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Defending Your Life... And Theirs

Well, things seem to be shaking out okay on the adserving front, so I'm starting to calm down.  And maybe I can even get to one or two of the things I was meaning to take up.

So, first off, over the weekend I caught this post by Jeralyn Merritt over at Talk Left, talking about Mickey Sherman's new book, How Can You Defend Those People? I hadn't realized that Merritt is a well known attorney who defended Timothy McVeigh, and her own decisions about who to defend thus become an interesting part of the overall discussion.

Merritt talks about Sherman's interviews with various lawyers, asking them where they would "draw the line" in defending bad characters - child molesters, bombers, mass murderers... these are the sorts of responses that come out. 

The reason I mention this, though, is because my mom's reaction was strong, and reminded me why I'm glad I get her insights.  She pointed out that in fact one shouldn't draw lines.  Everyone is entitled to a defense. It's not for us to judge who should and shouldn't get one.  She reminded me of debates she had with her students - back when she was teaching professional ethics in healthcare - where they wanted to pick and choose "good" clients from "bad" ones (it's why many of them wanted to wind up working with children... less moral qualms). 

Obviously, there's a difference between medical and rehabilitative treatment and legal services.  But still; I'm reminded of how Alan Dershowitz can suggest that he'd defend Hitler if the alternative was no one. That's what it is, I think, to believe in the law, and to believe in the rights of all people, however monstrous. It's an interesting question (and here, already I've managed to invoke Godwin's Law), a reminder of our humanity. I wouldn't want to be the one, necessarily, defending Timothy McVeigh either.  But if you have, I'd wonder why then decide you can't defend someone... for something.

Strictly Speaking

I mentioned the notion of "strict constructionist" judges in my discussion this morning... and then ran into this intriguing debate: Eugene Volokh taking Dahlia Lithwick to task for her recent examination of the Supreme Court's hearing on the DC gun ban, and its Second Amendment implications.  The short version is that Lithwick writes, as others have pointed out, that finding an individual right to bear arms will be an expansion of the Constitution, and in conflict with the "strict constructionist", originalist view that judges should rely on "original intent" when evaluating constitutional issues.  Now, the question on the Second Amendment is a long debate... but the more interesting point I got was this, rather sweeping, denial by Antonin Scalia that he was ever appropriately labeled a "strict constructionist":

"Textualism should not be confused with so-called strict constructionism, which is a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be--though better that, I suppose, than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." --Antonin Scalia, "Common Law Courts in a Civil Law System."

(Via Lawyers Guns and Money). I hadn't noticed this (it comes from a lecture Scalia gave at the University of Utah), but it raises some interesting wrinkles, I think, for conservatives, as even the people who we try to label as "strict constructionists" seem to walk away from the concept. 

I find Supreme Court law fascinating - I was first exposed at Journalism School (That's right bitches, Ize Trained As A Joornalist... as they say in LOLCat) to First Amendment law, and I've been reading court slips pretty much ever since.  And I've long thought that our left-right tensions over the Court's composition miss a lot - mostly that I think the "conservative court revolution" has been oversold: while it's true the Court now has a clear, "conservative" majority, it's not entirely clear what success they'll have getting it to do the things conservatives want.  And while I'm sure John McCain would make it worse with his appointments, it is also interesting that the term he'd use for searching... is one the Chief Constructionist rejects. Just something to ponder.

And He'll Go To His Grave As The Angry Old Man...

I have to admit, Clarence Thomas has fascinated me.

My argument against Thomas, unlike some, has never been about his politics.  Really, my Dad was a fairly conservative black man, and an occasional Republican (to my Mother's occasional chagrin), and I'm not one to tell you that conservatives have it all wrong.  They've got a lot of it wrong... to be sure, but not everything.

No, my issue with Thomas is that he's not very good.

I think if you're going to have one "black seat" on the Supreme Court - which is, of course, insulting - then you might as well reserve it for the best.  Thurgood Marshall, in most everyone's estimation, was one of the best. A great mind, a passionate lawyer, a widely admired and respected justice.  Clarence Thomas, really, was none of those; at best, he was a loyal Republican and movement conservative who'd done a good soldier's work and hoped for a fair reward. And, well, he got it.

What fascinates me about Thomas is that I think he kind of knows this - he's had a complex life of feeling inferior, of being different, of not fitting in... and frankly, every time I hear or read his thoughts, I always think "what a bitter, bitter man."

And now, here he comes with a memoir to underline just such a conclusion.

"Separate And Legal" Just Doesn't Quite Have That Stirring Ring To It.

I was planning to write this yesterday:

Perversely, it made for a great distraction from immigration: the Supreme Court decision on desegregation managed to get the lefty blogs and media thinkers into high dudgeon, making it easier to ignore any internal dissension on thorny issues of race and immigration.  When it comes to minorities and schools we are one.

Well sort of; I had to gut-check my impressions with Mom before writing this.  Nothing could get me disowned faster than something that suggests agreement with anything like the majority in Parents vs Seattle School District. And really I don't.

But I do think this decision underlines the need for a new discussion on school integration, just as the Supremes' recent term requires resetting expectations for what aggrieved people can expect from courts.

And my thinking starts with Clarence Thomas.

Enemy Mine

Among the many things I am not (including, sadly, not famous), I'm no lawyer.  I have an interest in the law and legal reasoning, but I hate getting into legal arguments because invariably there's some lawyer to say "you don't know what you're talking about" and you're just done.

That said, I find myself keeping up with the various court decisions, many of which go against the Bush Administration, over the various ways it's been trying to deal with suspected terrorists, including the 4th Circuit Court of Appeal's decision this week that Ali al-Marri, a US Resident, cannot be classified as an "enemy combatant" and needs to be transferred from military prison to civilian jail and tried.

Although I'm not as angry as some, I do agree that the abstract implications of the Bush Administration clearly affects all of us and our freedoms.  So, apparently, did Judge Mott of the 4th Circuit, ruling that al-Marri's label of "enemy combatant" when he fought for no foreign army but may have - emphasis on may - been planning terrorist attacks with others, isn't good enough justification.

But what do I know? I'm no lawyer.

I don't generally read or link to the Volokh Conspiracy, arguably one of the most in-depth online blogs about the law; I like what they do, sort of, but it's that old thing about lawyers being to willing to accept the validity of arguments I can't stomach.  That's true here, but I would still recommend this post, and this post, for an examination of the legal complexities and the very real possibility of reversal by the Supreme Court (also this, which covers even more of the nuances).  Again, I'm rarely as up in arms, as say my Mom is about the conservative Court; but the prospect that the Supremes could give the President broad authority to designate "enemy combatants" makes me extremely uncomfortable. So uncomfortable, that I'd even contemplate letting the hotel room search that's integral to al-Marri's case go through (I didn't realize hotel rooms were quite so well protected under the 4th amendment).

I do think al-Marri should be allowed his civilian designation and a proper trial; I believe in our judicial system and its ability to achieve the correct result here.  But I'll acknowledge that this isn't an easy case.  That's supposed to be why we have our Courts of Appeals and The Supreme Court.  It's just harder to say that when the potential outcome - a very real possibility - is so disturbing.

Maybe The Problem Is Just Anything With Alberto Gonzales' Name Attached

I'm not going to pretend that yesterday's decision in Gonzales v. Carhart was something other than a terrible setback for women needing access to abortion.  Clearly, this is result driven by years of sustained, pitched battle by conservatives to stack the Supreme Court with antiabortion activists willing to undo years of established jurisprudence (and interesting that the only solution for conservatives was to find Catholic white men - Scalia, Alito, Roberts - whose appreciation of dogma and commanding from lofty heights would get the desired result. No one else can opparently be fully counted on).

Dalia Lithwick provides, for my money, the most comprehensive takedown of the problems with the decision, problems that have to do as much with the precedent being set as what the decision itself accomplishes. Lithwick - a long-time critic of Justice Kennedy's writing, lays out his issues, and lets his muddled stance be the issue of this decision:

It's hard to fathom why Kennedy has so much more sympathy for the women who changed their minds about abortions than for those who did not. His concern for Inconstant Females might be patronizing in any other jurist. Coming from him, it's brilliantly ironic. Kennedy is, after all, America's Hamlet. The man who famously worried that "sometimes you don't know if you're Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line," will long be remembered as the living incarnation of agony and indecision, And today he seamlessly rewrites his Stenberg dissent as a majority opinion that blasts his earlier Casey vote to its core.

The point is this decision raises questions that can't immediately be addressed - such as what really makes this case different from Stenberg v. Carhart, the Nebraska Partial Birth Ban that was rejected (and, as Lithwick notes, prompted a dissent from Kennedy that looks essentially like his majority opinion in Gonzales); at some point they'll have to face that the two decisions conflict.  Second, the decision implicitly overrules Doe v. Bolton, the original companion case to Roe v. Wade, and the decision which specifies that post-viability abortion bans have to account for the health of the mother, not just her life; that, too, will have to be addressed. Moreover, Thomas (supported by Scalia) has made clear that he'd overrule this decision on "Commerce Clause" grounds - that the regulation of abortion belongs to the states (which then becomes the underpinning for overruling Roe) - which means that this case indeed, settles very litle.

It's in these lingering questions that I find some hope.

And then...

Just when I give up on Althouse, she points me towards this.