[Posted by The Angry Clam]
Um, Senator Brownback, I don’t know if I’d be as proud as you are about my state being the “home” of Brown v. Board of Education. That’s essentially saying that you’re pleased that your state felt it necessary to litigate in defense of segregation all the way to the U.S. Supreme Court.
Discuss.
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I don’t know that much about Lawyering, so I’m thinking that like a lot of people out there Brownback’s comment didn’t really have that much effect on me. My impression was Brownback looked pretty good and sounded reasonable. In fact, I’ve seen a lot of talk on the right about Brownback being a good potential candidate for 2008 and I admit watching him I agree, he’s a good candidate.
I have to say though, was just astounded by Roberts’ answer to Leahy on whether the constitution allows an innocent man to be executed. I find Leahy a particularly loathesome person, but if Roberts can’t even flatly say that the United States Constituion bars the execution of an innocent man he doesn’t belong on the SCOTUS. That was a dumbass exchange, and if he really believes that he’s not qualified to sit on the court. Leahy wasn’t asking about a specific case, he was quite clear about that.
So far today, Dems 1, Roberts zero.
Dwilkers (a1687a) — 9/14/2005 @ 7:49 amRoberts and Leahy were arguing about who an “innocent” man is.
Leahy was claiming that there were, for legal purposes, “innocent” men prior to an adjudication of their guilt or innocence, regardless of how many appeals and habeas petitions they’ve already filed. Roberts was simply pointing out that the question was whether or not these people claiming to be innocent would be allowed to, yet again, litigate and delay their execution for another decade or so.
In the eyes of the law, they are not innocent men, and are executable.
I should add that this is not simply academic- the Congress itself, in the Antiterrorism and Effective Death Penalty Act (AEDPA), strictly limited the number and availability of federal habeas corpus petitions by inmates convicted of capital offenses. Leahy’s questioning was, in essence, attempting to get Roberts to state that these limits in the AEDPA are unconstitutional, despite the vast volume of litigation upholding the AEDPA’s provisions.
Angry Clam (fa7fff) — 9/14/2005 @ 7:55 amSorry AC, I watched that exchange with about 2/3 of an eye, and I’m pretty sure Leahy asked straight out pretty close to the following:
“Well judge, does the consitution allow an innocent man to be executed?”
In answer to which Roberts equivocated, danced and obfuscated. There was a simple, one word anser; “No.”
I am aware that Roberts brought up a bunch of hooey about previous cases, but Leahy didn’t as far as I heard, and the question was simple. I’ll wait and look at the transcript to see if it happened the way I heard it, but I’m pretty sure I am reporting it correctly.
Dwilkers (a1687a) — 9/14/2005 @ 9:10 amRoberts said “no” directly to that, but then started arguing with Leahy’s characterization of criminal defendants in certain cases as “innocent” – Leahy kept saying “can prove his innocence” and Roberts kept saying “doesn’t get yet another chance to prove that, after being found guilty and repeatedly appealing and filing habeas petitions.”
Angry Clam (a7c6b1) — 9/14/2005 @ 9:13 amWhich would also have been a wrong answer. Executing someone without due process of law is unconstitutional, but due process of law and factual guilt are not the same thing.
Xrlq (ffb240) — 9/14/2005 @ 10:18 amdwilkers – Where do you say the Constitutional guarantee of infallibility is found?
eddie haskell (8fd1a1) — 9/14/2005 @ 11:49 amGod Schumer is irritating.
Guys, I tell you what, when there’s a transcript of that exchange available I’ll come back and post it here and you can judge it for yourselves.
Dwilkers (a1687a) — 9/14/2005 @ 1:03 pmHey, the whole movie thing was funny! Best laugh i’ve had all week!
aphrael (6b0647) — 9/14/2005 @ 5:58 pmDwilkers: Sorry, but you’re just wrong on how the Constitution’s been interpreted and what it says.
The civil equivalent would be to assert: The Constitution guarantees that the side that’s right will win its lawsuit.
Yes, we have an elaborate structure of laws intended to ensure that the innocent aren’t convicted, and that the sides that’re right will win their civil lawsuits. But to reduce the entirety of criminal law, or even death penalty law, down to that sort of proposition is naive and so simplistic as to be affirmatively misleading.
I really intend no offense, but I must respectfully suggest that Sen. Leahy’s line of questioning was a hook trolled for suckers. You might want to spit it out rather than swallowing it whole.
Beldar (56bebf) — 9/14/2005 @ 7:12 pmFollow-up, after just watching (twice) the TiVo’d exchange that you’re referencing, Dwilkers:
Judge Roberts emphatically and clearly asserted that he does not support executing the innocent. But he refused to fall into the rhetorical trap that Sen. Leahy was trying to set. Leahy’s argument — which boils down to, “So long as anyone can ever construct even a theoretical, hypothetical argument, even without proof, as to how a death row inmate might be innocent, the Constitution prevents him from being executed” — is not the law. And as Judge Roberts pointed out, the specific case that Leahy was asking about wasn’t a so-called “actual innocence” case, but rather a challenge to procedural limitations on inmates’ ability to withhold claims and then raise them at the very last moment.
Leahy would grant murderers the constitutional “right” to game the system perpetually. That’s fine if you’re (a) an opponent of the death penalty, (b) intellectually dishonest, and (c) willing to encourage others to make a mockery of our system on the theory that the ends you’re seeking to promote justify even the most pernicious means. Leahy’s in that camp. It’s impossible to say for sure — because in the case that was under discussion, Judge Roberts was only signing on to a brief expressing the view of his and the Solicitor General’s client, rather than committing to a personal view of his own — but I highly doubt that Judge Roberts is in that camp with Leahy.
I repeat: Anyone who thinks Sen. Leahy “won” this exchange has been suckered.
Beldar (e42389) — 9/14/2005 @ 9:07 pmOh — dang, got carried away with the hijacked thread.
Meant to say: I think Brownback was trying to associate modern-day Kansans with the local lawyers who were involved in representing the plaintiffs; he later specifically mentioned having personally known and admired some of those lawyers, and of having been involved in proceedings to mark an aniversary or dedicate a museum or something like that. He may have gotten his hoof caught in his mouth a bit — unsurprising since he’s used almost all of his allotted time for making long, impassioned speeches of his own rather than asking questions of Judge Roberts — but I don’t think he intended to commend or praise the school district or other state governmental officials who’d contested the litigation.
Beldar (e42389) — 9/14/2005 @ 9:12 pmOh, I don’t either, as his subsequent comment about the “honor” of two of the attorneys from that case, as well as the museum dedication, indicates.
It just seemed quite an odd thing to say.
Angry Clam (a7c6b1) — 9/15/2005 @ 5:24 amOK Beldar, I accept your read of it.
spits out the hook
Dwilkers (a1687a) — 9/15/2005 @ 5:41 am“Um, Senator Brownback, I don’t know if I’d be as proud as you are about my state being the “home” of Brown v. Board of Education.”
And people get a strange idea of the South. I wonder why.
actus (9982e6) — 9/15/2005 @ 6:06 amKansas ain’t the south, duder.
Angry Clam (fa7fff) — 9/15/2005 @ 6:12 am“Kansas ain’t the south, duder.”
For the purposes of civil rights, its South enough.
actus (9982e6) — 9/15/2005 @ 6:20 amAs a native Kansan, it disgusts me that Brownback would find that a source of pride. Every state should find shame in their fellow citizens who fought against equality in humanity.
However, by and large Brownback has been reliably conservative and responsible in his representation of Kansas. Perhaps this was just an unfortunate choice of phrasing.
Does anyone have a link to a transcript?
Oh, and in response to “actus”, in my opinion Kansas is not, nor has ever been, part of “the South.”
I. Ronnie (534807) — 9/15/2005 @ 6:23 amHow about California, actus, which maintained segregated schools for asian students into the 1940s? Is California “the South”?
Angry Clam (fa7fff) — 9/15/2005 @ 6:42 amConsidering Actus’ response, “for the purposes of civil rights, its South enough” I was curious as to what state Actus might be from and what that state’s civil rights record might be. So, I visited his blog.
Well, no mention of home state there. One Ronald Reagan quote and a some looney lefty stuff. So, next I visited his blogger profile (which he made difficult by removing the profile link from the blogger template.) Still no state, just the name “Antonio J. Ibarra”.
There is an Antonio J. Ibarra that was listed as a member of the Orange County Bar Association in the 90s, but that may be a completely different Antonio.
So tell me Actus. What is your home state and what is its civil rights record?
I. Ronnie (534807) — 9/15/2005 @ 7:39 amKansas may well be proud of the plaintiffs and their counsel. Delaware views Lou Redding as a hero.. Factoid of greater pride: Chancellor Collins J. Seitz and an affirming Supreme Court. Delaware was the one, of the three state suits, which ruled that segregated schools violated equal protection.
alene (ad81c7) — 9/15/2005 @ 8:21 amI don’t doubt that they are- I would be.
I’m simply discussing the manner in which Sen. Brownback decided to express that pride, as it doesn’t come off exactly that way.
Angry Clam (fa7fff) — 9/15/2005 @ 8:24 amAngry Clam – arguably the entire Kansas crisis of the 1850s was an armed argument over whether or not Kansas would be part of the south. The issue was settled in favor of the northerners.
aphrael (6b0647) — 9/15/2005 @ 8:42 amWell, Bleeding Kansas was over whether Kansas would be a slave state, but it doesn’t follow that it should thus be counted among “The South” (even if the slaveholding forces won). For example, Kentucky is likely grouped generally with “The South” due to its slaveholding status, despite remaining part of the Union (well, neutral) during the Civil War.
Likewise, I don’t think that Maryland or Delaware, also slaveholding states, would be counted as “The South” despite that status.
Honestly, Kansas is about as midwestern as one can get (although Iowa would be angry about that suggestion).
Angry Clam (fa7fff) — 9/15/2005 @ 11:33 amAgnry Clam – in the antebellum period, “the south” typically meant “the slaveholding states”; Maryland and Delaware were generally classed with the south at that time.
Of course, at that time Ohio was “the west”, so perhaps antiquated definitions aren’t useful. 🙂
aphrael (e0cdc9) — 9/15/2005 @ 12:37 pmI’m aware of that, but, given actus’ classification of “The South,” it seems difficult to apply specifically that definition.
I find it somewhat ironic now, that while I currently live relatively deep in “The South,” I am at the northernmost latitude I’ve ever resided at. Thus, like you, I think that “The South” has a definition above and beyond geography.
Where I disagree with you is whether that line lies in the legal status of slavery, and thus my examples of the border states, which I don’t think anyone can group entirely as The South and The North.
For those who don’t know, the Mason-Dixon Line, demarcating “The South” from “The North,” is the straight state line between Pennsylvania and Maryland.
Angry Clam (fa7fff) — 9/15/2005 @ 12:45 pmConcerning Sen. Brownback. I heard nothing of what you are talking about, but Sen. Brownback is known as one of the most active in congress advocating for human rights around the world, such as the Sudan before everybody else learned about it. I would be surprised if he said anything that would put slavery in a good light. As asked by another above, it would be good to see the entire passage.
An aside, I was surprised to hear some years ago that in the early 1900’s some of the worst “lynching” states were not in the “South”, including Indiana (no, I’m not saying Roberts had anything to do with it). Some from the South would say that while slavery was wrong and needed to stop, the reconstruction under the auspices of the winning side left some things to be desired.
MD in Philly (b3202e) — 9/15/2005 @ 1:23 pmChrist, people, I’m not criticizing the Senator himself, or suggesting that he loves to hate black people.
I’m highlighting a rather sloppy statement of his. It’s very, very clear from later statements he made that he’s referring to the plaintiffs in Brown, but that this statement is quite jarring.
As far as lynchings in Indiana, I’m pretty sure that state was always one of the strongest supporters of the Ku Klux Klan, and, in fact, I’m fairly sure that the KKK Museum is located there.
Angry Clam (fa7fff) — 9/15/2005 @ 1:28 pmHow about Actus’s own stomping ground, D.C.? They maintained school segregation up to the end, requiring a bizarre companion case to Brown in order to deal with the fact that D.C. is not a state.
I’m not sure I’d call where you live the deep south. South Carolina’s the deep South, but everything from there up to the youse/y’all line is the shallow south.
Xrlq (ffb240) — 9/15/2005 @ 3:02 pmThe cross-burning at issue in Virginia v. Black was two counties over…
Also, that wasn’t all that bizarre a case- reverse incorporation of the 14th Amendment didn’t exist yet, and the 14th Amendment textually refers only to states. I wonder if the 14th Amendment also applied (back then) to federal territories (which, I know, are defined as equivalent to “states” for statutes).
Angry Clam (a7c6b1) — 9/15/2005 @ 3:08 pmTechnically you are correct that Bolling v. Sharpe did not formally endorse reverse incorporation, which is easily the most bizarre legal theory short of (or possibly including) both super and stupor precedents. Bolling did, however, plant the seed for the doctrine, by twisting the Due Process Clause of the Fifth Amendment so that it “just happened” to mean the same thing as the Equal Protection Clause of the Fourteenth. So Bolling was the first case where they reverse-incorporated, even if it wasn’t until later that they admitted out loud that that is what they were doing. By comparison, everyone agrees that Plessy v. Ferguson was the case that established the “separate but equal” doctrine, despite that phrase appearing nowhere in the case itself.
As you suggested, a more general theory that Congress is a “state” when exercising its police powers over the territories would have accomplished the same thing, without stretching the truth nearly as much as reverse incorporation does. But then again, the Warren Court has never been famous for making sense, only for getting the results it wanted.
Xrlq (816c74) — 9/15/2005 @ 5:56 pmSorry Angry Clam. I was just trying to offer some observations.I did think you were after the Senator more than simply pointing out a less than stellar comment.
MD in Philly (b3202e) — 9/15/2005 @ 7:20 pm