Lethal Injection Could Be Dangerous

"There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe....."
Decision by US Supreme Court regarding a lethal-injection drug (1)

The 5-4 decision quoted in part above reversed the orders by a federal judge in Phoenix, Arizona, and the US 9th Circuit Court of Appeals that temporarily halted the execution by lethal injection of Jeffrey Landrigan, who had been convicted of murder in 1989.

The issue was the drug sodium thiopental, a poison no longer manufactured in the United States. Arizona prison officials had obtained the drug from a British manufacturer. Lawyers for Landrigan sought to halt the execution on the grounds that the foreign drug was "unsafe" for its intended use. The US District Court in Phoenix agreed, as did the 9th Circuit.

Since I am not a lawyer, I cannot fathom how a drug made to kill people could be "unsafe for its intended use." Since the lawyers for the condemned man had no evidence that the drug would not work as intended, the majority (2) of the Supreme Court let Arizona go ahead and use it . Guess what? It worked perfectly! ( Even so, Landrigan lived 21 years after being sentenced to death, over two decades more than his victim had.)

Wisconsin abolished the death penalty in 1853, and I do not advocate re-instating it. If I could be shown that the death penalty saves the lives of innocent people by deterring murder, I would be for it. But the evidence from other states indicates that it has no appreciable effect. It does not even draw serial killers to Wisconsin; Ted Bundy killed 12 women in Texas and Florida, the states with the highest execution rates in the country, and he died for it. (Had he done so only in Wisconsin, he might still be alive.) Jeffrey Dahmer killed 18 men here, but he was from Milwaukee originally, and was murdered in prison.

But the death penalty is constitutional, and most states and the federal government still use it. Lethal injection, even using foreign drugs, is actually less cruel than any of the methods used when the Constitution and Bill of Rights were adopted (mostly hanging and shooting.)

To me the appeal based upon the questionable "safety" of the British thiopental is absurd. It reminds me of the story about how a rat poison was taken off the market because laboratory tests proved that a red dye ingredient caused cancer-----in rats.
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(1) McClatchy News Service, October 28, 2010.

(2) Justices Roberts, Alito, Thomas, Kennedy and Scalia voted to reverse the stay of execution; Justices Sotomayor, Breyer, Ginsburg and Kagan voted to uphold it.



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Confirm or Reject?

"..I'm afraid we have a dangerous, progressive, political-type nominee"
Alabama Republican Senator Jeff Sessions, July 28, 2010

I presume that Senator Sessions means to distinguish Elena Kagan from previous nominees such as John Roberts and Samuel Alito, who must have been non-polltical. They certainly were not progressive. But really that is the whole point: judicial nominees tend to share the general political orientation of the President who appoints them, or at least the President thinks so.

Unlike Senator Sessions, I have no problem with a "political-type" nominee, even one whose political ideology is very different from my own. One of the consequences of a presidential election is the philosophy of the federal judges that the new president will appoint. If liberal presidents appoint qualified liberals and conservative presidents appoint qualified conservatives, over time the courts will be filled with qualified people with varying viewpoints; I believe that this is the way our system should work. Since most policy-making decisions are made by appellate courts with three to nine members participating, these decisions will reflect a broad consensus of judicial philosophies.

It has become customary in recent decades for Supreme Court nominees to say as little as possible about their political or judicial views at confirmation hearings, promising only to render fair decisions based upon the law. The truth is that anyone in public life long enough to be nominated to the Supreme Court would have some well-considered opinions about how the Constitution should be understood and applied, and I would prefer that nominees would be more open about them. For example, if a nominee were asked whether Brown vs Board of Education (1) should be affirmed or reversed, I would prefer the nominee to respond without hesitation, "I would vote to affirm Brown!" Recent nominees have refused to comment on cases that may come before the Court.

If Supreme Court nominees should not be rejected for their judicial philosophies, then when should a nominee be rejected? During my lifetime only three nominees were rejected by the Senate (Haynsworth, Carswell and Bork) while three other nominations were withdrawn ( Thornberry, Ginsburg, and Miers). I wish the Senate had also rejected Clarence Thomas, who shamelessly played the "race card" by labeling his confirmation hearings a "high-tech lynching." Thomas, who had been accused in sworn testimony of repeated acts of sexual harassment, was confirmed anyway.

The Bork story is a good example of a justified rejection. Older readers will recall that Bork was US Solicitor General during the Watergate era. When President Richard Nixon ordered Attorney General Elliot Richardson to fire Special Counsel Archibald Cox (despite pledging not to interfere with his work), Richardson resigned rather than carry out the reprehensible order. Nixon then ordered Deputy AG William Ruckelshaus to fire Cox, and he, too, resigned rather than comply. But when Nixon then ordered the Acting AG Robert Bork to fire Cox, Bork fired him. This outrageous act ultimately brought Nixon down.(2) Fourteen years later, Democratic senators remembered this when they voted to reject President Ronald Reagan's nomination of Bork to the Supreme Court.

Of course Elena Kagan is a liberal, as would be anyone that Barack Obama could conceivably nominate. (In his later years retiring Justice John Paul Stevens was also often aligned with the liberals, although I doubt that President Gerald Ford considered him one when he appointed Stevens to the Court in 1975.) Maybe Senator Sessions and most of his fellow Republicans are so intent on beating Obama on something that they would vote to reject any Obama nominee. But Kagan's credentials are solid, and her closet has no skeletons. Four Republican senators are already committed to voting for her, and that is more than she will need for confirmation.

Mazel Tov!
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(1) This decision ruled that segregation of public schools in Topeka, Kansas, was unconstitutional. It was a landmark ruling in breaking down segregation and white supremacy in the South.

(2) The Cox dismissal spurred calls for impeachment hearings by the House Judiciary Committee, which voted to impeach Nixon in early August, 1974. Nixon resigned August 9.

The New Jewish Justice

President Barack Obama nominated Solicitor General Elena Kagan to the seat on the US Supreme Court now held by Justice John Paul Stevens, who is retiring. If confirmed ( a "slam dunk"), she will be the eighth Jew to serve on the Court and will increase the Jewish share of the Court to one-third, an all-time high. Obama, in less than two years in office, will have appointed more Jews to the Supreme Court than the last six Republican presidents combined.

Here is a brief look at the history of Jewish members of the Supreme Court:

In 1916 President Woodrow Wilson appointed prominent Jewish attorney Louis D Brandeis to the Supreme Court. At that time Jews were routinely excluded from most law firms, corporations, resorts and suburbs. This appointment showed the Jews that the Democratic Party was especially favorable to their ambitions in American politics.

President Herbert Hoover appointed Benjamin Cardozo to the Court in 1932. After he died in 1938, President Roosevelt appointed Felix Frankfurter to the seat, which later became known as the "Jewish seat" on the Court. He was succeeded by Arthur Goldberg in 1962. When President Lyndon Johnson appointed Goldberg to be the US Ambassador the to UN in 1965, Johnson then appointed Abe Fortas to the seat. However, Fortas was forced to resign in 1969.

Then the "Jewish seat" vanished as President Richard Nixon nominated one gentile after another to fill the seat until finally Harry Blackmun was confirmed. (1)

In 1987 President Ronald Reagan nominated Jewish federal judge Douglas H Ginsburg to succeed Justice Lewis Powell, but the nomination was withdrawn after it was revealed that Ginsburg had been smoking marijuana.

Both current Jewish Justices Stephen Breyer and Ruth Bader Ginsburg were appointed by President Bill Clinton .

Could the need to placate Jewish voters (and donors) before the 2010 congressional elections have been a factor in the selection of Elena Kagan? While Jews were more supportive of Barack Obama for President than any other white (non-Hispanic) ethnic group in 2008, many have turned against him over his hostility towards Israel. For example, publishers Mort Zuckerman (US News & World Report and NY Daily News) and Martin Peretz (The New Republic) both endorsed Obama for President, but have soured on him over Israel.

Although Jews comprise less than 3 percent of the US population, they vote and participate in politics at a higher rate than other ethnic groups. Morevoer, they are concentrated in big states in which the two major parties are highly competitive. For instance, this year the Jewish vote will be crucial in senate races in New York and Florida.(2) Jews can also tip the balance in a number of suburban congressional districts. That is also why Republicans will not filibuster the Kagan nomination: GOP senators from swing states will not dare antagonize their Jewish constituents. Whatever votes are cast against confirmation will be from hard-core Republican states in which the Jewish vote is insignificant.

Some will complain that Kagan has no judicial experience, but if Obama wanted a Jewish woman with that experience he might well have picked Judge Judith Scheindlin. Her confirmation hearings would have made great TV!

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(1) Tapes of his conversations prove that Nixon disliked American Jews, except for Henry Kissinger. His first choice to succeed Fortas was Clement Haynsworth, who was rejected by the Senate. His second choice, Harold G Carswell, was also rejected. Blackmun had no problem.

(2) Senator Arlen Specter of Pennsylvania is also facing a tough race, but since he is Jewish himself I believe he would garner the Jewish vote anyway. Since the Florida race features three serious candidates, even a small group can make a big difference!

Don't Cross Me!

The US Supreme Court ruled April 28 in Salazar vs Buono that the US District Court for Central California must review its 2005 ruling that the transfer of land in the Mojave Desert bearing a metal Latin cross from the federal government to the Veterans of Foreign Wars (VFW) was unconstitutional. The land was given to VFW by Congress in 2004 because the Court had ruled in 2002 that the placing of the cross on federal land by VFW in 1934, to honor American soldiers killed in World War I, was a violation of the First Amendment's establishment clause. The Ninth Circuit of the US Court of Appeals had upheld the decision in the case brought by Frank Buono, a former employee of the National Park Service.

Speaking for the Court, Justice Anthony Kennedy wrote, " Here one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles..." Justice Kennedy was joined by Chief Justice Roberts and Associate Justices Scalia, Thomas, and Alito.

In a dissent joined by Associate Justices Ginzburg, Breyer and Sotomayor, Justice John Paul Stevens wrote that the government "cannot lawfully (honor fallen soldiers) by continued endorsement of a starkly sectarian message." (1)

The court should have applied the famous "Lemon Test" (2) to this case. In this 1971 ruling, the Court held that every valid law must have a "secular legislative purpose." Since the Court did not reverse Lemon in the Buono decision, the Court must have considered the transfer of the land bearing the cross to the VFW to have had a "secular purpose;" in the words of Justice Kennedy, to evoke the crosses on American military graves.

The trouble with his reasoning is that not all of these graves bear crosses; Jewish soldiers have died in every major war that America fought since the Civil War, and recently Muslims have also perished in combat for the USA. The graves of these soldiers bear the Magen David or the Crescent. Moreover, a large (but unknown) number of fallen American soldiers held no religious beliefs at all. (3) The cross, which symbolizes the crucifixion of Jesus of Nazareth, is the logo of Christianity, and of no other religion or system of philosophy. As such, it should never be used by the federal government to honor the sacrifice of fallen soldiers, many of whom were not Christians.

Those who oppose the intrusion of the federal government into the lives of Americans should deplore the Buono decision, since the promotion of any particular religion is clearly outside the proper role of that government. This is my view.

It is particularly noteworthy that the only justice appointed by President Barack Obama, Sonia Sotomayor, voted to affirm the ruling of the district court that the cross must go. Readers will recall that the central reason given by the Glazerbeam to prefer Obama over John McCain for president was that Obama was more likely to appoint judges more supportive of civil liberties and the separation of church and state. (4) Justice Sotomayor has confirmed this expectation in this case. Had the election gone the other way, I believe the vote cast by the newest justice would also have gone the other way.

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(1) The Associated Press, April 29, 2010.

(2) Lemon vs Kurtzman, 403 US 602 (1971).

(3) I would suggest the Question Mark (?) as the symbol for agnosticism. However, agnostics are not organized enough to get together and adopt a symbol.
Empty space might be a good symbol for atheism, but I cannot draw or model it.
For Wicca, how about the Broomstick?

(4) See "Reject McCain and Palin", October 6, 2008.

Uncle Sam, Don't Preach!

US District Judge Barbara Crabb of Madison ruled April 15 that a 1988 law requiring the President to declare the first Thursday in May as National Prayer Day is unconstitutional. (1) The case was brought by the Freedom From Religion Foundation, based in Madison.

Those who are most vehemently opposed to the intrusion of the federal government into the lives of individual Americans can be expected to applaud this ruling, though so far they have not been heard from. Certainly, if any area of a person's life should be off-limits to government, it would be that of religious belief and practice. Rev. Billy Graham suggested a national day of prayer in 1952, and the Campus Crusade for Christ urged the passage of the bill that made it official. But the US Supreme Court has ruled that every law must have a secular purpose, and Judge Crabb found that this one does not. Rather, its sole purpose contravenes the Establishment Clause of the First Amendment.

Now, I am not against prayer; in fact I pray every day. I have been praying since about 1952, and have never needed the slightest reminder from any government official to do so. The issue is not prayer itself, but rather whether a government official should officially advocate it.

While the Justice Department is considering whether to appeal the decision, the White House indicated that President Obama will issue the proclamation on May 6, as previously planned. Judge Crabb has stayed enforcement of her decision pending filing of an appeal. Given the rock-solid legal basis for the decision, it is hard to believe that either Obama or Attorney General Eric Holder have any enthusiasm for appealing it. ( 2) Even a pro-forma appeal will give private groups that favor public prayer an opportunity to file an amicus brief supporting the law. Although President Obama could simply accept the decision and cancel the proclamation, only a decision by the Supreme Court would be clearly binding upon future presidents. Accordingly, I would favor cancelling the proclamation but appealing only for the purpose of securing a binding decision at the highest level.

The National Prayer Day law is not coercive, but merely symbolic. The symbolic meaning is that it is right and proper for the federal government to recommend that Americans pray. To do this I say, "Thanks, but no thanks, I will decide that for myself on the first Thursday in May and every other day of every other year." I trust that the US Circuit Court of Appeals and the Supreme Court will say the same.
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(1) Milwaukee Journal Sentinel, April 16, 2010, page 1.

(2) Unlike his predecessor, Obama's religious beliefs do not appear to have any noticeable influence on his official actions.

McCain Wrong on "Detainees"

"Liberty and security can be reconciled....within the framework of the law......habeas corpus must be a part of that framework....."
Justice Anthony Kennedy, speaking for the US Supreme Court, in the decision on Boumediene v Bush, June 12, 2008.

"One of the worst decisions in the history of this country."
Senator John McCain, June 13, 2008, regarding this decision.

The Court ruled 5-4 that a provision of the Military Commissions Act of 2006 that denied "detainees" at the Guantanamo US Naval Base in Cuba (1) the right to file petitions of "habeas corpus" was unconstitutional. (The term "detainees", which is suggests students kept after school, is a euphemism for "prisoners," a more accurate description of their condition.) The Latin words "habeas corpus" mean "bring the body" and refer to a demand that an arrested person be brought into court for legal determination of the right of the government to hold him in custody.

Article I, Section 9, Paragraph 2, of the Constitution of the United States says, " The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Senator McCain has argued that since the detainees are not American citizens, they are not entitled to the rights cited in our Constitution. However, the provision quoted does not limit the right of habeas corpus to US citizens, or even legal residents. Many other provisions of the document, including the amendments (particularly the Fourteenth) explicitly refer to the rights of citizens, but this provision does not.

Columnist Cal Thomas wrote, " Didn't the September 11 terrorists invade America for the purpose of harming us?" (2) Apparently Thomas believes that this "invasion" would trigger the exemption to the habeas corpus right cited in the Constitution. This is a stretch: all 19 terrorists entered the US with valid visas, despite the fact that some were on CIA lists of persons who had been trained by Al Qaida. (3) The inability of our government to properly screen visa applicants does not make their entry any kind of "invasion".

The Court said, in effect, that our Constitution protects anyone under the control of our government, including prisoners-of-war, illegal aliens, drug-smugglers, and even suspected terrorists. Many American presidents have proclaimed that the United States supports the human rights of all people, not just those of Americans. They have often criticized dictators for holding people deemed "enemies of the state" in concentration camps, the Gulag and other prisons without trials. Now the Supreme Court has demanded that our own government implement its stated ideals, starting with the detainees at Guantanamo. Amen!

Senator McCain may be interested to note that three of the five justices who rendered this decision were appointed by previous Republican presidents: Anthony Kennedy (Ronald Reagan), David Souter (George H W Bush) and John Paul Stevens (Gerald Ford). Would a President McCain appoint jurists with less reverence for Constitutional rights?

McCain may be a moderate, and he may be a maverick, but he is not "your father's Republican."

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(1) The land on which the base is located was leased from Cuba in 1903, and the lease renewed in 1934 in perpetuity. In 1962 Cuban dictator Fidel Castro demanded the US leave Guantanamo, but the US has refused to terminate the lease.

(2) "Ruling on Detainees Harmful", Milwaukee Journal Sentinel, June 19, 2008, page 11A. (Op-Ed Page)

(3) Most entered on student visas, since they planned to attend flight schools. Months after the attacks, terrorist pilot Marwan Al-Shethi received a 6-month extension of his visa. (I am not making this up!)