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Senate Watch

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At five weeks to election day, Chris Cillizza at the WaPo aggregates the election forecasting models for us.  "All three major election forecasting models saw an uptick in the likelihood of Republicans winning the six seats they need to retake the Senate majority over the past week, movement largely due to the party's strengthened chances in Alaska, Colorado and Iowa."

Holder's Legacy of Racial Politics

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Edwin Meese and Kenneth Blackwell have this op-ed in the WSJ, with the above title.

Attorney General Eric Holder, who announced his resignation on Thursday, leaves a dismal legacy at the Justice Department, but one of his legal innovations was especially pernicious: the demonizing of state attempts to ensure honest elections.

Timing Holder's Replacement

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"President Obama has yet to reveal his choice to succeed Attorney General Eric H. Holder Jr., but already the Senate confirmation process has begun its march toward contentiousness," Paul Kane and Juliet Eilperin report in the WaPo.  Kristina Peterson reports at the WSJ:

Some Republicans quickly condemned the idea of the Senate considering Mr. Holder's replacement when outgoing lawmakers would still be able to vote on the next attorney general. "Allowing Democratic senators, many of whom will likely have just been defeated at the polls, to confirm Holder's successor would be an abuse of power that should not be countenanced," Sen. Ted Cruz (R., Texas) said
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Some Democrats said it would be a mistake to purposefully delay the process. "It would be irresponsible for anyone to try to delay confirmation of the country's chief law-enforcement officer for political purposes and I would hope responsible members of both parties would cooperate in a thorough hearing and a confirmation vote," said Judiciary Chairman Patrick Leahy (D., Vt.)

Holder Stepping Down, Who Is Next?

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Devlin Barrett has this story in the WSJ on the departure of U.S. Attorney General Eric Holder.  Possible replacements mentioned include Solicitor General Donald Verrilli, former White House counsel Kathyrn Ruemmler, and Manhattan U.S. Attorney Preet Bharara.  See also this post by Reid Epstein on WSJ's Washington Wire blog.  Epstein also lists Massachusetts Gov. Deval Patrick and California AG Kamala Harris.

Barrett notes, "One question is whether the Senate, scheduled to return on Nov. 12, would have enough time to confirm a high-ranking cabinet official before the congressional session ends."

A confirmation hearing in the next Congress, with Chuck Grassley in the chair, could be quite informative.  One can hope.

Governor Races

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The previous post noted the Oregon governor's race.  Here are a few notes from elsewhere around the country.

In New Mexico, incumbent Governor Susana Martinez has opened up a commanding 18% lead over Attorney General Gary King in an Albuquerque Journal poll.  Real Clear Politics has moved this race into the "Likely GOP" column.  A commanding win in a "blue" state would make Martinez, a former district attorney, a credible possibility for the 2016 national ticket.

In Colorado, the Denver Post has the race too close to call.  RCP calls it a toss-up.  Unlike Kitzhaber, Hickenlooper may pay a political price for his death penalty weaseling.  The Post says "only" 18% consider that a "major factor" in their decision, but 18% is a lot in a tight race.  Of course, it depends on how many of those 18% are swing voters as opposed to people who would vote for the proverbial yellow dog before Hickenlooper, but given the across-the-political board support for the death penalty we often see in "crosstabs," with even self-designated "liberals" split about even, I have to think at least a couple percent of those 18 are people who might have otherwise voted for Hickenlooper.

Reprieves and Volunteers

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Harrison Latto, attorney for Oregon death row "volunteer" Gary Haugen, has this op-ed in the Oregonian.

The most puzzling aspect of the reprieve Gov. Kitzhaber granted to my client Gary Haugen is why he chose the utterly unprecedented device of a reprieve of indefinite duration, which will expire as soon as he leaves office, rather than using the more conventional method of commuting Haugen's death sentence to life in prison.

The Coming Election

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The latest bipartisan Battleground/GWU poll is out.  It shows significant gains for the Republicans since the previous poll five months ago.  Jennifer Rubin has this column in the WaPo.

As noted previously on this blog, a Republican majority in the Senate would produce significant changes in criminal justice.  Judicial nominees who are sufficiently anti-law-enforcement to produce unanimous Republican opposition could once again be kept off the bench.  Legislative changes that are opposed by the pro-criminal crowd but not so strongly as to filibuster or veto otherwise important legislation could be placed into larger bills.  (The Prison Litigation Reform Act, for example, was placed into a budget bill back in 1996.)  There won't be sweeping changes either way in the next Congress, but the scope of what is possible would expand with a Senate majority.

Fools, Damned Fools, and Clients

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Michael Barone writes in the Washington Examiner:

"About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop." So supposedly said Elihu Root, New York lawyer and secretary of war and of state, and U.S. senator from 1909 to 1915.

Today it seems that many liberal "would-be clients" are in desperate need of what Root called "a decent lawyer."

Take Texans for Public Justice, the so-called public interest group that has been pushing for the indictment of Gov. Rick Perry by a grand jury at the urging of special prosecutor Michael McCrum.

The basis for the indictment is, in the words of liberal New York Magazine writer Jonathan Chait, "unbelievably ridiculous."

New Chief for ICE?

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Devlin Barrett reports for the WSJ that Sarah Saldaña, US Attorney for the Northern District of Texas, "is the leading candidate to run the Immigration and Customs Enforcement agency, according to people familiar with the discussions."

ICE is one of the agencies created in the post-9/11 reshuffle of homeland security organization.  It has many of the functions previously performed by the old Immigration and Naturalization Service.

And the story has this nugget:

Ms. Saldaña got her current job after an unusual political standoff in which her nomination to become U.S. attorney was backed by Sen. John Cornyn (R., Texas) and opposed by some Democrats in the Texas congressional delegation.

Arizona Primary

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Arizona had its primary election yesterday.  Mark Brnovich won the Republican nomination for Attorney General, defeating incumbent Tom Horne, Alia Beard Rau reports for the Arizona Republic.

I lauded Horne on this blog for moving forward with a "fast track" application for Arizona's capital cases in federal habeas corpus (here and here), but unfortunately the follow-through has been lacking.  I expect Brnovich to take up the fight if he wins the general election.  (He and I serve together on the Federalist Society's Criminal Law Practice Group Executive Committee, BTW.)

The general election is not a foregone conclusion, though.  The race was close last time, the Democratic nominee had no primary opponent, and she has a formidable warchest.

In the Governor's race Doug Doucey has taken the Republican nomination.  I haven't followed that race, but Doucey has endorsements from people whose judgment I respect.  His campaign website is nearly devoid of useful information on his positions, as most campaign websites are these days.
The sitting Governor of Colorado, John Hickenlooper, is in a heated re-election campaign.  One of the issues is his handling of the case of convicted multiple killer John Dunlap.  

Dunlap gunned down four people in a Chuck E. Cheese in Aurora in 1993.  He was sentenced to death, and the sentence has been affirmed after the usual multiple layers of review.  Nonetheless, and despite the fact that Hickenlooper originally ran for office as a death penalty supporter, he granted Dunlop a "temporary reprieve" earlier this year, saying that Dunlop would not be executed while he was in office.

In a TV interview with CNN, now reported by the Denver Post, Hickenlooper said that, should his pro-death penalty opponent, Rep. Bob Beauprez, win, he would consider granting "full clemency" to Dunlop.

It's hard to know where to begin with this story.


Pretrial Habeas Corpus and Gov. Perry

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Once upon a time, the use of habeas corpus in criminal cases was almost entirely pretrial.  A person jailed pending trial for alleged conduct that he contended was not a crime could get that issue reviewed via habeas corpus.  The most famous American case involved two men accused in the Aaron Burr conspiracy.  See Ex parte Bollman and Swartwout, 8 U.S. 75 (1807).  The writ could be used post-trial to attack the jurisdiction of a court of limited jurisdiction, such as a court-martial of a defendant who claimed to be a civilian, but collateral attack via habeas corpus on a conviction by a court of general jurisdiction was simply not available.  It was over 40 years after the formation of the federal courts before anyone tried, and the attempt was swiftly shot down in Ex parte Watkins, 28 U.S. 193 (1830).

Today the situation is very much the opposite.  We don't see a lot of pretrial habeas corpus these days, but Texas Governor Rick Perry is doing it old school.  Eugene Volokh has this post with a link to the application. Perry is in "custody," a jurisdictional requirement for habeas corpus, because he is out on bond.

Taranto on Obama's Ferguson Statement

Catching up on some stuff that happened while I was out of town, I found an interesting example of the political cross-currents in the Ferguson, Missouri matter.  James Taranto of the WSJ is not a big fan of President Obama, to put it mildly.  He does, though, give the President high marks for his statement last week in this column.

Multiple investigations are under way into the circumstances under which Michael Brown was killed. They must proceed deliberately, in accordance with the rule of law. "I have to be very careful about not prejudging these events before investigations are completed because, although these are issues of local jurisdiction, the [Department of Justice] works for me and when they're conducting an investigation I've got to make sure that I don't look like I'm putting my thumb on the scales one way or the other," the president said.

People in positions of authority have an obligation to conduct themselves with reason and restraint. Whether or not the Ferguson police have lived up to that duty, the president, in his public statements on the crisis, has.

DOJ's Version of Unbiased Justice

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My friend Paul Mirengoff at Powerline has a depressing and ominous assessment of the chance that Officer Darren Wilson, the Missouri cop who shot unarmed but huge 18 year-old Michael Brown, can get a fair shake from the federal grand jury looking into the case.

Eric Holder's Justice Department is in Missouri, some 50 strong according to Megyn Kelly, to investigate the shooting of Michael Brown and to decide whether to charge police officer Darren Wilson with civil rights crimes. The investigation and decision is in the hands of the Criminal Section of the Civil Rights Division.

How much confidence can Americans have in the fairness and objectivity of this unit? The answer, I submit, is little if any.

Christian Adams at PJ Media has been covering the Criminal Section of the Civil Rights Division for years. PJ Media had to file a lawsuit to obtain the resumes of the lawyers Holder has brought into that group. According to Adams, it turned out that every one of his hires is a left-wing activist, and that some have histories of anti-police activity. 


What follows is a hair-raising rundown of the background of the lawyers who will be running the grand jury.  The short of it is that they're a bunch of far left ideologues.  

If you thought the Rick Perry indictment was a creature of politics, you're right. But I fear it was just a rehearsal.

Nixon in 2016?

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Now here's an intriguing thought. Paul Kane and Robert Costa have this article in the WaPo on the possible impact of the Ferguson debacle on the possible 2016 ambitions of Missouri Governor Jay Nixon.

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