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View Diary: Today in Congress/Viewing notes on Kucinich's hearing (170 comments)

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  •  I do not think it a settled (0+ / 0-)

    at all.  I think it is a question that had not been fully addressed, not to date fully challenged, not an issue that has been directly addressed before the SCOTUS.  If you have information otherwise, that clearly shows it as a settled question, I would appreciate the citations.  (I always entertain the notion that I may be wrong, and if I am, will willingly eat humble pie.)

    Life is not a 'dress rehearsal'!

    by wgard on Fri Jul 25, 2008 at 08:20:28 AM PDT

    [ Parent ]

    •  Other than Morrison v. Olson, you mean? (0+ / 0-)
      •  I have read Morrison et. al. (0+ / 0-)

        And I have noted that the dissent, by Justice Scalia, was very critical as to it's effects on the Separation of Powers.

        I would also submit that there has been an erosion of support for that decision since it was made, both politically and judicially.

        I ask you, if that case were to present to the present SCOTUS, absent stare decisis, how do you think the ruling would go?

        I would also submit that SCOTUS rulings are not sacrosanct.  There have been numerous 'reversals', though disguised in the eloquence of legal language, but reversals nontheless.

        Nor have SCOTUS rulings always been in agreement with the plain language reading of the Constitution.  One of the most recent examples, IMO, is in Kelo vs New Loundon, which ultimately, I think will not be allowed to stand... whether the erosion be by legislative action or court decisions that chip at it.  (I happen to agree with Justice Thomas' dissent, though it is almost never that I find myself in agreement with him... amazing that court rulings do indeed make strange bedfellows!)

        As one final point, SCOTUS rulings have, historically, had varying degrees of compliance/effect.  After all, the SCOTUS ruled agains line item vetoes during the Clinton adminstration, but it has been silent at to GWB.  (Only because there has been no case presented to the courts and elevated to SCOTUS level, I think).

        Some SCOTUS rulings have in effect been rendered moot by the changing social fabric and changes in law, and after, the SCOTUS has had cases ruling in favor of the latter public sentiment and law versus what might be expected simply on the basis of stare decisis.

        I would add, there has been serious dissent with the Morrison vs Olsen decision, both political and legislative.  Frankly, I do not expect that decision to stand unmodified, if seriously challanged... and especially not with the court as currently configured.

        As a practical matter, the Morrison decision has already been rendered moot.  The issues revolved around the powers and autonomy of independent prosecutors; since the Independent Counsel Act has expired, and since this AG refuses to appoint any special prosecutor, where is the arguement?  

        Nothing is going to happen, period.  Status quo with lots of smoke and mirrors (and perhaps rhetoric)... but nothing more.  Conyers knows that at the outset, and so does the House leadership.  I am sure the leadership is orchestrating this whole drill, which will amount to nothing.  But it still has a cost, both a dollar cost and a cost in faith in government.

        Again, I may be wrong.  I suppose we will both see in the next few days, yes?

        OMO, mind you.  Cheers:)    

        Life is not a 'dress rehearsal'!

        by wgard on Fri Jul 25, 2008 at 09:00:38 AM PDT

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        •  It was a 7-1 decision. (0+ / 0-)

          And Scooter Libby just tried to argue what you argued, and lost, the court citing Morrison.

          •  And... (0+ / 0-)

            Scooter Libby wasn't in a position to dispute the Independent Counsel law, which had expired. He was prosecuted by a special prosecutor, straight up. The court still cited Morrison, because the legal reasoning is still directly applicable.

            Can Supreme Court precedents be overturned? Sure. But until they are, they're considered settled law. Which is what I said it was.

            Because it is.

          •  Do you just love it . . . (0+ / 0-)

            When the answer is "read the dissent"?

            Not a lawyer, just the loving daughter-in-law of one.

            Pray for the dead and fight like hell for the living~~Mother Jones

            by ttmiskovsky on Fri Jul 25, 2008 at 09:23:21 AM PDT

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            •  Always interesting. (0+ / 0-)

              There's another term I use for dissents: "not the law."

              •  Only when convenient (1+ / 0-)
                Recommended by:
                JG in MD

                On another topic, I think that the rise of corporate power, in the Gen. Butler War is a Racket vein, is possibly behind some of the worst of what is going on now. Read any arguments that the 1886 U.S. Supreme Court decision in Santa Clara County v. Southern Pacific Railroad Company (118 U.S. 394) did not actually grant corporate person hood, and that this doctrine derives from a mistaken interpretation of a Supreme Court clerk's notes?

                It give them free speech rights and therefore political contribution rights. I know, otherwise the income tax would not apply. So raise capital gains rates. This court does not seem to hold that Marbury v. Madison is settled law.

                Pray for the dead and fight like hell for the living~~Mother Jones

                by ttmiskovsky on Fri Jul 25, 2008 at 12:03:34 PM PDT

                [ Parent ]

        •  I might add, (1+ / 0-)
          Recommended by:

          Conyers' hearings, et. al., are all political theater, nothing more.

          Life is not a 'dress rehearsal'!

          by wgard on Fri Jul 25, 2008 at 09:03:16 AM PDT

          [ Parent ]

          •  You already said that. (0+ / 0-)

            And then I asked you about the airing for the Miller legislation. Then you argued that that was theater too, because Scalia had once written a lone dissent in the controlling case establishing the legal basis of Miller's bill.

            I understand where you're going, but it's not working out. The fact that the Supreme Court could one day change its mind and overrule a 7-1 decision on a fundamental point of constitutional order isn't really a very good reason not to legislate under the current and controlling order.

            •  Oh, I agree with the need to legislate. (0+ / 0-)

              There is no guarantee that such legislation will be upheld, either in practice or in any challenge to it that rises to the SCOTUS.  

              But, I also am a proponent of the Separation of Powers as embodied within the Constitution, and I am not sure that Congressional action, even with legislation, will ultimately meet the test against that benchmark.  So, in that sense, I have reluctance as to legislation, unless very carefully crafted so as not to introduce conflict between the roles of the three branches of government.

              Those reservations aside, the kabuki theater of the 'hearing' of the Conyers committee will, IMO, do absolutely nothing to further the case for accountability of the Exectutive, either legally or in practical terms.  That is why I deem them a waste of time and money... and to what end?  Will there be impeachment?... no.  Will there be criminal prosecutions?... no.  Will there be accountability in any form?... not likely.  So, what purpose do they serve?

              Look at the witness list you, yourself, posted... mostly just opinion and meaningless.  How could there be a true investigation, true accountability with a witness list so constrained, so little evidentiary material presented?  Would you compare this with the investigation of the Church Committee, where although there was not an issue of accountability, the was an in-depth effort to reign in an out-of-control executive?  I think not, and further, I doubt there will be any legislative actions to come from it, as well.  Of course, I could be wrong.

              Life is not a 'dress rehearsal'!

              by wgard on Fri Jul 25, 2008 at 09:28:56 AM PDT

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              •  It's not an investigatory hearing. (0+ / 0-)

                Why would you hold it to that standard?

                It's not even an impeachment hearing. I'd bet this hearing falls far short of the mark of literally millions of objectives that it also does not share.

                As for separation of powers jurisprudence, there's a significant body of law settled at the nexus where the three branches overlap. It's that overlap that actually constitutes the system of checks and balances we're all so fond of.

                Really, the idea that this is such an egregious waste of time and money that it deserves to be shut down on that basis is ridiculous. Nobody's getting paid overtime here. It's Friday. (And they wouldn't be paid overtime even if it was Saturday, by the way.)

                Miller's legislation needs a hearing, and it should get one. Now it has. And it's gotten some context, too.

                If you're going to start going back over other hearings in other committees and asking for your money back on hearings on legislation that didn't pass, well, I guess that'd be interesting. But not a particularly useful constraint on the legislative prerogative. Nor one particularly attuned to its traditional breadth.

                •  You are absolutely correct. (0+ / 0-)

                  Conyers' hearing is not truly investigatory.  And it will not support impeachment.  And, looking at the witness list proposed, it is not even objectively 'fact finding'.  Nor will it result in any legislation.  So, I will turn the question back to you, what is the point?  Perhaps you can tell me.  (I personally think it generates false hopes of possible accountability, at taxpayer expense, with not identifiable outcome as even a goal.  And as for 'overtime', etc., I personally would prefer the time being spent on matters where there might be a difference being made, not tilting at windmills.)

                  Late here, so I will likely exit.  But thank you, Kargo, for a lively exchange on this.  I mean that sincerely.  It does serve a purpose, this honest exchange of views, if not for you, for me... as it forces me to clarify my own views and bliefs, and to (perhaps) discard those which in the face of logic and argument are not tenable.

                  Good exchange (from my POV, maybe not yours). I would personally like to seem more of this kind of give and take on dKos, to really see some delving into issues, rather than just opionion, but again, only my preference.  (I suspect there would be little following, as it seems people have opinions but are not willing to either think or consider different views.)


                  Life is not a 'dress rehearsal'!

                  by wgard on Fri Jul 25, 2008 at 09:55:33 AM PDT

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                  •  I think Miller's bills are likely to move. (0+ / 0-)

                    The leadership has tapped him for work on the contempt issues in the past, and he likely will have the ear of Administrative and Constitutional Law subcommittee chair Linda Sanchez on this, as they've worked on this and other issues together in the recent past.

                    But the underlying point of the hearing was described in the main story: Kucinich demanded a hearing or else he'd continue bringing impeachment resolutions on the floor and disrupting proceedings there. So they gave him a hearing.

                    In that sense, the hearing would actually very neatly address your initial objection about time and money. It's surely more costly to spend floor time on these resolutions than hearing time.

                    •  Perhaps you are correct on all counts. (1+ / 0-)
                      Recommended by:

                      And I do admire and respect your mastery of the rules and workings that are employed by the elected politicians to control the agendas of the House and Senate, whether directly or obliquely.  Kudos for your diligence in that.

                      We may have disagreement on various points, but I think it clear that we share a goal... the rule of law and the supremacy of the Constitution.  So long as people accept those as the foundation, then any dissention or argument as to how to attain/maintain those fundamental goals is only a means of defining/sharpening the means of achievement/support.

                      I thank you for challenging me, my thoughts.  I wish more did so, in a respectful and civil manner, or course.  It is only through debate, honest debate, that the best can be attained... but all sides to it must commit to the basic premises, that is, objectivity, honesty, and an open mind.  (My mind... i.e., opinion... has been changed/modified many times, here, by the evidence and arguments presented by others.)

                      Thanks for the exchange, Kargo!  (Though in this case, you did not win me over.  I still think Conyers' 'hearings' kabuki with no value.:)

                      Personally, I appreciate your expertise, your writing, and your work.  (And I do not disagree with your views often, either:)

                      Take care.  Keep up the good work.  Cheers:)  

                      Life is not a 'dress rehearsal'!

                      by wgard on Fri Jul 25, 2008 at 10:19:20 AM PDT

                      [ Parent ]

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