A private citizen wants to develop on his own property but because part of it is inside a "redevelopment zone", the land owner must either pay extortion money to a developer or have his city take the land. If that doesn't sound un-American enough, a Federal Court then ruled that the citizen has no recourse.

It used to be that buying in a neighborhood which wasn't so great but which had potential to improve provided a real, if risky, investment opportunity. The risk was like that of any other investment: the situation might not improve as expected and the asset would therefore not increase in value. Following Kelo, we now have a much more insidious risk: The better the likelihood that the neighborhood will improve, the greater the chances the government will steal your land.

This is the insane situation that the unconscionable Kelo decision has put all Americans in, and we can only hope that the Supreme Court will use the opportunity in the case of Bart Didden versus Port Chester, NY to clarify what they said in Kelo. By "clarify" I mean we must hope that Justice Anthony Kennedy, the clear villain on the Court in that case, reconsiders his prior disastrous vote with the Courts "liberals". It simply can not be that a man's home is his castle unless a government can make more money by giving it to someone else.

Posted by Ross Kaminsky at 10:42 AM | Email Author | Permalink

Over at OpinionJournal, James Taranto takes a look at the Supreme Court term that was. Chief Justice Roberts has said that he struggles for unanimity or near unanimity on the court, yet in many key decisions at the end of this term the court was fractured, with as many as six separate opinions on key cases such as Texas redistricting, Vermont's campaign-finance limits and Hamdan v. Rumsfeld.

Can Roberts's judicial minimalism -- his adage is "if it's not necessary to decide more . . . it is necessary not to decide more" -- accomplish anything? Taranto notes that minimalism can lead to a lack of clear guidance for lower courts and the public in general. Better, perhaps, to set out bright-line tests, as is Justice Scalia's wont. And since the court is still fractured among liberal, conservative and swing justices, none are about to lay down arms for the sake of unanimity.

In the end, Taranto figures things won't improve until conservatives get "maybe another new justice or two."

Posted by Ryan Sager at 09:58 AM | Email Author | Permalink

****SCROLL FOR UPDATES****

The Supreme Court just announced a 5-3 decision against the Bush adminstration in the Hamdan case. Right now, all the major papers are carrying the AP story from Gina Holland.

Here is the version from Reuters. And another from CNN.

UPDATE: Marty Lederman at SCOTUSblog: "The Court appears to have held that Common Article 3 of Geneva aplies to the conflict against Al Qaeda. That is the HUGE part of today's ruling."

UPDATE: Seems like Andy McCarthy's "pre-mortem" was on the money.

UPDATE: The Washington Post has now updated its page with a story by William Branigin calling the decision a "stunning rebuke to the Bush administration."

UPDATE: CNN has video of Jeffrey Toobin, Bob Franken on the decision.

UPDATE: Text of Hamdan decision in pdf format here.

UPDATE: Reuters - Ruling Won't Affect Guantanamo Inmates

UPDATE: From the Court's majority opinon, which included Stevens, Souter, Ginsburg, Breyer, and Kennedy:

For the reasons that follow, we conclude that the military commission convened to try Hamdan lacks power toproceed because its structure and procedures violate both the UCMJ and the Geneva Conventions. Four of us also conclude, see Part V, infra, that the offense with which Hamdan has been charged is not an "offens[e] that by . . . the law of war may be tried by military commissions."

UPDATE: From Scalia's dissent:

On December 30, 2005, Congress enacted the Detainee Treatment Act (DTA). It unambiguously provides that, as of that date, "no court, justice, or judge" shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee. Notwithstanding this plain directive, the Court today concludes that, on what it calls the statute's most natural reading, every "court, justice, or judge" before whom such a habeas application was pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous. And even if it were not, the jurisdiction supposedly retained should, in an exercise of sound equitable discretion, not be exercised.

UPDATE: From Thomas's dissent:

Under either the correct, flexible approach to evaluating the adequacy of Hamdan's charge, or under the plurality's new, clear-statement approach, Hamdan has been charged with conduct constituting two distinct violations of the law of war cognizable before a military commission: membership in a war-criminal enterprise and conspiracy to commit war crimes. The charging section of the indictment alleges both that Hamdan "willfully and knowingly joined an enterprise of persons who shared a common criminal purpose," App. to Pet. for Cert. 65a, and that he "conspired and agreed with [al Qaeda] to commit . . . offenses triable by military commission," ibid.7

The common law of war establishes that Hamdan's willful and knowing membership in al Qaeda is a war crime chargeable before a military commission. Hamdan, a confirmed enemy combatant and member or affiliate of al Qaeda, has been charged with willfully and knowingly joining a group (al Qaeda) whose purpose is "to support violent attacks against property and nationals (both military and civilian) of the United States." Id., at 64a; 344 F. Supp. 2d, at 161. Moreover, the allegations specify that Hamdan joined and maintained his relationship with al Qaeda even though he "believed that Usama bin Laden and his associates were involved in the attacks on the U. S. Embassies in Kenya and Tazania in August 1998, the attack on the USS COLE in October 2000, and the attacks on the United States on September 11, 2001." App. to Pet. for Cert. 65a. These allegations, against a confirmed unlawful combatant, are alone sufficient to sustain the jurisdiction of Hamdan's military commission.

UPDATE: From Alito's dissent:

The holding of the Court, as I understand it, rests on the following reasoning. A military commission is lawful only if it is authorized by 10 U. S. C. §821; this provision permits the use of a commission to try "offenders or offenses" that "by statute or by the law of war may be tried by" sucha commission; because no statute provides that an offender such as petitioner or an offense such as the one with which he is charged may be tried by a military commission, he may be tried by military commission only if the trial is authorized by "the law of war"; the Geneva Conventions are part of the law of war; and Common Article 3 of the Conventions prohibits petitioner's trial because the commission before which he would be tried is not "a regularly constituted court," Third Geneva Convention, Art. 3, ¶1(d), Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3320, T. I. A. S. No. 3364. I disagree with this holding because petitioner's commission is "a regularly constituted court."

UPDATE: Joint statement by Sens. Graham & Kyl:

"We are disappointed with the Supreme Court's decision. However, we believe the problems cited by the Court can and should be fixed.

"It is inappropriate to try terrorists in civilian courts. It threatens our national security and places the safety of jurors in danger. For those reasons and others, we believe terrorists should be tried before military commissions.

"In his opinion, Justice Breyer set forth the path to a solution of this problem. He wrote, 'Nothing prevents the president from returning to Congress to seek the authority he believes necessary.'

"We intend to pursue legislation in the Senate granting the Executive Branch the authority to ensure that terrorists can be tried by competent military commissions. Working together, Congress and the administration can draft a fair, suitable, and constitutionally permissible tribunal statute."

UPDATE: Senator Russ Feingold statement:

The Supreme Court's decision concerning military commissions at Guantanamo Bay is a major rebuke to an Administration that has too often disregarded the rule of law. It is a testament to our system of government that the Supreme Court has stood up against this overreaching by the executive branch.

UPDATE: Senator Cornyn statement:

"This is a blockbuster decision, and it will take some time to determine the consequences of what the Court said today. But they've opened the door to a legislative remedy, and as Congress plays a key role in this debate, we'll work with the administration to reach a solution.

"We're not talking about simple criminals--these detainees include the most violent terrorists in the world. And let's not forget who we're talking about in this particular case: Hamdan was captured in Afghanistan and is charged with delivering weapons and ammunition to al Qaeda, providing logistical support to bin Laden's bodyguards and participating in weapons training.

"The Court does not call into question the U.S. government's power to detain terrorists while hostilities continue. This is critically important because we can't allow terrorists to simply return home and restart their war plans. Guantanamo will remain open so long as it is in the national security interests of the United States."

UPDATE: Bush to work with Congress over court concerns

Posted by Tom Bevan at 09:43 AM | Email Author | Permalink

As the Supreme Court gives a virtually complete thumbs-up to the Texas redistricting plan sired by Tom DeLay, some of the reaction has contained moments of thorough nonsense.

First among these is the notion that DeLay was involved in some Republican "power grab." If so, it was a grab only in the way that one would grab one's own property from the hands of a thief. As redistricting was undertaken, the Texas congressional delegation featured 17 Democrats and 15 Republicans, an abomination in a state as red as Texas. (I would similarly scoff if a liberal enclave like Massachusetts had a majority of Republican members of Congress).

The legislature failed to redistrict right after the 2000 census, leading judges to do it instead. The state Constitution calls for lawmakers, not judges, to draw districts, so the legislature tackled it again in 2003, arriving at a plan that made Democrats apoplectic because it stood to strip them of more than a half-dozen seats in Congress, a development an objective observer would call a return to a delegation reflective of the electorate.

But in the hands of analysts to whom anything Republicans do is bad, and anything Tom DeLay does is worse, this thoroughly proper development is couched in the most sinister of terms.

The only portion of Texas redistricting that snagged on the high court was Republican Henry Bonilla's 23rd district. Somehow the loss of some of the Hispanics there struck the justices as a denial of "minority voting rights," whatever those are.

Is there such a thing as a racial constituency's right to the likelihood of a congressman of a certain race or party? Even before that debate starts, one must dispense with the shallow analysis that a heavily Hispanic district must be a Democrat district. Rep. Bonilla, a popular Republican who stood ready to run for Kay Bailey Hutchison's U.S. Senate seat if she had run for Governor, garnered nearly 70 percent in the 2004 vote in a vast district nestled along the Mexican border.

The days when minority constituencies can be pigeonholed are dwindling. The Supreme Court seems to be behind the learning curve on that development.

- Mark Davis
Host of The Mark Davis Radio Show

Posted by Mark Davis at 03:05 PM | Email Author | Permalink

Just to add to the excellent post by Ross Kaminsky earlier, here's a roundup of commentary on the Vermont campaign-finance case (in which the Supreme Court struck down the state's limits on campaign spending and campaign contributions):

Allison Hayward: Offers an amusing (and informative) Randall v. Sorrell roadmap.

Allison Hayward (yes, again): Offers an attack on the idea of "balancing" an individual's right to free speech against other state interests, even when the balance occasionally comes out in favor of free speech, as in yesterday's Vermont decision. ("Speech or associational activity can be restricted by the government consistent with the First Amendment if the authorities have a good enough reason. So the Court balances.")

Bob Bauer: The anti-campaign-finance-regulation progressive election lawyer weighs in with an analysis of the decision, complete with a diagram of all the ideological contortions Justice Breyer had to go through along the way. Expect more from him Tuesday morning.

Adam Bonin: Sumarizes things for the crowd over at Daily Kos. An interesting discussion in the comments thread as to the legitimacy and usefulness of campaign-finance regulation in general. (I remain of the mind that there's a Left-Right coalition to be formed against campaign-finance "reform." The problem is there's an Incumbent-Incumbent coalition perpetuating it now.)

Eugene Volokh: Takes up the ever-vexing question of whether money is indeed speech.

Rick Hasen: The campaign-finance-regulation supporter offers a nice summary of what will happen next: battles across the country over whether particular local regulations are constitutional.

Rick Hasen (yes, yes, yes, again): Follows up with an argument that while the Supreme Court has upheld contribution limits for now, this decision could be the beginning of the end for campaign-finance "reform" (he doesn't use the scare quotes) in general and the beginning of the beginning of the long-hoped-for (among conservatives) dismantling of the awful Buckley decision that started this whole mess.

By the way, everyone, Happy Clean Money Day!!!

Posted by Ryan Sager at 01:06 AM | Email Author | Permalink

In a decision released today in the case of Randall et al v. Sorrell et al, a divided Supreme Court invalidated Vermont's strictest-in-the-nation campaign finance laws.

The Vermont laws included some provisions which exceeded restrictions in many other states, including (quoting from the Court's decision):

1) "A political party and all of its affiliates together abide by exactly the same low $200 to $400 contribution limits", a provision the Court found to violate the right to associate in a political party,

2) "The Act excludes uncompensated volunteer services from its "contribution" definition, (but) does not exclude the expenses volunteers incur, e.g., travel expenses, in the course of campaign activities." This makes it difficult to use volunteers, again violating right of association.

3) The Vermont law's limits were not indexed for inflation, meaning "that limits already suspiciously low will almost inevitably become too low over time."

By a 6-3 vote (the 3 being Stevens, Souter, and Ginsburg), the Court reversed lower courts' decisions which allowed Vermont's political speech gag rule and sent the cases back to the Second Circuit Court of Appeals for reconsideration. The Supreme Court's ruling reaffirms the Buckley decisions prohibition on states limiting candidates' spending.

The first major campaign finance case is the well-known Buckley v Valeo. In the decision in the current case, there is a fascinating and not-so-subtle argument about Buckley among the justices who agreed that the Vermont law was unconstitional.

The generally spineless Justice Breyer made a point of arguing that Stare Decisis (essentially respect for precedent) caused him to believe "subsequent case law has not made Buckley a legal anomaly or otherwise undermined its basic legal principles." Justices Scalia and Thomas retort with "Buckley v. Valeo provides insufficient protection to political speech, the core of the First Amendment, is therefore illegitimate and not protected by stare decisis, and should be overruled and replaced with a standard faithful to the Amendment."

Not everyone has seen the light of freedom however. From the opinion of the liberal Justice Stevens: "I am convinced that Buckley's holding on expenditure limits is wrong, and that the time has come to overrule it. I have not reached this conclusion lightly." In other words, not only does Stevens think contribution limits are OK, but he also thinks the Buckley decision should have allowed expenditure limits. Justices Ginsburg and Souter are lost as usual. Luckily Stevens and Ginsburg are the most likely judges to retire next.

In any case, there is a clear indication here that further challenges to campaign finance would be met by a Court which is more interested in protecting the First Amendment than we've seen in a long time. Indeed, in his concurrence in today's judgment, Justice Kennedy simply concurred in the judgment rather than participating in a big debate, reminding us that he disagreed with the Court's ruling in the original challenge to McCain-Feingold (also called "BCRA") in McConnell v. Federal Election Commission. Kennedy (who will forever in my mind be the villain from the Kelo case) made arguments in his concurrence which bear repeating:

The First Amendment guarantees our citizens the right to judge for themselves the most effective means for the expression of political views and to decide for themselves which entities to trust as reliable speakers. Significant portions of Titles I and II of the Bipartisan Campaign Reform Act of 2002 (BCRA or Act) constrain that freedom. These new laws force speakers to abandon their own preference for speaking through parties and organizations. And they provide safe harbor to the mainstream press, suggesting that the corporate media alone suffice to alleviate the burdens the Act places on the rights and freedoms of ordinary citizens.

Today's decision upholding these laws purports simply to follow Buckley v. Valeo and to abide by stare decisis...; but the majority, to make its decision work, must abridge free speech where Buckley did not. Buckley did not authorize Congress to decide what shapes and forms the national political dialogue is to take. To reach today's decision, the Court surpasses Buckley's limits and expands Congress' regulatory power. In so doing, it replaces discrete and respected First Amendment principles with new, amorphous, and unsound rules, rules which dismantle basic protections for speech.

A few examples show how BCRA reorders speech rights and codifies the Government's own preferences for certain speakers. BCRA would have imposed felony punishment on Ross Perot's 1996 efforts to build the Reform Party. BCRA makes it a felony for an environmental group to broadcast an ad, within 60 days of an election, exhorting the public to protest a Congressman's impending vote to permit logging in national forests. BCRA escalates Congress' discrimination in favor of the speech rights of giant media corporations and against the speech rights of other corporations, both profit and nonprofit.

To the majority, all this is not only valid under the First Amendment but also is part of Congress' "steady improvement of the national election laws." Ante, at 6. We should make no mistake. It is neither. It is the codification of an assumption that the mainstream media alone can protect freedom of speech. It is an effort by Congress to ensure that civic discourse takes place only through the modes of its choosing. And BCRA is only the beginning, as its congressional proponents freely admit:

"This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system." 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold).

Our precedents teach, above all, that Government cannot be trusted to moderate its own rules for suppression of speech. The dangers posed by speech regulations have led the Court to insist upon principled constitutional lines and a rigorous standard of review. The majority now abandons these distinctions and limitations.

Today's ruling is the first major crack in the wall which government has built between citizens and politics (to protect incumbents, primarily) in the past 30 years. There are at least 3 Justices who obviously want to overturn most campaign finance law and one who is open to overturning at least expenditure limits. I would also expect Justices Roberts and Alito to be open to hearing arguments which tend in the direction of weakening campaign finance laws as violating our First Amendment rights. I hope that citizens in other states bring such challenges.

When the Founders wrote the First Amendment protecting freedom of speech, it was primarily political speech which they were thinking of. What would Jefferson say if he learned that political speech has become the least protected type of speech in our great Republic? It is some combination of tragic, embarrassing, and dangerous that we have let politicians muzzle us by claiming they are preventing corruption when all they are really doing is preventing competition.

Posted by Ross Kaminsky at 01:02 PM | Email Author | Permalink

Powerline's John Hinderaker points out the ridiculous and partisan downgrade of Brett Kavanaugh's rating by the ABA from "well-qualified" to "qualified."

No explanation, of course, as to what Kavanaugh has done since last year to cause six committee members to change their ratings.

Kavanaugh was interviewed on behalf of the ABA by a divorce lawyer named Marna S. Tucker, who then testified before the Senate Judiciary Committee on behalf of the ABA. The Washington Times has more on Ms. Tucker:

Ms. Tucker has donated more than $10,000 to Democratic candidates and causes, according to Federal Election Commission records at www.politicalmoneyline.com, a Web site that tracks campaign contributions. She has never given to Republicans, according to the site.

The Washington Post described her as a "prominent liberal" in 1991 and the following year noted her friendship with Hillary Rodham Clinton, now a Democratic senator from New York.

Ms. Tucker also is a founding member and board director of the National Women's Law Center, an organization committed to abortion rights and other liberal causes.

It's easy to see why the ABA chose her to represent the organization's views before the Judiciary Committee.

FOX News' Charles Krauthammer was more direct on Special Report's panel discussion:

I think the ABA, the American Bar Association, is what's on trial here.

They changed the way they assessed him, from essentially an A to a B, over one year. Now, Kavanaugh didn't change in one year. He didn't lose his legal reasoning over one year. He didn't have shrinkage of his neurons over that one year. It's the ABA that changed.

So, how do you get a different rating a year after you had an A rating last year? And the answer is, either the ratings are arbitrary, or they're corrupt. They're arbitrary if, as the ABA is saying, you had a different committee and you might have had different people, in which case how can you -- you trust any of its judgments?

But it's corrupt if there was a change in the mood on that committee, and people, with the president's ratings down and more hostility to the administration, decided to go after this candidate, and decide to do endless questioning of people who knew him.

If you do endless questioning of people who know you or me, you're going to end up with a finite number of people who are going to be negative on you. And they -- they cite these negative reports. They -- they leak them to the press, and, presto, a downgrading of his assessment.

It's a corrupt process. And I wish that the administration had stuck with its promise of abandoning it years ago.

Krauthammer is exactly right, the administration made a mistake in citing the ABA ratings for earlier nominees. They should have stuck with their initial plan to do away with the ABA as part of the process.

Posted by John McIntyre at 01:25 PM | Email Author | Permalink

As Ronald Cass wrote three weeks ago on RealClearPolitics, expect to hear the call for Justice Scalia to recuse himself to continue as liberals try and find ways to silence the conservative justice:

The game now is to find a way of making it seem that Scalia's personal life and conduct commit him to positions on important legal issues in a way that interferes with his ability to decide matters impartially - not because Scalia has in fact done so and not because his accusers care about impartiality. Instead, the game matters because Scalia is the leading voice for a set of legal propositions that run counter to the political, social, and constitutional agenda of the dominant voices in almost every major element of America's Speaking elites.

That is why Justice Scalia's comings and goings, his associations, his speeches, all have become the focus of media attention. It is not simply his Catholicism that is an issue. It is anything he says and does that can be grist for a demand that he step aside from a case where his participation would matter.....

It reflects a dedicated effort to make him a news item in hopes of disqualifying him from deciding, or limiting his influence on, those very issues.

Today New York Times editorial board member Adam Cohen chips in his little part to keep the liberal tap-tap-tap against Scalia going:

Justice Antonin Scalia has gone too far -- and he keeps on doing it.

He made national headlines recently for making a gesture that may or may not be obscene. If it wasn't obscene, it was certainly coarse and undignified.

He recently called those who disagree with his unconventional views of the Constitution "idiots."

His public statements often make him sound more like a political partisan than a judge. He is particularly bad on the subject of Bush v. Gore, the decision that put President Bush in the White House, a low point in the Supreme Court's history that Justice Scalia should not be pulling down any lower.

Worst of all, Justice Scalia refuses to abide by the basic principles of recusal, the law that forbids judges from hearing cases in which they are not impartial, or will not be viewed as impartial. A few weeks ago, he took part in a case involving the rights of detainees after making inflammatory statements that seriously called his fairness into question.

As Cass says, these are not one-off comments, but part of an overall liberal strategy to diminish Scalia's influence and ratchet up public pressure for him to recuse himself from cases where they fear Scalia's conservative vote. Cohen continues with his screed against Scalia, which at its core is all about Scalia's conservative judicial philosophy and not his out of court "actions." Does one really believe that if Scalia held the same judicial philosophy as William Brennan or Ruth Bader Ginsburg we would be hearing these complaints from Cohen? I don't think so.

Cohen stoops even lower with a veiled hint that Scalia is suffering some sort of aging related mental infirmity when he writes:

The rate of Justice Scalia's disturbing words and deeds is increasing -- now, it seems, he can be counted on to embarrass the court publicly roughly every few weeks. There is debate among court-watchers about why this is happening.

A little later Cohen suggests that some of the motivation for Scalia's "actions" that he finds so offensive might be in response to not getting the Chief Justice nod or a changing PR strategy, but I still read the earlier paragraph as laying the seeds for a "Scalia is Losing It" attack.

Finally, Cohen proposes a new recusal process where "an alternating panel of three justices" would vote on recusal motions. It is interesting how in the last 50 years while the Supreme Court has had a liberal or split bench, the recusal issue never came up. But now that judicial conservatives are close to a majority on the court, suddenly we get ideas about how three justices should be able to vote certain justices off cases.

Expect the liberal attacks on Scalia to continue. This is not an isolated article, it is a deliberate strategy by the left.

Posted by John McIntyre at 11:14 AM | Email Author | Permalink

Looks like I was a bit premature yesterday in declaring "case closed" on gesturegate. Peter Smith, the photographer who snapped the pic of Scalia for The Pilot says "It's inaccurate and deceptive of him [Scalia] to say there was no vulgarity in the moment." Smith also says Scalia accompanied the gesture by saying "Vaffanculo!", which is apparently an Italian expletive that is pretty darn close to what Dick Cheney told Pat Leahy to do to himself in the Senate last year.

If Scalia got caught making an off-color gesture while trying to be funny, fine - though he probably shouldn't have publicly chastised the reporter, even if her coverage was ridiculously over the top. I still find all of this fuss to be amusing, though if you read the column Ron Cass wrote for RCP this morning you'll see there's more to the media's obsession with Scalia than just fun and games.

Posted by Tom Bevan at 04:06 PM | Email Author | Permalink

Welcome to Part III of our look at the Boston Herald brouhaha over the allegedly "obscene" gesture made by Justice Scalia (For backstory see Part I and Part II).

In today's episode, poor Herald reporter Laurel J. Sweet discovers what it's like to be publicly taken to task by a Supreme Court Justice who swims in the deep end of the IQ pool:

To The Editor:

It has come to my attention that your newspaper published a story on Monday stating that I made an obscene gesture - inside Holy Cross Cathedral, no less. The story is false, and I ask that you publish this letter in full to set the record straight.

Your reporter, an up-and-coming "gotcha" star named Laurel J. Sweet, asked me (o-so-sweetly) what I said to those people who objected to my taking part in such public religious ceremonies as the Red Mass I had just attended. I responded, jocularly, with a gesture that consitsted of fanning the fingers of my right hand under my chin. Seeing that she did not understand, I said "That's Sicilian," and explained its meaning - which was that I could not care less.

[Scalia goes on to quote at length from a book by Luigi Barzini, The Italians, explaining the origins of the gesture.]

How could your reporter leap to the conclusion (contrary to my explanation) that the gesture was obscene? Alas, the explanation is evident in the following line from her article: "'That's Sicilian,' the Italian jurist said, interpreting for the 'Soprano's' Challenged." From watching too many episodes of the Soprano's, your staff seems to have acquired the belief that any Sicilian gesture is obscene - especially when made by an "Italian jurist." (I am, by the way, an American jurist.)

Sincerely,
Antonin Scalia

Case closed.

Posted by Tom Bevan at 03:01 PM | Email Author | Permalink

I have to admit this is a bit silly. Yesterday I posted an item on the report by Laurel Sweet of the Boston Herald that Supreme Court Justice Scalia had made an "obscene" gesture to reporters (flicking his hand under his chin) outside the Cathedral of the Holy Cross on Sunday. Today, reader CM emails to say that Margery Eagan of the Boston Herald writes in her subscriber-only column today she can't find any Italians to back up the charge that the gesture Scalia used was "obscene."

Nevertheless, the Herald carries a follow up story by Ms. Sweet today gauging reaction to Scalia's "off-color 'Sicilian' salute" which borders on the comical:

"He's got a reputation as being a cantankerous guy," said Andrew Perlman, who teaches legal ethics and professional responsibility at Suffolk University Law School.

Still, said Perlman, the indiscretion by Scalia, who can be judge for life if he minds his Ps and Qs, doesn't rise "to the level of questioning his ability to do his job."

Thank God we got that straightened out. Surely the Boston Herald can find more burning questions for their reporters to probe, no?

Posted by Tom Bevan at 11:18 AM | Email Author | Permalink

Boston Herald reporter Laurel J. Sweet tut-tuts about "conduct unbecoming a 20-year veteran of the country's highest court," though I suspect this little incident will only make Scalia's supporters like him even more:

Minutes after receiving the Eucharist at a special Mass for lawyers and politicians at Cathedral of the Holy Cross, U.S. Supreme Court Justice Antonin Scalia had a special blessing of his own for those who question his impartiality when it comes to matters of church and state.

"You know what I say to those people?" Scalia, 70, replied, making an obscene gesture under his chin when asked by a Herald reporter if he fends off a lot of flak for publicly celebrating his conservative Roman Catholic beliefs.

"That's Sicilian," the Italian jurist said, interpreting for the "Sopranos" challenged.

"It's none of their business," continued Scalia, who was the keynote speaker at yesterday's Catholic Lawyers' Guild luncheon. "This is my spiritual life. I shall lead it the way I like."

Posted by Tom Bevan at 11:39 AM | Email Author | Permalink

A profile of Associate Justice Sam Alito's days at Princeton in the new issue of the university's alumni magazine. Eat your heart out, Joe Biden.

Posted by Tom Bevan at 04:05 PM | Email Author | Permalink

From Reuters:

WASHINGTON (Reuters) - Senate Minority Leader Harry Reid said on Friday he and fellow Democrats lack the votes to block President George W. Bush's nomination of conservative appeals judge Samuel Alito to the U.S. Supreme Court.

"Everyone knows there is not enough votes to support a filibuster," Reid said, referring to the procedural roadblock that some Democrats said should be used to put off a vote on Alito.....

Democratic Sens. John Kerry and Edward Kennedy, both of Massachusetts, publicly pushed for a filibuster on Thursday, drawing scorn and ridicule from Republicans and opposition from some of their own colleagues.

Kerry, who unsuccessfully challenged Bush for the White House in 2004, made his pitch for a filibuster while overseas for a world economic forum.

"I think it was a historic day yesterday," said White House spokesman Scott McClellan. "It was the first ever call for a filibuster from the slopes of Davos, Switzerland....

Posted by John McIntyre at 12:10 PM | Email Author | Permalink

Senator Tim Johnson came out earlier today saying he will vote to confirm Alito, making him the second Democrat to publicly support confirmation.

The NY Times' opinion page knows Alito's confirmation is a done deal as well, but that doesn't stop them from taking one final pathetic swing:

Senate Democrats, who presented a united front against the nomination of Judge Alito in the Judiciary Committee, seem unwilling to risk the public criticism that might come with a filibuster — particularly since there is very little chance it would work. Judge Alito's supporters would almost certainly be able to muster the 60 senators necessary to put the nomination to a final vote.

A filibuster is a radical tool. It's easy to see why Democrats are frightened of it. But from our perspective, there are some things far more frightening. One of them is Samuel Alito on the Supreme Court.

On a related note, John Nichols writes in The Capital Times that Russ Feingold's vote against Alito is of special significance:

Simply put, if Alito is unacceptable to Feingold, then he should be unacceptable to a good many other senators including moderate Republicans with whom Feingold has worked closely on campaign finance reform and a host of other issues over the years, such as Olympia Snowe and Susan Collins of Maine and Lincoln Chafee of Rhode Island.

Why give this special status to Feingold? Because, since his arrival in the Senate in 1993, he has distinguished himself by his consistent if often controversial approach to presidential nominations. [snip]

The fact that Alito is the first high court nominee to fail to meet the Feingold standard is significant. And, as the senator explained to the committee Tuesday, it was not a close call.

I think Nichols has a point: Feingold's vote does deserve a bit of extra consideration precisely because he has demonstrated independence in the past voting for people like John Ashcroft and John Roberts.

But Nichols' column really helps illuminate what a strategic blunder it was for 22 Democrats to vote against John Roberts.  There was simply no legitimate or tactical reason to vote against such a reasonable, well-qualified nominee other than to appease the left-wing interest groups. 

I'm not saying that if all 44 Democrats had voted for Roberts it would have necessarily changed the outcome with the Alito, but Democrats would have a more credible case to make to the public against Alito if they hadn't reacted to Roberts with such knee-jerk partisanship.

Posted by Tom Bevan at 12:55 PM | Email Author | Permalink

More from "moderate" Democrat Ken Salazar:

Salazar was asked whether he would have filibustered any of the current Supreme Court justices. He replied that he hadn't subjected any of them to the kind of in-depth analysis he did with Alito. Then he continued:

"There are members of the U.S. Supreme Court that I very much disagree with. Clarence Thomas, for example, I think is an abomination when you contrast him to the leadership and principles of someone like Thurgood Marshall. I've been in front of the court and I know the justices."

Just so we're perfectly clear as to the sentiment Senator Salazar is adding to the public discourse, the definition of an "abomination" is "a person who is loathsome or disgusting."

Posted by Tom Bevan at 05:35 AM | Email Author | Permalink

Floor debate on Sam Alito begins today. As of right now, Alito has the public support of 50 Republicans and 1 Democrat: Senator Ben Nelson of Nebraska. Twenty-three Democrats plus Jim Jeffords remain publicly undecided as well as 5 Republicans:  Lamar Alexander, Lincoln Chafee, Susan Collins, Olympia Snowe, and Ted Stevens. 

Leon at RedState has the skinny on how things will proceed:

The scuttlebutt at this juncture is that Frist will open up the floor for debate on Alito immediately, and pretty much allow the Democrats to bloviate about Vanguard uninterrupted. He will even hold the floor of the Senate open overnight, if the Democrats are so inclined to debate. However, first thing Thursday morning, there will be a cloture vote, and if it fails, the sparks will fly postehaste. Bush has called upon Frist to have Alito seated before the SOTU, and Frist intends to see it done.

Democrats have all but conceded Alito's nomination and a filibuster seems almost completely out of the question. This is all about delivering a moral victory to the base in the short term (Harry Reid: ''I think it sends a message to the American people that this guy is not King George, he's President George'') and then hoping to parlay Alito's rulings this year into an election issue in November:

Jonathan Turley, professor of law at George Washington University Law School and an outspoken opponent of Alito, said Alito’s hard-right stance — specifically on abortion and presidential power — would remind voters in November of his confirmation, making him “the political gift that keeps on giving” for Democrats.

The obvious problem with this strategy is that Democrats have tried their best to make the SCOTUS an issue in past elections but it simply hasn't worked. Republicans, on the other hand, keep winning elections with the federal judiciary as one of their animating principles. Maybe the addition of Justice Alito changes this equation, maybe it doesn't. The best bet for Democrats this election year is not going to be producing more demagoguery of Alito, but producing new ideas.

Posted by Tom Bevan at 07:37 AM | Email Author | Permalink

Leave it to The New York Times. Having watched Senate Democrats miss the opportunity to damage Alito in the hearings and fail miserably in mobilizing public opinion against him, Gail Collins & Co. play what looks to be one final card in the SCOTUS game today by trying to browbeat Senators into supporting a filibuster:

The real risk for senators lies not in opposing Judge Alito, but in voting for him. If the far right takes over the Supreme Court, American law and life could change dramatically. If that happens, many senators who voted for Judge Alito will no doubt come to regret that they did not insist that Justice O'Connor's seat be filled with someone who shared her cautious, centrist approach to the law.

Take a step back and think about the irony here.  Last March The New York Times editorialized (Times Select) in support of the Democrats' unprecedented filibustering of 10 of Bush's federal appellate nominees  - a move, by the way, which required the paper to repudiate its decade-earlier call to abolish the filibuster altogether when Republicans were in the minority under Bill Clinton. 

Support for those filibusters led to a crisis that eventually resulted in The Gang of 14, a compromise that by almost all accounts is seen to have worked out poorly for the Democrats. In addition to letting through some of the nominees most objectionable to the left like Priscilla Owen and Janice Rogers Brown, The Gang of 14 agreement obliterated the standard of "extraordinary circumstances" and left Democrats even more hamstrung to deal with SCOTUS nominees of the caliber and quality of Roberts and Alito.

In other words, Democrats are finally paying the price for having used the filibuster so excessively and injudiciously during the Bush administration. A former Judiciary Committee counsel for the Democrats put it bluntly: 

"We shot our wad. We filibustered 10 guys, and at the end of the day the worst got on anyway. If we had not used the filibuster and pissed off the Republicans over the past four years, if it was seriously being entertained for the first time [against Alito], we might have succeeded."

Posted by Tom Bevan at 02:53 PM | Email Author | Permalink

Last week at the start of the Alito hearings I suggested a filibuster was a very real possibility and figured that if the Democrats really wanted to give themselves a shot at beating Alito they were going to need to come out swinging and produce a few errors on Alito’s part. 

Instead of Alito being the one to stumble, however, Senate Democrats were the ones who came off looking less than stellar, punctuated by Alito’s wife breaking down when Senator Graham came to the defense of her husband’s honor. By the end of the week it looked like Alito was home free.

However, as this week comes to a close there are whiffs that maybe a filibuster attempt isn’t dead after all. Many of the liberal blogs are picking up an intensity on the Alito nomination that wasn’t evident last week. One of the biggest, Daily Kos, is keeping a daily whip count on the nomination, gleefully chalking up the growing number of Democratic 'no' votes.

Today’s Chicago Sun Times reports Sen. Durbin, the Senate’s number two Democrat, will vote against Alito, which is no surprise given he voted against Roberts.  However, Durbin explicitly says they have not ruled out a filibuster.

Durbin said so many other senators intensely oppose Alito that they may have enough votes to sustain a filibuster against the conservative jurist…… He said he won't know until Tuesday if there are enough strong opponents to filibuster Alito's nomination……A week ago, I would have told you it's not likely to happen. As of [Wednesday], I just can't rule it out. I was surprised by the intensity of feeling of some of my colleagues. It's a matter of counting. We have 45 Democrats, counting [Vermont independent] Jim Jeffords, on our side. We could sustain a filibuster if 41 senators ... are willing to stand and fight.

This shocks me. And it leads me to believe that had Alito made a few gaffes or had Senate Democrats delivered a better performance last week, we would almost definitely be staring at a filibuster.

We’ll see what next week brings.

Posted by John McIntyre at 04:16 PM | Email Author | Permalink

Last night on Hannity and Colmes (video, transcript) they did a story on a woman in upstate New York who is going to lose her home of 50 years so that the Seneca Nation of Indians can expand their casino operations. The report was very disturbing because there is just something that is profoundly un-American when the government can “legally” come and take your home under the power of eminent domain, to expand a casino.

In the aftermath of the Court’s 5-4 Kelo decision these type of eminent domain stories are going to fester with the public as long as city and state governments continue to press their “right” to take private land for “economic development.” Unfortunately, both Rehnquist and O’Connor were in the dissent on Kelo vs. New London, so the additions of Roberts and Alito is unlikely to change much given the five in the majority on Kelo are still on the court.

Posted by John McIntyre at 12:32 PM | Email Author | Permalink

Vince Carroll, editorial page editor of the Rocky Mountain News, wrote on Tuesday:

If Sen. Ken Salazar is a political moderate, as he is typically portrayed, he'll vote to confirm Samuel Alito to the Supreme Court.

Guess not: Salazar Voting Against Alito

Posted by Tom Bevan at 11:24 AM | Email Author | Permalink

Did Ben Nelson officially snuff out Dem hopes of filibustering Sam Alito once and for all by announcing support for his nomination yesterday? 

I have decided to vote in favor of Judge Samuel Alito to serve as the 110th Justice of the United States Supreme Court. I came to this decision after careful consideration of his impeccable judicial credentials, the American Bar Association's strong recommendation and his pledge that he would not bring a political agenda to the Court.

The chances of Alito being filibustered decreased in direct proportion to the amount of time  Joe Biden, Ted Kennedy,  Charles Schumer, et al . spent on television during the hearings last week, finally bottoming out somewhere close to zero when Mrs. Alito broke down in tears at the end of day three.

Posted by Tom Bevan at 05:55 AM | Email Author | Permalink