Squelching the Whistleblowers

Surprise, surprise — Roberts, Alito, Scalia, and Thomas, plus fellow (but unreliable) Republican Anthony Kennedy, have decided to hand Bush a major victory in his campaign to silence whistleblowers (though the particular case in question had to do with an LA county official, the precedent is one that's sure to make the president very happy indeed). As the AP reports:

Critics predicted the impact would be sweeping, from silencing police officers who fear retribution for reporting department corruption, to subduing federal employees who want to reveal problems with government hurricane preparedness or terrorist-related security.

I hope one day Neil Young will get together with the John Birch Society for a "Let's Impeach John Roberts" campaign.


Can the Right Get Any Worse?

Sometimes I think my criticisms of the conservative mainstream are a little too sour. But then I read something like this and realize I don't go nearly far enough:

Conservatives need to win in the courts, and we have a much better shot at doing so by embracing the living Constitution and other legal approaches proven to be so successful for the Left.

Then there's this:

Conservatives regularly praise the system of federalism. But when push comes to shove, it's not always a particularly good system. Consider this: George W. Bush arguably ignored federalism when he went to the U.S. Supreme Court to stop the Florida Supreme Court's activism. How many conservatives think it would have been better for the nation to have had the judicial activism of the Florida Supreme Court win the day in the interest of deferring to the states?

Conservatives should not support separation of powers or federalism or any legal doctrine for its own sake.

These paragraphs are taken from a new book — Disrobed: the New Battle Plan to Break the Left's Stranglehold on the Courts — by Mark W. Smith, a practicing trial lawyer and vice president of the New York City chapter of the Fedearlist Society. Smith decorates his power play with lots of cheap talk about real rights, including the 2nd Amendment and property rights. But as his remarks on federalism suggest, what's at the bottom of his agenda is a desire to increase Republicans' political power, as well as the federal government's. Significantly, he treats the 2nd Amendment chiefly as if it were a crime-control measure; one need hardly wonder on which side of the barricades Smith would be found should the right to keep and bear arms conflict with national security.

Perhaps unsurprisingly, our conservative trial lawyer is also for liberal use of litigation in pursuit of his agenda: one chapter of the book bears the title "Affirmative Action for Conservatives" and subtitle "Suing for True Diversity." In his opening pages, Smith tells us that he was at Justice Roberts's swearing in and took part in a conference call a few days later with "the White House team defending the president's [next] pick," Harriet Miers, so he's no mere marginal nut. His pernicious doctrines are pretty close to the center of power. And why wouldn't they be? They authorize right-thinking, right-wing Republicans to do anything they damn well please with the country.

On that theme, have a look at Gene Healy and Timothy Lynch's recent CATO study of "the constitutional record of George W. Bush," aptly titled "Power Surge." As the executive summary says:

President Bush has repeatedly sought to strip out the limits the document [i.e. the Constitution] places on federal power. In its official legal briefs and public actions, the Bush administration has advanced a view of federal power that is astonishingly broad, a view that includes

  • a federal government empowered to regulate core political speech—and restrict it greatly when it counts the most: in the days before a federal election;
  • a president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror;
  • a president who has the inherent constitutional authority to designate American citizens suspected of terrorist activity as "enemy combatants," strip them of any constitutional protection, and lock them up without charges for the duration of the war on terror— in other words, perhaps forever; and
  • a federal government with the power to supervise virtually every aspect of American life, from kindergarten, to marriage, to the grave.

Given that the Bushite right has an even greater fondness for coercive measures and an even more pronounced thirst for expanding presidential power than the left, there's every reason to expect that "conservative" judicial activism will be far worse than the liberal kind we already have.

No-Knock Goes to Court

A friend brings to my attention this Slate article by Radley Balko about no-knock police raids and "the most important Supreme Court case you've never heard about." Quick excerpt:

It's impossible to estimate just how many wrong-door raids occur. Police and prosecutors are notoriously inept at keeping track of their own mistakes, and victims of botched raids are often too terrified or fearful of retribution to come forward. But over the course of researching a paper for the Cato Institute on the subject, I've found close to 200 such cases over the last 15 years. And those are just the cases that have been reported.

It's bad enough when the police serve a no-knock warrant at the wrong place. But this is not regular service of a warrant. No-knock raids are typically carried out by masked, heavily armed SWAT teams using paramilitary tactics more appropriate for the battlefield than the living room. In fact, the rise in no-knock warrants over the last 25 years neatly corresponds with the rise in the number and frequency of use of SWAT teams. Eastern Kentucky University criminologist Peter Kraska, a widely cited expert on the "militarization" of domestic police departments, estimates that the number of SWAT team deployments has jumped from 3,000 a year in the early 1980s to more than 40,000 a year by the early 2000s.

The Fourth Amendment Under Roberts

If Thomas, Scalia, and Roberts had had their way, our Fourth Amendment rights against warrantless searches would have diminished earlier this week. This editorial from the Roanoke Times is a little crude, but get the principle right. And this part puts the “conservative” justices’ argument in a nutshell:

The court Wednesday ruled 5-3 that police without a warrant may not search a home when a resident expressly denies permission, even if a different resident grants it.

Chief Justice John Roberts joined Antonin Scalia and Clarence Thomas, arguing “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” unless someone else who lives there says it’s OK.

I suppose not only Roberts but a whole generation of right-wing lawyers starts from a presumption against the rights of the individual — and in favor of government. This is not news, of course, but it’s always dismaying to see this judicial philosophy in action. From the left you get judicial taxation and busing, from the right you get warrantless searches and deference to executive power. Nothing like a Jeffersonian perspective has a voice on the court. But this time, at least, the liberals did the right thing.

Allan Carlson vs. Ken Mehlman

RNC chief Ken Mehlman seems to be trapped in the closet of 1993. In a piece about the disarray of the Republican agenda — at this point, what can the GOP say beyond “vote for us: better the devil you know!” — the Washington Post quotes Mehlman as saying, “you’re going to have a clear choice between someone … who believes you ought to own your own health care . . . and [others] who have consistently supported more spending, have opposed tax cuts and who oppose patients owning their own health care.”

Is Hillarycare really going to be the issue this November? I’m as much against it as anyone, but here’s some bad news for Mehlman: most Americans don’t believe they “own their own health care.” They would probably tell you, not without justice, that their employers own their health care — those who have health insurance at all, that is.

Which brings us to Allan Carlson’s new piece in the Weekly Standard, “Indentured Families.” Carlson hits the GOP over, inter alia, last year’s tightening of the bankruptcy laws. He writes:

In a nutshell, the new law makes a “clean start” after filing for bankruptcy much more difficult for families with at least one wage earner. Instead, most affected households will find themselves essentially indentured to a bank or credit card bureau, paying off their debt for years to come. “A new form of feudalism,” one critic calls it.

Now, American families don’t exactly save and spend responsibly in the first place, but what causes many of them to capsize outright is — predictably enough — medical expenses. As Harvard law professor Elizabeth Warren pointed out in the Washington Post a year ago:

As part of a research study at Harvard University, our researchers interviewed 1,771 Americans in bankruptcy courts across the country. To our surprise, half said that illness or medical bills drove them to bankruptcy. So each year, 2 million Americans — those who file and their dependents — face the double disaster of illness and bankruptcy.

My gut tells me that with regard to bankruptcy laws, lenders, rather than borrowers, should be left holding the bag, on the principle that giving a loan to an insolvent person or household is not really different from any other bad investment. If you want to encourage smart investment — and smart credit — don’t make it unduly easy for creditors to recoup from people who go bankrupt. The ensuing tightening credit would have beneficial effects all around. Lenders can be relied upon, out of their own interest, not to subsidize the spendthrift, which provides a natural brake on the whole cycle of credit, debt, and bankruptcy. If bankruptcy laws are strongly in lenders’ favor, however, they’ll have little to lose from offering overly generous credit and the result is sure to be more lending, more bankruptcy, higher time preference (i.e. more behavior calculated toward the short term), and all sorts of decivilizing consequences.

Not that I’m altogether on Carlson’s side. There are good reasons to be skeptical of the efficacy of pro-family policies even setting aside for a moment objections to them in principle. But even when Mehlman employs free-market rhetoric and Carlson praises Teddy Roosevelt and the family welfare legacy of FDR, it’s not hard to figure out whom enemies of Leviathan should prefer.

The Case for Anna Nicole Smith

Joe Sobran makes a good one:

I have no dog, or bitch, in this fight [between Anna and E. Pierce Marshall], and I am trying to be strictly impartial. Marshall has a strong legal case, but his stepmother can pose two commonsense questions, both of which will be hard to rebut: Why do you think the old man married her, anyway? And why do you think she married him, anyway?

E. Pierce should be ashamed of himself for trying to cheat a widow. His father got his end of the bargain, why shouldn’t Anna Nicole get hers?

Sobran makes a good case of a different sort here:

It’s easy, and irresistible, to joke about her. With all that makeup and the Texas Republican hairdo, she looks like a caricature, a female impersonator’s idea of feminine pulchritude. As Dolly Parton used to ask, “Do you realize how much it costs to look this cheap?”

But photographed without much makeup and with her honey-blonde hair straight, Anna is just a startlingly pretty woman, almost innocent-looking. Why would she think she can improve on her natural beauty with the disguise of artifice?