May 2009

  • May 13, 2009
    Guest Post

    by Alex Kreit, assistant professor of law and director of Center for Law and Social Justice at Thomas Jefferson School of Law in San Diego, Calif. Kreit is author of a recent ACS Issue Brief, "Toward a Public Health Approach to Drug Policy."


    Last Thursday, the Senate approved the nomination of Gil Kerlikowske to head the Office of National Drug Control Policy (ONDCP)-a position commonly referred to as "drug czar." With issues like the economy and national security looming large, drug policy is not the high profile issue it once was in the late 1980's and early 1990's when, at one point, 64 percent of Americans listed drugs as the country's "greatest problem."

    But, while drug abuse may not be the most pressing issue we face today, Kerlikowske will be taking office in the midst of an unprecedented shift in attitude among both policy-makers and the public opinion about our nation's drug policy. Since the beginning of 2009 alone, we've seen the Latin-American Commission on Drugs and Democracy led by three former Latin American Presidents (from Bolivia, Columbia, and Mexico) issue a report calling the war on drugs a "failed war," a proposal by Senator Jim Webb to create a blue-ribbon commission with an eye toward overhauling our criminal justice system, and the introduction of legislation in California to tax and regulate marijuana like alcohol. And, within just the past week California Gov. Arnold Schwarzenegger said "it's time for a debate" about legalizing marijuana, and a Zogby poll found that 52% of voters nationwide support marijuana legalization. 

    In short, evidence is mounting that Americans want to put an end to our nearly forty-year failed war on drugs.

    The question for Kerlikowske (right) and Obama will be whether they decide to take the lead in reforming drug policy or leave the task to the next administration. 

    The early signs have been encouraging that President Obama does not plan to blindly follow the drug war policies of the past. Since taking office, Attorney General Eric Holder has said that the administration will no longer raid medical marijuana clubs in states with medical marijuana laws and his office has called on Congress

  • May 13, 2009

    Roll Call reports:

    As Senate Majority Leader Harry Reid (D-Nev.) moves to ease a backlog of executive branch nominations, he suggested on Tuesday that he does not have the votes to bring up President Barack Obama's pick to run the Department of Justice's Office of Legal Counsel.

    "Right now we're finding out when to do that," Reid said, responding to a question about the status of Indiana University law professor Dawn Johnsen's nomination to the Justice post. "We need a couple Republican votes until we can get to 60."

    According to the Washington Monthly, "this is just ridiculous." [Emphasis and links theirs.]

    Let's also take a moment to note that Johnsen is an exceptional nominee, who is unquestionably qualified, and clearly deserves confirmation.

    That said, what kind of show is Harry Reid running here? His caucus has 59 members, and Sen. Dick Lugar of Indiana, a conservative Republican, has already endorsed Johnsen's nomination. We have Democratic senators who won't even let the president's choice for the OLC get a vote because she's pro-choice?

    Firedoglake's Christy Hardin Smith is no less appalled

  • May 13, 2009

    Congratulations to Profs. Reva Siegel and Jack Balkin, regular ACS contributors, who co-edited the just released compilation The Constitution in 2020. Balkin observes:

    The contributors to the book include some of the best known names in constitutional and civil rights law, including the Deans of Yale and Stanford, the President of the American Association of Law Schools, several nominees for positions in the new Obama Administration, and indeed, several people who have been mentioned as potential Supreme Court nominees. The book tackles a wide range of issues, including the challenge of new technologies, presidential power, international human rights, religious liberty, freedom of speech, voting, reproductive rights, and economic rights. 

    Balkin and Siegel will be headlining a panel discussion on the book at the 2009 ACS National Convention. All attendees of the Convention will receive complimentary copies of this important volume.

  • May 12, 2009
    Guest Post

    By Christopher L. Eisgruber, Provost & Laurance S. Rockefeller Professor of Public Affairs, Princeton University and author of The Next Justice: Repairing the Supreme Court Appointments Process

    By now everyone knows that President Obama intends to appoint a Supreme Court justice with "empathy." In a recent press conference, Obama said that a great jurist must be capable "of understanding and identifying with people's hopes and struggles."

    Nothing new here: empathy has been a persistent theme in Obama's remarks about the Court. On the campaign trail, he said that "we need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom." In 2005, when he was a United States Senator voting against the nomination of John Roberts to be Chief Justice, Obama praised Roberts for decency, humility, and adherence to precedent, but faulted him for a lack of empathy.

    Predictably, conservative senators and pundits have complained that Obama is planning to choose a jurist who will follow her (or his, but probably her) feelings instead of the law. Obama has a ready answer. When he voted against Roberts, he explained that in the most important 5% of constitutional cases, text and precedent leave the outcome unresolved. No justice can interpret the Constitution without appealing to something else-such as empathy.

    Obama has the better of this argument-right up until the last point. Obama is right that hard cases require contestable judgments that go beyond text or precedent. He is right that we should want Supreme Court justices who recognize the need to protect disadvantaged minorities and vulnerable individuals. He is right, too, that a good justice has to understand the hopes and struggles of the litigants on either side of the case. Ultimately, though, empathy is not enough to decide cases or choose justices.

  • May 12, 2009
    The U.S. Senate Foreign Relations Committee today voted 12-5 to forward to the full Senate President Obama's nomination of Harold Koh to be the State Department's legal adviser. Koh, dean of Yale Law School, has garnered opposition from conservative pundits. But Ted B. Olson, former solicitor general during the Bush administration, has defended the nomination of Koh, calling him a "brilliant scholar and a man of great integrity."