Does the Congress have the right to limit Fifth Amendment rights by passage of a statute? This seems like a simple question to which the answer is an emphatic No. But the Obama Administration's position on this puts this view in doubt:

The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights [. . .] Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling. It generally forbids prosecutors from using as evidence statements made before suspects have been warned that they have a right to remain silent and to consult a lawyer.

Does Elena Kagan believe that Congress can restrict fundamental Constitutional rights by mere passage of a statute? Let's hope not. I'll have more on this silly election year proposal from the Obama Administration in a later post.

Speaking for me only

Joe Sestak sent this press release:

Democratic U.S. Senate candidate Congressman Joe Sestak released the following statement today on President Obama's nomination of Solicitor General Elena Kagan to the Supreme Court:

"I applaud President Obama's selection of Elena Kagan to serve as our next Supreme Court Justice. The President's background as a Constitutional law professor served him well in selecting Justice Sotomayor, and I believe it has again in this case. "Ms. Kagan's qualifications as both a respected legal mind who rose to be Dean of Harvard Law School and a key domestic policy adviser for President Bill Clinton, who helped formulate and implement policies in areas including education, crime and public health, will allow her to bring a breadth of experience to the bench.

[. . .] "Senator Specter has rightfully said that confirming nominees to the Supreme Court is one of the most important duties of a Senator. The people of Pennsylvania and this country deserve someone they can count on to be objective and act in the best interest of the nation -- not to exploit such an important process for their own political gain."

Joe Sestak's impulse to rubberstamp the President's choice puts his ability to carry out this function in serious doubt to me. I deplore his desrie to be the first to rubberstamp President Obama's choice of Elena Kagan. Bad show Rep. Sestak.

Speaking for me only

One of the mistakes, in my view, of critics of President Obama's choice of Elena Kagan for the Supreme Court is their view that Obama is afraid to fight for his values. This gets it wrong imo. Obama has supple values, he is a pol after all. My surmise is that Obama hopes Kagan is like Cass Sunstein (and maybe Kagan has let him think so.) I hope she is not. For once, HOPE is the appropriate word. Glenn Greenwald writes:

The New York Times this morning reports that "Mr. Obama effectively framed the choice so that he could seemingly take the middle road by picking Ms. Kagan, who correctly or not was viewed as ideologically between Judge Wood on the left and Judge Garland in the center." That's consummate Barack Obama. The Right appoints people like John Roberts and Sam Alito, with long and clear records of what they believe because they're eager to publicly defend their judicial philosophy and have the Court reflect their values. Beltway Democrats do the opposite: the last thing they want is to defend what progressives have always claimed is their worldview, either because they fear the debate or because they don't really believe those things [. . .]

(Emphasis supplied.) I vote for B. But what does this tell us about Elena Kagan? Not much in my view. Indeed, here is the perfect opportunity for the Senate to reseize its constitutional responsibilities of advise and consent, not rubber stamping of a President's choice for the SCOTUS. More so than any recent nominee, no one really knows what Kagan thinks about much of anything. As Glenn notes, the issue of the exercise of the advice and consent Constitutional responsibility of the Senate is one of longstanding for me:

President Obama will name U.S. Solicitor General Elena Kagan today to replace retiring Supreme Court Justice John Stevens.

A New Yorker who grew up in Manhattan, Ms. Kagan earned degrees from Princeton, Oxford and Harvard Law School, worked briefly in private practice, clerked for Justice Thurgood Marshall, served as a Senate staff member and worked as a White House lawyer and domestic policy aide under President Bill Clinton.

Considering the most likely alternative was Judge Merrick Garland, formerly a top DOJ prosecutor, I'm glad. I think we dodged another Alito and Roberts bullet. Her only past job that gives me pause: She was a special counsel to Joe Biden when he served on the Senate Judiciary Committee in the early 90's. [More...]

Tomorrow night, the Denver City Council will consider an immigration reform proclamation that includes:

NOW THEREFORE,BE IT PROCLAIMED BY THE COUNCIL OF THE CITY AND COUNTY OF DENVER:

Section 1. That the Council of the City and County of Denver calls upon President Barack Obama, the United States Congress, and our Colorado congressional delegation, to take swift and responsible legislative action to produce fair, humane, effective, and comprehensive federal immigration reform - reform that enhances American stability, security, and prosperity by: providing for robust border control; enforceable immigration laws; family unification; a rate and system of controlled immigration that matches the needs of our economy; a path to earned legalization, citizenship, and social integration for our existing immigrant workforce and their families; equitable access to higher education for immigrant students already being educated in American public schools; enhanced enforcement of labor laws; and bilateral partnerships with other countries to promote economic development that will reduce the flow of immigrants in the first place.

If you'd like to call your city council representative and ask them to support it, here's the contact information.

Why do they overload Sunday nights with so many watchable programs?

There's a new Pacific, Nurse Jackie Celebrity Apprentice, Desperate Housewives and Brothers and Sisters. My favorite which I'm saving for last will be AMC's "Breaking Bad" when we find out what happened to Walt's brother-in-law Hank, the DEA agent who took a ton of bullets in a parking lot last week, right after he got fired for beating up meth cook Jesse and turned in his badge.

I hope you all enjoyed Mother's Day. I did -- "Girl with the Dragon Tattoo" was really good, and if you read the book, you won't be disappointed.

It looks like Elena Kagen may be nominated for the Supreme Court tomorrow. At least she's not a former prosecutor. After John Roberts and Sam Alito, it's time for a change from that pattern.

This is an open thread, all topics welcome.

I really tired of Facebook months ago and stopped accepting friends I don't know and haven't heard of. I changed all my privacy settings to "friends only" or "just me" and deleted most of my "pages" and "causes." But I still don't trust it (and something about adding myself as a "fan" rather than a "friend" (required for those with over 5,000 friends) that just rubs me the wrong way.)

I don't like when people post their self-promotional material on my "wall." I don't like reading that x and y became friends. There's probably fewer than 50 friends whose postings and photos I'm interested in.

And now, there's more reason not to trust Facebook.

I wouldn't mind if Facebook crashed and burned, and took Linked In and all the others with them. They were entertaining for a while, but the negatives far outweigh the positives.

Anyone disagree?

There are a lot of articles this weekend on the enhancement of a 1970 Kent State shooting audio recording, reporting new analysis provides evidence the Guards were ordered to shoot.

"Guard!" says a male voice on the recording, which two forensic audio experts enhanced and evaluated at the request of The Plain Dealer. Several seconds pass. Then, "All right, prepare to fire!"

"Get down!" someone shouts urgently, presumably in the crowd. Finally, "Guard! . . . " followed two seconds later by a long, booming volley of gunshots. The entire spoken sequence lasts 17 seconds.

The tape was discovered in the library in 2007. Here's the recording released that year. Further analysis was performed this year by two experts. [More...]

A judge in Colorado Springs is taking this weekend to decide whether a 13 year old, who fatally shot his brother and stabbed and shot his mother (she survived) should be tried as a teen or adult.

Experts testified the boy was sleep-walking and in a trance at the time, unaware of what he was doing. He had no prior history of misconduct. His parents are pleading with the court to have him tried as a juvenile. The prosecutors want him tried as an adult for second-degree murder.

Daniel Gudino is accused of shooting his 9-year-old brother, Ulysses Jr., to death and shooting and stabbing his mother, Marina, on May 18, 2009, in the family’s home at 1837 Chapel Hills Drive.

Marina Gudino told 4th Judicial District Judge David L. Shakes that her son should not be punished for their failure to recognize the seriousness of his symptoms. Doctors testified during the week that the boy suffered from sleep disorders, hallucinations and possibly a developing mental illness.

The judge has heard 40 hours of testimony on the issue. Of course he should be tried as a juvenile. It's why we have a juvenile justice system. This case also shows why it is critical there be independent and neutral judicial oversight of these charging decisions, and that prosecutors not be allowed to make the final call on their own.

What are your plans this Mother's Day? I'm going to sleep in, and in the afternoon, the TL kid and I are going to see "Girl With the Dragon Tattoo."

I'm sorry I've been too busy to blog all week. It's not just things popping in all my cases. I also have a new associate, and for a committed solo practitioner like me, it's a pretty big deal. But what better day to announce it than Mother's Day -- since my new associate is none other than the TL Kid. Who would have thought he'd get there from here?

For all our readers who are mothers, have a great day. And for those of you who are not, I remember how great it feels to get a phone call that begins, "Hi, Mom" when your kid is far away. So don't forget to call.

This is an open thread, all topics welcome.

Open Thread.

LATimes:

The Senate confirmation hearings for the Supreme Court have become "a vapid and hollow charade," a Chicago law professor complained, because the nominees are not forced to say what they think about disputed issues such as abortion, affirmative action and privacy.

It is "an embarrassment," she said, that "senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues." Justice Clarence Thomas won confirmation, she said, even "after his substantive testimony had become a national laughingstock."

These comments from a 1995 article are likely to be a focus of the next Supreme Court hearing if their author — Elena Kagan — emerges as President Obama's nominee. White House aides say the president is near making a decision, perhaps as soon as Monday.

(Emphasis supplied.) Kagan was absolutely right in 1995 and should she be the nominee, then it is time to elevate the confirmation process -- apply the standard Kagan caled for in 1995. The Senate has the right and should demand answers from judicial nominees. If the nominee refuses, then the Senate should not confirm.

Speaking for me only