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Sunday, July 2, 2006
Steyn Goes Over the Top
By Dr. Steven Taylor @ 5:26 pm

In the Chicago Sun-Times we find columnist Mark Steyn having turned the rhetoric up to “11″: Court finds a right to jihad in the Constitution

There are several ways to fight a war. On the one hand, you can put on a uniform, climb into a tank, rumble across a field and fire on the other fellows’ tank. On the other, you can find a 12-year-old girl, persuade her to try on your new suicide-bomber belt and send her waddling off into the nearest pizza parlor.

The Geneva Conventions were designed to encourage the former and discourage the latter.

I understand Steyn’s point about the regular solider versus the irregular one, but there is a substantial and glaring problem with his logic here: the Geneva Conventions have absolutely zero applicability to suicide bombers, as the very nature of their attacks mean that rules of imprisonment become rather moot.

Perhaps the slopping thinking came about due to his desire to employ the following rhetoric

The same kind of inspired jurisprudence conjuring trick that detected in the emanations of the penumbra how the Framers of the U..S Constitution cannily anticipated a need for partial-birth abortion and gay marriage has now effectively found a right to jihad — or, if you’re a female suicide bomber about to board an Israeli bus, a woman’s right to Jews.

There is a great deal of space in which to debate the Hamdan decision and the applicability of international treaties that deal with the treatment of prisoners, but to call this SCOTUS “finding a right to jihad” is ridiculous.

For one thing, the Hamdan cases essentially limited the kind of tribunal that could be used against the prinsoners at Guantanamo, and left room open for the legislature to give the President what he wants in that regard. While I fully understand that the case has implications beyond that narrow issue, the notion that this case represents some major defeat in the war on terror for the US is simply an over-reaction. The notion that the only way we can be safe is for the President to be able to do whatever he thinks is necessary is a non sequitur.

Further the notion that such decisions some equate (as Steyn does in his concluding paragraph) some major diminution of western civilization strikes me as a substantial over-reaction.

Indeed, I would point out that those who are seriously concerned about the war on terror need to dial back their rhetoric some before they take a very serious issue and turn it into a boy-who-cried-wolf scenario in which their shriller and shriller pronouncements are more and more ignored.

All these kinds of columns do is tickle the ears and egos of those who already agree with Steyn. All well and good, I suppose, but really not what the main goal of political discourse ought to be.

Filed under: US Politics, War on Terror, Courts/the Judiciary | Comments (4) |Send TrackBack | Show Comments here

PoliBlog: A Rough Draft of my Thoughts » Quick judgments on Hamdan decision linked with [...] ents on Hamdan decision By Bryan S. (guestblogger) @ 10:24 pm What Dr. Taylor wrote earlier this afternoon, coupled with my earlier post suggests that the “frame” of the recen [...]
Twaddle masquerading as news
By Bryan S. (guestblogger) @ 5:25 pm

This story: “Roberts is at Court’s Helm, but He Isn’t Yet in Control” is a perfect example of the type of “news” that sometimes irks me about the venerable New York Times. It’s not news, really. It’s not even properly labeled as “analysis.” And it ends up with all the substance of the article buried beneath an introduction that is pure blather.

WASHINGTON, July 1 — As the dust settled on a consequential Supreme Court term, the first in 11 years with a change in membership and the first in two decades with a new chief justice, one question that lingered was whether it was now the Roberts court, in fact as well as in name.

Chief Justice John G. Roberts Jr. was clearly in charge, presiding over the court with grace, wit and meticulous preparation. But he was not in control.

This could be because “control” is pretty much a fiction of those who watch the court, rather than the actual members of the court. This fiction fits in with the conflict frame that is so popular in much of journalism - the court is like a game, in which two teams struggle to gain the upper hand.

Obviously, the law and relationship between 9 individual justices is much more complex than this. But that doesn’t stop the Times’ writer from jumping atop the chair of history and making claims like this:

Or perhaps it was more accurately seen as the Stevens court, reflecting the ability of John Paul Stevens, the senior associate justice in tenure as well as in age, to deliver a majority in the case for which the term will go down in history, the decision on military commissions that rejected the Bush administration’s view of open-ended presidential authority. (emphasis added)

Now, granted I’m no historian, but it seems to me to be a little early to decide which decision will mark this term of the court. But not to the Times. Obviously, any decision that plays against the administration is seen as something of historical significance beyond anything else.

I’d prefer to wait a while and see what plays out in the coming years. It is just as likely that another case from this term will end up being the one that people remember.

And while there are a couple of outside sources quoted as statistics (statistics about supreme court votes!), there are no direct quotes in the entire article, which spans over five pages on the web. So the writer is making this assumption about Roberts’ lack of control on the court entirely on her own - a dangerous way to make an assumption about the Supreme Court.

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Friday, June 30, 2006
More on the Texas Redistricting Case
By Dr. Steven Taylor @ 8:03 am

Via the AP: Schedule set in Texas redistricting case

A federal panel gave both sides in Texas’ redistricting fight two weeks to propose fixes to a congressional district whose borders were ruled unconstitutional by the U.S. Supreme Court.


On Wednesday, The Supreme Court upheld most of the pro-Republican Texas congressional map but tossed the 23rd Congressional District, which stretches from San Antonio to Laredo and west almost to El Paso. It remanded its redrawing to a three-judge panel.

This is what happened in 1996 when three majority-minority districts were declared unconstitutional. One district was in the Dallas area and two in Houston. The result in that case was that 13 (I think) districts had to be redrawn, and the primary results from those districts had to be tossed. The state then used a Louisiana-style two-round system to elect the Representatives that year.

Less districts than that will be affected this time, but there will be several where they will likely have to use the same procedure that was used in ‘96.

Thursday, June 29, 2006
Looking at Partisan Gerrymanders in Texas
By Dr. Steven Taylor @ 10:57 pm

This post at Fruits and Votes, and the discussion that started between Matthew Shugart and myself led me to look into some electoral data from Texas. My impetus was the question of whether the current district structure in Texas was better representative of the partisan preferences of the state than was the pre-2003 map, which was based on the 1992 district set, which was drawn when the Democratic Party controlled the state.

My contention being that while I am not happy with the notion that partisan gerrymandering is the norm within our system, the post-2003 gerrymandering likely better represents the heavily Republican state of the Texas than did the previous map, which produced a Democratic edge in the state’s congressional delegation.

Pre-delaymander, but post the reapportionment that gave Texas two additional seats, the 2002 House elections in Texas produced 17 Democratic seats and 15 Republican seats.

If we sum the votes in all House districts for 2002 we get the following:

REP 2,290,723 53%
DEM 1,885,178 44%
(the rest went the Libertarians, Greens and some independents)

This tracked with the Senate election that year:

John Cornyn (R): 55.39%
Ron Kirk (D): 43.32%

However, the Democrats won 53% of the House seats to the Rep’s 46.9%

Hence, while the Reps were the majority party in the state in terms of federal legislative elections, the Democrats won a majority of the seats-indeed, there was almost an inversion of the seat/vote percentages.

In 2004 we have the following for the thirty-two House races:


Republicans: 4012534 58%
Democrats: 2713968 39%


Republican: 21 66%
Democratic: 11 34%

And, for comparative purposes, here are the presidential numbers for 2004:

George W. Bush/ Dick Cheney(I) REP 4,526,917 61.08%
John F. Kerry/ John Edwards DEM 2,832,704 38.22%

I did a quick disproportionality calculation that indicated that the two were about the same in that regard, but I think I made an error, and I am sleepy, so I will re-examine the issue tomorrow.

Regardless, my crude analysis to this point would seem to indicate that my basis contention, that the current district structure of the state of Texas better represents its voters in terms of their partisan preference versus the pre-2003 map, has some basis in the data.

Still, as noted, this is a quick look at the numbers.

(All election numbers from the Texas SoS’s office).

Filed under: US Politics, Courts/the Judiciary, Elections | Comments (1) |Send TrackBack | Show Comments here
The Supremacy Clause and Hamdan
By Dr. Steven Taylor @ 9:24 pm

Given the Hamdan decision today (which I haven’t had time to really digest, and hence the lack of commentary from me at this moment in time) and the discussion of the Geneva Conventions within the majority opinion, I expect that there will be some out there who will think that SCOTUS have dived into the waters of making decisions based on international law rather than American law.

However, I would note the following from Article VI of the Constitution of the United States of American which notes (in what is know as the “Supremacy Clause”):

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

So, whatever else one may think of the decision, it should be duly noted that it is wholly within the purview of the Court to interpret the way by which treaties signed and ratified are to be applied to US policy.

I suspect I will have more to say later.

In the meantime, the whole decision can be found here [PDF].

And James Joyner has a massive post on the subject here.

Filed under: US Politics, Courts/the Judiciary | Comments (2) |Send TrackBack | Show Comments here

Jon Swift linked with Declare Supreme Court Justices Enemy Combatants
The Moderate Voice linked with What does "Constitutional" really mean? The devil is in the details
Wednesday, June 28, 2006
Line of the Day/More on the SCOTUS Districting Case
By Dr. Steven Taylor @ 2:36 pm

“It is a sordid business, this divvying us up by race.”-Chief Justice John Roberts in his partial concurrence/partial dissent in LULAC v. Perry.


I am not opposed, in theory, to institutional mechanisms that would enhance diversity of various types within government.

However, within the US system of representation by real estate (i.e., the single member district) I have long thought the notion of trying to guarantee a specific racial/ethnic outcomes was problematic at best and specious at worst.

For one thing, the notion that the thing that best defines us in terms of representation in government is our skin color is simply wrong. Clarence Thomas and Sheila Jackson Lee have the same basic hue, but their politics are quite different and would represent a given district in substantially different ways.

Yes, a higher concentration of blacks, hispanics or whites in a given location increases the probability that a person of that category will run for office and that they may potentially win. However, it hardly guarantees such an outcome.

Hence, the court’s opinion that partisan gerrymandering, which decreases democratic competition is ok, but diluting the Latino population’s voting strength strikes me as odd, if not a non sequitur. The reasoning is especially tortured because it would seem, in looking at the opinion, that part of the logic that makes dilution of hispanic voters a problem for the Court is because the dilution was done for partisan reason, i.e., that hispanics were more likely to vote Democratic, so diluting their voting power aided the GOP. If that is the logic, then surely that is partisan gerrymandering, which the Court seems to find acceptable, not pure racial gerrymandering. It is as if the Court is sayinf you can more Democrats out of the district in a way that would help Republicans so long as the bulk of said Democrats aren’t black or hispanic.

If we want to increase diversity in the legislature, and not just the racial kind (i.e, the ideological kind s well-which is ultimately far more important than skin color), we need to radically change our electoral system to one that promotes some serious amount of proportionality.

That, however, is unlikely to happen any time soon.

For further analysis of the case, see Rick Hasen’s post at Election Law.

More on the SCOTUS Decision on Districting
By Dr. Steven Taylor @ 9:42 am

It doesn’t seem as if the SCOTUS decision is all that radical. It would seem that the Court has again upheld the general notion of partisan gerrymandering. Further, the notion that boundaries can be redrawn whenever states choose to do so is, which is new.

The issue is about minority voting populations, and with the Voting Rights Act (Via CNN): High court upholds most of Texas redistricting map

At issue was the shifting of 100,000 Hispanics out of a district represented by a Republican incumbent and into a new, oddly shaped district. Justices had been told that was an unconstitutional racial gerrymander under the Voting Rights Act, which protects minority voting rights.

As such, the scope of this appears to be narrow and sounds to be to basically uphold previous rulings.

The question that remains open, as the news trickles out, is whether the districts have to be fixed prior to the November elections (the answer is probably “yes”) and then how many districts are affected (one cannot redraw just one district).

Filed under: US Politics, Courts/the Judiciary, 2006 Elections | Comments (3) |Send TrackBack | Show Comments here
SCOTUS Overturns Part of Texas Redistricting
By Dr. Steven Taylor @ 9:14 am

There is no concrete information as of yet, but MSNBC is reporting the following breaking news: Court KOs part of Texas redistricting.

Depending on the nature of the ruling, it is possible that a number of Texas primaries will be nullified.

Sunday, June 11, 2006
NSA Program Heade to Court
By Dr. Steven Taylor @ 3:13 pm

Vi Reuters: Judge may decide if eavesdropping is legal

The National Security Agency’s domestic spying program faces its first legal challenge in a case that could decide if the White House is allowed to order eavesdropping without a court order.

Oral arguments are set for Monday at U.S. District Court in Detroit at which the American Civil Liberties Union will ask Judge Anna Diggs Taylor to declare the spying unconstitutional and order it halted.

The case goes to the heart of the larger national debate about whether President Bush has assumed too much power in his declared war on terrorism.

The first question will be: will this judge punt? The second: how much will such a case actually open up a road for real oversight?

Wednesday, May 10, 2006
Kavanaugh and the Politics of Judicial Nominations
By Dr. Steven Taylor @ 9:14 pm

As I noted the other day, I have not paid that much attention to the Kavanaugh nomination story. So much so that I really did not know much about the nominee. Via the CSM (Republicans eager for judicial fight) here is some significant biographical info:

When President Bush first nominated his staff secretary, Brett Kavanaugh, to a vacancy on the US Court of Appeals for the District of Columbia Circuit in 2003, critics said he must be spoiling for a fight.

The nominee had no judicial experience, little courtroom experience and also worked on some of the most disturbing issues for Democrats: the impeachment report on President Clinton and the Florida recount in the 2000 presidential election. As a senior official in the Bush White House, Mr. Kavanaugh also has helped pick and prep other controversial judicial nominees.

In all honesty, Mr. Kavanaugh sounds too much like Hariet Miers for my comfort. In other words, he is a staff member and political ally with no judicial experience. The degree to which he should be elevated to the Circuit Court of Appeals is dubious.

At least Kavanaugh served as a clerk for Justice Kennedy-that puts him ahead of Harriet Miers in experience. Regardless, it is a pretty thin resume for the job in question.

Still, if Bush thinks Kavanaugh ought to be on the bench, why not a lower court?

Despite the notion that this nominee could be the basis of a fight with Senate Democrats, I can’t see getting all excited about it.

Bush has shown a propensity to cronyism in the past, and this certainly has a whiff of it, and as such, hardly seems to me to be the thing of some sort of political comeback.

Indeed, along those lines I have to agree with the following:

“There’s been much comment that this nomination will get the [Republican] base energized,” says Carl Tobias, a law professor at the University of Richmond, in Virginia. “That’s not the best way to nominate people to the federal bench because it politicizes that process and degrades judicial independence.”

And lest anyone think that the notion of using a judicial fight to get the juices flowing in the base is a figment of the press’s imagination, I submit the following from the NYT:

“A good fight on judges does nothing but energize our base,” said Senator John Thune, Republican of South Dakota, who made judicial nominations a theme of his 2004 campaign against Tom Daschle, the former Democratic leader. “Right now our folks are feeling a little flat. They need a reason to get engaged, and fights over judges will do that.”

Another conservative Republican, Senator John Cornyn of Texas, said: “I think this is excellent timing. From a political standpoint, when we talk about judges, we win.”


Conservative talk-show hosts, including Rush Limbaugh, have picked up the theme, as has the editorial page of The Wall Street Journal, a reliable barometer of conservative sentiment.

“A filibuster fight,” The Journal said in an editorial on Thursday, “would be exactly the sort of political battle Republicans need to energize conservative voters after their recent months of despond.”

To me all of this has the feeling of attempting to reach back into last year and recreate a victory (or, at least, a situation in which the Democrats seemed largely powerless). The desire to recreate such a situation, however, has a certain desperate feel to it-and an artificial and forced one.

It is true, btw, that Kavanaugh isn’t the only pending nominee. However, the President has managed to two SCOTUS nominations and several controversial Court of Appeals nominees. As such, while it may be true that he isn’t getting everything he wants in this area, I have a hard time thinking that anyone beyond the hardest of the hard core of his copartisans are going to get energized by a fight over a slate of unknown nominees. And since those persons are likely in Bush’s camp to stay until the bitter end, it is unclear to me as to what the ultimate point here is likely to be.

Filed under: US Politics, Courts/the Judiciary | Comments (1) |Send TrackBack | Show Comments here
Tuesday, May 9, 2006
ABA Downgrades Kavanaugh
By Dr. Steven Taylor @ 12:53 pm

I have barely been following the Kavanaugh nomination story. Still the following (via the AP) struck me as noteworthy: ABA Downgrades White House Aide’s Rating

The American Bar Association downgraded its rating of President Bush’s appellate court nominee Brett Kavanaugh after new interviews raised concerns about his courtroom experience and open-mindedness, the chairman of the peer-review panel said Monday.

Of course, this may not mean all that much:

The 14-member committee changed the White House aide’s rating from “well-qualified” to “qualified” last month in part because six members of the panel downgraded their rating from the last time Kavanaugh was reviewed, panel chairman Steven Tober said.

Nonetheless, Tober wrote in a statement Monday to the Senate Judiciary Committee that Kavanaugh is “indeed qualified to serve on the federal bench.”

Filed under: US Politics, Courts/the Judiciary | Comments (2) |Send TrackBack | Show Comments here

PoliBlog: A Rough Draft of my Thoughts » Kavanaugh and the Politics of Judicial Nominations linked with [...] naugh and the Politics of Judicial Nominations By Dr. Steven Taylor @ 9:14 pm As I noted the other day, I have not paid that much attention to the Kavanaugh nomination story. So much so t [...]
Monday, May 1, 2006
Anna Nicole Smith: SCOTUS Win
By Dr. Steven Taylor @ 11:47 am

Vai the AP: Supreme Court Backs Ex-Playmate’s Effort:

Justices gave new legal life to Smith’s bid to collect millions of dollars from the estate of J. Howard Marshall II. Her late husband’s estate has been estimated at as much as $1.6 billion.

I am only half-joking when I say: what a country, this America, where a one-time stripper can go before the Supreme Court of the United States, let alone win.

That having been said, it really is a salacious, sad, bizarre tale.

The decision was unanimous, with Ginsburg writing the opinion.

Of course, all this means is that the court proceedings in the case can continue, so no cash at this point for Smith.

Filed under: Courts/the Judiciary | Comments (0) |Send TrackBack
Monday, April 24, 2006
And the Traffic-Seeking Blogosphere Rejoiced
By Dr. Steven Taylor @ 11:11 am

Via the AP: Judge: Web-Surfing Worker Can’t Be Fired

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Thursday, April 13, 2006
Scalia: Getting Grumpy in His Old Age?
By Dr. Steven Taylor @ 9:00 am

Via WaPo: Scalia Defends Involvement in Cheney Case

Supreme Court Justice Antonin Scalia on Wednesday called his 2004 decision not to recuse himself from a case involving Vice President Cheney, who is a friend of his, the “proudest thing” he has done on the court.


“For Pete’s sake, if you can’t trust your Supreme Court justice more than that, get a life,” he said.

Is it just me, or is Scalia getting crankier and more confrontational of late?

Further, stuff like this (and the whole gesture business recently) hardly highlights Scalia’s intellect. Indeed, it all makes him look rather childish.

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Thursday, March 30, 2006
Video Game Liability
By Dr. Steven Taylor @ 10:21 am

Via WWMT TV: Alabama court upholds suit against “Grand Theft Auto”

The Alabama Supreme Court has ruled to keep alive a $600 million lawsuit against the makers of “Grand Theft Auto.”

The suit blames the violent video game for the murders of three-person night shift at a rural police department.

I do not know any more about this case save what is in this very brief story. However, I have a hard time with any liability for a company producing pop culture (like the idea that certain rock music has cauased suicide, and so forth).

The people responsible for the deaths in this case are the people who committed murder-not the manufacturers of a video game.

(And, an interesting story given this week’s Boston Legal).

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