Officials: Obama Considering Robert Kennedy For Top Environmental Post
Three huge, immediate reasons to be happy about last night
There are all sorts of reasons to view last night's events as an extremely positive development, including the fact that it was a truly crushing repudiation of the right-wing faction that has dominated the Republican Party for the last two decades. The GOP is very close to being nothing more than a broken regional party, confined almost entirely to the Deep South and a few small, scattered states in the Midwest, and entirely uncompetitive in huge swaths of the country. All of that merits, and will undoubtedly receive, lavish analytical attention (and celebration) over the next few days and weeks.
But for the moment, here are three extremely clear, indescribably significant reasons why last night was important:
Court watchers almost unanimously believe that those first two Justices -- John Paul Stevens and Ruth Bader Ginsberg -- are certain to leave the court at some point over the next four years, while the third -- David Souter -- is highly likely to do so. To understand why that matters so much, just consider that all three of those justices were in very precarious, narrow majorities in crucial decisions such as these:
Boumediene v. Bush (2007): Invalidating Section 7 of the Military Commissions Act as unconstitutional because it purported to abolish the writ of habeas corpus and because the kangaroo Guantanamo process designed by Donald Rumsfeld's Pentagon and approved by Congress was a constitutionally inadequate substitute.
Hamdan v. Rumsfeld (2006): Declaring Guantanamo military tribunals to be both unconstitutional and illegal because the President lacked the inherent constitutional authority under Article II to order them and because they violated the Geneva Conventions' Common Article 3, the protections of which apply to all detainees.
Lawrence v. Texas (2003): Striking down a Texas statute criminalizing same-sex sodomy as a violation of the Due Process Clause and overturning Bowers v. Hardwick, decided only 17 years earlier, which upheld such statutes.
Had McCain won last night, it is virtually certain that at least two -- and probably all three -- of the above-listed Justices would have been replaced by those who would have decided those cases the other way, ensuring the opposite result. It is also quite likely that a McCain victory would have meant the end of Griswold, Roe and their privacy-protecting progeny, which is now likely to be preserved for decades to come.
With numerous cases likely to be decided by the Supreme Court in the next several years that linger from the years of Bush radicalism -- involving truly vital questions of executive power and core individual liberty -- a McCain/Palin victory would have been, for this reason alone, a genuine disaster, possibly a final nail in the coffin of our constitutional framework. Now, the Court majority which decided these landmark cases of the past several years, imposed some limits on the presidency, and upheld those core rights in the face of a true onslaught will be revitalized and strengthened, and will ensure that the Roberts/Alito/Scalia/Thomas faction remains, in most matters, an impotent minority for many years to come, if not decades.
George Washington University Law Professor Orin Kerr -- a leading apologist for many (though not all) of the lawless and radical Bush policies of the last eight years -- last night smugly predicted that Democrats who spent the last eight years opposing executive power expansions and an oversight-free Presidency will now reverse positions, while Republicans who have been vehement advocates of a strong executive and opposed to meaningful Congressional oversight will do the same. I have no doubt that he's right to some extent -- some Obama supporters will become overnight believers in the virtues of a strong executive, defend everything he does, and will resent "intrusions" into his power, while huge numbers of Republicans will, just as quickly, suddenly re-discover their alleged belief in checks and balances and a limited federal government.
But I genuinely expect that those who have made the restoration of our Constitutional framework and preservation of core liberties a top priority over the last eight years will continue to pursue those goals with equal vigor, regardless of the change of party control. And few things are more important in that effort than having a Supreme Court majority that at least minimally safeguards those principles. It's hard to overstate the importance of last night's election outcome in ensuring a reasonably favorable Court majority and, even more so, in averting what would have been a real disaster for our basic rights and system of government had John McCain been able to replace those three Justices with GOP-approved nominees. By itself, maintaining the Court more or less as is won't reverse any of the Constitutional erosions of the last eight years, but it is an absolute prerequisite to doing so.
On January 20, With the Stroke of a Pen, President Obama Can Undo Some of the Damage of the Past Eight Years
President-elect Barack Obama will become chief executive of a nation that has been greatly weakened -- in particular, our freedoms, our values, and our international reputation have been significantly undermined by the policies of the past eight years. Presidents have enormous power not only to set the legislative agenda, but also to establish policy by executive order, federal regulation, or simply by refocusing the efforts and emphases of the executive agencies. President-elect Obama must use all of these tools to restore our freedoms and move the country forward.
In preparation for the transition to a new presidential administration next year, I asked my staff to look at what a new president could do to begin to reverse the damage that has been done in the past eight years to this great nation. What I got back -- from experts on a wide variety of subjects from throughout the ACLU -- was very revealing. And it brought home just how off-track our presidential campaigns have become.
As you can see here, some of the items were self evident for us: stop torture, close Guantanamo, shut down the military commissions, end "extraordinary renditions" in which suspects are kidnapped by the CIA and sent to countries where they are tortured. All of these practices are abominations -- violations of our nation's dearest principles and a blotch on America's good name. Those are actions the next president, whoever he turns out to be, should take on his first day in office.
Our other priorities are nearly as clear: steps such as ending warrantless spying on Americans, fixing the nation's broken watch list system, banning discrimination against sexual minorities in federal employment, stopping the monitoring of peaceful political activists, and restoring the Justice Department's Civil Rights Division as a meaningful body.
But what is really striking is when you move down to the next level. I received dozens and dozens of action items from throughout our broad, multi-issue organization -- issues that are never going to make the front page of the newspaper, but which can have a dramatic effect on the lives of Americans.
Let me give you just one example. Until recently, residents of public housing were to be evicted from their homes whenever criminal activity took place in those units -- without exception. But one result of this "get tough" law was that women who were victims of domestic violence were being evicted from their units because of the crime that took place there -- the domestic violence -- even though they were the victim of the crime!
Congress fixed this absurdity in the 2005 Violence Against Women Act (VAWA). But today, more than two years after enactment, the Bush Administration has still not acted to implement the fix. The Department of Housing and Urban Development has not issued regulations interpreting and explaining the law, and has distributed inaccurate information about how it applies. As a result, many public housing authorities remain unaware of the new law and have not trained their staff on the new protections.
It's a fair bet you're never going to see that issue raised in a presidential debate, or read about it on a bumper sticker, or on the front page of your newspaper. Probably not in the back pages either. I worry that even the "big" issues like closing Guantánamo, shutting down the military commissions, and prohibiting torture and rendition will literally be thrown under the bus in a new administration. As I read over the list of requests our staff has compiled, it is striking how many issues are like this -- vital, important issues that affect many lives, but which we have a dim hope of ever setting directly before the American people.
The country's civil liberties "to do" list really brings home just how sweeping the power of the president of the United States is. The often obscure actions of various deputy assistant secretaries will together probably make as much difference to Americans as the new president's actions on the headline issues of our times. We need leadership at the top. And President Obama ought to act swiftly on day one by picking up his pen and signing executive orders that shut down Guantánamo and the military commissions and ban torture and rendition. Once he crosses those off of his "to do" list, we can pick up on the many other things that need to get done. But leadership needs to start on day one.
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