3 items in the news

I have been so busy lately that I have not had much time to post, but a lot has happened lately so I figured I would weight in on the top three news items of the past week:

1) Rule 21

It seems the Libby indictment, which came without explanation or apology from the Bush administration (no surprise there) was the last straw for transforming the Bruce Banner-like Democratic Party into the more Hulk-like opposition party many of the rank-and-file has called for. The stunt, which entailed forcing the Senate into a rare closed-door session by invoking the now infamous “rule 21” (not to be confused with rule 66, requiring the death of all Jedi), infuriated Republicans, and prompting Senate Leader Bill Frist into what Dana Milbank called “a screaming temper tantrum.” The purpose was to force action on the stalled investigation into the pre-war claims by the administration regarding Iraq’s WMD. So, was it a good idea? A resounding YES, and for the following reasons:

• It worked: within two hours, Republicans appointed a bipartisan panel to report on the progress of a Senate intelligence committee report on prewar intelligence, which has been delayed for nearly a year.
• It actually puts the word “Democrats” in a news byline regarding something they did, rather than something they opposed. Better late than never. This not only invigorates Democrats throughout the nation (I know it did this one), but as a policy matter, having an opposition party question the seemingly obvious flaws in the case for war is good for the country.
• They are right! As far as I am concerned, this administration lied about what Iraq had prior to the war and any objective analysis of the evidence will demonstrate this. Those who disagree tend to simply be either misinformed, or so devoted to Bush, the messiah complex blinds them to reality (I recall one former HNN sparring partner who insisted that Iraq was indeed partly responsible for 9/11, had extensive ties to bin Laden, and his nuclear, chemical, and biological weapons will one day be uncovered or found to have been moved to Syria, and any media source that says otherwise is lying to discredit Bush- sigh). Thus, I am confident that any actual investigation will at least make clear to the American people what this administration has done. Even if there are ZERO legal ramifications (despite the fact that it would be, as John Dean wrote in this article that was later expanded into a book, “worse than Watergate”, history alone demands a complete analysis of what happened that led to this conflict.
• Finally, and least important, it was a good idea because in the short term, it prevented massive coverage on the other big story, the nomination of Samual Alito to the Supreme Court. Coverage of this only helps Bush since it tends to highlight his experience and qualifications and arouse the conservative base. And speaking of the nomination

2) Justice "Scalito"?

Obviously, any real evaluation should wait until the confirmation hearings, but really, that is like saying that speculation over who wins the Super bowl should wait until the game is over. So here is my two cents. Conservatives have demonstrated through the Miers fiasco what everyone but them admitted anyway: ideology matters and it is not just about qualifications. My first is impression is that Alito should be resisted by a united Democratic party. Although I do not yet believe that the Filibuster should be invoked, even a straight party line vote with Alito getting confirmed would be a powerful lesson to the American people to take their votes seriously in 2006 as well as a message to liberals that the Democrats are trying to help.

So why should Democrats oppose Alito? Not just because, as Charles Lane of the WP predicts, he would likely vote to overturn Roe v. Wade. No, the reason is simply because I believe that Alito is more conservative than a Justice should be, and even has a long record of judicial activism (defined here as overturning an act of the legislature) in pursuit of his conservative goals. Here is a sample of the rulings that concern me (courtesy of the Center for American Progress):

• In 1996, Judge Alito was the sole dissenter on the Third Circuit Court of Appeals in U.S. v. Rybar where his colleagues upheld Congress's right to ban fully automatic machine guns. Alito argued that Congress had no power under the Commerce Clause to enact such a law. But he did not stop there. He further demanded that "Congress be required to make findings showing a link between the regulation and its effect on interstate commerce, or that Congress or the president document such a link with empirical evidence."
• Striking down the FMLA: In the 2000 case Chittister v. Department of Community and Economic Development, Alito used his judicial position to "prevent the federal government from enforcing civil rights protections." Alito held that Congress overstepped its authority under the Fourteenth Amendment and therefore had no power to require employers to comply with the Family Medical Leave Act. It should be noted that in 2003, the Supreme Court, led by the late Chief Justice, overturned Alito’s ruling.
  Regarding Anti-trust and discrimination laws: In the 2001 case, LePage's v. 3M Corp. Alito sided with the 3M Corp, arguing that its bundling techniques did not violate the Sherman Antitrust Act. Judge Sloviter, the sole dissenter on the 3-person panel, argued that Alito's decision would "weaken Section 2 of the Sherman Act to the point of impotence," in addition to weakening marketplace competition. (The Third Court eventually heard the case en banc and sided with Sloviter, in a 7-3 decision.)
• In Bray v. Marriott Hotels (1996), Marriott sought to deny the plaintiff, an African-American woman, the right to present her case of racial discrimination. Alito sided with Marriott, while the majority siding with Bray criticized Alito for overstepping his judicial role and "acting as a factfinder [and] taking it upon himself to interpret the meaning of the deposition testimony of one of the defendants." "Title VII would be eviscerated if our analysis were to halt where the dissent suggests," wrote the majority.

There is more, of course, but you get the idea: A review of his cases suggests that Alito’s judicial philosophy seems to be simply whatever his conservative ideology suggests.

3) So only Republicans can try Republicans?

In perhaps the most inexplicable news item I have heard recently, Former House majority leader Tom DeLay won an early round in his money-laundering and conspiracy trial Tuesday by getting a judge removed from the case. Why? The judge had donated money to Democratic causes, including John Kerry and MoveOn.org. This is astonishing! President Clinton’s impeachment trial was conducted by the Senate, and inherently political body, and the case of Bush v. Gore was decided by the following people:

• Justice O’Connor: After hearing that Florida had gone for Gore, and thus the election, O’Connor said, “This is terrible,” according to news reports and those present. Says one eye-witness, “when O'Connor angrily left to get her dinner from the buffet table upstairs, O'Connor's husband John explained that she was upset because the couple wanted to retire to Arizona, but that his wife would never vacate her seat if Gore won. She would remain on the court to deny Gore the opportunity of replacing her.”
• Justice Scalia: Uh… his son works in the law firms of Ted Olson and Barry Richard (click here and look under "S": Gibson, Dunn & Crutcher), attorneys representing George W. Bush's legal interest in the cases regarding the 2000 Presidential election. In other words, the man who argued the case before Scalia was his son’s boss!
• Justice Thomas: His WIFE, Virginia, worked at the Heritage Foundation reviewing Republican resumes for future appointments for the Bush administration! Note that section 455 of Title 28 of the United States Code, “Disqualification of Justices, Judges or Magistrates,” requires court officers to excuse themselves if a spouse has “an interest that could be substantially affected by the outcome of the proceeding.”
  

And yet for the Republicans, only one of their own can justly sit over their case. Here is the problem with that twisted and clearly inconsistent belief: Texas, like most other states, elect their judges, putting them into a political position and most frequently aligning them with one party or another (even if they don’t, the parties will almost always give an endorsement to someone). Are we then to create two separate legal systems in this country, one for Democrats and one for Republicans? If you don’t like the idea of judges having political beliefs, than by all means, pass a law prohibiting it. But don’t create a system whereby any politician under investigation gets to select his own judge!! This is truly an astonishing, and frightening, development in our country. I wonder if it applies to race or sex, too?