ConfirmThem

Do any of the great legal minds here have any thoughts on the oral arguments in yesterday's Baez case at SCOTUS? I got to hear the arguments on C-SPAN at my office last night, and read the transcript this morning. How does everyone think the vote will go?

I thought the issue came down to how the first drug is administered, and not the protocol itself. The fact that a "botched" execution is typicaly a matter of not hitting a vein right away doesn't strike me as "cruel and unusual". If the AMA wasn't so lefty, they would allow MDs or RNs to assist in the process. But as it is, the execution team has reasonable training in administering an IV. Having been an Army medic instructor before college, I can attest that there is very little to teaching/learning IV technique. But I guess my bottom line is that the protocol (which is the central issue) itself wasn't dented by the plantiff, and the Govt seemed to point that out.

I also liked Scalia's point that this would open the door to further challenges. I thought the justices on the left wanted to return this to the state for more research to string out the current moratorium.

Of course, I'm no legal scholar. I'm hoping some of you guys can give me a "reading of the tea leaves" on this case, and especially where you see Kennedy's vote.

I'm also interested in any guesses on the Indiana photo voter ID law to be argued later this week. That's the one I'm most intrested in this term. Later in the year I'm looking forward to learning more about the child-rape capital punishment case.

Thanks in advance for any comments!

"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe

I haven't followed the lethal injection case closely, but I do know this: the courts are not authorized to interfere merely because they deem a punishment "cruel." The punishment must also be "unusual." Of course, I'm not saying that "cruel" punishment is okay, but selecting a punishment is a matter for legislatures if the punishment is not unusual.

...made a strong point that a lack of pain is not what the 8th Amend promises. It is a promise against "wanton" pain, or (in other words) torture. He pointed out that there is going to be some reasonable amount of pain associated with many practices that don't rise to the level of "cruel and unusual".

You are certainly correct (in this layman's eyes) and so is Scalia. But I wonder how many votes will be for the obvious constitutional language, and how many will be for an activist intervention against a safe method of execution?

"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe

I read the piece on McCain and the Supreme Court and find it lacking. There is no reason to believe BCFR will be his main agenda when selecting a justice for the Supreme Court. McCain knows that if he is to be elected, he must have the support of a significant portion of the socially conservative base. I suspect he will effectively handover that portion of his presidency to the judicial conservatives.

McCain is concerned with the war, spending, and the size of government. The judiciary is not in his sights. Still he know how powerful the issue is and I don't think we have to worry about his nominees. It will be his concession to the base for a victory. Look for a strong conservative to head up the AG office and he or she will control the nominating process.

I recall years ago reading about McCain saying he would like to see Bruce Babbitt become Chief Justice of the USSC. It is possible that I might not recall his words clearly since it was so long ago, but I do have this recollection because it struck me at the time as such a ghastly thing. I know he is a big fan of O’Connor, and although one might dismiss all this as an Arizona home-town preference, it is difficult to imagine someone appointing justices like Scalia and Thomas, or even Roberts and Alito if he holds high regard for the jurisprudential inclinations of the likes of Babbitt and O’Connor. He at least owes us some explanation since the only good choices out there are ones that will obviously require a fight with some of his old buddies in the Senate. Would McCain fight to get another Scalia confirmed? If not, how far would he go, and for what kind of nominee?

I seriously doubt McCain said that about Babbit, but if he did, we just need to get over it. He's repeatedly said he wants another Roberts or Alito. He's pro-life and wants Roe vs. Wade overturned. If elected, he knows he will owe it to the conservatives and will come through on a nomination. It's very likely he will be the nominee and we need to get on board. The most conservative commenter at NRO is Ramesh and he supports McCain. I'm a Fred guy, but I could easily go for McCain.

It's about the Supreme Court.

Two major liberal Supreme Court commentators say that the liberal side in Baze didn't do too well yesterday. For such an admission, they must feel pretty sure that they will lose this case.

1) Dahlia Lithwick

http://www.slate.com/id/2181491/

"Representing two Kentucky inmates who are challenging the state's lethal injection protocol is Donald B. Verrilli Jr. of Washington, D.C.'s Jenner & Block. Verrilli goes in knowing that at least four justices voted to hear this case after the Kentucky Supreme Court found in 2006 that the state's lethal injection protocol did not violate the Eighth Amendment. Four members of the court may have thought at the time that this was the case that would trigger the big national moment of reckoning about capital punishment. By midmorning, it's evident somebody miscalculated."

2) Linda Greenhouse

http://www.nytimes.com/2008/01/08/us/08scotus.html?ex=1357448400&en=027f...

"...opponents of the American manner of capital punishment made little headway Monday in their effort to persuade the Supreme Court that the Constitution requires states to change the way they carry out executions by lethal injection."

Courtesy of Volokh.com and How Appealing, listen to this terrifying example of judicial vetting during the Ford administration:

http://www.law.com/jsp/article.jsp?id=1199441125386

"Stories surrounding judges' appointments are always good fodder for oral historians. Schwarzer, a Ford appointee, said he voted more for Democrats than Republicans. But when a friend in Mill Valley, Calif., ran for the county's board of supervisors in the 1960s, Schwarzer and his wife registered Republican to give him two more votes in a contested primary.

They never changed their registration. So when political operatives did background checks on him, he came back a Republican, making it OK for Ford to appoint him."

Ford said until his death that he was proud of Stevens and would appoint him all over again.

The R’s primary season has only just started, and we have Iowa going to one candidate, New Hampshire going to another, and it looks like Michigan could go to yet another, and South Carolina going to the guy who won Iowa. Then we get to the big states that could very well defy the prior states. There’s no use in jumping on any bandwagon so soon, lest we get tossed along the way. We should just ask ourselves who actually most deserves our support, who can we most trust to be a good Nominator in Chief. If that candidate has to drop out later and we have to support someone less than desirable for the sake of choosing the lesser of two evils then we can cross that bridge when we get there, but until then lets just buckle up, ‘cause it’s going to be a bumpy ride.

In general, I think politicians are loathe to admit making mistakes. Specifically, I think this is the reason why Ford never disowned Stevens, and why Bush I has never disowned Souter. To do so would be to draw unwanted attention to their possibly faulty judgement and/or leadership skills. Some presidents like Eisenhower admit their judicial mistakes, most don't. Did Nixon ever bad-mouth Blackmun or Powell?

Before talking about the judicial nominees, who do you think McCain and Rudy, the two most likely R nominees, would choose as their running mates?

I think you are right. Most telling to me is that the petitioners failed to provide a lot of the information being sought by justices on both sides. My fear now isn't that petitioners may win the case, but that the case may be remanded for further information (which will keep the de facto moratorium in place for years according to Scalia).

I thought the govt's attorney made a strong point though, that we don't have a history of returning cases when the petitioner fails to provide information (in this case a comparative analysis of other drig protocols).

"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe

BoBo,

I'm pretty certain I've read somewhere that Bush 41 has explicitly bemoaned his appointment of Souter as a mistake.

That's an interesting question which I often find myself considering. Would they go with one of the other current candidates, perhaps southerners like Thompson and Huckabee, to help shore up the southerners, evangelicals, and other conservatives? Or do they go after certain appealing governors, like Mark Sanford (S. Carolina), Tim Pawlenty (Minn), Sonny Perdue (Ga.), or Haley Barbour (Miss)? I find Sanford and Barbour to be particularly impressive. I also like Sarah Palin (Alaska), who is young, attractive, bright, conservative, a fighter - oh yeah, and a woman. She might be considered a bit inexperienced, but that hasn't hurt B. Hussein Obama, has it?

I've also heard some talk of Sen. Judd Gregg (N. Hampshire), who is moderately conservative and is a solid senator who also has been a governor and congressman. I'm not sure Gregg adds anything to a Rudy/McCain ticket. He might be more appropriate for a Huckabee or Thompson running mate.

I THINK AS BILL KRISTOL SAID, IT'S MCCAIN AND/OR HUCKABEE

RUDY IS IN DEEP TROUBLE. HE IS NOT EVEN TRYING IN MICHIGAN OR SOUTH CAROLINA AND MOMENTUM IS EVERYTHING

I DO AGREE THAT ROMNEY AND THOMPSON ARE IN BIG TROUBLE

Romney won the Wyoming primary which got little media coverage. He also had solid 2nd place finishes in both Iowa and New Hampshire. Thus Romney has 30 delegates, Huckabee 21 and McCain 10 (see link below).

I agree that Thompson is done.

http://www.cnn.com/ELECTION/2008/primaries/results/scorecard/#val=R

I think the only one of the field that gets the VP slot is Rudy. If he is the VP, then Pawlenty is a possibillity, possibly Frist, Barbour, or even Santorum.

I do not think Rudy is in trouble b/c he still leads in FL. Even if that is his first win, does anyone doubt he wins on 2/5/08 in NY, NJ, PA, and CT? What about IL and CA? You need a ton of $$$ to advertise there. I think it is McCain or Giuliani. If you know you won't win in certain states, why even spend so much $ there?

"There is no reason to believe BCFR will be his main agenda when selecting a justice for the Supreme Court."

Let's see -- it is his prime example of a major accomplishment, and oh, yes, when Wisconsin Right to Life sued challenging the law, McCain intervened as a defendant to help the poor, underfunded, and underlawyered Federal Election Commission defend the law. (sarcasm meter now running)

Obviously, thinking that McCain will want to defend it from attack in the Supreme Court is delusional. (sarcasm meter spinning like a top)

And, of course, McCain "will effectively handover that portion of his presidency to the judicial conservatives" -- he has always been so in tune with the core conservatives of the party in the past. (sarcasm meter reaching new level of human impact on global climate change)

If you want a half-donkey, half elephant president, just say so, but please don't treat the rest of us like rubes in the process.

http://www.whitehouse.gov/news/releases/2008/01/20080108-7.html

"On Monday, January 7, 2008, the President signed into law:

H.R. 660, the "Court Security Improvement Act of 2007," which bars possession of dangerous weapons, in addition to guns, in Federal courts; provides for other protections for Federal judges and other Federal officials; authorizes grants for programs to increase court security; and increases penalties for various violent crimes against the immediate families of Federal officials..."

This means that the D.C. Circuit and Ninth Circuit will officially exchange one seat next January. Because of this, I am sure that Bush will not nominate anyone to the 12th D.C. Circuit seat. That leaves only two more COA seats that need nominees: Trott's Ninth Circuit seat and Luttig's Fourth Circuit seat.

In addition, with the passage into law of this act, let's hope that Keisler's nomination will now get some positive action in the Senate.

for McCain, I've long thought MN gov. Pawlenty was most likely, but he and Huckabee have been very chummy lately, so he's a possibility. 'm also starting to think Romney would also make a good fit for him, though they don't seem to care much for each other. and, I'm not sure if they get along, but seeing as I've long thought she'd be a good addition to the ticket, but not a great fit for my candidate of choice, Romney, but what about McCain/Rice? McCain shold NOT pick a Senator as veep, especially one from a state without a GOP governor. Lieberman MIGHT be a possibility, since Gov. Rell could exchange the seat we'd lose (McCain's own, to Gov. Napolitano's Dem replacement pick, which is the biggest reason I'm antsy about McCain becoming President, in a year we stand to lose a couple seats) with a Republican.

someone above mentioned Judd Gregg, and he'd probably be a good pick for Huckabee, but I'm not sure off the top of my head whether NH's gov. is a Rep. or Dem. not sure who else would make a good pick for him.

for Romney, Govs. Sanford or Barbour would be good picks. Pawlenty might work for either him or Huck too. regional balance would make a mid-western or western running mate ideal for either, though I can't think of any Western candidates off the top of my head. perhaps Duncan Hunter, though Homeland seems a natural spot for him.

How about the most popular governor in America?
http://www.ktuu.com/Global/story.asp?S=7533352

That's what I'm talkin' about! She's pretty hot and conservative! Who would ask for anything more??

You're anonymous, so you can say stuff like that.

Michael Steele also seems like a decent VP possibility.

I think Rudy needs someone with more foreign policy experience, having been only mayor. I think Frist (ick) or Santorum. For McCain, Rudy, Barbour, or Pawlenty I think would be nice.

Frist seems like a possibility, given his experience and likability. While I loved Santorum as a Senator, he's just not a realistic possibility on a national ticket. He lost in a big way his Senate seat, and he would be demonized as radically ultra-conservative, despite the falseness of those claims. I would love to see Santorum back on the national scene, perhaps as a Cabinet member: Secretary of State? It would be nice to have a strong conservative at State to help clean up that cesspool. How about Chief of Staff?

Good call, Andrew. I think Steele would be a great idea, but does he have enough in the way of objective experience?

I'd also love to see Ken Blackwell get into national politics, and he too has the credentials to be in the VP discussion, perhaps more so than Steele.

A McCain - Huckabee ticket makes a lot of sense - They seem to actually like each other and get along. I think their views are also somewhat similar. But Pawlenty as VP would probably ensure MN, WS and Iowa into the McCain column and ensuring a McCain victory in the even that McCain was not leading his Democratic rival. But McCain would beat any Democratic nominee I think.