Archive | Short Writings RSS feed for this archive

Why I’m Not Looking Forward to the New Supreme Court Term

The New Republic, October 1, 2007 It’s the first Monday in October, the day the Supreme Court begins its term, and I’m supposed to be salivating. For legal writers, after all, this is opening day of a new season. And the justices have some big cases on their schedule: the fate of Guantanamo detainees, the […]

Continue Reading →

Mukasey is the Right Attorney General—Seven Years Too Late

The New Republic, September 18, 2007 There is one big problem with President Bush’s nomination of retired Federal District Judge Michael Mukasey to be Attorney General of the United States: It comes seven years too late. Mukasey has been an excellent judge–independent, tough, and fair-minded. His handling of the case of Jose Padilla, when the […]

Continue Reading →

The Law On Wiretapping

The New Republic, August 18, 2007 The New York Times calls it an ‘unnecessary and dangerous expansion of President Bush’s powers’ and warns that it will ‘allow the government to intercept, without a warrant, every communication into or out of any country, including the United States.’ My former colleagues at The Washington Post call it […]

Continue Reading →

Congress, The Attorney General and The Foreign Intelligence Surveillance Act

The New Republic, August 6, 2007 One of the problems with having a dissembling attorney general is that it becomes difficult for his administration to move agenda items that rely to any degree on his credibility–even when they might have merit. In his recent testimony before the Senate Judiciary Committee, Alberto Gonzales provoked bipartisan rage […]

Continue Reading →

The Supreme Court’s Looming Legitimacy Crisis

The New Republic, June 25, 2007 Real Clear Politics calculates President Bush’s average approval rating at 31 percent. Congress comes in even lower, at 25. But not every government institution is polling badly. In a recent Gallup poll, 51 percent of Americans approved of the performance of the Supreme Court of the United States. Yes, […]

Continue Reading →

The Conservative Legal Establishment’s Strange Youth Culture

The New Republic, May 28, 2007 When I knew Monica Goodling, a few years ago, she was the Department of Justice public affairs staffer with whom I preferred to deal. In her late twenties, she had come over to the department from the Republican National Committee; she was smart, capable, and conversant enough in the […]

Continue Reading →

James Comey’s Damning Testimony

The New Republic, May 17. 2007 The scene former Deputy Attorney General James Comey described to the Senate Judiciary Committee on Tuesday was the stuff of Hollywood movies: a frantic race between White House and Justice Department officials to the hospital room of John Ashcroft; a dramatic showdown at the gravely ill man’s bedside, in […]

Continue Reading →

Alberto Gonzales Digs Himself a Deeper Hole

The New Republic, May 14, 2007 I want to ask how the U.S. attorney termination list came to be, House Judiciary Committee Chairman John Conyers said to Attorney General Alberto Gonzales at the outset of Thursday’s oversight hearing. ‘Who suggested putting most of these U.S. attorneys on the list and why?’ It’s a perfectly reasonable […]

Continue Reading →

The Supreme Court’s Shift on Abortion is Not What You Think

The New Republic, April 30, 2007 The Supreme Court’s recent partial-birth abortion decision solidifies a big shift in abortion law–but probably not for the reason you think. The most important language in the opinion does not substantively alter the scope of the right to choose, nor does it expand the right to life. It is […]

Continue Reading →

The Supreme Court’s EPA Ruling Isn’t As Important As You Think

The New Republic, April 16, 2007 “It would be hard,’ The New York Times declared, ‘to overstate the importance of [the April 2] ruling by the Supreme Court that the federal government has the authority to regulate the carbon dioxide and other greenhouse gases produced by motor vehicles.” Not that the Times wasn’t going to […]

Continue Reading →

Who Should Replace Alberto Gonzales?

The New Republic, April 2, 2007 Alberto Gonzales is toast. He apparently doesn’t realize this. President Bush doesn’t either. But Gonzales’ tenure as attorney general—or, at least, as an effective attorney general—is already over. Every day he fails to resign he disserves Bush, the Justice Department, and the public at large. Every day Bush lets […]

Continue Reading →

Ditch the Second Amendment

The New Republic, March 19, 2007 The New York Times editorial page accused the appeals court panel that on March 9 struck down portions of Washington, D.C.’s ultra-strict gun-control law of storming “blithely past a longstanding Supreme Court precedent, the language of the Constitution and the pressing needs of public safety.” My former colleagues at […]

Continue Reading →

José Padilla: Would-Be Terrorist or White House Victim?

The New Republic, March 6, 2007 “We will probably never know if [José] Padilla was a would-be terrorist,” editorialized The New York Times last week. His “trial has been a reminder of how Mr. Bush’s policy on prisoners has compromised the judicial process. And it has confirmed the world’s suspicions of the United States’ stooping […]

Continue Reading →

The Courts Can’t Fix Guantanamo

The New Republic, February 22, 2007 Amnesty International calls it “shocking” and insists it “must be challenged.” Human Rights First complains that it “runs counter to one of the most important checks on unbridled executive power enshrined in the U.S. Constitution: the right to challenge imprisonment in a full and fair proceeding.” So, at the […]

Continue Reading →

Marital Differences

The Atlantic Magazine, May 2006 Will this year’s midterm elections feature a new raft of state ballot initiatives to ban same-sex marriage? Definitely. Voters in eighteen states have already passed such bans, and the ballot initiatives have proven to be a major base-mobilizer for conservatives—so this year, there will be more. At least six states—Alabama, […]

Continue Reading →

Justice Delayed

The Atlantic Magazine, March 2006 Whatever happened to Zacarias Moussaoui? Moussaoui is the only person criminally charged in the United States for taking part in the September 11 conspiracy. He pleaded guilty to the charges against him last spring without a deal to spare him the death penalty. So he now faces a jury trial, […]

Continue Reading →

Whose Court Is It Really?

The Atlantic Magazine, January/February 2006 What are the early indications of what the Roberts Court will be like? It’s not the Roberts Court—at least not yet. It’s still the Stevens Court. Excuse me? For a few weeks this past summer, between the death of Chief Justice William H. Rehnquist and the confirmation of John G. […]

Continue Reading →

The Executioner’s Swan Song?

The Atlantic Magazine, October 2005 Is it just my imagination, or has there been a palpable change recently in the Supreme Court’s approach to death-penalty cases? The Court has without question shifted gears on capital punishment. For years the justices turned a willfully blind eye to the claims of those on death row. They created […]

Continue Reading →

Without Precedent

The Atlantic Magazine, September 2005 Conservatives complain that the Supreme Court is too liberal. Liberals complain that it’s too conservative. Both charges are inaccurate: in reality the Court is a careful political actor that arguably represents the center of gravity of American politics better than most politicians do. The real problem is not the Supreme […]

Continue Reading →

The Hapless Toad

The Atlantic Magazine, May 2005 Liberals talk as if the world will end if President Bush gets to name some new Supreme Court justices. How much of the danger is hype, and how much of it is real? It’s mostly hype. In general liberals fear conservative judges far too much. In almost all areas, in […]

Continue Reading →

Confirmation Class

The Atlantic Magazine, April 2005 The Senate will soon need to gear up to hold confirmation proceedings for a new chief justice of the United States. Any advice for the Judiciary Committee? Oh, just skip them. Unless President Bush commits an act of true statesmanship in nominating the next head of the federal judiciary, the […]

Continue Reading →

Letting Go of Roe

The Atlantic Magazine, January / February 2005 Are we about to suffer through another horrible Supreme Court nomination dominated by abortion politics? Bet on it. With Chief Justice William Rehnquist seriously ill, the prospect of a Supreme Court vacancy early in George Bush’s second term looms over American politics. The script for this—and every—Republican high-court […]

Continue Reading →

Leaks and the Law

The Atlantic Magazine, December 2004 Who is Patrick J. Fitzgerald, and why is the press so upset with him? Patrick J. Fitzgerald is the United States attorney for the Northern District of Illinois, based in Chicago. He was widely regarded as an excellent prosecutor and a fine man. Late last year, however, Deputy Attorney General […]

Continue Reading →

Supreme Irony

The Atlantic Magazine, November 2004 According to a New York Times editorial, George Bush says that if re-elected, he would “try to finish packing the [Supreme] Court against Roe v. Wade, the decision validating abortion rights, which four members say they want to strike down.” If voters elect a Democratic President, the Republican candidate predicts, […]

Continue Reading →

Suspended Sentencing

The Atlantic Magazine, October 26, 2004 When Dwight W. Watson first came before U.S. District Judge Thomas Penfield Jackson for sentencing, on June 23, the judge gave him six years in prison. Watson was the North Carolina tobacco farmer who paralyzed a section of Washington, D.C., for two days last year by driving a tractor […]

Continue Reading →

Enemy Americans

The Atlantic Magazine, July / August 2004 June 10, 2002, the day John Ashcroft announced the arrest of Jose Padilla, marked a low point in Ashcroft’s career as Attorney General. The FBI had nabbed Padilla, a.k.a. Abdullah al-Muhajir, a full month earlier, at Chicago’s O’Hare International Airport, and Ashcroft happened to be in Moscow when […]

Continue Reading →