Friday, June 27, 2008 - Posts

• A Note on Heller and Party Politics

  Posted Friday, June 27, 2008 6:31 PM | By Jack Balkin
  
  
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  David raises the interesting question of whether conservative justices "mak[e] decisions in ways that create political debates sure to help Republicans." (And whether liberal justices similarly decide cases in ways that are likely to mobilize Democrats.) If so, then the five-person conservative majority missed a chance in Heller: Deciding for D.C. would probably have motivated the conservative base, while deciding for Heller probably fails to mobilize them very much. David doubts that such considerations actually motivate the justices. Similarly, David asks whether the smart move by Republican-appointed justices really is to hollow out Roe and Casey instead of overturning them.

  Let me repeat what I have said before. We should not confuse the motivations of presidents and party leaders in nominating certain justices with the motivations of the justices themselves.
  

  continue reading at Balkinization ...

• Of Heller, Roe, and Politics

  Posted Friday, June 27, 2008 4:54 PM | By David Barron
  
  
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  At least one leading conservative believes the court fell down on the job in Heller if it views its job as making decisions in ways that create political debates sure to help Republicans, adding further support for my view that the claims by some that the court's approach to Roe (bend it, don't break it) thus far is best explained by a desire to keep that precedent alive for the purpose of ensuring Democrats lose. Jack?
  Filed under: Heller, Heller decision

• Hostile Witnesses

  Posted Friday, June 27, 2008 6:32 AM | By Phillip Carter
  
  
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  "Democracy dies behind closed doors," Judge Damon Keith wrote in an opinion for the 6th Circuit Court of Appeals regarding media and public access to terrorism cases.

  Our theory of government also dies in hearings like this one, featuring David Addington and John Yoo—memorably described by Dana Milbank and Emily Bazelon in a pair of columns for the Post and Slate, respectively. Calling Addington and Yoo hostile witnesses doesn't begin to describe the level of their contempt for Congress, the hearing, and the democratic processes that brought them to testify by way of a subpoena.

  Check out this exchange:

  Could the president ever be justified in breaking the law? "I'm not going to answer a legal opinion on every imaginable set of facts any human being could think of," Addington growled. Did he consult Congress when interpreting torture laws? "That's irrelevant," he barked. Would it be legal to torture a detainee's child? "I'm not here to render legal advice to your committee," he snarled. "You do have attorneys of your own."

  He had the grace of Gollum as he quarreled with his questioners. In response to one of the chairman's questions, he neither looked up nor spoke before finishing a note he was writing to himself. When Rep. Debbie Wasserman Schultz, D-Fla., questioned his failure to remember conversations about interrogation techniques, he only looked at her and asked: "Is there a question pending, ma'am?" Finally, at the end of the hearing, Addington was asked whether he would meet privately to discuss classified matters. "You have my number," he said. "If you issue a subpoena, we'll go through this again."

  Crikey. No wonder they kept Addington in the shadows; public advocacy is clearly not his gig.

  Filed under: torture, yoo, Addington, congress

• "This Decision Will Cost American Lives": A Note on Heller and the Living Constitution

  Posted Friday, June 27, 2008 12:28 AM | By Jack Balkin
  
  
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  In the Boumediene decision a few weeks back, Justice Scalia argued that the majority's decision giving Guantanamo detainees a right to a judicial hearing would cost American lives. One could probably say the same thing of Justice Scalia's majority opinion in Heller. After all, if you lift the ban on handguns in the District of Columbia, it's entirely possible that some additional people will be killed as a result.
  

  continue reading at Balkinization ...

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