QUACK!

Thunderstorms and floods all around, so I’m sneaking this in through a weather window — so much for my collection of weekend reads; maybe I’ll jump on tomorrow if I can keep connection long enough.

The traditional Fourth of July send-off here in the Pea Patch includes fireworks shot from a small island in the middle of the lake — the boats come out in force to watch. As rainy and wet as it it, I’d doubt there will be much turnout this year. It’s been that kind of year, hasn’t it.

Here’s a Froomkin piece on the Dubby’s [truly]dead duck status … open the link for the good reads. The Limbaugh set made Bush’s immigration compromise impossible … they’ve bit the hand that fed them — that’s what wild dogs do. Add the dreadful numbers coming out of Iraq and the Big Dogs that left Bush’s side this week, and there’s only one thing to say … QUACK! However, there’s an article below that to advise caution … I’ll second that. I haven’t taken time to add links — open the articles to get to them.

As well, I’m throwing in a few weeks worth of ‘toons, here, to amuse you. And here’s the link to my Planet Waves Weekly piece:

A Post-It Note to Self and Others

Happy celebration of independence — hope your weathers good and your fireworks fabulous; and remember, independence is what we do every day on Political Waves … exercise our right to free speech and activism.

Jude

Weekly Toons
Bob Geiger

http://bobgeiger.blogspot.com/2007/06/saturday-cartoons_16.html

http://bobgeiger.blogspot.com/2007/06/saturday-cartoons_23.html

http://bobgeiger.blogspot.com/2007/06/saturday-cartoons_30.html

Put a Fork in Him
Dan Froomkin, Wa Po
Friday, June 29, 2007

President Bush’s last, best chance to achieve any significant legislative victory in the twilight of his presidency died yesterday in the Senate, killed by members of his own party.

Bush’s proposal to overhaul the nation’s immigration policy fell 14 votes short of the 60-vote filibuster-proof majority that White House officials had assured reporters was well in hand. Three out of four Republican senators ultimately turned against their party’s erstwhile leader.

Visibly shaken after yesterday’s rejection, Bush appears to have little to look forward to in the last 19 months of his presidency.

Ron Hutcheson writes for McClatchy Newspapers: “The Senate’s rejection Thursday of President Bush’s immigration plan was the latest in a series of embarrassments that have exposed Bush’s political weakness and shaken his hold on power. . . .

“In the space of a single short week, Bush was hit with more Republican defections on Iraq, more bad news from the battlefield, more subpoenas from a hostile Congress, a new assault on his signature education plan and embarrassing disclosures about his vice president.

“He also found himself in a fight over executive privilege that begs comparisons to Richard Nixon’s legal battles during the Watergate scandal.

“‘It’s the incredible shrinking presidency. He’s lost battles in the courts. He’s lost battles in Iraq. He’s lost battles on Capitol Hill,’ said Paul Light, a professor of public service at New York University.

“‘His bank account is empty and there’s nowhere to go for more. I think his presidency is essentially over.’”

Susan Page writes for USA Today: “The agenda during the final 18 months of his tenure is no longer Bush’s to shape. . . .

“Presidential scholar Fred Greenstein of Princeton says Bush’s situation reminds him of ‘the ragged ends of a whole collection of modern presidencies,’ including Richard Nixon amid Watergate and Lyndon Johnson during Vietnam. Greenstein has delayed publishing the third edition of his highly regarded book on presidential leadership, The Presidential Difference, until it was clear how Bush’s immigration push would fare.

“‘It’s a plus for his impulse to lead,’ Greenstein says of Bush. ‘But he’s caught up in the larger Greek tragedy of his presidency,’ now driven by the Iraq war. ”

Ben Feller writes for the Associated Press: “President Bush likes big ideas. Yet his second term shows the risk — big collapses. . . .

“The message spread from the president to his senior advisers to the lower-ranking staff: Keep your heads up, and keep working.”

But as Feller points out: “The Iraq war, the defining issue of his presidency, will remain his priority. A key evaluation takes place in September, and lawmakers of both parties have lost patience for progress.”

Julie Mason blogs for the Houston Chronicle: “[A]ll that stuff from Tony Snow about how Bush had 60 votes in the Senate and a majority of members supported many of the provisions in the immigration bill? Well, apparently not. Even as late as this morning they were saying it was too close to call. Really? . . .

“Talk about tostado. You know, spending as much time with Bush as we do, a certain myopia can creep in. Sometimes it seems like he’s not totally irrelevant and that he does have some power, somewhere. They liked him in Kansas recently.

“But . . . [w]hat a butt-kickin’!”

Noam N. Levey writes in the Los Angeles Times: “President Bush began the week struggling to salvage his most important foreign and domestic initiatives: the war in Iraq and an overhaul of the nation’s immigration laws.

“He ends it closer to losing both than at any time in his presidency.

“And in a remarkable reversal for a president who once commanded nearly unflagging loyalty from lawmakers in his party, those most responsible for his setbacks are Republicans.”

Levey notes that “GOP lawmakers even publicly blamed the administration’s failures for the bill’s demise.

“‘This is about the American people losing faith in a government to do the things that we say we’re going to do,’ said freshman Tennessee Sen. Bob Corker, ticking off intelligence failures in the run-up to the Iraq invasion, changing justifications for the war, the botched response to Hurricane Katrina and the recent inability of federal agencies to expedite passports.”

Robert Pear and Carl Hulse write in the New York Times: “Mr. Bush placed telephone calls to lawmakers throughout the morning. But members of his party abandoned him in droves, with just 12 of the 49 Senate Republicans sticking by him on the important procedural vote that determined the fate of the bill.”

Dana Milbank writes in The Washington Post: “For practical purposes, President Bush’s domestic agenda was canceled at 11:22 yesterday morning when Mitch McConnell of Kentucky, the Senate Republican leader, approached the front of the chamber to vote on the immigration legislation the president had championed. McConnell caught the clerk’s attention, pointed his index finger downward, walked away silently, and smiled.

“Two weeks ago, McConnell stood at Bush’s side as the president declared that ‘those of us standing here believe now is the time to move a comprehensive bill.’ . . .

“Then he disappeared — literally. Sightings of McConnell were so infrequent during this week’s debate of the bill that supporters began to ask whether the Republican leader’s face would appear on milk cartons.”

Laura Litvan writes for Bloomberg: “Ross Baker, a political science professor at Rutgers University in New Brunswick, New Jersey, said the leader’s split with a president of his own party is unusual and may reflect McConnell’s reluctance to spend political capital on behalf of Bush, who is increasingly unpopular.

“‘It’s a question of self-preservation,’ Baker said. ‘It’s safer now to get into the lifeboats.’”

For more of the same, here’s my June 11 column chronicling the political obituaries that started rolling in after the immigration bill died in the Senate the first time.

Dejected in Defeat

Here is the text and, more revealingly the video of Bush’s remarks to the press after the Senate vote.

Peter Baker writes in The Washington Post: “He looked uncharacteristically dejected as he approached the lectern, fiddling with papers as he talked and avoiding the sort of winking eye contact he often makes with reporters. And then President Bush did something he almost never does: He admitted defeat.

“‘A lot of us worked hard to see if we couldn’t find a common ground,’ he said an hour after his immigration plan died on Capitol Hill. ‘It didn’t work.’

“It was, in the end, simply a statement of reality after the Senate buried his proposal to overhaul immigration laws. But for a president who makes a point of never giving in, even when he loses, it was a striking moment, underscoring the depth of his political travails. It took almost two years before Bush acknowledged, just months ago, that his effort to reshape Social Security had failed. Now he has surrendered in what was probably his last chance of securing a legacy-making second-term domestic victory.

“The desultory appearance in a college hallway here after a speech on Iraq may have marked the death of ambition in Bush’s legislative agenda. The paradigm shift that senior adviser Karl Rove saw after the 2004 election has now proved illusory. The Ownership Society that Bush promised to build in 2005 is rarely mentioned these days. Even the hope-against-hope optimism of finding bipartisan common ground after the 2006 elections has officially evaporated. . . .

“[G]oing forward, aides acknowledged, the once swaggering president will be in a defensive crouch.”

Their Confidence is Meaningless

Bush and Vice President Cheney’s optimistic predictions about the Middle East in general and Iraq in particular have proved to be almost completely and consistently wrong for years now. (”Last throes,” anyone?)

Before the 2006 election, White House political guru Karl Rove was supremely self-assured in his public predictions of Republican victory.

White House spokesman Tony Snow recently assured the press corps that Bush had enough votes in the Senate on the immigration bill. “I’ll see you at the bill signing,” Bush himself told a skeptical journalist on June 11.

Bush and his staff’s credibility regarding statements of “fact” is a frequent subject of debate. But their track record on predictions is something else entirely. The evidence is pretty overwhelming that those predictions are unreliable.

I mention this because Bush’s core argument against a troop drawdown in Iraq — something supported by a large majority of Americans — is basically a prediction. As he put it again yesterday: “If we withdraw before the Iraqi government can defend itself, we would yield the future of Iraq to terrorists like al Qaeda — and we would give a green light to extremists all throughout a troubled region. The consequences for America and the Middle East would be disastrous.”

Subpoena Watch

Michael Abramowitz and Amy Goldstein write in The Washington Post: “The White House invoked executive privilege yesterday in withholding subpoenaed documents on fired U.S. attorneys out of confidence that it can prevail in court and weather a political storm by blaming Congress for overreaching, administration officials said. . . .

“The statements from all sides yesterday called to mind the harsh rhetoric in Washington heard at the height of the Watergate scandal.

“‘This is a further shift by the Bush administration into Nixonian stonewalling and more evidence of their disdain for our system of checks and balances,’ said Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee. ‘Increasingly, the president and vice president feel they are above the law.’ . . .

“[T]he White House launched a campaign to portray the key issue as being congressional Democrats’ obsession with attacking the president and his advisers, rather than addressing problems such as immigration and health care. Press secretary Tony Snow told reporters traveling on Air Force One that the subpoenas ‘may explain why this is the least popular Congress in decades, because you do have what appears to be a strategy of destruction rather than cooperation.’”

For background and links, see yesterday’s column.

Sheryl Gay Stolberg writes in the New York Times: “The clash pits the Congressional right to conduct oversight — in this case, an investigation into whether the Justice Department allowed partisan politics to interfere with hiring and firing of federal prosecutors — against the president’s right to unfettered and candid advice from his top aides. Experts disagree about how a court might rule.

“Peter M. Shane, a law professor at Ohio State University and an authority on executive privilege . . . says Congress has a strong argument, because it is making a specific claim that it needs information to conduct an oversight investigation, and ’specific claims of necessity usually outweigh general claims’ like the one the administration asserts, arguing the president’s need for unfettered advice.

“But David B. Rivkin, who worked as a lawyer in the Reagan and first Bush administrations, argues that the president has the stronger case, because Congress has only weak oversight authority in the area of hiring and firing federal prosecutors. ‘In this area, executive power is nearly absolute,’ Mr. Rivkin said.

“The next step is for Democrats to decide whether to try to negotiate with the White House or to vote on a contempt resolution, a process that could take months and would lay the groundwork for sending the matter to court. Democrats did not say Thursday how they intended to proceed, although by the sound of their comments, negotiations did not seem likely any time soon.”

Tom Hamburger writes in the Los Angeles Times: “The House and Senate panels have sought to determine who was responsible for the firings, but have been unsuccessful in finding out how exactly the dismissals happened. That lack of success could be a factor that courts consider if they are asked to rule on a dispute over executive privilege.

“‘The question becomes whether a case can be made of serious wrongdoing sufficient to overcome the invocation of the privilege,’ said Walter Dellinger, a Justice Department official in the Clinton administration.

“He said the congressional argument for cooperation was strengthened by the fact that ‘after months, no one has come up with a coherent or credible explanation for why [the U.S. attorneys] were fired or who made the decision to fire them. As time has gone on, the possibility that serious wrongdoing occurred has necessarily become more plausible.’”

Andrew Zajac writes in the Chicago Tribune that congressional aides “privately acknowledged that Bush could draw out the process until he leaves office in 18 months if he has the stomach for the political heat the fight might generate. Conversely, congressional Democrats run the risk of a backlash if the public perceives them as unfairly belaboring the issue.”

Margaret Talev and William Douglas, writing for McClatchy Newspapers, quote Mark J. Rozell, a political science professor at George Mason University, as saying that Bush might decide to dig in this time.

“With low popularity ratings, time running out on his presidency with no anointed successor and a penchant for secrecy, ‘It’s a nothing-to-lose presidency at this point,’ said Rozell, the author of ‘Executive Privilege: The Dilemma of Secrecy and Democratic Accountability.’”

Here are Associated Press and Washington Post primers on executive privilege.

[…]

Bush on the War

Bush’s speech yesterday on the war provoked some of the most fascinating, skeptical, persuasive and diverse analyses I have ever seen from mainstream-media reporters covering the same event.

Maura Reynolds and Peter Spiegel write in the Los Angeles Times: “Faced with eroding support even among longtime Republican allies in Congress, President Bush argued Thursday that the U.S. troop buildup in Iraq is working and urged Americans and lawmakers to give the military operation more time to succeed.

“In a speech to military scholars at the U.S. Naval War College, the president gave his own report on the plan’s progress, detailing what he described as ‘good results’ attributable to the buildup he authorized last winter, including a decrease in sectarian killings and the capture of insurgent leaders. . . .

“However, the developments cited by Bush have been the subject of debate. For instance, U.S. military commanders in recent weeks have raised questions about the Iraqi army’s ability to take over on its own anytime soon. Also, one of the advances cited by Bush, involving cooperation between U.S. forces and Sunni Arab sheiks in Anbar province, was underway before the start of the troop buildup. That initiative suffered a significant setback when several of the sheiks were assassinated in the bombing of a Baghdad hotel earlier this week.

“Bush also cited declines in both civilian deaths and suicide bombings in recent months. The initial drop in civilian deaths in Baghdad earlier this year was one of the most impressive gains of the troop buildup. But killings began rising again in May.”

Jonathan S. Landay writes for McClatchy Newspapers: “Facing eroding support for his Iraq policy, even among Republicans, President Bush on Thursday called al Qaida ‘the main enemy’ in Iraq, an assertion rejected by his administration’s senior intelligence analysts.

“The reference, in a major speech at the Naval War College that referred to al Qaida at least 27 times, seemed calculated to use lingering outrage over the terrorist attacks of Sept. 11, 2001, to bolster support for the current buildup of U.S. troops in Iraq, despite evidence that sending more troops hasn’t reduced the violence or sped Iraqi government action on key issues.

“Bush called al Qaida in Iraq the perpetrator of the worst violence racking that country and said it was the same group that had carried out the Sept. 11 attacks in New York and Washington.

‘Al Qaida is the main enemy for Shia, Sunni and Kurds alike,’ Bush asserted. ‘Al Qaida’s responsible for the most sensational killings in Iraq. They’re responsible for the sensational killings on U.S. soil.’

“U.S. military and intelligence officials, however, say that Iraqis with ties to al Qaida are only a small fraction of the threat to American troops. The group known as al Qaida in Iraq didn’t exist before the U.S.-led invasion in 2003, didn’t pledge its loyalty to al Qaida leader Osama bin Laden until October 2004 and isn’t controlled by bin Laden or his top aides. . . .

“Bush’s use of al Qaida in his speech had strong echoes of the strategy the administration had used to whip up public support for the Iraq invasion by accusing the late Iraqi leader Saddam Hussein of cooperating with bin Laden and implying that he’d played a role in the Sept. 11 attacks. Administration officials have since acknowledged that Saddam had no ties to bin Laden or 9-11.”

Thomas E. Ricks writes in The Washington Post: “The most important form of political compromise in Iraq is not among top Iraqi politicians in Baghdad, but at the local level, President Bush asserted yesterday, in a departure from past rhetoric on Iraqi politics.

“‘To evaluate how life is improving for the Iraqis, we cannot look at the country only from the top down, we need to go beyond the Green Zone and look at Iraq from the bottom up,’ he said in a speech at the Naval War College in Newport, R.I. ‘This is where political reconciliation matters most, because it is where ordinary Iraqis are deciding whether to support new Iraq.’

“Until now, Bush and members of his administration have almost always described political agreement in Iraq as an effort to be led by members of Iraq’s national government.”

But, as Ricks points out, “there have been few signs of major progress toward reconciliation among Iraq’s top leaders,” while “[a]t the same time, U.S. officials have taken encouragement in the apparent swing that several tribal leaders in Iraq’s Anbar province have taken against al-Qaeda-affiliated insurgents.”

He adds: “In another sign of a potential policy shift, Bush also said in his speech that one of the encouraging signs in Baghdad is that ‘citizens are forming neighborhood watch groups.’ It is not clear what the difference is between those groups and armed militias, which U.S. officials have said in the past must be disbanded or incorporated into Iraqi security forces.”

Frank James blogs for the Chicago Tribune that Bush’s speech “was an attempt to buy time, to hold back the floodgates of other Republicans who might feel liberated to publicly criticize the present policy.”

And Yochi J. Dreazen blogs for the Wall Street Journal: “The worse conditions have gotten in Iraq over the past four years, the further afield President Bush has looked for countries he could hold up as models of what he hopes to ultimately leave behind in Iraq.

“First, it was post-World War II Germany and Japan. More recently, it was South Korea. But in a speech earlier today at the Naval War College in Rhode Island, Bush picked a far more surprising country: Israel. . . .

“The Bush administration was ridiculed for its earlier attempts to compare Iraq to South Korea, but citing Israel as a model for a Mideast Muslim country like Iraq seemed certain
to infuriate many Iraqi and Arab leaders.”

Revisiting the Night of the Long Knives
Bob Patterson
Jun 29 2007

Thinking that George W. Bush has entered the lame duck phase of his term in office and that the danger has passed might be an enormous mistake. Folks who think that there is some similarity between the political tactics used by the George W. Bush administration and the methods used by Germany’s chancellor for life are aware that the worst could still be yet to come.

In The Rise and Fall of the Third Reich, on page 185, William L. Shirer wrote: “At the crest of their popular strength, in July 1932, the National Socialists had attained but 37 per cent of the vote. But the 63 per cent of the German people who expressed their opposition to Hitler were much too divided and shortsighted to combine against a common danger which they must have known would overwhelm them unless they united, however temporarily, to stamp it out.” (Do those percentages sound familiar?)

Contending with dissent in the opposition party is a difficult political challenge, but coping with strong disagreement from members of one’s own party is usually debilitating, unless one has advisers as ruthless and cunning as Hermann Goering and Heinrich Himmler.

In the early hours of June 30, 1933, (see Shirer pages 220 to 223) Hitler’s supporters, who were becoming an annoyance, were dealt with severely (as in summarily shot on the spot).

Hitler quickly changed a deteriorating political career with dim prospects via a precedent setting move. He combined the offices of President and Chancellor and decreed that it was an office he would hold for life. Did he, too, use “signing statements”?

The conservative talk radio posse will respond to references to the recent Homeland Security Presidential Directives numbers 20 and 51 with hearty laughter and solid reassurances that any similarity between that bit of current news and the dimming memories of the Night of the Long Knives and its consequences is of interest only to “left wing nutters.”

Conservative talk radio has blanketed the United States with similar smooth talk about how there was nothing to be concerned about at all with a long list of disturbing items. Now that the citizens are alarmed about a war that is expensive and seems to require an open-ended commitment, don’t Rush and his clones deliver explanations that no one could have foreseen the current unfortunate situation, and reassure listeners that there is no cause for alarm?

It seems doubtful that the citizens of the United States, who are very complacent about a war to discover WMD’s, where there were none, and to establish a democracy in an area that makes the expression “Chinese fire drill” seem tame in comparison, would be able to muster a rational response to a (hypothetical?) drastic change in the rules covering the executive branch of the government.

[Note: Among the curious events on the Night of the Long Knives, the story surrounding the death of the newspaper music critic (Ibid page 223) Dr. Willi Schmidt (and the life of his wife) would make a great political film noir.]

Hitler proved that he was a poor loser when it became apparent that it was necessary to retreat from Paris. He ordered the city of Light to be burned to the ground. If, as some cynics think, Bush really has a personality that is very similar to Hitler’s, then when it comes time to display a “sour grapes” attitude, Bush could order the bombing of the nuclear facilities in Iran and precipitate a new war which could do for the United States, what Hitler intended for Paris.

[Why exactly did George H. W. Bush (i.e. Bush 41), during his “lame duck” phase following the Presidential elections in 1992, order American troops into Somalia? President Bill Clinton took office with a major foreign policy challenge facing him from day one. In a similar show of the “up yours” attitude, George W. Bush could leave “Clinton 44” with a major new headache in the form of an extra, new war (with Iran) to manage.]

Is Ann Coulter the Bush Administration equivalent of Leni Riefenstahl? Recently she raised the ire of Liberals by making a joke about the possibility of the assassination of a Democratic contender for the Presidency in 2008. The Conservatives were baffled at the Liberals failure to enjoy humor. Would they give her a pass if she made any joking references to “Operation Valkyrie”?

Hitler encouraged architect Albert Speer to produce an impressive amount of work. Didn’t a large number of architectural critics give most of them approving reviews?

A radio news item during the week, informed listeners that Karl Rove was assisting the First Lady in her task of selecting an architectural firm to work on plans for The Bush Presidential Library. Isn’t Albert Speer Jr. also a renowned architect? Has he submitted an application?

[Since it is obvious that an administration that thrived on secrecy will probably not have much paperwork and documentation to share with scholars and historians, couldn’t they save some money on the tribute to the Bush legacy, by building it as an exact duplicate of the American Embassy in Baghdad which is now being constructed? Perhaps the Universal theme park folks could contribute a “simulated mortar attack” experience as a way of replicating the “bunker mentality” phase of the Bush years?]

Isn’t it odd, that folks like Hugh Hewitt, who seems to get very annoyed with Bush-Hitler comparisons, doesn’t point out the very marked differences between the two? Hitler won an Iron Cross in battle. Hitler was a notable example of an effective speaker who could deliver spellbinding oratory. (According to one Jesuit teacher speaking casually to a class during the Sixties, when Hitler spoke early in his career, there were nurses standing by to treat the women who would faint.) Hitler wrote a book that is still selling in some areas of the world.

George Bush had a lackluster military career. He draws ridicule when he speaks. His autobiography isn’t very well known. Hugh Hewitt could mention any of these points as a means of refuting the idea that the two national leaders were in any way similar. Wouldn’t that material prove his point?

According to the Snopes, the Urban Legend Web site, Herman Goering said: “Of course the people don’t want war. But after all, it’s the leaders of the country who determine the policy, and it’s always a simple matter to drag the people along whether it’s a democracy, a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism, and exposing the country to greater danger.”

Now, the disk jockey will play Frank Sinatra’s song The Best Is Yet to Come and we’ll saunter on out of here. Have the kind of week that would win you an Iron Cross.

“So keep fightin’ for freedom and justice, beloveds, but don’t you forget to have fun doin’ it. Lord, let your laughter ring forth. Be outrageous, ridicule the fraidy-cats, rejoice in all the oddities that freedom can produce. And when you get through kickin’ ass and celebratin’ the sheer joy of a good fight, be sure to tell those who come after how much fun it was.”
~ Molly Ivins, 1944 - 2007

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Add comment June 30th, 2007

Do you see what I see?

The government, the court … gone too far — so far it’s sticking in America’s craw? It’s not just the Left unhappy, now, it’s the whole country. [I’ll qualify that — I thought the Supreme’s giving Dubby the nation seven years ago went too far … so what I mean is, even in the ass-over-tea-kettle, down-the-rabbit-hole, up’s down, right’s wrong, surrealistic world we live in today … they’ve gone too far!] The nation, the Congress wants accountability … and the White House slams the door in their face. The public, the national sentiment, leans left toward a progressive “new deal” and the Supreme’s take us back in time to uglier ways of seeing our world.

I’m not one of those who thinks it can’t get worse — oh Hell yeah, it can. On the other hand, the Big Picture, which has become so glaringly apparent only a child could fail to notice, has taken on cartoon proportions worthy of Disney … if any of you have seen L’il Bush on Comedy Central, you’ll get my drift. The more distant the opposite ends of the spectrum move, the easier all this is to see … which may be the entire point of the energy curve.

Here’s the blowback on the Supreme’s recent activity — it was quick, harsh and outraged, and there will be more, I’m sure. The last piece is particularly interesting, and I think it reveals something about the Conservative go-for-the-throat outlook, which is based on competition.

Last night, the Dem candidates debated on PBS, and it was a love-in … they worked together, respectful of one another, and built on one anothers talking points. This doesn’t happen in the Red debates — perhaps we’re finally seeing the basic difference between these people: competition v. collaboration.

Yeah, I know — Hil will snip at Barack next time, Joe will snipe at John … but they’re all moving in the same direction, their diversity notwithstanding; it’s a race by definition and it won’t remain rosy, but the difference between parties is obvious to the point of wondering if they’re on the same planet. The Pub candidates all look alike, talk alike and hold their knives at the ready, while they babble about God, guns and gays — and the American public is no longer interested in that conversation, or pleased with that behavior.

One comment — the AP piece below only gives Kucinich and Gravel a nod; shame on them. These two continued to make cogent points, outside of the moderate zone, of course — and the base listened . Don’t bet they didn’t.

Below, the handpicked [by Cheney] High Court catches Hell from rational people — and, seriously now, their timing sucks; they were selected to preside over the Thirty-Year Reign, the Republican takeover, but their Little Emperor pissed in those Cheerio’s … we’ll have to wait and see who laughs last.

Articles on the Supreme’s in general, first — then their latest rulings.

Jude

Three Bad Rulings
New York Times Editorial
June 26, 2007

The Supreme Court hit the trifecta yesterday: Three cases involving the First Amendment. Three dismaying decisions by Chief Justice John Roberts’s new conservative majority.

Chief Justice Roberts and the four others in his ascendant bloc used the next-to-last decision day of this term to reopen the political system to a new flood of special-interest money, to weaken protection of student expression and to make it harder for citizens to challenge government violations of the separation of church and state. In the process, the reconfigured court extended its noxious habit of casting aside precedents without acknowledging it — insincere judicial modesty scored by Justice Antonin Scalia in a concurring opinion.

First, campaign finance. Four years ago, a differently constituted court upheld sensible provisions of the McCain-Feingold Act designed to prevent corporations and labor unions from circumventing the ban on their spending in federal campaigns by bankrolling phony “issue ads.” These ads purport to just educate voters about a policy issue, but are really aimed at a particular candidate.

The 2003 ruling correctly found that the bogus issue ads were the functional equivalent of campaign ads and upheld the Congressional restrictions on corporate and union money. Yet the Roberts court shifted course in response to sham issue ads run on radio and TV by a group called Wisconsin Right to Life with major funding from corporations opposed to Senator Russell Feingold, the Democrat who co-authored the act.

It opened a big new loophole in time to do mischief in the 2008 elections. The exact extent of the damage is unclear. But the four dissenters were correct in warning that the court’s hazy new standard for assessing these ads is bound to invite evasion and fresh public cynicism about big money and politics.

The decision contained a lot of pious language about protecting free speech. But magnifying the voice of wealthy corporations and unions over the voice of candidates and private citizens is hardly a free speech victory. Moreover, the professed devotion to the First Amendment did not extend to allowing taxpayers to challenge White House aid to faith-based organizations as a violation of church-state separation. The controlling opinion by Justice Samuel Alito offers a cockeyed reading of precedent and flimsy distinctions between executive branch initiatives and Congressionally authorized spending to deny private citizens standing to sue. That permits the White House to escape accountability when it improperly spends tax money for religious purposes.

Nor did the court’s concern for free speech extend to actually allowing free speech in the oddball case of an Alaska student who was suspended from high school in 2002 after he unfurled a banner reading “Bong Hits 4 Jesus” while the Olympic torch passed. The ruling by Chief Justice Roberts said public officials did not violate the student’s rights by punishing him for words that promote a drug message at an off-campus event. This oblique reference to drugs hardly justifies such mangling of sound precedent and the First Amendment. ++

Not One More Roberts or Alito
E. J. Dionne Jr., Washington Post
Friday, June 29, 2007

Just say no.

The Senate’s Democratic majority — joined by all Republicans who purport to be moderate — must tell President Bush that this will be their answer to any controversial nominee to the Supreme Court or the appellate courts.

The Senate should refuse even to hold hearings on Bush’s next Supreme Court choice, should a vacancy occur, unless the president reaches agreement with the Senate majority on a mutually acceptable list of nominees.

And no Bush nominee to a lower court deserves any deference now that we learn that U.S. Appeals Court Judge Brett Kavanaugh may have misled the Senate during his confirmation hearings. Kavanaugh claimed he was not involved in administration discussions about setting the rules for the treatment of enemy combatants. The Post reported that he was.

Although a spokeswoman for Kavanaugh insisted that his testimony was “accurate,” Senate Judiciary Committee Chairman Patrick Leahy said, “I don’t believe that he was truthful with us.”

As for the Supreme Court, we now know that the president’s two nominees, Chief Justice John Roberts and Justice Samuel Alito, are exactly what many of us thought they were: activist conservatives intent on leading a judicial counterrevolution. Yesterday’s 5 to 4 ruling tossing out two school desegregation plans was another milestone on the court’s march to the right.

Even after he was confirmed, Roberts was talking about something other than the 5 to 4 conservative court we saw this year on case after case. In a speech at Georgetown University Law School in May 2006, Roberts rightly argued that “the rule of law is strengthened when there is greater coherence and agreement about what the law is.” It’s a shame this quest for broader majorities had so little bearing on the 2007 Roberts-led court.

Especially troubling was the opinion offered by Roberts and Alito this week eviscerating the rather modest restrictions on sham “issue” ads in the McCain-Feingold law. The provision, which applies for 30 days before a primary and 60 days before a general election, is aimed at preventing large amounts of corporate and union money from getting around campaign finance restrictions.

Three conservative justices, Antonin Scalia, Clarence Thomas and Anthony Kennedy, were willing to admit that in voiding this part of the law they were overturning a precedent set by the court only four years ago. But Roberts and Alito pretended to follow the earlier ruling while ripping its guts out. Scalia called this “faux judicial restraint.”

“The court (and, I think, the country) loses when important precedent is overruled without good reason,” Justice David H. Souter wrote for the dissenters. Exactly. But upsetting precedent, directly or indirectly, is a major goal of this new conservative majority.

As Norman Ornstein of the American Enterprise Institute noted this week in Roll Call, the issue-ad decision demonstrated “not a careful, conservative deference to Congress” but instead “a willingness by Roberts to toss aside Congress’ conclusions to fit his own ideological predispositions” — the very definition of judicial activism.

If another conservative replaces a member of the court’s moderate-to-liberal bloc, the country will be set on a conservative course for the next decade or more, locking in today’s politics at the very moment when the electorate is running out of patience with the right.

That’s why a majority of senators should warn Bush now that they will not take up his nominee unless he strictly construes the Constitution’s provision that he appoint justices with “the Advice and Consent of the Senate.” The rule should be: If the advice isn’t taken, there will be no consent.

And if conservatives claim to believe the president is owed deference on his court appointees, they will be — I choose this word deliberately — lying. In 2005 conservatives had no problem blocking Bush’s appointment of Harriet Miers because they could not count on her to be a strong voice for their legal causes. They revealed that their view of judicial battles is not about principle but power. When they went after Miers, conservatives lost the deference argument.

Much has been written about how the judicial confirmation process is broken. A more accurate view is that the ideological struggles in our politics have moved to the courts and that the formal processes of the Senate don’t deal well with such conflicts.

It would be far better to be honest about what’s going on. The Senate should be unapologetic in saying no, up front, to loading the bench with conservative judicial activists. If Bush is given this warning and still refuses to engage in serious consultation, the burden will be on him. ++

The Supreme Court Kowtows to The Dictator
Timothy Gatto, Smirking Chimp
Jun 28 2007

The decisions of the Supreme Court today are notification to the rest of the country that individual rights, and fairness in business, have no place in America. The Supreme Court has shown today that price fixing and racial segregation can now be protected by the highest court in the land. Black children will now attend black schools and the historic 1954 decision in Brown vs. Board of Education that outlawed segregation in public schools, is now sitting on top of the dustbin of history. It was a noble attempt at justice and equality for all, but today it is no longer the law of the land and Americans can now look to the past to see what the future holds.

Capitalism, the system that Republicans “revere”, took it on the chin today also, with the ruling that “price fixing” does not constitute a violation of the 96-year-old rule that resale price maintenance agreements were an automatic part of the Sherman Antitrust Act. The Supreme Court no longer believes that the market should set its own prices and that an arbitrary price set by manufacturers should be the law of the land. Personally, I don’t see where that is going to help the people of the United States or the manufacturers. If an item has an artificially fixed price that discounters cannot break, the items that are in question will end up sitting on shelves, overpriced. Regardless of the courts mandating a bottom line, if the item will not sell above the fixed price, stopping discounters from selling it at a lower price will not be in anyone’s interest.

Both of these decisions were brought to the court backed by the Bush Administration. In the case of the price fixing case, According to the New York Times, “The Bush administration, along with economists of the Chicago school, had argued that the blanket prohibition against resale price maintenance agreements was archaic and counterproductive because, they said, some resale price agreements actually promote competition”. As far as the racial make-up of school districts case, “The Bush administration participated as a “friend of the court” on behalf of the plaintiffs who challenged the diversity plans”.

So it begins. As more cases come onto this Roberts Court, expect to see our nation’s laws sent back to antiquity. Clarence Thomas, the only person of color on the bench should be ashamed of himself and what he has done to his own people. As a young student, Thomas entered the College of the Holy Cross, a Jesuit institution in Massachusetts, after the school began a black recruitment program. Thomas was the beneficiary of a similar minority program a few years later at Yale Law School. This is how he repaid the people that put him where he is now. Martin Luther King I believe is turning over in his grave. All of the pain and heartache of the Civil Rights Movement has been negated because of this one man’s vote. He should be ashamed, very ashamed. If there is a God, I would like to be a fly on the wall when Thomas goes to meet his maker. I’d want to be a little teensy, itsty, bitsy fly, because when God explodes on him, I wouldn’t want to suffer the consequences.

Of course it wasn’t just Clarence Thomas, four other men voted to set back the Civil Rights of minorities. The votes were the same, 5-4 on both cases. We can expect to see more of the same in the future. People often ask why should we impeach Bush and Cheney? After all they only have a year and a half left on their terms. First of all, God forbid another Supreme Court Justice dies or is incapacitated in the next year and a half. It will take decades to get the Supreme Court balanced again. There is another reason, with everything that is happening, unless we get the Bush Administration out of the White House, we can expect more of the same types of cases to be backed by the administration as a “friend of the Court”. The other thing that we have to consider is that if Bush will turn Civil Rights on its head, our democracy is in jeopardy also. Will he leave after his term is up? This remains to be seen. Now that he has the Supreme Court in his pocket, what’s to stop him from instigating another 9-11? Think about it. ++

Ace Supreme
digby, Hullabaloo

Via Adam B at Kos, I see that Scotusblog has compiled some interesting statistics about the latest Supreme Court term. Unsurprisingly, it turns out that they have a conservative majority after all, with Anthony Kennedy playing his Hamlet role mostly in service of conservative outcomes:

Nineteen of the twenty-four 5-4 cases broke down along strictly ideological lines and, as in most every recent Term, the Court’s five more conservative members won a greater share of 5-4 victories than the four more liberal justices. The Roberts-Scalia-Kennedy-Thomas-Alito combination prevailed in 13 of 24 (or 54%) 5-4 decisions, while the Stevens-Souter-Ginsburg-Breyer grouping prevailed in only six of 24 (25%) decisions.

As Adam B pointed out this has had some rather predictable results:

In one full term, this Court has severely curbed local efforts to promote racial diversity in schools, upheld a right-wing ban on a necessary medical procedure for women, curbed students’ free speech rights, crippled Congress’ ability to keep corporate money out of political advertising, prevented taxpayers from challenging the constitutionality of Bush’s faith-based initiatives, made it almost impossible for women to prevail on claims of longterm sex discrimination . . . and they’re just getting started.

I recall during the Alito fight that some people argued that there wasn’t really a fifth vote to overturn Roe or any number of other settled cases because good old Kennedy was still there. Everyone was supposed to gird themselves for the day Justice Stephens shuffled off his mortal coil. I thought that was nonsense because Justice John Roberts struck me as a very, very smooth operator who would know exactly how to manipulate someone with this kind of temperament:

From the beginning, Kennedy’s performance on the Court has been defined not by indecision but by self-dramatizing utopianism. He believes it is the role of the Court in general and himself in particular to align the messy reality of American life with an inspiring and highly abstracted set of ideals. He thinks that great judges, like great literary figures, have both the power and the duty to “impose order on a disordered reality,” as he told the Kennedy Center audience. By forcing legislators to respect a series of moralistic abstractions about liberty, equality, and dignity, judges, he believes, can create a national consensus about American values that will usher in what he calls “the golden age of peace.” This lofty vision has made Kennedy the Court’s most activist justice — that is, the justice who votes to strike down more state and federal laws combined than any of his colleagues…

Roberts certainly seemed like someone who would figure out how to stroke Kennedy’s famous ego and I’d bet money that’s exactly what he did. He’ll let him vote with the other side just enough to make him believe he’s still the independent swing vote and BMOC but he’ll make sure Kennedy swings the way he wants when it’s important. Grandiose utopians who believe their own hype are always easy to manipulate. Just ask Dick Cheney. ++

Dems Say March to Racial Unity Not Over
NEDRA PICKLER, AP
June 28, 2007

WASHINGTON — A historically diverse field of Democratic presidential candidates - a woman, a black, an Hispanic and five whites - denounced an hours-old Supreme Court affirmative action ruling Thursday night and said the nation’s slow march to racial unity is far from over.

“We have made enormous progress, but the progress we have made is not good enough,” said Sen. Barack Obama, the son of a man from Kenya and a woman from Kansas.

Sen. Hillary Rodham Clinton, the first female candidate with a serious shot at the presidency, drew the night’s largest cheer when she suggested there was a hint of racism in the way AIDS is addressed in this country.

“Let me just put this in perspective: If HIV-AIDS were the leading cause of death of white women between the ages of 25 and 34 there would be an outraged, outcry in this country,” said the New York senator.

In their third primary debate, the two leading candidates and their fellow Democrats played to the emotions of a predominantly black audience, fighting for a voting bloc that is crucial in the party’s nomination process.

One issue not raised by questioners, the war in Iraq, dominated the past two debates.

Queries about AIDS, criminal justice, education, taxes, outsourcing jobs, poverty and the Bush administration’s response to Hurricane Katrina all led to the same point: The racial divide still exists.

“There is so much left to be done,” Clinton said, “and for anyone to assert that race is not a problem in America is to deny the reality in front of our very eyes.”

While the first two debates focused on their narrow differences on Iraq, moderator Tavis Smiley promised to steer the candidates to other issues that matter to black America. In turn, the candidates said those issues mattered to them.

“This issue of poverty in America is the cause of my life,” said John Edwards, the 2004 vice presidential nominee.

Said Obama: “It starts from birth.”

Obama criticized President Bush’s No Child Left Behind program. “You can’t leave money behind … and unfortunately that’s what’s been done,” he said.

Clinton spoke of her efforts in Arkansas to raise school standards, “most especially for minority children.”

Delaware Sen. Joe Biden urged people to be tested for the AIDS virus, noting that he and Obama had done so. Cracked the Illinois senator: “I just want to make clear I got tested with Michelle,” his wife, Obama said drawing laughter from the predominantly black audience.

The debate was held at Howard University, a historically black college in the nation’s capital.

Black voters are a large and critical part of the Democratic primary electorate, making the debate a must-attend for candidates seeking the party’s presidential nomination.

A half century of desegregation law - and racial tension - was laid bare for the Democrats hours before they met. In a 5-4 decision, the Supreme Court clamped historic new limits on school desegregation plans.

Clinton said the decision “turned the clock back” on history, and her competitors agreed.
The conservative majority cited the landmark Brown v. Board of Education case to bolster its precedent-shattering decision, an act termed a “cruel irony” by Justice John Paul Stevens in his dissent. The 1954 ruling led to the end of state-sponsored school segregation in the United States.

Obama, the only black candidate in the eight-person field, spoke of civil rights leaders who fought for Brown v. Board of Education and other precedents curbed by the high court. “If it were not for them,” he said, “I would not be standing here.”

Biden noted that he voted against confirmation of Chief Justice John Roberts, who wrote the majority opinion. He said he was tough on Roberts. “The problem is the rest of us were not tough enough,” he said, seeming to take a jab at fellow Democrats. “They have turned the court upside down.”

All the Democratic candidates in the Senate opposed the confirmation of conservative Justice Samuel Alito, another of President Bush’s nominees. Clinton, Biden and Obama voted against Roberts; Sen. Chris Dodd voted for his nomination.

New Mexico Gov. Bill Richardson, the first major Hispanic candidate, said race is about more than passing new laws and appointing new justices. “The next president is going to have to lead,” he said, vowing to do so.

Dodd said “the shame of resegregation in our country has been occurring for years.”

The nomination fight begins in Iowa and New Hampshire, two states with relatively few minorities. But blacks and other minority voters become critical in Nevada, South Carolina and Florida before the campaign turns to a multi-state primary on Feb. 5.

About one in 10 voters in the 2004 election were black, according to exit polls, and they voted 9-to-1 for Democrat John Kerry. In some states, blacks make up a bigger share of the voters. In South Carolina, for example, blacks made up about 30 percent of the electorate in 2004, but were more than half of the voters in the state’s Democratic primary.

Massachusetts Gov. Deval Patrick, the country’s only black governor, introduced the candidates with a warning that a dispirited GOP “is not enough to elect a Democratic president nor should it be. We need to offer a more positive and hopeful vision … to run on what we are for and not just what we are against.”

Ohio Rep. Dennis Kucinich and former Alaska Sen. Mike Gravel also debated. ++

Did Dr. King’s dream die on a summer Thursday?
Dennis Rahkonen, Smirking Chimp
Jun 29 2007

I don’t think I’ve ever feared for America’s future as much as on the 28th of June, 2007.

Not even during the Cuban Missile Crisis, when I was a boy ducking down beneath the edge of our bathtub, as a radio in the next room warned of possible nuclear war at any moment, and my sudsy float toys slipped away from trembling hands.

Not on 9/11, which I’d almost come to expect, given the foreign rage that Washington’s abysmally misguided policies were generating throughout especially the Islamic world.

On the third-to-last day of my favorite month, just hours ago, I clearly saw the specter of a fascist tomorrow.

The U.S. Supreme Court savaged Dr. King’s dream — and all those years of such hard struggle by so many — by deciding that race couldn’t be used in determining student make-up in our nation’s schools, thereby throwing open the gates to renewed, inevitable segregation.

And bigoted nativists succeeded in thwarting any possibility for immigrant civil rights, employing exactly the same sensationalized and ultimately groundless fears that had once been used to stifle progress for Blacks enduring second-class citizenship under Jim Crow.

Have we forgotten that “they’ll steal our jobs” and “cost the taxpayers” were central arguments for attempting to preserve Dixie apartheid? Many were the terrified, innocent souls whose last seconds of life passed with Kluxer ropes around their necks because of such scapegoating.

They’re the reason why Schwerner, Goodman, and Chaney were found in a Mississippi dam.

How long before we witness either official or vigilante attempts at ethnic cleansing, on up to an eleven-million- person scale? Think “witch hunt” or “pogrom.” Certainly Tom Tancredo and Lou Dobbs will continue stirring the hornet’s nest.

But who, if not white workers succumbing to a divide-and-conquer subterfuge, will be the ones finally, lethally stung?

My fear is matched by fury, for a surpassing fraud has allowed all this to happen.

I’m speaking of the false piety exhibited by white supremacists who keep their true motives hidden: “We seek a colorblind society. Race shouldn’t be considered, or even mentioned.”

It’s behind that shameful deceit that both benign neglect and malign intent do their awful dirty work, permitting the unrelieved existence of urban ghettos festering in joblessness, poverty, and pervasive dysfunction…precisely because witheringly damaging, long-standing racism isn’t being — hasn’t been — remedially addressed.

Tumbleweeds roll past young Native Americans passed out in the dust on desolate reservations, beside their empty bottles of cheap wine, or more costly drugs. Have you ever read the obituary page of an Indian newspaper? The ages at death are commonly, shockingly low.

When Dr. King spoke of judging people by the content of their character, not the color of their skin, he plainly didn’t mean that we should ignore chronic, systemic injustices having their origin in racism, or fail to apply racially-corrective measures to the ongoing problem.

But that’s exactly what “colorblind” white, conservative demagogues are doing. They pretend the dead-ends and suffering their own implacable attitudes, and active bias, have caused no longer exist.

Or exist because of purported, individual character flaws among the dispossessed, rather than due to the crushing, unrelenting impact of an imposed evil grinding whole communities into the ground.

So what will happen to America when its dark-skinned population becomes our nation’s majority, as all demographic trends indicate?

How can we successfully compete with the rest of humanity when most of our kids are poorly educated via the inferiority of bad, underfunded, segregated schools in distressed enclaves of permanent impoverishment and despair?

Does someone harbor the Hitlerian notion that only “Aryan” kids matter, or are innately, solely capable of technical and scientific expertise? Tell that to the nonwhite Chinese, whose school children are running rings around our own in the hard sciences.

The thinly-disguised idea that “white is right,” and everyone else is expendable, carries the stench of anti-Semitism from the Nazi era.

To succeed in Germany, fascism needed the Jewish straw man.

For quite some time now, the United States has been beset by decidedly dangerous, antidemocratic, right-wing ambition. Well organized, and determined.

Yesterday we saw two manifestations of a singular social malevolence that, I’m very afraid, will one day ruin America.

I’ve always felt that Dr. King’s dream was so inspiringly powerful that I’d never lost faith in its eventual realization.

For the first time, I feel that maybe it either can’t be won, or won’t be won in this land until a new country arises like a Phoenix from fools’ ashes. ++

Brown’s legacy lives, but barely
Charles J. Ogletree Jr., Boston Globe
June 29, 2007

YESTERDAY, the US Supreme Court issued its long-anticipated decision about the constitutionality of policies in Seattle and Louisville that promote racial integration in schools. In a decision that can best be characterized as deeply divided, the court struck down these school districts’ plans, concluding that they violated some students’ right to equal protection, yet left open the opportunity for school districts to use some race-conscious measures to combat racial segregation. A majority of justices affirmed long-held principles that achieving racial diversity and avoiding racial isolation in schools are compelling state interests.

While this decision is neither as damaging nor as far-reaching as many feared it might be, there is no cause for celebration. This ruling removed a successful tool for combating the racial segregation that is a ubiquitous feature of the nation’s public schools. Its immediate effect will be to require local educators to refine their voluntary school desegregation plans. It should not prevent school districts from undertaking new plans designed to ameliorate racial segregation.

As Justice Stephen Breyer wrote in his blistering dissent, this decision “upsets settled expectations, creates legal uncertainty, and threatens to produce considerable further litigation, aggravating race-related conflict.” Judge John Paul Stevens went further, noting the “cruel irony” in the majority opinion’s evocation of Brown v. the Board of Education as justification for its position, proclaiming that “it is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”

In fact, the perplexing nature of this decision becomes clear when considered in light of rulings from lower-court judges. Judge Alex Kozinski, a conservative member of the 9th Circuit Court of Appeals, ruled earlier in favor of the Seattle plan, noting that it “does not segregate the races; to the contrary, it seeks to promote integration. There is no attempt to give members of particular races political power based on skin color. . . . The program does not use race as a criterion, but only to ensure that the population of each public school roughly reflects the city’s racial composition.”

Closer to home, the First Circuit in Comfort v. Lynn ruled in favor of the school district’s plan, determining it did not violate the 14th amendment precisely because it was designed to be inclusive, rather than to exclude. In affirming the “compelling interest” of racially diverse schools, Chief Justice Michael Boudin wrote: “. . . the negative consequences of racial isolation that Lynn seeks to avoid and the benefits of diversity that it hopes to achieve are rooted in the same central idea: that all students are better off in racially diverse schools.” The Supreme Court left the decision undisturbed.

If the fractured nature of yesterday’s 5-to-4 decision was hardly unexpected, Justice Anthony Kennedy’s concurring opinion does contain some small, and welcome, affirmation of the principles it articulated 53 years ago in Brown v. Board of Education. While agreeing with the majority that the plans illegally used race to classify students, he nonetheless stressed that “the decision today should not prevent school districts from continuing the important work of bringing together students of different racial, ethnic, and economic backgrounds.”

Kennedy’s opinion refuses to embrace the four-person plurality view that race cannot be considered in seeking to achieve educational equality. Now it is up to lawyers, civil rights and educational advocates, school districts, and school boards to craft original, creative, and constitutional remedies to combat racial isolation and foster diversity in schools and neighborhoods.

Many people across this nation who are participating in the voluntary school desegregation program, METCO, have internalized Brown v. Board of Education’s values. They have experienced the benefits of racially diverse classrooms.

Historian George Packer once wrote: “We will have a more just society as soon as we want one. Throughout American history this desire keeps rising to the surface, even at the unlikeliest moment.”

We find ourselves at such a moment. The unfortunate, but perhaps empowering, lesson of these rulings is that it will be up to the people, collectively, to determine what sort of schools we maintain and what moral lessons to teach there. Only time will tell whether the principles embraced in Brown continue to guide us in achieving racial integration, diversity, and equal opportunity in quality education. ++

Charles J. Ogletree Jr. is a professor at Harvard Law School and founding and executive director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School.

Brown Fades to Black
A Brown Study
Harkavy, The Village Voice
June 29, 2007

Chief Justice John Roberts claimed in the Supreme Court’s backward-reeling White v. Black decision yesterday that “when it comes to using race to assign children to schools, history will be heard.”

But Justice Stephen Breyer, writing for the minority in protest of the 5-4 upending of Brown, gave the country not only a history leson but also some lasting words to live by — something to get us out of this brown study caused by yesterday’s ruling.

Roberts distanced himself — and thus the entire country’s courts — from the democratic spirit by regarding racial equality as just another “verbal formulation”:

While the school districts use various verbal formulations to describe the interest they seek to promote — racial diversity, avoidance of racial isolation, racial integration — they offer no definition of the interest that suggests it differs from racial balance.

His past opinions, before he became the country’s chief justice, showed warmer regard for the rights of corporations than for the rights of people. But the depth of his icy disregard for the 1954 Brown decision was stunning.

Breyer warmed to the task. His memorable dissent is not only a good argument but good history.

Roberts said there was “no definition of the interest”? Here was Breyer’s take:

The compelling interest at issue here … includes an effort to eradicate the remnants, not of general “societal discrimination” [as Roberts’s opinion said], but of primary and secondary school segregation; it includes an effort to create school environments that provide better educational opportunities for all children; it includes an effort to help create citizens better prepared to know, to understand, and to work with people of all races and backgrounds, thereby furthering the kind of democratic government our Constitution foresees. If an educational interest that combines these three elements is not “compelling,” what is?

Let the lawyers parse Roberts’s opinion; the rest of us can go to school on what Breyer wrote concerning Brown and all the history swirling around it, before it, and after it:

[Roberts’s opinion for the plurality of the court] pays inadequate attention to this law, to past opinions’ rationales, their language, and the contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines Brown’s promise of integrated primary and secondary education that local communities have sought to make a reality. This cannot be justified in the name of the Equal Protection Clause.

Context is everything, despite what such backward-time-travelers like Clarence Thomas think. Breyer noted:

The historical and factual context in which these cases arise is critical. In Brown, this Court held that the government’s segregation of schoolchildren by race violates the Constitution’s promise of equal protection. The Court emphasized that “education is perhaps the most important function of state and local governments.” 347 U. S., at 493. And it thereby set the Nation on a path toward public school integration.

In dozens of subsequent cases, this Court told school districts previously segregated by law what they must do at a minimum to comply with Brown’s constitutional holding. The measures required by those cases often included race-conscious practices, such as mandatory busing and race-based restrictions on voluntary transfers.

And the current cases, lumped together by the court for one overarchingly hidebound ruling, were no different. The Roberts Court simply made an ideologically based decision. Breyer didn’t say it like that. But he tore apart Roberts’s contention that there was no “definition of the interest” concerning racial equality. Rightly, Breyer noted the strong “public interest,” but, then, Roberts is more comfortable with corporate interest than public interest. Breyer wrote:

The school board plans before us resemble many others adopted in the last 50 years by primary and secondary schools throughout the Nation. All of those plans represent local efforts to bring about the kind of racially integrated education that Brown v. Board of Education, 347 U. S. 483 (1954), long ago promised — efforts that this Court has repeatedly required, permitted, and encouraged local authorities to undertake.

This Court has recognized that the public interests at stake in such cases are “compelling.” We have approved of “narrowly tailored” plans that are no less race-conscious than the plans before us. And we have understood that the Constitution permits local communities to adopt desegregation plans even where it does not require them to do so.

As I said, Breyer’s dissent is also a history lesson. And some of the recent history he painted is grim. Yes, Brown of course sparked massive integration, but that trend was already reversing even before yesterday’s decision. More from Breyer:

[T]he Court left much of the determination of how to achieve integration to the judgment of local communities. …

As a result, different districts — some acting under court decree, some acting in order to avoid threatened lawsuits, some seeking to comply with federal administrative orders, some acting purely voluntarily, some acting after federal courts had dissolved earlier orders — adopted, modified, and experimented with hosts of different kinds of plans, including race-conscious plans, all with a similar objective: greater racial integration of public schools. …

Overall these efforts brought about considerable racial integration. More recently, however, progress has stalled.

Between 1968 and 1980, the number of black children attending a school where minority children constituted more than half of the school fell from 77% to 63% in the Nation (from 81% to 57% in the South) but then reversed direction by the year 2000, rising from 63% to 72% in the Nation (from 57% to 69% in the South). Similarly, between 1968 and 1980, the number of black children attending schools that were more than 90% minority fell from 64% to 33% in the Nation (from 78% to 23% in the South), but that too reversed direction, rising by the year 2000 from 33% to 37% in the Nation (from 23% to 31% in the South).

As of 2002, almost 2.4 million students, or over 5% of all public school enrollment, attended schools with a white population of less than 1%. Of these, 2.3 million were black and Latino students, and only 72,000 were white. Today, more than one in six black children attend a school that is 99–100% minority. …

In light of the evident risk of a return to school systems that are in fact (though not in law) resegregated, many school districts have felt a need to maintain or to extend their integration efforts. The upshot is that myriad school districts operating in myriad circumstances have devised myriad plans, often with race-conscious elements, all for the sake of eradicating earlier school segregation, bringing about integration, or preventing retrogression. Seattle and Louisville are two such districts, and the histories of their present plans set forth typical school integration stories.

Roberts’s opinion danced around not only the topic of integration but also the word itself. He preferred to look with disdain upon what he called “racial balancing,” that buzz phrase used to good effect by foes of integration.

Unafraid to use the word “integration,” Breyer called him on it by defining the word, the concept, and its context. Here’s a civics lesson for your kids, courtesy of Breyer:

The principal interest advanced in these cases to justify the use of race-based criteria goes by various names. Sometimes a court refers to it as an interest in achieving racial “diversity.” Other times a court, like the plurality here, refers to it as an interest in racial “balancing.” I have used more general terms to signify that interest, describing it, for example, as an interest in promoting or preserving greater racial “integration” of public schools. By this term, I mean the school districts’ interest in eliminating school-by-school racial isolation and increasing the degree to which racial mixture characterizes each of the district’s schools and each individual student’s public school experience.

Regardless of its name, however, the interest at stake possesses three essential elements.

First, there is a historical and remedial element: an interest in setting right the consequences of prior conditions of segregation. This refers back to a time when public schools were highly segregated, often as a result of legal or administrative policies that facilitated racial segregation in public schools. It is an interest in continuing to combat the remnants of segregation caused in whole or in part by these school-related policies, which have often affected not only schools, but also housing patterns, employment practices, economic conditions, and social attitudes. It is an interest in maintaining hard-won gains. And it has its roots in preventing what gradually may become the de facto resegregation of America’s public schools. …

Second, there is an educational element: an interest in overcoming the adverse educational effects produced by and associated with highly segregated schools.

Third, there is a democratic element: an interest in producing an educational environment that reflects the “pluralistic society” in which our children will live. … It is an interest in helping our children learn to work and play together with children of different racial backgrounds. It is an interest in teaching children to engage in the kind of cooperation among Americans of all races that is necessary to make a land of three hundred million people one Nation.

++

Bong Hits For Roberts
Alec Dubro, Common Sense
June 28, 2007

What was Chief Justice John Roberts smoking? Nobody’s that straight anymore, are they? Could he have really believed that a banner reading “BONG HiTS 4 JESUS” promoted drug use? And that the message was so dangerous that school authorities were correct in punishing the student who created the banner?

That’s certainly what he ruled in Morse v. Frederick. In this case, the principal of Juneau-Douglas High School (Alaska) suspended for 10 days senior student Joseph Frederick for hanging out the offending banner on private property across from the school during the Winter Olympics Torch Relay.

In a classic 5-4, right-left, split decision, the Roberts faction ruled that Frederick, and all like him, could be silenced. According to The Washington Post, “the court held that schools have the right to censor non-disruptive student speech if it ‘can reasonably be regarded as encouraging illegal drug use.’”

First of all, “reasonably” can only be invoked if Jesus were present—which I suppose in Roberts’ world he always is—and could be induced to take a hit off the bong. Not probable. Nor would impressionable youth likely be swayed by the message—if, in fact, there was a message. Frederick’s banner was kind of dada-juvenile—the equivalent of saying, “Oxy-Contin for the Pope.” In short, slightly offensive in several ways, but essentially meaningless.

Roberts reminded me of those authorities in the 1960s who were always searching song lyrics to find out which words signified “drugs.” Almost invariably, they were either dead wrong or just dumb. And here the court played dumb in order to clamp down on expression. We can only conclude that Roberts, Alito, etc. were simply waiting for a case, any case, to make it before the high bench in order to create this sweeping ruling.

In the meantime, though, the Roberts court is continuing its unbroken streak of upholding and extending authority. All their business rulings essentially reinforce the feudal, master-servant relationship: if you work for me, I can dictate all your activities, including many done outside of work. In Morse v. Frederick, simply substitute school administration for management and you get the equivalent.

For younger people, this decision may seem like a new direction. I’ve seen several comments like, “This isn’t the country I grew up in anymore.” For those of us who went to school in the 1960s, though, it seems like the same old country. In 1964, I had a political sign removed from my college dormitory wall, and the dean of students refused to return it and said that the law was on his side. The sign came from the proto-leftist-humor magazine, The Realist, and it read [Bleep] Communism. It was decorated with hammers and sickles, stars and stripes, and was clearly satirical. Not to the political commissar of the University of Massachusetts, though. His authority must be maintained, no matter how foolish it makes him look.

And that seems to be Roberts’ outlook: this may be the dumbest decision anyone could make, on a subject that’s not worthy of the law’s time and money, but, by God, I’m gonna clamp down.

And speaking of money, who, exactly, was financing high school Principal Deborah Morse to carry this inane case to the Supreme Court?

As the saying goes, bad cases make bad law. ++

The Giant Sucking Sound of the Supreme Court
Bong Hits for Repression
PAUL KRASSNER, CounterPunch
June 28, 2007

The Supreme Court sucks so badly it turned itself inside out. An utterly outrageous 5-4 ruling has made it acceptable to suspend a high school student for an off-campus act like holding a 14-foot banner saying “Bong Hits 4 Jesus.” That simple joke became a federal case ending with a dangerous precedent for suppressing free speech.

Chief Justice Roberts agreed with the school principal that “the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one”–what a ton of bullshit!–and Justices Alito and Kennedy stated that their decision doesn’t address “political or social issues such as the wisdom of the war on drugs or of legalized marijuana for medical use.”

So this is really about the war on pleasure. I once asked the late Peter McWilliams–leading activist in the medical marijuana movement who suffered from cancer and AIDS– “Would you agree with Dennis Peron, the co-author of Proposition 215 [California’s medical marijuana referendum], who says–not as a joke–that all use of marijuana is medical?”

“In the general sense that everything we do for our health–both curative and preventative–is medical, I’d agree,” he replied. “Even a perfectly healthy person who smokes pot once a month purely for its euphoric effects could be said to be doing so to prevent becoming ill, in the sense that people take vitamin C every day to prevent becoming ill, for I believe that euphoria is both healing and health-maintaining ….

“While I was using marijuana to treat my nausea, I can’t tell you how much I missed getting high. Although I’d smoke it several times a day, the average high school student was getting high more times a month than I was. That’s because after the first month, I never got high, and I really enjoy marijuana’s high. Simply put, recreational marijuana you use to get high; medical marijuana you use to get by.” ++

Even in Agreement, Scalia Puts Roberts to Lash
LINDA GREENHOUSE, New York Times
June 28, 2007

WASHINGTON, June 27 — It’s not every day that one Supreme Court justice, even one as rhetorically unrestrained as Justice Antonin Scalia, characterizes another justice, let alone the chief justice of the United States, as a wimp and a hypocrite.

Yet Justice Scalia did something very close to that, not once but twice, in separate opinions on Monday. As a result, he has served to lift the curtain a bit on the differences within the powerful five-justice conservative bloc that has marched in lock step through much of the term, bent on reshaping the law and, in several important areas, well on the way toward doing so.

In the campaign finance case, he accused Chief Justice John G. Roberts Jr. of “faux judicial modesty” for writing an opinion that in Justice Scalia’s view effectively overturned the court’s 2003 campaign finance decision “without saying so.” The clear implication was that the chief justice lacked the courage or honesty to overturn the precedent openly as Justice Scalia himself would have done.

“This faux judicial restraint is judicial obfuscation,” he said.

And Justice Scalia was scathing in his criticism of an opinion signed by Chief Justice Roberts that limited, but did not completely abolish, the right of taxpayers to go to court to challenge government expenditures that promote religion. Justice Scalia would have gone on to shut the courthouse door completely, not simply limiting but overturning the precedent that the new ruling invoked.

“Minimalism is an admirable judicial trait,” Justice Scalia said, “but not when it comes at the cost of meaningless and disingenuous distinctions.”

It made no difference that Justice Samuel A. Alito Jr., another reliable member of the conservative bloc, was the author of that opinion that Chief Justice Roberts joined. Justice Scalia was clearly taking aim at the chief justice, openly mocking his much publicized goal of lowering the court’s temperature through unanimous and jurisprudentially modest decisions.

Justice Scalia is, of course, well known for his verbal barbs. Few colleagues during his 21 years on the court have escaped his insults, not even Chief Justice William H. Rehnquist. He once accused Justice Sandra Day O’Connor of holding “irrational” views that “cannot be taken seriously.” A book published in 2004 under the title “Scalia Dissents” celebrated what it called the justice’s “unique communication skills.”

But what was notable about his attacks on Chief Justice Roberts this week was that the two were on the same side. They were in dispute not over outcomes, but over how far and how fast to