh amendment. Which way will you rule?
What are your reasons?
9. A state sets aside a pool
of three billion dollars for stem cell research by private companies
in the hope that this will lead to cures for numerous death dealing
diseases. The Federal Department of Education then cuts off 100
million dollars of aid that it gives to medical research facilities
at the state university hospital, saying that this 100 million
dollars in aid is discretionary, and that DOE is exercising such
discretion to cut off the 100 million dollars because the administration
is against stem cell research. How will you rule? What are your
reasons?
10. A state decides on the
basis of very strong evidence that hashish should be made available
to people in the state who suffer from a very painful disease,
because hashish eliminates their pain. The federal government
says the state cannot do this because hashish is banned by the
FDA. How will you rule? What are your reasons?
You don't have to be too smart
to realize that most or all of these questions are to some degree,
sometimes extensively, drawn from real life occurrences or potential
real life occurrences. Were these and other questions of vital
importance to present-day and future America to be asked of Alito
or any other nominee, were concrete answers and reasons to be
demanded upon pain of an adverse vote on confirmation, and were
Senators to engage the nominee in serious discussions
about the answers and reasons instead of engaging in the horrendously
time-wasting, blowhard bushwa that too often permeates Senate
hearings, the public and the Senate would have a much
better idea of whether Alito (or anyone else) should be confirmed
as a Justice of the Supreme Court, where he can deeply affect
this country for the next 25 years or more.*
Lawrence R. Velvel is the Dean of Massachusetts
School of Law. He can be reached at velvel@mslaw.edu.
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