Scott Lemieux writes:

I’m somewhat puzzled by Matt [Yglesias]’s argument that a concern with Elana Kagan’s civil liberties record is “a quite different thing than the concern that Kagan isn’t a “real liberal” in the Marshall tradition.” Brennan, Marshall and Douglas were much more civil libertarian than any of the Court’s current liberals, and there’s a real danger Kagan that Kagan would be more statist than any of them with the possible exception of Breyer.

(Emphasis supplied.) I think Lemieux has made Yglesias' point here. Indeed, the concerns of libertarians are indeed quite different from those of the traditional liberal - who views the state is a solution, not a threat. Of course, those holding these views often overlap, as they did in Justices such as Brennan and Marshall. But the concerns are, as Yglesias argues, distinct. I can assure you that you will see more libertarian concerns from Jeralyn than you will from me. And I suspect, you will see more statist concerns from me than from Jeralyn. But I imagine we both probably agree on most of these issues. I think Yglesias' point is that libertarian concerns are not equivalent to liberal concerns. I think that's right.

Speaking for me only

When discussing Solicitor General, and probable SCOTUS nominee, Elena Kagan's views on the unitary executive theory, it is important to understand what is meant by the theory of the unitary Executive Branch. I made this distinction during the Alito hearings of 2006. The Bush Administration took what I believe is a respectable theory of a unitary Executive Branch and distorted it to support their lawlessness:

In a speech to the Federalist Society in 2001, Alito said:

When I was in OLC [] . . ., we were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the President. [. . .]

What does that mean? Here's what it means for Bush:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

The infamous Bybee Memo put it this way:

Move over Jessica, Megan and Laci. Here comes Chelsea. A bill has been introduced in California mandating life in prison for some first time sex offenders.

On Monday in Sacramento, Kelly and Brent King announced a bill called Chelsea’s Law, named after their daughter. The bill notably includes a “one strike” provision that would allow prosecutors to pursue a life sentence without parole for forcible sex crimes against a minor when there are aggravating circumstances like torture and kidnapping.

Legislation should never be passed out of grief and passion or in response to a singular event, no matter how horrific. Cooler heads are needed when our fundamental liberties are at stake. One size justice is no justice at all.

The Arizona House has passed a bill similar to one passed by the state Senate criminalizing undocumented presence in the state. With some minor reconciliation changes, it will go to the Governor for signing into law. Included in the bill are provisions that:

• Create a new state misdemeanor crime of willful failure to complete or carry an alien registration document.
• Allow officers to arrest immigrants unable to show documents proving they're legally in the country.
• Ban so-called soft immigration policies at local police agencies and allow people to sue if they feel a government agency has adopted a policy that hinders the enforcement of illegal immigration laws.
• Prohibit people from blocking traffic when they seek or offer day-labor services on street corners.
• Make it illegal for people to transport illegal immigrants if the drivers of vehicles know their passengers are in the country illegally and if the transportation furthers their illegal presence in the country.

This bill gives cops the power to stop and verify the immigration status of anyone they suspect of being undocumented. What a mandate for racial profiling. I hope people boycott Arizona and products made there if this bill gets signed into law. Let their tourism industry suffer the consequences. Visit New Mexico or Colorado instead. [More...]

A federal judge in Denver today ordered the Government to transport former Qwest CEO Joe Nacchio, serving a 6 year sentence at Minersville, PA, to court in Denver to appear at a hearing to decide if his request to waive his appearance at his re-sentencing is knowing and voluntary. The Court of Appeals previously ruled Nacchio's sentence was not properly calculated and he should be resentenced to less time.

This is not good news for Nacchio, unless he's somehow able to convince the Marshals to allow him to pay for and fly on a private jet(which would include the cost of two or more Marshals to accompany him) which I don't know is even allowed. He'll be flying on JPats, aka, Con Air. [More...]

What's on tonight? American Idol (Adam Lambert is back to help advise the contestants, DWTS (someone will go home), the Biggest Loser and Justified.

This is an open thread, all topics welcome.

Last week I wrote that Aspen's much beloved, long-time sheriff, Bob Braudis, decided not to run for re-election. He's been Sheriff for 24 years and a great one, who believes, among other things, the best jail is an empty one.

I was troubled that Aspen police officer Rick Magnuson, whose views are light years from Braudis, and who unsuccessfully challenged Braudis (with some dirty tricks) immediately announced he would run for the job in November. (Braudis raised 10 times the amount of money Magnuson raised in 2006, which tells you something about how the locals feel about their sheriff.)

Good news, Undersheriff Joe DiSalvo has thrown his hat in the ring. DiSalvo is a good guy who shares Braudis' enlightened philosophy. Like telling the DEA to stay out of Dodge. [More...]

The attorney general's office pledged to get to the bottom of the situation, saying its expanded inquiry will seek to determine whether the university foundation, which has assets of more than $20 million, is spending its money to benefit the campus, as it promises donors, the university and the public. "We are taking this action to make sure that the money raised goes toward the intended educational purposes and not a dollar is wasted or misspent," Brown said. "Prudent financial stewardship is crucial at a time in which universities face vastly decreased funding and increased student fees."

ABC News has a copy of an addendum toSarah Palin's speaking contract with the Washington Speaker's Bureau for a speech she contracted to give at a California University. Huffington Post has a pictoral break-down.

The details of Palin's contract with the California State University, Stanislaus Foundation were contained in five pages of the document retrieved from a campus trash bin by students who heard administrators might be shredding documents related to the speech.

It begins by saying the extra provisions are necessary because of her "high profile" and "professional endeavors." It requires first class airfare for two, non-restricted coach for two more people (or a private jet), SUV's on the ground a Luxury hotels. [More...]

My friends at corrente misunderstand what I mean by my refrain "pols are pols . . .":

In the thread to lambert's post "Hello to all that" I cited comments from TalkLeft to the effect that officeholders' principles belong at home, not at the office. Anne, whose comments at TL are the reason I read that site, responded:

I hate the “pols will be pols” framing, mostly because it just absolves them of any responsibility for their actions [. . .]

Let me first say that I too enjoy Anne's comments, but she mistakes my meaning. Let me quote again from the post from which the phrase originates:

Nebraska Governor Dave Heineman will sign a bill into law today that bans abortions if the woman is 20 weeks pregnant. The reasoning: the fetus might feel pain. The text of the bill, LB1103, is here. Some snippets:

(4) There is substantial evidence that abortion methods used at and after twenty weeks would cause substantial pain to an unborn child;

(5) Expert testimony confirms that an unborn child is capable of experiencing substantial pain even if the pregnant woman herself has received local analgesic or general anesthesia; and

(6) There is a valid state interest in reducing or preventing events in which pain is inflicted on sentient and nonsentient creatures. Examples of laws that serve this interest are laws governing the use of laboratory animals, laws requiring pain-free methods of slaughtering livestock, and laws regarding hunting methods on federal lands.

[More...]

Still a busy period for me. Here's an Open thread.

I plan on being an advocate for the nomination of Elena Kagan to the Supreme Court. My friend and highly respected legal analyst Glenn Greenwald presents the case against her. One important point that I agree with that Glenn makes is:

[T]the evidence that is available strongly suggests that a Kagan-for-Stevens substitution would move the Court to the Right in critical areas. But Kagan's lack of a real record on these vital questions, by itself, should cause progressives to oppose her nomination.

I believe that the confirmation process can address this concern, so long as the approach I have long advocated - that nominees must be obliged to answer substantive questions on issues from the Senate - is adhered to. Failure to answer questions and provide information should be disqualifying. I argued for such a standard when John Roberts was nominated to be Chief Justice.

In any event, read Glenn's piece. It is quite good. I will be publishing a rebuttal in the next day or so.

Speaking for me only