Archive: June 2007

Kennedy (and the Court) Without Tears

If there is a redeeming quality to the just-completed term of the U.S. Supreme Court, it is that the much-acclaimed veneer of collegiality and consensus between and among the justices can now be seen for what it is and always has been: a fraud perpetrated by Chief Justice John G. Roberts Jr. to ease his own transition into the court's hot seat. The unvarnished truth is this: The court is fractured, the justices are rankly ideological, and a very conservative Reagan appointee, Justice Anthony M. Kennedy, now holds the court's center, such as it is. All of this is, in my opinion, a bad thing for litigants and the law. But at least the court's raw power plays over the past few months have swept away the cobwebs from some voters, who have written me pledging to remember the court's work when they choose a president next year. Elections do...

By Andrew Cohen | June 29, 2007; 9:02 AM ET | Comments (44)

The Court's 'Swing Vote' Finally Swings Again

Just when you were about to give up on Justice Anthony M. Kennedy as the Supreme Court's swing savior -- just when you figured he had permanently joined the court's powerful and intense conservative caucus -- he goes and (barely) saves affirmative action in public schools (at least for now). His concurring opinion in Thursday's big school cases essentially becomes the law of the land and allows school officials around the country yet another chance to continue to try to use race as one of many "components" to be considered when trying to come up with a student body that is "diverse." Thanks to strident language offered by Chief Justice John G. Roberts, Jr., writing for the court's conservative wing, it is now much harder than it was before for school officials to justify admissions policies that use race as a factor. And Justice Samuel A. Alito, Jr.'s vote in...

By Andrew Cohen | June 28, 2007; 11:53 AM ET | Comments (63)

Time for Congress to Put Up or Shut Up

For years now -- for decades now -- conservatives have looked to Congress to pass legislation designed to overcome what they perceive as a liberal bias on the United States Supreme Court. The federal ban on late-term abortions is only the latest and most visible example of those efforts. Now, however, Democrats on Capitol Hill are making noise about trying to undo some of what they perceive as the more alarming decisions that have come from the court this term. And guess what? Some Republicans aren't happy about it. Is it any wonder that these bozos are currently even less admired and respected by the public than the president?...

By Andrew Cohen | June 27, 2007; 8:28 AM ET | Comments (21)

Hey, Who Moved My Court?

Judging from some of the post-mortems from Monday's Supreme Court rulings, it appears that America's chattering class is shocked -- shocked! -- to discover that the court has moved even further to the right than it had been under the stewardship of the late Chief Justice William Rehnquist, the man who as a law clerk famously didn't think much of the court's seminal Brown v. Board of Education ruling. The online landscape Tuesday is littered with analysis pieces that discuss as development what is merely confirmation: the so-called "Roberts Court" is precisely what President Bush promised it would be when he ran for reelection in 2004: more conservative, more pro-business, more open to the role of religion in government and less concerned with the rights of the downtrodden or those who have fallen through cracks in the system. If this is truly a surprise to you, you need to get...

By Andrew Cohen | June 26, 2007; 8:04 AM ET | Comments (18)

Conservatives go 4-4 today at the Supreme Court

Let's stay with our baseball theme today. Legal and political conservatives hit for the cycle Monday morning when they "won" four long-awaited rulings from the United States Supreme Court. The Justices further chipped away at the wall that separates church and state, took some of the steam out of the McCain-Feingold campaign finance law, neutered federal regulators in environmental cases to the benefit of developers and slammed a high school kid who had the temerity to put up a silly sign near his high school. Each of these decisions help establish the true conservative bona fides of this Court. It is more conservative than it was last term, when Sandra Day O'Connor sat in one some of the cases. And was more conservative last term than the term before that, before Chief Justice Roberts and Justice Sam Alito joined the Gang of Nine. In fact, the Court now is is...

By Andrew Cohen | June 25, 2007; 11:17 AM ET | Comments (183)

Un-Mighty Gonzo at the Bat

Like the lousy or slumping ballplayer who consistently finds himself at the plate with the bases loaded and the game on the line, trouble and pressure typically finds those who are vulnerable to it. In the world of politics and law, Attorney General Alberto R. Gonzales is that lousy player -- devoid of independence, leadership competence or courage. And so, naturally, trouble and controversy keep finding him. The flap over Vice President Dick Cheney's fight with the National Archives is just the latest example of this. Now Gonzales is in the cross-hairs, too. Last week, Rep. Henry Waxman (D-Calif.), the chairman of the House of Representatives Oversight Committee, went public with a letter to Cheney's office in which he asked the Vice President to explain how and why his subordinates believe that the Vice President's office is not "within the executive branch" for purposes of a national security review by...

By Andrew Cohen | June 25, 2007; 8:17 AM ET | Comments (5)

Gitmo Hearings Long Outed as Farce

Despite front-page coverage in The New York Times, it is not exactly news that our military officials at Guantanamo Bay, Cuba employed flawed and biased screening processes to classify terror suspects down there. We have known for at least one year about the surreal nature of our government's "due process" offered to detainees thanks to a devastating report by a brilliant and dogged father and son lawyer team that studied the raw transcripts of the Combatant Status Review Tribunals. We have long known, therefore, that military officials, to use the words of William Glaberson in this morning's Times, "relied on incomplete and outdated information" and that they were "under intense pressure from their commanders to conclude that the detainees should be held." The only bit of news here is that one of the officials who participated in these kangaroo courts finally had the courage and the integrity to step forward...

By Andrew Cohen | June 23, 2007; 9:48 AM ET | Comments (44)

The Vice President Wages 'Lawfare'

Have you heard about "lawfare"? It's a post-9-11 Bush administration "strategy of using or misusing law as a substitute for traditional military means to achieve an operational objective," according to a fascinating piece by Scott Horton in the July issue of Harper's magazine. Horton's work comes to us just as we are being were reminded that Vice President Dick Cheney's office is engaged in its own form of "lawfare" -- against Congress, the National Archives, the Justice Department and even Cheney's boss, President Bush....

By Andrew Cohen | June 21, 2007; 4:33 PM ET | Comments (68)

Why Does This Guy Still Have a Job?

Why does Bradley Schlozman still have a job at the Justice Department? Why are taxpayers still funding his professional career despite a growing body of evidence that suggests he has brought nothing but shame and scandal and rank partisanship to the department? And if Attorney General Alberto R. Gonzales can't bring himself to demand Schlozman's resignation, can he at least question his judgment? It's just another example of the appalling lack of accountability, leadership and honor at the Justice Department....

By Andrew Cohen | June 21, 2007; 8:13 AM ET | Comments (39)

This Just In: Jose Padilla Doesn't Eat Cheese

It was a big day yesterday in the terror consipracy and support trial of Jose Padilla. Here's how the Associated Press put it: "Jose Padilla was never overheard using purported code words for violent jihad in intercepted telephone conversations and spoke often about his difficulties learning Arabic while studying in Egypt, the lead FBI agent in the case testified Tuesday." In a classic exchange that took place Tuesday in federal court in Miami between a government witness and a defense attorney, for perhaps the first time in the history of American law does the phrase "eating cheese" take on enormous significance in a criminal trial....

By Andrew Cohen | June 19, 2007; 10:53 PM ET | Comments (19)

The Ol' E-Mail End Run Works Like a Charm

We all have e-mail accounts, many of us more than one. So what's the big deal about White House officials, including Karl Rove, using their Republican National Committee e-mail accounts to conduct official government business? I mean, an e-mail's an e-mail, right? And who precisely is the human-resources cop at the White House who is going to tell Rove and other White House bigwigs that they have to make sure they use the correct e-mail accounts for the proper reasons? No biggie. Just another Democratic fishing expedition. It's likewise no biggie that we learned Monday from a preliminary report from the House of Representatives' Committee on Oversight and Government Reform that: "There has been extensive destruction of the e-mails of White House officials by the RNC. Of the 88 White House officials who received RNC e-mail accounts, the RNC has preserved no e-mails for 51 officials... Although the RNC has...

By Andrew Cohen | June 18, 2007; 9:44 PM ET | Comments (23)

The Price of Blind Loyalty

For months now we've talked about how the scandal at the Justice Department would have a terrible impact upon the government's ability to adequately and accurately enforce and ensure the rule of law. Now we are beginning to see precisely how this is happening. No longer can anyone claim that Attorney General Alberto R. Gonzales' lack of leadership and candor hasn't hurt his troops "on the ground" -- in the federal courts. In this morning's Los Angeles Times, Richard Schmitt tells us: "Defense lawyers in a growing number of cases are raising questions about the motives of government lawyers who have brought charges against their clients. In court papers, they are citing the furor over the U.S. attorney dismissals as evidence that their cases may have been infected by politics. Justice officials say those concerns are unfounded and constitute desperate measures by desperate defendants. But the affair has given defendants...

By Andrew Cohen | June 18, 2007; 8:13 AM ET | Comments (41)

A Special Installment of 'Where's Andrew?'

I am on special assignment the rest of the week, so there will be no regular Bench Conference updates. However, since this is a dialogue and not a monologue, I wanted to give you an opportunity to guess what I'll be doing between now and the end of the week. Here are your choices: 1. I will be attending Michael Nifong's disbarment hearing in North Carolina so I can better recognize the warning signs the next time an experienced lawyer in a high-profile case mentally implodes. All that was missing from the start of the "legal ethics" trial Tuesday was Andy Griffith (circa Matlock). 2. I will be scouring the countryside looking for someone who still has "confidence" that Attorney General Alberto R. Gonzales is competent enough to run a bingo parlor, much less the Department of Justice. Either that or I'll be trying to determine whether former U.S. Attorney...

By Andrew Cohen | June 12, 2007; 4:31 PM ET | Comments (11)

Be Careful for What You Wish For

Congratulations this morning to Ali Saleh Kahlah al-Marri, apparently the last remaining "enemy combatant" being held on American soil. He won a big victory yesterday from the 4th U.S. Circuit Court of Appeals, which declared that the government had no legal right to continue to hold him in military confinement. And how does he get to celebrate? He'll probably now be transferred back into civilian custody to face terror charges in a federal court. But al-Marri's victory is not nearly as sweeping as civil libertarians would have you believe. First, there is a decent chance that the full 4th Circuit will agree to hear the appeal and overturn yesterday's decision. Second, even if this does not occur, it is possible that the executive branch will try to place al-Marri into the combatant review process already underway at Guantanamo Bay, a move that might forestall his legal challenges. And third, Congress...

By Andrew Cohen | June 12, 2007; 7:46 AM ET | Comments (6)

No Confidence? How About No Shame?

Put yourself in Alberto R. Gonzales's skin today for just a moment. As the 80th attorney general of the United States, you have contributed to and presided over a period of infamy at the Justice Department you purport to lead. Even as Congress contemplates a barrage of subpoenas that would escalate this scandal, the Senate today will hold a "no confidence" vote about your dismal tenure -- and it is a certainty the measure will pass with some bipartisan support. Only your long relationship with your stubborn patron, President Bush, has kept you in office -- but he continues each day to pay a political price for his loyalty, sounding more and more loony when defending you. You clearly aren't wanted any longer -- you clearly aren't doing right by the public you are supposed to be serving -- so why don't you just leave? Really. If you worked in...

By Andrew Cohen | June 11, 2007; 7:58 AM ET | Comments (62)

Good for Paris Hilton

I don't care about Paris Hilton. I am only blogging about her because I know you care. And I'm not going to spend too much time or energy focusing upon today's STUNNING NEWS that she has been released early from a California prison due to some sort of "medical condition" that apparently precludes her from spending the next few weeks serving out her term. In the end, after all the messiness, the woman spent about the same amount of time in prison as she would have served had she been a regular ol' violator of her probation due to driving with a suspended license. She was punished initially for being a celebrity when she got a 45-day sentence. And today perhaps she got a break for being a celebrity by getting prosecutors and prison officials to agree to allow her to serve her time under house arrest. You can call...

By Andrew Cohen | June 7, 2007; 2:29 PM ET | Comments (18)

Lost in Libbyland: More Scandalous Justice News

While we all were focusing Tuesday upon I. Lewis "Scooter" Libby's sentencing, there was on Capitol Hill another important hearing focusing upon improper and perhaps even illegal practices at the Justice Department. The Senate Judiciary Committee hosted a fellow named Bradley Schlozman, a supervisor at Justice's Civil Rights Division, who candidly told the panel that he was all about politics, and bringing into the fold conservative lawyers, when he worked for the feds. Schlozman's testimony is still more proof that for years now the Department has been adrift in a sea of rank partisanship. Here's how the Boston Globe's Charlie Savage put it: "His testimony had been widely anticipated because former career Justice Department officials have accused Schlozman of trying to 'remake' the Civil Rights Division in a more conservative mold. During Schlozman's tenure at the Civil Rights Division, prior experience in civil rights among newly hired civil service attorneys...

By Andrew Cohen | June 7, 2007; 8:04 AM ET | Comments (24)

Scooterpalooza! Ten Libby News Nuggets

Good morning. I've said all I have to say about the sentence handed down yesterday to I. Lewis "Scooter" Libby following his perjury and obstruction of justice conviction earlier this year. So this morning I thought I would trawl through the papers, online and otherwise, and offer you the best of the rest of the spin on L'Affaire Libby. Dana Milbank in the Washington Post: "You knew Scooter Libby was in trouble at yesterday's sentencing hearing when his lawyer decided to read the judge a character reference -- from Paul Wolfowitz." Neil A. Lewis in The New York Times: "If Mr. Libby goes to prison, he will be the first senior White House official to do so since the days of Watergate, when several of President Richard M. Nixon's top aides, including H. R. Haldeman and John D. Erlichman, served prison terms. In the second setback to Mr. Libby, Judge...

By Andrew Cohen | June 6, 2007; 7:40 AM ET | Comments (55)

Truth and Consequences for Libby

If you are surprised by the tough sentence U.S. District Judge Reggie B. Walton just handed down to former White House official I. Lewis "Scooter" Libby, then you haven't been paying much attention to the case, to the judge's reputation for tough justice, or to the nature of the convictions against Libby when weighed against his background as a lawyer and his prominence in government. "People who occupy these types of positions, where they have the welfare and security of nation in their hands, have a special obligation to not do anything that might create a problem," Judge Walton said to Libby as he was sentencing him to 30 months in a federal prison and fining him $250,000. Special prosecutor Patrick J. Fitzgerald had asked for a sentence like this, and this morning he told Judge Walton that a tough term was needed for Libby because "the truth matters ever...

By Andrew Cohen | June 5, 2007; 12:05 PM ET | Comments (85)

Gitmo Drama Turns Into Farce

You could make a movie ought of the chaos at Guantanamo Bay-- actually, you could make two movies. The first could be a drama which focuses upon the fact that hundreds of the detainees down there in Cuba have been held now for half a decade despite having never fired a shot in anger at U.S. troops or otherwise engaged in any acts of terrorism. The second movie could be a comedy which focuses upon the inapt, inept and half-ass ways in which our government has tried (and so far miserably failed) to process the men through some sort of fair tribunal system. Yesterday was a day of farce in this never-ending story. Two military judges threw out two separate detainee cases because the definition of the detainees as classified by the military did not match the classification of the detainees contained in the new Military Commissions Act. In the...

By Andrew Cohen | June 5, 2007; 8:36 AM ET | Comments (12)

The Battle Of Curlin: Court Fight Over Great Horse

Now here is a legal tale (tail?) you don't see every day. The New York Times this morning updates us on a story that has been making the rounds in the horse world for a few weeks. There are, it seems, great questions about the proper and legal ownership of this year's Preakness Stakes winner Curlin, the horse who overcame Kentucky Derby winner Street Sense in the stretch to give us another year without a Triple Crown. Two of the current owners of the horse are lawyers but also defendants in a class-action lawsuit brought on behalf of about 400 plaintiffs who were supposed to get more money out of a huge fen-phen (remember, the diet drug?) settlement made years ago with the maker of the product. The plaintiffs in the case say that William J. Gallion and Shirley A. Cunningham Jr., who now own 20 percent of Curlin, were...

By Andrew Cohen | June 4, 2007; 8:02 AM ET | Comments (1)

Being Fair to Michael Vick

Here is my choice for the most atrocious law-related story of the week. There are so many things wrong with it -- journalistically, legally, even morally -- that I hardly know where to begin. I focus upon it here only to show how the news media should not cover the law (if the media want to treat people fairly). The story is about Atlanta Falcons quarterback Michael Vick. So we are clear about what I am talking about, here are the first two graphs of the article written by ESPN's Len Pasquarelli: Two law enforcement officials familiar with the investigation have told ESPN.com they believe there is sufficient evidence to indict Michael Vick in connection with a suspected dog fighting ring that was run on property the Falcons quarterback owned in Virginia. The sources, however, cautioned this week that, based on the current evidence, it might be difficult to successfully...

By Andrew Cohen | June 1, 2007; 8:06 AM ET | Comments (29)

 

© 2007 The Washington Post Company