Overruled


Hiatus
May 26, 2009, 6:52 pm
Filed under: Ian

Overruled will be on hiatus through the confirmation of Judge Sotomayor to the Supreme Court.

Fear not, however, I will still have a perch in the blogosphere.



President Obama Gets It On Progressive Federalism
May 20, 2009, 5:06 pm
Filed under: Ian | Tags: ,

It is impossible to understate how awesome this is:

In a bold and sweeping policy memorandum issued today, President Obama reaffirmed the critical role that state and local governments play in our constitutional system.  The President’s memorandum directs executive branch officials to review every regulation adopted in the past ten years to scrub them of inappropriate preemption language.

In an assault on federalism and our Constitution, the Bush Administration quietly inserted preemptive language into a number of important regulations in an attempt to favor corporate interests at the expense of state laws protecting their citizens.  Today the Obama Administration recognized that states serve as “laboratories of democracy” and often are the most aggressive defenders of public health, safety, and the environment.

Today’s action follows yesterday’s decision to adopt California’s automobile emissions standards at the national level—a perfect example of how our country benefits when states act as policy innovators.  The states led, the nation followed, and the broad coalition of industry leaders, state officials, and environmental advocates assembled at the White House yesterday showed our country at its best.

UPDATE: Ok, I should probably explain why this is so cool.

The Bush Administration not only stripped away federal regulations protecting ordinary Americans, they used their power under the Supremacy Clause of the Constitution to prohibit states from enforcing their own laws that protect consumers, workers, the underprivileged and the elderly.  In truth, however, this is a project that began in the Clinton Administration; driven partially by Democrats who were still stuck in a 1960s way of thinking that says that universal federal standards are always superior to the big, bad states.  President Obama’s policy memorandum shows that he understands that the federal government cannot be an obstacle to states who want to protect their citizens in a manner that goes above-and-beyond bare federal standards.  For constitutional geeks like me, this is an historic moment.

Just as importantly, it shows that President Obama will not make the same mistakes President Clinton made in appointing judges and justices who eagerly sign on to the corporate “tort reform” agenda.  Justice Breyer, in particular, has voted to strip states of their authority to regulate automobile safety, he has declared medical device manufacuters to be immune from accountability when their defective products injure or kill a patient, and he was the weakest of the six justice who recently held that drug companies do not enjoy similar immunity.  In Justice Breyer’s America, George W. Bush would have had the power to grant such immunity if he only jumped through a couple of hoops.

After this news, I’m really excited to see who the next justice is going to be.



People Care What I Have To Say!
May 19, 2009, 4:03 pm
Filed under: Ian | Tags:

Tony Mauro at the National Law Journal was kind enough to quote me in a recent story about the Supreme Court’s atrocious decision in Ashcroft v. Iqbal.  I’m going to try to write more about Iqbal soon—so far, it strikes me as the most important case of the term.



Flashback: The “Ginsburg Rule”
May 15, 2009, 4:05 pm
Filed under: Ian | Tags: , , ,

ginsburgSenator Jeff Sessions (R-AL), the Senate Judiciary Committee’s Ranking Member, announced today that his party would be “aggressive” in questioning President Obama’s nominee to the Supreme Court, warning that he didn’t think that Senate Republicans have been “aggressive enough . . . in inquiring into [past nominee's] history, and how they are likely, based on their judicial philosophy, to have ruled in the future.”  He also added that “I think a lot of Republicans that voted for Ginsburg now believe that was probably a mistake.”

But just a few years ago, conservatives were singing a very different tune.

Once upon a time, President Bush was about to appoint a new justice, but he didn’t want the American people to figure out what a right-wing radical this new justice would be.  So President Bush’s friends at the Federalist Society had an idea; they’d find a strapping young conservative lawyer to cherry-pick quotes from a Democratic appointee’s confirmation hearings where the appointee declined to answer questions for one reason or another.  Then, they’d string these cherry-picked quotes together into a white paper which claimed that because one Democratic appointee didn’t answer a few questions in her confirmation hearings, that must mean that President Bush’s nominee didn’t have to answer any questions at all!

Thus, the “Ginsburg Rule” was born:

Roberts is not required to answer any questions, nor is he supposed to reveal his views on certain hot-button topics or how he would rule in a certain case. . . .

“You ask about their temperament, demeanor — you don’t get into the issues,” Alan Simpson, a former Republican senator from Wyoming who sat on the Judiciary Committee, told FOX News.

He suggested Roberts follow what’s known as the “Ginsburg rule,” named after Justice Ruth Ginsburg who, during her own confirmation hearings, refused to answer many questions on those grounds and was told by Democratic senators that refusing to answer was fine by them.

“If it [confirmation process] hangs up on abortion and gay rights and the social issues, boy, I think the people of America will have their thumb down their throat,” Simpson added. “You can play games, you can ask things … that no one else would ever answer, and his best response is, ‘I’ll just respond as Justice Ginsburg did.’”

Sen. Orrin Hatch, R-Utah, said despite Democrats’ arguments, the Ginsburg rule “is not a myth, it is a reality.”

Now that President Obama will be picking the next justice, however, it looks like conservatives are singing another tune.  Suddenly, Justice Ginsburg wasn’t forthcoming enough, and the Ginsburg Rule is a myth after all.

Maybe the next time a conservative President is appointing justices, we’ll get to hear all about the “Sessions Rule,” which apparently says that only Democratic nominees have to answer questions in confirmation hearings.



Profiles in Cowardice
May 15, 2009, 11:30 am
Filed under: Ian | Tags:

dawnRemember yesterday’s news that wealthy right-wing groups are lining up to fund attacks on GOP Senators who vote in favor of the President’s Supreme Court nominee—no matter who that nominee turns out to be?  Today brings news that two austensibly pro-choice Senators, Susan Collins and Olympia Snowe, both Republicans from Maine, are “undecided” on whether to break the filibuster blocking Dawn Johnsen’s nomination to head up OLC.

As I’ve written about before, some conservatives claim that Dawn must not be confirmed because she is pro-choice, even though OLC plays virtually no role in setting the Administration’s policy on abortion.  But this makes no sense as an explanation for why two Senators who claim to be pro-choice themselves would oppose her nomination.  Similarly, many conservatives oppose Dawn because of her unapologetic oppostion to torture, but neither Snowe nor Collins strike me as particular sympathetic to the Dick Cheney view regarding torture; and if Snowe and Collins lack the courage to publically disclose the fact that they are blocking Dawn because they support allowing U.S. officials to rape children in front of their parents, then they are both monsters and the worst kinds of cowards.

I suspect, however, that a different kind of cowardice is at play.  Snowe and Collins probably fear that the same kind of groups which demand scorched earth assaults on President Obama’s SCOTUS nominee will also come after them if they allow a qualified, anti-torture nominee to be confirmed to head OLC.  So they’ve become exactly like the Mitch McConnells of the world out of fear that someone, somewhere might say something mean about them.



Hear The Obnoxious Sound of My Voice!
May 14, 2009, 3:54 pm
Filed under: Ian

I will be on the Mario Solis Marich Show again tonight at 8:40pm ET/5:40pm PT to discuss the Supreme Court.  Mario broadcasts in L.A. and Colorado, and his livestream is available for everyone at his website.



Oppose [INSERT NOMINEE HERE]!
May 14, 2009, 3:43 pm
Filed under: Ian | Tags: ,

More evidence that conservatives will engage in scorched earth opposition, no matter who President Obama nominates:

An aggressive fundraising group that targeted moderate GOP lawmakers earlier this year has issued a stern warning to Senate Republicans who might vote for President Obama’s nominee to fill a vacancy on the Supreme Court.

In a letter sent Wednesday, the National Republican Trust PAC cautioned the senators they may become targets of the group’s advertising campaigns if they fail to “stay true to your Republican conservative values and beliefs as you anticipate potential nominees put before you by this Administration.” . . .

Scott Wheeler, the PAC’s executive director, said he is prepared to unleash the same resources on Republicans who do not oppose Obama’s as-yet-unnamed court pick.

Truly, President Obama could nominate Rush Limbaugh, and the conservative talking point would be that Limbaugh has too much empathy for drug addicts.




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