American Politics MDCLXVIII - Warning! May contain non SB1070 posts

[Nymeria Sand]

Slightly OT, but Al and Tipper have separated after 40 years of marriage:

http://www.msnbc.msn.com/id/37450410/ns/politics-more_politics/

Guess Tipper left the lights on one too many times.

[Tempra]

Major Miranda case was just handed down.

WASHINGTON — A divided Supreme Court scaled back the well-known Miranda right Tuesday and enhanced prosecutors' ability to assert that a suspect waived his right to remain silent even when he did not say so.

By a 5-4 vote, the justices said that once rights have been read and questioning begun, a suspect must clearly declare that he wants to remain silent and cannot simply be silent.

The decision in a Michigan case broke along ideological lines, with Justice Anthony Kennedy writing the opinion, joined by fellow conservatives. The four liberals dissented in an opinion by Justice Sonia Sotomayor, a former Manhattan prosecutor who warned that the decision "turns Miranda upside down."

...

On appeal, he said he invoked his right to remain silent by refusing to answer questions for a long period of time and that his statements should not have been used at trial.

A U.S. appeals court agreed, rejecting Michigan officials' claim that Thompkins had waived his rights. U.S. Solicitor General Elena Kagan, representing the Obama administration and now a nominee for the court, sided with Michigan in its appeal. She said a suspect must clearly assert his right to silence.

The Supreme Court majority agreed.

Kagan's position is interesting.

http://www.usatoday.com/news/washington/judicial/2010-06-01-court_N.htm

[Lord Mord]

I'm interested to know what the attorneys think. Does this translate into a back-door allowance of police questioning persisting after requesting a lawyer? I mean, it's what it sounds like on the surface.

[lokisnow]

I love it: In order to have the right to silence you MUST talk.

Can't wait to see what Stewart and Colbert say about it.

Does it strike anyone else that this decision mainly benefits rich men who have attorneys to declare their right of silence for them, but will also serve to deliberately discriminate against the poor (lacking a lawyer to assert their rights for them) and badly educated who may not understand the right to silence only by talking about how much they want to be silent but understand the concept of keeping their mouth shut.

[Lord Mord]

lockesnow,

I love it: In order to have the right to silence you MUST talk.

I don't disagree with you that the ruling contains a healthy (or unhealthy) measure of perversity, but one distinction I'd like to make here is that you're only obliged to talk if you've started talking already, as I understand it.

What I'm more concerned about is what it entails to have the right to be silent. Does it mean the police can no longer question you? Do only interogative statements count as questioning? I mean, if not, then I'm not really clear what is literally, physically supposed to happen upon invoking that is fundamentally different from before invoking.

[Former Lord of Winterfell]

lockesnow,

I don't disagree with you that the ruling contains a healthy (or unhealthy) measure of perversity, but one distinction I'd like to make here is that you're only obliged to talk if you've started talking already, as I understand it.

What I'm more concerned about is what it entails to have the right to be silent. Does it mean the police can no longer question you? Do only interogative statements count as questioning? I mean, if not, then I'm not really clear what is literally, physically supposed to happen upon invoking that is fundamentally different from before invoking.

The Constitution doesn't guarantee a right to "remain silent", and the decision can look odd if "silent" is taken too literaly. It simply says that you can't be compelled to give testimony against yourself. The word "silent" doesn't appear at all in the Constitution.

So, requiring someone to speak solely for the purpose of asserting the right against self-incrimination shouldn't violate the Constitution. Suspects obviously must verbally request representation by an attorney already, and we don't view that obligation to speak as violative of the Constitution.

In fact, this decision really doesn't require a suspect to speak at all. Nothing prevents him/her from remaining silent. But if they want the police to stop asking questions, they need to say something to that effect to the police. Not sure why that's unreasonable.

[Lord Mord]

FLoW,

So, requiring someone to speak solely for the purpose of asserting the right against self-incrimination shouldn't violate the Constitution.

If Miranda says you do have the right to remain silent, presumably they mean derived from, though not stated directly in the Constitution. Otherwise, where does that right come from?

As such, Constitutionality of silence per se is, your gainsaying notwithstanding, definitely a crucial issue.

Suspects obviously must verbally request representation by an attorney already, and we don't view that obligation to speak as violative of the Constitution.

Why would we?

In fact, this decision really doesn't require a suspect to speak at all. Nothing prevents him/her from remaining silent. But if they want the police to stop asking questions, they need to say something to that effect to the police. Not sure why that's unreasonable.

Okay. So if I understand you rightly, your answer to the question I posted above is that the right to remain silent = the right to have the police stop questioning you. Is that right?

And if so, then, yeah, it doesn't particularly bother me that a person has to ask for it.

Are you of the mind that once invoked, the right to silence is waived if the accused so much as says a single word? And if so, can it be re-invoked over and over again?

[Mad Monkey]

If Miranda says you do have the right to remain silent, presumably they mean derived from, though not stated directly in the Constitution. Otherwise, where does that right come from?

Well, you have the right not to give evidence against yourself. Doesn't that seem to imply that you do have the right not to give evidence against yourself (such as by remaining silent?) If you have the right to not do something, then you should have the right to not do that thing.

[Tempra]

FLoW,

Will the prosecution still be barred from mentioning the defendant's silence as evidence of guilt if he fails to affirmatively invoke his right to remain silent?

[Commodore]

a scumbag get eviscerated on live TV.

[TrueMetis]

I always thought the right to remain silent ment you could just not talk. They can keep asking question but you don't have to answer them.

[DanteGabriel]

a scumbag get eviscerated on live TV.

Either Nikki Haley is a serial adulterer with a habit of shitting where she eats, or there is a conspiracy amongst South Carolina GOP political operatives to falsely claim carnal knowledge of her for political smears. Either way, there's nothing more heartwarming than watching a bunch of Republicans shiv each other.

Kind of like how the terminal morons fixing to run against Harry Reid in Nevada have done so much damage to themselves that Reid now seems to have a fighting chance to keep his seat.

Keep going, GOP.

[Nymeria Sand]

Snip. Never mind.

[Sariel]

Major Miranda case was just handed down.

Kagan's position is interesting.

http://www.usatoday.com/news/washington/judicial/2010-06-01-court_N.htm

Isn't Kagan as obliged to represent the Government's position as she would a private client had she been a regular lawyer?

[Tempra]

Isn't Kagan as obliged to represent the Government's position as she would a private client had she been a regular lawyer?

The United States was not a party, and as such, the United States was not required to file a brief in the case. Kagan filed an amicus curiae brief to side with the State of Michigan. It is hard to tell whether the position was hers, or one of the few people above her (holder and Obama) who told her to take that position.

You can find a writeup about her role here.

[TrackerNeil]

I have to take some time in this thread to talk a bit about New Jersey's Chris Christie, who supposedly heralded the Great Republican Comeback of 2010. If so, he makes a poor vanguard. The guy had a 33% approval rating in April, and has only managed to climb back around 43% or so, according to Farleigh Dickinson University. (To be fair, Rasmussen has him higher, although I find Rasmussen is often an outlier in favor of conservatives.) In addition, the man has stepped into it up to his neck over his refusal to renominate a state Supreme Court justice.

For those who haven't followed the story, in the Garden State SC justices are nominated for seven-year terms and must then be renominated by the governor. Retirement is mandatory for those justices who reach 70. When Justice John Wallace came up for renomination in May, Christie for some reason refused to comply with tradition and instead made a different nomination. Although the governor has the legal authority to make this decision, state Senate President Stephen Sweeney decided he wasn't having it. He was stated there will be no confirmation hearings for a new nominee. Period. Just to make things more interesting, Wallace is African-American and the Christie nominee is not. Also, Wallace turns 70 in less than two years, which means Christie could have replaced him then without all this stir.

If that isn't enough for you, six of seven members of an advisory panel that reviews nominees quit over Christie's move.

Credit to Peter Dyckman-Campbell for predicting that Christie was ripe for a legislative defeat like this.

[Former Lord of Winterfell]

The guy had a 33% approval rating in April, and has only managed to climb back around 43% or so, according to Farleigh Dickinson University. (To be fair, Rasmussen has him higher, although I find Rasmussen is often an outlier in favor of conservatives.)

Rasmussen's final pre-election poll had Christie winning by 3. He actually won by 4. Meanwhile, FD was busy crowning Governor Corzine.

In addition, the man has stepped into it up to his neck over his refusal to renominate a state Supreme Court justice.

For those who haven't followed the story, in the Garden State SC justices are nominated for seven-year terms and must then be renominated by the governor.

I assume you meant "may" be renominated by the Governor. It's his choice as to who to nominate, right?

When Justice John Wallace came up for renomination in May, Christie for some reason refused to comply with tradition and instead made a different nomination.

I suspect the "some reason" was that he preferred to nominate a more conservative Republican rather than renominate a liberal Democrat. The fact that Democrats are howling about that is just laughable. Apparently, they don't want to accept that Corzine lost. Spinning this as some kind of a scandal ("a Republican nominated a Republican instead of a Democrat?! Horrors!) is transparantly political.

Credit to Peter Dyckman-Campbell for predicting that Christie was ripe for a legislative defeat like this.

Christie's going up against a state legislature dominated by the other party, so of course he's going to lose some. What's surprising is how often he's won, particularly on budget issues.

The great thing about Christie is that he just does what he thinks needs doing, and sticks to it regardless of the press or polls. Dems are furious that they can't force him to sign a tax increase, and the public employee unions in particular hate him.

My kind of guy.

[Ormond]

Rasmussen's final pre-election poll had Christie winning by 3. He actually won by 4. Meanwhile, FD was busy crowning Governor Corzine.

And I have read that Rasmussen is notorious for leaning toward Republicans all through an election campaign's polling until the very last week, when suddenly their numbers get a lot more accurate, and more like the general polling consensus.

[Former Lord of Winterfell]

And I have read that Rasmussen is notorious for leaning toward Republicans all through an election campaign's polling until the very last week, when suddenly their numbers get a lot more accurate, and more like the general polling consensus.

People write lots of things that aren't true. Rasmussen is unpopular with some because it was the primary polling firm used by a lot of Republican's, but from what I've read, which I acknowledge may be different from what you've read, Rasmussen has acquired a very good rep for accuracy in the last decade or so.

As for the claim that they trend Republican until the last miute, I googled this particular race, and they consistently had Christie up from between two and four points in their final four polls. FD never got it right, including in their final poll.

I checked the 2008 presidential polls on RCP, and Rasmussen had Obama with a minimum five point lead the entire month of October.

[Andriy Czarchenko]

Rasmussen doesn´t really help its reputation with polls like CT-Sen and KY-Sen.

CT: After Blumenthal´s "scandal" Rasmussen on May 18th had it 48-45for Blumenthal. This obviously raised interest in the race and other pollsters got involved.

Just days later partisan GQR(D) found Blumenthal up 55-40

Less than week from that Quinnipiac pegged it at 56-31 and R2K for dailykos at 52-33.

On June 1st Rasmussen polls CT-Sen again. Less than 2 weeks after they found 3 point spread it´s 56-33. CT voters sure change their minds fast.

KY: After the primaries, on May 19th Rasmussen polls Paul up 59-34.

About a week later R2K for Dailykos has it 44-41 and SUSA 51-45.

On June 1st Rasmussen is also back in KY and the race is suddenly 49-41. Another huge change in the last 2 weeks.