We don't want an impeached former federal judge to be the face of the Democratic Party on warrantless wiretapping issues. I can see the Faux News stories already, going back to his scandal-ridden days.
I'm no huge fan of Jane Harman, but Hastings is not the guy for the job.
Oh, yeah. No question about that one. I'm not sure that the classification "authoritarian" doesn't already fit us, at least to some degree.
I really enjoyed the old CCN days. I usually hang out over at Kos (with the other 69,999 registered members), but I check here, MLW, Atrios, and a few others on a regular basis and occasionally post on all of them.
I've started law school recently and have also become enamored of Firedoglake and TalkLeft.
Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with . . .
(B) a certification in writing by a person specified in section 2518(7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required, setting forth the period of time during which the provision of the information, facilities,
or technical assistance is authorized and specifying the information, facilities, or technical assistance required.
Suppose I should identify the pictures and actors...
#1: from left to right in front row of chairs: Mike Krempasky of RedState.org and Markos Moulitsas Zuniga of DailyKos. Standing, Adam Bonin, Kos' lawyer before the FEC.
#2: left to right: Krempasky, Kos, and (partially obscured by Kos' laptop) Matt Stoller of Blogging of the President
#3: John Morris, of the Center for Democracy and Technology, testifies.
#4: Kos answers a question.
#5: From left to right: Taylor's lawyer; Adam Bonin; Kristinn Taylor (yes, Kristinn is male) of Free Republic; and Armando's best buddy, Commissioner Bradley Smith converse during a break.
#6: the only two really visible are Duncan Black (Atrios), whose profile you can see, and Michael Bassik of the Online Coalition (pouring himself a glass of water).
I thought of the state court issue as well...the state courts have an inherent judicial power that precedes the Constitution and with which the federal Congress is powerless to interfere. State courts are not foreclosed from deciding federal constitutional claims. They do so all the time in the context of evidence suppression hearings in criminal cases. If the federal appellate courts are precluded from reviewing the decisions of the state supreme courts, we end up in the situation that Justice Story warned us about in Martin v. Hunter's Lessee, with 50 different interpretations, but at least there's someone to adjudicate the claims.
Yes, agree completely. They do have a nontrivial argument for arguing that they can do it.
If, however, they foreclose review of a salient and controversial issue by the federal appellate courts, they will be precipitating a constitutional crisis that will make Bush v. Gore look like small potatoes.
Exactly. But what McCardle did NOT address was an instance in which the power of judicial review of a claim had been denied entirely, i.e., in which Congress had not only amended the appellate jurisidiction of the Court but had essentially legislatively made a claim nonjusticiable, i.e., made it unreviewable by any level of the judiciary.
There would be several Constitutional problems with this. The first would be the Article III, Section 2, Clause 1 problem I've pointed out above (and which is also mentioned by another poster below). The second would be that, if it did so in a case like McCardle, it might be held to be a bill of attainder. The third is the general separation of powers question.
I have very little doubt that if faced with a total emasculation of their power, the courts would stand up as an independent branch of the government.
Now, the problem could come up in another way. There seems to be a hole in the checks and balances here. The Constitution gives Congress both the power to establish all of the inferior courts and to make exceptions to the appellate jurisdiction of the Supreme Court. If Congress were to disestablish all of the lower courts and then take jurisdiction away from the Supreme Court, it could effectively destroy the judiciary.
By the time this happened, though, the people would be in the streets.
Wasn't McCardle limited, because in fact, McCardle had other avenues of getting what he wanted (which, I think, was some kind of habeas relief that Congress had amended the Court's jurisdiction to foreclose)? Wasn't the question of whether Congress could leave a person without any judicial remedy whatsoever left open?
The stronger argument, it seems to me, is that there is an inherent judicial power, arising both from the common law and from the first sentence of Article III, Section 2, Clause 1, which states: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority."
It seems to me that Congress can amend the Supreme Court's appellate jurisdiction all it wants, but not to the point where it completely removes the power of the judiciary to decide "all cases, in law and equity, arising under this Constitution, the Laws of the United States, and Treaties made." This grant of power is not subject to congressional modification.
Separation of powers also mandates that no branch be able to be completely subordinated to another. This is the basis of the grant of powers to the Judicial Branch independent of anything Congress may do.