November 7, 2014
Obamacare SCOTUS - Part II
JK scooped the latest Kim Strassel piece, but I can still work his side of the street on the SCOTUS beat:
In the wake of the historic reversal of the 2008 election Tuesday the wish lists for the new Congress are already being written. This one is typical:
5 Actions Republicans should take in the new Congress:
But news of a surprising move by the US Supreme Court today is enough to convince me that no time or political capital should be expended on Obamacare, at least not until the Supremes rule later this session:
One thing we can be sure of is this: If the Court throws out the subsidies on the federal exchange, ObamaCare will have to have a massive fix, and Obama will be in no position to veto what the Republican Congress puts in front of him. Surely it will include a lot more changes than simply the fix to this issue, and Obama won't like that, but ObamaCare with subsidies only for people in 16 states cannot survive.
H/T: Brer jk for finding the "historic reversal" linked article.
July 22, 2014
The Good Guys Win Halbig
Judge Griffith, writing for the court, concluded, "the ACA unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges 'established by the State.'" In other words, the court reaffirmed the principle that the law is what Congress enacts -- the text of the statute itself -- and not the unexpressed intentions or hopes of legislators or a bill's proponents. -- Jonathan Adler, Volokh Conspiracy
July 1, 2014
Turning the Clock Back to . . . 2012!
Ramesh Ponnuru points out, contrary to Sturm and Drang, that yesterday's ruling in Burwell v. Hobby Lobby Stores, Inc. does not change anything beyond how it was during President Obama's first term.
Here's an easy way to cut through the arguments and counterarguments surrounding today's Hobby Lobby ruling from the U.S. Supreme Court: Think back to 2012.
Good point. Now does that mean The Civil Wars will get back together?
June 30, 2014
Lacking Access to Guitar Strings
My boss told me I could "buy my own damn guitar strings." Really, people, how long are we going to let them keep us down like this?
Hat-tip: Daily Caller
June 24, 2014
Quote of the Day
Even better, Justice Scalia's [majority opinion in Utility Air Regulatory Group v. EPA] explicitly defends the structure of the Constitution. Blessing the EPA's tailoring rule would be "a severe blow to the Constitution's separation of powers" where Congress enacts laws and the President enforces them, he writes. This remedial civics lesson ought to be unnecessary but with the Obama crowd it's essential. "We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery" that ignores the will of Congress, Justice Scalia writes. -- WSJ Ed Page
April 23, 2014
A Smart Piece on McCutcheon
The infamous Facebook friends do have value in their reminding me that other views to mine are extant.
Many of my friends posted a meme from smaterterest-man-in-the-world, Jon Stewart, railing against the eeevil decision in McCutcheon v. FEC All our elections will be bought now. I posted, where it might be heard, that I remain far more worried about incumbent power than the influence of money. And, perhaps, a few sarcastic references to Presidents Perot, Forbes and Romney who bought their way into office.
But, for ThreeSourcers, this piece in the American.com by Michael M. Rosen will resonate. The difference, sez Rosen, is that the Left is protecting a collective, pragmatic right to use speech to affect policy. The right, conversely, protects an individual right of speech qua speech.
Thus, says Justice Breyer, the problem with political corruption is it "derails the essential speech-to-government-action tie" and "cuts the link between political thought and political action."
Thing the whole got read to.
January 13, 2014
Raich Looms Large
Well, deary me. Senator Rubio is a Chargers fan. Governor Christie is a serial trafficant. At this rate, it looks like I'll have to vote for Sec, Clinton! Oh, well, there's always that HOSS from the Lone Star State, Senator Ted Cruz. Oh, wait...
Here is Senator Ted Cruz, an avowed constitutionalist and federalist, demanding that Obama impose marijuana prohibition on states that have opted out of it, based on an absurdly broad reading of the power to regulate interstate commerce. -- Reason Magazine
I am a general supporter of Sen. Cruz, though -- like existentialist bounty hunter Jubal Early -- I do not think it is his time yet. The question is valid and one we have wrestled with a bit on these pages: the difference between an imperial presidency and prosecutorial discretion. I can imagine little worse than the heavy hand of the DoJ's stopping the Washington and Colorado experiment in its tracks. But I will admit the existence of a fine line.
Cruz is correct that it fits a pattern of executive overreach. Dave Kopel in the, did I mention awesome, "The Conspirancy Against ObamaCare" bifurcates between one's ideal reading of the Constitution and the Constitution as it exists with the current Supreme Court and precedent. Under the former, he admits the New Deal agenda is Unconstitutional in his view, but he silences would-be provocateurs with the latter interpretation; under the current reading, Social Security is clearly Constitutional.
By that sagacious standard, Wickard and Raich hold sway and AG Holder's tanks should be rolling down Colfax Avenue in Denver raiding every shop with hints of Rasta colors or iconography. Yet, Senator, I am quite pleased they are not. And I fear this is a distinct ploy to position himself against Sen. Rand Paul (HOSS - KY) for the "law and order" vote against that hippie named after that Russian Novelist.
December 22, 2013
What a Long, Strange Trip It's Been...
Reliving -- and relitigating -- the PPACAo2010 could be tedious and disappointing. Spoiler Alert: it passes and Chief Justice Roberts applies "a saving construction" to uphold its constitutionality under the taxing power.
Despite the disappointing ending (you might wait for the Disney movie to rewrite it), the intellectual voyage of the constitutional challenges, seen through the keen minds of Volkh Conspiracy (VC) bloggers is a fascinating read. The conspirators have assembled it into a very good book: A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case by Randy Barnett, Jonathan Adler, Jonathan H.; David Bernstein, Orin Kerr, David Kopel, and Ilya Somin.
It is targeted at a "guy like me." I am very interested in Constitutional law, theory, and philosophy but have no special training or deep knowledge. I suspect most ThreeSourcers, be they guys or not, fall into or near that camp. The book is detailed and substantive, you don't feel you're getting a watered down version. But any bright and interested person can get it (for a couple of weekend afternoons, I could click the Kindle on and pretend to be much smarter than I really am).
In addition to theory, you also come away with some inside information about how these challenges progress, a rough feel for timelines, and insiders' perspectives on what is important and what is not. This goes beyond the civics-book explanation of judicial review as Robert Caro's Master of the Senate goes beyond the stock description of Article I.
Supreme Court advocates know what academics sometimes seem to forget: you simply cannot "mandate" a justice go where he or she does not want to go with a clever argument. All you can do is present your strongest case in the most compelling way. Mike, Greg, and Paul did that during oral argument in which the pressure could not have been more intense. I was supremely grateful it was them and not me who had to bear up under the strain of oral argument. Along with Karen Harned, director of the NFIB Small Business Legal Center, win or lose, I believe we fielded the "A Team" on behalf of the majority of the American people who objected to the Affordable Care Act and believed it to be unconstitutional.
Perhaps the best part of the book -- from a blog lover's perspective -- is VC's contributions to the debate. As bloggers once busted Dan Rather and reached above the monopoly of three-network journalism, bloggers [asterisk] reached above the Ivy League Professoriate, all of whom thought that only right wing goofballs would see any Constitutional problems with Obamacare.
Twenty years ago, the virtual consensus among law professors at elite schools very well may have been the end of serious debate in the academic world. The venues for law professors getting their ideas out on controversial issues of the day were few and dominated by law professors at the top schools: the mainstream media, either through op-eds or interviews with reporters, both heavily skewed toward famous professors at places like Harvard and Yale; publications at the top law reviews, which are not reviewed blindly and therefore heavily favor the already renowned; and presentations at elite law schools, to which the overwhelming majority of invitees are professors at peer institutions.
[Asterisk] These folks are not bloggers in the "pajamas" sense. These are law professors who have argued before the Supreme Court (Barnett was the attorney for Angel Raich) and file amicus briefs for big league think tanks. But there is a telling section in David Bernstien's summation.
In 2011, a law professor at Yale, defending Obamacare from constitutional challenge, claimed that only one "constitutional scholar that I know at a top 20 law school" thinks that Obamacare is "constitutionally problematic." A year later, just before oral argument in NFIB, the same professor stated that only one law professor at a top ten law school agreed that the Obamacare was unconstitutional.
So these poor professors, laboring away at top 14-17 law schools, yet believing in Constitutional limits to government power, were able to present, refine, share, and disseminate their ideas at blog speed. And many of these ideas start showing up in SCOTUS oral arguments and opinions.
Perhaps one contribution of our brief, and the case, to constitutional law is renewed attention to the full opinion in McCulloch v. Maryland rather than the expurgated versions in many law school textbooks. In Randy Barnett's Constitutional Law text, students can see John Marshall working his way through doctrine of principals and incidents, as he elucidates that Necessary and Proper Clause is for inferior, less "worthy" powers-- and not for a "great, substantive and independent power." Roberts's application of this long-standing rule took some of the pro-mandate professoriate by surprise, and the professors who were not surprised were dismayed.
The power of ideas and the power of new media take the challenge from then-Speaker Pelosi's "are you serious?" through a sweeping midterm election, to a nail-biting decision that, while it didn't give ThreeSourcers everything they wanted . . .
While our failure to prevent the egregious Affordable Care Act from taking effect remains a bitter pill, this should not be allowed to detract from what we accomplished legally. We prevailed in preserving and even strengthening the enumerated powers scheme of Article I, Section 8 as a protection of individual liberty. From a constitutional perspective, this is what we were fighting so hard to achieve.
But, but, but taxing power!
For those who may still not see the difference between the legal theories we defeated and that which was adopted by Chief Justice John Roberts, imagine that all the federal drug laws were enforced by the nonpunitive tax he allowed rather than as Commerce Clause regulations, which is how the prohibitions of the Controlled Substances Act are now justified. Under Chief Justice Roberts's tax power theory, the government would have to open the jails and release tens of thousands of prisoners. And any of you reading this could legally smoke marijuana under federal law, provided you were willing to pay a small noncoercive federal tax on this activity. Such is the difference between the Commerce Clause power Congress claimed justified the Affordable Care Act, and the new limited tax power the chief justice allowed it to exercise. That is a big difference.
Losing 5-4 on the mandate -- even with the de-fanging -- has also caused us to lose sight of the 7-2 win against coerced Medicaid expansion. These and the fear, uncertainty and doubt placed in thinking citizens' minds make this exercise heroic and successful.
The Colorado Avalanche lost a hockey game in LA yesterday. The Kings were up 2-0 late in the second period. The Kings are a great team; they are tough at home; they are a defensive powerhouse who rarely give up two goals in a game. They were the Harvard professors of hockey yesterday afternoon. The Avs came back, tied (gives them one point in the standings) and took the game through overtime to a shootout. Sadly for me they lost, but the announcers at the end all agreed this was a win. I agree.
Five stars. Duh.
June 19, 2013
Don't trust anyone under 24
In fact, particularly if you're 15 or younger, you can commit capital murder and be on the streets at 43. That was the fate of Indiana's Paula Cooper:
Cooper was 15 years old when she used a butcher's knife to cut Ruth Pelke 33 times during a robbery in Gary that ended in Pelke's death. Her three companions -- one only 14 --received lighter sentences, but Cooper confessed to the killing and was sentenced to death by a judge who opposed capital punishment, said former prosecutor Jack Crawford, who sought the death penalty for Cooper. Crawford is now a defense lawyer in Indianapolis and no longer supports capital punishment.
Enter European "human rights" activists, the Pope and the Supreme Court, and this confessed murderer's fate takes a U-turn.
Two years after Cooper was sentenced to die, the U.S. Supreme Court ruled in an unrelated case that the execution of young people who were under 16 at the time they committed an offense was cruel and unusual punishment and was thus unconstitutional. Indiana legislators then passed a state law raising the minimum age limit for execution from 10 years to 16, and in 1988, the state's high court set Cooper's death sentence aside and ordered her to serve 60 years in prison.
The Supreme Court seems to be sure, as does Indiana's former attorney general:
In 2005, the U.S. Supreme Court ruled it unconstitutional to execute anyone who is younger than 18 years when they commit an offense.
And, it now seems, essentially get away with it.
March 27, 2013
SCOTUS and Same Sex Marriage
Again, I think I will leave my Facebook friends to argue the important points of whether a red equals sign in a heart shows more compassion than a beveled-embossed red equals sign as a profile pic.
I will offer my scenario which I think to be correct and constitutional. And perhaps, likely.
1) I can DIG it!
Alternately, the Supreme Court might follow the lead of Justice Anthony Kennedy. During Tuesday's oral arguments, Kennedy repeatedly suggested the Supreme Court should never have accepted the Prop. 8 case in the first place. "I just wonder," Kennedy said at one point, "if the case was properly granted." Later he raised the issue yet again, telling the lawyer who was arguing in defense of Prop. 8, "you might address why you think we should take and decide this case."
2) Oh Canada -- find for Windsor!
jk gone soft on liberty? No way. In Windsor v United States, I hope for a decisive finding against DOMA. And never, ever, miss a chance to tell the red-equals-in-a-heart brigade that President Clinton signed that and his wife was fully behind it through my first couple of cups of coffee today.
By staying narrow on Prop 8 and going large on DOMA, the court could consistently underscore Federalism and allow the "national conversation" to continue through electoral methods. This should ruin Republicans chances of winning an election to dog catcher for many years, but it is still the right thing to do.
I'm very interested to hear from other ThreeSourcers: Red equals sign in-a-heart -- or on its own?
March 26, 2013
A right - to discriminate?
I need a little help here. Someone tell me where I'm going wrong. (I know, I know, "When you opened your mouth.")
As SCOTUS hears oral argument on a gay marriage case, Erick Erickson posts a piece declaring ‘Gay Marriage’ and Religious Freedom Are Not Compatible. Me being me, I want to prove him wrong.
Here are my premises:
1) Every individual is [morally]* entitled to birthright liberty and ownership of his life, including all of his preferences and actions that do not involve initiation of force against others.
2) In every question, refer back to premise number 1.
Erickson's ultimate conclusion is that, "Libertarians will have to decide which they value more - the ability of a single digit percentage of Americans to get married or the first amendment. The two are not compatible." Why?
Once the world decides that real marriage is something other than natural or Godly, those who would point it out must be silenced and, if not, punished. The state must be used to do this. Consequently, the libertarian pipe dream of getting government out of marriage can never ever be possible.
Here he diverges into the other half of a package deal: That everyone be forced to accept a belief that contradicts his own. This is a key tenet of collectivism rather than liberalism. My counsel would be to ignore the latter and instead wage legal and ideological war on the former.
I made a brief attempt to argue this point with Mike Rosen today. There wasn't enough time for him to say more than, "There is no individual right to gay marriage, any more than there is a right to marriage to animals or to more than one other person." And in rebuttal to my suggestion that in accordance with Loving v. Virginia a STATE may not discriminate against individuals (due to race or, by extension, gender) but an individual SHOULD be able to discriminate against ANY individual for ANY reason, he simply said, "That's a weak argument."
February 18, 2013
Very Interesting Paper
Insty links to an interesting paper: The Constitution as if Consent Mattered by Tom W. Bell.
At 22 pages, it is a hair longer than yesterday's Review Corner, even without the double spacing I am used to, but it has all kinds of footnotes and citations. Work, schmerk!
Bell brings up libertarians' penchant for the Nolan Chart, replacing the left-right scalar function with the two dimensions of economic liberty and social liberty. Bell suggests that the residents of the top point in Nolanland also reject the originalist - living constitution scalar variable for a two dimensional plane of responsiveness and textual fidelity.
Why are we discarding our allegiance to the founders, jk? Did you get your hands on Angel Raich's medicine?
Bell introduces respect for modernization on the basis of "consent of the governed." We ask our young friends to allow coercive fealty to a document written and ratified over two centuries ago. That does not bother ThreeSourcers who generally approve of its timeless wisdom as an originalist interprets, but Bell suggests that key liberties could still enjoy protection under a constitutional regime that allows more modern interpretations of what constitutes a militia, and the difference between privileges and immunities with rights and liberty.
Now, I tend to consider originalism as a way-out-there newfangled version of textualism, but Bell provides some great points to ponder. And football season is still six months away.
September 10, 2012
Quote of the Day
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. -- Justice Robert Jackson in West Virginia State Board of Education v. Barnette (1943)Quote in an excellent WSJ Journal guest editorial by Mark Joseph Stern who gets honorable mention:
No such exception presents itself today. Tobacco companies may be despicable, their product malignant. But outrage over their existence or their conduct does not justify infringement on their rights. The district courts were right to strike down the new tobacco labels, and the Supreme Court should follow suit. The public furor that may follow is only further proof of why the First Amendment is so valuable in these controversies.
August 14, 2012
Robert Natelson on Romney, the Supreme Court, and the Constitutional Revival
Second, listen to Ari Armstrong's interview with him:
Third, and I should probably let it lay, but explain to me how Armstrong's associate and last night's Liberty On The Rocks -- Flatirons speaker is still "undecided."
UPDATE: Armstrong is "decided."
Prior to Mitt Romneys selection of Paul Ryan as his running mate, I was going to vote "for" Romney in the sense of voting against Obama. In light of this development, however, I not only plan to vote for Romney-Ryan; I also emphatically endorse their ticket, and I urge readers of TOS, Objectivists, and fans of Ayn Rand to do the same.
August 12, 2012
First, the elephant in the room. Scalia and Garner's Reading Law: The Interpretation of Legal Texts was $40 -- on Kindle! "Does the Eighth Amendment no longer hold, Nino?" If anybody wants I have an old, first-gen Kindle I could put it on and lend. Ow!
I cannot pass on any book by a sitting Supreme Court Justice at any price, and I cannot complain about this one; it was informative and entertaining. Like David Deutsch, Nassim Taleb, or Thomas Pynchon, it is great to get an invitation into a mind of that caliber.
Scalia's acerbic wit is on display throughout.
In a curious and lengthy passage, Judge Richard A. Posner has likened a judge who follows the unintelligibility canon to a platoon commander who, on receiving a garbled message, does nothing and presumably allows his troops to be slaughtered.
One more word than "Jesus wept." But Ow!
More importantly, he promotes his judicial philosophy of originalism versus both the purposivist, living Constitution crowd and strict textualists. The book is presented as 70 common law cannons which are frequently used in judging cases. Each gets a description and most get an example case or two and the authors' opinion of whether it was applied wisely in the particular instance.
One could hardly imagine a more sweeping negation of the possibility of laws that accurately represent the judgment of the people, laws whose content is predictable, and judges who subjugate their personal views to the rule of law. "A government of men, not of laws" summarizes this cynical view, which invites judges to do whatever they like, since they cannot do otherwise--the doctrine of predestination applied to judicial decisions.
It's jurisprudential philosophy -- but in a very technical wrapper. Actual cases, many outside of or predating the United States, and difficult cases provide an appreciation for complexity that your typical pundit-class commenter may not completely grasp.
Contrary to the praise heaped on the Shakespearean character Portia for holding that Shylock could take his pound of flesh but not spill a drop of blood ("O upright judge! . . . O learned judge!"), it was a terrible opinion. She should have invoked the principle that contracts to maim are void as contrary to public policy. Her supposedly brilliant rationale ignored the well-acknowledged predicate-act canon.
Most importantly, I enjoy the authors' respect for Constitutional principles, most notably separation of powers and the job of legislative bodies in drafting the text. Scalia may be the béte noir of the left, but he is extremely respectful of other Justices, judges, and circuits. He has no compunction in attacking their opinions, but reading this book (or Bryers's or Stevens's or O'Connor's) one is struck by a higher level of respect and congeniality than we artisans ascribe to the Court.
A great read and a deeper look than I was expecting. Four stars.
July 29, 2012
The Necessary and Proper Clause has been widely misunderstood. Some have called it the "elastic clause," and suggested that it granted Congress vast authority that Congress otherwise would not have. But leading Federalists, including Madison and Hamilton, asserted the contrary. Even John Marshall, the Ratifier who as Chief Justice was accused of taking an overly-broad view of the Necessary and Proper Clause, specifically affirmed that it was a mere statement of what the rule would have been if the Clause had been simply omitted.Robert G. Natelson filed amicus curiae briefs on ObamaCare with Dr. Dave Kopel, who spoke on NFIB v Sibelius at Liberty on the Rocks. (If you have not watched the videos Ari Armstrong took, you are missing something.)
He is also the author of The Original Constitution, an all night house party for Constitutional Originalists. Natelson goes through the Constitution, clause by clause, and clarifies it based on the law books of the time in addition to secondary papers like Madison's notes, ratification documents and The Federalist Papers.
It was an entertaining read (you know who you are, it might not displace Harry Potter), and I look forward to hanging on to it for reference. It is a superb way to go "one step deeper" than just the original text. Natelson is a lover of liberty and brilliant legal scholar -- he is not imputing his beliefs on the text but rather expanding understanding based on originalist knowledge.
The Founders would have seen permanent federal land ownership for unenumerated purposes as subversive of the constitutional scheme. This was partly because the government was to enjoy only enumerated powers and partly because extensive federal land ownership would render many people dependent on the government.
July 13, 2012
Dave Kopel on NFIB v Sebelius (Bumped)
I have delayed discussion of Monday's Liberty on the Rocks because Ari Armstrong was recording it. And I was waiting for him to post. Here is the first of what may be ten parts:
Don't let "ten" scare you. It was a short and very interesting talk.
Hope you will all watch Dr. Kopel, but I'm going to engage in an appeal to authority and suggest his views very similar to what I have been saying. Imagine if I were smart and well spoken and knew what I was talking about, and wore a tie -- I would be just like Dr. Kopel!
On the serious side, he does elaborate several liberty-protecting parts of the decision: starting as you can tell with the Commerce Clause, but proceeding to some important limitations on Necessary and Proper.
The raucous bar noise (and this is a musician talking) is a little distracting -- as it was live. But I think Brother Bryan would point out that these are "tavern" meetings. Casual comfort is a great part of their charm.
Hat-tip: Terri, who sat across the table from the lovely bride and I and saw this posted before I did.
UPDATE: The second segment (on N & P) is up.
UPDATE 1.5: Link? No embed? Huh? What?
UPDATE II: Part III (Medicaid & State Spending)
UPDATE III: (ObamaCare's "Seinfeld Tax on Nothing")
July 3, 2012
For the Record
I am not accepting the word of CBS News's two unnamed sources that the Chief Justice of the United States put his finger to the wind before deciding NFIB v Sibelius. My defense stands until I see something more substantive.
It's quite a serious charge. The strum and drang on the right takes the story at face value, and I am in no way sure that the home of Rathergate has earned the benefit of the doubt better than Justice Roberts.
June 29, 2012
Dave Kopel and Ilya Somin
An interesting take on the Necessary & Proper Clause. From Dave Kopel
Interesting. Kopel is the scheduled speaker for the next Liberty on the Rocks -- Flatirons (July 9)
Can Somebody Please 'Splain Me?
The Refugee. having been successfully talked off the roof following the Roberts decision, ruminated over a number of the implications while trying to answer how the Chief UnJustice could have arrived at such a conclusion. When interpreting the the Constitution, there is always the challenge of divining original intent based on the nuances of language. One can look to other writings of the Founders, but even then it is subject to language interpretation.
Not so in contemporary cases. In contemporary cases, not only are the people who wrote the laws alive, many are still in office. Want to know what they meant? Just ask 'em. Of course, the Supreme Court does not call witnesses, though that would be interesting. Nevertheless, the Solicitor General is the voice of the government. Presumably, he asked the president and congressional leaders what they meant. In all case, they said the ACA mandate was not meant to be a tax. (Queue montage of POTUS tax denials.) How, then, could Roberts have possibily concluded that it really is a tax? A judge is supposed to evaluate what is presented to him, not base decisions on some thought experiment. This may go down as the worst SCOTUS decision since Dred Scott.
In related ruminations, The Refugee cannot go along with those who say that Roberts cleverly undercut the Commerce Clause precidents. This line of reasoning is like someone dropping their sandwich in the river and thinking it a clever way to wash off the mold.
If this is clever rebuke of Wickard, does anyone think it was overturned? Nope.
Quote of the Day
For those of us who oppose the Affordable Care Act as a policy matter, this is a bad day. For those of us in this fight to preserve the limits of constitutional government, this is not a bad day. -- Randy BarnettThe quote is pulled out of an Ezra Klein piece of all things. The juicebox mafiosi has the unfortunate task of explaining to the left that Chief Roberts is an evil genius and that they have all been had.
I'd give it more credence if he did not make two errors in the lead paragraph. It's Charles EvanS Hughes -- and I don't know that being called a politician would be such an affront to the 1916 Republican Presidential Nominee.
Hat-tip: Paul Rahe who brings an interesting point I heard in passing on Kudlow last night.
There, let me add, is one other possibility. The version of Obamacare that became law originated in the Senate. The Constitution stipulates that all tax bills must originate in the House. Were I Randy Barnett, I would file another suit arguing that the mandate is unconstitutional because the Senate cannot originate tax bills.
The Non-Ideological Roberts Court
In 'Don't Squat With Yer Spurs On' Texas Bix Bender wrote, "When your work speaks for itself, don't interrupt." But I'm gonna interrupt.
This morning I wrote, "So my conclusion is that Roberts just didn't want to be villified as an "unelected emperor" who "took away America's free [unearned] health care."
This afternoon Charles Krauthammer wrote,
Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with ObamaCare. Hence his straining in his ObamaCare ruling to avoid a similar result — a 5-4 decision split along ideological lines that might be perceived as partisan and political.
I left the detailed explanation to the professional.
June 28, 2012
Another Sunny View
Our Marbury v Madison? Daniel Epps finds parallels. In Health Care Ruling, Roberts Steals a Move From John Marshall's Playbook
So the president was ready for the Court to break right or break left. But instead, Chief Justice Roberts juked. He agreed with the challengers that the mandate couldn't be justified under the Commerce Clause or even the Necessary and Proper Clause -- thereby reinforcing the narrative that the Democratic Congress overreached in passing the bill. His opinion -- though not the result -- may provide much help in the future to judicial conservatives, as it suggests that, with the dissent, five justices are in favor of a more aggressive role for the Court in policing the bounds of the Commerce Clause (and the Spending Clause, which was at issue in the Medicaid legislation). And while Roberts ultimately voted to uphold the Act, he did so on a ground that, for Obama, plays terribly: that it's a tax.
UPDATE: Taranto: We Blame George W. Bush:
His decision was a disappointment to those, including this columnist, who are anxious to be rid of this monstrous law. That will require legislative action. But on the most important question of constitutional doctrine, Roberts handed a big defeat to the legal left.
UPDATE II: Yet William Jacobson @ Legal Insurrection is not feelin' the love!
To paraphrase Joe Biden, I have just four words for you:
June 25, 2012
Half Empty? Half Full?
Or "That other Supreme Court decision." I just enjoyed the dueling headlines:
Liz Goodwin, Yahoo: Supreme Court upholds key part of Arizona immigration law
Mark Sherman, Yahoo/AP: High court rejects part of Arizona immigration law
May 31, 2012
One of my top five Supreme Court cases has to be Schechter Poultry Corp v United States. And I would certainly have to thank Amity Shlaes for elucidation.
In her history of the Great Depression, The Forgotten Man, Amity Shlaes begins the process of rescuing the Schechter brothers from obscurity by spending an entire chapter on their challenge to the New Deal. In this article I build on Shlaes's account to provide some broader context for their story and draw some implications for Jewish Americans.
Us goys can appreciate the story as well. It's an important rebuke to the New Deal, which is why Ms. Shlaes gives it a chapter. But in the shadow of contraception contretemps, it is a good precedent for religious liberty as well:
The problem for the Schechters was that Section 2, Article 7 of the NRA's Code of Fair Competition for the Live Poultry Industry of the Metropolitan Area in and about the City of New York, which sounds like something out of Atlas Shrugged, mandated "straight killing," which meant that customers could not select specific birds out of a coop. Instead they had to select a coop or half coop entirely. The code thus directly contradicted kashrut. This put the Schechters in an untenable position: Abide by the New Deal or abide by kashrut. Do the former and lose your customers. Do the latter and get arrested.
Like other liberty lovers, I love a good whine about Kelo and Raich and McConnell v FEC, but we have to study the wins as well as the losses. Schechter was a great win.
April 9, 2012
"The president is dangerously close to totalitarianism,"
So says libertarian ex-jurist Andrew Napolitano. And the IBD Editorial Page is inclined to agree.
The whole thrust has been the acquisition of power by the federal government centered on the White House. That is the theme of ObamaCare, which is not about health care but about making people as dependent on government benevolence, if we can use that word, as possible.
I recall my apolitical Texas cousin being bewildered by my warnings of Barack Obama's principles and ambitions prior to the 2008 election. "You're crazy" she said, when I told her he intended to become Robin Hood in the White House, and worse. Last month we had occasion to meet again. She now seems to have accepted that I wasn't just whistling Dixie. Neither is Judge Napolitano.
March 28, 2012
Justice Scalia was roughed up a little on these very pages, for what I suspect was a little reductio ad absurdum in oral arguments. But after Raich, I'm not gonna defend "Nino." Nope, he can swing in the breeze.
But I do love his rapier wit. James Taranto brings us a good example:
Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages? And do you really expect the Court to do that? Or do you expect us to--to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?
Quote of the Day
You do not often see the word "massacre" in headlines about oral arguments before the Supremes. -- Jim Geraghty [subscribe]Color me cautiously optimistic. I don't think this game is over yet, but I am glad ObamaCare® had a bad day.
March 27, 2012
This is why lawyers are not economists...
While browsing the front page of Yahoo news, I came across an article titled "Justices signal deep trouble for health care law". Upon reading it I came across this gem of economic ignorance from Justice Ruth Bader Ginsburg:
"The people who don't participate in this market are making it more expensive for those who do."
Last time I checked, when dealing with the demand side of the economy, it is an increase in the demand for a particular good or service that increases its price, not the other way around.
In an effort to keep this post "bi-partisan", I will also point out this gem of economic ignorance from Justice Antonin Scalia in response to the fallacy above:
"You could say that about buying a car."
Did one of the greatest legal minds of the 20th and 21st century just suggest that a decrease in the demand for automobiles will lead to an increase in the price of said good?
While I am typically a fan of Justice Scalia's opinions, this one is downright awful. Not only is it an economic fallacy, but in making this comment, he commits a double error in legitimizing Justice Ginsburg's statement by accepting her premise that decreases in demand equal increases in prices.
I truly hope that the court overturns at least the individual mandate, if not the entire law. However, given the false premises that both the conservatives and liberals are basing their decisions, I am not holding my breath.
March 26, 2012
Wait for Thursday!
Ann Althouse relates The big week of Obamacare oral arguments begins with "the most boring jurisdictional stuff one can imagine."
But Liz Goodman sees better days ahead: "Guns, Wheat, Marijuana and Violence Against Women"
I think that was episode six of "Sons of Anarchy..."
I doubt there was advanced planning, but the 2012 release date of James Madison and the Making of America by Kevin Raeder Gutzman is fortuitous at the very least.
I'm drawn to Madison for his powerful intellect and his understanding that the exact structure of government defines it and suggests consequences both intended and not. Knowing him more from his essays in the Federalist, I was surprised by Gutzman's account of the Philadelphia Convention, from Madison's notes -- and others -- on how many significant Constitutional issues in which "The Father" of the Constitution did not get his way. Yet he took the challenge up to pen the Federalist essays -- as a New Yorker, no less -- providing a full-throated, fulsome defense of each clause.
The timing is propitious [I thought you said fortuitous...?] for me because of the opening of oral arguments in the ObamaCare suit. Even though my man Madison seeks a much stronger Federal (all but National) government, I am confident from his strong devotion to enumerated powers would carry the day, had we not strayed so far from the concept of limited government. Gutzman includes his assertion that the General Welfare Clause does not open the door wider that the gents in Philadelphia wanted:
"For what purpose could the enumeration of particular powers be inserted," he asks, "if these and all others were meant to be included in the preceding general power? Nothing is more natural or common than first to use a general phrase, and then to explain and qualify it by a recital of particulars." To read the section in the critics' way, he says, "is an absurdity."
I'm about halfway through and find it very enlightening.
February 14, 2012
New Conservative Supreme Court Justice?
If there is any truth to the adage, "A conservative is a liberal who got mugged," then can we expect a change in jurisprudence on the part of Justice Stephen Breyer?
While being grateful that the justice and his wife were unharmed, a new rightward direction in his legal opinions would be a silver lining to the episode.
February 9, 2012
I Was Right
I suggested (did I do it aloud? I am potentially getting into trouble, here) that President Obama's Supreme Court nominations were less dangerous than they could be because he was more interested in "affirmative action" than jurisprudence or intellectual heft.
This is NOT to suggest that Justices Sotomayor or Kagen are not up to the job; I am sure they are both fine. I suggested quietly on both occasions that neither was a Brandeis, Frankfurter or Homes who would intellectually pull the court to the left. I suggest Thomas, Scalia especially, and Ginsberg on the other side possess this heft. I am keen on Roberts and Alito but have less empirical evidence of their efficacy.
I steal Ann Althouse's embed and declare "I told you so!"
Althouse: Notice the emphasis on conflict resolution and building community. Fine. But I'm not satisfied with the observation that Goldilocks didn't intentionally break the chair. Goldilocks intentionally broke into a private home. Why is there no attention to that? If somebody broke into my house when I was away, I would be outraged, even if nothing were broken. I would also not accept a glued-together chair as an adequate replacement for an unbroken chair.
UPDATE: Great comments on YouTube (a sentence I never expected to write -- I'm sure they'll devolve into name calling soon). But I dug this:
I'm pretty sure Baby Bear's state law tort claims for trespass to chattel and conversion don't fall within the Supreme Court's original jurisdiction under Art. III, s. 2.
November 14, 2011
Can you say Certiorari?
I can't. That's one word I hope I never have to say in public. But I know what it means.
The Supreme Court will hear appeals on the Constitutionality of the law that evil old grouchy conservatives call "ObamaCare®."
The decision had been widely expected since late September, when the Obama administration asked the nation's highest court to uphold the centerpiece insurance provision and 26 states separately asked that the entire law be struck down.
UPDATE: Jimi P has an excellent overview.
September 15, 2011
Blighted Blue Lagoon II
And now, to turn to ThreeSources entertainment news. Fed Soc Blog: reports:
The Hartford Courant reports that Brooke Shields will be starring in a made-for-TV movie based on the controversial Kelo vs. New London Supreme Court case. The actress will be playing Susan [sic, I believe it is Susette] Kelo, a nurse who was the last holdout against the city of New London's attempt to seize privately owned land under eminent domain. The city said it intended to use the land, which included Kelo's home, to further economic development. In 2005, the Supreme Court ruled in favor of the city 5-4. The film, which will air on Lifetime TV, is an adaptation of Jeff Benedict's book Little Pink House: A True Story of Defiance and Courage.
The Federalist Society asks on Facebook if people can name any other eminent domain movies. One fan comes up with "Hitchhiker's Guide to the Galaxy." Like.
September 1, 2011
The Justice David Hackett Souter Trash Pile
Damon Root marvels at the redevelopment in New London:
You seriously cannot make this stuff up. New London, Connecticut, the municipality that received the Supreme Court's notorious stamp of approval in 2005 to bulldoze Susette Kelo’s neighborhood to make way for a "comprehensive redevelopment plan" that would provide "appreciable benefits to the community" is now using that seized land as a dump site for storm debris.
August 29, 2011
Justice Clarence Thomas as "Frodo."
I don't think I'd cast it that way.
Jeffrey Toobin is announcing to the liberal world that Clarence Thomas has morphed from a comic figure of fun to a determined super-villain who might reverse seventy years of liberal dominance of the federal bench and turn the clock back to 1930 if not 1789.
Mead, however, -- and using very peculiar Tolkien references -- suggests that Virginia and Clarence are poised to bring down the entire progressive empire (Sauron) by returning the Tenth Amendment to prominence as the Roberts Court was able to do for the Second.
If gun control and ObamaCare were the only issues at stake in the constitutional debate, liberals would find Thomas annoying but not dangerous. Losing on gun control and health care frustrate and annoy the center left, but those are only two items on a long list of liberal concerns.
Mead may be missing or underplaying the move to discredit Justice Thomas in advance of certiorari for challenges to ObamaCare. I think sc shares that view, and I share his that the hobbit stuff seems overwrought. But all ThreeSourcers will enjoy this one in full.
August 23, 2011
Ginni Thomas, The Devil
ThreeSources friend Sugarchuck shares a superb link and some thoughtful comments. Sadly, it coincided with a workday better framed for Instapundit-length blog posts. I ended up reading it over the course of a half-day.
Jeffry Toobin in the New Yorker takes a long upper west side look at Justice Clarence Thomas and his wife Virginia in Partners. Stealing sc's ideas without paraphrasing, it is humorous to watch leftist contortions when they inevitably have to shift their denigration of a political enemy from "dunderhead" to "evil genius." With President Bush, they were able to flip back and forth on the same day. But a Supreme Court Justice is different.
Instapundit has previewed an upcoming attack. When legitimate calls for Justice Kagen to recuse herself on ObamaCare® (she was, ahem, Solicitor General and advised and consulted on her then boss's signature issue) are sounded, they will be met with calls for Justice Thomas to recuse because...because...ummm...oh, yeah, because his wife doesn't like the law! She has -- I hope y'all are sitting down -- attended Tea Parties and criticized the direction the President and Congress were taking this nation. Toobin writes:
By the fall of last year, Ginni Thomas's activities had become so public that she began to draw journalistic scrutiny
Wow. That serious.
The implications of Thomas's leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society. Thomas's views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception. The Tea Party is a diffuse operation, and it can be difficult to pin down its stand on any given issue. Still, the Tea Party is unusual among American political movements in its commitment to a specific view of the Constitution--one that accords, with great precision, with Thomas's own approach.
Justice Thomas. Ginny. The Tea Party -- need we even go on?
Yes, it is out with Leader Harry Reid's assertion that Justice Thomas can't spell cat, and in with the evil genius. Else, sc, suggests they will be unable to hang the failure of ObamaCare on him. Still, you have to enjoy the style of The New Yorker:
For all of Thomas's conviction, originalism is just another kind of interpretation, revealing as much about Thomas as about the Constitution.
As this line is revealing about Toobin...
Ginni Thomas's contempt for "élites" also mirrors a theme in Justice Thomas's writings.
Scare quote? Accent acute?
It's well worth a read. I enjoyed it as a reminder of how highly in esteem I hold Justice Thomas, but, pace sc, it is interesting for its social commentary "Tracking the tone on that article was like riding 75 miles of washboard gravel in a VW bug."
June 21, 2011
Huzzah for SCOTUS!
A recent comment by a blog brother was dismissive of our nation's highest court. You want free barbecue with that iPhone?
I'm a huge fan of our Article III compadres and commadres. Over the years, they have offered the most consistent defense of liberty of the three branches. We all wince when they miss one, and I tremble in fear thinking about the inclusion of another Obama appointee. But their historic performance has been good.
Mostly, the Roberts Court has pleased: groundbreaking gun rights cases in Heller v DC and McDonald v Chicago, a rollback of FEC v McConnell (I said there were some misses) in Citizens United v FEC, free speech won 8-1 in Snyder v Phelps.
Today we cheer the trial lawyer takedown in Walmart v Dukes. You-Nan-ee-mous! Woohoo!
The WSJ Ed Page points out that we should not let the victory of American Electric Power v. Connecticut be lost in the cheering.
Yesterday's other important Supreme Court decision came in a case that joined the green lobby and the trial bar, if that isn't redundant. The Court unanimously struck down one of the legal left's most destructive theories, and not a moment too soon.
The WSJ calls the opinion Justice Ginsberg's finest hour and here I must dissent. Justice Ginsberg put a hold on the GM-Chrysler bailout because the preferred debt holders were being deprived of their Fifth Amendment property rights. She did not prevail but I will forever hold this leftist-collectivist-ACLU lawyer in high esteem for that.
June 13, 2011
Quote of the Day
We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt. -- Justice Antonin Scalia
June 7, 2011
Picture of the Day
Three thousand guesses who these people are (no fair mousing-over to get the file name):
Give? That's Keith Plessy and Phoebe Furguson. Their grandparents were adjudicants in Plessy v Ferguson.
What a great nation. I gripe and grouse about a pile of things, but this is spectacular.
May 3, 2011
"In the Mail" to Instapundit today is David Bernstein's "Rehabilitating Lochner: Defending Individual Rights against Progressive Reform." Curious, because I preordered it April 15 on Perfesser Reynolds's tip, then I got my email printed on April 25 that Amazon had done a superb job pairing that up with Richard A. Epstein's "How Progressives Rewrote the Constitution."
I am glad I bought when I did. It was $27-something and is now $29.50. That University of Chicago is pretty proud of its stuff. If you buy it, go through the Instapundit link, and if you want to borrow it, holler. Epstein's book was inexpensive and available on Kindle® I guess it was released in 2006. I'd be happy to give either one 5 stars.
After I finished Bernstein's book, I thought a good pairing would also have been Jonah Goldberg's "Liberal Fascism." As Goldberg showed less-than-aspirational motives for political Progressives, Bernstein takes some whacks at the movement's jurisprudential wing, exposing dark subtexts to Justices Holmes, Frankfurter, and Douglas.
Bernstein has not, like many I respect, given up on limited government and individual liberty, accepting just enough of the Progressive line that we are too big and too modern to be governed by Madisonian rule. He also draws interesting and important distinctions between the early Progressives versus "Old Court" and modern day liberals and conservatives. It's far more difficult to draw a straight line that you would think.
Another key insight is his setting the Civil Liberties legal movement against individual liberties, not a continuation but rather the selection of greater police power instead of personal freedom.
Bernstein ends with the explanation that he is "rehabilitating" and not "defending" Lochner v New York. It is up to the reader to draw conclusions. But he rightfully saves it from the infamy section, where even Robert Bork and Justice Scalia use it as an epithet.
April 15, 2011
ThreeSources Book Club
It's twennyseven gorram dollars and it is not on Kindle®, but Insty links to a book I can't wait to read:
DAVID BERNSTEIN'S Rehabilitating Lochner is now shipping. I'm writing a review of it right now, and it's excellent; Bernstein makes clear that Lochner was pretty much the opposite of how it has been portrayed in the progressive narrative.
Lochner v New York is lumped into the infamy basket with Dred Scott, Plessey v Ferguson and Koremastu, but I thought that it protected a Fifth Amendment right to contract -- if for some odd reasons. Review Corner on the way. Holler if you want to borrow it after, and if you buy, click through the Instapundit link. Professor Reynolds could pretty much claim me as a dependent on his taxes...
January 30, 2011
Pennsylvania is NOT a Third World Country
I knew I would have to post or link to that provocative headline before I read the column. Post reado, I will post but not tease.
The line comes from the grand jury report investigating Kermit Gosnell's abortion practice.
"Pennsylvania is not a third-world country," the grand jury felt compelled to insist in its brutal 261-page report, and it's a bad sign when you have to preface your description of an American medical office with those words
This supports my "Pro Choice, anti-Roe" position. State regulation is an important defense against third worldism. Yes I did just take a pro-regulation position. State government's enforcement of minimum standards for medical and veterinary facilities is an appropriate exercise of State power.
We're used to Federal intrusion as being more restrictive and onerous than State. But it is clearly as harmful to prevent a State from exercising its rightful functions.
October 6, 2010
Professor Eugene Volkh explains incorporation so that even dim bulbs like me can get it.
A very interesting post: Eugene Volkh answers five questions for Britannica. HT: Insty
August 25, 2010
The Commerce Clause
It's like hearing me drone on and on about Wickard v Filburn and Raich v Gonzales -- except with good production values.
June 30, 2010
On the Total Hossness of Justice Thomas
Ashby Jones (that's a family name, I wonder if we're related -- no, not "Jones!") has a post on the WSJ Law Blog suggesting Justice Thomas's Concurrence in McDonald is his Finest Hour.
I think -- for those who weren't paying attention in Raich v Gonzales -- it separates Thomas's philosophical devotion to originalism versus Justice Scalia's attempt to shape a conservative society.
But in a separate concurrence, Justice Thomas boldly went where no justice has gone before: to the arms of the Privileges or Immunities Clause. He wrote:
It also explains the arguments and methods of 14th Amendment Incorporation in words a drop out hippie guitar player can understand.
June 29, 2010
McDonald Gets Better and Better
I think it was Randy Barnett who started my concern that the Privileges and Immunities clause was not finding favor with the high court in the oral arguments for McDonald v Chicago. Yesterday I thought victory was flawed because of the narrower scope of using 14th Amendment Due Process.
Barnett himself sees the sun shining on P&I today. In a guest editorial, he praises Justice Thomas's majority-producing concurrence.
The deciding vote was cast by Justice Clarence Thomas, whose concurring opinion rested solely on the Privileges or Immunities Clause. While agreeing "with the Court that the Second Amendment is fully applicable to the States," he did so "because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship."
Also a great reminder of what a complete hoss Justice Thomas is. I know Scalia is the Conservative darling, but he was wrong on Raich and started the derisive comments in the oral arguments of McDonald.
None should forget either then-Senator Biden's disingenuous and cruel treatment of him in his confirmation hearings nor the (no I won't apologize) racist attack on Thomas's intellect by Senate Majority Leader Reid. He claimed his opinions were poorly written and then could not name one.
Barnett claims that Thomas has delivered the goods.
By declining to take issue with Justice Thomas's impressive 56-page originalist analysis, the other justices in effect conceded what legal scholars have for some time maintained—that the court's cramped reading of the clause in 1873 was inconsistent with its original meaning. Yesterday the lost Privileges or Immunities Clause was suddenly found. And some day it may be fully restored to its proper place as the means by which fundamental individual rights are protected under the Constitution against abuses by states.
June 16, 2010
I'll have to agree with Ilya Somin. I'd love the idea of Clarence Thomas running for President. But I am not so keen on President Obama replacing my favorite Justice with Maya Angelou.
Hughes was offered the vice-presidential nomination in 1908 by William Howard Taft but declined. In October 1910, Hughes was appointed by Taft as an Associate Justice of the United States Supreme Court. Hughes resigned from the Supreme Court on June 16, 1916 to be the Republican candidate for President of the United States in the U.S. presidential election, 1916; after losing the election he returned to the practice of law, and he re-entered government service as United States Secretary of State under President Harding.
May 19, 2010
We've Established What You Are General Kagan
...Now we're quibbling over price!
Professor Mankiw risks faculty wrath by linking to this Commentary post criticizing his employer. I heard Speaker Gingrich on FOXNewsSunday, inquire why Saudi Money was pure as the driven snow, yet the US Military's was tainted by homophobia:
This is a very good point for GOP senators to press Ms. Kagan on during her confirmation hearings. Apparently, accepting the money from a repressive government where sodomy is punishable by death is hunky-dory, but the military, in carrying through on the Clinton administration’s policy, deserves to be singled out for condemnation. (Don’t Ask, Don’t Tell is a “moral injustice of the first order,” according to Kagan.) How exactly does one explain the different Indignation Meters at Harvard Law School?
Fun to whack at Hahvaad whenever possible, but I hold my view that "The General" is as good a nominee as we'll see from this President.
May 17, 2010
Better Late Than Never, Nino!
Ilya Somin is not a big fan of the Comstock decision. It's an interesting post, a bit over my pay grade in parts, but I really appreciated this:
I also agree with most of the strong critique of the majority opinion in Justice Thomas’ dissent (joined by Justice Scalia). Scalia’s support for Thomas’ position in this case suggests that he may be having second thoughts about the very broad view of the Necessary and Proper Clause that he embraced in Gonzales v. Raich.
One can hope. I have great respect for Justice Scalia but have never come to terms with his vote in Raich. My lefty friends use it to point out that the Conservative wing of SCOTUS are no less "interpretive," they just have different goals.
Reading Somin's piece, I'd say Comstock certainly does not shut the door on a successful ObamaCare® challenge. I think that has been overstated.
May 11, 2010
Elena Kagan: Good News for the Right?
It would appear that Elena Kagan's total lack of judicial experience is her greatest asset to Obama. She will not be burdened by trivialities such as the law and Constitution when applying "social justice" to cases brought before the Court.
In a perverse way, however, her presense on the Court may benefit in the long run. She will reliably vote for liberal principles, but she is replacing a reliable vote for those principles anyway, so no net gain for the Libs. Her added value to the Court (from the Left's perspective) would be to attract moderate justices to her way of thinking. But with a total lack of experience as a jurist, she may surely be seen as nothing more than a legal light-weight. Even moderate justices generally care about the law and the Constitution. As such, she may not factor into many decisions.
Wishful thinking? The Refugee has committed worse offenses.
May 10, 2010
Quote of the Day
So Kagan may well be the perfect nominee for him. She's a cerebral academic who fits Washington's definition of a centrist: She's likely defer to government on both civil liberties and regulatory and commerce issues. And though libertarians allegedly share ground with Republicans on fiscal and regulatory issues and with Democrats on civil liberties issues, neither party cares enough about those particular issues to put up a fight for them. Which is why Kagan sailed through her first confirmation hearings, and is widely predicted to sail through the hearings for her nomination to the Supreme Court. -- Radley Balko
A Lot to Like Here
Nothing substantive, but pretty engaging. Hat-tip: Instapundit
Side point. I don't troll the briny depths of the Internet for foul commentary, but is there any place worse than YouTube? If you click to watch it on the YouTube site, the first dozen or so comments are anti-Semitic, personal, and foul mouthed. You have to get quite a ways down the page before someone mentions the content.
I have a few Larry Kudlow, President Reagan, and Speaker Pelosi videos up at my old (pre-coffeemusiclive) account, and every few weeks I'll get an email of a vulgar rant on one side or the other, but I do not recall ever getting an interesting, respectful of even germane comment on any of them.
May 5, 2010
Or, Maybe Not
Watching FOXNewsSunday last week (required viewing for the VRWC), Chris Wallace ended the interview with Sec Janet Napolitano by forcing her to disavow interest in the upcoming Supreme Court vacancy. My old Senator and current Interior Sec Ken Salazar was not afforded the same dignity.
I got to thinking that I should start a Salazar SCOTUS boomlet. President Obama gets to make "an Historic nomination of the first Hispanic with male body parts." And we get a nominee who is likely better than anything else we'll see from this Administration.
Not sure it's not still a good idea, but Insty links to some cold water. Brian J Noggle reads the Secretary’s comment that "“Our job basically is to keep the boot on the neck of British Petroleum" and is reminded of Orwell:
But always— do not forget this, Winston— always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face— forever.
Still, we could -- and probably will -- do worse.
April 12, 2010
Two Views of Justice Stevens
Both from Cato. I really do need my TV show. "Tonight, on 'Internecine:' two Cato powerhouses smackdown on the legacy of Justice John Paul Stevens!" [theme music swells in background, cut to scene in three...two...one...]
Justice Stevens "grew" from his country-club Republican roots to becoming the Court’s liberal lion. While a friend of liberty in certain limited circumstances, he ultimately hangs his hat on supporting government action over the rights of individuals in contexts ranging from property rights (Kelo v. New London) to the Second Amendment (D.C. v. Heller) to free speech (Citizens United and Texas v. Johnson, the flag-burning case) to executive agency power (Chevron). And even on those issues where friends of liberty can disagree in good faith as a matter of policy, such as abortion and the death penalty, Stevens admittedly and unabashedly asserted his own policy preferences instead of following the law.
Timothy J. Lee -- and I read his first -- surprised me with libertarian props for the Ford pick:
Justice Stevens wrote the majority opinion in some of the most important high-tech cases of the last four decades. In other cases, he wrote important (and in some cases prescient) dissents. Through it all, he was a consistent voice for freedom of expression and the freedom to innovate. His accomplishments include:
"Thanks for tuning in -- next week, Marty Peretz and Mayor Ed Koch square off: Is Obama Insane? Or does he just hate Jews?"
BTW: Kindle® fans, CATO@liberty is one of the best Kindle blog subscriptions. It's very inexpensive and provides a lot of good content without following links.
March 24, 2010
Oh, Foul Opinion!
Y'all glazed over when I railed against Raich v Gonzales, and its evil ancestor Wickard v Filburn. But David Kopel cites them as precedent that might uphold the penumbral constitutionality of a health insurance mandate:
One source of the impending constitutional challenge to the Obamacare mandate is that [it] exceeds the enumerated powers granted to Congress under Article I, section 8. For example, that the people's grant to power to Congress to regulate commerce among the several states does not include the power to compel people to engage in commerce. [Yale Prof.] Jack Balkin, writing in the New England Journal of Medicine, has two responses: 1. Yes it does, because of [the precedents in] Wickard and Raich, since people without insurance will eventually get sick and then buy health services; and allowing these people to buy health services outside the congressional system would undermine the congressional regulation. 2. The mandate is structured as a tax.
Americans today are not bound to meekly accept the most far-ranging assertions of congressional power based on large extrapolations from Supreme Court cases that themselves come from a short period (the late 1930s and early 1940s) when the Court was more supine and submissive to claims about centralized power than was any other Supreme Court before or after in our history.
Yeah, call Angel Raich -- ask her how that worked out.
February 19, 2010
Citizen's United v FEC
My progressive friends are incredibly cheesed off at Citizen's United v FEC. A friend posts this on Facebook today:
I know that Jon Stewart and the Huffington Post folks have been whipping this up. After surviving Kelo, Raich and McConnell I find it somewhat amusing to see the left in apoplexy. My friend who posted it is pretty bright (and well known to Colorado ThreeSourcers [HINT: two-letter-guy]) but it is attracting comments from friends, some of whom I suspect couldn't name a judge that wasn't on American Idol. "These guys are all a hundred years old!" "Who made them the boss of me?"
Tag, lefties -- you're it!
January 29, 2010
Quote of the Day
Ann Althouse has owned the Alito SOTU story, she gets QOTD yet again:
Oh, bullshit. He's a sideshow because he flinches when hit? He's modestly human and not a mannequin. I remember when Obama expressed a desire for Supreme Court Justices with a more sensitive emotional response. Empathy.
October 5, 2009
Quote of the Month?
This quote from Antonin Scalia is from October 1, so it doesn't qualify as QOTD. However, it could qualify for QOTW, QOTM or maybe QOTY. According to Scalia, we are devoting too many of our brightest minds to lawyering.
I mean there’d be a, you know, a defense or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?
September 25, 2009
Today in New London
Don Surber informs that the great development and jobs promised with the theft of Susette Kelo's land have yet to materialize.
July 13, 2009
Quote of the Day
Unfortunately, neither Democratic nor Republican senators will decry the post-New Deal rulings that transformed our constitutional order from what Princeton professor Stephen Macedo has called "islands of [government] powers in a sea of rights" to "islands of rights in a sea of [government] powers." Unless they can explain how we know which precedents to follow and which to reverse -- apart from liking the results -- all pontificating about "stare decisis" is really about nothing.-- Randy Barnett, with a great idea how the nomination hearings should be conducted.
July 12, 2009
"Joe the Fireman"
Jonathan Adler says Welcome to Washington, Mr. Ricci:
Senate Republicans opted to call New Haven firefighters Frank Ricci and Ben Vargas to testify at Sonia Sotomayor's confirmation hearings in order to score political points against Judge Sotomayor over the issue of affirmative action. Now Judge Sotomayor's advocates are seeking to take Frank Ricci down a notch so as to blunt any effect of his testimony.
How's that "new style of politics" working out for you?
June 29, 2009
WASHINGTON (AP) - The Supreme Court has ruled that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge. -- AP
But Jimmy P points out that the betting markets still call her a 95% sure thing for confirmation.
UPDATE: Maybe a quote of the day for Justice Alito's concurrence, joined by Scalia and Thomas (C/O Jonathan Adler):
Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision. The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post, at 1, 39. But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.
June 3, 2009
Epstein in Forbes
Not too often that one guy owns a big story, but Richard Epstein has published two columns on the nomination of Judge Sotomayor that have contained more fact and wisdom than the rest of the world put together.
The first one was pretty tough on Sotomayor and provided substantive reasons to oppose her nomination, beyond an eight year old academic speech.
Today's questions the tactics and ideas of Karl Rove's -- and conservatives in general -- opposition as he separates conservative versus libertarian opposition to the pick.
He even takes a whack at those (rhymes with eh, jay?) who believe in a Borkean standard of strict constructionism:
Accordingly, [The Founders] crafted our Constitution as a complex compromise. In one breath, they conferred extensive powers on federal government and recognized broad powers in the states. In the next, they imposed strong limitations on federal and state power, such as the Takings Clause, which states "nor shall private property be taken for public use without just compensation."
Libertarians, says Epstein, needed activism in Kelo.
Superb. Hat-tip: Instapundit
June 2, 2009
Racism Under New Management
This recent Michael Ramirez cartoon reminds me of a thought I had while riding around on the tractor last Friday baling hay.
When it comes to racial politics it appears there are two distinct points of view amongst people of color: One is that of Dr. Martin Luther King who dreamed of the day that one would be judged by the content of his character and not the color of his skin; the other is akin to "now that there's a 'brother' in the White House it's OUR turn to be the cracker." The question for Ms. Sotomayor is, to which of these views does she subscribe?
Thomas Sowell recently told Glenn Beck that the racism franchise in America isn't being dismantled, it's just being put under new management.
May 27, 2009
Chief Justice Taney is Smiling
I'm pretty certain that several of our early-19th-century Justices shared Judge Sotomayor's belief that their race (white) and gender (male) made them particularly suitable for the elevated responsibility of serving on the nation's highest court. But, I had hoped that we had left that thinking in the past.
The lead editorial in the WSJ today prints a longer version of the quote we have all been reading:
In a speech published in the Berkeley La Raza Law Journal in 2002, Judge Sotomayor offered her own interpretation of this jurisprudence. "Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases," she declared. "I am . . . not so sure that I agree with the statement. First, . . . there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."
The WSJ Editorial Board and I are not convinced.
This is not the same as taking justifiable pride in being the first Puerto Rican-American nominated to the Court, as both she and the President did yesterday. Her personal and family stories are admirable. Italian-Americans also swelled at the achievement of Justice Antonin Scalia, as Jewish-Americans did at the nomination of Benjamin Cardozo.
That nails the difference between "modern" judges and constuctionalists. I part company with Professor Reynolds pretty warily, but I see a clear case in Judge Bork's "Tempting of America." And while not many Justices have risen to the ideal, the ideal of a strict, textual reading of the Constitution cannot be abandoned.
April 30, 2009
Obama SCOTUS Pick
How about Justice Arlen Specter?
March 26, 2009
Another Chance Against McCain-Feingold
The court whiffed on McConnell v FEC. But the WSJ Ed Page reports the Roberts Court may get a shot at restoring the First Amendment in Citizens United v. Federal Election Commission
With Chief Justice Roberts, Justice Alito has previously taken a cautious, piecemeal approach to campaign finance law. But as the current case shows, McCain-Feingold is a blunt instrument that gives federal bureaucrats the power to decide what kind of campaign advertising is allowed during an election. If "Hillary: the Movie" isn't allowed, then Michael Moore's documentaries should be banned, and newspaper endorsements would also be suspect despite a specific carve-out in the law. If newspapers didn't have that carve-out, then maybe so many editors wouldn't cheerlead for this kind of law.
Amen on that's being one of the lowest moments in two W terms. I'd add McConnell v FEC as one of the lowest of the recent Court.
March 12, 2009
One or two of you may have noticed my comment under Tuesday's Quote of the Day. Fewer still may have followed any of the links. I got a chance to investigate futher today.
From a November 7, 2002 Press Release by Paul Andrew Mitchell, B.A., M.S., Counselor at Law, Federal Witness and Private Attorney General:
On a much broader scale, the absence of liability statutes raises the specter of widespread government fraud, going all the way back to the year 1913. And, there is no statute of limitations on fraud.
So it would seem that refusing to complete a tax return, or even completing it and refusing to sign it, may legally absolve an individual of any federal income tax liability. I met a man who actually adhered to this strategy in the early 1990's. At the time I thought he was a madman. Now I believe I've found his justification.
But what of that pesky federal witholding that AlexC lamented?
Further stunning proof that these taxes are truly voluntary can be found at IRC section 3402(n). Here, Congress has authorized a form called the “withholding exemption certificate” abbreviated “WEC”. The term “withholding exemption certificate” occurs a total of seventeen (17) times in that one statute alone.
I haven't yet found any information on the status of the legal action since the date of this press release. (Is there an honest judge left anywhere in the United States Federal Government?) Here, however, is Counselor Mitchell's brief essay "Let's Dismantle the IRS: This Racket is Busted"
Let’s Dismantle IRS:
Paul Andrew Mitchell
All Rights Reserved without Prejudice
The hunt was on, several years ago, when activists like this writer confirmed that IRS was never created by any Act of Congress. It cannot be found in any of the laws which created the U.S. Department of the Treasury.
The U.S. Supreme Court quietly admitted as much, at footnote 23 in Chrysler Corp. v. Brown. In a nation governed by the rule of law, this omission is monumental.
The search for its real origins has taken this nation down many blind alleys, so convoluted and complicated are the statutes and regulations which govern its employees rarely, if ever.
The best explanation now favors its links to Prohibition, the ill-fated experiment in outlawing alcohol.
The Women’s Temperance Movement, we believe, was secretly underwritten by the petroleum cartel, to perfect a monopoly over automotive fuels. Once that monopoly was in place, Prohibition was repealed, leaving alcohol high and dry as the preferred fuel for cars and trucks, and leaving a federal police force inside the several States, to extort money from the American People.
All evidence indicates that IRS is an alias for the Federal Alcohol Administration (“FAA”), which was declared unconstitutional inside the several States by the U.S. Supreme Court in 1935. The result of the high Court’s decision in U.S. v. Constantine confined that FAA to federal territories, like Puerto Rico, where Congress is the “state” legislature.
Further confirmation can be found in a decision by the First Circuit Court of Appeals in Used Tire International, Inc. v. Manual Diaz-Saldana, which identified the latter as the real “Secretary of the Treasury.” The Code of Federal Regulations for Title 27 also identifies this other “Secretary” as an office in San Juan, Puerto Rico.
This is ominous data. It serves to suggest that IRS has no authority whatsoever to mail envelopes from the “Department of the Treasury.” Such obvious deception is prohibited by federal mail fraud statutes, and defined as a predicate to racketeering.
Moreover, the vagueness now proven to frequent the Internal Revenue Code forces a legal conclusion that the entire Code is necessarily void, read “no legal effect.” The high Court’s test for vagueness is obviously violated when men and women of common intelligence cannot agree on its correct meaning, its proper construction, or its territorial application.
Take, for instance, a statute at IRC section 7851. Here, Congress has said that all the enforcement provisions in subtitle F shall take effect on the day after the date “this title” is enacted. These provisions include, for example, filing requirements, penalties for failing to file, and tax evasion.
Title 26 has never been enacted into positive law, rendering every single section in subtitle F a big pile of spaghetti, with no teeth whatsoever. Throughout most federal laws, the consistent legislative practice is to use the term “this title” to refer to a Title of the United States Code.
To make matters worse, conscientious courts (an endangered species) have ruled that taxes cannot be imposed without statutes assigning a specific liability to certain parties.
There are no statutes creating a specific liability for taxes imposed by subtitle A of the Internal Revenue Code. This is the set of statutes that impose the federal income tax.
Look at it this way: if Congress imposed a tax on chickens, would that necessarily mean that the chickens are liable for the tax?
Obviously not! Congress would also need to define the farmer, or the consumer, or the wholesaler, as the party liable for paying that tax. Chickens, where are your tax returns?
Without a liability statute, there can be no liability.
This now opens another, deeper layer in this can of rotting worms. If IRS is really using fear tactics to extort an unlawful debt, then it qualifies for careful scrutiny, and prosecution, under the Racketeer-Influenced and Corrupt Organizations Act aka “RICO”.
How fitting, and how ironic, that IRS is legally domiciled in Puerto RICO.
When we get down to brass tacks, we find that Congress encourages private Citizens to investigate and bust rackets, mainly because it perceived a shortage of public prosecutors talented enough to enforce RICO statutes against organized crime syndicates.
This shortage is the real reason why the RICO statute at 18 U.S.C. 1964 awards triple damages to any party who prevails, using the civil remedies it provides. And, happily, State courts like the Superior Court of California also enjoy original jurisdiction to litigate and issue these remedies.
All of this would approach comedy in the extreme, were it not also the case that IRS launders huge sums of money, every day, into foreign banks chiefly owned by the families that founded the Federal Reserve system.
Did you think the Federal Reserve was federal government? Guess again!
One of the biggest shocks of the last century was an admission by President Reagan’s Grace Commission, that none of the income taxes collected by IRS goes to pay for any federal government services.
Those taxes are paying interest to these foreign banks, and benefit payments to recipients of entitlement programs, like federal pension funds.
So, the next time your neighbors accuse you of being unpatriotic for challenging the IRS, we recommend that you demand from them proof that IRS is really funding any federal government services, like air traffic control, the Pentagon, the Congress, the Courts, or the White House.
Don’t hold your breath.
Honestly, when all the facts are put on a level table top, there is not a single reason why America should put up with this massive fiscal fraud for one more day.
It’s now time to dismantle the Internal Revenue Service.
Keeping all those laundered funds inside this country will result in economic prosperity without precedent in our nation’s history.
Let’s bury IRS beneath the Titanic, where it can rust in peace forever along with the rest of the planet’s jellyfish.
America deserves to be a living, thriving Republic, not another victim of Plank Number Two in the Communist Manifesto.
About the Author:
Paul Andrew Mitchell is a Private Attorney General and
“U.S. Secretary of the Treasury Falls Silent in Face of SUBPOENA for Tax Liability Statutes”
“31 Questions and Answers about the IRS”
“What Is the Federal Income Tax?”
“Electronic Censors Found at U.C. Berkeley’s Law School”
“Private Attorney General Backs UCB’s Graduate Instructors”
“Paul Mitchell Blasts Clinton, Rubin for Racketeering”
“Paul Mitchell Applauds House Vote to Kill IRC”
“Paul Mitchell Urges Nation to Boycott IRS”
“The Kick-Back Racket: PMRS”
“Congresswoman Suspected of Income Tax Evasion”
“Our Proposal to Save Social Security”
“Charitable Contributions by the Federal Reserve”
“Legal Notice in re Withholding Exemption Certificates”
“A Cogent Summary of Federal Jurisdictions”
“BATF/IRS -- Criminal Fraud”
“Income Taxes and Government Fraud”
“A Monologue on Federal Fiscal Fraud”
“Miscellaneous Letters of Correspondence”
# # #
June 27, 2008
The Constitution is a Hoax!
My personal favorite treatment of the illogic of the minority in D.C. v Heller comes from WSJ's James Taranto in yesterday's Best of the Web.
"The [Supreme] Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons," Justice John Paul Stevens writes in a brave dissent in District of Columbia v. Heller, the just-decided case striking down the federal district's near-total ban on firearms.
Reuters has their number. "Although an individual now has a constitutional right to own guns, that new right is not unlimited, wrote [Justice Antonin] Scalia, a hunter," the news service reports today. Justice Stevens is 88, and he is generally considered old. If this right really dated back 217 years, Reuters could not describe it as new.
Scalia engages in a lot of fancy-pants wordplay in order to conceal his hoax. For example:
In any event, the meaning of "bear arms" that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby "bear arms" connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving "bear Arms" its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war--an absurdity that no commentator has ever endorsed. . . . Worse still, the phrase "keep and bear Arms" would be incoherent. The word "Arms" would have two different meanings at once: "weapons" (as the object of "keep") and (as the object of "bear") one-half of an idiom. It would be rather like saying "He filled and kicked the bucket" to mean "He filled the bucket and died." Grotesque.
Yet constructions like this allow us to point out that Justice Scalia created out of whole cloth a new constitutional and pandered to the extreme right. You can see why they make him uncomfortable.
Scalia also faulted Justice Stephen Breyer for taking account of the practical implications of this so-called constitutional right:
He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering "interest-balancing inquiry" that "asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests." . . .. After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.
Here is what Breyer had to say in his dissent:
The argument about method, however, is by far the less important argument surrounding today's decision. Far more important are the unfortunate consequences that today's decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission. In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.
Surely everyone can agree that as a practical matter, Breyer has the better of the argument. After all, Heller was decided only a few hours ago, and already the District of Columbia has declared a "crime emergency."
May 14, 2008
Loving v Virginia
I guess I am a whiner, but I find it easy to rattle off a dozen Supreme Court decisions that I think are evil, affronts to liberty or just totally whacked. Lochner, and Korematsu, and Dred Scott and Plessy v Ferguson all live in infamy, I hope the bulk of their work is ignored because it is so good.
When asked to name unambiguously good SCOTUS decisions, I always lead with Loving v. Virginia. The 1967 case has been in the news of late because Mildred Loving has recently passed away. Kim Strassel did a nice segment on the FOX News Journal Editorial Report, and the NYTimes has an interesting article today with some interesting backstory.
The Supreme Court ruling underscored the stupidity and unfairness of segregation. And the case drew back the curtain on the secret history of race in the South. But for Mildred and Richard this struggle was not about changing the world. It was about fighting for the right to be married to one another and then returning to the community that was their home.
An unalloyed good -- from the Warren Court, no less! I find it hard to name others. No doubt Brown was the right choice, but look what its remedies have done. I like Beck, and Bakke, and Schechter Poultry Corp v United States, but then I run out of good ones.
Posted by John Kranz at 11:58 AM
October 23, 2007
The markets have recovered spectacularly from their losses twenty years ago. But the Supreme Court of the United States has not been so fortunate. Gary McDowell recaps this historical outrage and puts it into perspective. (free link)
Twenty years ago today the United States Senate voted to reject President Reagan's nomination of Judge Robert H. Bork to the Supreme Court. The senators may have had every reason to believe that was the end of the story. However ugly it had been, however much time it had taken, Mr. Bork's defeat was only one more routine sacrifice to partisan politics. But time would prove wrong anyone who actually thought that. The battle over Mr. Bork was politically transformative, its constitutional lessons enduring.
My favorite piece of trivia from Justice Clarence Thomas's book was that Judge Bork and his wife joined him for a dinner to celebrate Thomas's confirmation. Bork had set the stage for the Thomas fight. Thomas had the advantage of knowing how brutal the opposition would be, and less of a paper trail.
Post Bork (think about the world if Bork had been confirmed instead of Anthony Kennedy) we have inured to these confirmation battles and adapted: Bush's picks of Alito and Roberts are stellar. But the pain and trials documented in Thomas's memoir are gut-wrenching.
Chief Justice Taney was not conformed because of his work as President Jackson's AG in opposition to National Banking. Advice and consent is not new. Nor I suspect is bitter partisan rancor. But the intrusion of direct politics seems new and unwelcome:
The price paid has proved high, indeed. The defeat heralded a fundamental transformation in the process surrounding judicial appointments and thereby radically politicized the public's view of the nature and extent of judicial power under the Constitution. Confirmation battles from Mr. Bork to Clarence Thomas to Samuel Alito have taken on the trappings of ordinary political campaigns, from instant polling to rallies and protests and attack ads. Sadly, the courts are no longer above the fray.
Justice Ruth Bader-Ginsburg answered no questions and her leanings and philosophies were well known. Yet she was approved 96-3, based on her intellect and integrity. It is a crime that the same offer was not extended to Judge Bork.
UPDATE: I guess it is a good day to bring this up. I have had a copy of this paper on my hard drive for some time. "Sex, Lies and Jurisprudence: Robert Bork, Griswold, and the Philosophy of Original Understanding" by none other than blogging deity Glenn Reynolds (moment of silence as the prophet's name is invoked...).
Professor Reynolds links to it again today as he links to McDowell's piece and says "I also think that Bork was an unsuitable nominee who deserved to be rejected. And I say this as someone who is, in fact, more of an originalist than Bork, whose originalism was of a rather dubious and frequently uninformed nature."
I'm a big Bork fan. While there's every possibility I am just not bright enough to grab the subtleties, a couple readings of this (lengthy but very accessible) paper leave me wondering if Reynolds and I read the same book. I do not see the points in "Tempting" that Reynolds refutes.
If the Perfesser is "more originalist" than Bork, that's swell. I see Bork as more originalist than any of the current members save Thomas and possibly Roberts and Alito. The "Borking" gave us Justice Kennedy and likely frightened off several originalist nominees and the Presidents who would choose them. I cannot see how anybody who seeks original intent or text would not agree that the cause was not served when Bork was defeated.
June 25, 2007
While the rest of us are disappointed in today's Supreme Court "McCain-Feingold" ruling not going far enough to eliminate the dissent crushing provisions, "blackrobe" at Keystone Politics complains for another reason.
Once again, the court reverses a recent holding. This panel has shown that it has no respect for the notion of stare decisis.
Yeah! Because a living constitution only flows in one direction! To the left! Political speech be damned!
Besides, there's no do overs in Supreme Court decisions! None! Once decided, things just are!
Explicitly political speech was exactly kind of speech the framers wanted to protect. McCain-Feingold Campaign Finance "Reform" was a direct attack on that.
Posted by AlexC at 11:30 PM
April 3, 2007
Cry havoc! and let loose the wars of DAWG
In Jolly Green Justices, the WSJ Editorial Page -- let us say -- registers its disappointment in the Supreme Court's 5-4 ruling in Massachusetts v EPA.
The five Supreme climatologists granted Al Gore's fondest wish by declaring that "the harms associated with climate change are serious and well recognized." The majority warned about a "precipitous rise in sea levels," "severe and irreversible changes to natural ecosystems" and "increases in the spread of disease."
So, I suppose the science is settled. If SCOTUS has embraced the DAWG, who am I to be skeptical?
I laugh to keep from crying. Every presidential candidate in both parties has, so far, publicly accepted the precepts of anthropogenic global warming. The EPA will continue to be a great cabinet appointment for one of the more liberal members of any party. I was a big fan of Gov. Christine Todd-Whitman until President Bush gave her the keys to that regulatory behemoth.
Now, that position will have the power to devastate the economy, and even a President McCain or Giuliani will appoint a DAWG acolyte. I shudder to think of what havoc a President (HR) Clinton or Obama administration could wreck.
As the editorial is not available online, I have included all the text (Click "Continue Reading...") This is important to read in full.
The current Supreme Court is a talented group of jurists, but until yesterday we didn't think their expertise ran to climatology. The Justices would have done better in their big global warming decision if they'd stuck more closely to the law.
(Copyright 2007, Dow Jones & Co. -- stolen without permission).
October 19, 2006
jk sides with liberal jurists
I disagreed with Justice Scalia on Raich v Gonzales, now I have to side with Justices Souter, Breyer, Ginsburg, and Stevens against my hero, Justice Thomas.
Law.com - Gimme an 'S': The High Court's Grammatical Divide
I'm a Stunk & White guy (hence, cannot jump) and the first rule as I recall was to always add apostrophe-s except for Moses' and Jesus’' (a computer trade magazine suggested adding Gates')
Hat-tip: Taranto, who adds more complexity from the WSJ style guide.
Posted by John Kranz at 5:17 PM
June 29, 2006
John Hawkins @ Right Wing News wants to make lemons of this morning's Gitmo SCOTUS decision.
Also, if the reasoning here is supposed to be that Congress hasn't approved of military tribunals, then let's put it up for a vote. My suspicion is that most Democrats would favor putting these terrorists through the American court system, which would mean long drawn out trials, the risk of classified intelligence sources being revealed, and lots of acquittals. On the other hand, Republicans would favor military tribunals, which would sidestep all of those problems.
So basically, we'll have the Democrats who'll be so concerned about the terrorists rights that they'd favor letting them beat the system and get loose to kill more Americans. On the other hand, the Republicans won't be very concerned about the right of foreign terrorists and their first priority will be protecting America. Protecting the rights of Al-Qaeda or protecting America?
That would make one hell of a 2006 campaign issue.
Posted by AlexC at 1:32 PM
March 2, 2006
The Supreme Judiciary
It's a good thing for Justice Thomas that the biggest news story today is the Bush Administration's advanced warning of the destructive power of Katrina.
Otherwise, his narcolepsy while the court was in session would have been front page.
I'm sorry. Not Justice Thomas.
Former ACLU lawyer, Ruth Bader Ginsburg.
The subject matter was extremely technical, and near the end of the argument Justice Ruth Bader Ginsburg dozed in her chair. Justices David Souter and Samuel Alito, who flank the 72-year-old, looked at her but did not give her a nudge.
The court has struggled in the past to define how much politics is acceptable when states draw new boundaries to reflect population shifts.
I could see how the technicalities could be boring. But being the ultimate arbiter of American judisprudence is not my line of work. Couldn't someone have gotten her a cup of coffee?
February 1, 2006
Alito's First Day
The other day I rejoiced in the news that we now have a new SCOTUS Justice.
With hopeful anticipation I wrote...
Jeff Goldstein at Protein Wisdom got a copy of Justice Alito's first day's itinerary.
8:17: Prank phonecall to Cameron Diaz in which he identified himself as “the Patriarchy Police” and informed her that, now that rape has been legalized, she would need to leave Tuesdays and Thursdays open between 11am and 2 pm (with a working lunch, which would “likely consist of strawberries, whipped cream, honey, or flavored gels").
Good to see he's jumped right into his work.
Posted by AlexC at 5:55 PM
January 31, 2006
The nearly year long odessey of endless Supreme Court yammering is over.
Justice Alito is now the 110th Associate Justice of the Supreme Court of the United States.
I for one eagerly await the continued strip searches of 8 year old girls, the addition of boys to the list, coathanger abortions and warrantless phone tapping.
Let's throw in checking my library withdrawls too.
January 26, 2006
Drudge and CNN both are flashing that former Presidential candidate Senator John Kerry is going to initiate a filibuster.
A link off of Google News confirms it.
. . . of the SCOTUS nomination of Alito. His office is rounding up support now.
I have confirmed this with John Kerry's office staff.
With Senator Byrd going for Alito, I believe the number of Senators for Alito stands at 54. Certainly filibusterable.
What remains to be seen is how the Gang of 14 will act.
By filibustering Alito, Kerry is definately pandering for the angry left vote.
Byrd to Vote Yea
My brother-in-law just called with the news that WV Senator Robert Byrd will vote to confirm Judge Samuel Alito to the Supreme Court. He decried the politicization of the confirmation process and said that it should be about integrity and qualifications.
I hate to spoil the moment, but he will be facing reelection this year in a state that is getting redder by the minute. There may be some politics, but there is more honor. His history in the august body paid off here. Bravo Senator Byrd!
Posted by John Kranz at 3:11 PM
January 24, 2006
Screw Stare Decisis
Judge Alito's recommendation from the Judicial Committee was given today 10-8, and his nomination now heads to the Senate for likely confirmation.
Justice Alito will no doubt vote differently from Justice O'Connor and overturn very soon, the worst Supreme Court decision of my lifetime. I can hardly contain my enthusiasm.
Roe who? I am talking about McConnell v. FEC., where the court determined that First Amendment rights apply only to Illinois Nazis (man, I hate Illinois Nazis) and child pornographers. Those of us who care about the direction of the country and its polity will have to live under McCain-Feingold.
A case is perhaps headed to SCOTUS in time for the next election :Wisconsin Right to Life v. FEC that could curb McConnell or give the Roberts Court a chance to revisit it. The WSJ Ed Page sez:
A far better result would be for the Supreme Court to use this as an opportunity to revisit McConnell altogether. There is some hope that this could happen. Let's not forget that the deciding vote to uphold McCain-Feingold came from Justice Sandra Day O'Connor, who may now have heard her last case. Judge Sam Alito is likely to replace her soon, and his track record suggests he is more sympathetic to free-speech arguments.
McConnell is, of course, Kentucky Senator Mitch McConnell who braved scorn from the elites, media and many of his fellow Senators in a brave attempt to defend our rights.
Posted by John Kranz at 6:15 PM
January 13, 2006
It seems the Senior Senator from Massachusetts, who didn’t know how Judge Sam Alito could be part of "that reprehensible club" meaning CAP, is part of a club that does not celebrate diversity. The Washington Times reports:
Sen. Edward M. Kennedy belongs to a social club for Harvard students and alumni that was evicted from campus nearly 20 years ago after refusing to allow female members.
Neither this man, nor his party will pay the slightest price for this stunning hypocrisy, but all four of this blog's readers can enjoy it.
Double Hat-tip: NewsMax.com email & Taranto
Joe Biden, Time Traveller
D'ja catch this? Senator Biden goes on the Today Show (daring to face the fierce political onslaught from Katie Couric) and complains that Judge Alito didn't answer his question.
Fine, but he hadn't asked it yet:
Three hours later, in Round 4 of the hearings, Biden finally got around to asking the question he used as a defense to Couric three hours earlier. Again, check out the time stamp.
Posted by John Kranz at 10:03 AM
January 12, 2006
Ups and Downs
Picks and Pans, Tony or Tacky, Ups and Downs. I have some thoughts from the hearings:
UP Chairman Arlen Specter. No, I can't believe I am writing this. But he was good as Chairman and provided as I suggested the most balanced questioning during his allotted times. He was neither sycophantic nor aggressive. I thought I had lost it, but a friend emails similar thoughts:
I've not seen all of this, but what I've seen of Specter has been impressive. He is engaging in substantive debate, remaining respectful and demonstrating how these things might be conducted if serious people participated. [...] The upside is that most people don't get or care about legal trivia, but they all understand the wife's tearful exit after watching her husband savaged by the compassionate, caring party. Alito wins, and you are right, Democrats, thoughtful ones, have to wonder what kind of hands they are in with leadership like Kennedy, Schumer, Leahy, et. al.
Down Senator Kennedy. I had forgotten just how bad he is. I heard him on the radio (NPR in my rental car) saying that he still can't come to terms with how Judge Alito could have joined "that reprehensible organization" twenty or thirty years ago. Senator, I don't know how you left Mary Jo Kopechne to die thirty years ago. I guess it's all just water over your car after a while. (I apologize to those who expect more reasoned debate from me. A day with the Dems has poisoned me.) I asked my emailer "isn’t anybody in Massachusetts or the Democrat party embarrassed about this man?"
UP Senator Lindsey Graham Senator Graham has not been a team player nor reliable on conservative economic principles. But I was crying as much as the Judge's wife when he did his brilliant defense. My brother-in-law called and insisted that I tape the replay so I could catch Graham. I'm glad I did.
Up with a bullet President Bush and Judge Samuel Alito What a great nominee. I remain pleased by this nomination (and Chief Roberts's)
Level: Schumer, Leahy, Biden, &c. I didn't expect any better; I didn't get any better.
January 11, 2006
Kennedy & Alito
The hits just keep on coming.
Aides immediately alerted Sen. Kennedy that he had co-mingled two major Supreme Court decisions in his question, but Judge Alito chose to answer it anyway.
“Sen. Kennedy, I appreciate that question,” said the federal appeals court judge. “At no time have I ever opposed the right of a fetus — without regard to political affiliation, race, or sex — to cast a ballot once he or she has reached legal voting age. You raise issues of life, liberty and the pursuit of happiness, freedom of choice and civil liberties. Far be it from a judge, or anyone else, to ever interfere with those unalienable rights.”
Oh wait. That was Scrappleface. The best satire often has an element of harsh truth.
Posted by AlexC at 4:54 PM
Alito Should Know Better
Ack. One of my personal pet peeves has been tweaked by Judge Alito.
Courtesy of Powerline, to which John Hinderaker, comments "Wonderful."
"I think the Framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world," Judge Alito said. "The purpose of the Bill of Rights was to give Americans rights that were recognized practically nowhere else in the world at the time. The Framers did not want Americans to have the rights of people in France or the rights of people in Russia or any of the other countries on the continent of Europe at the time; they wanted them to have the rights of Americans."
The first part, I totally agree with... in terms of the first paragraph, I agree with Hindrocket. It is wonderful.
It's the second part of the statement that torques me off.
The Framers DID NOT GIVE US ANY RIGHTS the Constitution DID NOT GIVE US ANY RIGHTS and the Bill of Rights certainly did not "give us" any rights.
Rights are endowed by the Creator, or if your an atheist, at birth. No one gives them to you. They can only be taken away. The Bill of Rights sought to enumerate a certain set of rights, that the government has no ability to take away.
Don't believe me? Check the Preamble to the Bill of Rights.
The first ten amendments (twelve originally proposed) were to restrict government, not to give us anything! The Framers had the idea, and the personal knowledge, that governments eventually constrict the freedoms of their people. They wanted to hamstring, for lack of a better term, the government from doing so, or even attempting to do so.
Judge Alito, soon to be Justice Alito, should know the difference.
He better know the difference.
A government that can give you a right is the same one that can take it away.
That's a disappointing answer in an otherwise phenomenal performance.
Reply From Senator Salazar
C-Span reran the hearings last night and I was able to see quite a bit more.
I think my prize for tenor goes to Senator Arlen Specter. The Democrats I saw were in attack-dog mode. They have a powerful constituency to oppose any nomination from this President and are looking for any flaw they can hang an opposition movement upon. That is not serious governance.
The Republicans counterbalance this by throwing softballs and highlighting the Judge's achievements. Senator Specter nicely grilled the nominee, which I think is correct. They can have questions, too, and should.
The nominee is very impressive to me. I thought he handled himself with grace and flair.
I hope I live long enough that the court becomes something more important than "The US Board of Abortion Regulation." That all it is now to most of these folks. I didn't hear a question on Kelo v. New London (I didn't listen to it all), I didn't hear a question on McConnell v FEC and the only I time I heard about Raitch was when Sen. Hatch used it to compare Alito to Justice O'Connor (they are both on the correct side of this).
Lastly, it strengthens my resolve to be a pragmatist. We cannot make Senator Leahy Chairman of the Judiciary Committee. We cannot put Senators Schumer, Kennedy and Biden in charge. If that means we have to put up with RINOs like Snowe, Collins, and Chaffee, so be it. The other guys are not ready.
Posted by John Kranz at 10:01 AM
January 10, 2006
Being a political junkie, it breaks my heart that I just can't get into the Alito - Supreme Court goings on.
But the general meme from the blogosphere has been that Alito is competent, highly intelligent and killing the Senators. Especially in light of an exchange like this one.
A: Yes, Senator, the First Amendment protects free speech.
Q. Well, why can you give me a straight answer on that issue but not give me a straight answer on abortion?
A. Because the text of the Constitution explicitly includes the term "free speech".
Case closed. It's like watching the Washington Generals play the Harlem Globetrotters.
Wow. Judge Sam "Alioto" should have thrown a brick at the Senator. It would have hurt less.
Hopefully this video turns up.
Update: The transcript has appeared.
ALITO: Certainly it does. That's in the First Amendment.
SCHUMER: So why can't you answer the question of: Does the Constitution protect the right to an abortion the same way without talking about stare decisis, without talking about cases, et cetera?
ALITO: Because answering the question of whether the Constitution provides a right to free speech is simply responding to whether there is language in the First Amendment that says that the freedom of speech and freedom of the press can't be abridged. Asking about the issue of abortion has to do with the interpretation of certain provisions of the Constitution.
Not quite the same brick as originally described but a good answer, nonetheless.
November 1, 2005
Thumbs up from WSJ Ed Page
The lead editorial in today's WSJ (free link) is a ringing endorsement of Judge Samuel Alito.
The court is important to me, but I cannot say that I follow the appellate courts and know the players. I look to others for opinions on different nominees. Great that there are so many lawyers and law professors blogging -- that provides educated assessments (and keeps them distracted from mucking up the economy!)
Probably nobody I trust more or feel closer political kinship with, than the WSJ Ed Page. I disagree with them on the drug war, but that's the exception that proves the rule.
The whole piece on Alito is positive, but here's my excerpt:
In commercial cases, his opinions reveal a regard for free markets and a recognition of the legal and regulatory challenges facing business. He's issued rulings in favor of commercial free speech and enforcing contracts as written. He's also a believer in federalism and putting some limits on the Commerce Clause--as seen in his Rybar dissent, where he cited Lopez to say Congress lacks the authority to regulate intra-state possession of machine guns. With the death of Chief Justice Rehnquist, this is a needed voice on the Court.
I'll toss in with the last line: "This is a rumble worth having."
Posted by John Kranz at 10:58 AM
October 31, 2005
I'm ready to rumble...
Bush Picks Alito for Supreme Court - Yahoo! News
Were the opposition smart, they'd compliment the pick and watch the conservatives worry about endorsements from Ralph Neas and Senator Dodd...
October 28, 2005
Conservatives Want Brown
A GOPUSA poll of 1000 Conservatives (lets. see there are about ten in Boulder...) shows that most (72%) thought that Harriet Miers "did the right thing" by withdrawing and the consensus is almost as clear for the next nominee:
Judge Janice Rogers Brown: 46%
Count me in, though there is nobody on that list that I know whom I would not support.
October 27, 2005
I'm sure she's a great person, but this is best all around!
WSJ.com - Harriet Miers Withdraws Nomination to High Court
Janis Rogers Brown anybody? The article goes on to say that the President will be weakened in his next pick. I'd say the Miers contretemps shaves a few points off, but don't agree that the Fitzgerald investigation or Iraq drags too heavily.
A good fight will rally the base right now and give the GOP Senate seats in '06 if not a conservative justice in '05.
October 22, 2005
That's Attila's caption to this picture:
Posted by John Kranz at 4:06 PM
"White House senior staff are starting to ask outside people, saying, 'We're not discussing pulling out her nomination, but if we were to, do you have any advice as to how we should do it?' " a conservative Republican with ties to the White House told The Washington Times.
The White House denied making such calls.
"Absolutely not true," White House spokesman Trent Duffy said.
How 'bout that?
Conspiracy theorists would say, "It was the plan all along. Get someone so ill-qualified that everyone on all sides would say, 'wtf?'"
Then she withdrawls amid the strum and drang we are experiencing now, and the President nominates one of the judicial all-stars that have been suggested instead of her.
Janice Rogers Brown, Michael Luttig, etc.
Smells of Rove to me. If I were into blaming everything on Rove.
October 19, 2005
Robert Bork offers some harsh medicine to President Bush today in a guest editorial in the Wall Street Journal, Slouching Toward Miers
He sets the tone early:
With a single stroke--the nomination of Harriet Miers--the president has damaged the prospects for reform of a left-leaning and imperialistic Supreme Court, taken the heart out of a rising generation of constitutional scholars, and widened the fissures within the conservative movement. That's not a bad day's work--for liberals.
And Mr. Bork doesn't ameliorate much from there:
By passing over the many clearly qualified persons, male and female, to pick a stealth candidate, George W. Bush has sent a message to aspiring young originalists that it is better not to say anything remotely controversial, a sort of "Don't ask, don't tell" admonition to would-be judges. It is a blow in particular to the Federalist Society, most of whose members endorse originalism. The society, unlike the ACLU, takes no public positions, engages in no litigation, and includes people of differing views in its programs. It performs the invaluable function of making law students, in the heavily left-leaning schools, aware that there are respectable perspectives on law other than liberal activism. Yet the society has been defamed in McCarthyite fashion by liberals; and it appears to have been important to the White House that neither the new chief justice nor Ms. Miers had much to do with the Federalists.
He claims that the President like his father "is showing himself to be indifferent, if not actively hostile, to conservative values."
I still think it is too late to pull this nomination, I just wanted to grouse a bit.
This is the most serious opposition I have seen. National Review, and even Kristol are taken seriously but thought to have other motives. Robert Bork is every conservative's idea of the perfect Supreme Court justice. This will take its toll.
Posted by John Kranz at 6:53 PM
October 13, 2005
Stinging Miers Rebuke
Taranto devotes all of today’s Best of the Web to a look at her testimony as a member of the Dallas City Council in Williams v. Dallas, a voting-rights case from 1989.
It is not shades of Robert Bork, it does not substantiate the President's promises of justices in the mold of Scalia and Thomas. It looks like a Kennedy or an O'Connor, if not a possible Souter.
It's hard to see the "church lady" overturning Raich, and part of the testimony portends poorly for Kelo:
Miers didn't directly address the question of eminent domain. But she described a tour of a South Dallas community in which the homes were not to her liking:
No word on where she stands on the infield fly-rule or the DH.
The Full Tim McCarthy
Peggy Noonan offers advice to the White House today on the Harriet Miers nomination.
The Administration should listen, I have heard recently of a young woman who attributes a portion of her political success to the wise counsel of Ms. Noonan. Today, in her OpinionJournal column she offers advice on how to position withdrawal. My favorite is her first:
The full Tim McCarthy. He was the Secret Service agent who stood like Stonewall and took the bullet for Ronald Reagan outside the Washington Hilton. Harriet Miers can withdraw her name, take the hit, and let the president's protectors throw him in the car. Her toughness and professionalism would appear wholly admirable. She'd not just survive; she'd flourish, going from much-spoofed office wife to world-famous lawyer and world-class friend. Added side benefit: Her nobility makes her attackers look bad. She's better than they, more loyal and serious. An excellent moment of sacrifice and revenge.
The Fill Tim McCarthy should enter the lexicon. It's an awesome phrase and it honors a true hero and patriot.
Ms. Noonan, does not, however, address my concern, and I think it so substantive that I would dissuade Miers from withdrawal. It speaks of the left's vision of conservatism: that the entire GOP buckles when Pat Buchanan and Gary Bauer are upset. And a more conservative nominee would be pilloried with "We liked Miers! Why did they pull her and send up this extremist?"
Passed ball on third strike? No way.
Posted by John Kranz at 12:38 PM
October 10, 2005
Quote of the Day
Taranto at Best of the Web published letters it received in response to a post about the reaction to the Miers appointment at National Review's 50tth anniversary bash.
I know I'm among the newly converted, but this made me laugh:
I had to laugh at your unintentional Pauline Kael self-parody on Friday.
Posted by John Kranz at 8:51 PM
Throwing In With Kristol
Scoot over, Sugarchuck, I'm arriving late to the party, but I'd like a drink and a couple of hors d-oeuvres if they're not all gone.
I saw Mr. Kristol on FOXNews yesterday. They had taken a few minutes off discussing Aruban jurisprudence to evaluate America's and he repeated his call for Ms. Miers to withdraw, as he does on the Daily Standard website today. This was a nice riff, discussing the contretemps:
But the reaction of conservatives to this deeply disheartening move by a president they otherwise support and admire has been impressive. There has been an extraordinarily energetic and vigorous debate among conservatives as to what stance to take towards the Miers nomination, a debate that does the conservative movement proud. The stern critics of the nomination have, in my admittedly biased judgment, pretty much routed the half-hearted defenders. In the vigor of their arguments, and in their willingness to speak uncomfortable truths, conservatives have shown that they remain a morally serious and intellectually credible force in American politics.
I've meant all the good things I have said about Ms. Miers, and I appreciate that she has made me remember the excellent Mike Myers movie "So I Married an Axe Murderer" Not because they are both named Myers (though that's gotta be a conspiracy somehow...) but for his poem about his love: "Har-ri-et, Sweet Har-ri-et!"
Putting childish things aside, Kristol is right that if the conservatives actually do stand for meritocracy, they should ensure not that they get the vote they want, but that they put the best person on the bench.
I like the non-elitist, western-state nature of the pick. But like wanting a woman, you could fulfill the requirement and still do better.
Kristol is also right with the solution. Ms. Miers should withdraw her nomination. The President nominated her out of loyalty, she should withdraw out of loyalty.
The downside is appearance. Here's the narrative:
"President Bush nominated a consensus pick that hade wide support on both sides of the aisle, but the evil right wing conspiracy said she wasn't extreme enough! And this President knuckled under."
Pass me one of those canapés...
Posted by John Kranz at 12:02 PM
October 9, 2005
Two articles to consider, and being the administration flak that I am, I can spin them into a pro-Miers post.
The first is from Hillsdale College's "Imprimis" magazine. I hope everybody is reading this, subscriptions are free.
This month it is George Will, last month was Stephen Markman, Justice on the Michigan Supreme Court. Justice Markman makes a great point about the Constitution: "It ain't for all dem fancy, wingtipped lawyers and perfessers" (I paraphrase a bit...). The serious point is that it's not legalese, that every literate American can understand it. And that the biggest treat to understanding might be penumbras and emanations.
Myth or Misconception 5: The Constitution is a document for lawyers and judges.
The second article is everybody's favorite Senator, Arlen Spector, suggesting that "Gosh durn it, that constitution stuff is purdy near impossible for some ol' Texas Gal to learn" (again, I paraphrase...)
Sen. Arlen Specter, R-Pa., said President Bush's pick to replace retiring Justice Sandra Day O'Connor must show she can handle complicated legal issues and has not cut deals with the White House to overturn Roe v. Wade.
I rush to Ms. Miers defense in some ways as a devil's advocate. She's not an obvious choice, but there may be a lot more to this "non-elitist" meme than many of her opponents are letting on.
Posted by John Kranz at 3:39 PM
October 4, 2005
Keeping an Open Mind
As the WSJ opined in their lead editorial, we only seem to have President Bush's word on the Miers pick.
I mentioned the "hopelessly upbeat" Hugh Hewitt as providing the positive side, but here is an even better one from The American Thinker
The GOP is not the party which idolizes Ivy League acceptability as the criterion of intellectual and mental fitness. Nor does the Supreme Court ideally consist of the nine greatest legal scholars of an era. Like any small group, it is better off being able to draw on abilities of more than one type of personality. The Houston lawyer who blogs under the name of Beldar wisely points out that practicing high level law in the real world and rising to co-managing partner of a major law firm not only demonstrates a proficient mind, it provides a necessary and valuable perspective for a Supreme Court Justice, one which has sorely been lacking.
I am digging the non-ivy league thing, that really is a plus. Running a business, friendly to the Executive branch, "conservative" in W's words.
I am concerned but I'm not jumping in front of the train just yet on this one.
October 3, 2005
Weekly Standard Editors Split
William Kristol is Disappointed, Depressed and Demoralized by the Miers nomination:
I'm demoralized. What does this say about the next three years of the Bush administration--leaving aside for a moment the future of the Court? Surely this is a pick from weakness. Is the administration more broadly so weak? What are the prospects for a strong Bush second term? What are the prospects for holding solid GOP majorities in Congress in 2006 if conservatives are demoralized? And what elected officials will step forward to begin to lay the groundwork for conservative leadership after Bush?
His colleague, Fred Barnes, is -- by comparison -- dancing in the aisles!
So why did Bush choose Miers? For him, these nominations are quite personal. He wants to feel comfortable with his nominee, confident his pick will be a conservative now and conservative 20 years from now. Bush picked Roberts after being impressed while interviewing him. His doubts were erased (and there were initial doubts about Roberts). My guess is with Miers his doubts were washed away too.
Call me circumspectly optimistic...
Miers as Derek Jeter
Quick! Read this before Senator Biden tries to abscond with this analogy.
"The Anchoress" advises readers to "cool their jets" on the Miers nomination. On that I must agree. Then she plays her baseball analogy: Derek Jeter's intangible assets:
He’s been the Yankee Shortstop for ten years - he has tremendous heart, a baseball IQ that is off the charts, two things that are both intangible and invaluable, and yet his whole career he has never been called “the best shortstop playing…” by people who spend all of their time memorizing stats and looking at box scores to tell them “the whole story.” And yet, Jeter is proof that checking off stats in a column can never give you a complete picture of a player and what they bring to the game.
The Anchoress thinks President Bush, knowing her well, may have seen some of these intangibles in Ms. Miers.
Like Hugh Hewitt, I have learned to trust the President on the big things. While I am very concerned, I am going to give this some time before I see "Souter in a Dress."
Posted by John Kranz at 3:16 PM
SCOTUS Nominee #2 Today
Looks like the President will announce his second choice today.
And the Democrats are promising a fight.
So let's do it.
September 29, 2005
Hail, Chief Justice Roberts!
The Wall Street Journal reports that he has been confirmed 78-22. I like to win as much as the next guy, but am I the only one bothered that Justice Ginsberg got 93 votes, and John Roberts 78?
I guess it will not matter to the Chief Justice, as long as he was confirmed, but I am disturbed that 22 Senators think a well qualified person should be kept from the bench because they don't agree with some aspect of his or her politics.
Among the Senate's Democrats, 22 opposed the nomination, saying the candidate could turn out to be as conservative as Justices Antonin Scalia and Clarence Thomas, the Supreme Court anchors on the right.
Sorry Senator. Elections matter.
September 23, 2005
WSJ Ed Page:
That was the vote count when the Senate Judiciary Committee confirmed Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer in the 1990s, and it should have been the vote for John Roberts yesterday, instead of 13-5. The two Bill Clinton appointees are every bit as liberal as Judge Roberts is conservative, and they were just as unforthcoming during their confirmation hearings on how they would vote on specific cases.
I'm happy that the Roberts confirmation looks good. But my rightwing nutjob friends are right. There is ZERO legitimate reason to vote against Judge Roberts; the comparisons with Ginsberg make the Democrats look very bad. It is lucky for them that the media won't point this out to anybody.
UPDATE: I loved John Hinerocker's comment on Powerline:
This may be the most bone-headed statement of the year. I want to go back to the Ruth Ginsburg confirmation hearing and find where the Republican Senators asked her what kind of a mother she is. The feminists would have loved that!
Posted by John Kranz at 11:39 AM
September 13, 2005
In the Corner, Jonah Golberg nails Senator Joe Biden:
The man loves his voice so much, you'd expect him to be following it around in a grey Buick, in defiance of restraining order, as it walks home from school.
Posted by John Kranz at 5:51 PM
September 5, 2005
Now THAT'S Funny
"When Sandra Day O'Connor retired, we insisted Bush appoint a centrist to replace her and maintain the balance on the court," said one unnamed Senator. "Now, we demand that the president name a right-wing, conservative, originalist to replace Rehnquist for that same reason."
September 4, 2005
Requiescat In Pace II
Atilla at Pillage Idiot speaks to Cheif Justice Rehnquist's determination and courage. It's easy to forget how liberal the court he joined was.
But those of us who were in law school when Rehnquist was only an Associate Justice have a more vivid memory of him as a principled and lonely defender of an approach to law that had been all but turned on its head during the Warren Court. Rehnquist got the nickname "Lone Ranger" by filing solo dissents and refusing to go along with much of the legal doctrine then prevailing. (It goes almost without saying that Rehnquist was the target of a disproportionate number of barbs in the law school show, a comedy written by students. Students today have a larger number of targets.)
UPDATE: Taranto does a Sunday Best Of The Web, including a transcript of Alan Dershowitz's interview discussed in the comments below.
Requiescat In Pace
Paul at Power Line does a better job than I could:
Chief Justice Rehnquist graced the Court for three and a half decades. I'm not sure that any Justice in our history has written as many good opinions. And even those who didn't like his opinions will remember him for his gentlemanly demeanor and excellent scholarship.
Put Michael Luttig on the court and elevate Clarence Thomas to Chief Justice.
August 23, 2005
Judge John Roberts cracks me up.
Tip to Chappy who writes... If the Post recognizes the sarcasm dripping off the page of this note they do not note it. Instead, they report it as straightforward, which I doubt it is.
Posted by AlexC at 1:00 PM
August 17, 2005
WASHINGTON - Sen. Patrick Leahy (news, bio, voting record) says Supreme Court nominee John Roberts holds "radical" views and has been an "eager, aggressive advocate" for policies of the far right.It's true y'know. Senators Leahy and Kennedy have seen evidence in the 5000 pages that Roberts:
In material released Monday, Roberts emerged as an attorney serving in the Reagan White House who held views generally in line with those of other conservatives. He was sympathetic to prayer in public schools, dismissive of "comparable worth," referred to the "tragedy of abortion" and took a swipe at the Supreme Court for being too willing to hear multiple appeals from death row inmates.What a troglodyte! How insanely ideological can one guy be? How far out of the mainstream?
I would laugh if I weren't certain that the MSM will take these comments seriously.
UPDATE: The WSJ Ed Page weighs in:
It's no news flash that organizations like the Alliance for Justice, People for the American Way and MoveOn.org are influencing Democrats' attack on Judge Roberts. But the rapidity with which Senators Pat Leahy and Ted Kennedy jumped this week to follow the groups' orders is nonetheless remarkable, and politically revealing.
August 15, 2005
Elections Don't Matter
Not to TNR. The smartest lefty read in the country still has its share of partisan hacks.
I was surprised, reading T.A. Franks's "What the NARAL Ad Got Right."
In other words, NARAL, which had been trying to play as sleazy as its opponents, stepped in it. But, instead of jumping on them, let's give them an "A" for effort. At least they stayed awake at a time when many of us were asleep.
No. We do not expect the TNR to approve of Roberts's jurisprudence. No more than the Weekly Standard digs Justice Ruth Bader-Ginsberg's. But President Clinton won two elections and got to appoint two justices. National Review did not get a veto, nor does TNR get one today.
The best reason for President Bush to get his judges is still "elections matter." Nowhere is it mentioned in the article that perhaps the President can appoint a conservative. The real problem, as usual, is that lefties are too nice:
Liberals feel queasy about going after Roberts because they think that the alternative might be someone even farther to the right of Roberts. This may be the case. Either way, however, they have little to lose from promoting the notion of Roberts as a hard-right warrior. Done right, it makes them look moderate and the GOP look extreme--which, these days, it is. NARAL's TV ad, then, was a good thought. Unfortunately, its blatant griminess would have made legitimate accusations against Roberts look equally dubious.
Posted by John Kranz at 12:46 PM
August 11, 2005
Barone on the NARAL Ad
Or as he calls it: the Disgraceful NARAL ad. Today he takes no prisoners.
In my experience as a Democratic campaign consultant from 1974 to 1981, our clients were careful to put up ads that were factually correct and readily defensible. They did that because they thought it was the right thing to do and because a false ad could boomerang and end up costing them votes. If I'm right about the mindset of the NARAL people, they and their consultants don't share this view. Perhaps they believe that mainstream media will leave their ad unchallenged. But even the New York Times notes, in the 11th paragraph of a story on the subject, factcheck.org's conclusion.
"But even the New York Times notes..." I am so glad Barone is blogging. That is a gift.
Posted by John Kranz at 5:13 PM
August 9, 2005
From the NYTimes...
He said he was particularly upset that the court, under Chief Justice William H. Rehnquist, had questioned lawmakers' "method of reasoning" in striking down laws.
"Well, that's just another way of saying Congress is incompetent," Mr. Specter said, adding, "I'm not suggesting we pack the court, but at a minimum, the Senate is determined to confirm new justices who respect their role."
Democrats and liberal advocacy groups, caught off guard by Mr. Specter's letter, were elated.
"Arlen Specter sounds exactly like Chuck Schumer," said Senator Charles E. Schumer, Democrat of New York and a member of the Judiciary Committee.
Mr. Schumer said that he viewed the letter as "a vindication of the campaign I've been waging" to have the nominee answer detailed questions about cases.
12,000 more votes would have saved Pennsylvania, and the country from having two Chuck Schumers in the Senate.
(tip to Instapundit)
July 26, 2005
The soon to be released documents will come from the National Archives and Records Administration and the Ronald Reagan Presidential Library.
I'm going to go out on a limb here and say, "They're not going to read it all."
Posted by AlexC at 6:00 PM
July 25, 2005
Hard to Please
A free copy of OpinionJournal's Political Diary is offered in lieu of Best of the Web today. It seems Anita Hill is not too wild about this nominee either.
"We don't know much about Roberts' political ideology, but we do know that his career has been built on membership in increasingly elitist institutions that include few women and Latinos or other ethnic minorities... Had these 'extraordinary' credentials set the standard for judicial nominations in 1982, Sandra Day O'Connor would never have been appointed. She never clerked. She never worked for a president. She never served as a federal judge" -- Brandeis University Prof. Anita Hill, writing in Newsday.
Posted by John Kranz at 4:35 PM
From Chicago Sun-Times
''We would act just as these cities have been acting in seizing properties. We would give Souter the same sort of deal,'' said Logan Darrow Clements of Los Angeles.
Town Clerk Evelyn Connor has had to return checks from people wishing to donate to a hotel construction fund. A rival proposal from townspeople would turn Souter's land into a park commemorating the Constitution.
It's refreshing that even the townspeople are behind some sort of a "punitive" action. That's really the key support. Outsiders horsing around would never fly.
But Justice Souter is not without his defenders.
''I think it's absolutely ridiculous,'' she said. ''They're just doing it for spite.''
Boy, they're really going deep if all they can quote is his sixth-grade teacher.
Live Free or Die State... I love it!
Posted by AlexC at 11:00 AM
Good News on Roberts
Senator Ted Kennedy says he "threatens 'Social Security, Medicare, the minimum wage' and the environment." The Wall Street Journal Editorial page asks "Is that all?"
I respect the opinion of Charles Krauthammer and other serious conservatives who worry about another Souter. Again, I am pretty sanguine thanks to the much larger number of also serious conservatives who support his nomination.
But I am most calmed by the words of the Senior Senator from Massachusetts. "I can imagine few things worse for our seniors, for the disabled, for workers and for families than to place someone on the highest court in the land who would put these protections at risk."
Yup. Now I feel better!
Posted by John Kranz at 10:53 AM
July 24, 2005
A great word, seemingly coined by Power Line
The question is: was Souter a liberal, or did he "grow" in office? Michael Barone writes in to comment that Souter let Lawrence Tribe pick his clerks (not an auspicious sign).
Barone further suggests that today's justices have too many clerks and that there would be more comity and fewer split opinions without them ("First, Kill all the Clerks," Shakespeare said!)
Barone underscores Roberts's possible immunity from Souteronomy:
As for Justice Roberts, he seems clearly to be a man who will not be moved away from his convictions by his clerks. This, even though his opinions and the accounts of him by those who have worked with him indicate that he pays respectful attention to those who disagree with him. In reading his opinions, I have been struck by how carefully and fairly he presents arguments for the positions with which he disagrees. This is not a guy who is going to come out the way I would like in every case. But it does seem to be a guy who will come out the way he would like in every case -- and is not going to be buffaloed by Professor Tribe's hand-picked law clerks any more than he is buffaloed by Professor Tribe.
I'm really not jealous of other blogs' hit stats or ad rates, but if I could get Michael Barone to write in one day with comments...
Posted by John Kranz at 6:38 PM
July 22, 2005
Kristol on Roberts
The Weekly Standard has been very supportive of the President, yet unafraid to attack (well, nooge) him from the right.
While Fred Barnes and William Kristol were both hoping for a fierce conservative in the Scalia-Thomas-Bork mold, today's editorial by Kristol makes a good point. It Takes an Establishment. He points out that radicals are needed for change yet establishments are required to govern.
Kristol thinks Bush is pursuing a long-term vision of the court with the Roberts nomination as an establishmentarian.
Roberts is no Bork, no Scalia, and no Thomas. He's probably more like the man for whom he clerked, Chief Justice Rehnquist--or the man Rehnquist replaced, John Marshall Harlan. A court with, so to speak, five Scalias would be fun. But it won't happen. A court with a majority made up of some Scalia-Thomas types and some Rehnquist-Harlan types is possible. Indeed, with his choice of John Roberts, President Bush has begun to create such a court, one heading towards a constitutionalist majority.
The piece ends with some kind words from a liberal lawyer who mentored under Roberts at a law firm.
"So I have nothing but a profound sense of respect for John Roberts: for his integrity, his intelligence, his humility, and his genuine human decency.
Man when he says it like that...
Also, consider this bit of wisdom:
Let's not lose sight of this, either: Merit is a conservative principle. Selecting a first-class nominee, and refusing to bend to political expediency, is a conservative act. In this respect, the nomination of Roberts sends a signal that Bush understands the Court matters, and that on things that matter, he will rise to the occasion and scorn identity politics.
Color jk still cautiously optimistic...
Posted by John Kranz at 11:30 AM
July 20, 2005
I hear that Anne Coulter is concerned; I am more worried about a couple of good friends. (Maybe they're on the Karl Rove payroll and are pushing AlexC's "too moderate" meme...)
I like what I am seeing in the blogosphere. Power Line was positive on him before the nomination, Scott makes trenchant rebuttals of Coulter's complaints -- and John says "Pop the corks!"
JOHN adds: Pop the champagne corks, conservatives. Roberts is a fantastic choice, a brilliant and bulletproof conservative. And it was fun to see Pat Leahy and Chuck Schumer on television tonight; they looked just awful.
Glenn seems upbeat, and links to BeldarBlog's Why I'm not worried that Judge John G. Roberts will become "another Souter"
Thus, through people like former Solicitor General Ken Starr (and, perhaps, Chief Justice Rehnquist?) with whom John Roberts has worked very closely, and through privileged documents that Judge Roberts must have written himself while a government lawyer, Dubya and his staff certainly know vastly more about Judge Roberts' character and core beliefs than, for example, Poppy Bush ever could have known about David Souter or than the Gipper ever could have known about Sandra Day O'Connor and Anthony Kennedy. Instead, Dubya and his staff have the same kind of first-hand, pertinent, and highly reliable knowledge about John Roberts that Richard Nixon and his staff had about William Rehnquist. And that worked out pretty well over time, didn't it?
I saw Judge Starr on FOXNews and MSNBC last night.. He was telling the lefties not to worry about Roberts. I'm not sure he was the right messenger for the left -- but it did comfort me.
To my friends, I will echo Beldar. This President can mess up the little things. But he tends to get the big things right. And I am betting that he did his homework on this one.
Posted by John Kranz at 3:12 PM
SCOTUS Reverse Psychology
It sounds like fellow blonde right-wing babe Ann Coulter got the message.
Or did she?
July 19, 2005
Clement for the Court
Looks like the nominee will be 5th Circuit Court judge Edith Clement.
I would have figured she would have been at least officially announced before the attacks began, but it was not to be.
On the radio this morning, I already heard George Stephanopoulous, the impartial ABC commentator, say "she has no paper trail."
Listen for that meme in the future, if she is the nominee.
Confirmed 99-0 four years ago, btw.
July 16, 2005
The Kelo decision is going to affect a lot of cities negatively if this kind of attitude doesn't change.
Now, as then, the Clearkin company specializes in schools and churches, mostly Catholic ones. It still employs about 45 people. In the last decade, it has paid more than $400,000 in city taxes. But unlike some Philadelphia businesses, Clearkin has no complaint with the assessment. The family would be glad to keep sending their tax checks downtown.
Philadelphia is notorious for fleeing residents and fleeing companies because of the high tax environment. Now they're chasing them out!
If I were a politician looking to break into local politics, be it city, township or county, I would run on a "no eminent domain" kind of platform.
No houses for offices... no companies for houses... roads, parks, maybe... but the city has to pay.
I'm still waiting for the WalMart pushing out a Planned Parenthood. That would change a lot of attitudes.
July 14, 2005
SCOTUS Does One Right?
It deosn't make up for Raich and Kelo, but the WSJ Ed page applauds a decision from the high court -- and even credits it with A Brand X Bump?
Between 2000 and 2004, nearly $2 trillion in telecom market capitalization dried up, and some 70 publicly traded telecom companies filed for Chapter 11 protection. So it's not irrational to think that last month's Brand X decision from the High Court -- which upheld last year's pro-market Federal Communications Commission ruling that local cable companies aren't required to share their broadband networks with competing Internet service providers -- has had something to do with reawakening the telecom sector. FCC Chairman Kevin Martin's subsequent comments in these pages that the ruling paves the way for still more deregulation in telecommunications has no doubt also helped stir investors' animal spirits
Posted by John Kranz at 2:10 PM
July 8, 2005
With eminent domain and the strange Decalouge ruling, as well as retirements dominating the headlines, another SCOTUS ruling slid in under the radar.
Scanlon was not the first victim of Rompilla's murderous impulses. At sentencing, the prosecution offered his "significant history of felony convictions involving the use or threat of violence..." as an aggravating factor in justifying a death sentence, including the 1974 robbery, slashing, mutilation and rape at knifepoint of a female tavern owner.
Seems pretty open and shut. This animal has been a mess for a long time. Society is better served by meteing out the ultimate penalty, as he obviously doesn't "get it."
But it's not. His execution was overturned.
Next, Justice Souter anoints these purported "mitigating factors" with a weight far disproportionate to their relevance. A guilty verdict establishes beyond reasonable doubt the degree of culpability underlying a crime. Once guilt is established, it's a fair question to ask why further investigation is necessary. Sentencing is a time for accountability, not for excuses about someone's "childhood, mental capacity and health, and alcoholism." It is the time when equal justice under the law is meted out to men who are created equal.
Turning this constitutional principle on its head, Justice Souter suggests that justice demands that the Rompillas of the world be less accountable for their conduct than those from good homes, good schools and supportive parents. Furthermore, with fewer "mitigating factors" in their backgrounds, his skewed logic suggests that the "privileged" are more deserving of death sentences for capital crimes than their less-fortunate brethren.
July 7, 2005
Americans' Most Sacred Right
It's not free speech. The Federal Election Commission has asserted that it can regulate this partisan blog under the purview of Campaign Finance Reform. I guess the First Amendment works pretty well for pornographers but Americans ceded their rights to free speech with McCain-Feingold, and it was upheld by SCOTUS in McConnell
It sure ain't bearing arms. Though clearly enumerated as a distinct right in the Second Amendment, The municipalities of San Francisco, New York, and Washington D.C. have instituted de facto bans on gun ownership.
Cruel and Inhuman punishment? Brutal, violent, homosexual rape is so commonplace in our nation's prisons that it is a staple of TV and Film comedy. Capital punishment is permitted by many states; some on the right and left feel that violates the Fourth Amendment.
Search and seizure? I can be pulled over if my seat belt is not fastened or if I do not wear a motorcycle helmet, and with probable cause, my vehicle can be searched.
There's not too much quartering of soldiers in wartime, but I think we outgrew that.
The only real sacred right is to an abortion. I can wait three days for a gun license, but we can't make a young woman wait 24 hours. A 17 year old cannot buy a gun, but a 13 year old must be granted access to abortions without parental consent. I cannot erect an awning to shield my car without a permit but the city could not use zoning to move or disallow an abortion clinic.
The mere suggestion of parental notification or moderate regulations on when or what procedures may be used is a violation of our sacred reproductive rights. If it's to be the last right we get to keep, I'm sorry I am anatomically unempowered to take advantage of it.
That's the rant. The serious side, if I may, is to try and get a better handle on the Supreme Court as we discuss nominees' fitness for the bench.
Johngalt makes an eloquent case that: "There is no 'right to abortion' but there is the right to be 'secure in their persons, houses, papers and effects...' From the right to personal security the right to self-determination of all aspects of one's physical body is Constitutionally guaranteed against any and all interference by the state or by Congress.”
By this standard, we can extend this right to husband and father a plethora of new rights. Surely my soapbox of FDA infringement on the sale of pharmaceuticals is now unconstitutional. The government is withholding products from the marketplace that I will die without. That seems a lot more defensible than a right to abortion.
And with that right firmly ensconced, surely I have he right to smoke crack and so does my 17 year old son, nine year old daughter, &c.
The problem with the "newfound rights" (some of which I'd support fulsomely) is that, like Roe v Wade, they remove a State or locality's right to self-determination. Once everything is a Federal right, we can close up all of our local governments and their agencies -- and these are the only places that individuals have any real power.
Sorry gang, but while I am a squishy-moderate supporter of legal abortions, I cannot envision a good judge who would not strike down Roe v. Wade.
July 6, 2005
Another Look at Kelo
I was excoriated, crucified, and slapped around with a wet herring when I meekly suggested in a comment that Kelo v New London did ]not anger me like Raich did.
Hindrocket from PowerLine has a piece in the Weekly Standard's website, Second Thoughts on Kelo and the second thoughts of one of blogdom's greatest lawyers kind of comport with my first thoughts.
Hinderocker goes a little farther than I want to, suggesting that the case may have been well decided -- I would certainly have dissented. But he does dare to enumerate the advantages of eminent domain and provide a more realistic assessment of its uses.
Today most significant development projects involve multiple uses and cooperation between public and private entities. While such projects can no doubt be subject to various abuses, they can also be enormously successful and of great public benefit--to take just one example, consider the spectacular renovation of Baltimore's inner harbor. Moreover, two factors minimize the danger that economic development projects pose to individual rights. First, they are carried out in the glare of publicity. Nothing in local government attracts more scrutiny or more criticism than such projects. Second, the Fifth Amendment requires that anyone whose property is taken for a public use be fairly compensated, and in practice, most takings are compensated generously. Thus, while condemnation can undoubtedly impose hardship on individuals, it is unlikely to result in gross injustice.
July 5, 2005
5 Supreme Court Vacancies?
If the rumours are true, the Democrats are really going to regret losing last year.
Definately is Justice O'Connor...
Quite likely is Chief Justice Rehnquist...
Now comes a rumor of Clinton appointee and ACLU lawyer Ruth Bader Ginsburg...
And Bush 41's appointee and the generally not conservative David Souter.
RightWingNews.com, which brought Souter and Ginsburg to my attention adds...
Except for Washington and probably FDR, I bet no other President has ever had the opportunity to bring up so many nominees.
Dark days for the left and Democrats ahead. Dark days indeed.
July 3, 2005
Unborking the court
William Kristol offers a clarion call to the administration to succeed where even Reagan failed.
Reversing the Bork Defeat
Posted by John Kranz at 1:46 PM
July 2, 2005
Supreme Court Prediction
A prediction from the Polish Immigrant....
I think this will happen no matter whom Bush nominates. The chances of this happening will be close to 100% if he nominates a black woman, say, Janice Rogers Brown.
That's pretty cynical.
But probably very likely to happen.
July 1, 2005
Bush Nominees: The List
George Bush nominated Framer Benjamin Franklin to the Supreme Court today.
President Bush may also nominate George Washington to the nation's highest court, though the nominated General would face scrutiny of his environmental record.
Supreme Court Vacancy
The first vacancy in 11 years is announced.
Sadly for Democrats, they were unable to elect Senator John Kerry in November, so we'll get to see them freak out at whomever the President nominates.
Even sadder is that Justice O'Connor is not exactly a conservative, so they're going to be down at least 1/2... maybe a whole vote to the other side. Changing the balance.
A few days ago, Democrat Leader Senator Harry Reid has already made his list of acceptible nominees public.
Reid described them all as bright and able lawyers who would be strong additions to the nation's highest court.
The Senator has apparently never heard of Article 2, Section 2 of the US Constitution.
In any case, if (when) the President nominates someone other than the four listed above, expect the Democrats to bring out the bag of tricks. Filibustering, personal attacks, and endless stalling. Not to mention the incessant whining of a party with diminishing credibility.
With 55 Republicans to 45 Democrats, it's pretty clear that the new extra-Constitutional filibuster option will still be on the table.
Let us not forget that the 2006 Senate election season is already underway. Do the Democrat senators up for re-election in red states want to go against their electorate?
Senators like Bill Nelson of Florida and Ben Nelson of Nebraska could be pickups. Maybe Lieberman would also get on board. That gets you closer... 58.
Can Harry Reid keep his party in line? More importantly, can Frist keep Snowe and Specter and Lugar and McCain? (The usual suspects).
Despite a majority, and the Constitution on the President's side, this is going to be ugly.
It would sweet, if Chief Justice Rehnquist resigned now. It would throw the Dems against a wall. With two vacancies on the Court (a high profile court everyone, even the most politically disinterested, knows about) they'll be forced to do something and not stall.
The cherry on top of that pile would be the Chief Justice nomination process. The favorites are Scalia and Thomas, both favorites of the left.
It'll be a lovely time to watch politics.
Let the games begin
Wow. The most difficult to replace justice steps down.
You'd have to think that Ralph Neas crowd might only fight 99% to see Rehnquist replaced by a another conservative, and that conservatives would find a squishy (if I may borrow Sugarchuck parlance) replacement for Ginsberg an improvement.
But this news throws the soul of SCOTUS (if there is indeed one left) up for grabs.
WASHINGTON -- Justice Sandra Day O'Connor, the first woman appointed to the Supreme Court and a key swing vote on issues such as abortion and the death penalty, said Friday she is retiring.
It's to be a long and steamy --but fun-- summer.
Let me end with more wrath inducement. I have had numerous chances to object to Justice O'Connor's jurisprudence. But her personal story (read her autobiography!), personal honor, dignity, and personal love of country are unimpeachable.
Posted by John Kranz at 11:07 AM