As regular readers know, I am a strong advocate of Jack Balkin's theories of constitutional interpretation. Here he writes on the related idea of judicial activism. Well worth the read. See also Heather Gerken's response. I think Gerken's piece gets to it a bit better frankly. Both worth reading.

Here's a video:

This is an Open Thread.

Jane explains why:

Leadership needs 18 votes out of the 51 Democrats who originally voted against the supplemental in order to pass this bill. Since 35 of the 51 are members of the original Out of Iraq caucus, and several freshmen (including Alan Grayson, Eric Massa and Donna Edwards) ran as strong anti-war candidates, I don't think that challenge will be easily surmounted. In addition, 33 members subsequently signed on to a letter expressing concern after the Senate added the IMF funding -- and 12 of those originally voted "yea" on the supplemental. Add to that the Democrats who will bristle at being forced to sign on to Lieberman's civil liberties nightmare and I think opponents of the war have a very good chance of defeating the supplemental, or forcing conditions on its passage.

Jane has a neat action tool for letting the Congress know how you feel. Use it.

Speaking for me only

Glenn Greenwald writes:

Earlier this week, I noted that the Senate had passed -- with Obama's support -- a pernicious amendment to the spending supplemental bill, jointly sponsored by Sens. Lindsey Graham and Joe Lieberman, that empowers Obama and the Pentagon, at their sole discretion, to suppress any "photograph taken between September 11, 2001 and January 22, 2009 relating to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States."

That is bad enough. This is so much worse:

UPDATE - See also Daphne Eviatar, Scott Lemieux, and Lean Left.

I wonder if this obvious fact will now break through to the Media. I have written over and over that Chief Justice Roberts has proven to be the most brazen judicial activist the Court has seen in some time. Now conservative legal commentator Stuart Taylor is saying the same thing:

Conservative critics of Judge Sonia Sotomayor may be digging themselves into a hole if they keep hurling the tired old "liberal activist" slogan at her. The reason is that her supporters can plausibly retort that these days, the Supreme Court's conservatives are as activist as the liberals, especially on racial issues.

No kidding. Now will the Media feel it is acceptable to report this obvious fact? That Roberts and his cohorts are NOT "moderate" and "modest?" That instead they are brazen, extreme conservative judicial activists? More . .

Surreal news coverage:

The United States economy lost 345,000 jobs in May, the government reported on Friday, a sharp slowing in the pace of job losses that fueled hopes that the economy was on its way toward a recovery. The recession continued to take a toll as the unemployment rate climbed to 9.4 percent, its highest point in a quarter-century. In normal times, the loss of so many jobs in a single month would have been interpreted as a calamity. But 18 months into the longest recession since the 1930s, economists said the milder pace of job losses indicated that the economy was gradually leveling off . . . “Things are still getting worse, but the pace of decline has slowed down,” said David Wyss, chief economist at Standard & Poor’s. “Over all, it’s not quite as dire as it looked in the first quarter.”

(Emphasis supplied.) Happy days are here again! Sheesh.

Speaking for me only

Via Kevin Drum, ding dong the Geithner Plan is dead:

The Federal Deposit Insurance Corporation indefinitely postponed a central element of the Obama administration’s bank rescue plan on Wednesday, acknowledging that it could not persuade enough banks to sell off their bad assets. . . . Many banks have refused to sell their loans, in part because doing so would force them to mark down the value of those loans and book big losses.

The entire plan was ridiculous. Now the question is what does it mean and do we need to do something different? More . . .

I'm off to Aspen for the 2009 NORML Legal Seminar (that's me giving my talk in 2006.) Sad to say, not too much has changed since then, but at least some changes to our country's draconian drug laws are in the works. My topic this year: "High Hopes and Modest Expectations: Drug Law Reform under President Obama and a Democratic Congress." [More...]

Must be a racial pride thing . . . Via CQ:

According to Maine Republican Susan Collins, Sonia Sotomayor's favorite Supreme Court justice is Benjamin Cardozo.

Kidding aside, Cardozo was the greatest American common law judge of his time and probably of the 20th Century (I still give John Marshall the all time award.) Good choice Judge Sotomayor.

Speaking for me only

NBA Finals start tonight. Here's a video:

This is an Open Thread.

Reader Scribe writes in about a mob gone wild in Philly. From Scribe:

In connection with the alleged rape of an 11 year old girl, the police announced they were looking for a particular person of interest (not a suspect). Then the police union put out a reward of $10k for bringing him in by 5 PM.

Then, about an hour before the deadline, a mob grabbed the guy and beat him into critical condition (caught on surveillance video at a local bodega), such that a patrol unit had to rescue him from the mob. Then the head of the police union complimented the neighborhood for "really stepping up". And the mayor didn't even think to condemn this.

[More...]

"Kung Fu" and "Kill Bill" Actor David Carradinewas found dead in his Bangkok hotel room today. He was in the midst of filming a movie. Some say it was a suicide, others natural causes. He was 72.

The BBC reports:

Thai newspaper The Nation reported that police believe the actor took his own life, and preliminary investigations found that he hanged himself.

Another paper says it was an "accidental" hanging. The Bangkok police say "He was found hanging by a rope in the room's closet." He appeared in over 100 films.

He was a huge talent. R.I.P. Mr. Carradine.

The House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security is holding a hearing today titled "Indigent Representation: A Growing National Crisis."

Among the witnesses: Alan J. Crotzer, who was wrongfully convicted and spent over 24 years in prison before being exonerated by DNA evidence.

Other witnesses testifying about the critical need to reform our indigent defense system are Rhoda Billings, former Chief Justice of the North Carolina Supreme Court and Robert M.A. Johnson, district attorney for Anoka County, Minnesota. DA Johnson makes the valid point:

"As a prosecutor, it helps me to do my job when opposing counsel is both provided and adequately up-to-speed on the case before the judge. The validity of any verdict relies on high-quality legal representation for both parties to the case."

[More...]