Monday, June 28, 2010

Diversity on the Supreme Court

Much cosmetic diversity on the Supreme Court has been created starting in the '60's with the first Black being appointed by LBJ, and then continuing with the women starting in the '80's. But where has this left us? If Kagan is confirmed, the Court will have 3 Jews and 6 Catholics, surely the most non-diverse Court in history! Also, they will all be heterosexual, another slap in the face at true diversity.

The real issue is whether any of this really matters. If you endorse the idea that the Supreme Court should make social policy, then of course it does matter. But if you believe that the Court should be interpreting the law and not making policy, then it doesn't matter.

Saturday, June 26, 2010

The Constitution Triumphs Again

Faithful readers will know of my view that the U.S. is disintegrating much faster than most people realize. However, this reality in no way diminishes my deep respect for the Constitution, which seems to always come out the winner every time there is a crisis.

It triumphed again this week when President Obama did the only thing he could, and relieved General McChrystal of command in Afghanistan. This is a tribute to the wisdom of the Founders who provided for civilian control of the military. One need only look around the world at all the countries in which civilian control is not able to be exercised, and see the problems. How many of the 195 countries in this world have experienced military coups? My guess is a lot, but a survey of this magnitude is beyond my energy level at this time.

Anyway, here's to our Founders, whose wisdom has again been demonstrated.

Friday, June 25, 2010

The Hardball Challenge

The House member's idiotic statement that BP was shaken down is a subject other Republican politicians have been asked about. Even though the Republican leadership has disavowed itself of the idiocies of this particular Representative, Rush Limbaugh has endorsed it so no Republican wants to say Rush is wrong.

Christ Matthews of "Hardball" is so amazed by this reticence that he has offered a standing invitation to any Republican who is willing to come forward and say Rush is wrong, not just about this, but about anything!! It is just incredible to watch all the Republicans twist and squirm to avoid saying simply that Rush is wrong, about anything!

Whatever happened to the once-great movement of conservatism? Time was when there were princpled conservatives, people like Barry Goldwater, whose shining moments included speaking out for abortion rights, and speaking out for Nixon's resignation in light of the rampant corruption in his administration. These were the actions of a real conseravtive, not the lamebrain crap that passes for conservatism today. They were the actions of a movement fashioned after the great Edmund Burke, who spoke out against the war against the American colonies, and pursued the impeachment of Warren Hastings on principle.

Wednesday, June 16, 2010

On Limiting Miranda

I see some liberals bemoaning the Supreme Court's decision in Berghius v. Thompkins, in that it cuts back on a suspect's Miranda protections. I think this concern is misplaced.

First, as a longtime liberal I have generally supported the trend started in the '60's. However, after a careful review of the major decisions this year, I now understand what conservatives are referring to when they complain about the Court making social policy, "legislating from the bench" as its often called. It is clear to me that this is what the Court often does, at least used to often do.

Take the Court's recent decision in the Florida case involving a life without parole sentence for a juvenile. The dissent by Thomas clearly identifies that the Court is here making social policy, not rendering a legal decision. After all, when 31 jurisdictions have such a law, it can hardly be said to be "unusual". And how can life without parole be considered "cruel", when we routinely do it for adults. If it is indeed cruel, then it should not be done for either adults or children. Consequently, simple logic dictates that one cnanot with integrity conclude it is "cruel and unusual" as a matter of law. Thonas wins this arugment hands down.

Turning then to Miranda, it is clear the Court was making social policy here also. In his book "Guilty: The Collapse of Criminal Justice", Judge Harold J. Rothwax examines the cases involving police coercion of confessions which led up to the Miranda decision. Clearly we don't want confessions being forced, but Rothwax says that this decision throws the baby out with the bath water. He argues that Miranda was wrongly decided and should be overruled.

Given the shaky background of the decision itself, it is hardly surprisingly that any subsequent decisions would limit it rather than expand it. Indeed, it is hard to imagine how it could ever be expanded. The burden it placed on the police to affirmatively show a waiver of rights by the defendant was a huge one, and what the Thompkins decision does is merely to cut back on that unhealthy burden.

The genera rule is that rights must be affirmatively asserted to be invoked, they are not invoked automatically. The Thompkins decision merely restores this principle to the category of admissions. If being advised of one's rights is so damned important, why are the police not required to do so in the case of searches? The vast majority of police searches are conducted under the guise of "consent". But people do not have to be advised that they have the right not to consent, and many surely feel they have no choice when the cops show up and ask if they can search the place, or simply *say* they are going to search the place.

The other side of this issue is the "right to a lawyer". Here, too, Rothwax feels the law has gone way overobard. He points out that the Sixth Amendment gives the right to a lawyer "in all criminal prosecutions". Thus, the right kicks in once a case is filed against the defendant. Until then, the case is in the investigative phase and is in the hands of the police. When it is turned over to the DA, then the legal process starts.

This, too, maks eminently good sense. What role is there for a lawyer before there is any prosecution? All he can do is tell the defendant not to talk to the police. In a small number of cases it might be possible to arrange to avoid prosecution, if the client wants to go to work for the police as a snitch.

It is in this general area that the show "Law and Order" screws things up so badly, giving people wrong ideas of the lawyer's role. The show routinely has the prosecutors getting involved in the investigation, going out and interviewing witnesses and rounding up evidence, not as preparation for trial, but as part of the investigation. Similalry, defense attonreys constantly are magically appearing in an interview room while police investigative work is going on. The idea that defense attorneys have the run of a police station like this is something happening only on TV shows.

Conversely, once the case is filed the worst procedural errors occur, these being the meetings which always take place between the prosecutors and the defendant on "Law and Order". Yes, the defendant's attorney is present, but in real life this sort of meeting would never happen. If the prosecutors had in inquiry to make of the defendant in real life, they would go through the defense attorney, who would consult with the client and come back with an answer for the DA. But on the show, prosecutors are allowed to badger and berate the defendants, and even surprise them with witnesses or family members at these meetings, anything designed to bludgeon the defendant into confessing. No defense attorney would ever allow this sort of thing to go on.

I say let's go back to where everybody has a particular job to do, and the rest of us stay out of their way and let them do it. Let's let the police do their investigative job, and everybody else stay out of their way. Let's let defense attorneys do their job, once a case is filed, and everybody stay out of their way. Let's let Judges go back to their job of deciding if a confession is voluntarily made, based on the totality of the circumstances in a given case. Let's let the Supreme Court go back to making legal decisions, not making policy. And let's let legislators go back to writing laws, which after all is what we elect them to do.

Thursday, June 3, 2010

Letter to Mennonite Weekly Review

I appreciated the May 10th column by Elaine Sommers Rich on the rise and fall of civilizations. She is of course correct in her observation that all civilizations rise and fall, and keeping this in mind is helpful for those of us who are given to despair at the direction our country seems to be going.

What is perhaps shocking is how fast the U.S. is disintegrating. The signs are everywhere. In the last ten years we have dropped from producing 32% of the world's gross domestic product, down to 24%. Over one-fourth of our manufacturing jobs have disappeared during this ten-year period. Our national debt is now more than fifteen times what it was in 1980, and is increasing at an unsustainable pace.

Our childhood obesity epidemic shows no signs of abating. With our fitness and our productivity spiraling downhill, the end is far closer than any of us would care to acknowledge.

Of some comfort is the thought that centuries from now the U.S. will at least be remembered for three lasting contributions to the world's culture--baseball, jazz music, and the Constitution.

Wednesday, June 2, 2010

Citizenship and the 14th Amendment

There have been some calls to change the 14th Amendment provision that any child born in the U.S. is automatically a citizen. Frankly, this provision has always seemed odd to me, that a child whose mother crosses the border to give birth should be a citizen just for being born north of the Rio Grande, even if the mother is here illegally.

Upon looking into this, it is apparent that the 14th Amendment provision in question was designed to overturn the Dred Scott decision and give citizenship to former slaves, and to children of former slaves. There has never (apparently) been any judicial opinion extending this to the children of those here illegally, although this extension has been assumed.

I think liberals would be wise to not toss this proposed amendment into the scrap heap with all the other looney proposals the right wing has come up with over the years, like the balanced budget amendment, outlawing abortion, etc. This one actually makes sense, and would correct what is obviously an unintended flaw in our Constitution.