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Category: Courts
Posted by: A Waco Farmer
Today RCP links to a Nicholas Lemann essay in the New Yorker, which condemns a recent Supreme Court ruling as "a complete departure from more than a half a century of jurisprudence on race."

Professor Lemann, dean of the Journalism School at Columbia University, asserts that President "Bush’s legacy" includes "one wholesale change that will likely endure for a generation: the construction of a distinctly right-wing Supreme Court."

Specifically, on race, the right-wing Court wrought by Bush has "abandoned the twin goals of black advancement and racial harmony."

Such hyperbole is embarrassing.

No matter, similarly exaggerated accounts warning of a return to Jim-Crow America have been ubiquitous since the Court released its holding in Parents Involved in Community Schools v. Seattle School District No. 1 this June (2007).

The case revolved around the practice of school districts deciding admission to popular schools based on race--in order to achieve integration and diversity.

Chief Justice John Roberts, who wrote for the majority in a five-four decision to strike down the practice, famously declared:

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

This all makes Mr. Lemann and a host of other concerned citizens very unhappy.

Lemann again: "The Court would do well to contemplate the landscape of the Administration’s wreckage before it considers any other radical solutions, and sweeps away an accumulated body of law and experience."

Reality Check:

Wreckage? Radical? Sweeping Change?

All of this hand-wringing flows from the assumption that only court-ordered integration and other forms of coerced civil rights enforcement stands in the way of a return to our egregious racial past. More importantly, these gloomy scenarios ignore the dramatic transformation of American life between 1954 and the present.

Much has changed since Brown v. Board. While it is true that every African American citizen of the United States does not have total equality, black Americans of 2007 have great opportunity.

Who can deny that race is more often than not a significant advantage (not a disadvantage) for African Americans seeking employment in academia, corporate America, or even the presidency of the United States? That is, all things being equal, who among us would not prefer to check a favored-minority box when applying for admission or seeking employment at the finest institutions of higher learning or the best jobs in this country?

An aside: We are irreversibly pointed toward a re-evaluation of racial politics in America. In the simplest terms, our current cultural standard rests on according preferences to descendants of victims of past racial discrimination and abominations at the expense of other Americans increasingly less different from the protected class and more and more unconnected to the sins of the fathers. Such a system cannot survive the coming reconciliation with basic principles of American justice and equality.

The other outlandish assumption on the part of Lemann concerns the transformation of the Supreme Court into a disciplined, powerful, and permanent arm of the vast right-wing conspiracy.

Reality Check #2:

After nearly four decades during which Republican presidents appointed eleven Supreme Court justices, while Democratic presidents nominated only two, the high court may have finally achieved a tenuous 5-4 majority that depends on the frighteningly fragile conservative vessel, Anthony Kennedy. I emphasize may, for only a fool completely ignorant of history and politics (any nominations?) would pronounce this current configuration, admittedly leaning right for the moment, a permanent institution. One stiff wind, many conservatives fear, and Kennedy is gone.

Another side note: More on this in the coming days--but Kennedy is under assault on one hand (“Scalia-like conservative cretin”) and intense friendly pressure on the other ("Kennedy is evolving; Kennedy is now the swing vote"). This good-cop, bad-cop routine is designed to flip Kennedy into the liberal camp.

But, even if Kennedy holds to his life-long judicial leanings in the face of Beltway celebrity, there is no indication that the conservatives are likely to gain another seat on the Court in the near term. Barring an unforeseen and untimely demise, the older liberals are intent on waiting out the Bush administration to retire. And it seems more than likely that a Democratic president will have an opportunity to appoint at least two nominees during her next term.

Shame on Nicholas Lemann and his fellow travelers for their disingenuous diatribes designed to scare the uninformed and whip up partisan fervor.
Category: Courts
Posted by: A Waco Farmer
Some of the most aggrieved criticism of the Libby commutation last week came from sentencing guideline experts. Expressing outrage over special treatment, a number of legal specialists castigated the President for showing mercy to his subordinate after turning a cold shoulder to so many others over the course of his administration.

Is it hypocritical for the President to show leniency toward a loyal member of his administration--and not to others? On its face, we are hard-pressed to conclude anything other than blatant favoritism. Inarguably, these experts on sentencing practices have a point, especially in terms of the larger issue that they are attempting to spotlight.

On the other hand, the Libby case may tell us much more about Washington politics than it reveals about the American justice system in general. Rhetoric aside, Scooter Libby is no "ordinary Joe" convicted under normal circumstances.

Why is this different?

Customarily, an ordinary person does not contend with a top-flight US attorney, appointed as a special prosecutor with unlimited resources, instructed to devote all his energy toward investigating a specific incident, which may or may not have been a crime, and under intense pressure from the media and much of the political establishment in Washington to produce a public scalp.

In the end, the Prosecutor obtained a conviction. Nevertheless, the extraordinary nature of the case was exacerbated by the fact that the prosecutor did not charge Libby (or anyone else) with violating the law that originally precipitated the investigation.

Should the President treat Libby like just another convicted criminal under these circumstances?

It occurs to me that the proponents of sentencing reform are asking the wrong questions and scoring a few cheap debating points on an intensely political but not necessarily analogous event.

If, in the end, the President takes extraordinary action to spring a person of good character caught in a trap set through extraordinary means—then, that is the way the game is played. The constitutional power of the President trumps that of his tormentors. From check to check-mate on the Washington chessboard.

Other Bosque Boys thoughts on Scooter Libby:

"Bush and Libby: The Morning After" (ramifications) here.

"A Judicious Use of the President's Power: in his own words..." here.

The entire Bosque Boys file of posts pertaining to Libby here (click and scroll).

You may "bookmark" the Bosque Boys by clicking on the icon in the upper right corner.
Category: Courts
Posted by: A Waco Farmer
Kudos to Tocqueville, who predicted, way back when, that the ACLU had no standing in this case contesting the government’s use of warrantless surveillance to monitor suspected terrorists.

Full story via the Washington Post here.

Earlier Bosque Boys coverage here.