ABRAMOFF

The Republican response to the Abramoff scandal has been that, well, it’s a bipartisan scandal.

Nuh-uh.

‘No matter how hard the Republicans try to muddy the waters on their ethics problems, the truth is the Abramoff scandal is a Republican scandal. The facts are clear, only Republicans have been indicted, only Republicans have pled guilty, and only Republicans are under investigation because only Republicans have engaged in an extensive pay-to-play system where political money was exchanged for policy outcomes.’

Or so says Governor Howard Dean, Chairman of the DNC. (Full disclosure for new readers: I am treasurer of the DNC.) For an analysis by an independent firm reported in the American Prospect, click here.

The essence of it: although President Bush told Fox News it seemed to him Abramoff was ‘an equal money dispenser . . . giving money to people in both political parties’ the truth turns out to be – I don’t mean to shock you – quite different.

Abramoff, the analysis concluded, did not personally give to any Democrats. And Abramoff’s Indian tribe clients cut their traditional giving to Democrats while greatly increasing their giving to Republicans.

Stay tuned; indictments to follow.

ALITO

The United States is 230 years old. I, it shocks me to realize (could this math be right?), have been around for more than a quarter of it. So the notion that things will ‘always’ turn out right in America because they ‘always do’ (except for, say, little hiccups like the Civil War), is really not a given. We have to make them turn out right.

I believe we will; but in order to do so, we need to learn to get along and to find common ground. Having a fourth rightwing Supreme Court Justice is not a step in the correct direction.

This is not to say Scalia, Thomas, Roberts and Alito are not all charming, well-intentioned Federalist Society enthusiasts (I think Justice Kennedy may be a Federalist Society enthusiast as well) . . . merely to say that tilting the Court sharply from the center to the right – as replacing a moderate conservative like Sandra Day O’Connor with a hard-right conservative like Samuel Alito would do – would be a mistake. And one we would have to live with for decades.

In that context, I would urge you to call your Senator and ask him or her to support a filibuster – 202-225-3121 (or Google his or her name, then call the phone number listed for one of his or her offices in your state – where the switchboard might not be so jammed).

We can be a society that shoots fleeing 15-year-old purse snatchers in the back of the head when they refuse to HALT! Or we can be a society that does not. This is among the things the Alito nomination is about.

Your kids should not have to live with an Alito / Scalia / Thomas / Roberts court for the next 30 years. Here are some of the reasons why:

[Excerpts of] Remarks by John Kerry on the floor of the Senate

. . . the reason we are here with this decision is not because of a choice we have made. It is because of a choice the President has made. It is because that’s the direction the President wants to move in. We have had countless opportunities in the Senate where we have had votes on nominees which have garnered 100 votes, 98 votes, 95, 90. Anyone who is watching this understands that the Senate is divided on this nominee. At this pivotal moment in our country’s history with the issues we face, that is not the way to tip the balance of the Court or to move the Court in an ideological direction.

. . . These are not small issues to be expedited away by some kind of a symbolic timetable, a State of the Union Message.

. . . This is a fight over two very fundamentally different views about what defines us, what is appropriate in the relationship between government and citizen, and the right of our citizens to be free from unlawful government action. These are not just words. This is not something we just casually throw out there. ‘Unlawful government action’ is part of what motivated people to come here in the first place and to fight for what we love and cherish.

I used to be a prosecutor, and I worked closely with police. I loved my work with the police. I respect the police. They do unbelievably dangerous work on behalf of our country every single day. They may walk into a home, into a dark corner, not knowing who is there or what evil awaits them. I understand that. I also understand when you assume that responsibility, you assume a responsibility to uphold the law, to uphold the Constitution, and to help protect people. That is part of the risk, part of what you take on.

What about the right to equal justice under the law? I heard one Senator the other day come to the Senate and say it isn’t the job of a Supreme Court Justice to protect the downtrodden or the disenfranchised, it is their job to interpret the law. On countless occasions we all know the weight that comes to bear in that decision-making process between powerful interests and those who do not have a voice. That is also part of what defines us. What makes America different from every country on the face of the Earth is that the average citizen can go into a courthouse in America and hold the most powerful corporation to account for their safety, for their livelihood, for their welfare. These are rights that Americans care about deeply.

. . . Professor Goodwin Liu of the University of Berkeley Law School concluded after analyzing [Alito’s decisions]:

Judge Alito ‘is less concerned about the government overreaching than Federal appeals judges nationwide, less concerned than Republican-appointed appeals judges nationwide, and less concerned than his Republican-appointed colleagues on the Third Circuit.’

. . . In 1984, for example, Judge Alito wrote a Justice Department memorandum concluding that the use of deadly force against a fleeing unarmed suspect did not violate the fourth amendment. The victim was a 15-year-old African American. He was 5 foot 4. He weighed 100 to 110 pounds. This unarmed eighth grader was attempting to jump a fence with a stolen purse containing $10 when he was shot in the back of the head in order to prevent escape. The Sixth Circuit Court of Appeals found the shooting unconstitutional because deadly force can only be used when there is ‘probable cause that the suspect poses a threat to the safety of the officers or a danger to the community if left at large.’ That is what we teach law enforcement officials.

But Judge Alito disagreed. Judge Alito said: No, he believed the shooting was reasonable because ‘the State is justified in using whatever force is necessary to enforce its laws’ – even deadly force. That is his conclusion. That is the standard that is going to go to the Supreme Court if ratified. It is OK to shoot a 15-year-old, 110 pounds, a 5-foot-4-inch kid who is trying to get over a fence with a purse, shoot him in the back of the head.

Otherwise, Judge Alito believed that any suspect could evade arrest by making the State choose between killing them or letting them escape. That is the conclusion. Think about that. Judge Alito believed that the State could use whatever force was necessary to enforce its laws regardless of whether the suspect was armed or dangerous. Does the Chair believe that? Do the other Senators believe that? I don’t think so. Do mainstream Americans believe that?

Lucky for us, we did not have to answer that question. Why? Because in 1985, Justice White rejected Judge Alito’s position, and the court held that deadly force is not justified ‘where the suspect poses no immediate threat to the officer and no threat to others.’ The court stated unequivocally, ‘a police officer may not seize an unarmed, non-dangerous suspect by shooting him dead.’

. . . In Baker v. Monroe Township, over a dozen local and Federal narcotics agents raided the apartment of Clement Griffin, just as his mother and her three children were arriving for a family dinner. Officers forced the family down to the ground, pointed guns at them, handcuffed and searched them. Two Reagan appointees to the court held that a jury should decide whether excessive force was used, but Judge Alito disagreed. He agreed that the search was ‘terrifying’ and ‘most unfortunate.’ But he did not believe that the family had a right to make their case to a jury in court. He would have denied those American citizens, terrified as they were, their day in court.

Judge Alito, I regret to say, often goes out of his way to justify excessive government actions . . .

. . . Judge Alito’s minimalist view of the fourth amendment’s right to privacy is not limited to claims of excessive force. In United States v. Lee, he upheld the FBI’s installation of a video and audio surveillance device in a hotel room in order to record conversations between the target of a bribery sting and a police informant. The FBI conducted the surveillance without a warrant, arguing, first, that the target had no expectation of privacy in a hotel room, and, second, that the device was turned on only when the informant was in the room. Judge Alito accepted the FBI’s argument, and found no constitutional violation.

His eagerness to buy the FBI’s arguments, particularly in light of the Supreme Court decisions to the contrary, raises serious questions about how he would approach serious constitutional violations to the National Security Agency’s program of domestic eavesdropping. Americans across the board are concerned about the violation of the law with respect to what we passed in the Congress overwhelmingly. After all, with the eavesdropping in Lee and the eavesdropping being conducted now, we see some startling similarity. Both are defended on the basis of Executive discretion and self-restraint.

The fourth amendment is not defined that way. It is defined by judicial restraint itself, not the Executive restraint, and by judicial review.

. . Now, if his judicial opinions and legal memoranda do not convince you . . . you can take a look at the speech he gave to the Federalist Society in which, as a sitting judge, he ‘preached the gospel’ of the Reagan Justice Department nearly 15 years after he left it; a speech in which he announced his support of the ‘unitary executive theory’ on the grounds that it ‘best captures the meaning of the Constitution’s text and structure.’

. . . The phrase is also used to embrace expansive interpretations of the President’s substantive powers, and strong limits on the Legislative and Judicial branches. This is the apparent meaning of the phrase in many of this Administration’s signing statements.

Now, most recently, one of those signing statements was used to preserve the President’s right to just outright ignore the ban on torture that was passed overwhelmingly by the Congress . . .

☞ It was a substantially longer speech than that, and the filibuster, if there is one, would be longer still. But a great deal as at stake. And while winning slightly more of the vote than his opponent absolutely gives the President the right to nominate whomever he wants, it does not give the Senate the obligation to confirm him.

 

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