How to Choose a Supreme Court Judge

Most discussions of which Supreme Court judge to appoint often revolve around the position that the proposed indivdual is likely to take on a set of 'hot button' topics - abortion, 'right to die', the death penalty etc. There are also some euphemisms for this such as asking about the 'judicial philosophy' of the proposed candidate. In fact, judges don't seem to entirely willing to meet in full any expectations that may be engendered as regards on the basis of their apparent 'judicial philosophy'. For example, Rehnquist's theoretical position on the Miranda rules on the rights of suspects weren't entirely reflected in his decision not to overrule that precedent in Dickerson.
This type of reticence is probably explained by the fact that judges can often perceive that there is a 'wider picure' that sometimes mitigates against a single -minded pursuit of one's own views even where the law does indicate scope for discretion. For example, in Dickerson, Reinquist was apparently swayed by wider arguments of legal certainty. Such considerations suggest that there is a danger of over-emphasizing the political aspects of these appointments (the fact is that the incumbent president will hold most of the best cards so far as this dimension is concerned). Maybe a more naive approach is preferable in which proposed candidates' legal credentials (in terms of their general nous and ability to take a wider view of a problem) are genuinely seen as the key aspect of the appointment so far as public scrutiny of that process is concerned.

God told me to do it...

The BBC is set to allege in a documentary that Bush claimed, in discussion with a Palestinian delegation, that God himself spoke to him, and told him to invade both Afghanistan and Iraq - and to secure a Palestinian state. As the Independent notes, such a claim is hardly implausible given what is known about Bush's religiosity; if it is true, however, it is terrifying. What resonance will such claims of a "Holy War" find in even the most moderate Muslim communities? And what chance does international law have of providing any constraint if the world's most powerful man genuinely and fervently believes himself to be on conversational terms with the Almighty?

US Supreme Court and Euthanasia

The US Supreme Court will go back to the issue of physician assisted suicide in a forthcoming case, Gonzales v. Oregon, 04-623.

The new court will therefore immediately tested on one of the most framatic issues. This will be an occasion to read the opinions of both Justice Roberts and Justice Myers.

Oregon is the only American state to make physician assisted suicide permissible by legislation. The only other States in the world being Belgium and Holland.

For a short report, please read here

Iraqui Referendum on the Constitution

Some messing up in Iraq prior to the referendum on the Constitution. Please read here

The international community has criticizrd the government for changing the rules of the referendum. As a consequence, the government backed up. Read our previous posts on the Iraqui Constitution, here, here, and here.

Justice without values?

Why is the American press so relieved for the nomination of Justice Miers?
Ok, she doesn't appear to be a right wing extremist, but hey, is that a relief? First, nobody seems to know what are her deepest convictions. Secondly, she has never been a judge, so there is no guarantee that a good lawyer can become a good justice. The reason is precisely that a justice in the US Supreme Court has to dwell with a number of value-decisions, which does not seem to be Mrs Miers cup of tea. As for Justice Roberts, commentators say that she'll be a good, pragmatic, lawyer, working on a case-by-case basis. Again, is this a guarantee of fair decisions? Far from clear... O'Connors might be remembered as a non-ideological justice who determined the outcome of many cases by her swinging. It is difficult to assess the long term impact of her swinging, though. It may well be that so much swinging leaves too many ambiguities that can be exploited by those who are more ideologically minded. The senate will have to press Mrs Miers more than it did with Justice Roberts, because the US do not want to go to justice blind-folded when it comes to its fundamental rights.

A little more on the DUP and decommissioning...

A quick update on my post below on the reaction of Ian Paisley's Democratic Unionist Party to the recent finding by the body set up to oversee the process of IRA decommissioning that its goals had finally been completely achieved. Paisley initially claimed that the two witnesses - a protestant minister and a catholic priest, chosen to appeal to both sides in the conflict - had in fact been "nominated by the IRA", thus casting doubts on the impartiality of their views and the reliability of their findings.

After the UUP (the more moderate Unionist Party) denounced this as "sad", the DUP have changed tack a little. Keen not to openly accuse the protestant witness in particular - who has openly stated "I never felt as right about anything as I felt about this" - they have hit on a new formula for perpetuating the conflict for the foreseeable future. They now argue that "No-one is disputing that the two men are faithfully reporting what they saw. The question is, did they see it all?"

At first glance, this looks like an entirely respectable question to ask. The IRA, after all, is a terrorist organisation; as such, it is certainly not above lying in order to achieve political goals. However, a moment's reflection is sufficient to illustrate why this objection, given the context, is both dangerous and disingenious.

It is dangerous because, if accepted, it gives the DUP licence to perpetuate the conflict as long as they see fit. They work, it must be remembered, on two basic principles in this context: 1) the IRA are never to be trusted; and 2) Nobody but the IRA can ever know for certain what weapons they have. These two premises alone mean that it is extremely unlikely that the DUP will ever declare themselves fully satisfied with an act of decommissioning, or at least one that is politically achievable. This, in their view, also gives them carte blanche to continue to refuse to enter into devolved government with Sinn Fein (and it is important to remember, in this regard, that these are the biggest Unionist and Nationalist parties in Northern Ireland at present). The IRA, in its view, has called an end to conflict and disarmed fully, to the satisfaction of the body set up to verify this. However, it may not take much political gamesmanship from the DUP to convince them that there proclaimed faith in the political process was misplaced, and to send us back to square one.

The DUP's new approach is also deeply disingenious, as it ignores the context within which decommissioning has taken place. The body, led by General de Chastelain, was set up precisely to overcome this difficulty created by the fact that only the terrorists know for sure what weapons they have, the witnesses were brought in to ensure a degree of transparency to the process. Paisley's attack on the latter as "IRA nominated" was, of course, intended to remove this transparency, and thus all legitimacy, from the body's findings; however, he has backed away from that, and been left with the insinuation that "they might not have seen it all". Such an argument can thus only be taken seriously by those with a complete (and willful) lack of understanding of the complex substantive and procedural mechanisms that have been set up to ensure that we could be as certain as possible that IRA disarmament was genuine and complete.

The churchmen said in a joint statement that "Beyond any shadow of doubt, the arms of the IRA have now been decommissioned". Reverend Harold Good, the protestant witness, has since acknowledged that it is, of course, impossible in these situations to be absolutely certain of what has happened; this is why particular processes and institutions are set up in the first place. He is also adamant, however, that the inevitable presence of this modicum of uncertainty cannot be allowed to continue to hamper political progress in the manner sought by the DUP. He has noted:

I'm prepared, if it were ever proven to me that I had been fooled in this... well, that's the risk one takes... I don't believe that I have been, not for one moment, but we have to be prepared to be fools for the sake of the greater good.

Although this kind of language does risk playing into the DUP's hands, it must, again, be taken in context: that unavoidable uncertainty must not be allowed to hamper progress that has been achieved beyond all reasonable doubt.

Apologies...

... to those who have left comments to our posts on here in the past, and to those who may have done so in the near future. As some may have noticed, we have had a spate of adverts posted masquerading as "comments"; and it was getting to the stage at which we felt it was adversely affecting the quality of the site. The comments feature has been disabled while we look for a better solution; we hope to have it activated again as soon as possible.

Some current uses of UK anti-terror laws...

"If you've nothing to hide, then you've nothing to fear" runs the popular, logically-suspect response to those who worry over the civil liberties implications of the current raft of new powers that have been awarded to police recently. This argument is, of course, as spurious as it is superficially rhetorically appealing; we should therefore be grateful that the UK force seems intent on doing its utmost to demonstrate this by making use of their new powers in situations that can only be described as absurd.

Tony Blair cannot have been pleased, for example, to learn that the public relations nightmare that surrounded the ejection of an octogenarian from the recent Labour Party Conference, for heckling the Prime Minister over Iraq, was to be made worse by the police reaction to his attempts to return to the conference hall. They detained him under the "stop and search" powers of the Terrorism Act of 2000; this, of course, was "intended" to allow police to detain suspected terrorists for the purpose of searching them. It was used, however, to stop an eighty year-old Labour Party member from gaining access to the Party Conference.

The Guardian reports also that another elderly protester was stopped, and searched, under the Terrorism Act. He was apparently wearing a T-shirt proclaiming that Bush, Blair and Sharon were leaders of "Rogue States" (an idea proposed by Chomsky, amongst others), and demanding that they be tried for war crimes. Police records indicate, apparently, that the grounds for intervening were given as "carrying placard and t-shirt with anti-Blair info", the "purpose" of the search being, quite simply, "terrorism". We really need no reductio here in order to arrive at the absurdum.

Of course, neither man was arrested following their brush with anti-terror laws; this, however, is beside the point. It remains abundantly clear that the police are prepared to use these powers in order to control, frustrate and intimidate those who seek to make their voices heard in exercising basic political rights. And this is a dangerous game; as, the more difficult and ineffective peaceful protest becomes, the more appealing - and legitimate - other methods of making a point inevitably appear.

Turkey and Europe

Turkey is a barometre of European weather at the moment.
After the French and Dutch Referenda, Europe is caught in a stagnant phase:
Everybody wants to move somewhere, but nobody wants to take risks. Turkey is a big question mark, but there are some indications that if we took the step of bringing turkey closer, we could be repaid with a success. A risk, however, needs to be taken.

Lessons from the recent past have to be taken into account. For example, enlargement is perceived by everyone as a crucial constitutional decision. As such, it cannot be taken from the top down, but it should be widely discussed in public. Hopefully, this will not be disregarded.

To bring Turkey in Europe would mean more stability. It would send a clear sign that Europe welcomes culture that do not fall exclusively under the christian bless. It would help negotiations concerning Cyprus. It would soothe relations between Greece and Turkey. It would give European muslims, especially turkish one, a sign of acceptance and recognition.

It is, therefore, the moment to dare. Because Europe must give strong signs right now. Otherwise, it will be confined to a role of minor importance

UPDATE:

EU finds deal on Turkey. Austria, the only opponent, accepted that Turkey may start negotiations.

Ronald Dworkin on Justice Roberts

The New York review of Books just published an interesting article by R Dworkin on Justice Roberts.

Dworkin examines Roberts' constitutional philosophy as resulting from previous opinions and Senate hearings, and his conclusion is that: " Roberts succeeded in leaving it entirely unclear [...]." Dworkin blames both Roberts, for his failure to disclose his broader constitutional views, and the Senate, for not pressing harder on these important issues. Dworkin then concluded that:

We must hope that it has learned from its failures in the Roberts nomination. It should demand to know the new nominee's constitutional philosophy. If he or she refuses to disclose it, or claims that it is only to respect the rule of law and adds nothing more helpful about what that means, then its constitutional duty is to advise the Senate to reject that nominee as either disingenuous or incompetent.

Interestingly, Dworkin's main worry does not concern cases such as Roe v Wade, or other controversial precedent of the US Supreme Court on matter of civil liberties as applied to US citizens. Instead, he worries that the main source of worries will come from the issue of the 'President's power to conduct his war against terrorism without regard for either international law or the traditional rights of prisoners.'

According to Dworkin, Justice Roberts record is worring because 'Roberts joined an opinion declaring that the courts must show great deference to the President's opinion that international treaties, including the Geneva Conventions, do not protect the Guantánamo prisoners.'

Varieties of Secularism

In an earlier post, Lorenzo drew attention to a recent paper by Thomas Nagel on 'Secular Philosophy and the Religious Temperament' on the NYU website. The paper deals with a range of issues relevant to the debate on whether European constitutionalism requires a religious or secular ethic. One of the striking themes of that debate (amongst many others) is the fact that the 'secular' alternative to the relatively well defined religious agenda is often underelaborated or even elusive. Nagel's paper sheds light on this debate by looking at whether there is a secular alternative to religion that is capable of answering what Nagel terms the 'cosmic' questions, normally posed and answered within religious traditions. The interest of Nagel's paper is that he looks to see whether secularism is capable of answering the sorts of questions relating to the deeper purpose of human life and its relationship to the cosmos that underpin religion's claims to public attention. In that sense, Nagel looks at whether secularism can play and win 'away' against religion. Not surprisingly, many possible secular combinations don't come away with a win - at best existentialism emeges with a 'no score' draw - heroic resignation to the weight of the 'big' questions combined with a sober recognition that there are no real answers to it, at least formulates a plausible and intellectually coherent 'unit' of attitude and belief. Humanism is perhaps controversially rejected, though ultimately I think plausibly, on the grounds that its human-centred concerns arguably do not provide a broad enough canvass on which to develop a suitably 'cosmic' secular ethic. One of the options that Nagel surprisingly doesn't discuss is the Hegelian-Marxist tradition of secularism. No doubt Nagel, like many others, would view Marx's triumph of the proletariat in the same light as the religious responses to the questions he raises. Certain of those operating within that tradition feel the same way. Most notably, the Frankfurt school. What is worth noting though is the fact Theodor Adorno, one of the leading lights of the Frankfurt School, also launched a critique of the existentialist movement. In The Jargon of Authenticity he warned against the dangers of embracing existentialism as a viable ethical alternative to the sociological failure of Marxist theory. For him, the Marxist ideals that underpinned the critique of capitalist modernity remained valid; existentialism, faced with the same problems, was an attempt, especially in its German varients, to retreat into a concern with the 'interior' life-world of the individual that was just as illusory as the 'happy endings' contrived by the culture industry. Where does this leave us? If we accept the Hegelian-Marixist critique of current structures but find the solutions it offers implausible or inadequate then an individualistic existentialism seems a less than heroic ideal. Perhaps secularism's elusive away win is further off than some might have thought!

The French Minister of Justice trying to avoid judicial review of a bill

In France, the judicial review of legislation takes place on demand of the President of Republic, the Presidents of the Parliament or 60 members of one of the Houses of Parliament. It has to be activated before a bill is promulgated by the President. And once it has become enforceable, a bill cannot be struck down by a Court, even in cases of patent unconstitutionality. This system of judicial review of legislation is therefore said to be strictly a priori.

This type of institutional design makes it easier for members the political class to protect a piece a legislation they fear would be found unconstitutional by the judges. In order to keep a bill out of reach of the Constitutional Court, a very large majority of the parliamentarians is however required as 60 of them are enough to start the procedure. It is now very rare that, on controversial issues, this number isn’t reached and thus the Constitutional Court is able to check the important bills. It has happened in latter years that a popular bill was promulgated without being reviewed because the opposition didn’t want to take the responsibility of starting the procedure that would end with the invalidation of key provisions. In those rare occasions, constitutional scholars and journalists denounced a secret pact between majority and opposition to do away with fundamental rights. In other terms the strategy was never reviled by the political actors themselves.

Three days ago, the Minister of Justice, out of all Ministers, publicly advocated this strategy. In fact he tried to force the pact on the left wing opposition more than he proposed it. The Parliament is about to adopt a bill on recidivist sexual-delinquents which will impose them to ware an electronic bracelet. In apparent contradiction with the constitutional principle of non retroactivity of legislation, this new rule would be applicable to delinquents who have already committed these types of facts. Acknowledging that there was “a risk of contradiction with the constitution” he explained that he was willing to run it and that “all members of Parliament could run the risk with him by not asking the Constitutional Council to review this piece of legislation and that those who would demand it would be taking the political and human responsibility of impeding the application of the new bill to the stock of imprisoned sexual delinquents.”

Now the President of the Constitutional Council it self has spoken up arguing that respecting the constitution is not a risk but a duty. The oppositions had to claim that this is an unacceptable unconstitutional behaviour etc. And now it has really no choice but to send the bill before the Constitutional Council.

What conclusions can be drawn from this amusing episode? If the opposition intended not to demand the review of the bill, then the comments of the Minister of Justice were not the smartest things to say. If on the contrary it had its mind set on demanding the review, then the Minister’s comments makes it easier as it is now possible for members of the opposition do it proudly without risking to put off the voters even if the bill is popular (which I don’t know that it is) because they will appear to be heroes who will stop at nothing to protect the constitution against the barbaric members of Government.

In all cases then, Monsieur Clément miscalculated his move. He is one of Sarkozy’s buddies and I hope that he will make many more mistakes of the kind before the presidential elections.

Will a Justice Roberts change the way the Supreme Court views Foreign Precedent?

Hidden beneath the rhetoric over abortion, the right to die, and how John Roberts has been able to keep such a pristine public record was a subtle discussion on how a Justice Roberts would view the appropriate role of foreign law precedents in US Courts.

As noted by the Washington Times, this was Roberts' response to questions regarding the use of foreign law as precedent:

Judge Roberts also indicated he would firmly oppose the movement - aggressively supported by several current justices - to look to foreign law as a guide to interpreting our own Constitution. This use of foreign law, Judge Roberts pointed out, "allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent - because they're finding precedent in foreign law - and use that to determine the meaning of the Constitution."

I think this is a hard argument to rebut. There is ample evidence that when given the opportunity to support an otherwise flimsy argument that judges will use any device available to them to prop that argument up. Legislative history has been a battle ground in this sense for quite a long time, but it now seems that the use of foreign law precedent is the wave of the future.

The IRA disarm...

... and Paisley cries foul.

Despite the fact that the IRA has called an end to its paramilitary activities, and has decommissioned its weapons to the full satisfaction of both the independent commission set up to oversee the process by the Good Friday agreement, and two appointed clergy men (one from each "side": a protestant minister and a catholic priest), the leader of the DUP Ian Paisley has claimed that there has been a "cover up", and has refused to even countenance re-entering into devolved government with representatives from Sinn Fein.

The commission's report concludes "In summary, we have determined that the IRA has met its commitment to put all its arms beyond use in a manner called for by the legislation". Both witnesses have expressed in the strongest possible terms their satisfaction with the process. Paisley, however, will not accept this; and this should come as no surprise. He has nothing to gain, and everything to lose, if the peace process in Northern Ireland should come what most of the rest of us regard as a successful end: the removal of paramilitary violence from the political sphere. Much of Paisley's popularity rests on the fact of that conflict; he has thus a vested interest in not allowing it to end.

In this regard, the reaction of the UUP to this is encouraging; one Assembly member described Paisley's attempt to cast apsertions on the integrity of the decommissioning committee as "sad". In terms that also echoed the conclusions of the report, the UUP also called for similar action from the Loyalist paramilitary groups, who had claimed they would disarm should the IRA do so. Paisley, predictably, has had nothing to say on this.

It is tempting to view Paisley's invective as simply the ravings of an anachronism who knows that his time has, finally, come, and thus ignore them. To do so, however, would be to overlook the fact that, as of earlier this year, the DUP became the biggest Unionist party in Northern Ireland (Sinn Fein became the biggest nationalist party). While someone like Paisley remains in a position of such power, the prospects for the region, in particular in terms of the reinstatement of devolved government at Stormont, look bleak indeed.

Bye Bye Tony!

Tony Blair had 'pre-announced' that he will leave his post at the latest in 2007. This event triggers a number of fascinating questions:

1- Will he keep his promise? Tony, in the past, has announced many things that have never come true. One example? The referendum on the euro...

2- Who will be his successors? Gordon Brown is obviously in pole-position but many have voiced their disappointments especially after Brown declared that he will stick to the implementation of the Constitutional reforms Blair initiated. (Frankly, the criticism against this idea are laughable. Can Brown depart in any substantive way from the path taken by HIS government?)

3- What will Tony do afterwards? He is still very young and ambitious, so we really wonder what he has in mind. Is he thinking at the European level or at the international level. Will he do like his friend, Bill Clinton?

Here we have a number of exciting questions that will be answered on this blog!

Iraqi authorities assert independence in Basra

During the last week or so, the relations between UK forces in Basra and the local authorities (and the locals themselves) - once held up as an example to US forces, by the UK media at least, of urban military policing, have hit rock bottom. The incident was sparked when two men - believed to be undercover SAS operatives - were detained after a confrontation with local police; a confrontation in which, it is alleged, the men killed an innocent Iraqi civilian.

The Guardian reported that, after the incident, the locals took to the streets with loudspeakers, demanding that the men be detained an put on trial. The UK military then took the apparently astonishing decision to storm the jail in which the men were being held, and liberate them by force from the Iraqi authorities. Small wonder that those same authorities have since decided to cease cooperation with UK forces.

The row caused by this action, which, incidentally, was staunchly defended by the UK government as "swift and decisive action in very difficult circumstances", has been reignited now by the reissuance by an Iraqi judge of warrants for the arrest of the two men. The UK military continue to claim that, under the terms of an agreement between the two governments, British soldiersn are immune to prosecution. Interestingly, the judge in question has told the BBC that there is reason to doubt that the men in question are, in fact, British; this, he claims, is sufficient to give Iraqi courts jurisdiction rationae personae over them.

An interesting development, all things considered. The decision by UK forces to storm the prison to free the men seems astounding, both in terms of increasing difficulties with the local population, and also, of course, given that Iraq is, nominally at least, a "sovereign state". The reaction from the local authorities would seem to suggest that they are not, however, going to let the occupying forces have absolutely everything their own way. We'll see how things pan out, though...

Italian Melodrama at the IMF

More on the crisis of the italian government, this time in english.

The international credibility of this government, if there was any left, is completely jettisoned. The president of the Italian central bank, Fazio, who was in the eye of the storm during the summer, is at this very moment in Washington for the yearly meeting of the IMF. Berlusconi has just declared that Fazio does not have the support of the government anymore. His legitimacy has been put in doubt.

As a consequence, Italy is now represented in Washington by a person who is in conflict with the government; moreover, he is also in an open conflict with Giulio Tremonti, the newly appointed minister of Economic Affairs, who had been dismissed in the past from Berlusconi's government precisely because of the pressure exercised by Fazio.

The two men, Fazio and Tremonti, are in Washington at the IMF to defend the interests of Italy. Could something similar happen anywhere else in the world?

Secular Philosophy and the Religious Temperament

I warmly invite you to take a look at the website of the NYU Colloquium in Legal, Political and Social Philosophy. The colloquium is run two leading writers: Ronald Dworkin and Thomas Nagel.

A very interesting article by Thomas Nagel has just been posted on the following issue: 'Secular Philosophy and the Religious Temperament.'

Italian Drama and the Budgetary Law

More signs of the the disintegration of Berlusconi's government: The minister of economic affairs, Domenico Siniscalco, has left the government. Siniscalco does not want to embark in a furious battle over the budgetary law as he believes that this will be an occasion for the right wing government to fight over the leadership of the coalition. He's right!

There are only eight months left before the elections. No budgetary law at this point is likely to redress the poor italian economy. Hard choices should be taken, but this is not possible at the moment. Hard choices do not sell well with the electorate.

Italy is prisoner of a government whose death is dragging the country in a black hole. Elections should be held NOW!

European constitution, German election and the upcoming congress of the French Socialist party

Many people pointed out that, as Lorenzo did, that the elections in Germany raise some of the same questions as the ones addressed during the different referendums for the European constitution: the liberal turn is depicted by government parties as an absolute necessity for European countries while a strong left wing minority is fiercely opposed to it. This opposition is able, some times with the help far right racist parties, some times with the help of radical liberals, to lead to situations of blockage of the institutions.

In France, the leaders of the Parti socialiste believe that they failed in the presidential elections in 2002 and at the referendum on the European constitution last spring because of those small radical left wing parties who drew the votes which made them win before. Afraid that it will lead to more defeats in the future, the leaders of this party have realized that time had come to reposition themselves clearly on the political scale. There are those who would move in the direction of the radicals (Fabius/Mélanchon and Nouveau parti socialiste/Emmanuelli) and those who would move further away from them (Hollande, Aubry, Jospin, Strauss-Kahn). The strategy of the first group is clearly to regain the votes lost to the little parties and eventually make alliances with them. The strategy of the second group is seemingly to regain the votes lost to right wing parties and maybe to fulfil the old dream of winning over the “center”. In two months time, a congress will take place in which the Parti socialiste will decide the direction it will follow in the coming years.

Some can be scandalized that small radical parties are able to force large and respectable institutions such as the PS into tensed decision making. I think that it is great. Deciding clearly on the ideological orientations of a party cannot be bad. No matter which way it goes, it is a first positive consequence for the left wing, of the rejection of the European constitution. It might happen in Germany as well.