All Blog Posts from Political Hotsheet

As you likely know by now, Supreme Court Justice David Souter reportedly plans to retire at the end of the court's term this June.

Our Chief Legal Analyst and Legal Editor Andrew Cohen weighs in within two columns on CBSNews.com today -- one that looks at Souter's record and the reasons he is leaving the bench, and another that floats the names of possible replacements.

Souter Will Leave A City He Never Liked

The soon-to-be-retired David Hackett Souter is proof that you can always take the boy out of the country but you can’t always take the country out of the boy. ...

Instead, like fellow Republican appointees Kennedy and O’Connor (who also have been pilloried and offended by the right), he straddled the Court’s middle rung of ideology. Liberals loved that because Justice Souter gave them victories they had no right to expect when he was appointed. Conservatives hated it because they couldn’t count on his vote.

Guessing Game: Who Will Replace Souter?

It’s been 15 years since a Democratic president got to appoint a justice. Back then, in 1994, President Bill Clinton selected a moderate liberal from the lower federal courts, Stephen Breyer, to replace the moderate conservative (and Republican appointee) Harry A Blackmun. Now, in the coming weeks, President Obama will have to decide who he wants to replace David H. Souter, another practical, left-moderate jurist, who evidently has plans to ride off in the New England sunset.

Fifteen years of frustrated Democratic nominees has caused quite a back-up of candidates. But the Obama Administration already has offered some serious clues about the sort of person they’d like to try to put onto the court. Six weeks ago, when asked about a potential Supreme Court nomination, a senior Administration official told reporters that the White House is looking for people with experience in law and in life, people with character and commitments to a community, people who can make hard decisions but still have empathy for the litigants before them.

If these job qualifications are accurate - if they aren’t just spin - they suggest strongly that the President will look beyond the lower federal courts for his first selection.

You can read more of Cohen's posts in Hotsheet here.

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Clever guy that Arlen Specter. When the Ranking Member of the Senate Judiciary Committee publishes a long essay to liberals in the New York Review of Books he wants them to know he "appreciate[s] an imbalance in our 'checks and balances' that has become increasingly evident in recent years."

But when the cable cameras are on him, when he's talking to his base, he's glibly warning that an investigation into Bush-era torture policies would be a "witch hunt" that can easily be avoided if only investigators "walk in and ask where the file cabinets are."

You can understand why the Republican senator from Pennsylvania wants to be all things to all people. He's now facing another primary challenge from Pat Toomey, a staunchly conservative opponent, so he has to keep up his bona fides with the right.

But he also has a history of standing up to presidents of his own party when he believes they aggrandize their constitutional powers. The problem for Sen. Specter is that the current political debate over Bush-era torture policies leaves him tongue-tied and twisted, contorting himself over apparently contradictions in logic and policy.

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Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) reacted quickly and positively this morning to President Obama’s comments yesterday about the possibility of a bi-partisan commission that would investigate the Bush Administration’s torture policies.

Speaking to reporters on Capitol Hill, Sen. Leahy said: “I would prefer an overarching commission, non-partisan commission, to look at this and for the American people to know what happened, that would require support from both parties just to get it in there. The president who seemed lukewarm about it, yesterday in his comments seemed more agreeable to the idea and I will sit down and talk with him about it.”

Sen. Leahy won’t just need to convince the White House and Justice Department to go along with the idea of a Torture Commission. He’ll need Republicans to make the Commission truly bipartisan. And for that he might need an initial pledge from the executive branch not to prosecute former Bush officials who authorized and drafted the memos. Wouldn’t that cool the ardor of Congressional Republicans who worry about a “witch hunt”?

Late last night, long after the evening news shows were done, the Senate Armed Services Committee released a newly-declassified report on the scope of America’s "enhanced interrogation tactics."

It’s an ugly story, offered in great detail (it was completed in November 2008) but not inconsistent with what previous reports have detailed about why and how we came to torture.

Here's my question for the day: does the release of the results of this pointed investigation make it more or less likely that we’ll see torture prosecutions or a "torture commission"?

In other words, will opponents of those two options now point to the Armed Services Report and declare "we don’t need to look back again, we've already done it"?

Or will the report only push the Congress and the White House into pressing the torture question further? Discuss.

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(CBS)

Andrew Cohen is CBS News Chief Legal Analyst and Legal Editor.. You can read more of his posts in Hotsheet here.

Welcome to an odd week at the Supreme Court where the Justices get the rare opportunity to chime in on two cases that present facts that: 1) most Americans can understand, and; 2) most Americans are appalled by.

"Hard facts," lawyers say, make "bad law." This week we'll begin to learn what sort of law the Court is going to make with the "easy facts" before it.

First up at the High Court, on Tuesday, is the story of Savana Redding, then 13-years-old, who was sent to the nurse's office at her Safford, Arizona school, told to strip to her underwear, "move her bra to the side and pull her underwear out, exposing her breast and pelvic area."

Why? One of her classmates accused Redding of hiding prescription-strength Ibuprofen pills (which were never discovered). Redding's mom sued. The trial court sided with the school. The 9th U.S. Circuit Court of Appeals sided with Redding.

The question in the case is not whether students may be searched by school officials or the police. They may be. The Court has long held that public school students do not have nearly the same privacy rights as adults. Chances are the chattering classes would not be all agog over this story if the student was suspected of having a gun or a bomb and the search were not so intimate.

But the main question Tuesday is whether the intensity of the search was justified given the object of it—whether a suspicion of a few ibuprofen tablets warranted making a 13-year-old girl expose herself.

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Before we even learn the name of the Somali teenage pirate we are reportedly about to bring to trial in the United States, and with Al Qaeda reportedly urging the sea-faring criminals to become genuine terrorists, its time for a brief refresher course on America and its long, rich history hounding and being hounded by with pirates. The following is courtesy of historian George C. Herring’s George C. Herring’s masterful work, “From Colony to Superpower, U.S. Foreign Relations Since 1776,” which is part of the Oxford History of the United States.

Much has been written about how Thomas Jefferson was the first American president to confront African pirates. That’s true. But did you know that in 1783, before the Constitution was drafted and enacted, the United States Congress offered to pay $80,000 in ransom to pirates who commandeered three American ships? That’s the equivalent of roughly $38 million today. In the end, a treaty saved us from having to fork over the money.

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The bad news for the so-far unnamed teenager qua pirate-hijacker captured Sunday during a now-famous firefight is that he’ll almost certainly be convicted in an American court if and when he is brought to justice here in the States. The good news for the young man is that his time in confinement—both before and after his likely conviction—will be far more humane than he would receive were he to face charges in Kenya or some other African nation.

It doesn’t matter much that the suspect evidently is under 18 years old. Federal law permits the indictment of boys and girls for non-capital crimes. And since no victims died during the hijacking/piracy episode the death penalty would not be an option anyway following a conviction. Moreover, the circumstances surrounding any post-capture comments he may or may not have made shouldn’t be a big deal, either. The feds won’t need a confession here to be able to string together a very strong case. Captain Richard Phillips’ testimony, alone, with the help of a little Navy videotape, would probably be enough to generate a conviction.

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Judging from the headlines this Good Friday morning, the Central Intelligence Agency has followed up on the White House’s pledge to close those odious “secret prisons” around the world; dark places were some of our terror suspects were water-boarded and otherwise tortured.

The New York Times played the story this way: “The Central Intelligence said Thursday that it would decommission the secret overseas prisons where it subjected Al Qaeda prisoners to brutal interrogation methods, bringing to a symbolic close the most controversial counterterrorism program of the Bush administration. But in a statement to employees, the agency’s director, Leon E. Panetta, said agency officers who worked in the program “should not be investigated, let alone punished” because the Justice Department under President George W. Bush had declared their actions legal.”

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Here’s a classic Washington tale, as only a Beyond-the-Beltway boy would tell it.

The New York Times early Tuesday offered a dubious news analysis about the alarming demise of the government’s case against Ted Stevens, the former Alaska senator whose conviction last fall was dismissed this week by a judge furious over a pattern of prosecutorial misconduct.

By talking to Washington insiders (the Timesmen called them “the large corps of Washington lawyers who followed the case, including former prosecutors and defense lawyers”) about their fellow Washington insiders (Stevens’ prosecutors, who now are in big trouble) the Times came up with a think-piece that unfortunately reads more like an apologia for the newly-dubbed “Stevens Six” than it does an insightful look into how extraordinary (and disgraceful) all of this is.

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As dramatic as it sounds, it is not a terrible surprise that U.S. District Judge Emmet Sullivan announced in open court Tuesday that he is authorizing a criminal contempt investigation into the odious misconduct of Ted Stevens’ prosecutors, actions that led directly to disgrace and the dismissal of his conviction.

Judges don't suffer deceit gladly and federal judges in particularly don’t like it when they, or defense attorneys, are lied to by government attorneys.

The judge’s inquiry, replete with the requisite special prosecutor, will run concurrently with any internal Justice Department investigation into what government lawyers knew, when they knew it, and why they failed so miserably to meet their ethical and constitutional duties before and during the former senator’s corruption trial last fall. Either of the investigations, or both, could ultimately result in criminal charges (obstruction of justice, for example), and even prison time for the shady prosecutors who played so fast and loose with evidence.

Judge Sullivan's contempt investigation puts enormous legal and political pressure on the Justice Department to undertake its own aggressive look into how federal lawyers, presumably the cream of the crop, could have failed to disclose important evidence to Stevens' attorneys or even fabricated false evidence to try to enhance their case against the legendary politician. Indeed, Judge Sullivan indicated that he was taking aggressive action because he feared that Attorney General Eric Holder and the DOJ’s Office of Professional Responsibility weren’t moving as quickly with his own review of the matter.

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