Saturday, June 23, 2007

Composition of the Court & the NSA Terrorist Surveillance Program

The controversy over the NSA terrorist surveillance program may actually have some connection to the current composition of the Court as it stands right now.

Recall that nearly a year and a half ago White House Legal Counsel Harriet Miers withdrew her nomination. The reasons given for her nomination were quite vague. While many speculated that she did not want to participate in a confirmation process which would cause both political parties much anguish, there was also one other factor. A quick read of her letter withdrawing her name from the nomination process sheds light on the fact that the White House may have been trying to prevent the public from perusing confidential documents, perhaps regarding the NSA terrorist surveillance program. The text of her letter reads:

Dear Mr. President:

I write to withdraw as a nominee to serve as an associate justice on the Supreme Court of the United States. I have been greatly honored and humbled by the confidence that you have shown in me, and have appreciated immensely your support and the support of many others. However, I am concerned that the confirmation process presents a burden for the White House and our staff that is not in the best interest of the country.

As you know, members of the Senate have indicated their intention to seek documents about my service in the White House in order to judge whether to support me. I have been informed repeatedly that in lieu of records, I would be expected to testify about my service in the White House to demonstrate my experience and judicial philosophy. While I believe that my lengthy career provides sufficient evidence for consideration of my nomination, I am convinced the efforts to obtain Executive Branch materials and information will continue.

As I stated in my acceptance remarks in the Oval Office, the strength and independence of our three branches of government are critical to the continued success of this great nation. Repeatedly in the course of the process of confirmation for nominees for other positions, I have steadfastly maintained that the independence of the Executive Branch be preserved and its confidential documents and information not be released to further a confirmation process. I feel compelled to adhere to this position, especially related to my own nomination. Protection of the prerogatives of the Executive Branch and continued pursuit of my confirmation are in tension. I have decided that seeking my confirmation should yield.

I share your commitment to appointing judges with a conservative judicial philosophy, and I look forward to continuing to support your efforts to provide the American people judges who will interpret the law, not make it. I am most grateful for the opportunity to have served your administration and this country.

Most respectfully,

Harriet Ellan Miers

While there is no conclusive proof of what these documents were, it remains interesting to speculate that these documents contain secrets about the NSA terrorist surveillance program.

Pearson as a Symbol of Increasing Litigiousness in American Society

D.C. administrative law judge, Roy Pearson, is giving lawyers and jurists alike a bad name. If lawyers--who may eventually become judges--didn't already have enough of a bad name already, Pearson is taking the reputation of jurists down to a new historically low level.

According to a June 21st ABC report on the pants lawsuit saga that is currently clogging our overloaded judicial system (with which Pearson should himself be familiar and therefore should be ashamed of clogging it even more with useless lawsuits), Pearson broke down in tears during his testimony detailing the traumatic events of losing his pants. ABC reports:

A Washington, D.C. law judge broke down in tears and had to take a break from his testimony because he became too emotional while questioning himself about his experience with a missing pair of pants....

But as he explained the details of the missing pants, Pearson struggled to get through his hour and a half of testimony, most of which concerned his credentials and his background.

He became visibly emotional when he reached the point in the story where he confronted Soo Chung from the dry cleaning store.

"These are not my pants,'' he testified yesterday, telling her "I have in my adult life, with one exception, never worn pants with cuffs."

But Chung insisted, Pearson testified.

"These are your pants."

Pearson rushed from the courtroom, tears streaming down his face.

Poor Pearson.

Pearson's case really represents only the tip of the iceberg in an increasingly litigious American society. According to Professor Robert Kagan in his piece entitled American Adversarialism, the number of cases being appealed today is about fifteen times that of the number in 1960--an increase of nearly 1500% in appeals.