The Death of the Judiciary

So this was happening:

A member of the Oklahoma House drafted a resolution Wednesday seeking the impeachment of state Supreme Court justices who granted a delay of execution to two death row inmates.

Republican state Rep. Mike Christian told The Associated Press that the five justices engaged in a “willful neglect of duty” when they granted stays of execution Monday to Clayton Lockett and Charles Warner, both of whom were scheduled to be executed this month.

Lockett and Warner, who aren’t challenging their convictions, have filed a civil lawsuit seeking the source of the drugs used to execute them. Pending the resolution of that lawsuit, they asked for a stay of execution.

The Court of Criminal Appeals has said it couldn’t weigh in on the delay of execution because it didn’t have the power or the authority, so the high court said a “rule of necessity” led to its decision Monday. Under the state constitution, the Supreme Court handles civil cases while the Court of Criminal Appeals takes those involving inmates.

The Court later dissolved the stay.

At issue here is that the State of Oklahoma is refusing to reveal the drugs they use to execute people. Ostensibly, this is to protect companies that manufacture those drugs from being harassed by anti-death-penalty activists.

I’ll get into the merits of the case in a moment. But what I want to focus on is what I see as a looming threat to an independent judiciary. Over the last couple of decades, we have seen a slow push to gradually eviscerate the independence of the judicial branch. Politicians rail against “activist judges”, each political side screams blue murder when SCOTUS rules against them and now we finally have impeachment proceedings because of a disagreement with a court. And this isn’t confined to conservatives. Every time SCOTUS rules against liberals, there are cries to impeach the justices or at least limit their terms (conveniently to just after the last Republican President left office).

While these cries might be satisfying to those who rail against “activist” judges and are still fuming from either the Obamacare or the Citizens United decision, I see this as fundamentally dangerous to liberty. Because the protection of our liberty and our Constitutional rights requires an active independent judiciary. Both sides should understand this. Conservatives have won key victories in cases like Heller because the bench decided to act against the “will of the people” as expressed through their legislature. And some of our most bitter defeats — Kelo and Obamacare, in particular — have come about because the judiciary wasn’t activist enough and wouldn’t overturn a law. Liberals have also won key victories — like last year’s gay marriage decision — when the judiciary has over-ruled the “will of the people”.

In the end, this boils down less to any real philosophy about the role of the judicial branch than to whining whenever that branch doesn’t do what we want. Objecting to bad court decisions is fine. In fact, I think it’s required in a healthy Republic. But the tone of the last few years had turned away from criticism to active attacks and calls to limit the independence of the judiciary.

This trend worries me. I have expressed this concern before, but it’s worth repeating. I fear that we are slowly moving toward a regime where there is basically no one protecting our Constitutional rights. Congress and the President rarely, if ever, consider the Constitutionality of their laws. They say that’s for the Courts (in fact, Bush said exactly this when signing the blatantly unconstitutional McCain-Feingold Law). Everyone seems to agree that Presidents are just supposed to enforce the law, never bother with whether those laws violate our basic freedoms (with the exception of the occasional veto). And with the railing against courts for “ignoring the will of the people/legislature”, we’re moving away from judicial review as well. So given these facts, who the hell is defending our Constitutional rights? Jon Stewart?

This is the complete opposite of how things should be. When the government acts, the branches of our government should be like the officers in a nuclear missile silo — nothing happens unless all three turn their keys. All three have to agree that it is within the power of government; all three have to agree that it does not violate our Constitutional rights. Congress must not pass laws that violate the Constitution; the President must veto ones that do and refuse to use unconstitutional powers that the legislature gives him*; the Courts must bounce any law that violates the Constitution.

(*To be clear, this doesn’t mean the President should act on his own or rewrite laws or ignore laws. This power, which would be used very rarely, would only be used in the negative sense of the President refusing to utilize powers that he deems unconstitutional, such as if Congress suspended habeas.)

Now as to this particular case: some commentators are avoiding talking about what the criminals did. I won’t. One shotgunned a teenager and buried her alive. The other raped and murdered a child. While I am neutral on the death penalty, these would probably be the guys you would want to apply it to.

But the issue here is not the horrible crimes that these vermin committed. The issues it that Oklahoma is using a secret recipe for lethal injection — a formula that tonight resulted in the botched execution of one of the two men in this case. When the methods of execution are secret, there is literally no way to decide if it constitutes cruel and unusual punishment.

Now maybe you think with what these guys did, they deserve to suffer. But we have laws and a Constitution for a reason and that reason is to protect everyone from the excesses of government. And when you chip away at anyone’s Constitutional rights, you chip away at everyone’s. The destruction of our Constitutional liberties always starts with people who everyone agrees are despicable, before proceeding to the rest of us. Free speech killers don’t start with Sesame Street; they start with the Klan and the Nazis. Surveillance fetishists don’t start with your backyard; they start with terrorists. And attacks on the protections in our criminal justice system don’t start with some kid smoking pot; they start with murderers and child molesters. There is good reason to believe that at least one innocent man has been executed and a new study claims that one in 25 death row inmates, and perhaps more, are innocent. Do they deserve to suffer?

We can not yield on Constitutional rights, not even with these pieces of human debris. Because once the freedom destroyers gain an inch, they will ask a mile.

But … even if we posit that the Court was wrong to delay these executions, a call for impeachment is ridiculous overkill. The Court did not set them free, commute their sentences or bake them cookies. They simply delayed their executions (as it turned out, for a few days). If the Courts are in danger of impeachment every time they make an unpopular decision, we might as well just do away with the Courts. Try people on Oprah and execute them on Springer. Who cares if innocent people are killed cruelly? It’s what the people want, isn’t it? That’s what baby rapists and child killers deserve, isn’t it?

An independent judiciary is going to make some mistakes and some bad decisions. But a non-independent judiciary that is subject to the whims of the mob is going to make bad decisions constantly. We already have two of our branches constantly doing the wrong thing. Do we really need the third to join in the fun?

Ending the Mandatory Madness

This is a positive step:

Today, by a vote of 13 to 5, the Senate Judiciary Committee approved what the Drug Policy Alliance (DPA) calls “the biggest overhaul in federal drug sentencing in decades.” The Smarter Sentencing Act, introduced by Sens. Richard Durbin (D-Ill.) and Mike Lee (R-Utah) last July, would cut mandatory minimum sentences in half for some drug offenses, make the reduced crack penalties enacted in 2010 retroactive, and expand the category of defendants eligible for sentencing below the mandatory minimums. “The Smarter Sentencing Act is the most significant piece of criminal justice reform to make it to the Senate floor in several years,” says Laura W. Murphy, director of the American Civil Liberties Union’s Washington Legislative Office.

The Durbin-Lee bill does not go as far as the Justice Safety Valve Act, introduced last March by Sens. Rand Paul (R-Ky.) and Pat Leahy (who chairs the Senate Judiciary Committee). That bill would have made mandatory minimums effectively optional by alllowing judges to depart from them in the interest of justice. The Smarter Sentencing Act is neverthless a big improvement. The crack provision alone could free thousands of prisoners serving sentences that almost everyone now concedes are excessively long. It would dramatically reduce the penalties for certain nonviolent drug offenses, changing 20-year, 10-year, and five-year mandatory minimums to 10 years, five years, and two years, respectively. It would allow more nonviolent offenders to escape mandatory minimums entirely by loosening the criteria for the “safety valve,” allowing two criminal background points instead of just one.

The massive sentences given to non-violent drug offenders are a big reason we now have two million people in prison. I have no problem with courts handing down big sentences to violent criminals; indeed there are some I think get off far too lightly. But when it comes to cases of possession and small-scale dealing, I see no purpose in forcing judges to lock up non-violent criminals for ridiculous amounts of time so they can learn to be real criminals.

I’m dubious that the House will act on this. But I wanted to post this to note who is behind it. The big sponsors are Rand Paul, whom the Left assures us in an evil racist Tea Party Republican, and Mike Lee, whom we are also assured is an evil racist Tea Party Republican. In fact, Mike Lee is such an evil racist Tea Party Republican that he delivered the evil racist Tea Party response to the State of the Union which, um, railed against corporate welfare, income inequality, NSA spying and the Republican establishment.

And yet these two evil racist Tea Party Republicans are advancing an issue that is (or used to be) of great importance to many so-called liberals. Thousands of people’s lives will be improved by this and most of them are of a different color than Mike Lee or Rand Paul. Most of the communities that would benefit are of a different social class.

Guess maybe we should pay more attention to some of those evil racist Tea Partiers, huh? Seems like they might have an idea or two.

Trust Us Now?

Holy crap:

As Edward Snowden prepares to defend himself in a worldwide webinar Thursday, the Justice Department is accusing the private contractor that vetted him and thousands of other intelligence workers of bilking U.S. taxpayers out of tens of millions of dollars by conducting phony background checks.

USIS, the giant private contractor that conducted the background checks of both Snowden and Washington Navy Yard shooter Aaron Alexis, is accused in a Justice Department lawsuit filed Wednesday night of conducting 665,000 fake background checks between 2008 and 2012.

“USIS management devised and executed a scheme to deliberately circumvent contractually required quality reviews of completed background investigations in order to increase the company’s revenues and profits,” said the Justice Department in its complaint, which was filed in U.S. District Court in Alabama.

This is not the first time we’ve seen this sort of thing — remember the Obamcare navigators? But the epic scale of this deception is amazing. Not just because of the crime that was committed — but because our government needed 1.6 million background checks in just four years. That should give you an idea of just how massive our federal civilian work force is.

But this again illustrates why “just trust us” is not good enough for government surveillance powers. How many of these 665,000 had access to sensitive, classified or personal information? How many have security clearances? How many had access to the NSA’s databases? We are constantly reassured that our government’s power is double-checked and that there is a careful system of checks to make sure it isn’t abused. Then we find out they keep information away from federal judges, cover up sharing of information with the FBI and DEA and faked 40% of their background checks.

Feeling safe now?

Crumbling The Filibuster

Well, this happened. The Senate has voted for a partial nuclear option on the filibuster. Legislation and Supreme Court justices will still require 60 votes. But other nominees will only need a majority. Normally, senate rule changes require 67 vote, but Reid used a different procedure to pass the change 52-48. The primary issue here was the filibustering of three judicial nominees to bring the DC Circuit to its usual contingent of 11 judges.

As you can imagine, the Republicans are furious and are threatening future actions, including other rule changes by majority once they have the Senate back. It also being pointed out … quite correctly … that the Democrats are raging hypocrites on this subject, having spent the Bush years yammering on about process and sacred institutions and traditions. It was only when their judicial nominees were stalled that the suddenly discovered majoritarianism. I can almost guarantee that when the Democrats lose the Senate, they will unpass this rule change during the lame duck session than scream bloody murder when the Republicans try to restore it.

As for the rule change itself, my reaction is that I wish the Republicans had done this ten years ago. They sorta did when the Gang of 14 got judicial nominees through without compromising the filibuster itself. But I wish they’d made this kind of rule change to solve the problem long-term.

The filibuster is a critical check on the majority. It has stopped some of Obama’s dumber ideas (like card check) and almost stopped Obamacare. But I draw the line when it’s being used to hold up nominations that the President is obligated to make. There are nearly a hundred vacancies in courts around the country — vacancies that are slowing court cases and hurting businesses that need legal issues resolved. I spent most of the Bush years attacking Democrats for holding up Bush’s nominees (Janice Rogers Brown in particular); I’m disappointed that the Republicans decided to play the same game.

(While I’m on the subject, I do want to take on one talking point that the anti-filibusterites suddenly discovered when it was derailing their agenda. They frequently point out that the filibuster would theoretically allow senators representing 20.5 states and as little as 11% of the population to stop the Senate. But that has nothing to do with the filibuster; that’s the way the Senate is constructed. It is also theoretically possible for senators representing 25 states and 18% of the population to constitution a “majority”. The point of Senate is not to represent the people; it’s to represent the states. I have a long post cooking on the “scrap the Constitution” meme that has recently emerged on the Left.)

I don’t like the way this has been done. The Republicans are right that the Democrats have opened a can of worms here to further rule changes and the Republicans going by the absolute strict letter of Senate procedure to slow business even further. The way this should have been done is with another Gang of 14.

The Big Deal

Grab onto something, folks. I’m going to agree with Mark Thiessen (H/T: Harley):

Quick: What do Republicans want in exchange for ending the government shutdown? If you know the answer, congratulations — because Republicans sure don’t.

we’ve gone from defunding Obamacare . . . to delaying Obamacare . . . to delaying parts of Obamacare . . . to funding the government piecemeal without touching Obamacare at all. If Republicans have already conceded the defunding of Obamacare, what’s the point of keeping the government closed? Why on earth would the GOP pass “clean” bills to fund individual parts of the government but not the whole government?

This business of passing funding bills for little piece of the government has been driving me a bit crazy. In a rational budget process — even in a shutdown — you would carefully pick which parts of the government to fund. But it’s clear that the strategy has been to identify whatever parts of the government are getting the most complaints (NIH, park service, etc.), pass a tiny bill to fund them and then go on television to bash the Democrats for not assenting to it.

That wins the media cycle but it’s no way to run a government. It’s completely arbitrary. It means that we try to divert funds to highly visible things like the Park Service, which would be one of the last things I would fund right now. More, it encourages partially shutdown services to deliberately make things worse to get their funding restored. Gain Nortion, Bush’s former Interior Secretary, describes how the Park Service has a long history of deliberately inconveniencing people whenever their budget is threatened (this weekend, they have “closed” the Vietnam Memorial — which is a wall that anyone can visit 24/7). No doubt, the Administration doesn’t mind this sort of visibility. But by putting forward little bills to fund whichever government agency is making the loudest noise, the GOP is encouraging this sort of behavior.

Back to Thiessen:

It calls to mind the episode of “Seinfeld” where Jerry and George are coming up with an idea for a show to pitch to NBC — and decide it will be “a show about nothing.” That’s what this standoff has become — the Seinfeld Shutdown, a shutdown about nothing.

Thiessen, however, is not just throwing bricks. He has an alternative proposal: that instead of using the shutdown or the debt ceiling for leverage, the Republicans use the Budget Control Act (aka the sequester). Grover Norquist is on the same page:

I think the original plan for the Republicans was to move the continuing resolution past the debt ceiling and then to sit down with Obama and decide whether he would be willing to trade some relaxation of the sequester for significant reforms of entitlements. That was something Obama might well do. Democrats in the House and the Senate are very concerned about caps and limits in sequestration. Republicans could get significant long-term entitlement reform — all on the spending side, I’m assured by leadership — for some relaxation of sequester.

See, this is what an actual compromise would look like. The Republicans are running around saying Obama won’t compromise because he won’t delay or change Obamacare. But they are not offering anything in exchange other than not blowing up the government. A sequestration-for-entitlements exchange would be a real compromise, giving Democrats something they want. But it would still be a huge win for Republicans — a few billion in spending now for statutory changes in entitlements (e.g., chained CPI) that could save trillions down the road. Statutory changes in entitlements are an especially good thing because, unlike sequestration, they would be very hard for future Congresses to undo.

The thing is, our budget situation is a bit tricky right now. The FY 2013 deficit is below $700 billion and projected to fall more in the next few years. But starting around FY 2018, it starts ramping up again. The reason is entitlements — the wave of retiring Baby Boomers putting a strain on Social Security and Medicare spending.

(This long-term situation has, over the last few years, gotten a lot less horrifying by trillions of dollars. The reason is that healthcare spending has leveled off. Obama is trying to claim credit for this but he’s a bit hoist by his own petard. He delayed Obamacare until after the election both to avoid the political hit and to force the CBO to claim that it decreased the deficit. But those delays also mean the cost curve bent before he did anything. The reasons the cost curve has come down are mainly the down economy and the natural saturation of the healthcare market. I said years ago, when people were projecting that healthcare would eventually consume 2,634% of our GDP, that if something can’t be sustained, it won’t be. It couldn’t and it wasn’t.)

The time to strike on entitlements is now. The longer we wait, the harder it will be and the more dramatic the changes required. You reform entitlements and keep discretionary spending level and you will basically balance the budget within the decade without any further action. Cutting spending further will make the situation even better, but … further cuts will entail either cutting defense spending (which the Republicans oppose) or more discretionary/entitlement spending (which will not happen until the GOP wins an election; which will not happen until they show they can govern).

There are whispers that this deal may happen but it seems to be focusing more on yet another budget committee. But we’ve had eight — count ‘em — eight budget committees. We don’t need another one to tell us what we need. What we need is a deal.