Re: Chris! Chris! Chris! (Not That It'll Probably Do Any Good In The End).

1

The Dodd rules.


Posted by: Cala | Link to this comment | 02-12-08 1:52 PM
horizontal rule
2

Ha. I first thought you meant surgeon-dating Chris who showed up in comments earlier.


Posted by: oudemia | Link to this comment | 02-12-08 1:54 PM
horizontal rule
3

Is there a plan to lobby for Dodd as something in an Obama or Clinton administration? AG? Veep? Supreme Court justice?


Posted by: LizardBreath | Link to this comment | 02-12-08 1:58 PM
horizontal rule
4

Official Bulldog In Charge of Biting People Who Fuck UP the Constitution?


Posted by: Cala | Link to this comment | 02-12-08 1:59 PM
horizontal rule
5

I'm sure Reed will do everything in his power to ensure passage of whatever bill the White House wants, as he has done up to this point. That guy has been a disasterous Majority Leader.

People should also be working on their Representatives at this point. FDL has a petition up for that very purpose.


Posted by: PeaDub | Link to this comment | 02-12-08 1:59 PM
horizontal rule
6

Yeah that's all well and good, but in stras' link in the other thread the vote to strip immunity was 67-31. I'm all for keeping Reid accountable, but maybe it's just that he can count.

Feinstein on the other hand... Shit, I'll probably have to vote for Arnold to punish her, or something.


Posted by: Mo MacArbie | Link to this comment | 02-12-08 2:09 PM
horizontal rule
7

Jesus. Tim Johnson recovers from a coma for this?


Posted by: LizardBreath | Link to this comment | 02-12-08 2:11 PM
horizontal rule
8

What difference does Congress make when the Supremes are batshite insane?


Posted by: SP | Link to this comment | 02-12-08 2:12 PM
horizontal rule
9

From the link in 8, "To begin with the constitution... is referring to punishment for crime." Now that right there is world-class sophistry. Because these detainees have not been proven in court to have committed a crime, whatever ill treatment we give them cannot be said to be punishment, let alone "cruel punishment." I wish the Founders could have had a little conversation with Scalia.


Posted by: Jackmormon | Link to this comment | 02-12-08 2:18 PM
horizontal rule
10

So by Scalia's interpretation, I assume it's constitutional for me to waterboard Scalia until he agrees with me that waterboarding is unconstitutional?


Posted by: strasmangelo jones | Link to this comment | 02-12-08 2:20 PM
horizontal rule
11

I'm all for keeping Reid accountable, but maybe it's just that he can count.

That will be Reid's story, and he'll point to his vote today as evidence of his commitment, but it will be bullshit. Reid has alot of power to control Senate business, and he has used it exclusively to ensure that the bill the White House wants is passed. These negotiations have been going on for months, and had Reid done things differently you can bet the vote wouldn't have been 67-31. Greenwald lays out the case against Reid here.


Posted by: PeaDub | Link to this comment | 02-12-08 2:22 PM
horizontal rule
12

So by Scalia's interpretation, I assume it's constitutional for me to waterboard Scalia until he agrees with me that waterboarding is unconstitutional?

some europeans might say that's "illegal," but they're only being all smug and condescending and self-righteous



Posted by: felix | Link to this comment | 02-12-08 2:29 PM
horizontal rule
13

Hopefully he'll stay in the Senate. We need more Senators like him.


Posted by: mano negra | Link to this comment | 02-12-08 2:32 PM
horizontal rule
14

11: Well shit. Leahy too? That's depressing.


Posted by: Mo MacArbie | Link to this comment | 02-12-08 2:35 PM
horizontal rule
15

some europeans might say that's "illegal," but (according to the Scalia interview excerpts I heard on BBC World Report this morning) their standards don't matter because they don't have real democracies.


Posted by: Robust McManlyPants | Link to this comment | 02-12-08 2:37 PM
horizontal rule
16

So by Scalia's interpretation, I assume it's constitutional for me to waterboard Scalia until he agrees with me that waterboarding is unconstitutional?

You can only apply cruel and unusual treatment to him if he hasn't committed any crimes. So no, probably not.


Posted by: Cryptic Ned | Link to this comment | 02-12-08 2:38 PM
horizontal rule
17

5: Reid, not Reed. So far as I know my Senator isn't personally culpable.


Posted by: mrh | Link to this comment | 02-12-08 2:55 PM
horizontal rule
18

Well, I'll be damned. There is a Senator named "Reed". Never heard of him before in my life.


Posted by: Cryptic Ned | Link to this comment | 02-12-08 2:59 PM
horizontal rule
19

Doesn't the Due Process clause make torture (when not done as punishment) unconstitutional -- even though it's of course already illegal by treaty and statute? Isn't the right not to be waterboarded implicit in the concept of ordered liberty?


Posted by: Bave Dee | Link to this comment | 02-12-08 3:30 PM
horizontal rule
20

Scalia would probably say you can try to get the torurers charged with assault or another crime. You could also sue the torturers (see his views in Hudson on suing the police as the proper remedy). But, I think he'd say that it isn't cruel and unusual punishment since it is extrajudicial and not a judicial punishment.


Posted by: md 20/400 | Link to this comment | 02-12-08 3:41 PM
horizontal rule
21

But Scalia seems to be saying that a court could order torture, and I'd think that if a court can order something you can't then prosecute the court for ordering or its agents for carrying out the order.


Posted by: Bave Dee | Link to this comment | 02-12-08 4:01 PM
horizontal rule
22

19 is right. And, alas, you don't have to be a Scalia-type outlier to think the Eighth Amendment doesn't apply outside the post-conviction penal context, I'm not sure what the headcount is on that but it's pretty settled (for example, treatment of a person in jail awaiting trial that would violate the 8th Amdt if it happened post-conviction is routinely treated instead as violation of the 14th Amdt; though the analysis is pretty much the same). But then, Scalia would say that due process doesn't apply here, either.

And 20 would be true even if he thought the 8th Amdt did apply and there was cruel and unusual punishment going on--violating the 8th Amdt is not itself a crime.


Posted by: potchkeh | Link to this comment | 02-12-08 4:04 PM
horizontal rule
23
"I suppose it's the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?" he asked.

"It would be absurd to say you couldn't do that. And once you acknowledge that, we're into a different game.

"How close does the threat have to be? And how severe can the infliction of pain be?"

A.J Scalia. If I am reading this correctly, he is moving the argument in both directions:a) torture for increasingly less dangerous threats, and b) unlimited torture for really big threats. And maybe privatize the torture to evade the Constitution.

Ok. All efforts should be made to take the law out of the hands of the batshit insane. Relinquish soveriegnty, admit to the ICC and Int'l community that we have no reliable domestic controls, and send for the black helicopters.

You shouldn't legitimize that fucker by arguing cases before him. 5-4 pro-torture is not law. No law left in America.


Posted by: | Link to this comment | 02-12-08 4:12 PM
horizontal rule
24

But, I think he'd say that it isn't cruel and unusual punishment since it is extrajudicial and not a judicial punishment.

I think most examples of recognized 8th Amendment violations are unrelated to a judicially imposed sentence, e.g. failure to provide necessary medical care to an inmate, excessive use of force by guards, etc. Scalia's broader point that he doesn't see any Constitutional problems with torture is nuts, but Scalia stopped making good faith arguments years ago.


Posted by: PeaDub | Link to this comment | 02-12-08 4:15 PM
horizontal rule
25

23 was me, of course.

President Obama shutting down Gitmo & Bagram etc would of course be a very good thing, but I would hate the message sent that this stuff is some sort of Presidential discretionary power. And Obama shutting them down would set a precedent for the next President to reopen them.

I would rather search for some process, some external agent, to force Obama to shut Gitmo down, thereby setting a different precedent.

Adequate laws exist, and are tough enough. We need to enable an enforcement mechanism.


Posted by: bob mcmanus | Link to this comment | 02-12-08 4:22 PM
horizontal rule
26

25:So maybe President Obama and his AG and Congress, leaving everything in place,could appoint a Special Prosecutor under supervision of the ICC HRW etc. Somehow give HRW supoena power on US Soil, so that Dutch and German people can interrogate Bush in Waco and riffle thru his Library.

Much like Nuremberg.


Posted by: bob mcmanus | Link to this comment | 02-12-08 4:33 PM
horizontal rule
27

Rough transcript of Scalia interview. It will make you furious.

25: correct. Not enough to press pause for 4 or 8 years. HRW, as HRW, does not do criminal investigations. But there are certainly human rights attorneys itching to go work for the Obama administration (or the Clinton administration, but they tend to support him) & look at those files.

Prosecutions would be best. The consensus seems to be that they're not going to happen--because of destruction of evidence, because of the idea that OLC can immunize anything, because of the fear that Bush is going to issue a huge # of pardons, because they're too politically risky.

I'm not prepared to concede that. But if it IS true, at the very least, I want to know, and want the country to know, what happened. And I want it to come out next year, not when I'm 60. This is partly my own personal stake in it, but I do have the naive belief that when confronted in detail with what all this means, a majority of the country will not support this. And short of impeachment or prosecution, that's the best mechanism we have for improving the laws & seeing that they're enforced.


Posted by: Katherine | Link to this comment | 02-12-08 5:01 PM
horizontal rule
28

Speaking of Nuremberg.

I wonder what The Dodd makes of the comparison--his father was a prosecutor at Nuremberg.


Posted by: Katherine | Link to this comment | 02-12-08 5:03 PM
horizontal rule
29

What are the standards for the impeachment of a sitting Justice? I understand that's kind of beyond the nuclear option, but this shit is beyond the pale. I thought my capacity for outrage was tapped out long ago, but, once again, no.


Posted by: foolishmortal | Link to this comment | 02-12-08 5:08 PM
horizontal rule
30

Have I mentioned that a friend of mine from college, once quite liberal, is a Scalia clerk? I really want to stage an intervention. Fucking U.Chicago.


Posted by: katherine | Link to this comment | 02-12-08 5:14 PM
horizontal rule
31

Scalia stopped making good faith arguments years ago

Exactly. The difference between his recent opinions and the early ones is pretty stark. He was always way out on the right, but at least he used to bother putting together something that looked like legal reasoning. Now he's just a walking, bloviating advertisement for limiting Supreme Court tenure.


Posted by: Not Prince Hamlet | Link to this comment | 02-12-08 5:30 PM
horizontal rule
32

||

GOOOOOOOOOBAMA!

|>


Posted by: Sifu Tweety | Link to this comment | 02-12-08 5:49 PM
horizontal rule
33

32 gets it exactly right!

Bad Tweety! No political threadjacks!


Posted by: Not Prince Hamlet | Link to this comment | 02-12-08 5:53 PM
horizontal rule
34

3: The correct position for Chris Dodd in 2009 is Senate Majority Leader.


Posted by: Spike | Link to this comment | 02-12-08 5:57 PM
horizontal rule
35

Also, John Edwards need to be AG.


Posted by: Spike | Link to this comment | 02-12-08 5:59 PM
horizontal rule
36

34 gets it right.

Why is Reid the Majority Leader anyway, if 39 Democrats want to vote against even things like this? Couldn't they vote in a new one at any time?

Intensely disappointing across the board.


Posted by: Cryptic Ned | Link to this comment | 02-12-08 6:00 PM
horizontal rule
37

34 gets it right.

Why is Reid the Majority Leader anyway, if 39 Democrats want to vote against even things like this? Couldn't they vote in a new one at any time?

Intensely disappointing across the board.


Posted by: Cryptic Ned | Link to this comment | 02-12-08 6:00 PM
horizontal rule
38

35: AFAIK the biggest thing wrong with the Justice Department is politicization, especially with respect to Presidential power and related war and torture issues. Why is Edwards the right guy to fix those problems?


Posted by: Not Prince Hamlet | Link to this comment | 02-12-08 6:03 PM
horizontal rule
39

Bob makes a good point in 25.1 and 25.2. I'm not qualified to judge on the rest, but I agree on those.


Posted by: Witt | Link to this comment | 02-12-08 6:11 PM
horizontal rule
40

38: Its going to take strong medicine to weed out the damage of the past three Attorneys General. I've no doubt that there are a lot of mid-level Bushie aparatchiks that have been installed throughout the department. An Edwards Attorney Generalship focused on the same social justice themes of his campaign would, by its nature, do much to drive these people to careers outside the justice department.

Moreover, Edwards has his own popular constituency and, as such, can operate largely independent of the White House, while still maintaining a general agreement as to policy goals. This would be quite different from, say, Alberto Gonzales, who's only constituency was a guy named George Bush.


Posted by: Spike | Link to this comment | 02-12-08 6:16 PM
horizontal rule
41

One of the biggest scandals of the Gonzales administration was his installing Republican hacks in the protected fairly high civil-service positions. They have protections and will be hard to root out unless it can be proven that they're unqualified or corrupt.

The bitter thing about this is that if a Democratic President tries to get at these people, the Republican zombies will start talking about politicization, and people like George Will and David Brooks in the media will chime in.

"Depoliticizing" means getting ride of a lot of Bush appointees, not running the department in a neutral way.


Posted by: John Emerson | Link to this comment | 02-12-08 6:34 PM
horizontal rule
42

41: I think forcing these people to prosecute corporations for stuff like anti-trust violations or racial discrimination might be a good way to drive them out. And if they intentionally screw it up, they can be fired for incompetence.


Posted by: Spike | Link to this comment | 02-12-08 6:41 PM
horizontal rule
43

40: But the Justice Department really doesn't do much social justice of the sort Edwards campaigned on, and I'd worry that bringing an advocacy orientation to the AG job in its current degraded state would lead to the structural problems not getting addressed.


Posted by: Not Prince Hamlet | Link to this comment | 02-12-08 6:50 PM
horizontal rule
44

One of the biggest scandals of the Gonzales administration was his installing Republican hacks in the protected fairly high civil-service positions. They have protections and will be hard to root out unless it can be proven that they're unqualified or corrupt.

It works both ways, of course; I know someone who is now junior faculty at a law school because she was sick to goddamn death of being an EPA lawyer when all her managers were political appointees who had no intention of doing any environmental protection.


Posted by: snarkout | Link to this comment | 02-12-08 6:52 PM
horizontal rule
45

I saw someone making a case for putting Edwards on the National Labor Relations Board, and holy Christ, yes. Those people are a painful joke, and it seems well-suited to his interests and talents.


Posted by: snarkout | Link to this comment | 02-12-08 6:53 PM
horizontal rule
46

45: That makes sense.


Posted by: Not Prince Hamlet | Link to this comment | 02-12-08 7:02 PM
horizontal rule
47

43: I've been impressed with what Elliot Spitzer and Andrew Cuomo were able to accomplish in their activist rolls as NY Attorneys General. Putting an activist lawyer like Edwards in the national AG position seems like has the potential to do a lot of good.

It would make me sad if the next administration has to make the focus of the next four years cleaning up the damage from the last eight. Don't get me wrong - it needs to be done. But if thats all that gets done, at the expense of forward progress, it would be a huge missed opportunity.


Posted by: Spike | Link to this comment | 02-12-08 7:12 PM
horizontal rule
48

Edwards would be good at NLRB, but if I'm Barak Obama or Hilary Clinton and I'm trying to get his endorsement, promising him the AG job would be a much better sweetener.


Posted by: Spike | Link to this comment | 02-12-08 7:13 PM
horizontal rule
49

45: Mark Kleiman's been making that argument (quite persuasively).


Posted by: felix | Link to this comment | 02-12-08 7:16 PM
horizontal rule
50

48: If he's been trying to negotiate the best deal he could get for his endorsement, it looks like he's missed his moment.


Posted by: Not Prince Hamlet | Link to this comment | 02-12-08 7:36 PM
horizontal rule
51

True.


Posted by: Spike | Link to this comment | 02-12-08 7:53 PM
horizontal rule
52

Scalia stopped making good faith arguments years ago

Sometimes I do think that Scalia is heading for some kind of public crackup. My "theory" is that the fact that he will never make Chief Justice* is slowly eating away at his sanity. Maybe he'll come apart right in the chambers and start asking about who ate the strawberries. I advocate that he always be referred to specifically as "Associate Justice Scalia" because you just know it chaps his drawers.

*I always speculate on exactly when he realized at the lizard brain level that his overstretch on Bush v Gore was going to preclude him from getting the top spot and that his place in history would be to only be remembered for debasing himself and eroding the Rule of Law in the US. ( I also wish I were a fly on the wall when that fuckpig of multiple iniquities, Ken Starr, had his similar moment.) **

**But of course this Schadenfreude is short-lived when I realize that the abominable Mr. Roberts is made of much of the same stuff, and just managed to keep his powder a little drier during crypto-wingnut fast tracked career.


Posted by: JP Stormcrow | Link to this comment | 02-12-08 8:06 PM
horizontal rule
53

Why is Reid the Majority Leader anyway, if 39 Democrats want to vote against even things like this?

Presumably the calculation is that there are enough right wing/unprincipled Democratic senators who would take their bat and ball home if one of their own was attacked that the last state would be worse than the first. If so, presumably that would also obtain after November.

It's mildly gratifying that the only senior US pol I can claim even a vague connection to is Dodd. not that it helps


Posted by: OneFatEnglishman | Link to this comment | 02-13-08 2:25 AM
horizontal rule