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A vote for McCain will further shred civil liberties from the federal courts

Apr 17, 2008 A vote for McCain will further shred civil liberties from the federal courts

Although I am not fond of Barack Obama and am less fond of Hillary Clinton, I absolutely oppose John McCain. For starters, he will keep the Iraq war going and will disrespect civil liberties more than Obama or Clinton will do. For starters, McCain undoubtedly will tap into the bucket of Bush I and Bush II appointees, who in general are more hostile to civil liberties than those who served under Bill Clinton and Jimmy Carter. Additionally, McCain proudly proclaims he is a conservative, which says more against than for civil liberties.

Presidents leave a particularly long legacy on civil liberties through their federal judicial appointments, particularly by their appointments to the Supreme Court. All federal judges are installed for life, unless they are impeached or retire.

For the latest example of the severe damage done by presidential federal judicial appointees long after the president leaves office, take a look at yesterday’s 7-2 Supreme Court vote in Baze v. Rees, ___ U.S. ___ (April 16, 2008) rejecting the lethal injection death penalty challenge that arose from the risks that the tri-part lethal injection cocktail is unconstitutionally cruel and unusual for the unseen excruciatingly lengthy pain that it can cause. Who voted in the minority? Only Bill Clinton-appointed Ruth Bader Ginsburg and Bush I-appointed David Souter. The remaining justices, who rejected this death penalty challenge, were all appointed by Republicans, except for Clinton-appointed Stephen Breyer, who tends to support giving substantial regulatory discretion (here, including choosing the method of execution) in the hands of the legislative and executive branches of the government.

Although the sky has not yet completely fallen on civil liberties after eight years of reactionary Regan followed by four years of Bush I, the intervening eight years of the Bill Clinton administration (whose judicial appointments were not sufficiently protective of civil liberties, either) will not be enough to prevent severe and accelerated federal judicial damage to the Constitution if McCain becomes president. McCain proudly pronounces his conservative bona fides, which will inevitably lead to his appointing more federal judges hostile to civil liberties than if Obama or Hillary Clinton make the appointments. Certainly, the Senate must approve federal judicial appointments, but even during the Reagan years, the Borking of the Bork nomination took so much energy by his opponents that the Reagan administration was able to regroup with its remaining federal judicial appointments; no Senate vote has kept any subsequent Supreme Court nominee off the bench.

Aside from the repeated vacancies at the federal District and Circuit Court level, the next president likely will appoint at least one Supreme Court justice, if not more. Justice John Paul Stevens will be eighty-eight next week and will be nearly ninety-three when the next president leaves office; it is very doubtful that Stevens will stay on the bench as long as that. Ford-appointed Stevens is often, but certainly not always, one of the more reliable justices for giving some real offset to at least five of the justices who are more dangerous to civil liberties, those five being Chief Justice Roberts and Justices Scalia, Thomas, Alito and Kennedy.

In any event, even if Obama and Clinton are averting campaign focuses on civil liberties in order to try to be more “electable” against McCain, such downplaying only leaves a bad taste in my mouth and a continuing cynicism about most political candidates and elected officials. Jon Katz

ADDENDUM The justices essentially treated this Baze case as being about the Constitutionality of current lethal injection methods, and not the Constitutionality of the death penalty itself. However, it appears that Justice Stevens is the only sitting justice who might be ready to rule the death penalty itself to be unconstitutional. For instance, in his concurring opinion, Justice Stveens proclaims:

“I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” Furman, 408 U. S., at 312 (White, J., concurring).”

In her dissenting opinion in Baze, joined by Justice Souter, at the outset Justice Ginsburg demonstrates how seriously mistaken are the remaining justices who upheld Kentucky’s lethal injection approach:

“Kentucky’s three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. App. 435, 437, 625. Potassium chloride causes burning and intense pain as it circulates throughout the body. Id., at 348, 427, 444, 600, 626. Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be “constitutionally unacceptable.” Ante, at 14. The constitutionality of Kentucky’s protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentucky’s system is constitutional, the plurality states, because “petitioners have not shown that the risk of an inadequate dose of the first drug is substantial.” Ante, at 15. I would not dispose of the case so swiftly given the character of the risk at stake. Kentucky’s protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and 2 BAZE v. REES GINSBURG, J., dissenting third drugs. I would vacate and remand with instructions to consider whether Kentucky’s omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.”

Further increasing the risk of excruciating pain from lethal injection is the widespread use of people insufficiently trained in medicine to carry out the lethal injections. Justice Alito’s concurring opinion in Baze demonstrates the widespread rejection among medical associations of the involvement of medical professionals not only in carrying out lethal injections, but even in seeking to reduce the pain caused by lethal injection.

In any event, at least five justices, including the dissent, made clear that Baze’s upholding of the Kentucky protocol does not prevent Constitutional challenges to other states’ lethal injection protocols, even though Baze rejects the Constitutional challenge to Kentucky’s lethal injection protocol.

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