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Sapere aude - dare to be wise
Monday, January 30, 2006
A victory!
Posted 5:02 PM by Luke
In my recent posts on the confirmation process of Samuel Alito, I have remained relatively silent in giving my own opinion on the matter. Now, with a successful cloture vote just having been recorded, the path is clear for a simple majority to confirm Alito tomorrow morning.

And I have no qualms declaring this a victory, not just for Republicans, but for all Americans. It is a victory because the process worked, and the growing politicization of the court succumbed to reason and a fair treatment of a fair nominee.

The vote to end debate (and avoid a filibuster) was 72-25, with over a third of the Democrats voting to give Alito an up-or-down vote tomorrow morning. Several of these same Democrats will probably vote against Alito in the actual confirmation vote, showing that they understand the gravity of using the filibuster tactic. They may disagree with some or much of Alito's ideology, but they also realize that the filibuster should only be used in truly extreme situations. Built into this realization is the notion that Supreme Court justices are to exercise an independent mind and they are not a rubber stamp of those who nominate and confirm them.

Additionally, once confirmed, if Alito sticks to a textual mode of Constitutional interpretation as expected, his presence on the Court should serve to further depoliticize it. I'll let Justice Scalia explain (from his dissent in Planned Parenthood v. Casey):
In truth, I am as distressed as the Court is -- and expressed my distress several years ago, see Webster, 492 U.S. at 535 -- about the "political pressure" directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it. That cause permeates today's opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls "reasoned judgment," ante, 505 U.S. at 849, which turns out to be nothing but philosophical predilection and moral intuition. [emphasis added]

It is my upmost hope that when the tables are turned -- when Republicans finds themselves in the minority with a Democratic president -- that they show a similar respect to the confirmation process as these brave cloture-voting Democrats have shown.

[Tomorrow I'll have a post discussing the impact that Alito could have on the Court's jurisprudence]
Wednesday, January 18, 2006
Bush's wiretapping
Posted 10:41 AM by Luke
President Bush's clandestine domestic wiretapping program has drawn ire from those who feel it violates individuals' civil liberties, and praise from those who feel it is necessary to discover terrorists operating on U.S. soil. And now the first lawsuits challenging the program have been filed.

The question of the program's legality is at the forefront of the news and is also the topic of this semester's Moot Court competition. The Bush administration has claimed legal foundation for its program under two sources: its general Article II war powers and statutory power under the Foreign Intelligence Surveillance Act (FISA).*

Since I do not yet have a well-researched opinion on the matter, I will provide links to interesting articles and legal opinions from time to time.

Let me first direct you to this post by a buddy of mine (and fellow former Domer), Chris Letkewicz, which is skeptical of the Bush administration's legal claims and provides a lot of information on FISA and many helpful links.

Finally, Wired has a column questioning the efficacy of mass surveillance by the government.

*As purportedly excepted by the Authorization for the Use of Military Force
Tuesday, January 17, 2006
Prof. Cooper retiring
Posted 11:00 AM by Joshua Claybourn
From blogging anyway. After three years of being the school's only blogging professor, Prof. Cooper offers his goodbye here.
Friday, January 13, 2006
Breaking News: IU's Herbert to Leave
Posted 5:56 PM by Joshua Claybourn
The Indianapolis Star reports the following:
Indiana University President Adam Herbert told trustees today that he will quit when his contract runs out in 2008, a move that signals his surrender in a long battle with Bloomington faculty members, IU alumni, state leaders and other critics who have questioned whether Herbert was up to the job.

The decision also effectively puts to rest the question of whether the trustees will consider an unprecedented midyear job review of Herbert, a decision they were expected to make Saturday.

Herbert, who is about halfway through is five-year contract, requested a head start to the search for his replacement, according to his letter to the nine-member trustees board.
Wednesday, January 11, 2006
Alito unstoppable?
Posted 4:21 PM by Luke

After the third (and final ?) day of the Alito confirmation hearing, many are predicting that he will be confirmed without much difficulty. I have viewed most of the hearing thus and it is my observation that he has handled and deflected the two main issues that Democratic opponents used to attack him: his non-recusal in the Vanguard case, and his membership in the Concerned Alumni of Princeton.

To get a handle on these two issues and Judge Alito's responses, I recommend going to

This snapshot from the (usually conservative) Drudge Report displays the sentiment of confidence from the right.
Monday, January 09, 2006
Annoying Law Forbids Annoyances
Posted 7:44 PM by Joshua Claybourn
There's a highly disturbing story in CNET titled, "Create an e-annoyance, go to jail." It begins:
Annoying someone via the Internet is now a federal crime.

It's no joke. Last Thursday, President Bush signed into law a prohibition on posting annoying Web messages or sending annoying e-mail messages without disclosing your true identity.
Sen. Arlen Specter apparently burried the law in the "Violence Against Women and Department of Justice Reauthorization Act," carrying stiff fines and up to two years in prison. Here's the relevant language in Sec. 113:
"Whoever...utilizes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet... without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person...who receives the communications...shall be fined under title 18 or imprisoned not more than two years, or both."
I've written a longer analysis of this at Indiana Barrister.
Saturday, January 07, 2006
Welcome back! (to the Supreme Court?)
Posted 3:07 PM by Luke
Welcome back, everybody. I hope your break was peaceful, relaxing, and blessed. If you're like me, these last few weeks without the socratic method and argument have been quite refreshing. But of course, by refreshing, I mean to say that I've been energized for yet another several-month stint of argument and debate-- all constructive ganz klar!

And now that the Senate has also had their break, the confirmation hearings for Judge Alito should begin soon (we hope). Will he waltz onto the Supreme Court, as John Roberts did? This AP article does a good job spelling out his outlook.
Tuesday, January 03, 2006

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