FISA and the Independent Judiciary

All the executive-branch access to phone records and whatnot only concerns me a little. The fact is that we live in public, and efforts to guarantee that all our conversations -- though held while walking down the street -- are perfectly secret are misplaced.

On the other hand, these things do need to be watched carefully, and we have people in place with the legal and constitutional authority to do all the necessary watching: judges. As long as we require the executive to ask a judge before wiretaps are secured or records are collected, we should be fine ... as long as the judges do their jobs. If the judges see themselves not as independent arbiters but as extensions of the executive, we do have a serious problem.


The courts established by the Foreign Intelligence Security Act have blurred that important line. The very fact that their decisions are secret and that they do not have to publish their rationale is a problem. Courts should never operate in secret. Whether the judges like it or not, when they work out of the public eye, they are more liable to be considered "rubber stamps" for the government.

Now concerns arise about how judges get the job in the first place. While Republicans block nominations by the President all the time, they have no say over FISA court appointments; Chief Justice Roberts makes those appointments, and recent analysis suggests that he puts people on the court who are even more likely than most to approve of government surveillance.

FISA courts ought to operate within very narrow parameters. Mostly, open court proceedings are better. But even within those confines, they need to work under the system of checks. What they are doing now is not good enough.

Is the Filibuster Constitutional?

Republicans these days like to complain that they are being bullied by Democrats who are challenging GOP use of the filibuster to block routine nominations to the executive branch. That master of cynicism and corruption, Kentucky Senator Mitch McConnell, declared that any reform to the use of filibusters would "kill the Senate" by limiting the ability of minorities to slow things down.

Of course, this whining is just more sour-grapes entitlement from the party that does not like being told it can't have its way.

Senator Mitch McConnell (R-Ky). As corrupt as the day is long.
image from http://www.politico.com/news/stories/1110/44888.html

But it's also more than that. If McConnell is not careful, he will bring an end to the filibuster entirely, because the whole concept does not stand much scrutiny. In fact, I believe that it is probably contrary to the spirit and and letter of the US Constitution, though no direct challenge to it  is possible.

Article I section 5 allows each house of Congress to set its own procedures of deliberation. In the Senate, which fancies itself a gentleman's club, members defer to each other's desire to continue debate on a subject indefinitely. As long as someone wants to keep talking, we should allow him to do so. The practical effect of the rule is to prevent a vote on the matter at hand and to stop the Senate from doing any business at all unless the speaker agrees to sit down. (It is notable that this rule originated from Aaron Burr, famous primarily for his incessant manipulation of "gentleman's" rules for his own benefit, to the extent that he killed Alexander Hamilton and tried to organize a coup to make him King of the United States.) A filibuster is the deliberate use of this rule to obstruct the proceedings of the Senate, and can represent an important tool for a minority to prevent the majority from railroading a bill through.

Without question, the role of the Senate in the US system of government is to slow down the action of majorities. In contrast to the House of Representatives, the Senate is not especially democratic: it's elections occur less frequently, its members are fewer in number and are unattached to any specific district within a state, and under the original constitution were not elected directly. In this context, the filibuster makes sense as an extension of the spirit of the body.

But even under more recent Senate rules, which allow for cloture (the ending of debate) with a vote of 60 members, the filibuster runs counter to some of the most fundamental rule of the Constitution. Articles I, II and V outline very specific applications of majority and super-majority votes. The Constitution explicitly overturned the system of the Articles of Confederation, in which super-majorities were the norm in the national legislature, but direct majority votes ruled all elections. Article I section 7 describes in detail the ways in which a bill is to become a law, and only when both houses wish to overturn a presidential veto is a super-majority necessary. Under current rules, major legislation effectively requires 60 votes from the Senate rather than the 51 that would be required for a simple majority.I believe it therefore undercuts the essential system of government laid out in the founding document.

Especially as the rule has been applied recently, so that an obstructionist need not even speak, but can simply express his wish to stop a vote, the filibuster is dramatically un-democratic even in the context of the Senate. It has stopped the normal functioning of the government for years, and has thwarted the popular will even more than was intended for the Senate to do.

McConnell may want the Senate to remain that way, because he sees the writing on the wall: he and his ilk can not muster the support of the majority of Americans, and the trend is only moving farther away from him. He may want to maintain his privilege, and probably figures he's entitled to it, just as he thinks he's entitled to get whatever he wants all the time. But he might not want to make it so public. With a little luck, people will catch on.

What Does the Zimmerman Trial Say About Race in the Judicial System?

One of the jurors in George Zimmerman's trial in the death of Trayvon Martin has begun to talk to media outlets, less than a week after the non-guilty verdict was announced. One of the members of the all-female jury, who says she and her husband own gun permits, did not think that race played a part in the shooting or in the jury deliberations. In an interview with CNN, Juror B37 said "Anybody would think anybody walking down the road, stopping and turning and looking -- if that's exactly what happened -- is suspicious," she said. "I think all of us thought race did not play a role," the juror said . "We never had that discussion." She also said that if the person acting and dressed in that way were "white or Spanish or Asian," Zimmerman would have reached the same alarmed conclusion he did because he "just got displaced by the vandalism in the neighborhoods, and wanting to catch these people so badly that he went above and beyond what he really should have done."

I have no doubt that Juror B37 is sincere in her claims that she did not consider race, but I think she may also be mistaken. An young Korean man walking down Zimmerman's street would not have aroused the same emotions as Trayvon Martin did, and that was not Trayvon Martin's fault. Young black men scare people because of the long tortured history of racist depictions of African-Americans in almost every element of our culture. Zimmerman probably did overreact to Martin because he is a product of his time and place. And Juror B37 considers that reaction to be perfectly reasonable because she is a product of the same time and place.

To that extent, the judicial system is infused with racism. It's a problem. But I don't think it's right to say that Zimmerman's trial was unfair. I believe the jurors acted in good faith and with minds as open as they could be. I do not believe the jury was rigged.

According to Juror B37, another juror, who wanted to convict Zimmerman of manslaughter, wanted to take into consideration all of his actions leading up to the confrontation with Martin, but did not believe that she was permitted to do so under the judges instructions. This is an interesting point. At what moment did Zimmerman take action that led to Martin's death. In the popular conception, his actions began as soon as he called the local police and was told to stop following Martin. But under the law, at least in Florida as interpreted by Debra Nelson, the relevant events began with the confrontation itself.

It seems to me that this is the mistake made by the prosecutors. At least in retrospect, prosecutors overcharged the case and should have spent a lot more time trying to show that Zimmerman was culpable for Martin's death because of a series of overzealous and foolish acts.