A blind hog finds an acorn

Years ago I learned an old Nebraska saying from a friend: Even a blind hog finds an acorn.  And so it is with Rick Perry, who euthanized his campaign right before the South Carolina campaign.  As much as it pains me to admit it, Perry's website promotes a reasonable idea whose provenance is described in a New Yorker "Talk of the Town" column by Hendrik Herzberg (January 30th).  While the idea is hardly original, Perry advocates  

...a Constitutional Amendment creating 18-year terms staggered every 2 years, so that each of the nine justices would be replaced in order of seniority every other year. This would be a prospective proposal, and would be applied to future judges only. Doing this would move the court closer to the people by ensuring that every President would have the opportunity to replace two justices per term, and that no court could stretch its ideology over multiple generations. Further, this reform would maintain judicial independence, but instill regularity to the nominations process, discourage Justices from choosing a retirement date based on politics, and will stop the ever-increasing tenure of Justices. A similar model could also be applied to appellate and district courts.  

Perry's website offers two charts that make the following claims:

1. The average tenure of Supreme Court justices from 1789 to 1970 was about 15 years, compared to 26 years from 1970 to the present.
2. From 1789 to 1970, there was vacancy on the Supreme Court about every 2 years.  Since 1970, vacancies have occurred every 3 years.

Perry (or more likely his ghostwriters) notes that longer life expectancy over that period likely affected the data, but it also seems clear to me that the increased polarization of the Court has encouraged some superannuated judges to linger in office in the hope that they could be replaced by a politically sympatico administration. 

A footnote on Perry's site attributes the original concept to Steven G. Calabresi and James Lindgren, Northwestern University School of Law Public Law and Legal Theory Series, "Term Limits for the Supreme Court: Life Tenure Reconsidered," page 771.

Herzberg adds that the idea "tiptoed into wider view in 2002, via a Washington Post op-ed piece by two prominent law professors of opposite ideological and political leanings: Yale’s Akhil Reed Amar, a Democrat, a former clerk for Stephen Breyer, and a stalwart of the liberal American Constitution Society; and Northwestern’s Steven G. Calabresi, a Republican, a former clerk for Antonin Scalia, and a co-founder of the conservative Federalist Society. In 2006, Calabresi and his colleague James Lindgren fleshed the idea out in a long article in the Harvard Journal of Law & Public Policy."

Under the Amar/Calabresi proposal, each president would make an appointment once every two years for a maximum of four over a two-term administration.

Newt Gingrich, predictably, goes much farther in his proposals to alter the way the Court functions.  As stated in the London Guardian:

The Republican contender told a forum of anti-abortion activists ahead of South Carolina's primary election that as president he would ignore supreme court rulings he regards as legally flawed. He implied that would also extend to the 1973 decision, Roe vs Wade, legalising abortion.

"If the court makes a fundamentally wrong decision, the president can in fact ignore it," said Gingrich to cheers.

The Republican contender, who has made no secret of his disdain for the judiciary, said that as president he would expect to have repeated showdowns with the supreme court. He said the court would lose because it is the least powerful and least accountable arm of government.

While it's true that the Supreme Court has no ability to enforce its judgments if the other branches of government refuse to comply, its primacy on legal questions has been recognized since Marbury v. Madison was decided in 1803. The Constitution is silent on this power of judicial review, which the Court proclaimed on its own initiative when Justice John Marshall wrote:  "It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is." 

For every progressive decision the Court has made, from Brown v. Board of Education (1954) to Lawrence v. Texas (2003), I'd estimate that there are ten in the outcome-based tradition of Plessy v. Ferguson (1894), Bush v. Gore (2000) and Citizens United v. FEC (2010). 

The doctrine of judicial review may deserve close (and long overdue) scrutiny, along with fixed terms for the Supremes, but not for the purposes that motivate Perry and Gingrich.

Wednesday snippets

Bong Hits 4 Alito

The "BONG HITS 4 JESUS” decision (Morse v. Frederick) by the U.S. Supreme Court has gotten a lot of attention (and deserved scorn) this week.

The only real surprise, and slightly encouraging development, is Samuel Alito's concurring (and probably naive) declaration that the decision "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'"

While clearly troubled by the majority's analysis, Alito shares its dubious conclusion that the student's sign advocated illegal drug use. But at best, as Justice Stevens commented in dissent, the statement was "ambiguous." Most likely, it was a satirical comment on both right-wing fundamentalism and "the wisdom of the war on drugs." In other words, this case is about protected political speech that lies at the very core of the 1st Amendment's protections.

This is a wretched decision, again favoring the police powers of the state over civil liberties, but it could've been even worse. Alito may not prove to be another Souter, but could he already be moving (very tentatively) towards a mild ideological independence, at least on 1st Amendment issues?

My prediction: nahhhhh... Ain't gonna happen.

Supporting and opposing dictatorships

When does a state, or an international force authorized by the U.N. or NATO, have the legal and moral right to invade another sovereign state and overthrow its government? One simple and plausible answer is "never," but it seems to me that certain behaviors by a state can be so barbaric and unacceptable that it forfeits its right to exist.Those behaviors include:

1) When one country gratuitously or without provocation invades another, as in Korea in 1950.

2) When a dysfunctional government is unable or unwilling to control the mass slaughter of one group of citizens by another (as in Rwanda and Darfur).

3) When a government is engaged in genocide or ethnic cleansing against its own population, or the population of an occupied country (as in Bosnia).

The form of "intervention," whether by military force or an aggressive regime of sanctions, can be debated. But it seems reasonable that military interventions can only be justified if they are specifically authorized by the UN Security Council (whose rules need to be modified and whose membership needs to be changed to include China and India as permanent members).

It's easy to imagine a dictatorship so harsh and repressive towards its own population, without actually engaging in mass murder, that it practically demands to be removed. Saddam Hussein's case confronts this issue directly, but his worst behavior occurred at a time (the '80s) when he had the tacit support of the U.S. government. The U.S. has a long history of supporting friendly regimes whose behavior has been equally horrific, from the Shah of Iran to Pinochet in Chile to the Saudi royal family. The only variable, it seems, is whether the regime is willing to accommodate U.S. "interests," which Saddam violated only by attempting to annex Kuwait (yet another undemocratic "friend" in the region). The gassing of 5,000 Kurds at Halabjah in 1988 barely attracted official notice in Washington (1).

The unprovoked U.S. invasion of Iraq makes it obvious that there need to be clearer international standards for military interventions in the affairs of sovereign countries. With clearer standards, maybe Bush would've been less reckless in 2003, when he invaded Iraq "gratuitously or without provocation." Even under the existing standards of Nuremberg, Bush's "preventive war" was a criminal act for which he and his administration need to be held accountable.

Now we know why the Bush administration refused to participate in the International Criminal Court.

Greasing the skids for dictators

On a related subject, a recent article in Harper's asks and answers this question: "How is it that regimes widely acknowledged to be the world’s most oppressive nevertheless continually win favors in Washington?" The answer, in part, is: highly-paid Washington lobbyists who have effectively represented despicable regimes like those of Hitler, Saddam, Nicolas Ceausescu of Rumania and Mobutu Sese Seko of Zaire. Their approach has gone way beyond traditional lobbying with Washington politicians: a major focus has been on extracting favorable stories for clients from reporters.

The second element of the strategy was a “media campaign.” In a slide entitled “Core Media Relations Activities,” APCO promised to “create news items and news outflow,” organize media events, and identify and work with “key reporters” [like Jim Hoagland of the Washington Post].

Apparently nothing is too sleazy for Washington's political culture nowadays, no hand too dirty to shake or even praise. [Check out Hullabaloo for Digby's take on this subject and the Harper's article.]

The Hate Boat

It seems the The National Review has sponsored another Caribbean cruise featuring conservative luminaries (if that's the right word) from William F. Buckley to Rich Lowry to Dinesh D'Souza. Johann Hari seemingly stowed away to write his own hilarious and deeply disturbing account of this Ship of Fools for The New Republic. Hari skewers this racist and xenophobic crowd nicely, but I have to raise an objection to his unfair and ageist reference to the passengers' (apparently) advanced age: "They give [a speaker] a wheezing, stooping ovation and break for coffee." The elderly may be a tempting target for ridicule regardless of political persuasion, but we need to get beyond easy laughs directed at physical characteristics, like age, that people can't control. [More thanks to Digby at Hullabaloo for the link to Hari's article.]

NOTES

(1) In fact, the U.S. State Department "instructed its diplomats to say that Iran was partly to blame" for the massacre. The Defense Intelligence Agency (DIA) did a study that

concluded, apparently by determining the chemicals used by looking at images of the victims, that it was in fact Iran that was responsible for the attack, an assessment which was used subsequently by the the Central Intelligence Agency (CIA) for much of the early 1990s... The CIA altered its position radically in the late 1990s and cited Halabja frequently in its evidence of WMD before the 2003 invasion.

PHOTO: U.S. Supreme Court (Wikipedia Commons)