New of the Day

I think all of us were working when the two biggest stories of the day were announced, so we couldn’t post earlier.  

As you all know by now, Judge Sonia Sotomayor has been nominated by President Obama to replace Justice Souter on the Supreme Court.  

Additionally, the California Supreme Court, in a 6-1 opinion, ruled that Proposition 8, which was passed last year and made gay marriage in California illegal, was constitutional.  

Thoughts? Reactions? Comments?

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Thoughts on the Torture debate

In the last month or so there has been a big debate in the blogosphere over what Obama should do with memos and photos that tend to show that the Bush administration tortured some of the detainees it held.  In the media, this discussion has been painted as a partisan battle, where the liberal left is seeking the ultimate revenge against the Republicans who were doing their best shortly after 9/11.  I don’t see it that way.  To me this is an issue about the rule of law and about whether members of the Office of Legal Counsel (Judge Bybee, Professor Yoo and Steven Bradbury), other members of the Executive Branch (including Vice President Cheney or even President Bush), and members of Congress (Nancy Pelosi, perhaps)  should be exempted from national and international law.  I think they should not be.

But that also doesn’t mean that I think they should necessarily sit in jail for the rest of their lives.  There is a  difference between torture being legal and torture being justifiable.  What I mean by that is similar to what Justice Jackson said in his dissent in Korematsu v U.S.  Korematsu challenged an order given by a General (and authorized by Congress) during World War II that mandated the internment of all Americans of Japanese dissent in California.  The Supreme Court upheld the law, but in his dissent, Justice Jackson stated, “if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient.”  Korematsu v. United States, 323 U.S. 214, 244 (1944).  Justice Jackson’s point was that while some decisions may be required because of the unknowns of a military situation facing the country, those decisions should still be subject to judicial review.

While torture is illegal it can sometimes be justifiable. 

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We’ve Dropped to #40!

That is, of the first annual Party Law Schools Rankings.

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Be Right Back

We haven’t disappeared – just taking some time off after finals to regroup our thoughts and get settled in the normal world again.  Check back on Monday for regular blogging.  

I hope you are all enjoying your break so far!

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