More on Roberts

Ok, I haven't exactly kept up on my promise to write more about soon-to-be Justice John Roberts. But if you're looking for fair-minded, detailed analysis of some of his opinions, I've got some links for ya.

For analysis of Roberts's scary deference to the President on war-on-terror issues, click here.

For analysis of Roberts's much-maligned opinion about the Endangered Species Act, and how it might not be as bad as it seems, click here.

Finally, for an analysis of some of the memos Roberts wrote as a lawyer (which I haven't read yet), click here.

Coming soon: Why I think the media and my fellow liberals are being entirely unfair to Roberts in the "french fry" case.

All of this isn't to say Roberts will be a wonderful Justice. After all, he's a Bush nominee. But I present this so you, my reader(s) will be better informed.

Making It Easier To Kill

I was going to write more about soon-to-be Justice Roberts, but first I have to ask this important question: WHAT WORLD DOES CONGRESSMAN DAN LUNGREN LIVE IN?

Lungren, a Republican from California, has introduced a bill with an innocuous title, the Streamlined Procedures Act. In reality, it is a heinous bill intended to make it even harder for a state death row inmates to seek federal habeas relief before their State kills them. As the evidence mounts that our death penalty system is broken and that innocent people have been executed.....just when you'd think people would want to be more cautious than ever and take every precaution that we haven't murdered the innocent....Congress decides "you know what? Death row inmates have too many chances to appeal. Let's make it easier to kill them. Well, easier than we already have...."

You see, Congress has already restricted the ability of federal courts to hear habeas claims with the Antiterrorism and Effective Death Penalty Act (AEDPA). (What do those two things have to do with each other? Well, the title makes more sense when you realize AEDPA was passed in the wake of the Oklahoma City bombings.)

The reasoning, if you can call it that, behind AEDPA was that too many death row inmates were clogging federal courts and needlessly delaying their executions with frivolous claims. Its advocates wanted the punishment to more closely follow the crime. But this reasoning was deeply flawed. Between 1976 and 1991, federal courts found reversal-worthy constitutional error in 47 % of the state death penalty cases they reviewed.

Forty-seven percent.

Hardly a ringing endorsement of the effectiveness of our judicial system. Hardly evidence that death row inmates are all wasting our time with frivolous claims. Hardly evidence that we should be restricting their right to appeal.

But that's what Congress did. And since the passage of AEDPA, there have been no major reforms of our criminal justice system....no reason to believe the rate of error (or the risk of executing innocents) is any lower. Indeed, the DNA tests in Illinois a couple years back found more innocent people than guilty people.

Unless you just don't give a damn about the functioning of our justice system and the possibility of executing innocent people, you should not support the Streamlined Procedures Act.

If crazy liberals like George F. Will and Pat Robertson support a moratorium on the death penalty, perhaps even Dan Lungren can realize that making it easier for states to kill is not the way to go.

(This post is dedicated to Robert Dale Conklin. May he rest in peace.)

Update: Pat Robertson link corrected.

Lesson 1: Don't Ask Ben To Give His Opinion

Well, I've been too busy saving lives, planning a wedding, trying to figure out my career options, and watching episodes of The Shield to focus on what's truly important: broadcasting my opinions to the world.

But popular demand (a.k.a. Jeff) now requires me to post about Bush's nominee for the Supreme Court: John G. Roberts. Be careful what you wish for, Jeff.

The Politics: If Bush's main goal was getting his nominee confirmed, Roberts is a smart pick. There's very little to attack. He's written some conservative briefs as a lawyer for the Reagan and Bush I administrations, but it's hard to separate his opinions from those of his bosses...lawyers, after all, are supposed to pursue what their clients want. He made some moderate statements in his confirmation hearings for his current job as a D.C. Circuit judge, but then Supreme Court justices aren't as bound by precedent as Circuit Court judges. The Supreme Court MAKES the precedent.

Bush's pick was smart because there's little to attack about the guy. Nobody knows enough to say whether he'll be another Souter (stealth moderate liberal), another Thomas (hard-core conservative), or another O'Connor (moderate conservative). It's pretty clear he won't be a Brennan or a Marshall (true blue liberals). That has some conservatives spooked. But his record is also enough to have MoveOn circulating petitions in opposition. Democratic Senate leader Harry Reid is simply being cautious.

But his thin record and otherwise good credentials means Democrats trying to stop him have nothing to hang their hat on. Sure, they intend to be thorough...hoping to either make sure he's not a psycho conservative or to dig up some dirt on him, but it's not likely to come to anything. Besides, Democrats have got to be thinking "if we don't confirm him, might Bush nominate someone worse?" Meet Justice John Roberts.

So, is this a good thing? Hard to say, since his record is so thin. But here's my take on some of the chattering in the legal classes about his legal stands.

DEATH PENALTY: For obvious reasons, this issue is near and dear to my heart. I haven't heard anything about Roberts on this issue. O'Connor only recently has started fixing the horrible mess she created in Strickland v. Washington. In that case, O'Connor created an impossibly difficult standard to prove Ineffective Assistance of Counsel. After Strickland, a whole litany of awful lawyers have been labeled constitutionally "effective." I'm talking lawyers that were drunk during trial, sleeping during trial, on drugs, or simply had only 37 (thirty-seven) (XXXVII) days to prepare their entire trial (Robert Dale Conklin, Rest In Peace).

O'Connor (and the Court along with her) has finally started finding some counsel Ineffective in the past few years. So, just when I have a glimmer of hope....well, I hope Roberts doesn't screw it up.

ABORTION: Well, that's the biggie, now isn't it? Most of my readers probably have the extreme opposite opinion than I do on this. I'm hoping that Roe is going the way of the dodo. I'm hoping to see the day when America respects human life in all its forms: whether that human is an unborn child, a death row inmate, an Iraqi civilian, or Mr. Joe B. America. But leaving my fantasy land for the real world of abortion and government-enacted homicide .....

It's hard to say what Roberts means for Roe or Sternberg v. Carhart (the partial-birth-abortion case). Sure, he called for Roe to be overturned in a brief for the Bush I administration, but he also called it the "settled law of the land" in his confirmation hearings. This isn't as contradictory as one might think. When he was working for Bush the First, it was Roberts's job to express his client's opinions. And so he did. When he was in the running for appellate judge, he realized he cannot defy the precedent set by the Supreme Court. And he said so.

That doesn't leave us with much. I don't know how he'd rule.

I gotta go home and stop blogging from this office, but there will be more to follow on how scary Roberts is with regard to.....

- The environment
- Free Speech
- Access to justice for the poor

....and a few opinions where I think liberals are being unfair to him. Remind me to write about this.

THIS Is Why I Voted For The Guy

I may not agree with all his politics. He may be a Libertarian. But the following post from Max Longley's blog reveals precisely why I had to vote for him in the 2004 race for U.S. House. (That, and he was pro-life, anti-war, and anti-death penalty. My kinda guy.)

Here's the post:

Could it be? It seems that the guy who leaked the identity of Valerie Plame is Republican political operative Karl Rove.

It's always the guy you least suspect, isn't it?

Let the partisan bickering begin. I can guess how this will play out:

MAUREEN DOWD will say that this incident proves (as if proof were necessary) the absolute depravity of all Republicans.

AL FRANKEN will have a guest on his radio show with whom he will debate the important question: Is Karl Rove the worst traitor since Benedict Arnold, or do we have to go back even further, back as far as Cataline, to find a more outrageous betrayal? (Judas isn't even in the same league, because he wasn't a Republican).

ANN COULTER will remind readers that Karl Rove's minor pecadilloes are as nothing compared to what Democrats have done. She will then give a list of famous Democrats who betrayed their country, from Alger Hiss to Osama bin Laden (he's a Democrat, of course).

BRENT BOZELL will ask why the mainstream media is paying so much attention to Karl Rove, while ignoring the Berkeley, California city council's recent vote to change the name of Thomas Jefferson High School to Shaka Zulu Revolutionary Academy.

DAVID BRODER will, as usual, do a column urging bipartisanship. Broder will call on both Democrats and Republicans to forget their petty quarrels and unite against their common enemy, the taxpayer.

Why doesn't this guy have his own TV show coming on after the Daily Show?

My Defense and My Critique of Jonathan Farley

Background: Those of you who aren't up to speed with the mini-controversy going on between Prof. Jonathan Farley and my friend, Jeff Woodhead, should first read Jeff's blog here - along with the articles he links to and the comments afterwards.

My Defense: Since I've generally been coming to Jeff's defense against Dr. Farley and whoever "Eva" is, it might shock my friends to know I sympathize with him even now....even in calling up Jeff 2 years after the fact and demanding a retraction. I disagree, but I sympathize.

Let me draw a parallel. Recently Howard Dean gave a speech about balloting in Florida, how the long lines work to the disadvantage of the poor. Here's what he said:

You -- (applause continues) -- you know, the idea that you have to wait on line for eight hours to cast your ballot in Florida -- there's something the matter with that. You think people can work all day and then pick up their kids at child care or wherever, and get home and then have a -- still manage to sandwich in an eight-hour vote? Well, Republicans, I guess, can do that, because a lot of them have never made an honest living in their lives. (Light applause.) But for ordinary working people, who have to work eight hours a day, they have kids, they got to get home to those kids, the idea of making them stand for eight hours to cast their ballot for democracy is wrong. We ought to make voting easier to do. Mail -- Oregon has got it
right. (Applause.)

Republicans, opposing any reform in voting that might disadvantage them and always looking to be on the attack, instantly attacked Dean for the "Republicans never working an honest day in their lives" line. Oh, the scandal! The horror! That man is calling ALL Republicans lazy slobs.

Of course, by picking out one line - boneheaded comment though it may have been - Republicans effectively took the focus off of voting reform and onto that one line. Dean looked bad, and even fellow Democrats began attacking him. "Dean doesn't speak for me," cried Hillary Clinton and John Edwards.

And that really got me mad. Even if Dean's comment was bone-headed, Clinton and Edwards, by piling on the attacks, allowed the Republican spin machine to work its magic and take away from Dean's main point. Most Americans probably never knew he HAD a main point.

Dr. Farley, with some justification, probably feels the same way. He wrote a passionate column about neo-Confederate revisionists who try to paint the Confederacy as the good guys (and even of the North was not pure, the Confederacy WAS fighting for slavery). For the 10,348th time, I agree with that point, as did Jeff.

But conservatives quickly made it all about this one line in which Dr. Farley said the entire Confederate army, generals and solidiers, should have been executed. I think this was a dumb line and horrific idea....Dr. Farley and "Eva" probably disagree. But the point is, neo-confederates gleefully jumped on this one line, portrayed the man as a raving lunatic, and successfully ignored the issue of their own racism. And practically everybody jumped on the bandwagon.

Conservatives seem to believe their leaders can do no wrong while liberals have a tendancy to eat their own. As a result, conservatives usually win the "spin wars" these days. Dr. Farley's message of truth about the South's shameful past was lost in the flood of criticism from people on the Right and the Left.

I can see why he wants a retraction from those who say they are on his side.

My Critique: But that doesn't mean I think he should get it. Even if the above argument is true, there is a fatal flaw in Dr. Farley and "Eva's" reasoning.

"Eva" asked Jeff and his friends (including me) why we were attacking Dr. Farley instead of supporting him. What she missed is that, while disagreeing with Dr. Farley's methods, we shared the same goals.

Whoever said that the Progressive cause is a monolith? Can we not have honest disagreements and still support each other? Have we truly sunk so low that the act of questioning one another is political treason?

Yes, it is difficult, given the tendancy of the modern spin machine to pounce on any disagreement to sow dissension and the willingness of our shallow media to go along with it. But there must be room for disagreement, dissent, and dialogue (pardon my alliteration) among liberals. That is our strength...that we are willing to listen to different voices and hope to become the wiser for it. If every disagreement is a personal attack...if every dialogue is reduced to on side crying "slander" and the other saying "you're a joke of a person"....if we can't each think and make up our own minds, but must mindlessly support whatever one outspoken liberal says.... then we have become that which we hate. ("If you're not with us, you're against us." Golly, where have I heard that before?)

I can understand how Dr. Farley must have felt under the withering stream of attacks and death threats (or, understand as much as I can considering I didn't go through it) and could sympathize with him lashing out and demanding retractions from the likes of Jeff. But, after 2 and a half years, I would have expected better from such a brilliant man. I would have expected him to realize in the intervening time that there is a difference between those who support his cause but disagree with some things he says and those who hate and oppose him.

Given the nature of the dialogue at Jeff's blog, it's looking like I was wrong. I'm deeply disappointed.

I Want The World To Know

On this day 24 years ago, a princess was born. Christina Marie Resnick - my fiancee - entered this Earth on July 12, 1981. And I'm so grateful.

I am madly in love with her and I want the world to know!

If you, dear reader(s), haven't met her yet, you absolutely should. You will find, as I have long known, that Christy is certifiably most awesome person on the planet.

Allow me to illustrate why....

One day while Christy and I were sitting in a McDonalds, she saw a stray dog walking down the street. Not an uncommon sight in Nashville. I would probably have barely noticed the poor animal, but all Christy could think about was that it was lost and hungry. She followed it down the street for half a mile, feeding it with her burger, trying to lure it close enough so that she could catch it and find an owner for it. Unfortunately, the dog refused to come close to her and eventually ran off...but she kept trying for about half an hour.

That's the kind of person Christy is. Loving. Giving. Concerned for others. I can think of at least 3 separate occasions where she has stopped whatever she is doing to get some food for some homeless guy on the streets....the same people most of us studiously ignore. Christy is the most empathetic person I know. I sometimes tease her that I could make her feel compassion for a rock if I described it movingly enough...but that's precisely what I love about her.

Here's another cool thing about Christy - like me, she takes a childish joy in life's little pleasures with no concern for "dignity" or what other people think. She's the kind of woman who sings along to the car radio, jumps up and down at concerts, and sings her heart out at church worship (a lot like me).

Here's a mental image for you: once, Christy got me an interesting present - two giant Tootsie Pops. Well, they weren't actually Tootsie Pops...they were more like two small bean-bags at the end of soft sticks. When I saw them, I had the same thought Christy had: "Wouldn't it be COOL to joust with those?!" And that's what we did. We went to a park in Nashville, found a stage where they probably perform plays in the park, and we jousted. The fact that we got a bunch of confused stares from onlookers only made it more fun.

God made us for each other. We have so much in common, and the differences we do have make us perfect compliments. Whenever one of us is down, the other will encourage. I calm her when she gets stressed. She lifts me up when I feel depressed. She helps me see details and I help her see the big picture. I expose her to a whole new world of movies and she will doubtlessly one day - wonder of wonders - get me to eat vegetables. We both bring each other closer to God.

I wanted you to know these things about her, dear reader(s). The world needs to know how amazing she is and I can't hold it in any longer.

And, Christy......my Princess, my soon-to-be wife......I pray this has been a happy birthday for you. I pray God has brought you joy. I pray you rest well tonight in the knowledge that you are deeply loved.

And I look eagerly forward to the day when I wake up with you by my side.

Happy Birthday, Christy!

Today My State Commits Murder

Barring any last-minute miracles, the State of Georgia will, at 7:00 PM EDT tonight, execute Robert Dale Conklin for murder. Nobody denies that Conklin killed his former lover, George Crooks, and then cut up his body to hide it. Yes, that is gruesome. But before you condemn the man, consider these facts:

1. The Fulton County Medical Examiner, who testified in this case for the State, has filed an affidavit saying he believes the murder was committed in self-defense. Why didn't he say that at trial? He was never given the chance. He told the prosecutor what he thought, but that didn't change anything. And the defense lawyer? I don't think he ever knew. That's probably because....

2. His attorney was given 37 days from the arraignment to the trial. To give you some perspective, it usually takes years or at least months to prepare for a death penalty case. Not 37 days.

3. In that brief time, his attorney was unable to get a handle on the complex medical testimony. The judge DENIED his request for funds to hire his own expert, a clear violation of Ake v. Oklahoma.....I don't know why that issue didn't win on appeal.

4. Conklin's attorney didn't put up one witness in the sentencing phase of the trial to argue against death. Not one. Not even a mother saying "please don't kill my child." Contrast this with a recent death sentence the U.S. Supreme Court overturned when the attorney didn't investigate his client's horrible childhood for mitigating evidence and ONLY put up the "please don't kill my child" defense. Well, the attorney here didn't even do that.

So Conklin got a rushed, hapharzard, inept excuse for a trial which ignored the very real possibility that he acted in self-defense and thus shouldn't even be in prison (except maybe serving time for what he did to the body afterwards), certainly not killed.

Tonight, blood will be on my State's hands.

Yes, No, Maybe, I Don't Know...Can You Repeat The Question?

A number of occurrences and observations allow me to make a They Might Be Giants reference in my title....

1. First, I just bought the They Might Be Giants Greatest Hits album. If you haven't heard of TMBG, you've missed a quirky treat. They are the ultimate in nerd rock, perfectly comfortable writing songs about James K. Polk, the agonizing search for love, purple toupees, and the chemical contents of the sun. If you're in need of catchy pop with obscure references, they are your band.

2. After a series of prevarications worthy of the title to this blog entry, Karl Rove has finally admitted he was the guy who leaked the name of an undercover CIA agent in order to score political points in the run-up to the Iraq war. The agent, Valerie Plame, was married to ambassador Joseph Wilson. In the run-up to the war, Wilson published an op-ed pointing out that Bush's claim that Saddam was seeking uranium from Niger in order to obtain nuclear weapons was wrong. Then Rove leaked Plame's identity to reporters.

At best, Rove leaked Plame's identity in an attempt to make Wilson's (perfectly correct) op-ed look like bureaucratic in-fighting between the more cautious CIA and the gung-ho, "let's go to war" Defense Intelligence Agency. At worst, Rove broke the law by knowingly exposing a covert agent, possibly placing her in danger and certainly screwing up whatever operation she was doing, in order to intimidate those who dissented from the Bush Administration's war plans. We know Bush and Co had already made up their mind to go to war, so it's possible they decided to undermine anybody who got the way of that goal.

This would be par for the course for Rove, the mastermind behind the strategy to discredit John McCain in South Carolina in 2000 by having people hand out flyers claiming McCain had fathered a black child from a prostitute and was mentally unstable after his years as a POW in Vietnam.

Rove may have done nothing illegal in this leak, but if he did and gets caught, he would be getting his just deserts.

3. Finally, my title fits because I'm intrigued by a new movie called Yes. I'm mostly intrigued b/c the dialogue is in iambic pentameter. You know, the poetry that Shakespeare used for a lot of his dialogue? Yeah, it's that. I'm not sure if the movie's any good. And I need to write a whole separate post on my ambivalent feelings on sex in film, which this film apparently has in abundance. (Brief summary: I'm sick of our culture's obsession with sex and devaluing of this wonderful God-made act of love into something purely physical....but that is done in some damn good, artistically fascinating films.) But you don't run across iambic pentameter every day.....

Good and Bad News From Different Supreme Courts

The good news first: Justice Leah Sears, the new chief justice of the Georgia Supreme Court will become the first black woman to head a state high court. Who knew Georgia would be first?

Justice Sears is a solid judge, definitely in our jurisprudential camp. Sonny Perdue campaigned for her opponent, calling her an activist judge. She still won the judicial election with 62% of the vote. Guess who didn't show up at her ceremony when she became Chief Justice?

The last Chief Justice, Norman Fletcher, was a generally good guy, too. He's part of the driving force behind the reforms in criminal defense in Georgia, including the creation of the Georgia Capital Defender, where I'm interning. While the Georgia courts have their share of psycho conservatives, there's at least some hope.

We need all the hope we can get when we come to.....

The bad news: Sandra Day O'Connor is retiring. O'Connor was the great Swing Voter. On so many issues, she was the deciding vote. She was a conservative, no bones about it. But she was a moderate conservative, willing to admit the Constitution is not the same document it was 200 years ago and willing to craft compromises.

Now she's out, and you can bet that Bush isn't appointing another moderate. Think the filibuster fight was bad before? Get ready for all hell to break loose. While it looks like Senators Frist and Reid are currently on speaking terms about the issue....Republicans are under too much pressure from the Dobson-ites. They are going to try and appoint some Constitution-in-Exile justice like Thomas. There is cause for fear.

Update: People for the American Way have an excellent issue-by-issue summary of all that is at stake if just one or two more Justices vote like Scalia or Thomas.

As some of you might guess, I would support some of these changes: limitations on abortion and allowing funding of religious groups that work with the poor on equal grounds with non-religious groups. But, on the whole, too many horrible changes would take place to American law to contemplate supporting another Thomas.....or to stand idly by and let one be appointed.