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Clarence Thomas confirms his belief that the only constitutional right we leave up to federal, state and local prosecutors is the right to keep and bear arms. And that that right is the only one, more generally, that we treat so cavalierly. [His words. Seriously.]

The Supreme Court said Monday that people convicted of domestic abuse can be prevented from owning a gun, in a case that prompted the first questions from Justice Clarence Thomas in 10 years.

In a 6-to-2 decision, the court said Congress had intended to keep firearms out of the hands of domestic abusers.

The question for the court was whether the gun ban applies to those convicted under state law of misdemeanor domestic abuse and specifically whether assault convictions for “reckless” conduct could trigger the prohibition. …

The case decided on Monday was brought by two men, including Stephen Voisine, who was separately being prosecuted for killing a bald eagle. He had a previous conviction for a misdemeanor assault of a woman with whom he had a relationship, and federal prosecutors said that meant he should be banned from owning firearms.

The court rejected that argument, finding Monday that “a person who assaults another recklessly uses force no less than one who carries out that same action knowingly or intentionally,” according to the majority opinion by Justice Elena Kagan. She was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Samuel A. Alito Jr.

To accept the interpretation of the petitioners, the majority said, would risk striking down similar laws in 34 states and the District and allowing “domestic abusers of all mental states to evade” the firearms ban. …

In his dissent Monday, Thomas said the firearms ban should apply only to “intentional acts designed to cause harm” — not to those based on “mere recklessness,” which do not necessarily involve the use of physical force.

“The majority fails to explain why mere recklessness in creating force — as opposed to recklessness in causing harm with intentional force — is sufficient,” he wrote.

Thomas was joined in part in his dissent by Justice Sonia Sotomayor.

Separately, he also objected to the imposition of a lifetime firearms ban based on a misdemeanor assault conviction because of its implications for a person’s Second Amendment rights.

“This decision leaves the right to keep and bear arms up to the discretion of federal, state and local prosecutors,” Thomas wrote. “We treat no other constitutional right so cavalierly.”

Supreme Court: Domestic abusers can be banned from owning firearms, Ann E. Marimow, Washington Post, today

Actually, what Thomas meant by that last sentence is that we treat no other constitutional right so cavalierly that Thomas and his Federalist Society colleagues care about.  Ones that don’t concern gun ownership, or the unfettered freedom to buy elected officials, or to adopt a local or state, or the federal, government as your Christian pulpit.

Y’know; the constitutional rights that matter.  The ones that garner pro bono defense at the Court by some rightwing legal think tank whose name on a certiorari petition means the petition will actually be read by a justice or two, or three, or four.

And the ones whose certiorari petitioner can foot the $1,000 hourly billing fee totaling well into the six figures, to have the name of one of the tiny handful of Washington, D.C.-based Supreme Court “regulars’” name and law firm on the petition cover—the only other way to obtain actual review of your petition by an actual justice if you’re not represented in that petition by a non-government attorney (i.e., a state attorney general).  The petitioners who after paying those attorneys’ fees still have sufficient discretionary income to pay the $8,000 cost for the printing of the certiorari petition as per the extremely weird printing requirements that only three printing companies in the country can do.

Okay, well since the “regulars” get steep discounts at those printing companies, their clients will need considerably less than that full-freight price.  Which must be nice.

In any event, precious few others need apply.  Although nearly 10,000 others a year do.

Thomas’s veritable stock-in-trade is declaring something as fact that is clearly and facially false, often bizarre, sometimes downright comical.  He did that recently in what, happily, was, like this one, a dissent.  Thomas claims this time around that the only constitutional right we leave up to federal, state and local prosecutors is the right to keep and bear arms.  And that that right is the only one, more generally, that we treat so cavalierly.

Well, maybe.  Then again, it could be that that is just the only one Thomas knows of, since the Court itself has aggressively blocked federal-court review of violations of most constitutional rights involving state and local prosecutors, state courts, and state criminal statutes in the name of state-courts’ rights to violate individuals’ constitutional rights, and since gun-ownership rights are pretty much the only rights that are at issue solely in non-white-collar-crime appeals.  And therefore the only criminal-law-related constitutional rights raised in certiorari petitions that he reads.

Which of course explains this one justice’s belief that the only constitutional right we leave up to federal, state and local prosecutors is the right to keep and bear arms.  And that that right is the only one, more generally, that we treat so cavalierly.

There are many thousands of Americans who could disabuse him of that belief.  Some of them have even filed certiorari petitions.

____

ADDENDUM: Reader MIJ and I had the following exchange in the Comments thread:

MIJ

June 27, 2016 11:17 pm

Ok, I’m intrigued – not by Thomas who is predictably irrational, but by the way this vote went.
It appears Sotomayor joined the dissent “in part” while Alito abandoned his partner in the summer stock version of “Dumb and Dumber”.

There has to be a story here.

Me

June 28, 2016 10:50 am

Hi, Mark. This actually doesn’t surprise me. Thomas’s dissent is in three parts. The first two parts attack the majority’s claim that recklessness amounts to the “use of physical force” and “violence.” Those wo parts argue, in my opinion correctly, btw, that the terms “use of physical force” and “violence” denote only intentional conduct and therefore preclude recklessness. Thomas notes that even recklessness that causes a traffic accident is not considered “violence.”

The third part, the part that Sotomayer did not join, sings the praises of an absolutist Second Amendment.

The opinion and dissent are here.   (PDF required.)

Alito always—always—sides against the criminal defendant, in criminal cases and habeas cases, with the single exception of cases in which a key aspect (either the conduct of the defendant or the conduct of law enforcement) is something that he can imagine himself being entangled in. The only notable examples are Fourth Amendment cases in which Alito can imagine himself being victimized by an anything-goes nullification of the warrantless-search-and-seizure proscription.

Three or four years ago, Alito wrote an awesome opinion barring law enforcement from sticking a GPS tracker under your car. Alito of course parks his car in his home’s garage and in the Supreme Court’s employee garage, but presumably also, on occasion, in, say, a medical office parking lot or a shopping mall or restaurant one. Scalia, by contrast, apparently didn’t worry about such things; he dissented.

Then, two weeks ago, Alito joined the majority—Thomas dissented—in barring compulsory, warrantless blood tests for suspicion of DUI.  Slate’s Mark Joseph Stern wrote a terrific article there last week about the whiplash Fourth Amendment-cases effect, caused sometimes, as happened last week, when two Fourth Amendment opinions are issued within days of each other, this time first an appalling one, then the DUI one.  It’s here.

As for Sotomayor dissenting, she’s simply not willing to treat anything related to a narrow definition of domestic violence as per se passing muster simply because domestic violence issues are all the rage these days among progressives. Sotomayor, to her credit, in my opinion, recognizes that once you treat recklessness as intent and violence for purposes of domestic violence you probably will be asked to do so for other things as well. There are differences in law, normally, between recklessness and intent (e.g., manslaughter vs. murder), and it’s dangerous to start conflating the two.

Truth be told, I haven’t read the majority’s opinion, and I’m not sure how domestic violence even can be charged, absent intent. But apparently in this case, under a state statute, it was.

Added 6/28 at 11:35 a.m. 

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I finally agree with (much of) a Krugman criticism of the Sanders campaign. (And why I’m glad he made the criticism in the way he did.) [Clarification added 2/20 at 11:05 a.m.; update added 2/21 at 9:40 a.m.]

Bernie Sanders hates the Supreme Court’s decision in Citizens United v. FEC, which held that corporations have a First Amendment right to spend unlimited sums advocating for their preferred candidate. Who doesn’t? Citizens United was a deeply misguided decision that vastly underestimated the state’s compelling interest in preventing the appearance of corruption that massive corporate electioneering inevitably creates. An overwhelming supermajority of Americans despise the decision and wish to see it overturned. That includes most Democrats—which is probably why Sanders recently tweeted a guarantee that his Supreme Court nominees “will make overturning Citizens United one of their first decisions.”

Bernie Sanders Has No Idea How the Supreme Court Works, Mark Joseph Stern, Slate, Jan. 22

Okay. As an obsessive Bernie Sanders supporter, and as someone who knows that Supreme Court justices cannot make overturning Citizens United one of their first decisions simply because they want to, I cringed.  To understate it.  There are certain prerequisites to overturning Citizens United: specifically, an existing state or federal campaign-finance law that conflicts with the holding in Citizens United, and a legal challenge to the statute’s constitutionality that has been decided by a federal trial court and then by a federal appeals court, and then then a filed “cert.” petition asking the Supreme Court to agree to hear the case.

Granted, something not all that different than what that tweet proposed did happen in none other than Citizens United, but at least there was an actual statute in existence—McCain-Feingold—which they could, and most of which they did, pronounce unconstitutional.*  (In a follow-up case, they pronounced most of the rest of it unconstitutional.)

But I also knew that Bernie Sanders himself knows this, and that he was not the one who published that tweet.  Some 20-something member of his communications staff did.  I gritted my teeth and said to myself something like: “Okay, Sanders’ campaign manager, Jeff Weaver, has a law degree from Georgetown.  Sanders should order that no tweets or other communications on technical legal issues—or on legal-related things that involve legal technicalities, even his 20-something communications staff doesn’t recognize that it does–ever again be published without approval from Weaver.  Or someone else who has some actual knowledge of actual legal procedure and such.

There are, in other words, certain subjects that plainly require expertise—sometimes extensive expertise—before a statement about them is made. Supreme Court jurisdiction is one of them.  And obviously, macroeconomics is another.

Okay, well, by now y’all know about the controversy concerning a report by UMass-Amherst economist Gerald Friedman, commissioned by the Sanders campaign, that apparently is so of a mirror image of the macroeconomic claims of Arthur Laffer to Ronald Reagan, and Ronald Reagan, George W. Bush, Mitt Romney, Jeb! Bush, Marco Rubio, Ted Cruz, etc., to the public.  In this case the claim is that Sanders’ economic-policy proposals will produce something along the lines of 5.3% annual GDP growth, an unemployment rate of less than 4%, and a significant increase in the labor-participation rate (notwithstanding the aging of this country’s population).  You’ve read Krugman’s blog posts about it and you’ve read his column today. Or many one of the other excoriating commentaries about it as well.  Or maybe Krugman’s and some others’.

The growth and unemployment rates apparently are theoretically possible, so it is not quite the mirror image of Laffer economics.  But also apparently, historically it is extremely unlikely.

No one has ever accused me of being an economist, man, but I’ve read enough Paul Krugman blog posts and columns, and AB posts, over the years—including Krugman’s repeated mockery of Jeb!’s promise of 4% GDP growth annually within the last year—for Friedman’s conclusions to raise series questions of accuracy, even to this novice.  Yet Sanders’ campaign began trumpeting the report.

This creates three huge problems, perhaps the most important of which Krugman flags: that if Democrats start pushing voodoo economic theories, they give away a fundamental part of their raison d’être.  The Republicans push voodoo (or highly implausible) economic theories; the Democrats do not.

I’ve argued that a big, big reason why I think Sanders would be a stronger general-election candidate than Clinton is that there is so very much that the Dem candidate should argue against, say, Rubio or Bush or Cruz that would as a practical matter be unavailable to Hillary Clinton to actually argue, but that are at the very center of Sanders’ campaign and Sanders’ appeal. And now suddenly, there is this wrench that’s been thrown into this.

Another huge problem is how extremely easy it is to conflate this issue with the incessant claims—by Clinton, by Krugman, by the Washington Post editorial board, by the Washington Post centrist-left and centrist-right columnists, etc., etc.—that Sanders’ high-profile substantive policy proposals (e.g., Medicare-for-all; tuition-free public colleges and universities) are financially unworkable. These are entirely distinct issues.  Yet just the headlines on some of these stories, which is all that many people will read, makes this conflation very easy.  Some mainstream-media political journalists (inexplicably) are doing it in their articles or blog posts about it.

But counterintuitively, I think Krugman’s column, which identifies and explains the actual issue, will help make clear the distinction.

And then there is this: If Sanders does, as I dearly hope, become the next president, his administration’s economic success will be judged against this.  A 3.5% annual growth in GDP, for example, will be called a broken promise.

But I disagree with Krugman’s political assessment that this indicates that the Sanders campaign and maybe the candidate himself are not ready for primetime.

If not nipped in the bud—repudiated very soon by Sanders himself—his campaign success could begin unraveling; that is true enough.  But every modern presidential campaign makes mistakes, some of them major ones, and the Sanders campaign, unlike the Clinton campaign, is not well stocked with presidential-campaign veterans.  Weaver himself is a novice.

And Sanders and Weaver are navigating a 20-ring circus right now, with several campaign appearances of one sort or another every single day. They both must be exhausted.

What Sanders needs to do—seriously needs to do—is to determine the types of published things ostensibly by Sanders himself (tweets, for example) and by his communications staff are fine for them to publish on their own, and the types of things that are not. Law things, not. Macroeconomics things, not.

For law things, there needs to be a designated person with actual knowledge of law things.  For macroeconomic things, there needs to more than one.  Nothing—nothing—should be published about macroeconomics without prior review by more than one macroeconomist.

I absolutely get the Sanders campaign’s frustration with the incessant torrent of uses of the word “SOCIALIST” to misrepresent Sanders’ actual policy positions.  I share the frustration.  But the way to handle it is to do what Sanders had been doing: Pointing out the capitalist, entrepreneurial success of countries such a Canada, Denmark, Sweden, Germany and … Australia (which has universal healthcare coverage!).

And pointing out that this country’s most entrepreneurial period was the post-WWII period, with tax rates higher than anything Sanders is proposing. A period of organized-labor strength.  Of Glass-Steagall separation of traditional banking and investment banking.  And of aggressive enforcement of antitrust laws and securities laws. And, in 1967, the start of Medicare.

An addition to this torrent came earlier this week from another high-profile Friedman, New York Times columnist and aggressive-centrist Thomas Friedman, who wrote:

Bernie Sanders shows zero interest in entrepreneurship and says the Wall Street banks that provide capital to risk-takers are involved in “fraud.” …

I’d take Sanders more seriously if he would stop bleating about breaking up the big banks and instead breathed life into what really matters for jobs: nurturing more entrepreneurs and starter-uppers. I never hear Sanders talk about where employees come from. They come from employers — risk-takers, people ready to take a second mortgage to start a business. If you want more employees, you need more employers, not just government stimulus.

Apparently he’s been reading too many Washington Post centrist-right and centrist-left columnist columns.  Or else he concluded on his own that such things as breaking up the big banks, or for that matter government stimulus, has nothing at all to do with what really matters for jobs: nurturing more entrepreneurs and starter-uppers.

He is, though, certainly right that these days, if you want more employees, you need more employers.  The large, current employers plow most of their profits into stock dividends and stock buybacks, not into hiring more employees and not into upgrades of such things as manufacturing plants.  The ones here in the States, anyway.

But about the risk-takers whom I’m betting he really has in mind—his wife’s father and uncle, who during the postwar period began one of the first shopping-mall development companies and grew it into the very largest, turning their relatively small family collectively into multibillionaires before the collapse of the shopping-mall real estate business because of online shopping (the family still is extremely wealthy, but not nearly to the extent that it was).

Sanders is in fact the most pro-entrepreneurial of the presidential candidates in either party. He combines Theodore Roosevelt’s antitrust vigor with Franklin Roosevelt’s New Deal regulation of the financial services and securities industries, and FDR’s and Dwight Eisenhower’s massive building programs, mainly in major infrastructure projects.

What the centrist crowd doesn’t understand, or pretends not to, is that just as in Teddy Roosevelt’s day, there are critical conflicts between the interests of entrepreneurs (current and would-be) and ongoing small-businesses, on the one hand, and large corporations (especially certain types of large corporations), on the other.  One of my favorite examples is what is known as the Durbin Amendment, which pitted the interests of Visa and Mastercard against small retail businesses.  The Democratic Congress pushed it through. The nature of the charges at issue made it especially difficult for small retailers to compete with large ones. Walmart lost on that one; Mom and Pop won.

As for business loans and home mortgages, Friedman, who neither has a home mortgage nor a small business, may not be aware that the very size of the megabanks makes it ever harder for small local banks of the type that surely funded his in-laws’ startup in Marshall, Iowa back in the ‘50s, to remain in business.  The megabanks, like Walmart, set market prices. And pretty much everything else.

And the collapse of antitrust enforcement has had an enormous effect not merely on direct competition but also on small manufactures in the supply chain of large ones.  The fewer the buyers of the type of part manufactured by the small manufacturer, the less bargaining power the small manufacturer has in order simply to stay in business.

Sanders and his campaign need to bring the conversation back to where it was before this Gerald Friedman debacle.

And I need to end this very long post.

____

*Sentence edited slightly for clarity and precision. 2/19 at 8:57 p.m.

____

CLARIFICATION: Reader EMichael and I exchanged these comments this morning in the Comments thread:

EMichael

February 20, 2016 9:25 am

Bev,

It is the unforced errors of the Sanders’ campaign that scares me. Perhaps it is simply, as you state, that there are not enough knowledgeable people working for the campaign and that those who are capable are simply exhausted. Kind of scary when there are still nine months before the election. If Sanders wins the nomination, how can the campaign pick up capable people to stop these kind of errors?

 

Me

February 20, 2016 10:08 am

EMichael, every major presidential campaign makes unforced errors, and the Sanders campaign is chock full of competent people. Clinton’s campaign has made a slew of them.

It’s just that there are some policy areas that require some real expertise in before a statement that has the potential to get a key thing wrong (e.g., the Citizens United tweet) or that requires expertise to evaluate (e.g., macroeconomics projections).

I plan to post a follow-up to this post clarifying some things and making the point that it now appears that Krugman way overblew what the Sanders campaign actually did, which was that its policy director mentioned the Friedman study and praised it as outstanding work. That was all.

But this key point I was trying to make is still valid: that while it is necessary for the Sanders campaign to refute the Sanders-will-kill-entrepreneurship-in-this-country-and-destroy-the-banking-system-and-kill-all-the-apple-trees-in-order-to-keep-Americans-from-making-apple-pie slurs, he should keep the focus of his campaign on his policy proposals and their benefits for their own sake. This macroeconomics controversy has been a big distraction, and–as I said in the post–is one that is far too easy for my comfort to conflate with the issue of the cost of his policy proposals.

The link I included in my comment is to an article on Salon by Elias Isquith, detailing what prompted the controversy and rebutting Krugman’s political argument.

Several other readers in the Comments thread supplied important links, among them: to James Galbraith’s two-page letter to Krueger, Goolsbee, Romer and Tyson deconstructing their high-profile letter that has played such a large role in the controversy; and to an article by David Dayen in the New Republic rebutting Krugman’s political argument.

On second thought I think I’ll just let this Clarification suffice rather than post a separate follow-up post.  I’m tired of this subject.

Added 2/10 at 11:05 a.m.

____

UPDATE: An exchange between reader Urban Legend and me in the Comments thread this morning:

Urban Legend

February 21, 2016 2:49 am

I am strongly pro-Clinton in the primaries, but Galbraith’s letter seems absolutely unassailable. Nothing justified this assault by Krugman and the others except their feeling that their credibility is undermined because of their giggling at the Bush et al projections. Somehow, the difference between massive stimulus and increasing regressive tax policies — differences they themselves have emphasized for years — escaped them.

 

Me

February 21, 2016 9:29 am

Urban, that struck me, too, when I read the Galbraith article: Somehow, the difference between massive stimulus and increasing regressive tax policies — differences they themselves have emphasized for years — escaped them.

There is still the (I would think) obvious problem that apparently Friedman didn’t take into account: the ageing of this country’s population in considering projected increase in labor participation. And there probably are other things that he didn’t consider that should have been considered.

And the main point of my point–or at least the intended main point–holds and is important: on subjects that require some technical expertise or special knowledge, it is really important that Sanders have someone with the expertise or special knowledge screen what his campaign is about to say about it.

But Krugman and the others themselves mislead in this.

This is it for me on this subject.

Added 2/21 at 9:40 a.m.

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The End of the Untouchables Era: The Coming End of Institutionalized Federal and State Judicial Abuse of Office [UPDATED]

Last Thursday (Jun. 27) I posted a piece here titled “Poetic Justice for Justice Alito.  Maybe.”, that discussed the concerted and deeply successful effort begun in the mid-1980s by the Reagan-era appointees to the federal appellate bench and continuing unremittingly since then, to invite virulent abuse of litigants and lawyers by judges—the more overt and ugly, the more the peer applause and emulation.  The occasion for my post was an article about Samuel Alito, by Mark Joseph Stern on Slate, which I linked to.

My post said Alito’s conduct was part and parcel of a defining characteristic and goal of the rightwing conservative legal movement of the last four decades—goal so thoroughly successful that it became, and remains, the norm among federal judges, irrespective of political affiliation.  Clinton appointees (including one who, twice, came precious-close to nomination to the Supreme Court by Obama) enthusiastically jumped on that bandwagon.

But there are two key facts that I decided not to mention in that post, and to instead leave for a later post: One is that state-court judges have, en masse, followed the lead of these federal judges.  The other is that that lead consists not only of now-routine denigration and defamation of litigants and counsel but also of jaw-droppingly in-your-face disregard of clear federal and state substantive and procedural law (including unequivocal statutory law).  A triumph of this juggernaut is that, regarding no-name litigants and no-name counsel, the more flagrant the deviation from unequivocal law, the cuter the judge feels. Abuse of office among judges—federal and (these days even more so) state judges—is deeply institutionalized now.

I’m posting this now (although I’m not much in the mood today) because of run75441’s post below from yesterday and because of a comment that reader Denis Drew posted to my Jun. 27 Alito piece. He wrote:

Get judges down to earth:
Just stand outside the courthouse — every courthouse — informing people: “If you don’t have to salute the flag, you should not have to rise when the judge walks in. Nobody will rise once they think of it. Game over.

I refused to remove my hat in an Illinois courtroom (the judge was not yet present — was a bully). I gave the court officer my little spiel and offered to explain to the judge when he came in (he didn’t ask).

I should have added: “If you think this is church, tell the ladies to put hats on (can they tell the ladies to take hats off?).

Gives me another pesky idea. Have “Freedom Hat Day”: hand out hats outside courthouses for the men to assert their First Amendment rights.

I call this “broken windows theory for cops and judges”: full application of First Amendment discipline — remind them they are no bigger than anybody else. Make them repair their small First Amendment misbehavior and you repair the lawless atmosphere that encourages more serious offenses.

I responded today in the Comments thread:

Exactly, Denis.  In writing this post, I considered saying also that state-court judges have, en masse, followed the lead of these federal judges, but I decided to leave that for a later post. The specifics are stunning and appalling.  The very essence of the American judicial system has changed dramatically in the last three decades.

This crowd of federal judges had for nearly three decades been regarded as untouchable.  But their unfettered, unquestioned, and under-the-public’s-radar-screen, at-will legal, ethical and moral freelancing may soon come with an actual price.  It was, and remains, great fun.  But times, I have reason to expect, are changing.  The judicial honorarium may soon cease to serve as license for the routine, joyful abuse of that little-scrutinized but profoundly powerful public office.  These folks may have to take up gardening or fishing instead as a hobby.

—-

UPDATE: In the Comments thread to this post, regular AB commenter and occassional AB contributor Dale Coberly posted a link to this breathtaking article on Alternet.  In response to Dale’s comment, I wrote:

Yes, this is a classic instance of something I’ve written about on AB several times now, including in one of my posts here last week: The Supreme Court’s bizarre several-decade juggernaut by which, in the name of states’ sovereignty, they foreclose access to federal court to enforce federal constitutional rights, however brazenly—and I do mean brazenly—denied by state-court judges in criminal and civil cases (e.g., family-law; adult-guardianship/conservatorship; various types of contract cases, including ones that harm small businesses such as franchisees and business-loan customers).

This 18-year-old should be able to file what’s known as a declaratory-judgment lawsuit in federal court asking for, and receiving, a declaratory judgment—a declaration of law pertinent to the facts—holding that this young man’s statements are protected under the First Amendment. Even though he’s not a corporation.  In the case of a criminal defendant, as this 18-year-old is, the issue is complicated by an outrageous federal “jurisdictional” statute enacted in 1996 and signed by Clinton just before his reelection bid to fend off soft-on-crime accusations, that in a juggernaut led by Anthony Kennedy (states’ sovereign dignity! By which he means state-COURTS’ sovereign dignity) is interpreted in ways that are clearly violative of the Fourteenth Amendment and the original Constitution’s writ of habeas-corpus clause. To the extent that the statute actually DOES bar a “collateral” declaratory judgment claim in federal court, it does violate those provisions of the Constitution.

That 1996 statute is, I think, finally— finally—very ripe politically for re-examination by a congressional coalition of progressives and Republican libertarians such as Rand Paul. I’d love to see this case get widespread attention; I certainly was unaware of it until now.  Maybe Justice Kennedy, if he learns of it, will give a moment’s thought to the dignity of this individual and whether under the ACTUAL Constitution, state court’s sovereign dignity really trumps individual dignity.

The Alternet article doesn’t say that his arrest was by local police and that he was charged in state, rather than federal, court, but that appears to be the case, and I’m assuming that it is.

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Poetic Justice for Justice Alito. Maybe.

U.C.-Berkeley law professor Goodwin Liu’s nomination to the Ninth Circuit Court of appeals was killed a couple years ago by Senate Republicans upon the pretext that Lui had trashed Alito to the Senate Judiciary Committee in testimony during Alito’s confirmation hearing.  Lui predicted that Alito as a justice would be exactly what Alito as a justice is.  Now that Lui’s prediction has proven spot-on*, Obama should nominate him, not for the Ninth Circuit but for Supreme Court upon Ginsburg’s retirement in a year or two.

It would be at least some small poetic justice for this justice.

But Alito’s demeaning, denigrating treatment of litigants and counsel is emblematic of a veritable hallmark of the Federalist Society-affiliated appellate judges.  Certainly not all of them do that, but also certainly, several high-profile Reagan/H.W. Bush-era appellate appointees have made that type of conduct a mark of peer prestige, and others, who don’t naturally have that personality—including some appointed by Clinton—emulate it.  Something about being in with the in-crowd.  It is, or at least for a long time was, the cool thing for them to do.

*The link is to a terrific article in Slate today by Mark Joseph Stern.  But credit also must be given to the Washington Post’s Dana Milbank, who in a column published earlier this week was, I believe, the first of the now-several commentators to report on this. 

—-

UPDATE: I posted a similar comment to Stern’s article in the article’s Comments thread on Slate.  In response, a commenter called Bigmouth wrote:

While I’d love to see Liu on the Supreme Court, I’d like to see the President pick fights he can actually win lol.

To which I responded:

This is one he would win if he chose to pick that fight. The high profile of the matter, coupled with the under-recognized importance of the generational change among voters–particularly the growing importance of the Millennials–and the overdue, very public highlighting of Alito’s votes and his conduct on and off the bench, would win it for Obama.

Not that I expect that lackluster, gutless wonder to actually pick this fight. But if he does, he’ll win it.

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