Primarily Primary Confusion

A lot of attention has been garnered by the recent presidential debates which are ostensibly gearing up for next year's primaries. With all of the recent changes in the primary system for voters it has become quite a confusing mess. It was confusing even before the changes. Who actually knows what the difference is between a primary and a caucus anyway? (For more information see Professor Stephen Wayne's book, The Road to the White House).

Approximately six years ago, the USSC handed down an influential decision, California Democratic Party v. Jones (2000) regarding the primary system in the state of California (and obviously other states which had similar systems). California operated what they called a "blanket primary" in which register voters (not registered with any specific party, but simply registered to vote) could choose their favorite candidate across party lines. (In most cases, voters must be registered with a particular party and then vote for only a candidate within that party). The California Democratic Party filed suit against the Secretary of State for violating the First Amendment right of political parties to freedom of association.

In a 7-2 decision, the Court struck down the blanket primary. In short the opinion, which was authored by Justice Scalia, said that the state of California could not provide a compelling enough of a reason for violating political parties' rights to freedom of association. Parties need to be able to exclude those that do not associate with it in selecting their nominee, or else the party's views will not be represented adequately. Scalia writes:

"In no area is the political association’s right to exclude more important than in the process of selecting its nominee. That process often determines the party’s positions on the most significant public policy issues of the day, and even when those positions are predetermined it is the nominee who becomes the party’s ambassador to the general electorate in winning it over to the party’s views."

Granted, that this is the case, it is still not understandable why getting a candidate whom the party likes matters at all. If this country was founded on democratic principles of a "government by and for the people" then why not open up the selection of candidates for a particular party to everyone? These candidates will eventually have to face all enfranchised voters anyway and if the majority of the population does not like either, then the election would be less fair. The majority of people who vote in the general election would have the least say at the most crucial stages of the game.

Framed in another way, the party's desire to be exclusive truly limits the value and of diverse veiwpoints and perspectives instead of increasing them. While Scalia writes that these types of candidates, since they must accommodate a range of views from the population, only become more "centrist" he refers to no social science or actual data. It is a weighty statement with nothing to back it up except general theorizing. In addition, it assumes that politicians cannot find ways to accommodate a diverse range of views while still satisfying most of their party platform. It is unlikely that candidates will be able to campaign for the general election anyway with the entire party platform intact since they will have to compromise then on issues to gain voter support. The rationale is messy since it really delays what inevitably happens: candidates will need to figure out ways to appeal to the entire population, if they are to be elected.

Stevens' Dissent in Juror Selection for Death Penalty Case

Representing the liberal contingent of justices on the Court, Justice Stevens read aloud his dissent in a case which affected juror selection for death penalty cases. It is the third time that a justice has read aloud a dissent this term.

The dissent in this case by Justice Stevens, Justice Ginsburg, Justice Souter and Justice Breyer seems to be quite flawed. The case was about juror selection for a trial that had the death penalty as one possible punishment. The law regarding juror selection was that jurors had to be able to consider the death penalty even if they were against it. The juror that was replaced had said that only if the person on trial had the possibility to walk free would he consider the death penalty. Prosecutors argued that this amounted to an automatic favoring of the life sentence over the death penalty and therefore would unfairly bias the verdict, giving the death penalty no chance at all of becoming the punishment.

The logic of that argument is sound. Steven's dissent is questionable when it comes to jurisprudence in addressing the issue at hand. He begins his dissent by writing, "Millions of Americans oppose the death penalty. A cross section of virtually every community in the country includes citizens who firmly believe the death penalty is unjust but who nevertheless are qualified to serve as jurors in capital cases. An individual’s opinion that a life sentence without the possibility of parole is the severest sentence that should be imposed in all but the most heinous cases does not even arguably 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'"

First of all, it does not matter what "millions of Americans" think. They may in fact be wrong. It would not be the first time that the majority of Americans would be wrong about a legal issue such as this.

Second, this case is not about the death penalty itself, but rather about the laws governing selection of jurors for a particular type of case. If the juror cannot consider one type of punishment, then that severely impedes his or her ability to serve as an impartial juror in deciding the fate of the person on trial.

Had the case been about the actual death penalty, perhaps Steven's comments would have been more appropriate. But until that issue comes before the Court Steven's jurisprudence should focus on the issue at hand.

White House Response to Khadr Ruling

The White House, today, issued a response to the Khadr ruling saying that it disagreed with the judge's decision. Judge Brownback's ruling seems to have also spurred a similar ruling later on yesterday by another judge in looking at a case brought against Salim Ahmed Hamdan.

The article appears to confirm that On the Docket's suspicions are right about the refiling of Khadr's charges. The article reads:

"'Judge Brownback did not question that the military commission would constitute the appropriate forum in which to try a member of al-Qaeda for alleged war crimes,' said Maj. Beth Kubala, a spokeswoman for the Office of Military Commissions. "He determined that, as a technical matter, the existing CSRT definition was not identical to the definition under the MCA."

Military officials said yesterday that they could restart the tribunal process to allow them to add the word 'unlawful' to their records. Officials maintained, however, that the tribunals have largely concluded that the detainees are members of al-Qaeda or other terrorist groups and therefore their battlefield actions are inherently unlawful. Khadr will not be released following the decision."

Needless Antiabortion Movement Scuffle

According to yesterday's article by Washington Post staff writer, Alan Cooperman, there appears to be a rift in the pro-life coalition of evangelical Protestants, Roman Catholics, and Focus on the Family. The split in the pro-life group comes over the USSC decision in Gonzales v. Carhart (2007), a decision which is widely viewed by many as a setback for the pro-choice movement.

The scuffle between Focus on the Family founder James Dobson and evangelicals surrounds the Gonzales decision and determining whether or not the decision is really a setback for the pro-choice movement at all. Those in the pro-life movement who have criticized the decision rightly determine that the Court leaves entact the vast majority of methods used to conduct abortions. The Partial Birth Abortion Act of 2003 also has a health exception for mothers desiring an abortion in the second and third trimesters.

Thus the decision reaffirms the constitutional jurisprudence of the Court from previous decisions such as Stenberg v. Carhart (2000) and also Casey v. Planned Parenthood (1996). The Court is still talking about the ability of mothers to choose whether or not to abort when the fetus is previable (approximately before 21-28 weeks into gestation). In addition, the health exception is present for exigencies when the mother's health is put at risk by her baby.

Thus neither the pro-life or pro-choice movement appears to have gone backward or forward. If in fact that justices had struck down the law, the pro-choice movement would have admittedly garnered more strength. Yet, this decision does not serve to weaken the pro-choice movement at all. It may have provided the pro-life movement with more ammunition in the future, but ammunition against what?

It appears that the Court has found the right balance. Mothers can choose to abort regardless of their health previability, but after previability they cannot unless their health is at risk.

Indecency Ruling not about First Amendment Rights

Today, broadcasters won a victory over the right to "fleeting" use of profanity. The U.S. Court of Appeals for the 2nd Circuit in New York ruled against fines filed by the Federal Communications Commission against Fox television network. Movie stars, Cher and Nicole Richie, apparently used both the f-word and s-word during the 2002 Billboard Music Awards.

According to an article by The Washington Post, the Court of Appeals said that the fines imposed by the FCC are uncharacteristic of their usual statutory and administrative policies. Moreover, the FCC, according to the court, failed to articulate a reasoned basis for the policy.

Yet, the Post article quotes the FCC Chairman giving a reasoned basis for the policy. He says, "I think the commission had done the right thing in trying to protect families from that kind of language, and I think it's unfortunate that the court in New York has said that this kind of language is appropriate on TV."

Perhaps what the Court of Appeals is trying to articulate in its opinion is a refutation to the FCC Chairman's logic of protecting families and children from "that kind of language." "Fleeting" use of expletives on national television is usually not something planned, but rather an on-the-spot kind of occurrence. Fining networks for something that they could not have foreseen or could not have predicted is not legally enforceable, nor fair.

Indeed, today's decision against the FCC is not one which looks to First Amendment rights of free speech, but rather the practicality of the law itself. In theory goal of the law is good. We want to protect families and children from profanity. Profanity is not essential for communication of important ideas. But in this case, operationalizing that principle into sound legal principle is most likely where the FCC fell short.