RNC Issues Wildly Misleading Report On Judicial Nominees

May 06, 2010 1:05 pm ET

The Republican National Committee has made a new attempt at producing damaging information about President Obama's nominees to various judicial seats.  Whether by removing appropriate context, using faulty sources, or simply lying about the past judgments of these jurists, the RNC displays a deeply rooted disdain for the truth in this newest "research" piece.

RNC Brazenly Misrepresents Professor Liu's Statement On Justice Alito And The War On Terror

RNC:

PREAMBLE: We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defense [with the exception of tools in order to fight terrorists], promote the general welfare, and secure the Blessings of Liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Obama nominee Goodwin Liu opposes giving the government additional tools to fight the War on Terror.

  • Obama's Nominee To The 9th Circuit Court Of Appeals, Goodwin Liu, Fought Against Justice Samuel Alito's Nomination Because He Did Not Want To Give Government Tools To Fight War On Terror. "His deferential instinct toward government is at odds with the Supreme Court's vital role in protecting privacy, freedom, and due process of law, and it deserves special concern in light of the questionable tactics being used to fight the War on Terror." (Prof. Goodwin Liu, Testimony On Nomination Of Judge Samuel Alito To The Supreme Court, Senate Judiciary Committee, 01/12/06) Preamble

[GOP.com, accessed 4/28/10; emphasis, parentheses, and changes to text original]

When read in its entirety, Goodwin Liu's statement reveals a concern for all Americans in light of then-Judge Alito's penchant for ruling in favor of government forces.

Liu: Judge Alito Favors Government Power Over Individual Rights.  In his testimony before the Senate Committee on the Judiciary, Professor Goodwin Liu said:

"That concern is Judge Alito's lack of skepticism toward government power that infringes on individual rights and liberties. Throughout his career, with few exceptions, Judge Alito has sided with the police, prosecutors, immigration officials, and other government agents, while taking a minimalist approach to recognizing official error and abuse. He is less concerned about government overreaching than federal appeals judges nationwide, less concerned than Republican-appointed appeals judges nationwide, and less concerned than his Republican-appointed colleagues on the Third Circuit (see Appendix A). In this area, Judge Alito's record is at the margin of the judicial spectrum, not the mainstream. His deferential instinct toward government is at odds with the Supreme Court's vital role in protecting privacy, freedom, and due process of law, and it deserves special concern in light of the questionable tactics being used to fight the War on Terror." [Liu Testimony before the Senate Committee on the Judiciary, 1/10/06, emphasis added]

Additionally, the Supreme Court overturned Bush policies regarding the War on Terror -- validating Liu's statement that some of the tactics regarding the War on Terror were "questionable."

Hamdi et al. v. Rumsfeld, Secretary of Defense, et al.

After Congress passed a resolution-the Authorization for Use of Military Force (AUMF)-empowering the President to "use all necessary and appropriate force" against "nations, organizations, or persons" that he determines "planned, authorized, committed, or aided" in the September 11, 2001, al Qaeda terrorist attacks, the President ordered the Armed Forces to Afghanistan to subdue al Qaeda and quell the supporting Taliban regime. Petitioner Hamdi, an American citizen whom the Government has classified as an "enemy combatant" for allegedly taking up arms with the Taliban during the conflict, was captured in Afghanistan and presently is detained at a naval brig in Charleston, S. C. Hamdi's father filed this habeas petition on his behalf under 28 U.S.C. § 2241 alleging, among other things, that the Government holds his son in violation of the Fifth and Fourteenth Amendments. [...]  Held: The judgment is vacated, and the case is remanded.  Justice O'Connor, joined by The Chief Justice, Justice Kennedy, and Justice Breyer, concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. Justice Souter, joined by Justice Ginsburg, concluded that Hamdi's detention is unauthorized, but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant. [Hamdi et al. v. Rumsfeld, Secretary of Defense, et al. via Law.Cornell.edu, 4/28/04-6/28/04; citations deleted]

Rasul et al. v. Bush, President of the United States, et al.

Pursuant to Congress' joint resolution authorizing the use of necessary and appropriate force against nations, organizations, or persons that planned, authorized, committed, or aided in the September 11, 2001, al Qaeda terrorist attacks, the President sent Armed Forces into Afghanistan to wage a military campaign against al Qaeda and the Taliban regime that had supported it. Petitioners, 2 Australians and 12 Kuwaitis captured abroad during the hostilities, are being held in military custody at the Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba's ultimate sovereignty, but giving this country complete jurisdiction and control for so long as it does not abandon the leased areas. Petitioners filed suits under federal law challenging the legality of their detention, alleging that they had never been combatants against the United States or engaged in terrorist acts, and that they have never been charged with wrongdoing, permitted to consult counsel, or provided access to courts or other tribunals. The District Court construed the suits as habeas petitions and dismissed them for want of jurisdiction, holding that, under Johnson v. Eisentrager, 339 U.S. 763, aliens detained outside United States sovereign territory may not invoke habeas relief. The Court of Appeals affirmed.

Held: United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay. [Rasul et al. v. Bush, President of the United States, et al. via Law.Cornell.edu, 4/20/04-6/28/04; citations deleted]

Hamdan v. Rumsfeld, Secretary of Defense, et al.

Pursuant to Congress' Joint Resolution authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided" the September 11, 2001, al Qaeda terrorist attacks (AUMF), U. S. Armed Forces invaded Afghanistan. During the hostilities, in 2001, militia forces captured petitioner Hamdan, a Yemeni national, and turned him over to the U. S. military, which, in 2002, transported him to prison in Guantanamo Bay, Cuba. Over a year later, the President deemed Hamdan eligible for trial by military commission for then-unspecified crimes. After another year, he was charged with conspiracy "to commit ... offenses triable by military commission." In habeas and mandamus petitions, Hamdan asserted that the military commission lacks authority to try him because (1) neither congressional Act nor the common law of war supports trial by this commission for conspiracy, an offense that, Hamdan says, is not a violation of the law of war; and (2) the procedures adopted to try him violate basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.

The District Court granted habeas relief and stayed the commission's proceedings, concluding that the President's authority to establish military commissions extends only to offenders or offenses triable by such a commission under the law of war; that such law includes the Third Geneva Convention; that Hamdan is entitled to that Convention's full protections until adjudged, under it, not to be a prisoner of war; and that, whether or not Hamdan is properly classified a prisoner of war, the commission convened to try him was established in violation of both the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §801 et seq., and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear. The D. C. Circuit reversed. Although it declined the Government's invitation to abstain from considering Hamdan's challenge, cf. Schlesinger v. Councilman, 420 U. S. 738, the appeals court ruled, on the merits, that Hamdan was not entitled to relief because the Geneva Conventions are not judicially enforceable. The court also concluded that Ex parte Quirin, 317 U. S. 1 , foreclosed any separation-of-powers objection to the military commission's jurisdiction, and that Hamdan's trial before the commission would violate neither the UCMJ nor Armed Forces regulations implementing the Geneva Conventions. Held: The judgment is reversed, and the case is remanded. [Hamdan v. Rumsfeld, Secretary of Defense, et al. via Law.Cornell.edu, 3/28/06-6/29/06]

RNC Quotes An Article That Misrepresented Judge Butler's Position

RNC:

ARTICLE 1, SECTION 1: All [Some] legislative Powers herein granted shall be vested in a Congress of the United States [while other legislative powers are vested to judges to change public policy], which shall consist of a Senate and House of Representatives.

Obama nominee Louis Butler believes Courts can make public policy, in addition to lawmakers.

  • Obama's Nominee To The U.S. District Court For Western Wisconsin, Louis Butler, Ruled That Judges "Could Make Use Of New Policy Studies ... To Change Public Policy, Instead Of Leaving That Decision To Elected Lawmakers." "Justice Butler repeatedly ignores precedent, such as in the 2005 case State v. Dubose regarding evidence being admitted in court, in which Butler believed--as the deciding vote--that courts could make use of new policy studies and social science publications to change public policy, instead of leaving that decision to elected lawmakers." (Mark Tapscott, "Opposition Coalescing To Obama's Federal District Court Nomination Of Louis Butler," The Washington Examiner, 12/14/09)

[GOP.com, accessed 4/28/10; emphasis, parentheses, and changes to text original]

In reality, the case discussed the reliability of eyewitness accounts and their application in a court of law.

State v. Dubose was a case where the instances in which a convicted criminal was identified were in question.  The then-suspect was put through three separate "showups" where he was identified by the victim.

As reported by the Wisconsin Law Journal:

"Tyrone L. Dubose was stopped for suspicion of armed robbery, after a canine unit tracked him from a robbery scene. The police officers placed him in the back of a squad car for a show-up procedure, and the victim identified him as one of the men who robbed him.

Ten to 15 minutes later, a second show-up occurred at the police station, where the victim again identified Dubose. A short time afterwards, the police showed the victim a mug shot of Dubose, and he identified him for a third time.

Dubose was charged, tried, and convicted of armed robbery, after the court denied his motion to suppress all identifications of him as suggestive. The court of appeals affirmed in an unpublished decision.

The Supreme Court accepted review, and reversed, in a decision by Justice N. Patrick Crooks. Justices Jon P. Wilcox, David T. Prosser, and Patience Drake Roggensack each wrote a dissent, and Justice Louis B. Butler, Jr., wrote a concurrence." [Wisconsin Law Journal, 7/20/05]

The court ruled that, based on updated scientific information that indicated the various ways in which eyewitness accounts and identifications could be invalidated, all witness identifications had to be without suggestion as to the criminality of the individual in question.

According to the Wisconsin Law Journal:

"The court found that...there have been extensive studies done showing that eyewitness identifications are often 'hopelessly unreliable,' and are 'the single greatest source of wrongful convictions in the United States, and responsible for more wrongful convictions than all other causes combined.'" [Wisconsin Law Journal, 7/20/05]

The court also wrote:

"We conclude that evidence obtained from an out-of-court showup is inherently suggestive and will not be admissible unless, based on the totality of the circumstances, the procedure was necessary. A showup will not be necessary, however, unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array." [Wisconsin Law Journal, 7/20/05]

The Court Did Not Overturn The Conviction, Finding The Identification Of The Suspect Ultimately Unnecessary Because Of Existing Evidence.  The Wisconsin Law Journal wrote:

"Applying the standard to the case at bar, the court found the showup was unnecessary, because the police had probable cause to arrest Dubose after the canine unit tracked him from the crime scene to where he was hiding in someone else's backyard. The court found it was also unduly suggestive, because Dubose was seated in a squad car. Finally, the court found the two later identifications unnecessary.

The court concluded by citing for support, a law review article by former U.S. Supreme Court Justice William Brennan, State Constitutions and the Protection of Individual Rights, 90 Har. L.Rev. 489 (1977), which urged states to adopt greater protection than federal law provides, and Brown v. Board of Education, 347 U.S. 483 (1954), which relied on sociological studies in overruling Plessy v. Ferguson, 163 U.S. 537 (1896)." [Wisconsin Law Journal, 7/20/05, emphasis added]

Court Determined That Future Witness Identifications Must Not Inherently Suggest Guilt On The Part Of The Suspect In Question.  As reported by the Wisconsin Law Journal:

"Justice Butler wrote a concurrence, defending the court's use of social science concerning eyewitness identifications in reaching its decision, concluding, 'Unless, and until, we improve eyewitness identification procedures so that the likelihood of irreparable misidentification is significantly reduced, we can no longer proceed as though all is good in the land of Oz.'" [Wisconsin Law Journal, 7/20/05]

Justice Butler: "Statistical Misidentification Rates Lead To The Conclusion That Eyewitness Identifications Are Inherently Reliable." From the complete transcript of Justice Butler's concurrence:

"Some of the very research relied upon by the dissent to illustrate the 'disagreements about the unreliability of showups' sets forth an overall accuracy rate of 69 percent for showups, compared to 51 percent for lineups.  Although not mentioned by the dissent, that research further indicates that when the target is in the display, a correct identification occurs only 47 percent of the time in showups, compared to 45 percent of the time in lineups.  Moreover, when the target is not in the display, a false identification of an innocent suspect occurs 23 percent of the time in showups, as opposed to 17 percent of the time in lineups. 

This is not 'disputed social science theory.'  This is data relied upon by the dissent. What we are dealing with is a serious failure rate with respect to eyewitness identifications.  Whether we are looking at the dissent's failure rate for showups of 53 percent, 31 percent, 23 percent, or 16 percent, that rate is simply unacceptable. The dissent cannot seriously argue that any of these statistical misidentification rates lead to the conclusion that eyewitness identifications are inherently reliable.  What we have here is a legal fiction that is simply not borne out by the facts." [State v. Dubose, opinion filed 7/14/05; original in-text citations deleted]

RNC Disingenuously Quotes Part Of A Fox News Article

RNC:

1ST AMENDMENT: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof [but opening prayers in legislative sessions are strictly prohibited]; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Obama nominee David Hamilton has ruled against public prayer.

  • Obama's Nominee To The 7th Circuit Court Of Appeals, David Hamilton. Ruled That The Indiana State Legislature Could Not Open Their Sessions With Prayers, With Ruling Later Dismissed. "Since that time, Hamilton has received attention for a handful of controversial rulings in the state, including a 2005 decision to prohibit the Indiana state Legislature from beginning its sessions with Christian prayers. The ruling was later dismissed by a panel of the 7th Circuit after an appeal, which found that the individuals named in the suit had no case because they were not harmed by the prayers." (Cristina Corbin, "Obama's First Judicial Nomination Re-Ignites Controversy Ahead Of Vote," Fox News, 11/06/09)

[GOP.com, accessed 4/28/10; emphasis, parentheses, and changes to text original]

In reality, Hamilton simply ruled that any denomination-specific prayer was not allowed.

Hamilton Ruled That Legislative Prayers Must Be Free Of Any "Denominational Appeal."  In his decision in Hinrichs v. Bosma, Judge David Hamilton wrote:

"The Founders recognized that we are a people of many strong and vigorous faiths. They acted to protect the liberty to practice those faiths. The Founders also knew centuries of history in which religious conflicts had caused war and oppression. They recognized that even the best intentions of people of faith can lead to division, exclusion, and worse. And they recognized that a majority who sees its faith as true and benign can be tempted in a democratic republic to try to use the power and prestige of government to advance that faith in ways that would actually divide and exclude.

All of us who have inherited the liberties of the religion clauses of the First Amendment continue to elaborate on their meaning and application one case at a time. In this case, for the reasons set forth above, plaintiffs are entitled to a permanent injunction against the Speaker in his official capacity barring him from permitting sectarian prayer as part of the official proceedings of the Indiana House of Representatives. If the Speaker chooses to continue any form of legislative prayer, he shall advise persons offering such a prayer (a) that it must be nonsectarian and must not be used to proselytize or advance any one faith or belief or to disparage any other faith or belief, and (b) that they should refrain from using Christ's name or title or any other denominational appeal." [Anthony Hinrichs, et al.  v. Brian Bosma, 11/30/05, emphasis added]

The Seventh Circuit did not dismiss Hamilton's ruling on sectarian prayer, as the GOP document implies. They dismissed the case itself for a lack of standing by the plaintiffs.

Seventh Circuit: Sectarian Prayers Have Been Rejected In All Levels Of The Court System.  From the United States Court of Appeals, Seventh Circuit, the Indiana House Speaker's position that sectarian prayer should be allowed "has been rejected by the Supreme Court, as well as many lower federal courts and state courts. Few cases have confronted squarely the constitutionality of sectarian legislative prayer, but, notably, those cases have concluded that [the Supreme Court case of] Marsh [v. Chambers] prohibits the practice. Most importantly, the Supreme Court itself has read Marsh as precluding sectarian prayer." The Seventh Circuit dismissed the case. [Seventh Circuit ruling on staying the district court's decision in Hinrich v. Bosma, 3/1/06]

Additionally, the Fox News article quoted by the RNC goes on to cite supporting statements from a conservative attorney whose cases Hamilton has ruled against.

Conservative Lawyer On Hamilton: "He's Left Of Center - Though Within The 30-Yard Lines."  Fox News reported that a Hamilton supporter, "conservative lawyer Geoffrey Slaughter," said:

"'I have a lot of respect for him as a judge...He's a tough questioner -- an inquisitor of all sides. And he's a gentleman of the highest character.'...'His judicial philosophy is to the left of mine, there's no doubt about that, but his decisions are not so far outside of the mainstream as to be disqualified,' said Slaughter, who appeared before Hamilton as a litigant in a 1995 case in which Slaughter was defending the state's abortion statutes. 'In my own view, frankly, I think he got it wrong,' Slaughter said of the 1995 case, in which Hamilton ruled to block the enforcement of a state informed consent law. 'He's left of center -- though within the 30-yard lines.'" [Fox News, 11/6/09]

RNC Bases Argument On An Editorial Comment

RNC:

2ND AMENDMENT: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Obama nominee Louis Butler has ruled to limit gun-carrying rights, including the carrying of concealed weapons for any purpose.

  • Obama's Nominee To The U.S. District Court For Western Wisconsin, Louis Butler, Went Against "Voter-Approved Constitutional Amendment" And Ruled To Limit "Gun-Carrying Rights." "In State v. Fisher, the Butler court majority somehow interpreted a voter-approved constitutional amendment clearly written to expand gun-carrying rights as instead limiting gun-carrying rights." (Editorial, "Another Radical Judge," The Washington Times, 10/12/09)

[GOP.com, accessed 4/28/10; emphasis, parentheses, and changes to text original]

The RNC Again misleads readers and presents them with faulty information and half-truths.

State v. Fisher Upheld Wisconsin Precedent Restricting Concealed Gun Carrying Rights Outside The Home And Workplace.  An annotation to the Wisconsin state constitution regarding the State v. Fisher decision reads:

"Under both Hamdan and Cole there are 2 places in which a citizen's desire to exercise the right to keep and bear arms for purposes of security is at its apex: in the citizen's home or in his or her privately-owned business. It logically and necessarily follows that the individual's interest in the right to bear arms for purposes of security will not, as a general matter, be particularly strong outside those two locations. An individual generally has no heightened interest in his or her right to bear arms for security while in a vehicle. State v. Fisher, 2006 WI 44, 290 Wis. 2d 121, 714 N.W.2d 495, 04-2989." [Legis.State.WI.us, accessed 5/3/10]

Previous Wisconsin Supreme Court decisions had already defined the scope of the Second Amendment in the Wisconsin Constitution.

State v. Cole, 2003: "The State Constitutional Right To Bear Arms Is Fundamental, But It Is Not Absolute" And "Does Not Affect The Reasonable Regulation Of Guns."

"The state constitutional right to bear arms is fundamental, but it is not absolute. This section does not affect the reasonable regulation of guns. The standard of review for challenges to statutes allegedly in violation of this section is whether the statute is a reasonable exercise of police power. State v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328, 01-0350." [Legis.State.WI.us, accessed 5/3/10]

State v. Hamdan, 2003: Individuals Have The Right To Carry A Concealed Weapon In Their Home Or Privately Owned Business.

"The concealed weapons statute is a restriction on the manner in which firearms are possessed and used. It is constitutional under Art. I, s. 25. Only if the public benefit in the exercise of the police power is substantially outweighed by an individual's need to conceal a weapon in the exercise of the right to bear arms will an otherwise valid restriction on that right be unconstitutional. The right to keep and bear arms for security, as a general matter, must permit a person to possess, carry, and sometimes conceal arms to maintain the security of a private residence or privately operated business, and to safely move and store weapons within those premises. State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01-0056." [Legis.State.WI.us, accessed 5/3/10]

"A challenge on constitutional grounds of a prosecution for carrying a concealed weapon requires affirmative answers to the following before the defendant may raise the constitutional defense: 1) under the circumstances, did the defendant's interest in concealing the weapon to facilitate exercise of his or her right to keep and bear arms substantially outweigh the state's interest in enforcing the concealed weapons statute? and 2) did the defendant conceal his or her weapon because concealment was the only reasonable means under the circumstances to exercise his or her right to bear arms? State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01-0056." [Legis.State.WI.us, accessed 5/3/10]

Butler's local newspaper endorsed him, saying he was "the surest bet for restoring dignity" to the seat.

MJS Endorsement: Butler "Exhibits A Deep Understanding Of The Law."  The Milwaukee Journal Sentinel endorsed Louis Butler for county judge with the following statement: "Butler's judicial temperament stands in sharp contrast to that of Crawford. Butler treats parties before him fairly and respectfully. The presiding judge at Milwaukee Municipal Court, he has resorted to creative sentences that make sense. For instance, he has had juveniles work off fines by doing neighborhood cleanups. And Butler, once an appellate lawyer, exhibits a deep understanding of the law. He serves on the faculty of the National Judicial College, where he lectures before other judges. Butler's exemplary service as a judge gives him the edge over two other challengers: Karine Moreno-Taxman, an assistant U.S. attorney, and Catherine La Fleur, a civil lawyer with her own practice and faculty member at the Marquette University Law School. Both Moreno-Taxman and La Fleur show much promise and we hope they run for other judgeships. But Butler, who got thumbs up in the Milwaukee Bar poll, is the surest bet for restoring dignity to Branch 9 of Circuit Court." [Milwaukee Journal Sentinel via LexisNexis, 2/12/02]

RNC Took Issue With A Ruling That Protected Constitutional Rights

RNC:

4TH AMENDMENT: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated [and this means that convicted sex offenders should not be monitored by law enforcement], and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Obama nominee David Hamilton ruled that convicted and released sex offenders' online activity should go unmonitored.

  • Obama's Nominee To The 7th Circuit Court Of Appeals, David Hamilton, Struck Down A Law That Required Sex Offenders To Submit To Internet Monitoring By Law Enforcement. "Last year, Hamilton struck down an Indiana law that required sex offenders to submit to routine and warrantless law enforcement monitoring of their Internet activity. Hamilton said it violated the U.S. Constitution. 'The prospect of searches 'at any time' without a search warrant, without probable cause, and without even reasonable suspicion of wrongdoing, would dramatically impair the privacy these plaintiffs have the right to enjoy in their own homes under the Fourth Amendment,' he wrote." (Margaret Talev and Marisa Taylor, "Obama Judicial Pick Will Test Pledge To End Confirmation Wars," McClatchy, 3/17/09)

[GOP.com, accessed 4/28/10; emphasis, parentheses, and changes to text original]

Unsurprisingly, the RNC left out contextual information around the sex offender ruling.  Hamilton made it clear that the law should protect citizens while not violating the guarantees of the Constitution.

Hamilton: This Law, "However Well-Intentioned It May Be, Violates The Fourth Amendment."  The Evansville Courier & Press reported of the sex offender decision: "In a 52-page ruling issued late today, federal judge Hamilton ruled that the new statute, as written, is unconstitutional. 'The new law forces an unconstitutional choice upon these plaintiffs. They must choose now between committing a new crime by refusing to consent and giving up their Fourth Amendment rights to privacy and security in their homes, their 'papers,' and their effects,' Hamilton wrote. 'The unprecedented new law, however well-intentioned it may be, violates the Fourth Amendment rights of the plaintiff class, who have completed their sentences and are no longer on probation, parole, or any other kind of court supervision.'" [Evansville Courier & Press, 6/24/08]

"The Amendment Cut Into The Heart Of A Person's Right To Privacy In His Home." According to the New York Times: "In 2008, Judge Hamilton struck down as unconstitutional an amendment to the state law requiring convicted sex offenders to provide the authorities with personal information, including any e-mail addresses or user names. The amendment would also have required the offenders to agree to allow their home computers to be searched at any time and to pay for a program to allow monitoring of their Internet use. The judge said the amendment cut into the heart of a person's right to privacy in his home. 'The ability of the individual to retreat into his home and therefore to be free from unreasonable intrusion by the government stands at the very core' of constitutional protections against unreasonable searches, he said." [New York Times, 3/17/09]

RNC "Research" Is Faulty

RNC:

10TH AMENDMENT: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. [But states are not allowed to force sex offenders to register with the government or submit to internet monitoring by law enforcement.]

Obama nominee Robert Chatigny ruled that a sex offender registry could not be displayed online.

  • In 2001, Obama's Nominee To The 2nd Circuit Court Of Appeals, Robert Chatigny, Overturned Connecticut's "Online Sex-Offender Registry" Claiming That It "Violated The Rights" Of Some Sex-Offenders, Ordered Police "To Remove It Permanently From The Internet." "A federal judge's ruling overturning part of the state's new law establishing an online sex-offender registry prompted lawmakers yesterday to offer amendments to the law. On Monday, Judge Robert Chatigny of Federal District Court ruled that the registry violated the rights of some 'nondangerous registrants' because they had no way to appeal. ... State officials shut down Connecticut's online sex-offender registry this morning, complying with an permanent order from a federal judge who had ruled that the state's method of placing people on it was unconstitutional....On Tuesday, Judge Robert N. Chatigny of Federal District Court ordered the state police, who administer the online database, to remove it permanently from the Internet by today." (Paul Zielbauer, "Hartford: Offender Law To Be Amended," The New York Times, 4/5/01)

[GOP.com, accessed 4/28/10; emphasis, parentheses, and changes to text original]

Like other RNC "research" items, the above bullet contains information not included in the source cited.

NYT: Registry Law Overturned Because Registrants "Had No Way To Appeal."  The portion of the article linked to by the RNC reads:

"HARTFORD: OFFENDER LAW TO BE AMENDED -- A federal judge's ruling overturning part of the state's new law establishing an online sex-offender registry prompted lawmakers yesterday to offer amendments to the law. On Monday, Judge Robert Chatigny of Federal District Court ruled that the registry violated the rights of some 'nondangerous registrants' because they had no way to appeal. The speaker of the House, Moira K. Lyons, a Democrat, proposed an amendment to allow registrants to petition a judge to be removed from the list. Attorney General Richard Blumenthal said he would appeal the ruling. Paul Zielbauer (NYT)" [New York Times, 4/5/01]

The remainder of the bullet comes from a different New York Times article -- same author, different title -- a few weeks later.

Chatigny's Decision Based On Lack Of Appeal Procedure For Registrants.  The New York Times reported: "State officials shut down Connecticut's online sex-offender registry this morning, complying with an permanent order from a federal judge who had ruled that the state's method of placing people on it was unconstitutional...On Tuesday, Judge Robert N. Chatigny of Federal District Court ordered the state police, who administer the online database, to remove it permanently from the Internet by today. Last month, he ruled that the state's sex offender registry law violated due process rights by not allowing sex offenders the chance to prove that they were not dangerous and therefore did not belong on the registry." [New York Times, 5/19/01, emphasis added]

After reading the full article and having access to additional, clarifying information, it is clear why the RNC deceitfully left out the second article's link.

Chatigny's Decision Did Not Remove Information From Police Database.  According to the New York Times:

"The Connecticut Civil Liberties Union brought the lawsuit that led Judge Chatigny to issue his order removing the online registry. The group had sued the state on behalf of a sex offender who claimed he did not belong on the registry because he was no longer a threat to the public.

'Plaintiff has a liberty interest in not being falsely labeled a dangerous sex offender -- a label inherent in his inclusion in the undifferentiated registry,' the judge wrote in today's order. 'Defendants have deprived him of that interest without providing him notice and an opportunity to be heard on the question whether he is dangerous.' Mr. Blumenthal said the registry was vital to the safety of the public, particularly Connecticut's children, and he said he had filed an appeal today with the Second Circuit Court of Appeals in New York. A ruling from that court could come as early as Monday, a spokeswoman for Mr. Blumenthal said this afternoon.

The judge's decision affects only the public's access to the registry online. The police still have access to the database, and most sex offenders are still required to register." [New York Times, 5/19/01, emphasis added]

RNC Misrepresents Liu Statement On Education & The 14th Amendment

RNC:

14TH AMENDMENT: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States [privileges like free health care, free child care, and free job training at taxpayer expense]; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Obama nominee Goodwin Liu believes that the 14th Amendment should be interpreted to require the government to provide more rights to citizens.

  • Liu Believes The Fourteenth Amendment Should Be Interpreted More Broadly To Give Citizens Rights To "Expanded Health Insurance, Child Care, Transportation Subsidies, Job Training, And A Robust Earned Income Tax Credit." "On my account of the Constitution's citizenship guarantee, federal responsibility logically extends to areas beyond education. Importantly, however, the duty of government cannot be reduced to simply providing the basic necessities of life..... Beyond a minimal safety net, the legislative agenda of equal citizenship should extend to systems of support and opportunity that, like education, provide a foundation for political and economic autonomy and participation. The main pillars of the agenda would include basic employment supports such as expanded health insurance, child care, transportation subsidies, job training, and a robust earned income tax credit." (Goodwin Liu, "Education, Equality, and National Citizenship", 116 Yale Law Journal)

[GOP.com, accessed 4/28/10; emphasis, parentheses, and changes to text original]

Again, the RNC takes a partial quote from Professor Liu and therefore destroys the full meaning.

The document from which the above quote is taken argues that, because the Constitution guarantees citizenship to those who are born here, the United States government has a duty to ensure that all American children are educated, healthy, and in all ways prepared to be pro-active citizens upon adulthood.  Liu is clearly making the argument that by providing adequate education and other basic social institutions to citizen children, adult American citizens will be better off.

Liu: "A Decent Education Is Essential To Effective Citizenship."  Just prior to the quote the RNC uses, Professor Liu wrote:

"While a decent education is essential to effective citizenship, '[e]mpirical examination might well buttress an assumption that the ill-fed, ill-clothed, and ill-housed are among the most ineffective participants in the political process' and in other domains that confer social regard." [Liu, "Education, Equality, and National Citizenship", Yale Law Journal, 2006]

Liu: Welfare Does Not Encourage Active Citizen Participation.  Professor Liu indicated that welfare benefits do not contribute toward the creation of active citizen participants:

"Welfare provision in the form of cash assistance, food stamps, and public housing may prevent destitution (a worthy objective in its own right), but such provision, with its accompanying stigma of dependence and bureaucratic control, does not assure its beneficiaries the dignity of full membership in society." [Liu, "Education, Equality, and National Citizenship", Yale Law Journal, 2006]

Liu: Fourteenth Amendment Includes Duty Of Government To Take "Prudent, Good-Faith" Actions On Behalf Of Citizens.  In his piece on the duty of the government to educate citizens, Professor Liu continued:

"Section 5's invitation to Congress to enact 'appropriate' enforcement legislation likewise calls for prudent, good-faith action to make real the broad guarantees of the Fourteenth Amendment. The duty is not neatly bounded, and it will cost money. But in these respects, it is no different from other constitutional duties requiring government affirmatively to act, for example, to protect private property, contractual freedom, national security, or traditional 'negative' rights such as freedom of speech and due process of law. The discharge of such duties involves an essential if inexplicit balance. On one hand, enforcement of constitutional norms, like law enforcement generally, requires discretion as to what is reasonable, feasible, and likely to be effective. On the other hand, as Professor Black observed, 'the decently eligible range of means and measures is one thing when you are under no duty at all to act, and quite another when you are under a serious duty to act effectively.' In sum, substantial or indefinite cost is a feature common to a broad range of constitutional duties. Here, as elsewhere, such duties call on the conscientious legislator to combine seriousness of purpose with considerations of prudence, efficacy, and good faith." [Liu, "Education, Equality, and National Citizenship", Yale Law Journal, 2006]

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