Senator Joseph R. Biden Jr., Democrat of Delaware, asked Judge Alito on Thursday whether he shared the aggressive views of executive power discussed in a recent book by John Yoo, an architect and forceful advocate of the Bush administration's legal strategy in the aftermath of the Sept. 11 attacks. Judge Alito said he had not read the book, "The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11." But some of Judge Alito's answers suggested that he would not take as hard a line as Professor Yoo, who now teaches law at the University of California, Berkeley.
Notably, Judge Alito endorsed a 1952 concurring opinion by Justice Robert H. Jackson rejecting President Harry S. Truman's assertion that he had the inherent constitutional authority to seize steel mills during the Korean War. The opinion, in Youngstown Sheet and Tube Company v. Sawyer, set out a three-part sliding scale for considering clashes between presidential power and Congressional authority.
The president's power is at its "lowest ebb," Justice Jackson wrote, when Congress has forbidden a particular action. The administration has conceded that its domestic surveillance program violated the terms of a 1978 law requiring court approval for some intelligence gathering, arguing that it had authority to conduct the surveillance without warrants under both the Constitution and a Sept. 18, 2001, Congressional authorization to use military force.
In an interview Thursday, Professor Yoo said the balancing called for by the Jackson concurrence did not apply to the surveillance program.
"The Jackson concurrence applies to domestic matters which are outside the theater of combat," he said. The surveillance program, by contrast, is partly international, he said, and the theater of combat after the Sept. 11 attacks encompasses the United States.
Noah Feldman, a law professor at New York University, said the differing interpretations of the applicability of the Jackson concurrence were significant.
"It's very striking," Professor Feldman said, "that both Judge Alito and Chief Justice Roberts said they would apply Justice Jackson's concurrence in the steel seizure case, because it reflects a view of presidential power that is not unbounded and is not the strongest version of the unitary executive theory. If you were truly to follow Youngstown, you can't embrace the strongest version of the unitary executive theory."
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has
been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a material witness in the proceeding.
(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
(d) For the purposes of this section the following words or phrases shall have the meaning indicated:
(1) "proceeding" includes pretrial, trial, appellate review, or other stages of litigation;
(2) the degree of relationship is calculated according to the civil law system;
(3) "fiduciary" includes such relationships as executor, administrator, trustee, and guardian;
(4) "financial interest" means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
(i) Ownership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities unless the judge participates in the management of the fund;
(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a "financial interest" in securities held by the
(iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a "financial interest" in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(iv) Ownership of government securities is a "financial interest" in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.
(e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.
(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.
but the Democrats have not had all three branches of government since 1994, so there hasn't been an opportunity to shill for them in the way I'm talking about
magoo: Maybe Biden is right in suggesting we scrap the whole charade.
Upon returning from break, I found my NYC law school locker vandalized once again. This is the third time that my Bush-Cheney campaign bumper sticker has been ripped off, whereas all other such postings, including Kerry and anti-GOP stickers were left intact. Now I must find a fourth - because if I allow them to rip it off without reposting it, the terrorists will have won. Somebody tell me - what kind of mode of expression is it to take down other people's stuff?!
There is an al Qaeda sleeper cell somewhere in America with al Qaeda terrorist C. A decides to call C and B calls C on a different line. So, C now has two phones, one with A on the line and the other with B on the line. Then, he turns on the speakerphone on both phones and thereby allows A and B to communicate in this manner. Does that mean that before the US can intercept and monitor such a phone call, they would need to obtain a FISA warrant?
According to a Legal Times study of voting patterns on the appeals court in 1987, for instance, Ginsburg sided more often with Republican-appointed judges than with those chosen by Democrats. In cases that divided the court, she joined most often with then-Judge Kenneth W. Starr and Reagan appointee Laurence H. Silberman; in split cases, she agreed 85 percent of the time with then-Judge Robert H. Bork -- compared with just 38 percent of the time with her fellow Carter appointee, Patricia M. Wald.
By contrast, University of Chicago law professor Cass Sunstein found that Alito, in the overwhelming majority of cases in which he dissented, took a more conservative stance than his colleagues.
Of particular interest is paragrapg (d)(4)(i) which provides, "Ownership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities unless the judge participates in the management of the fund."
I'm not sure what Mr. Flym was driving at, but it is absolutely clear that ownership of shares in a mutual fund is not a financial interest in the company that manages the fund for rather obvious reasons.
A trade like the one that Washington made with New Orleans in 1999 (the Saints gave up all 8 picks to move up and take Ricky Williams) would go a lot farther in terms of rebuilding the franchise.
Prior to a newly elected Senator being sworn in as such, he or she must have completed a Constructional Law and History course. This class must have discussed the History of the Legal Process of the United States from the Declaration of Independence up to the previous term of the Supreme Court. Discussed be the separation of powers as well as the rights and duties of each. Furthermore, in order to understand such principles, the course must include a detailed analysis of the works used in crafting the Constitution including Hobbes and Montesquieu, as well as the Federalist Papers.
Why isn't the anti-Wal-Mart bill that just passed in Maryland a bill of attainder? I mean, the bill seeks to punish one company and one alone.....
I am not a lawyer, but I can read clear language, as can anyone who is honest and not looking to skewer the meaning of the plain words which appear in black and white.