Monday, April 1, 2019

Last Call For Another Supreme Disappointment

The US Supreme Court handed down yet another 5-4 decision today that essentially destroys 50 years of progress on stopping the death penalty under the Eighth Amendment's "cruel and unusual punishment" clause as according to Judge Neil Gorsuch and the other four conservatives, states can essentially execute people in whatever fashion they want.

The Supreme Court’s opinion in Bucklew v. Precythe, which it handed down Monday on a party-line vote, is at once the most significant Eighth Amendment decision of the last several decades and the cruelest in at least as much time.

Neil Gorsuch’s majority opinion tosses out a basic assumption that animated the Court’s understanding of what constitutes a “cruel and unusual” punishment for more than half a century. In the process, he writes that the state of Missouri may effectively torture a man to death — so long as it does not gratuitously inflict pain for the sheer purpose of inflicting pain.

And, on top of all of that, Gorsuch would conscript death penalty defense attorneys — men and women who often gave up lucrative legal careers to protect the lives of their clients — into the ghoulish task of laying out the method that will be used to kill those clients.

It’s a breathtaking sign of just how much the Supreme Court’s new majority is willing to change — and how quickly they are willing to impose that change on the rest of us.

Oh, but it gets worse.

Looming beneath the surface, moreover, is an even more ominous sign for anyone who hopes that this Supreme Court will not replace decades of established law with the Federalist Society’s wildest fantasies. In several recent oral arguments, Trump appointee Brett Kavanaugh appeared unexpectedly sympathetic to liberal litigants.

Bucklew was one of these cases, where Kavanaugh browbeated a lawyer defending Missouri’s plans to potentially inflict tremendous pain during an upcoming execution. “Are you saying even if the method creates gruesome and brutal pain you can still do it because there’s no alternative?” the newest member of the court asked at one point.

And yet, Kavanaugh did not simply join Gorsuch’s opinion, he wrote a separate opinion suggesting that maybe death row inmates could be executed by firing squad.

Monday’s decision in Bucklew, in other words, is not just a sweeping rewrite of one of the Bill of Rights’ core provisions. It may prove to be a very real window into the mind of Kavanaugh — and it suggests that, whatever noises Kavanaugh makes during a hearing, he will ultimately be a reliable vote for whatever outcome the Court’s conservative bloc prefers.

The ruling puts the burden of finding a more humane method of execution on the death row inmate, and unless it meets the stringent test of being easy and quick for the state to carry out, which the state gets to solely determine, then the state can reject it and use whatever method it wants to.

And please remember, all of the other conservatives signed off on this monstrous ruling, including Mr. Ball-And-Strikes Chief Justice Roberts himself.  Hell is empty and at least five of the devils are on the bench.

It's Mueller Time, Con't

Ben Wittes from Lawfare takes to The Atlantic to remind us that he too is a Republican, and believes that William Barr will deliver on his promise of transparency.

Here’s a radical idea: For the next two weeks, let’s give Attorney General William Barr the benefit of the doubt.

I understand why so many people are suspicious of Barr and are lining up to denounce him—and there may well come a day, and it might come soon, when I will get in line and join them.

Barr’s initial letter summarizing the top-line conclusions of Special Counsel Robert Mueller’s investigation allowed President Donald Trump to claim exoneration and vilify those who had called for the investigation, even as it managed not to answer any substantive questions about L’Affaire Russe. What’s more, the letter put the attorney general’s personal stamp on the exoneration of the president for obstruction of justice, an outcome that is apparently not what Mueller himself intended. It is not clear to me why Barr needed to do this, and it certainly had the effect of helping the president seize control of the narrative. So I understand why many people are suspicious.

Yet I am still inclined to give Barr the benefit of the doubt on the release of the Mueller report, if only in a kind of “trust but verify” sort of way. The reason, in short, is that Barr has promised numerous times to show his work. He has promised to do so in the short term. The equities he has insisted on protecting are, in my view, reasonable ones. And he has taken in his most recent letter an appropriate, even gutsy, stand on executive privilege with respect to the White House. He has, in short, described a reasonable process by which Congress and the public should shortly get access to Mueller’s findings. I am inclined to assume him serious about this until he fails to deliver on what he has promised. There will be plenty of time to criticize his failures if and when they materialize.

Let’s unpack this a bit.

Barr has said since his confirmation hearings that he is committed to maximum public access to Mueller’s findings consistent with the law. Since Mueller delivered his report, he has stood by this and said he means to expeditiously review a 400-page document and release as much as he can. His time frame has clarified over the past week, from soon to “weeks not months” to “mid-April, if not sooner.” Congressional Democrats are demanding the report by Tuesday. This difference is not material. If the Justice Department releases Mueller’s report in a capacious and reasonable fashion in mid-April, that is a perfectly fine outcome.

Barr has also laid out what material he believes he must redact from the document. On some of these matters, he is simply correct. For example, Barr says he means to remove grand-jury material; it is actually unlawful, criminal even, to disclose grand-jury material without the authorization of the court. In the short term, there is no way to give this material to Congress, let alone make it public; it would require substantial litigation to do so.

Moreover, Barr says he means to redact “material the intelligence community identifies as potentially compromising sensitive sources and methods.” Note that he is not saying he will redact all classified material. But it is quite irresponsible to demand that the attorney general dump in the public domain sensitive intelligence matters in a fashion that could burn collection capabilities or human sources. There is no way the attorney general is going to release a 400-page document summarizing a counterintelligence investigation without a careful review for national-security information. And going through a lengthy document with a lot of information from different sources in a review for both national-security and grand-jury material takes time—legitimately. Getting it done in a few short weeks would require having a team working on it around the clock.

Barr also says he will redact “material that could affect other ongoing matters, including those that the Special Counsel has referred to other Department offices.” This strikes me as reasonable as well. Mueller has kicked a variety of matters back to the Justice Department. Do we really want Barr to screw up those investigations by prematurely releasing the department’s analysis of them? We didn’t want Mueller to do this. I don’t want Barr to, either. This category of redaction is potentially subject to abuse, but I am not going to assume preemptively that it will be abused.

Finally, Barr says he will redact “information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties.” Depending on how one reads the words unduly and peripheral, this could either be a reasonable effort to protect drive-by reputational harm to people quite removed from the core public interest in this matter or it could be a loophole big enough to drive a truck through that could protect, say, the president’s kids. So again, could this be a mechanism to black out large segments of the report? Yes. But I see no reason to assume that this is what Barr wants to do, given his more general public commitments to maximum transparency in this matter.
One important area in which Barr has said publicly that he won’t be doing any redactions is the area of executive privilege. This is actually a big deal. The White House made noises about reviewing the document for supposedly privileged material. But on this point, Barr has publicly, if somewhat backhandedly, taken a stand. In his letter on Friday, Barr wrote that “although the President would have the right to assert privilege over certain parts of the report, he has stated publicly that he intends to defer to me and, accordingly, there are no plans to submit the report to the White House for a privilege review.” 

If Wittes is right, then Barr would indeed do the honorable thing and we'd get to see virtually all of the report.

The problem is of course that William Barr decided to work for Donald Trump.

I do not believe for a second he is honorable.

Senator Batboy's Guide To Health Care

I have to admit, whoever is writing the Trump Show that we're all stuck in presently keeps making such beautifully obscene villain casting choices that even Hollywood is jealous.  Take this week's example where our old friend Rick Scott, recently upgraded from Governor to Senator by many, many Florida Men, is now the Trump regime's pointman on health care.

U.S. Sen. Rick Scott is taking the lead on Republican health care policy as the Trump administration tries once again to end Obamacare. 
President Trump named Scott and fellow GOP U.S. Sens. John Barrasso of Wyoming and Bill Cassidy of Louisiana as his point people on Capitol Hill at a question-and-answer session at the White House. 
"They are going to come up with something really spectacular," Trump told reporters Thursday. 
Scott’s new role is a long way from his political origins in 2009 and 2010, when as one of the earliest critics of Obamacare, he launched ads arguing that pre-existing condition protections would cause premiums to skyrocket.

Scott also was the CEO of the hospital company Columbia/HCA in the 1990s, who resigned four months after a federal inquiry into the company was made public. The company was later fined $1.7 billion in 2000 and 2007 for what was then the largest case of Medicare fraud in history.

And yet somehow he was able to parlay billions in Medicare fraud into a lucrative political career long before Trump was ever elected, just another argument in favor of the theory that the GOP is the problem and Trump is the symptom. Rick Scott should be serving his second decade in prison going on his third.  Instead, he's serving in the US Senate.

And that, ladies and gentlemen, is what's wrong with America.

Scott goes on to say that he wants to lower prescription drug prices, but the catch is that prices can't be higher than other "industrialized nations" and of course, Scott gets to define what that means.

It sounds great, but of course Scott is a professional conman, fraudster, and grifter.  What his real plan happens to be is one the Dems will reject on the fine print in both the House and Senate so the GOP can run attack ads.  Pretty sick April Fools' joke if you ask me.

It's Dems' own fault if they can't see this trap a mile away.


Related Posts with Thumbnails