Prosecutors are rarely held accountable for acts of misconduct or abuses of power in our country. Yet another example of this reality comes from a case out of Florida, where prosecutors engaged in egregious, intentional courtroom misconduct throughout the trial. The Third Circuit Court of Appeals ultimately upheld the conviction in the case because they found that the misconduct did not affect the outcome of the trial.
The law provides judges with tools that guide them to weigh prosecutorial misconduct against the facts of a case to determine whether the misconduct was severe enough to affect the outcome of the trial. Regardless of what appellate courts decide (i.e., to uphold the conviction or remand it for retrial), the simple truth is that misconduct has occurred. Unfortunately, the system does not provide judges with tools to guide them on how to address acts of prosecutorial misconduct. While defense attorneys, fellow prosecutors, and judges are ethically obligated to report acts of misconduct by prosecutors to the proper disciplinary authority, this reporting rarely happens. When prosecutors do face disciplinary proceedings, meaningful sanctions are uncommon and rarely go further than a public censure.
Most of the early talk on potential replacements for David Souter on the Supreme Court has centered around gender and ethnicity. But, there are some other factors that should be considered in the pick:
What about someone who didn't go to an elite school?Just about every name that has come up focuses on Ivy League, Stanford and University of Chicago graduates, professors, and deans. While this may come as a shock, there are brilliant minds that didn't attend or teach at such institutions. For example, Diane Wood attended the University of Texas. I like that.
What about someone who isn't a judge? Thurgood Marshall was appointed to the Supreme Court after serving as a judge for four years, but really he would have been eligible just from his work at the NAACP. Why not look at other people involved with the legal system who are not judges, such as lawyers and elected officials? What about environmental or civil rights lawyers who have led monumental legal victories in our own time? The lead lawyers on gay marriage cases in Iowa and Massachusetts come to mind, even if I don't know their names.
What about someone who is actually a liberal? I know that this is a really craaazy idea, but perhaps it should at least be considered. Sonia Sotomayor, who has a great personal story and seems to be getting the most buzz, is considered a moderate by her colleagues. However, the court lurched to the right when Samuel Alito replaced Sandra Day O'Connor, and that is an imbalance that needs to be addressed. Finding a liberal is just as vital to restoring diversity on the court as finding a woman or a minority.
There is more at play here than just gender and ethnicity. Also, there are many women and minorities who also meet he guidelines listed above. Let's take a broader view.
NPR has learned that Supreme Court Justice David Souter is planning to retire at the end of the current court term.
The vacancy will give President Obama his first chance to name a member of the high court and begin to shape its future direction.
At 69, Souter is nowhere near the oldest member of the court. In fact, he is in the younger half of the court's age range, with five justices older and just three younger. So far as anyone knows, he is in good health. But he has made clear to friends for some time that he wanted to leave Washington, a city he has never liked, and return to his native New Hampshire. Now, according to reliable sources, he has decided to take the plunge and has informed the White House of his decision.
Factors in his decision no doubt include the election of President Obama, who would be more likely to appoint a successor attuned to the principles Souter has followed as a moderate-to-liberal member of the court's more liberal bloc over the past two decades.
In addition, Souter was apparently satisfied that neither the court's oldest member, 89-year-old John Paul Stevens, nor its lone woman, Ruth Bader Ginsburg, who had cancer surgery over the winter, wanted to retire at the end of this term. Not wanting to cause a second vacancy, Souter apparently had waited to learn his colleagues' plans before deciding his own.
The 2008 election really was a close call. If John McCain had been able to appoint Souder's replacement, it almost certainly would have tipped the court against, among many other things, Roe vs. Wade.
It is quite possible both to appoint a more progressive Justice than Souder, and also to increase the lacking diversity on the court. Given the current balance, appointing a woman to fill Souder's position is a must, and appointing a minority woman might also be essential. Further, this might be a situation where having 60 seats in the Senate is actually useful, as any Democrats voting against President Obama's nominee from the right can easily be painted as the ultimate party backstabbers.
Barack Obama has long argued that he has shown better foreign policy judgment than his remaining presidential rivals, specifically in opposing the Iraq war.
But at a fund-raiser in San Francisco over the weekend, he reportedly made the case that he has more foreign policy knowledge and understanding as well -- a claim getting a lot of blowback from presumptive Republican nominee John McCain and Democratic contender Hillary Clinton.
According to an account posted online on The Huffington Post, Obama was answering a question about what he would look for in a running mate if he wins the nomination. "I would like somebody who knows about a bunch of stuff that I'm not as expert on," he replied. "I think a lot of people assume that might be some kind of military thing to make me look more commander-in-chief-like. Ironically, this is an area -- foreign policy is the area where I am probably most confident that I know more and understand the world better than Senator Clinton or Senator McCain."
Clinton took exception when asked about the comment while making the rounds of the morning TV shows in advance of the long-awaited testimony today by General David Petraeus, the top US commander in Iraq, and Ambassador Ryan Crocker, the top US diplomat.
She laughed, actually, before responding on Fox News. "Well I'm somewhat shocked by that since I don't see any evidence of it," she said. "This is kind of hard to square with his failure to ever have a single policy hearing on the only responsibility he was given, chairing the European and NATO subcommittee the foreign relations committee.
"I don't know," she continued. "I'm speechless. Making an assertion like that belies the facts and the record."
I won't engage this debate on its merits, because quite frankly I don't think it has any merits. Democrats should not engage in value-neutral and non-ideological arguments over qualifications to be President, including foreign policy experience, foreign policy knowledge, and the number of times someone has held a committee hearing. Obama in particular needs to avoid this line of argumentation, because for a long time he had it right when he emphasized foreign policy judgment. This is because the amount of time someone has spent dealing with or studying foreign policy does not, in and of itself, make someone better at foreign policy.
During the two Supreme Court nomination fights under Bush, Roberts and Alito, the Republican / conservative strategy was the same: emphasize how the extensive experience of Roberts and Alito made them qualified to serve on the Supreme Court, in and of itself, rather than any views they might actually hold on interpreting the Constitution. They put forth non-ideological arguments over Supreme Court qualifications, and two conservative judges breezed through the nomination process as a result.
If Democrats openly engage in the same sort of non-ideological arguments over qualifications to become President, then we could see another conservative, John McCain, breeze through an election to become President no matter what extreme foreign policy positions he may hold. The point of Presidential "qualifications" should not be how long someone has spent on a topic such as foreign policy, but rather the views that candidate holds on foreign policy. If experience was the criterion, then people like Dick Cheney should be considered eminently "qualified" to be President, no matter how bad he would continue to screw up the country.
In a political environment that strongly favors progressive and center-left viewpoints, when Democrats make arguments about who would be a better President, those arguments should be based in terms of policy and ideology, not the number of lines on a resume. Otherwise, we will fail to capitalize on the highly favorable electoral situation we face, as we fail to draw clear distinctions between ourselves and our Republican opponents.
Asked on CBS's The Early Show whether she and Obama should be on the same ticket, Clinton said: "That may be where this is headed, but of course we have to decide who is on the top of ticket."
In a Cabinet-style setting, surrounded by retired military leaders, Sen. Hillary Clinton said the public should ask whether Democratic presidential rival Barack Obama has met the criteria needed to become the nation's commander in chief.
"I think that since we now know Sen. (John) McCain will be the nominee for the Republican Party, national security will be front and center in this election. We all know that. And I think it's imperative that each of us be able to demonstrate we can cross the commander-in-chief threshold," the New York senator told reporters crowded into an infant's bedroom-sized hotel conference room in Washington.
"I believe that I've done that. Certainly, Sen. McCain has done that and you'll have to ask Sen. Obama with respect to his candidacy," she said.
Calling McCain, the presumptive GOP nominee a good friend and a "distinguished man with a great history of service to our country," Clinton said, "Both of us will be on that stage having crossed that threshold. That is a critical criterion for the next Democratic nominee to deal with."
To imply to Democratic voters "it's OK to vote for me, because I'll pick Obama as VP," and then to turn around and imply that "Obama is not qualified to be President, but John McCain is," is both contradictory, self-defeating, and, shall we say, not entirely forthcoming. Maybe someone should ask Clinton why she would pick a Vice-President who she thinks is not qualified to become President. Or, maybe someone should ask her why she wouldn't pick McCain as her Vice-President, since she thinks he is so well-qualified on national security issues.
Another thing that bothers me about this attack is how it is not based in policy. Why are ideological concerns, such as whether or not you think we should bomb Iran, not considered "qualifications" to be Commander In Chief? Conservatives have rammed a couple of Supreme Court Justices onto the highest court by arguing that it doesn't matter what they decide, it only matters if they are experienced judges. That, of course, is hogwash. Ideological interpretation of the Constitution, and foreign policy judgment, are absolutely part of what makes someone "qualified" to become either a Supreme Court Justice or Commander in Chief. If judgment played no role, then Bush would be far more qualified to be "commander in chief" than any of the candidates running.
Clinton's hawkish foreign policy has always been a reason why I leaned toward other candidates in the nomination campaign. That Obama consistently argues foreign policy judgment on issues like Iraq are main qualifications to become commander in chief is one specific reason why I favor him in the campaign.
