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Thursday, January 12, 2006

Alito roundup: Ted Kennedy tramples on freedom of speech and association 

AJStrata makes a point that -- with a little tweaking -- reveals the desperation of the Democrats on the Senate Judiciary Committee:
I seriously doubt Ted Kennedy and his Senate Democrat co-conspirators realize what a bone head move they just made regarding the CAP subpoena for dirt on Alito. While Congress has the power of subpoena, it is clear this planned invasion of privacy of a US Citizen not even involved in the hearings on Judge Alito was without judicial oversight. There was no FISA court or Federal Court in front of which the dems had to show probable cause.

This is not something allowed under FISA, NSA guidance or The Patriot Act. Ted Kennedy and the Democrats just showed which part of government is the one likely to go after private citizens on the flimsiest of excuses. Excuses that don’t come close to covering up the partisan intent.

Bush is getting flack for surveillance of people communicating with known terrorists - but Ted Kennedy wants a warrantless search of some guys papers because Alito at one time belonged to his organization 35 years ago. The left is all upset about the Patriot Act giving law enforcement the same opportunities to go to a judge for a search warrant on terrorists as we have for drug dealers and organized crime - but Kennedy and the Dems can bypass judicial review and demand an innocent citizen who is not the target of any investigation or senate hearings be forced to give up his papers at the whim of a Senator?? (link supplied)

AJStrata is on to something here, at least, as I say, with a bit of a tweak. While I do not buy the analogy to the FISA/NSA controversy (the question of a warrant is legally irrelevant), Kennedy did reveal how little actual respect he has for the speech and assembly provisions of the First Amendment.

The warrant is not necessary because the Congress has its own subpoena power, just like the judicial branch. My constitutional law knowledge is fading steadily from its peak twenty years ago, but I believe the judicial branch and the legislative branch have subpoena power and the executive branch does not for a good reason: neither the judicial branch nor the legislative branch can prosecute defendants (the Congress may bring no "bill of attainder," which is Founding Father talk for "legislative prosecution"). They can issue subpoenas, but they can't bring charges. The executive branch, which can bring charges, cannot issue a subpoena by its ownself. Yet another example of the wise checks and balances embedded in the Constitution and the common law of England.

But the fact of the Congressional subpoena power does not make Teddy Kennedy any less a hypocrite in demanding the coercive extraction of the records of a political organization. We need to say it again: Senator Kennedy took the scary position that it was just and appropriate for the Congress to extract by coercion the private, internal records of a political advocacy group just because it was considering the nomination of a person who had once been a member of that organization.

To understand how weird this is, consider the following "thought experiment": If the next Democratic SCOTUS nominee once belonged to the American Civil Liberties Union(as Ruth Bader Ginsburg actually did) and, say, Sam Brownback proposed issuing a subpoena for the "records" of the ACLU to help him "understand" the nominee's testimony, what do you imagine the reaction of the mainstream media might be? The implications of Senator Kennedy's demand for freedom of speech and association are appalling. Where's the outrage?

Now, as it happens, William Rusher has agreed to cough up the documents (via Decision '08) without a subpoena being issued, so Kennedy's hot air will go out of this bubble as quickly as it filled up. But that does not make Kennedy's attempt to grab the CAP documents any less offensive to the speech and associational rights protected by First Amendment.

How significant are those rights, and how embedded in our law are they? Since Laurence Tribe will apparently be testifying -- presumably against Alito -- later in the week, let me quote from the second edition (there is now a third edition) of his magnum opus, American Constitutional Law:
Shortly after the Civil War, in a pair of cases involving occupational restrictions upon former Confederate sympathizers, the Supreme Court began a line of doctrinal development that was to be interrupted for more than three-quarters of a century. Although the Court relied on the ex post facto and bill of attainder clauses to strike the restrictions down as punitive measures insufficiently related to occupational qualification, it was effectively holding that neither an individual's beliefs nor an individual's associations, without more, may be regarded as automatically disqualifying with respect to positions of public trust.

This obviously does not apply to the confirmation of a Supreme Court nominee, but it does point to the great reluctance to disqualify people because of their political associations. Tribe continues:
In recent decades, the Court has fulfilled the promise of those early decisions by holding that mere membership in the Communist Party could not suffice to justify denial of an opportunity to practice law, to work in the merchant marine, to receive a security clearance, to travel abroad with the protection of a United States passport, to serve as an officer or employee of a labor union or to work in a defense facility. And of course member in, or affiliation with, such other national organizations as Students for a Democratic Society cannot suffice to justify denial of similar opportunities.

Tribe, pp. 1017-1018.

Again, these ideas do not bear as a matter of law on the confirmation of a Supreme Court nominee, but they do reveal the extent to which we are reluctant to invade the prior political affiliations of individuals, especially when they involve mere membership in an organization (including particularly the Communist party). Similarly, the First Amendment protects political organizations from interference from the government, unless there is something inherently or actually unlawful in the organization's activities.

The Concerned Alumni of Princeton was a political organization with palpably political opinions and objectives. Whatever its ideas, there was nothing unlawful about it. Ordinarily, almost any American, and especially one with the burnished liberal credentials of Ted Kennedy, would be outraged at the idea that the Congress would issue an order to pry loose its internal documents because one of its former members was testifying before the Congress or even nominated for the Supreme Court. It is hard to imagine, today at least, a more serious attack on the First Amendment, yet Teddy Kennedy was so interested in nailing Sam Alito that it never entered his mind to care about the Constitution.

11 Comments:

By Anonymous Anonymous, at Thu Jan 12, 12:26:00 AM:

If it is pemitted to ask questions to persons testifying before the Senate Judiciary Committee, it would be interesting to ask Profesor Tribe how does Senator Kennedy's attempt to grab the CAP documents conform to the speech and associational rights protected by First Amendment.  

By Blogger AJStrata, at Thu Jan 12, 09:37:00 AM:

TigerHawk,

Thanks for taking the time to expand my point. I was aware of the differences between FISA, etc. - much of that analogy was tongue in cheek since I think the whole issue is a lot of nothing.

But you definitely put a much more refined point on my original point.
And that is there is more risk of being harassed through unreasonable search from a partisan Senator like Kennedy or McCarthy than the justice department (which takes their responsibility very seriously).

I think this aspect of the debacle yesterday makes all the referrences to McCarthy highly appropriate.  

By Blogger TigerHawk, at Thu Jan 12, 10:28:00 AM:

I agree, AJStrata. The donks have become so results-oriented that they can't even see what they are doing. Kennedy's sobpoena was a really horrid idea.  

By Blogger Cardinalpark, at Thu Jan 12, 11:13:00 AM:

Teddy Kennedy probably can't spell constitution. He is an IDIOT. He was admitted to university because of his name, wealth and family connections. He was an incompetent student. I'll say it again, though it isn't polite. He is a drunk. He is a philanderer. He left his young mistress to drown in the car which he drove off a bridge.

Why is he a leading voice for the Democratic Party? Why? He is a walking, talking embarrassment. I would take 1 Alito over 1mm Kennedies.

I can only imagine Alito, from an immigrant, working class background, in college, looking at the Ted Kennedys of the world. Kennedy - messing around, out late drinking, treating women shamefully, treating a working class kid like Alito like "the help." Alito - studying hard, making grades, interested in ROTC. Trying to make good on the American dream. And Kennedy, who inherited everything, look down at Alito and laughs at him. A noid.

The interaction is so ironic. It is the college classroom - say philosophy or poli-sci, coming back to life. They're older now. Alito has grown in confidence through accomplishment. Teddy Kennedy has been exposed as a fraud, yet continues his reign of foolishness. He's fat, wrinkled from the booze. But the difference is today - Alito is the embodiment of the American dream and will win, reaching the highest court in the land. Kennedy will soon be a forgotten man. Remembered only because his brothers were both assassinated. Remembered not for accomplishment, but for manslaughter.

Alito, the working class kid from nowhere, smashes Kennedy. God its just great. That's America.  

By Blogger Charlottesvillain, at Thu Jan 12, 11:53:00 AM:

CP, can you please stop associating Ted Kennedy with booze and drinking? You're giving a bad name to one of my favorite endeavors!  

By Blogger TigerHawk, at Thu Jan 12, 12:03:00 PM:

"Remembered not for accomplishment, but for manslaughter."

Ouch. That is almost as harsh as "Mary Jo Kopechne's children were unavailable for comment."  

By Blogger Cardinalpark, at Thu Jan 12, 03:45:00 PM:

Well, let's also not forget how he rsuhed to defend his nephew -- an alleged rapist...

They are really a disgusting clan. And that reminds me of Robert Byrd...  

By Blogger Cassandra, at Thu Jan 12, 04:12:00 PM:

Stop! Stop already!

You brute!  

By Blogger TigerHawk, at Thu Jan 12, 05:25:00 PM:

Cass, you're surprisin' me here. I always figured you for somebody who could stand the sight of blood!  

By Blogger Cassandra, at Fri Jan 13, 08:43:00 AM:

I don't mind CP enjoying himself a little bit, but when he keeps making me laugh so hard I can't get any work done it really starts to get annoying... :)

There is something positively indecent about that much schadenfreude... heh.  

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