March 23, 2017

Tour de Force!

I have been too silent (but that is so like me...)

Judge Gorsuch is a HOSS of the highest degree. Thanks to Facebook Live®, I have had the CSPAN hearings on quite a bit this week. And he has performed admirably -- no, this calls for additional adverbs -- astonishingly admirably.

He handles the hostile and stupid questions from the Democrats with cheer and seriousness. He handles the fawning GOP attempts with equanimity. I love his jurisprudence. I love his style.

And I love that Colorado's Democratic back-bencher, Senator Michael Bennet, will face the excruciating choice to either buck his party or oppose an überqualified native son of the Centennial State.

The WSJ Ed Page is pretty pleased as well:

Mr. Whitehouse complained that Judge Gorsuch wouldn't recognize his "simple" point that money in politics is corruption. "I don't think this is simple stuff at all. I think this is hard stuff," the judge replied. Justice Thomas may soon have a new ally on the bench.

Posted by John Kranz at 11:29 AM | Comments (0)

February 2, 2017

SCOTUS in the Mirror

That's what the other side sees when they gaze at the spectacle of Judge Neil Gorsuch strolling the halls and offices of the Senate Office Building.

We haven't had SCOTUS posts in a long time, so back to back days is not objectionable, izzit? [Dagny informs that jk's writing is "naturally more humorous than" mine, so I'll try stealing some of his lingo.] As constitutionalists count their lucky stars and rabbit's feet, both that Trump won and that he nominated who he said he would, those who view the Constitution's limitations as a bug, not a feature, wonder how things went so badly, so quickly.

And there are those people who remain furious that she didn't step down during Barack Obama's presidency: "Looking back, it was seriously dumb (and, frankly, selfish) of Ruth Bader Ginsburg and Stephen Breyer not to retire from #SCOTUS in 2013," fumed a user on Twitter shortly after the Gorsuch announcement.

But! Bygones. Now was the time for liberals to work with the reality they had. Now was the time to channel the energy of thousands of anxious supporters into a solution for the Ruth Bader Ginsburg problem.

"I was just talking to a friend about this," says Michael J. McClure, an associate professor of art history at the University of Wisconsin. "Like, what could we do? What could we do to help Ruth Bader Ginsburg? Could we protect her with packing peanuts? Then it turned into, 'I need to become a vampire. Like in 'Twilight.' I need to become a vampire so I can make her a vampire with eternal life.' If I'm damned to eternal life myself, so be it. It's a sacrifice worth making."

Why would the liberal justices have retired three years ago? The GOP was "dead" remember? Right on up to election day last November, Hillary Clinton was a "lock."

Cue Ross Kaminsky's Ross Report yesterday:

But a strange thing happened on the way to that corrupt candidate's coronation: The nation decided they'd had enough. Enough of Progressivism, enough of business as usual from both parties, enough of typical politicians. So voters elected a man with no experience in government but a strongly held view of what's best for the nation.

Because even a bankruptcy-prone private-sector billionaire with bad hair and caddish tendencies is a better leader of the free world than what we've lived through for the last thirty years.

Posted by JohnGalt at 7:10 PM | Comments (0)

February 1, 2017


Remember when we used to refer to certain individuals as "lions?" In the post-Obama era, that term seems to have gone the way of the comparable term "alpha male." Instead, masculinity is now "toxic." Or, I should say, used to be.

None here will argue with the assertion that "Justice [Antonin] Scalia was a lion of the law." The quote is from his nominated successor, Colorado's own 10th Circuit Judge Neil Gorsuch. And, by many respected accounts, Gorsuch himself is and will be such a lion. One particular commentator, Ross Kaminsky, goes even further in the handing out of accolades. He did so in today's on-air "Ross Report." I liked it so much I reprint it here in full:

"An assiduous focus on text, structure, and history is essential to the proper exercise of the judicial function." Those words from Donald Trump's Supreme Court nominee, Judge Neil Gorsuch of Colorado, strike terror in the hearts of liberals.

I don't mean that as a purely partisan jab, but rather that Gorsuch's judicial philosophy - that the Constitution means what it says and that if there is confusion about its meaning then the original intent of its drafters should carry the day, is the judicial equivalent of kryptonite to what the left had thought would be their court of steel once Hillary Clinton inevitably won the presidency.

But a strange thing happened on the way to that corrupt candidate's coronation: The nation decided they'd had enough. Enough of Progressivism, enough of business as usual from both parties, enough of typical politicians. So voters elected a man with no experience in government but a strongly held view of what's best for the nation.

During the campaign, Donald Trump made promises. A lot of them. He made them repeatedly. Unlike so many politicians, he wanted voters to remember them, to hold him to them.

And he has spent his first days as president honoring as many of them as he can in a short period of time.

Of all the promises he made, perhaps none is as important as the selection of a person who will likely be impacting American law and American life until after Donald Trump passes away.

Neil Gorsuch is arguably the single best choice Donald Trump could have made for the Supreme Court, at least if your goal is to return our nation toward respect for its Founding Principles.

With this one decision, Donald Trump has taken a substantial step toward being a very good, and very consequential president.

One might expect such praise from yours truly. But in case you aren't familiar with the libertarian-leaning Kaminsky, he didn't vote for Trump. He voted for Evan McMullin.

Posted by JohnGalt at 6:11 PM | Comments (3)
But jk thinks:

Yes, this Evan McMullin voter is also tickled pink with the nomination of Judge Gorsuch.

Compliment the President when he is right, oppose him when not.

Posted by: jk at February 2, 2017 11:42 AM
But jk thinks:

Even some of the grouchy-ass libertarians at Reason are in.

Posted by: jk at February 2, 2017 12:02 PM
But johngalt thinks:

So perhaps what remains unclear is the necessary "right/wrong" ratio to engender the following responses:


I suggest that the tipping point between support and oppose is roughly a 1:1 ratio of right to wrong presidential acts. For a rational person.

Posted by: johngalt at February 2, 2017 2:13 PM

July 13, 2016

All Hail Insty!


Posted by John Kranz at 6:56 PM | Comments (0)

May 18, 2016

A Bunt

I was looking for a grand slam: "I'm going to nominate Randy Barnett to the Supreme Court!" says a defiant Donald Trump, wearing a Lysander Spooner T-shirt and a "Make Trade Free Again" ball cap!

Instead, the presumptive is showing bunt.

I don't know these guys and hope a Eugene Volukh or Ilya Somin (picks two and three in a Kranz Administration) will help me out. But my first glance sees authoritarianism.

The list is notable, Vladeck said, in part because there are no surprises. "I would not have been surprised to see this exact list from almost any of the other Republican candidates," he said. "These people tend to be more into strict interpretation of the Constitution who are more skeptical of unenumerated rights like privacy and who are more likely to side with conservative social movements

At the risk of cherry-picking, the WSJ posts the list, and I looked first for our illustrious Centennial Stater. I feel this is representative:

In 2012, Judge [Allison] Eid wrote the majority opinion ruling that the University of Colorado's policy to ban students from carrying handguns on campus was unlawful. She also wrote a decision last year that said companies in Colorado, which has decriminalized most marijuana use, can fire employees for using marijuana outside of work because the activity still violates federal law.

Now, a bunt can bring home a run, and all my critiques could be leveled against Justice Scalia, peace be ever upon his holy name. Trump is looking for Scalias and not Thomases, he asked Heritage and not Cato for guidance. Got it, but of course Sec. Clinton is beating the gender studies department for a list of Sotomayors.

These are dark days. But my hope for the grand slam has passed.

Blog brothers are advised to attempt Second Amendment arguments to persuade.

Posted by John Kranz at 7:04 PM | Comments (3)
But johngalt thinks:

Argument number one: Donald Trump is not an ideologue. Hillary Clinton is the ideologue's ideologue.

Posted by: johngalt at May 19, 2016 11:53 AM
But jk thinks:

Huh. (And I realize I'm sounding argumentative just for sport, But:)

My largest gripe is that he is not ideological. He is truly the Bill O'Reilly of politics. He doesn't know what he believes in, but at this very instant he believes it FERVENTLY!

Posted by: jk at May 19, 2016 12:18 PM
But johngalt thinks:

I think you're a bit unfair. He clearly believes in American Exceptionalism. He wants America to be great - again - a thinly-veiled shot at the current president and his policies. He believes in the American Dream.

We may mostly agree that he doesn't consciously know the ideological reason why America was once greater than it is today, but he does seem to know it subconsciously, and expresses it in his latest slogan: "America First." That means, collectively at least, if not individually, that Americans should act in their rational self-interest. That's a good first step. And, it's a principle.

But the reason his ideological void is a feature and not a bug is that it makes him a blank screen onto which voters can project their own vision of a great America. Ask Ted Cruz how successful a liberty ideologue can be in politics.

Posted by: johngalt at May 19, 2016 1:00 PM

March 31, 2016

Of Interest to Coloradans

I am a huge proponent of disproportionate representation in the Colorado Legislature. For all our positives, we have a structural problem in the balance between rural and urban polities. The best solution I have heard was to give equal representation to each of her 64 counties.

Enacting that would face intense political hurdles from those losing power, plus the "sacred principle of 1-man, 1-vote" would be contravened.

Ilya Somin has a great piece in the Volokh Conspiracy examining the principle, obvious contradictions like the US Senate, and case law and legal challenges going forward.

Before Reynolds, the most common form of unequal apportionment was one in which rural districts got greater weight relative to urban ones. But urban areas have relatively greater concentrations of celebrities, intellectuals, academics, journalists, lobbyists, unionized public employees, and others who wield disproportionate political influence by means other than voting. Giving extra voting power to rural areas may, at least in part, simply counterbalance these advantages of city-dwellers. Other types of unequal apportionment might also help offset non-electoral forms of political inequality. Inequalities in apportionment might also, in some cases, help diminish the negative effects of widespread political ignorance by giving greater weight to areas with higher proportions of relatively well-informed voters.

Short, informative, and interesting -- I think all would dig it.

Posted by John Kranz at 4:45 PM | Comments (3)
But johngalt thinks:

One man, one vote? That's rather anthropocentric isn't it?

If it is proper to seek laws to protect and secure rights for "nature" is it not also proper to give electoral representation to nature? Nature is proportionally overpopulated in rural areas and, under current legislative allocations, proportionally underrepresented.

Posted by: johngalt at March 31, 2016 5:15 PM
But johngalt thinks:

Liked the article. Considering who else to share it with.

Meanwhile, this legal analysis [PDF] is related. It considers voting schemes for special districts, which often apportion votes based on land ownership. Such schemes have been sanctioned by SCOTUS. The conclusion is on page 200 if you're in a hurry. Hint - the author is hostile to the principle. (Not sure the current status of this. The analysis is dated 1981.)

Posted by: johngalt at April 1, 2016 12:21 PM
But johngalt thinks:

Also related: The current case which prompted Somin's article - Evenwel v. Abbott

Issue: Whether the three-judge district court correctly held that the "one-person, one-vote" principle under the Equal Protection Clause allows States to use total population, and does not require States to use voter population, when apportioning state legislative districts.
Posted by: johngalt at April 1, 2016 12:28 PM

March 3, 2016

The Walmart of Abortion Providers

Man, I do not care where you stand on the topic of abortion, and I suspect we cover much spectrum at ThreeSources, Chuck Donovan's guest editorial in the WSJ today is interesting.

Donovan is "the president of the Charlotte Lozier Institute, the education and research arm of the Susan B. Anthony List. The List is a nonprofit organization that supports pro-life politicians." The timing of the piece is predicated on Whole Woman’s Health v. Hellerstedt. But the most interesting bit for me is a dispassionate look at the "retail economics" of the provider network.

Demand for abortions has been falling for years and is now at pre-Roe levels ("safe, legal, and rare, one might say...") The Wendy Davis's of the world decry the number of providers which are closing in the Lone Star State. Obviously, the fault of those knuckle-draggin' Rethuglicans, #amirite?

Donovan is pretty convincing that it is more driven by declining demand and consolidation as Planned Parenthood goes all Sam Walton on the market:

This is merely one of 21 mega-clinics--typically able to see more than 17,000 patients a year, versus 5,000 in an average clinic--Planned Parenthood has opened or planned nationally since 2004. Three of these were in Texas, including two that opened after the passage of the 2013 bill that is the subject of litigation. This increased capacity affects the competition no less than when a Lowe's or Home Depot moves into an area and the local hardware store closes, or when locally run stores are unable to compete with national box-store giants like Wal-Mart.

The co-founder of a clinic that closed in Washington state in 2010 said, "We would not be closing today if Planned Parenthood had not started providing abortion services in the same town." A June 23, 2008, article in The Wall Street Journal quoted clinic operator Amy Hagstrom Miller saying "This is not the Planned Parenthood we all grew up with . . . they now have more of a business approach, much more aggressive." Ms. Hagstrom Miller, whose network of Whole Women's Health clinics is now the plaintiff in the case against Texas that the Supreme Court will hear this week, told the Journal back then that Planned Parenthood "put local independent businesses in a tough situation."

Posted by John Kranz at 3:00 PM | Comments (1)
But johngalt thinks:

Well, that explains why Donald Trump is pro-Planned Parenthood. The PP business model would even, one can imagine, make Mitt Romney proud. But the similarities between those two putative Republicans clearly ends there.

Posted by: johngalt at March 5, 2016 1:55 PM

February 15, 2016

Harsanyi - Most Worthwhile Battle GOP has Faced

All hail.

Whatever precedent says, if Republicans truly believe Obama has displayed a contempt for the Constitution, they have a moral obligation to reject his choice -- whether it's someone who argues in favor of book banning or enables abusive power. Because we're not talking about good-faith disagreements over what the Constitution says anymore, we're talking about a party that believes enumerated powers stand in their way.

And while Senate Republicans have talked a decent game, during at least the second term of the Obama Administration, they don't have many courageous moments to celebrate. This could be the moment of moments.

They will have to argue that a lame duck president should not be empowered to change the composition of the Supreme Court. After all, Republicans won both Houses making an argument against Obama's overreach.

Voters seem less inclined to be moved by idealistic arguments these days, so Republicans may suffer the short-term consequences. But if conservatives truly believe their rhetoric on constitutional values -- all that stuff about the First and Second Amendments, about religious freedom and checks and balances -- this might be the most worthwhile battle they've faced.

Posted by JohnGalt at 2:47 PM | Comments (1)
But nanobrewer thinks:

Sigh, another opportunity for salemanship missed:

no one is contending Obama can’t send a nomination
which is EXACTLY the way it's being portrayed.

However, a statement like: we require, as Sen. Schumer has in the past, that the nominee be suitably "mainstream" would have made it harder to paint the GOP as extreme, rigid, etc. while leaving them free to use any color litmus paper they chose.

Everything else is Harsayani's very erudite emission is way too high brow/inside baseball for this season of The Trump IMO.

A piece from NBC is already openly postulating a SCOTUS win for an outgoing BHO: "If Democrats win back the Senate and lose the White House in November, they would control both branches of government for about two weeks before Obama leaves office."

Posted by: nanobrewer at February 17, 2016 1:40 AM

Quote of the Day

The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: They left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the countermajoritarian preferences of the society's law-trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all-men's military academy--so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States--the old one--takes no sides in this educational debate, I dissent. -- Justice Antonin Scalia, United States v. Virginia (1996)
Requiescat in pace
Posted by John Kranz at 12:24 PM | Comments (0)

December 23, 2015

Major Win for Free Speech

But yesterday, a majority of the Appeals Court for the Federal Circuit ruled in the Slants case that not only was the USPTO wrong in rejecting the band's trademark, but that the portion of the law preventing the registration of offensive marks is unconstitutional.

"Many of the marks rejected as disparaging convey hurtful speech that harms members of oft-stigmatized communities," writes the nine-judge majority. "But the First Amendment protects even hurtful speech."

The court held that the government's refusal to register disparaging trademarks is a curtailing of free commercial expression.

"The government regulation at issue amounts to viewpoint discrimination," reads the ruling.

Take that, Political Correctness!

Posted by JohnGalt at 2:18 PM | Comments (0)

June 26, 2015

All Hail - Harsanyi

On King v. Burwell:

Let's concede to Roberts that the intentions of every politician is to improve on things. Republicans believe that further nationalizing health-care insurance is a bad idea and makes markets less competitive and more expensive. By overturning the law they want to improve health-care insurance markets, as well. That's why we have legislatures, to debate these points of view and then pass laws. Those laws codify what a majority can agree on. And we have courts to judge the constitutionality of laws, not bore into the souls of politicians to decipher their true intent or find justifications to rubber stamp "democracy" -- as Roberts puts it.
Posted by JohnGalt at 3:48 PM | Comments (0)

King v. Burwell

Instead of me paraphrasing Damon Root and Clark Neilly -- badly -- both have good articles on King v Burwell better explaining what I meant. Here's the crux of the biscuit from Root:

Writing at The Week, conservative pundit Matt K. Lewis says "John Roberts abandoned conservatives" in King v. Burwell and abandoned "the conservative legal philosophy [he] is supposed to hold true to."

In a word, no. John Roberts may have infuriated many conservatives, but that's not the same thing as abandoning his conservative legal philosophy. In fact, when you take a closer look, you'll find that Roberts' behavior in the two Obamacare cases is quite consistent with one particular school of conservative legal thought. That school is committed to the idea of judicial deference.

Whole thing pretty good.

Posted by John Kranz at 9:51 AM | Comments (4)
But johngalt thinks:

I read "judicial deference" as meaning, Congress deserves wide latitude in crafting law to suit its purposes so the court should not change said laws for light and transient causes. Very well.

So is holding the Executive to the letter of the law a pedantic technicality because "everyone knows" what they intended, or is the Court allowing for blithering incompetence in the Legislature for failing to write the four extra words that would have conveyed its clear meaning?

Do we now have the soft bigotry of low expections of CONGRESS?

Statesmen? Hell, I'd settle for skillful scribes.

Posted by: johngalt at June 26, 2015 11:38 AM
But jk thinks:

Not endorsing it, just trying to better understand it. It has been the clarion call of the Conservative movement since Judge Bork was Verbed. I highlight it because I did it myself. "Judges shouldn't legislate from the bench!" and "Gimme another PBR -- and some wings!"

Hell yes judges should legislate! If they struck down every unconstitutional law, Congress would learn.

Posted by: jk at June 26, 2015 11:51 AM
But johngalt thinks:

Putting a finer point on it - to "legislate from the bench" means, to me, modifying the law not striking it out of existence. The latter is, let's see... adjudication? If this was supposed to be "judicial deference" and that means "not legislating from the bench" then they're doing it wrong. This is the second time they've REVISED the PPACA of 2010. Scalia is right... this is no longer the President's signature health care law, it is SCOTUS'.

Posted by: johngalt at June 26, 2015 12:13 PM
But jk thinks:

Scalia's book Reading Law [Review Corner] warns of overuse, but includes the Canons which are used to provide some benefit of the doubt to legislation

"Context is a primary determinant of meaning. A legal instrument typically contains many interrelated parts that make up the whole. The entirety of the document thus provides the context for each of its parts. When construing the United States Constitution in McCulloch v. Maryland,4 Chief Justice John Marshall rightly called for 'a fair construction of the whole instrument.'5 More than a century later, Justice Benjamin Cardozo echoed the point in the context of legislation: '[T]he meaning of a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in view.'6

"The Supreme Court of the United States has said that statutory construction is a 'holistic endeavor,'7 and the same is true of construing any document. Many of the other principles of interpretation are derived from the whole-text canon—for example, the rules that an interpretation that furthers the document's purpose should be favored (§ 4 [presumption against ineffectiveness]), that if possible no word should be rendered superfluous (§ 26 [surplusage canon]), that a word or phrase is presumed to bear the same meaning throughout the document (§ 25 [presumption of consistent usage]), that provisions should be interpreted in a way that renders them compatible rather than contradictory (§ 27 [harmonious-reading canon]), that irreconcilably contradictory provisions should be given no effect (§ 29 [irreconcilability canon]), and that associated words bear on one another's meaning (noscitur a sociis) (§ 31 [associated-words canon])."

Scalia, Antonin; Garner, Bryan A. (2012-07-05). Scalia and Garner's Reading Law: The Interpretation of Legal Texts. Thomson West. Kindle Edition.

I'll accept from his dissent that he found this instance less than compelling. But nor can I proclaim no underpinning reason for the Chief Justice to offer yet another saving construction.

Posted by: jk at June 26, 2015 2:10 PM

June 25, 2015

Quote of the Day

The Court holds that when the Patient Protection and Affordable Care Act says "Exchange established by the State" it means "Exchange established by the State or the Federal Government." That is of course quite absurd, and the Court's 21 pages of explanation make it no less so. -- Justice Scalia dissenting [pdf] in King v Burwell
The Traitors! mob is grabbing pitchforks on Facebook. I am disappointed but neither surprised nor devastated at this ruling. I heard a pretty good explanation of the Government's argument and it is not unreasonable.

Scalia's own book [Review Corner] suggests constructing ambiguities to preserve legislation. Lost this one, 6-3. Let's move on.

Posted by John Kranz at 12:58 PM | Comments (4)
But johngalt thinks:

The court majority found that the law means what it says it means, even if it doesn't say it. Or even if it says something different than what it says.

Works for me!

Posted by: johngalt at June 25, 2015 3:03 PM
But jk thinks:

I find Scalia's dissent far more compelling, I'll admit. I would have proudly joined the HOSS wing Thomas/Scalia/Alito and interpreted the statute literally.

Maybe I'm still licking wounds from the TPA, but my objection is to "the Republic is over" and "Obama clearly has some naked picked of Roberts with barnyard animals and he uses these to get rulings he likes." &c.

It was statutory and ambiguous. I am not going to put this in the bag with Kelo, Raich, Buck v Bell and Dred Scott. I think grownups should learn to be disappointed in government -- there are ample opportunities to practice.

Posted by: jk at June 25, 2015 4:24 PM
But johngalt thinks:

Can we at least agree that this is closer to removing Themis' blindfold than to mere "disappointment in government?"

The court ruled in favor of Leviathan. The majority rewrote the law to make it legal, rather than throw it back to the other two branches to clean up their own gorram mess. You know, the way it used to be done before Twitter, the internet, and the 24-hour news cycle made so many of us come to expect everything, right now, for free. (Yes, that includes "must pass" furcacta trade deals.)

Posted by: johngalt at June 25, 2015 6:01 PM
But jk thinks:

I'm not going to sit still while you bad mouth Adam Smith...

I am not trying to spread a little sunshine wherever I go, it is bad and I find Scalia's dissent far more compelling than Roberts's opinion.

But if you read Damon Root's Overruled [Review Corner] or any of his superb synopses videos and articles, I think you can accept this as "judicial deference." I am not saying I dig it -- and I wish they saw their job as protecting our liberties from the other branches -- but it is par for the course as it were.

To get beyond this means embracing an outlying, minority-but-growing libertarian jurisprudence. Not name calling.

Posted by: jk at June 25, 2015 6:19 PM

March 3, 2015

All Hail Taranto!


Posted by John Kranz at 3:40 PM | Comments (0)

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:

- Approve the Keystone Pipeline.
- Block Obama's Executive Amnesty.
- Fully repeal Obamacare.
- Unshackle our energy resources by removing unnecessary energy regulations.
- Secure the southern border.

Like If You Agree

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.

Posted by JohnGalt at 2:11 PM | Comments (1)
But jk thinks:

Could not be more excited, this is great news.

Also agree that it's a superb reason for the 114th to kick full repeal down the road.

Posted by: jk at November 7, 2014 3:38 PM

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
Posted by John Kranz at 11:01 AM | Comments (6)
But AndyN thinks:

And lest anyone jump to the absurd conclusion that this is a nation of laws, the 4th Circuit turns around and rules the exact opposite...

Posted by: AndyN at July 22, 2014 2:11 PM
But Keith Arnold thinks:

"We have to pass it to find out what's in it."

Next time, Nancy, you'll read it.

I hope Justice Roberts pays better attention when this one gets to him.

Posted by: Keith Arnold at July 22, 2014 5:31 PM
But AndyN thinks:

Sadly, Keith, I really don't think she will. Why should she? What real repercussions has she faced?

Posted by: AndyN at July 22, 2014 6:39 PM
But jk thinks:

She did lose her speakership (and the giant gavel accoutrement -- I bet she misses that!)

I'll agree that it has not wizened her or engendered a lot of contrition...

Posted by: jk at July 23, 2014 1:07 PM
But dagny thinks:

Time has wizened her up plenty. But definitely nothing has wised her up, nor likely ever will. - Your local grammar police on the job. :-)

Posted by: dagny at July 23, 2014 1:40 PM
But jk thinks:

Fair cop, guv! Hahahahahaha!

Posted by: jk at July 23, 2014 1:48 PM

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?

Posted by John Kranz at 12:08 PM | Comments (2)
But Keith Arnold thinks:

Sir! "War of Northern Aggression," if you please.

Yeah, couldn't resist. Considering how many references I've endured pointing to the twelfth century, wire coat hangers, and male hegemony, I think I'm just a little bit entitled.

Posted by: Keith Arnold at July 1, 2014 4:22 PM
But Keith Arnold thinks:

And if you were waiting to a John Cusack reference, don't hold your breath...

Posted by: Keith Arnold at July 1, 2014 4:23 PM

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

Posted by John Kranz at 5:34 PM | Comments (4)
But Keith Arnold thinks:

I've been following this on and off throughout the day (check out @SCOTUSblog on Twitter for some of the best of it!), and predictably, the statist left has trotted out the usual list of strawmen. See also:

I have a question for the left that's I've never had a good answer to: if in the employment relationship, the employer is progressively seen as having an obligation to provide not just a paycheck, but also healthcare, wellness programs, daycare for our babies and toddlers, smoking cessation plans, "Employee Assistance Programs" for a variety of life issues, retirement pensions, and so many other things -- all arguable good things, especially in the eyes of the Left -- then why is the Left working so hard to destroy employment in this country? Why do they hate working people so much?

Posted by: Keith Arnold at June 30, 2014 6:47 PM
But jk thinks:

Thanks for the link Keith. My Facebook roster, however, means I never have to go looking for leftist nonsense -- it finds me.

Posted by: jk at June 30, 2014 6:58 PM
But jk thinks:

Speaking of SCOTUSBlog, for those seeking something a little more uplifting, here's Eugene Volokh

Posted by: jk at June 30, 2014 7:11 PM
But johngalt thinks:

NYT editorial: "Limiting Rights: Imposing Religion on Workers"

The rebuttal to part 1 of the headline is, "One man's ceiling is another man's floor." But the second part is laughable. "Thou shalt come to work at my company or face..." what, exactly?

Isn't the imposition of secularism on employers just as egregious as, say, Islamists requiring women to wear a burka?

But the religionists brought this upon themselves with moralizing laws going way back before Salem, recently including the ones that made ALL birth control illegal. A Texas Baptist on FNC this morning said, rather proudly, "I'm not a Republican or a Democrat, I'm just a Christian who votes for Christian values." Ironically this came moments after he also said that religious liberty must be protected. Can you spell "hypocrite" Mr. unaffiliated Christian?

No. The proper frame of reference is not "religious liberty" or "civil rights" or "gay rights" it is INDIVIDUAL rights and INDIVIDUAL liberty. Any individual is rightly free to discriminate however he may please, even if he pays people to do crap for him. But government is not. Corporations share some rights with "people" but government doesn't.

Posted by: johngalt at July 1, 2014 11:34 AM

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
Posted by John Kranz at 10:08 AM | Comments (0)

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 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."

As law professor and Volokh Conspirator David Bernstein notes, Justice Breyer's worldview enjoys a distinguished liberal pedigree, dating to the turn-of-the-century progressive project of converting the freedom of speech from an individual to a civil liberty. Bernstein writes that Supreme Court Justice Louis Brandeis embodied this approach, "defend[ing] freedom of speech primarily on the instrumental ground that it promoted free and rational public discussion, essential for the American people to govern themselves."

Justice Breyer himself traced this historical trajectory, citing Brandeis's opinion in Whitney v. California (1927) that free speech is "essential to effective democracy" and a later justice’s emphasis of the importance of the "maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people." His dissent concludes by asserting that "the justification for aggregate contribution restrictions is strongly rooted in the need to assure political integrity and ultimately in the First Amendment itself."

This view, unsurprisingly, reflects the mindset of the contemporary legal and political Left, which values political free speech only insofar as it leads to collective action. Its rejection by five justices also explains the venom emitted at the McCutcheon ruling by the leading lights of the mainstream media: editorial pages, law blogs, and activists alike.

Thing the whole got read to.

Posted by John Kranz at 2:30 PM | Comments (1)
But johngalt thinks:

I haven't "thing the whole read" yet. Does the author also observe that, with our government's current patronage-redistribution-patronage cycle in full bloom, elections are already being bought? Stewart just doesn't seem to care when the buyer is a friend of his.

Posted by: johngalt at April 25, 2014 11:34 AM

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.

Posted by John Kranz at 1:48 PM | Comments (1)
But johngalt thinks:

Libertario delenda est, dammit.

Do I oppose marijuana prohibition? Yes. Am I willing to smear the most liberty loving Republican since the gipper because he takes the status quo position? Hell no.

Can we cut off the purity test at the first ten issues please?

Posted by: johngalt at January 13, 2014 3:16 PM

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.

The professor's math was almost certainly somewhat off, but he was right that the overwhelming majority of constitutional law scholars at elite law schools thought that the constitutional challenge to Obamacare was not just wrong, but obviously so. But there is a reason for this. The faculties at elite law schools have been able to define what was "mainstream" in constitutional law simply by who they hired to join them. And Yale, to take just one example, has not hired a conservative or libertarian professor to teach constitutional law in my lifetime.

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.

Posted by John Kranz at 10:17 AM | Comments (0)

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.

"She sat on her, slicing her," Crawford said. "This was a torture crime."

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.

"Was justice done? Twenty-four years is a long time, but I'm not sure," Crawford said.

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.

Linley E. Pearson, who was Indiana's attorney general when Cooper appealed to the state Supreme Court, said research now shows that the human brain doesn't fully mature until age 24.

"So kids can do a lot of things they wouldn't do if they were an adult," Pearson said.

And, it now seems, essentially get away with it.

Posted by JohnGalt at 2:22 PM | Comments (0)

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!
In Hollingsworth (the Prop 8 case), I find myself rooting for a punt. The WSJ advocated a very narrow position or a (seemingly correct) finding that the litigants lack standing as the State of California declined to defend it. Damon Root at Reason suggests a more dramatic punt (kind of a quick kick by the QB on third down...)

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."

If Kennedy can convince four other justices that the Court was in fact wrong to take the case, the Supreme Court might engage in a maneuver that lawyers refer to as a "DIG." That is, the Court would dismiss the Prop. 8 case as "improvidently granted." This unusual approach would leave the 9th Circuit's ruling against Prop. 8 in effect, thereby leaving gay marriage legal in California while the Court remained silent on the issue for the other 49 states.

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?

Posted by John Kranz at 1:44 PM | Comments (2)
But johngalt thinks:

Rainbow equals sign inside a red heart sitting on a green dollar sign - beveling optional to suit. Equality in love (and everything else) resting on a capitalist foundation. The heart is required to maintain separation between the equals and dollar signs, for obvious reason... analogous to the way Oklahoma's panhandle protects Texas from touching Colorado. (As a nearly life-long Coloradoan I used to say, protect Colorado from Texas. But that was before "The Blueprint." Copyright 2010, Adam Schrager and Rob Witwer, Speaker's Corner Books.)

My motivation is primarily to get social issues out of the political arena so that they don't keep drawing our government closer to the one-world variety. As such I'd prefer to see the gay marriage activists get their way and let future SCOTUS cases address whether government may force individuals to live and act in accordance with the beliefs of others that are anathema to their own. Not holding my breath though. I don't think the court is this brave, or visionary.

Posted by: johngalt at March 27, 2013 2:23 PM
But jk thinks:

Sorry, your design uses thought and reason -- I am pretty certain that is not allowed.

I would love a Gov. Mitch Daniels truce on social issues -- 48 years suits me just fine. But as you concede, that ain't gonna happen. I think you can clarify what principles underlie your positions, and show that they match your economic principles.

Posted by: jk at March 27, 2013 6:49 PM

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."

Is it?

UPDATE: * Added the word "morally" to distinguish vis-a-vis "legally." The law still has some distance to travel.

Posted by JohnGalt at 2:55 PM | Comments (1)
But jk thinks:

I appreciate interesting dialog. It is a hard day to be jk on Facebook. Y'all know I am predisposed to gay marriage, but the combination of sanctimony and shallow thinking are too much to bear. Change your profile picture to George Takei's red equals sign -- and don't worry your pretty little enlightened head about Federalism, or the basic legal premise of "standing."

But you did not request a rant, you wanted an opinion...

I don't know if Rosen would prefer it, but I would have to lead me with a little "Render under Caesar."

As long as there are still Christians who actually follow Christ and uphold his word, a vast amount of people around the world — never mind Islam -- will never ever see gay marriage as anything other than a legal encroachment of God's intent.

With all due respect, we encroach on the poor Supreme Being’s intent all the damn time; not sure He has "standing..." Seriously, the cats and chicks in the robes are discussing marriage as a legal matter, and although he gets huge points for quoting Chesterton, I think Erikson's argument falls on its face when one bifurcates the religious and the secular versions of marriage.

Posted by: jk at March 26, 2013 6:37 PM

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.

Posted by John Kranz at 2:50 PM | Comments (0)

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.
Posted by John Kranz at 11:16 AM | Comments (0)

August 14, 2012

Robert Natelson on Romney, the Supreme Court, and the Constitutional Revival

First, buy Robert Natelson's awesome book.

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.

Posted by John Kranz at 4:41 PM | Comments (5)
But Ellis Wyatt thinks:

A nice piece from Ari; I agree that this will bring Rand more into the public eye and stimulate real, substantive discussion of core issues--rather than who ate dog.

I disagree with him when he states that Ryan "doesn't understand what rights are or where they come from."

I will expand on that in a future post.

Posted by: Ellis Wyatt at August 14, 2012 8:09 PM
But johngalt thinks:

To clarify, Ari Tweeted the link but the "deciding" was by Craig Biddle, a respected Objectivist and publisher of TOS. I appreciate brother Ellis' comment and would also like to hear brother KA's take on the Biddle piece. If there is anyone on earth I know of who can properly address the Rand/Christianity duality embodied in Congressman Ryan it is he.

This is the cardinal topic of our age, for America - and all mankind - needs Objectivism in order to achieve a lasting freedom and prosperity, but Objectivism needs Christianity to achieve a plurality and a comfortability that Objectivism cannot, as yet, achieve on its own. Paul Ryan may well be a near perfect vessel for the first voyage of this journey. NED, please guide and protect him, and make sure the Secret Service is ever vigilant and undistracted. We embark upon a new Renaissance.

Posted by: johngalt at August 15, 2012 12:26 PM
But Ellis Wyatt thinks:

Thank you for the correction Brother jg--I garbled that rather badly. In note in the comments to Mr. Biddle's piece, Dianna Hsieh writes:

Ryan's interest in Ayn Rand doesn't make him any less of a very dangerous theocrat and big-spending statist than he is. If Objectivists actively support him and Romney, I think they'll have to overlook or whitewash their very, very serious defects to do that. As a result, Ayn Rand's ideas will be watered down -- and worse, even more strongly (and wrongly) associated with conservatism than they are already.

I think her use of the term "theocrat" is more than inaccurate. It is irrational.

Posted by: Ellis Wyatt at August 15, 2012 3:30 PM
But johngalt thinks:

Objectivists face a difficult task in reconciling the ideals of Ayn Rand's philosophy with the far from ideal state of human civilization at any given time.

John Galt had no interest in "saving" a corrupt government, yet Ayn Rand actively supported Republicans in defense of America's Constitional Republic which she called the greatest nation in the history of mankind. In her novel, Rand had her hero destroy the mixed economic system before returning to build a just system in its place. In reality Rand, like myself, had no interest in attempting to live through a complete economic collapse.

Support Romney/Ryan, postpone full-blown American socialism for another four years, and continue to advocate and educate and campaign for liberty. I'm betting that four years hence, this strategy will get Objectivists further than the one that necessarily must pass through collapse and civil unrest. That sort of thing is much more enjoyable to read about in you comfortably heated and lighted parlor than to actually experience - cold dark and hungry.

"To save the world is the simplest thing in the world. All one has to do is think."

Posted by: johngalt at August 15, 2012 6:06 PM
But johngalt thinks:

To the extent that Ryan has, or does, attempt to constrain others to his religious beliefs via the law the term theocrat is applicable. I would dispute the adjectives "very dangerous."

Posted by: johngalt at August 16, 2012 3:29 PM

August 12, 2012

Review Corner

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.
The analogy limps.

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.

Posted by John Kranz at 10:23 AM | Comments (0)

July 29, 2012

Review Corner

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.
The other six twentieth-century alterations, however, embodied ideals fundamentally at variance with those that had inspired the Founders. Their addition to the Constitution significantly changed the system’s design.

The Sixteenth Amendment of 1913 ended the apportionment rule for the income tax. While in theory this did not otherwise expand the power of the federal government, it helped to realize two of the Founders’ fears: that some groups would be able to use the tax system to plunder other groups, and that the central government could impose a "direct tax" on citizens of a state without regard to the population of their state. The Seventeenth Amendment, ratified the same year, provided that the people, rather than the state legislatures, henceforth would elect United States Senators. There were strong arguments for such a change, but there is little question that it impaired the constitutional balance by weakening the voice of state governments.

The Eighteenth Amendment (1919), which established national prohibition of alcoholic beverages, was repealed only a few years later by the Twenty-First (1933). During the time Prohibition was in effect, however, federal agents became involved in routine law enforcement in a way they never had before--and Americans became inured to the practice.

Five stars.

Posted by John Kranz at 10:39 AM | Comments (2)
But johngalt thinks:

This comports with my longstanding belief that American constitutional rule ended at the beginning of the last century, not this one - and that the Sixteenth Amendment was the lynchpin.

What is less clear, however, is why it happened then? Why was the government content within its limitations, at least economically, for over a century before seeking to expand its power? The passing of the Founders and their memories is one explanation. Anything more concrete than that?

Posted by: johngalt at July 29, 2012 3:55 PM
But Jk thinks:

I'm going with two clever parlimentarians: Speaker Thomas Brackett Reed made the house "efficient" and turned the reins over to TR; LBJ made the Senate work and took the reins himself.

These subverted Congress' avoidance of harm through inaction just in time for the Progressives.

Posted by: Jk at July 29, 2012 8:36 PM

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")

Posted by John Kranz at 5:33 PM | Comments (0)

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.

UPDATE: So Now We Have Supreme Court Leaks Disagreeing With the Substance of Other Supreme Court Leaks

Posted by John Kranz at 11:27 AM | Comments (1)
But Ellis Wyatt thinks:

My sources in Malta say that Roberts smokes a gram of Lebanese hashish every night after his classes are over. He figures after two weeks of that he'll be able to come back to the States and be mellow with whatever all sides throw at him. He is also staying off the internet and drinks half a bottle of Porto after dinner. Probably just what the doctor ordered.

Posted by: Ellis Wyatt at July 3, 2012 3:43 PM

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)

Posted by John Kranz at 6:15 PM | Comments (1)
But johngalt thinks:
"While the Roberts opinion on the Commerce Clause and the Spending Clause brings current interpretation of those clauses closer to the original understanding, current interpretation remains a long way from original meaning. For the Necessary and Proper Clause, however, the Roberts opinion goes all the way."

Also some interesting looking links at the end of the linked piece.

Posted by: johngalt at July 1, 2012 10:40 AM

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.

Posted by Boulder Refugee at 2:23 PM | Comments (2)
But jk thinks:

Cheer Up Brian! (See, I can do allusions!)

Wickard was not overturned, but Lopez & Morrison were underscored.

I'm not going with evil genius, but I am ready to take a long view and see some advantages, one of which is restraint on the Commerce Clause.

I'm less concerned that Taxing power has been expanded because that is visible and the electorate is sensitive. Regulations and mandates allow the government to give away free stuff without showing anybody where it was from.

The bill was passed and they will now own up to what Kudlow called "the largest tax increase in the history of the world." If that gets them all reelected, Republican government is finished in America, and a 5-4 decision the other way in NFIB v. Sibelius would not have preserved it.

Posted by: jk at June 29, 2012 4:01 PM
But johngalt thinks:

I can't give the insightful explanation that a legal blogger might. But I will point out that the liberty movement, and the politicians and justices who support the cause, are just now beginning a principled opposition to the progress toward socialism that began about one hundred years ago with the 16th amendment. Yesterday's ruling is good for at least five to ten years of pushback toward the Constitution we all thought we had.

On the tax/not a tax question, which would you have preferred the majority opinion saying: "Congress can regulate economic activity in virtually any way it's plurality sees fit" or "Obamacare is a tax, bitches, elect anti-tax politicians if you don't like it."

In contradiction to a Tweet I wrote yesterday, limiting liability of a tax to a certain class of people instead of applying it universally doesn't make it any less a tax. It's just an unjust, unfair, inequitable tax. It quacks - it's a duck.

Posted by: johngalt at June 29, 2012 4:06 PM

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 Barnett
The 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.

Posted by John Kranz at 9:47 AM | Comments (1)
But johngalt thinks:

The first page of the Rahe piece is very good and I look forward to the rest, but I remind that the ACA was transparently inserted as wholesale replacment for an unrelated house bill thus, in technicality only, meaning it "originated" in the house. At least that is the way I remember it.

Posted by: johngalt at June 29, 2012 12:46 PM

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.

National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts' concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.

I left the detailed explanation to the professional.

Posted by JohnGalt at 1:01 AM | Comments (4)
But jk thinks:

I enjoy Krauthammer's decisiveness and clarity. But he is a professional in that he is trained in Psychiatry and makes his living as a pundit.

If we're to appeal to authority, I am a lot more comfortable with legal bloggers like Glenn Reynolds, Ann Althouse, William Jacobson and the lads at PowerLine. These four sites can be mined for a diversity of opinion from "Roberts the Cunning Genius" to "Losing is losing, kids -- put the saccharine away."

I fight because it's my nature but more importantly because the Roberts Court is supremely worthy of defense. It is difficult enough to navigate the legal complexities of the decision without imagining that we have some window to the Chief Justice's soul.

The charge you and DoctorKraut make is pretty serious. The Chief Justice of the US Supreme Court chose popularity over jurisprudence. I have seen no empirical evidence nor suggestions in the Pirate -- I mean Chief -- Roberts's history or character to support it.

Posted by: jk at June 29, 2012 9:36 AM
But johngalt thinks:

I can see that I wasn't effusive enough in my thanks for your help in changing my perspective on Roberts' ruling. I, and I think Krauthammer, do not criticize the Chief Justice for strategically protecting the court's prestige. To the contrary, Dr. K concluded that in addition to "Commerce Clause contained and "constitutional principle of enumerated powers reaffirmed" Roberts also achieved "Supreme Court's reputation for neutrality maintained." Krauthammer said he wouldn't have ruled that way but he also didn't disparage Roberts' ruling. And neither do I, thanks to you and Lawrence Solum, as I expressed in a comment here last night.

I posted the Krauthammer piece because of its insight, and because it supported my original premise for why a conservative would uphold this ridiculous law - not for vanity, but for objectivity. Yes, I was bragging. But no "impeach Roberts" sentiment was intended.

The 24-hour old image of my premise has President Obama as Emperor Hirohito, Justice Roberts as President Franklin Roosevelt, and the newly legitimized Obamacare law as Pearl Harbor. Whether Roberts or Roosevelt intentionally allowed the slaughter is irrelevant. A rallying point is made.

To complete the picture I will recite the reflection attributed to Admiral Yamamoto: "I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve." I can confirm that my friends and family are spitting mad over this. The Liberty Movement is reanimating all across the country. Roberts has awakened it to the reality that, in my brother's words, "the Constitution is in the toilet." And I'm not inclined to talk any of them down until after November 6th.

Posted by: johngalt at June 29, 2012 12:36 PM
But Robert thinks:

Althouse has another good post that speculates Roberts is, in essence saying:

"People need to stay alert and pay attention. Be skeptical of labels. Did somebody say nobody considers this a tax increase? And you believed it? You are not sophisticated enough to live in a democracy!"

Or, shorter version: Sharpen up. Bitches.

Posted by: Robert at June 29, 2012 1:11 PM
But jk thinks:

I retract. If not you and not the good Doctor, there is plenty to go around. Et tu Jonah Goldberg:

Roberts didn't hide it at all. Instead he all but declared that the Today Show and Meet the Press chatter about polarization and partisanship on the Court got to him. This is an error of Aesopian proportions. If you think you can appease the Doris Kearns Goodwin Caucus you don't understand how liberalism works. I guarantee it: The next time there's an important case before the Court, liberals and "moderates" will insist that Roberts capitulate again if he wants to keep his hard-earned reputation as a reasonable man. Indeed, all he's done is fuel the notion that a reasonable conservative is one who surrenders to liberals while offering interesting explanations for their surrender.

I cannot of course prove that this is not true. And I don't mean to be in full jump up and down mode. But I -- and Jonah -- ask our friends on the other side to discuss facts and ideas.

Posted by: jk at June 29, 2012 2:25 PM

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:


If this were some other more narrow law, if this was not a monumental takeover of the most private aspects of our lives, if this monstrosity would not cause such long term damage to our health care system, if this law was not Obamacare ….

I might be inclined to agree with you.

But it is Obamacare, it is the takeover of a substantial portion of our economy which empowers the federal government to write tens of thousands of pages of regulations telling us how to live and how to die.

This was the hill to fight on for any conservative Justice of the Supreme Court.

Yet because the conservative Chief Justice sided with the liberal Justices on the result, we have Obamacare.

Posted by John Kranz at 4:51 PM | Comments (2)
But Terri thinks:

Ann Althouse sees the sunny side too.

I'm starting to get out of my funk for the day and proactively sent money to the candidate vowing repeal.

Posted by: Terri at June 28, 2012 6:32 PM
But johngalt thinks:

The broken-record refrain on talk radio is "they just invented a new government power to tax people for not buying things." I sang from the same echo-chamber this morning but now being enlightened as to what is meant by the phrase "the Constitution is what Supreme Court precedent says it is" I understand we're supposed to rejoice in this ruling because it openly asserts what has been understood only by legal scholars up til now:

"Congress [has] unlimited authority to regulate any activity that was economic in nature."

Any Constitutional restrictions on this existed only in the legal climate that existed prior to 1913, and in the idealistic imaginations of people like myself. But now, thanks to Chief Justice Roberts, even NASCAR retards know this. Finally they may see a real difference between a country governed by Democrats and one governed by Republicans. Electoral politics is not just about guns and abortions anymore. The debate will finally be about whether or not our government can make its citizens do things whether they want to or not.

Thank you Justice Roberts for ripping off the Band-aid of liberty. Our polity may now either heal or bleed to death.

Posted by: johngalt at June 28, 2012 9:36 PM

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

Posted by John Kranz at 11:47 AM | Comments (0)

May 31, 2012

"Sick Chickens"

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.

Posted by John Kranz at 11:51 AM | Comments (0)

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.

Those who stand in the way, whether it be the Supreme Court, Congress or institutions such as the Catholic Church, are to be either ignored when possible, or intimidated and bullied into silence and acquiescence in the proud tradition of President Obama's mentor, Saul Alinsky.

What is at stake here is freedom and whether we shall be governed by a document that begins with "we the people" or whether we shall be ruled, in totalitarian fashion, by a bill that says "the secretary shall determine" what our rights and freedoms are.

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.

Posted by JohnGalt at 3:00 PM | Comments (0)

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?

Posted by John Kranz at 4:39 PM | Comments (2)
But Bryan thinks:

Perhaps I was a bit too hard on the good Justice. As I mentioned, I normally really like Scalia's opinions (Raich being an exception to that rule).

There is no doubt however, that his wit is quite impressive.

Posted by: Bryan at March 28, 2012 5:11 PM
But johngalt thinks:

What Speaker Pelosi really meant was, "We have to pass the bill so that the Supreme Court can read it and tell us what is in it."

Posted by: johngalt at March 29, 2012 11:43 AM

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.
Posted by John Kranz at 10:42 AM | Comments (1)
But johngalt thinks:

Surreal: The fate of Constitutional limits on America's federal government hangs in the balance and all we can do is watch, comment and cheer, like it is a sports contest.

Meanwhile, a market-based (read: sustainable) solution to healthcare can be found in this book authored by members of the Pioneer Institute public policy research group in, Massachusetts.

Posted by: johngalt at March 28, 2012 3:18 PM

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.

Posted by Bryan at 6:25 PM | Comments (7)
But dagny thinks:

I saw the same article. It is full of all kinds of bloggable stuff, but I will try to restrict myself to this issue.

I am an accountant (not an economist) but given the other elements of government coercion in health care and insurance markets, I have to go with Justice Ginsburg on this one.

Those who don't participate in the insurance market nonetheless participate in the health care market by going to the emergency room where the government requires private hospitals and individuals provide service without compensation. Therefore to keep their doors open, such providers raise the prices on those of us who do participate in the insurance market.

Conclusion: Those who don't participate in the insurance market raise the prices on those of us who do. Or perhaps a more accurate formulation might be that the government makes it more expensive for the rest of us to cover those who don't participate.

Unfortunately, Obamacare is all the wrong responses to the problem. If government coercion were reduced on providers instead of increased on patients and those who choose not to purchase insurance had to actually deal with the consequences of that choice, I suspect many more people would find a way to, "afford," insurance.

Posted by: dagny at March 27, 2012 7:41 PM
But Bryan thinks:

Thanks for the replies!

Dagny -

You bring up an excellent point that I have heard about this issue before. I am willing to agree that it has some validity, but I also think it is somewhat misleading.

First, you are absolutely correct when you say:

"the government makes it more expensive for the rest of us to cover those who don't participate"

However, that is not the whole story. One of the the unintended consequences of this law is through the expansion of health coverage to those that don't already have it, demand for healthcare services will increase. As distorted as the healthcare market is, the price for coverage is at least providing some market based rationing of healthcare coverage and thereby healthcare services.

I would argue that any decrease in cost that comes from the "pooling or risk", will be offset by the increase in demand, and therefore cost of healthcare by the addition of 40 million more healthcare consumers. The end result being a net increase in the cost of healthcare due to the over regulation of this particular market combined with an increase in demand for healthcare services.

Posted by: Bryan at March 27, 2012 8:03 PM
But johngalt thinks:

Bryan would be correct in concluding that healthcare costs will rise due to the rising demand of universal coverage, were it not for the fact that government will "manage" that demand via rationing. Or at least, that is what government will tell you. In actuality government rarely says "no" when handing out benefits.

In any marketplace there is always rationing of supply to meet a larger demand. In a free market that rationing is accomplished by price in a fair, objective, and non-discriminatory manner. When the federal government mandated that all hospitals "treat on demand" without any regard for the ability to collect payment it created a problem of economic viability it has been unable to rectify ever since. Reversing that mandate is the key to affordability, availability and excellence in the health care market.

Posted by: johngalt at March 28, 2012 11:50 AM
But Bryan thinks:

Thanks for the reply JG!

I am skeptical that the government will be able to effectively ration the demand for healthcare services in a way to offset part or all of the increase in costs associated with the new demand that has been created. I would point to Medicare as evidence of that fact. Medicare essentially lowers the cost of healthcare services to the consumer, greatly increasing demand and there has been little to no rationing done by the Federal Government, which is part of the reason why healthcare is so expensive now; the market is trying to ration it through price.

The bottom line is that either the Government will be unwilling (what you said)or unable (what I said) to ration healthcare effectively, meaning the net result of the healthcare law will be an increase in prices. This is the opposite of what both Ginsburg and Scalia were arguing with respect to the healthcare and automobile markets.

Posted by: Bryan at March 28, 2012 12:10 PM
But johngalt thinks:

In defense of Justice Scalia his hypothetical is correct in the case where too few cars are demanded by the public to make that particular car cost economically mass-producible and thus price competitive with other mass-produced cars with a higher sales volume. A car such as, for example, the Chevrolet Volt.

But Bryan is correct in a more general sense.

Posted by: johngalt at March 28, 2012 1:13 PM
But EE thinks:

The real problem here is that nobody seems to understand the difference between health care and health insurance:

Posted by: EE at April 2, 2012 2:44 PM

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..."

Posted by John Kranz at 1:08 PM | Comments (3)
But johngalt thinks:

Thanks for the viewing tip, but won't this be on Wednesday also? I had read that oral arguments were scheduled for only three days.

Posted by: johngalt at March 27, 2012 2:28 PM
But jk thinks:

Mea culpa: Wed PM session, not Thursday. Thursday will be hookers, trans-fats, and crack cocaine.

Posted by: jk at March 27, 2012 2:53 PM
But johngalt thinks:

Followed on Friday by pornography, sugar and pseudoephedrine. (sp?)

Posted by: johngalt at March 28, 2012 11:55 AM

Pre-Review Corner

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.

Posted by John Kranz at 11:02 AM | Comments (2)
But Kevin R. C. Gutzman thinks:

Actually, the book was ready for release nearly a year ago, but we held it until last month precisely to coincide with the presidential campaign season.

Posted by: Kevin R. C. Gutzman at March 26, 2012 4:16 PM
But jk thinks:

Thanks for the comment -- the book is great!

Posted by: jk at March 26, 2012 7:38 PM

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.

Probably not.

Posted by Boulder Refugee at 9:51 AM | Comments (1)
But jk thinks:

Jim Geraghty wonders the same and with as little optimism:

Thank goodness the justice, his wife, and guests are all right. Of course, past history suggests that not every Supreme Court justice who is unlucky enough to be the victim of crime shifts to the right:

The last time a justice was the victim of a crime was in 2004, when a group of young men assaulted Justice David Souter as he jogged on the street in Washington.

In 1996, a man snatched Justice Ruth Bader Ginsburg's purse while she was out walking with her husband and daughter near their home in Washington. Ginsburg was not hurt.

You notice nobody ever tries this stuff with Scalia. I've always wanted to hear a Supreme Court justice ask, "Do you feel lucky, punk?"

Posted by: jk at February 14, 2012 1:23 PM

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.

So "Sesame Street," in classic left-wing fashion, pays no attention to property rights. Also, consider the gender dimension of this problem. If a male had intruded into the home of a female, I don't think "Sesame Street" would focus on how nice it would be if the 2 could now become friends.

Hat-tip: Instapundit

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.

Posted by John Kranz at 1:41 PM | Comments (5)
But dagny thinks:

This is very funny despite my ignorance but would someone with more intellectual heft (like that word) than I please tell me what Art. III, s.2. says?

Posted by: dagny at February 9, 2012 2:30 PM
But jk thinks:

I just liked the pedantic formalism versus baby bear. But, for the record:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Posted by: jk at February 9, 2012 2:40 PM
But johngalt thinks:

Does anyone really believe a Sesame Street skit is indicative of judicial philosopy or heft? C'mon Ann, lighten up. As lefty indoctrination goes, this barely twitches the needle.

Posted by: johngalt at February 9, 2012 4:08 PM
But jk thinks:

Good point. It's not like she had Sudafed or something.

Posted by: jk at February 9, 2012 5:40 PM
But jk thinks:

And I think Justice Thomas could have worked the Privileges & Immunities Clause in.

Posted by: jk at February 9, 2012 5:43 PM

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.

The justices in a brief order agreed to hear the appeals. At the heart of the legal battle is whether the Congress overstepped its powers by requiring that all Americans buy health insurance by 2014 or pay a penalty, a provision known as the individual mandate.

Game on.

UPDATE: Jimi P has an excellent overview.

Posted by John Kranz at 12:17 PM | Comments (2)
But Perry Eidelbus thinks:

Because the Supreme Court did so well to protect liberty in the Dredd Scott decision, Korematsu, Kelo, Raich...

Posted by: Perry Eidelbus at November 14, 2011 11:29 PM
But jk thinks:

Schecter Poultry, Loving v Virginia, McDonald v Chicago, Heller, Citizens United...

I think they've done a better job than the other two branches (low bar, I know).

Posted by: jk at November 15, 2011 5:53 AM

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.

Posted by John Kranz at 10:56 AM | Comments (0)

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.
Posted by John Kranz at 6:42 PM | Comments (0)

August 29, 2011

Justice Clarence Thomas as "Frodo."

I don't think I'd cast it that way.

But blog friend Sugarchuck sends a follow-up link to the New Yorker piece by Jeffry Toobin we discussed last week. Walter Russell Mead also notices the shift in tone:

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.

The real problem will come if Thomas can figure out how to get the Tenth Amendment back into constitutional thought in a serious way. The Second Amendment was a constitutional landmine for the left; the Tenth is a nuclear bomb.

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.

Posted by John Kranz at 1:51 PM | Comments (4)
But johngalt thinks:

Huzzah. If Thomas keeps this up we may need to erect another statue one day.

So, Roberts has resurrected the Second Amendment, Thomas is resurrecting the Tenth, now we need to find a sitting justice to champion the Fifth. Paging Mister Alito.

Posted by: johngalt at August 29, 2011 2:23 PM
But johngalt thinks:

Even more seriously, I hope Justice Thomas is taking every precaution in his personal security. It seems that his moral crusade threatens at least as many at least as much as did Dr. King's.

Posted by: johngalt at August 29, 2011 2:30 PM
But jk thinks:

I may be permanently banned from 3src for saying this, but the one you seek is Justice Ruth Bader Ginsberg. Strange bedfellows, indeed...

Posted by: jk at August 29, 2011 3:29 PM
But jk thinks:

And I think Thomas deserves the props for the Second Amendment. The foundation of his concurrence in McDonald did not attract a bevy of Justices to retry The Slaughterhouse cases, but it had to have had a stabilizing effect on the plurality.

Posted by: jk at August 29, 2011 4:12 PM

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."

Posted by John Kranz at 6:23 PM | Comments (0)

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.

Posted by John Kranz at 10:52 AM | Comments (1)
But johngalt thinks:

Four years after ruling that EPA can regulate CO2 as a "pollutant" the high court rules that states can't infringe upon the EPAs authority. This is such a mixed bag I'm not sure whether to cheer or to cry. In the treatment given this by Mike Rosen today it appeared that the court was heavily swayed by popular opinion - in favor of DAWG in 2007 and against it now. I don't remember any Constitutional amendments in the interim.

Posted by: johngalt at June 21, 2011 3:21 PM

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
Posted by John Kranz at 1:34 PM | Comments (1)
But johngalt thinks:

I have been wondering when the SCOTUS would grow a pair.

Posted by: johngalt at June 13, 2011 2:53 PM

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.

Posted by John Kranz at 11:59 AM | Comments (1)
But johngalt thinks:

"What my ancestors dreamt about, I'm able to live." What a refreshingly different attitude than that of the reparationists.

One can understand the logic of the majority decision at the time without agreeing that it was the correct decision. And now that the correct outcome has been achieved it is time for those whose attitudes were shaped by its delay to recognize the fact that they are free and equal in every way - free to make their own way in the world and equally immoral when demanding the unearned.

Posted by: johngalt at June 7, 2011 2:20 PM

May 3, 2011

Review Corner

"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.

Posted by John Kranz at 11:27 AM | Comments (2)
But nanobrewer thinks:

OK, I'll holler. I'm about done with "Love & Logic" and ready for a deeper read. I feel the need for positive vibes these days, so would prefer Bernstein's tome if it's still available for a loaner.

Give me a shout at my personal address - as I don't have RSSers, crawlers, seekers or trawlers working yet - which I now feel freer to disclose: -- redacted --


Posted by: nanobrewer at May 4, 2011 11:29 PM
But jk thinks:

Sweet -- I hate to see a $27 book get read once. Sent you an email...

Posted by: jk at May 5, 2011 11:30 AM

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...

Posted by John Kranz at 2:44 PM | Comments (3)
But AlexC thinks:

I'm tempted to get a Kindle for the instant gratification factor, but man I love to hold a book in my hand.

Of course I have about 15 books in the queue, stacked up and waiting for me to read. :(

Posted by: AlexC at April 16, 2011 11:36 AM
But jk thinks:

I consider it an imposition to have to read a real book. I may be worse than most, but I cannot think of a Kindle owner I know who does not now prefer Kindle books.

Posted by: jk at April 16, 2011 11:48 AM
But jk thinks:

We've had this talk before, but I remain astonished that your travel schedule does not push you over the line -- you don't mind dragging a pile of books to Alaska?

Posted by: jk at April 16, 2011 11:51 AM

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
Pennsylvania may not be a third-world country, but its abortion mills--like those in most other states--really are reminiscent of one: free and independent entities, uniquely exempt from supervision and regulation, carved out from the rest of medicine. Every other kind of doctor is weighed down by record-keeping and inspection requirements. Abortionists alone are free. "Pennsylvania's Department of Health has deliberately chosen not to enforce laws that should afford patients at abortion clinics the same safeguards and assurances of quality health care as patients of other medical service providers," the Gosnell grand jury explained. "Even nail salons in Pennsylvania are monitored more closely for client safety."

The reason, of course, is what such medical practices involve. Ever since the Supreme Court issued its Roe v. Wade decision in 1973, ending states' power to outlaw abortion and making it instead an individual right, abortion has distorted American law and snarled American politics. Why should it be any surprise that it has soiled American medicine as well? People like Dr. Gosnell are allowed to exist by the pro-abortion lobbying groups that insist ordinary medical supervision will lead to a curtailing of access to abortion in this country.

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.

Posted by John Kranz at 10:59 AM | Comments (4)
But Keith Arnold thinks:

"Pennsylvania is not a third-world country."

Neither is California:

Though at the rate we're going here, we will be one in the not-too-distant future. We'll save a place for Pennsylvania when we get there.q

Posted by: Keith Arnold at January 30, 2011 5:59 PM
But johngalt thinks:

Roe doesn't legalize infanticide, and it didn't lead to the lax state regulation of PA abortion clinics. According to the article, Tom Ridge did.

(I'll also point out that this is one side of the story. I don't know the other side but certainly it might be told a bit differently than this.)

Posted by: johngalt at January 31, 2011 1:45 AM
But jk thinks:

I'm all ears to the pro-Gosnell side, bro, send me a link.

The point -- and I've read Bottum for a long time and know his leanings -- is that Roe purposefully interferes with a State's regulation mechanism, just as McDonald v. Chicago will hopefully interfere with states' gun control regulations.

A gun shop or abortion clinic who feels they are being leaned on has a powerful weapon to push back against a state regulator. Rightly or wrongly.

A candy warehouse with a rodent problem cannot claim the state inspectors are violating a Constitutional right to candy (Justice Douglass didn't live long enough...) But I suspect the double standard described in the Bottum article to be true, and I posit that the Gosnell case proves it.

Posted by: jk at January 31, 2011 10:09 AM
But johngalt thinks:

Gosnell and his associates "broke state law" so apparently Roe hasn't chilled state regulation as you suggest.

Further, "The Pennsylvania Department of Health abruptly decided, for political reasons, to stop inspecting abortion clinics at all." No mention of Attorneys General or federal judges.

The guy is a bad doc. So stipulated.

Posted by: johngalt at January 31, 2011 3:41 PM

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

Posted by John Kranz at 1:37 PM | Comments (3)
But johngalt thinks:

Thanks for the gift: In my hunt for the correct first link (which I never found) I came across this: Atlas Snickers.

Posted by: johngalt at October 6, 2010 2:26 PM
But jk thinks:
But johngalt thinks:

My bad.

Posted by: johngalt at October 7, 2010 2:44 AM

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.


Posted by John Kranz at 3:24 PM | Comments (1)
But johngalt thinks:

Libtard: "I think what people choose to eat well might be regarded as a personal liberty."


Libtard: "What we put into our bodies really is part of our freedom, but there's not a freedom to not have medical care."

Why not?

Libtard: "Power can be used in silly ways, and the Constitution isn't our protector against undesirable government actions, only unconstitutional ones."

Begging the question, what is unconstitutional?

From the beginning...

Libtard: "And the Supreme Court very broadly defined the scope of Congress' commerce power (...) Congress can regulate any activity that taken cumulatively has an effect on interstate commerce." "Taken cumulatively" meaning "if everyone did it."

Per the Constitution, Article I, Section 8:
[The Congress shall have power] To regulate commerce with foreign nations, and among the several states, and with the Indian Tribes;

Seems to depend on what the meaning of the word "regulate" is.

1. to control or direct by a rule, principle, method, etc.

2. to adjust to some standard or requirement, as amount, degree, etc.

Posted by: johngalt at August 26, 2010 3:26 PM

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:
[T]he text of the Privileges or Immunities Clause . . . command[s] that “[n]o State shall . . . abridge” the rights of United States citizens . . . the Clause establishes a minimum baseline of federal rights, and the constitutional right to keep and bear arms plainly was among them.

The rationale didn’t carry the day, but many legal commentators were thrilled by Justice Thomas’s concurrence. “He’s sticking with the text of the Constitution,” said Georgetown law professor Randy Barnett, to the Law Blog. “At the same time, nobody voices disagreement with Justice Thomas. And that’s because they can’t.”

It also explains the arguments and methods of 14th Amendment Incorporation in words a drop out hippie guitar player can understand.

Hat-tip: Instapundit

Posted by John Kranz at 10:15 AM | Comments (4)
But johngalt thinks:

This is a great place for me to express how much relief I feel to be able to leave the coverage of 2nd Amendment issues in the more capable hands of someone other than myself. (At least here on ThreeSources.) Justice Thomas is most certainly a hoss, but not the only one.

Posted by: johngalt at June 30, 2010 2:49 PM
But Perry Eidelbus thinks:

I like Thomas' attempt to reason, but I have three problems with it. First, it justifies my dislike of codified law: justice is no longer a matter of right and wrong, but what's codified and interpreted.

Second, and this is more with Jones, citing the 14th Amendment (anything beyond the original 10) is actually not being an originalist, but a textualist. There is a clear difference between the two. The 14th Amendment was contrary to the Constitution's original intent, which was that people were citizens of their states or of the "United States" (meaning parts of the United States not part of any state, like D.C. and territories, where the federal government had jurisdiction). It wasn't until the 14th that Congress had clear authority over citizens of the several States, and companies that did not participate in interstate commerce. This was the gateway to federal taxation of individuals, of federal control of companies.

Third, the "privileges and immunities" clause is erroneous at best in what it attempts to protect. In a century, the philosophy of the American Revolution had been lost. Very well, so "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" -- but wait, what are those, precisely? They're things that are given to you by government. Rights are not given. You have them, end of story. Therefore, the right to keep and bear arms is not a "privilege" nor an "immunity."

"But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause."

If Thomas had based his opinion that gun control is depriving people of their right to liberty and property, and the right to life in the case of individuals who purchase guns for self-defense, then I'd have been impressed.

Barnett's a good guy, but IMO he doesn't go far enough. (That's just the nature of the anarchist: everyone who isn't is not sufficiently extreme, by definition.) When I met him not too long after R. v. G., he disagreed with my comment that he was a pallbearer for the 10th Amendment (I believed in the Constitution then), and he also disagreed that ultimately it takes only five black-robed tyrants to decide the course of this country. But what was the Kelo case, then, if not five people who asserted their will over 300 million?

Posted by: Perry Eidelbus at July 1, 2010 1:58 PM
But jk thinks:

Perry, I was spellchecking my response when my computer died (yes, it was really that good).

I am very sympathetic to your "first ten" argument. The original doc and the Bill of Rights is a better governmental blueprint than what we got.

The problem is the lack of #13. You can say that is an historical anomaly, but I am not certain. Researching a book I hoped to write (and may someday) I read pretty heavily in antebellum politics and jurisprudence.

I'm convinced that slavery is more than a blot on the Constitution; it truly is more along the lines of original sin. The Fourteenth is our atonement and repentance.

I've long thought you could rewrite the 14th and somehow fix it. But I don't believe that anymore. Taney's majority opinion in Dred Scott v Sandford was perfectly rational (if in dicta) in a "first 12" Constitutional order. It required the 14th to right it and us to live with the consequences.

Posted by: jk at July 3, 2010 10:57 AM
But Perry Eidelbus thinks:

"The problem is the lack of #13."

Oh, definitely. That's why a literal "originalist" intent necessarily sanctions slavery. That's no small part of why my friend Billy Beck says the Constitution is nothing like the Declaration of Independence. And he is correct.

And yes, even Jefferson owned slaves. However, I look to his words as things he aspired to live up to but could not, being a product of his time.

So what's the solution, to accept the 14th, which "guarantees" slaves' liberty at the cost of enslaving everyone to the federal government? And as good as it seems to some, it was rammed down the southern states' throats (read up on the post-war military occupation when they refused to ratify it). Or do we recognize that rights do not need to be codified in law?

"We hold these truths to be self-evident..." is what made the American Revolution so distinctive. Not "Our laws declare..." or "We lay down these truths in our laws," in the style of the French "Revolution" that traded one master for others.

Posted by: Perry Eidelbus at July 7, 2010 11:26 AM

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."

Furthermore, nothing in the plurality opinion by Justice Samuel Alito cast any doubt on Justice Thomas's analysis. Instead, in three terse sentences, Justice Alito simply "decline[d]" to revisit Slaughter-House or even address the original meaning of the Privileges or Immunities Clause.

Justice Thomas's analysis summarizes and reflects a consensus of legal scholarship that the Privileges or Immunities Clause does protect at least the rights enumerated in the Bill of Rights against state interference. Because his interpretation of the clause was necessary to reach the outcome in McDonald v. Chicago, it is now very much alive. Put another way, there is no longer a majority of the court willing to use the Due Process Clause in a case in which the Privileges or Immunities Clause is the right clause on which to rest its decision.

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.

Posted by John Kranz at 12:00 PM | Comments (0)

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.

I have to hat tip and correct Professor Reynolds, however. He asks "who gives up a Supreme Court seat to run for President?" I thought I remembered, and the story checks out:

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.

Herbert Hoover, who had appointed Hughes' son as the Solicitor General in 1929, appointed Hughes as the Chief Justice of the United States in 1930, in which capacity he served until 1941.

Posted by John Kranz at 6:52 PM | Comments (0)

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.

Posted by John Kranz at 2:35 PM | Comments (0)

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.

Posted by John Kranz at 7:35 PM | Comments (0)

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.

Posted by Boulder Refugee at 3:35 PM | Comments (2)
But jk thinks:

The Refugee accurately states my view of Justice Sotomayor. I think President Obama is betting that her charm and her aptitude in faculty politics make her an effective advocate for progressive positions.

Will she be a Frankfurter or Brandeis that truly leads, or a Souter who votes? I think time will tell.

I certainly don't like her positions on Executive Power, but elections have consequences, and I am unlikely to appreciate the jurisprudence of anyone the President is apt to pick. Kagen's a good pick and not worth obstructing.

Reason Magazine points out that a confirmation hearing is a great opportunity to establish clear differences even if votes are not there to derail a pick.

Posted by: jk at May 11, 2010 4:30 PM
But Boulder Refugee thinks:

Thank NED the conservatives defeated Harriet Miers! Can you image the Court's direction with her instead of Alito?

Posted by: Boulder Refugee at May 11, 2010 10:42 PM

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
Posted by John Kranz at 5:02 PM | Comments (0)

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.

Posted by John Kranz at 4:47 PM | Comments (7)
But jk thinks:

Not spontaneous order, tg, "Tragedy of the Commons."

Posted by: jk at May 10, 2010 6:21 PM
But T. Greer thinks:

Mate, those two concepts can be used to explain the same thing. Nobody said that commons was bereft of spontaneity. Or order, if you give it long enough.

Posted by: T. Greer at May 10, 2010 9:54 PM
But jk thinks:

Not as I use them. Spontaneous order emerges from the pricing mechanism when property rights are protected. The tragedy of the commons emerges where there are no property rights.

I love the "free" YouTube service, but the comment section lends itself to pollution.

Posted by: jk at May 10, 2010 11:22 PM
But T. Greer thinks:

Eh, fair enough, you can define things as you will. Can't hold a candle to that.

But you know, property rights are hardly organic. They are planned human inventions, backed up by un-Spontaneous organizations. Like bankruptcy court. ^_~

Posted by: T. Greer at May 11, 2010 12:46 AM
But jk thinks:

In my defense, I don't think I am calling a tail a leg. Those terms have currency in the liberty-theory-economics community pretty much as I use them. I may be accused of using a jargon definition over common english usage.

Property rights are part of birthright liberty. Tell John Locke and Thomas Jefferson that they are a social construct. Where they are not protected, say in email bandwidth or YouTube comments, no mechanism imposes order on the resource's use.

Posted by: jk at May 11, 2010 11:14 AM
But T. Greer thinks:

No, you are totally fine, JK. It is only my fault that I have read more works on evolution than I have read books by Hayek, thus I generally work with a different set of assumptions when I hear here the word.

And to be clear - nobody says the things that make liberty possible are not social constructions. That something is made by man does not make it less valuable.

Posted by: T. Greer at May 11, 2010 11:03 PM

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.

Posted by John Kranz at 10:54 AM | Comments (0)

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]
Ilya Somin takes the side I imagine most ThreeSourcers felt (and we'll all remember to our deaths exactly where we were and what we were doing when we heard the news that Justice Stevens was retiring...)

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:
So if you enjoy your iPod and your uncensored Internet access, you have Justice Stevens to thank. Best wishes for a long, comfortable, and well-deserved retirement.

"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.

Posted by John Kranz at 6:45 PM | Comments (0)

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.

Some hope:
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.

Posted by John Kranz at 2:49 PM | Comments (2)
But johngalt thinks:

Was the Heller v. D.C. ruling not considered to have gone largely against precedent? And that precedent was more voluminous than the crap* cited above.

*Working my way up, at least in public, to the f-bomb.

Posted by: johngalt at March 24, 2010 3:24 PM
But jk thinks:

Lately, it's more of a firecracker in our house...

I am speaking way above my pay grade here, but I do not think Heller was a real stare decisis buster. Because they were not tackling incorporation as DC not a state, it did not run under the worst precedent. McDonald v Chicago will tackle some of those.

(The comments above were written by a political hack, not an attorney, and anyone using them for purposes beyond political hackery is cautioned...)

Posted by: jk at March 24, 2010 3:31 PM

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!

Posted by John Kranz at 10:38 AM | Comments (4)
But Perry Eidelbus thinks:

"Who made them the boss of me?"

Liberals (the modern incarnation, not the classic form) are not just hypocritical, but inherently so. Who made them the boss of me, that they can steal my property to give away?

How many liberals still believe it was "the conservative Supreme Court" who decided it was perfectly fine for New London to condemn and sell the property of Kelo and others?

Posted by: Perry Eidelbus at February 19, 2010 11:43 AM
But jk thinks:

We're on the same page, Perry. For the record, here is the respone I left:

After surviving Kelo v New London, Raich v Gonzales, and McConnell v FEC I confess that I am enjoying seeing my progressive friends discomfited by SCOTUS. (Tag, lefties -- you're it!)

And yet, looking long-term, the legislative branch has been the best protector of our liberties throughout the country's history. Many notable aberrations, but they get the prize.

(And the picture is pretty clever!)

Posted by: jk at February 19, 2010 11:59 AM
But Boulder Refugee thinks:

They forgot to label the liberal justices with "SEIU, NEA, ACLU, AFL/CIO, NOW, Planned Parenthood," etc. etc. Major oversight.

Posted by: Boulder Refugee at February 19, 2010 2:49 PM
But Lisa M thinks:

Refugee, I was actually thinking GE, ABC/Disney, CNN, Knight Ridder, Associated Press, CBS. But I like yours better.

Posted by: Lisa M at February 19, 2010 8:04 PM

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.

Posted by John Kranz at 11:03 AM | Comments (0)

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?

I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.

Posted by Boulder Refugee at 11:16 AM | Comments (1)
But johngalt thinks:

He's right. Before you know it there will be such a surplus of lawyers that they'll start inventing specious things to sue and defend people over. Oh, wait a minute...

Posted by: johngalt at October 5, 2009 1:32 PM

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.

But weeds have.

Posted by John Kranz at 8:02 PM | Comments (0)

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.
Posted by John Kranz at 11:08 AM | Comments (0)

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?


Posted by John Kranz at 12:03 PM | Comments (0)

June 29, 2009

Ricci Overturned!

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.

Posted by John Kranz at 12:01 PM | Comments (0)

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."

These complex institutional arrangements raise insuperable difficulties for any simple program of strict construction that stresses the first point to the exclusion of the second. A faithful interpretation of those clauses that limit government power in broad terms--e.g. the Bill of Rights--cannot be read to hold that judicial review only comes into play in the most extreme cases.

Libertarians, says Epstein, needed activism in Kelo.

Superb. Hat-tip: Instapundit

Posted by John Kranz at 11:57 AM | Comments (3)
But Boulder Refugee thinks:

Sotomayor cannot be considered relative to finding a more qualified constructionist as that is a given. It also is not in the offing.

First, Sotomayor will not be defeated because she is too liberal. If she is defeated, it will be because she becomes unacceptable to her own party (think Harriet Miers). The reasons for Dems to defeat her would likely be pluses in my column.

The bigger question regards who we would get instead if she were defeated. Rumor has it that she has relatively moderate views on abortion and property rights. That alone would put her ahead of Souter. Empathy when rendering decisions is not exactly new to this Court, nor the Court over the past century. A thorough examination is in order, but it's entirely possible that a second nominee would be far worse, and the second nominee is almost undefeatable politically.

Posted by: Boulder Refugee at June 3, 2009 5:52 PM
But jk thinks:

You're singing my song, br. A) We can't lose, nobody is worse than Justice Souter B) We can't win; there's no votes to stop this "historic" nomination.

I'll not join you on Judge Sotomayor's being moderate on property rights. In Didden v. Village of Port Chester she shows an expansive view of the Takings Clause that would make Justice Souter blush.

Even without a serious shot at stopping the nominee, put me down with those who feel we could sharpen and portray a serious opposition to "trial by empathy" and that that is a pretty good use of time.

My final silver lining: I hope that she is not a jurisprudential star that can pull the court farther to the left than her own vote. Better to get a Democrat Harriet Meiers than a Justice Brennen, Douglas (wasn't he that guy in "green Acres?") or Frankfurter.

Posted by: jk at June 3, 2009 6:29 PM
But Perry Eidelbus thinks:

Don't get me started on her ruling against Didden. Port Chester isn't next to me, but it's in my county.

For such rulings, judges should be tarred and feathered, then expatriated over the Pacific at 40,000 feet without a parachute.

Posted by: Perry Eidelbus at June 4, 2009 9:50 AM

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.

Posted by JohnGalt at 1:54 PM | Comments (0)

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.

But these men saw themselves as judges first and ethnic representatives second. Judge Sotomayor's belief is that a "Latina woman" is by definition a superior judge to a "white male" because she has had more "richness" in her struggle. The danger inherent in this judicial view is that the law isn't what the Constitution says but whatever the judge in the "richness" of her experience comes to believe it should be.

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.

Posted by John Kranz at 11:18 AM | Comments (5)
But johngalt thinks:

While I privately described Judge Sotamayor as "a disaster" prior to her nomination I'm actually pleased with her nomination. (We'll see how pleased I am if she is actually confirmed.)

President Obama has serenaded us for months that he wants a Supreme Court justice who considers the practical realities of day-to-day life when forming her legal opinions. It's as though his mind was set long ago to nominate Sotamayor and he's been trying to soften public opinion to the notion of subjective legal justice.

While Republicans on the Judiciary Committee may be loathe to oppose a hispanic for political reasons, they owe it to our civic discourse to ask her some objective questions about her judicial philosophy. There should be no harm in this. After all, in the hue and cry about "litmus test" questions on specific issues we were lectured that questions should always be general in nature. This plays right in to a discussion of the idea that our nation should be ruled by its laws and not ruled by men - or by wise latina women.

Posted by: johngalt at May 27, 2009 1:52 PM
But Keith thinks:

Strangely, I wasn't under the impression that the Supreme Court was the place where we're supposed to have a cross-section of America and all its component, balkanized identity groups represented. I thought the place where the population of America was supposed to be represented was the House of - (wait for it) - Representatives. I thought the Supreme Court was the place where we were supposed to to put the nine smartest, wisest, most qualified people at reading the Constitution and applying its words to real-life situations. Congress was supposed to take a cross-section of the fat part of America's bell curve; the Supreme Court was supposed to be to upper far end of it.

But, I suppose, now that we live in a post-Constitutional America, where the government suddenly has the right to take over whole industries, hire and fire corporate CEOs at will, erase decades of contract law and bankruptcy law at a whim, and even decide who keeps and who loses auto dealerships like a gigantic spoils system, I should learn to accept that it's more important to pander to our identity groups (or pretend to in order to install the one who will reliably cough up the Prezznit's desired decisions) than to find the most brilliant parsers of the law of the land. Since we don't actually seem to have a meaningful Constitution any longer, finding a justice who can apply is would be pretty moot anyway. Why not decide cases based on our subjective life experiences?

Posted by: Keith at May 27, 2009 1:58 PM
But Keith thinks:

Every Senator who waxes prosaic about how wonderful it is to be supporting Sotomayor because of her ethnicity had better be able to explain why Miguel Estrada got blocked from the DC Circuit.

Posted by: Keith at May 27, 2009 2:04 PM
But jk thinks:

I have a calm, cool head much of the time Keith, but the discrepancy you highlight has made me madder than a wet wasp at a kid's party. The Senate Democrats savaged a brilliant jurist with just as compelling a life story as Judge Sotomayor. After three years, he was forced to withdraw his nomination. Now they and Obama claim to be breaking barriers for the Hispanic community.

You'll never hear that anywhere but here (or an equivalent wacko site). The myth will live on.

Posted by: jk at May 27, 2009 3:07 PM
But Keith thinks:

Sorry, jk. If it's any comfort, you can be pretty sure I'm as aggravated as you are if I'm making a comment in the form on one growling sentence instead of my usual random speechifying.

Posted by: Keith at May 27, 2009 7:21 PM

April 30, 2009

Obama SCOTUS Pick

How about Justice Arlen Specter?

... awesome.

Posted by AlexC at 10:41 PM | Comments (1)
But jk thinks:

We could (and likely will) do worse than Justice Specter. Jonah Goldberg calls him "the man who voted 'Glenfiddich' on Impeachment (the best bit of political punditry of all time).

In the same vein, I was thinking of Secretary Clinton's husband. Could do worse.

Whomever we get, he or she cannot possibly be worse that Justice Souter. Nothing in the world to lose here and, we can hope, President Obama might pick a Souter of his own.

Posted by: jk at May 1, 2009 5:51 PM

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.

McCain-Feingold is a frontal assault on political speech, and President Bush's decision to sign it while claiming to dislike it was one of the worst moments of his eight years in office. Citizens United gives the Justices a new opportunity to chip away at this attack on the First Amendment, and even better if they use it to declare the whole thing unconstitutional.

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.

Posted by John Kranz at 4:26 PM | Comments (0)

March 12, 2009

Constitutional Taxation

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.

The main problem which the SUBPOENA seeks to solve is to confirm, once and for all, the apparent absence of any federal statutes which create a specific liability for income taxes imposed by subtitle A of the Internal Revenue Code.


The absence of any statutes creating a specific liability for subtitle A income taxes means, quite simply, that federal income taxes are totally and completely voluntary, in the common everyday meaning of that term. Liability only begins when Form 1040 is signed.

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.

However, the Internal Revenue Service (“IRS”) has never created an official form for the WEC.

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:
This Racket is Busted


Paul Andrew Mitchell
Private Attorney General

All Rights Reserved without Prejudice

It’s time to dismantle the Internal Revenue Service. This organization has outlived its usefulness.

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.

Guess what?

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
Webmaster of the Supreme Law Library on the Internet:

See also:

“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”

# # #

Posted by JohnGalt at 3:06 PM | Comments (8)
But jk thinks:

I s'pose. I know a guy (and I think you do, too) who makes an impassioned and reasonable sounding case that he does not have to pay taxes because of a non-capitalized 's' in State in the 14th Amendment.

So, that works just fine until he gets a job and has to explain it to HR that "he doesn't need to fill out a W-4 because he is a sovereign citizen of the State of Colorado." I just think this will land you in the same (rhymes with 'jackpot') place.

The sad part of my disbelief, though, is the alacrity with which our State and Federal legislators would rectify any situation that threatened incoming revenue. I don't think that a Congress that just passed a trillion or two in spending last month would allow a return to 19th Century funding.

Posted by: jk at March 13, 2009 10:38 AM
But johngalt thinks:

I gave a few minutes thought to the consequences of a tax that everyone has to pay. Since one can't get blood from a turnip and government spending can't stop on a dime, the deficit would be monumental until outflows could be made to match inflows. It would be chaotic - perhaps even disastrous (particularly in urban areas.) But it would be RIGHT.

Posted by: johngalt at March 13, 2009 11:30 AM
But jk thinks:

Stop me if I'm just being argumentative. But I think you're falling into the Libertarian trap of "misoverestimating" your electoral support.

Again I suggest that your most optimistic scenario is realized. Justice Ginsberg, writing the concurrent opinion of the court's 8-0 majority (Associate Justice Scalia was hunting with Dick Cheney) vacates the 16th Amendment.

You and I would cheer; Rep Ron Paul and Jeff Flake would jockey for position; The Fair-taxers would fill SPAM-filters everywhere...

...and the rest of the world would act as quickly as it could to overcome this little procedural obstacle. This could threaten health care to children! The AARP would mobilize 60 million hotel-discount card holders with a TV blitz. In the end a crushing majority would line up to get back to the status quo ante before their checks were delayed.

Sad, perhaps, but I cannot look at any recent election cycles and see a desire for a do-over (maybe on "Dancing with the Stars...")

Posted by: jk at March 13, 2009 2:31 PM
But johngalt thinks:

"... this little procedural obstacle."

Are you suggesting that the Constitution of the United States could be amended by an act of congress, or of the president?

I suppose you have cause there because that's what's been done in the case of the 16th amendment, and others. I'm afraid the constitution has become nothing more than a rallying cry for freedom-loving Americans. It sure doesn't stop our government from doing what it damn pleases.

Posted by: johngalt at March 17, 2009 1:26 PM
But jk thinks:

I'm suggesting that they'll do whatever it takes. If they can ignore it they will, but if they have to, they will break the world land speed record in ratifying a new amendment. They could do it in three days, with very little objection.

Posted by: jk at March 17, 2009 1:54 PM
But johngalt thinks:

Maybe I'm just a rube. Two-thirds of the members of both houses of congress, then majority vote by legislatures of three-fourths of the states seems a tall order to me. Three days? Really?

And a separate question: You really don't think we could muster 34 senators OR 145 congressmen to keep America as the world's sole Republic?

Posted by: johngalt at March 17, 2009 6:08 PM

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.

Stevens is right. Who are they trying to kid? And yet a razor-thin majority of the deeply divided justices expect the American people to swallow this hoax. Supporters of this so-called right to keep and bear arms claim that it dates to 1791. (That faux precision is a nice touch--not 1790 or 1795 but 1791.) A bunch of dead white males are supposed to have gotten together and assembled something called a "bill of rights." The more extreme exponents of this view claim that the so-called bill limits the tools available to elected officials not just with regard to firearms but a whole host of other things: "freedom of religion," "freedom of speech," "cruel and unusual punishment," etc., etc.

Delectable! There's more, if you care to Continue Reading...

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.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing" approach. The very enumeration of the right takes out of the hands of government--even the Third Branch of Government--the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all.

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."

Posted by JohnGalt at 6:52 PM | Comments (0)

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

Unhappy Anniversary

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.

Posted by John Kranz at 11:35 AM | Comments (2)
But Perry Eidelbus thinks:

Think on this: with Bork on the court, the Kelo ruling would have been on the side of freedom.

Posted by: Perry Eidelbus at October 23, 2007 4:11 PM
But jk thinks:

It's difficult (and depressing) too imagine all that would have been different had we been ruled by the American Constitution for the last 20 years.

Posted by: jk at October 23, 2007 5:37 PM

June 25, 2007

Free Speechifying

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.

It's funny how conservatives are concerned about the free speech rights when money and power are involved.

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.

They showed no such modesty. In Massachusetts v. Environmental Protection Agency, a narrow majority managed to diminish the rules of judicial standing, rewrite the definition of "pollutant" under the Clean Air Act, and dramatically curtail the decision-making authority of the executive branch. And judging from Justice John Paul Stevens's 5-4 majority decision, they did so because the five Justices are personally anxious about rising temperatures. As Justice Antonin Scalia noted in dissent, the "Court's alarm over global warming" has led it to substitute "its own desired outcome" for the EPA's judgment.

The case goes back to 1999, when activists frustrated that Congress hadn't enacted a global warming program demanded that the EPA use its Clean Air Act power to unilaterally regulate CO2 "pollutants" from cars. The EPA declined to do so in 2003, claiming it lacked authority under the Clean Air Act to regulate CO2. The greens and several states turned to that mecca for frustrated liberal policy makers -- the courts.

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."

The Court used all of this not-so-inadvertent opining to justify its conclusion that CO2 is indeed a "pollutant." The Clean Air Act requires the EPA to regulate "any air pollutant" from cars that might "endanger public health or welfare," though the majority took the widest view that the definition includes any "physical, chemical" substance that goes in the air. (Next up: oxygen.) Justice Scalia poked fun at this reasoning, noting Webster's definition of "pollute" is "to make or render impure or unclean" -- which might apply to sulfur dioxide or other dirty gases but not a product of human respiration that resides in the upper atmosphere.

In any case, isn't this something for Congress to decide? Global warming was already a hot topic in 1990, when Congress last amended the Clean Air Act. Yet it declined to enact amendments that would have forced the EPA to set CO2 emissions standards. The Members have since been engaged in periodic brawls over whether and how to regulate CO2, but, voila, the High Court has now declared that it shall be so.

The ruling means the EPA must regulate automobile CO2 emissions unless that agency can show the science of global warming, or the potential harm it may cause, are too uncertain to justify action. The Bush EPA will no doubt be sued whatever it does. Congress will also dive in with more regulation, if only to clear up the legal uncertainty.

Perhaps most distressing is the way the majority made a hash of traditional "standing" doctrine, which determines when a plaintiff has a right to sue. To justify its global warming afflatus, the Justices simply asserted that the Massachusetts coastline faces imminent threat from rising seas. Not even Mr. Gore goes that far. But the Court cites climate models to suggest future harm in order to claim the threat of immediate injury, and thus standing by the Bay State.

"Aside from a single conclusory statement, there is nothing in petitioners' 43 standing declarations and accompanying exhibits to support an inference of actual loss of Massachusetts coastal land from 20th century global sea level increases," writes Chief Justice John Roberts in his dissent. "It is pure conjecture."

And done for the purpose of pure policy invention. Standing is one of the few self-restraints on the power of the federal courts, and it is a far too frequent habit of the current Supreme Court to view its own power as unlimited. By diluting the standards for standing, the High Court creates a highway by which judges can speed past the political branches and play an ever larger role in American public life.

It is also worth noting that this is at least the third case in two years in which Justice Kennedy has provided the fifth vote for a decidedly activist liberal majority. Someone recently quipped that Justice Stevens considers it his late life's work to compete for the jump ball that is the jurisprudence of Justice Kennedy, and he seems to be winning most possessions.

(Copyright 2007, Dow Jones & Co. -- stolen without permission).

Posted by John Kranz at 11:43 AM | Comments (2)
But mdmhvonpa thinks:

I suppose somebody has to be the Cuffy Meigs of our times ...

Posted by: mdmhvonpa at April 3, 2007 12:10 PM
But johngalt thinks:

This SCOTUS decision is Step 8 in the Road to Serfdom pamplet linked in the previous post.

Thanks for the text JK.

Posted by: johngalt at April 3, 2007 3:39 PM

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. - Gimme an 'S': The High Court's Grammatical Divide

Justice Clarence Thomas, writing for the Court (and joined by Chief Justice John Roberts Jr. and Justices Samuel Alito Jr., Anthony Kennedy and Antonin Scalia), concluded that the Kansas statute was not unconstitutional. In reaching this conclusion, Thomas repeatedly referred to the relevant law as Kansas' statute.

In response, Justice David Souter wrote a dissent that was joined by Justices Stephen Breyer, Ruth Bader Ginsburg and John Paul Stevens. The dissent revealed Souter's bitter disagreement with both the substantive conclusion of the majority and the grammatical philosophy of the opinion's author. Whereas Thomas apparently believes that whenever a singular noun ends in "s," an additional "s" should never be placed after the apostrophe, Souter has made equally clear his conviction that an "s" should always be added after the apostrophe when forming a singular possessive, regardless of whether the nonpossessive form already ends in "s."

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

Making Lemons

John Hawkins @ Right Wing News wants to make lemons of this morning's Gitmo SCOTUS decision.

    So we can't put them in front of a military tribunal, but we can still hold them indefinitely.

    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 Supreme Court had put the Texas cases on the fast track, scheduling an unusually long two-hour afternoon session.

    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?

Posted by AlexC at 2:45 PM | Comments (5)
But Silence Dogood thinks:

Ok, I gotta jump in with a side comment. Speaking of the Supreme Court, how about the first major decision of the new Roberts Court? The conservatives were on the losing 6-3 end of trying to uphold the Attorney General's power to supercede Oregon's right to die statute. What? The conservative non-activist side is against federalism and directly for challenging a state law by spurious use of anti-drug trafficking laws? How is this either conservative or non-activist?

Posted by: Silence Dogood at March 2, 2006 3:41 PM
But jk thinks:

Same score as those who blew off Federalism in Raitch v Gonzales, but not the same people.

There are very few pure Federalists (I would cite Ramesh Ponnuru of National Review). I fear most others use it when it serves their interests.

I wish it were more firmly followed as a guiding principle but I have learned to be disappointed. Oregon v Gonzales is a blow for Federalism only if you ignore Raitch.

Posted by: jk at March 2, 2006 7:51 PM
But AlexC thinks:

Here's an article from NRO..

From the summary, it was more about the Controlled Substances Act and use of drugs regulated by it.

The conclusion..
"Gonzales v. Oregon is one of the most important public-policy cases to come before the Supreme Court in recent years. But we should be clear about what it involves: It isn't about whether states have the power to legalize assisted suicide. That issue is not before the court. Nor is it a dispute over "states' rights," as apologists for assisted-suicide assert. Rather, the Court's ruling will determine whether the federal courts will resurrect John Calhoun's long-discredited doctrine of state nullification by permitting states to opt their citizens out of generally applicable regulations with which they disagree."

Posted by: AlexC at March 2, 2006 8:08 PM
But Silence Dogood thinks:

Maybe you both missed my main point, that lately "judicial activism" is more about what you are being active about than whether you are being active. I would describe judicial activism as inserting judicial power via interpretation of laws rather than allowing the legislative branch (as our elected representatives) to pass laws that govern our interactions. In this case I believe it would be perfectly applicable for the US Congress to pass a federal law banning assisted suicide. This to me would be the proper way to supercede a state law, rather than using an interpretation of the Controlled Substances Act. (which was put in place to control trafficking) The Constitution seems very clear that those powers not granted to the federal government are granted to the states. Additionally how do you not classify the Attorney General's action as executive activism as he too is interpreting laws to reach for the conclusion he wants. Whenever I hear conservatives wail for "strict constructionist" judges rather than "activists" I say bring 'em on. Let see how pleased they are if those judges really do act as constructionists and do not promote the conservative active agenda.

Posted by: Silence Dogood at March 3, 2006 12:48 PM
But johngalt thinks:

I would have to agree with Silence on this one. I don't know any more details on this ruling or on Raich than I've read here, but to claim that justices ruling in favor of christian morality in clear contravention of individual rights are not activists is laughable.

Posted by: johngalt at March 3, 2006 3:34 PM

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...

    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.

Jeff Goldstein at Protein Wisdom got a copy of Justice Alito's first day's itinerary.

    7:53: Called his temporary clerk; citing “inherent authority” given the executive under the Constitution, demanded work begin on compiling a database on “non-traditional uteri”—defined by Justice Alito as “those potential gestational chambers that are used for purposes that do not include GOD’S MANDATE that we ‘be fruitful and multiply.’” This includes such abominations as the introduction into the giddyslit of synthetic or organic objects that have the potential to do grievous damage to future conception(s).

    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.

Posted by AlexC at 12:07 PM | Comments (2)
But jk thinks:

My inner political hack must point out the obvious: it ends with a big win for President Bush. Roberts and Alito remain stellar picks and constitute a campaign promise kept.

Posted by: jk at January 31, 2006 3:51 PM
But AlexC thinks:

It's beginning already! Cindy Sheehan was arrested at to SOTU this evening.

Posted by: AlexC at January 31, 2006 10:01 PM

January 26, 2006

Alito Filibuster

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.

    Confirmed this info. Kerry's office says he is initiating a filibuster
    . . . 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.

Posted by AlexC at 4:19 PM | Comments (3)
But jk thinks:

This man was almost President. I hope this is not true, even though it might be a great thing for the GOP.

Posted by: jk at January 26, 2006 4:26 PM
But jk thinks:

Here we go again. Dear Senator Salazar:

I was disappointed to learn that you were voting against this nominee.

I hope that you do not join a filibuster. I rarely suggest that someone looks to Senator Byrd for guidance, but he is right about the politicization of the confirmation process and right that integrity and qualifications matter.

Judge Alito clearly has a majority of the US Senate, including three Democrats as i write. Please honor your "gang of 14" pledge and do not join a filibuster against this nominee.

Posted by: jk at January 26, 2006 4:47 PM
But jk thinks:

Byron York at the Corner thinks it's a bit of harmless Kerry weaseling

From a Senate source: Kerry's call for a filibuster comes after his leadership, that is, Senate Minority Leader Harry Reid, decided there won't be one. In other words, Kerry was making a brave, Kos-friendly pronouncement in the total confidence that a filibuster will never happen. And now, word is, he is off to Davos to continue what some Republicans are calling a "filibluster."

Posted by: jk at January 26, 2006 5:06 PM

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.

Meanwhile, Congress might want to bear all this in mind as it attempts to atone for its own recent ethical lapses by enacting lobbying "reform." The practical effect of any such legislation will be to further curtail political free speech, restricting the rights of citizens to petition their government. If this case shows anything, it's that there is no such thing as "good" restrictions on free speech.

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

Reprehensible Club

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.

According to the online membership directory of the Owl Club, the Massachusetts Democrat updated his personal information -- including the address of his home, which is in his wife's name -- on Sept. 7.

The club has long been reviled on campus as "sexist" and "elitist" and, in 1984, was booted from the university for violating federal anti-discrimination laws, authored by Mr. Kennedy.

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: email & Taranto

Posted by John Kranz at 3:41 PM | Comments (5)
But AlexC thinks:

All four readers? You mean "frequent authors!"

Posted by: AlexC at January 13, 2006 4:31 PM
But jk thinks:

You're right -- make that "five."

I did campus radio once. The same deal, you never really know who's listening...

Posted by: jk at January 13, 2006 4:59 PM
But Silence Dogood thinks:

I don't know JK, takes a lot to stun me these days, even given my own dislike of Sen. Kennedy. Maybe its the 6 years of President Bush's "simple Texas boy" shitck and his rantings against the "East Coast liberal establishment". Yeah, who could trust those pompous children of priviledge attending Andover and Yale....

Skull and Bones, they admit women?

Then again, my Dad's a Mason (queue spooking music here)

Posted by: Silence Dogood at January 14, 2006 4:16 AM
But johngalt thinks:

The voters of Massachusetts endure the hypocrisy and shame of having this filthy little man as their Senator for one reason: He has pull.

When the power to distribute the wealth of others is stripped from government then men like Kennedy will take refuge in the only place they can still prosper: College campuses.

Posted by: johngalt at January 14, 2006 11:27 AM
But jk thinks:

Silence, my problem is not a general personality comparison between Senator Kennedy and President Bush (though I have strong feelings there), my point is the amount of time in the confirmation hearings that Sen. Kennedy spent in righteous indignation about Judge Alito's membership in CAP. Listening to that all week and reading this was a little much for me to bear.

Posted by: jk at January 14, 2006 11:46 AM

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.

Hat-tip: Insty

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.

Posted by John Kranz at 3:32 PM | Comments (1)
But AlexC thinks:

Long time Threesources readers know that I'm no fan of Senator Specter, but when he and Senator Kennedy (D-Tanqueray) were arguing about some letter that Kennedy wrote, it's hard to say he didn't put Kennedy back in his place. That felt pretty good. Finally!

Posted by: AlexC at January 12, 2006 5:11 PM

January 11, 2006

Kennedy & Alito

The hits just keep on coming.

    During an emotional barrage of questions about 20-year-old written statements by Judge Samuel Alito, Sen. Edward M. Kennedy, D-MA, today inadvertently asked the Supreme Court nominee if he “believes in the principle of one fetus, one vote.”

    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 don't think it's appropriate or useful to look to foreign law in interpreting the provisions of our Constitution," Judge Alito said in response to questions from Senator Tom Coburn, Republican of Oklahoma, in the third day of the judge's confirmation hearings before the Senate Judiciary Committee.

    "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 Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution...

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.

Posted by AlexC at 2:45 PM | Comments (2)
But johngalt thinks:

Bravo and well done, AlexC. Perfect in every detail, right down to the "little a" atheist reference.

I suspect that Alito agrees with us and that this was a case of imprecise language. But Rand taught to take words precisely and literally. I hope that some Republican senator on the committee will ask the nominee about this as a follow-up question.

I propose that you suggest it to one of them!

Posted by: johngalt at January 11, 2006 3:28 PM
But jk thinks:

Birthright liberty is the foundation of my belief system. I bore people with my three pillars of law, economics and skepticism, but insist that they are rooted in the foundation of Lockeian, Jeffersonian, birthright liberty.

So we all agree but I am not taking points off. Judge Alito has suffered the most grueling and humiliating three day job interview I can imagine.

The Democrat callers to C-Span say "He looks nervous." I would have been in the hospital yesterday. I'll give him this one.

Posted by: jk at January 12, 2006 1:30 PM

Reply From Senator Salazar

Dear John:

Thank you for contacting me regarding the nomination of Judge Samuel A. Alito, Jr. to be the next Associate Justice on the United States Supreme Court.

President Bush nominated Judge Alito on October 31, 2005. Since his nomination, Judge Alito has visited with members of the Senate. In addition, the Senate Judiciary Committee has requested more information about Judge Alito in the form of a questionnaire. The Senate Judiciary Committee is currently conducting a thorough examination of his opinions as a judge on the Third Circuit Court of Appeals and of his previous professional experience during his confirmation hearings on Judge Alito's nomination.

I met with Judge Alito to learn more about his background, experience and views. While I appreciated his visit, I still have grave concerns about his nomination. That said, I look forward to hearing more from Judge Alito at these confirmation hearings. Until then, I will continue to carefully review and study his background and record in the manner consistent with the previous nominees. I believe the Senatorial duty of “advice and consent” is not to be taken lightly, especially with nomination to the highest court of the land. I will keep your concerns in mind with respect to this duty in the coming days.

Again, thank you for writing me.


Ken Salazar
United States Senator

Posted by John Kranz at 12:57 PM | Comments (1)
But johngalt thinks:

Five despicable words: "Ken Salazar, United States Senator."

I considered taking the time to call or write Salazar's office but concluded I'd prefer he vote to reject and, as a result, be expelled from office himself in the 2010 election. He's nothing but a proletarian lap dog.

Posted by: johngalt at January 11, 2006 3:25 PM

More Alito

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

Alito Nomination

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.

    Like the bad lawyer he has proven himself to be, [NY Senator] Schumer asked one question too many:

      Q: Does the Constitution protect free speech?

      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.

    SCHUMER: Does the Constitution protect the right to free speech?

    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.

Update #2 The video is available!.
Tip to my co-conspirators at SantorumBlog.

Posted by AlexC at 7:09 PM | Comments (4)
But jk thinks:

Hate to pounce on someone for a slip of the tongue, but my favorite part of the Schumer torture was when he asserted that Plessey overturned Brown v Board.

Posted by: jk at January 10, 2006 7:55 PM
But jk thinks:

I have an unfortunately busy week. I wish I watch them cover to cover. What I saw, Alito comes off VERY well. He is competent and decent and displays an encyclopedic law knowledge.

Remind our Coloradans to send a letter to Senator Salazar, our own Gang of 14 member. You can do it right from his website:

Posted by: jk at January 10, 2006 7:59 PM
But johngalt thinks:

Alito said there is a right to privacy in the Constitution. He cited both the 4th and 1st amendments. This is good.

He said he would "follow the law" but what exactly does this mean when he's sitting in judgment of that very law? This is the only weakness I can point to in his oratory.

Posted by: johngalt at January 11, 2006 12:16 AM
But johngalt thinks:

As for Kennedy, he is clearly senile. The voters of Massachusetts have an inflappable brand-loyalty in political representation. I'm fully convinced a plurality of them would vote for Tookie Williams over Tom Brady if he changed his name to Tookie Kennedy. Well, except for the part about him being dead.

Posted by: johngalt at January 11, 2006 12:20 AM

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

An Extremist!

I'm ready to rumble...

Bush Picks Alito for Supreme Court - Yahoo! News

WASHINGTON - President Bush, stung by the rejection of his first choice, nominated veteran judge Samuel Alito on Monday in a bid to reshape the Supreme Court and mollify his conservative allies. Ready-to-rumble Democrats warned that Alito may be an extremist who would curb abortion rights.

Were the opposition smart, they'd compliment the pick and watch the conservatives worry about endorsements from Ralph Neas and Senator Dodd...

Posted by John Kranz at 10:36 AM | Comments (4)
But johngalt thinks:

I heard a liberal special interest spokesman (pardon me, spokes"person") say that Alito has written that the government "has no business prohibiting ownership of machine guns." I take this to mean the judge disputes the constitutionality of the Federal Firearms Act of 1934 and/or the more pernicious amendment to it in 1986. If so, that's a big mark in the FOR column.

It's going to take a while to get to know this nominee, who was one of the "one percenters" in the GOPUSA poll (below.) So far, though, so good.

Posted by: johngalt at October 31, 2005 2:37 PM
But jk thinks:

It could just be onomatopoeia, but I take it as a good sign that Instapundit links refer to him as "Scalito."

I give deference to other court followers and that guy in the Oval Office, but have not heard anyhing yet to turn me away from this pick.

Posted by: jk at October 31, 2005 5:59 PM
But AlexC thinks:

Finally. A known quantity. Better yet, passed the Senate twice 100-0.

Posted by: AlexC at October 31, 2005 7:28 PM
But AlexC thinks:

"Scalito" doesn't really bother me. But it does someone.

Posted by: AlexC at October 31, 2005 7:29 PM

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%
Judge Priscilla Owen: 12%
Judge Michael Luttig: 8%
Solicitor General Ted Olson: 8%
Judge Emilio Garza: 3%
Judge Edith Jones: 3%
Judge Samuel Alito: 1%
Judge Karen Williams: 1%
Larry Thompson: 1%
Someone Else: 16%

Count me in, though there is nobody on that list that I know whom I would not support.

Posted by John Kranz at 11:22 AM | Comments (2)
But johngalt thinks:

I think this shows that Brown has become a judicial "rock star." When I form a mental image of her confirmation hearings juxtaposed with those of Ms. Miers there's a startling contrast of personality and, dare I say, 'gravitas.'

Let's hope that, just this once, the prez reads the polls.

Posted by: johngalt at October 29, 2005 10:47 AM
But jk thinks:

65 or not, I have to say that I could go for Ted Olsen as well -- and he would be pretty confirmable.

Posted by: jk at October 29, 2005 4:38 PM

October 27, 2005


I'm sure she's a great person, but this is best all around! - Harriet Miers Withdraws Nomination to High Court

WASHINGTON -- President Bush's controversial Supreme Court nominee, White House counsel Harriet Miers, suddenly withdrew her nomination this morning.

The move came after repeated attacks from conservatives worried that she wouldn't be an ally for them on the bench, and from critics across the spectrum about whether the president's long-time friend and personal lawyer -- who had no experience as a judge and little with constitutional issues -- was qualified to serve on the 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.

Posted by John Kranz at 11:23 AM | Comments (1)
But johngalt thinks:

Ding, Dong the Church Lady's Dead!

All hail... Janice, Rogers, Brown.

Posted by: johngalt at October 27, 2005 2:43 PM

October 22, 2005

Three Abstractions

That's Attila's caption to this picture:


As they say, heh.

Posted by John Kranz at 4:06 PM

Miers Withdrawl

Washington Times...

    The White House has begun making contingency plans for the withdrawal of Harriet Miers as President Bush's choice to fill a seat on the Supreme Court, conservative sources said yesterday.

    "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.

Posted by AlexC at 12:00 PM | Comments (1)
But jk thinks:

I hope you are right. Reading Krauthammer yesterday, and Jonah Goldberg today, I really hope that this nomination does not proceed.

I don't smell Rove in this plan because I don't see that it will help the next nominee> Michael Luttig would be greeted with "Why not a woman like that nice Harriet Miers?" and Janice Rodgers Brown will be "why not a moderate like that lovely Ms. Miers?"

Score me on the side that says if Mr. Rove were not preparing for grand juries and stocking up on soap-on-a-rope, this debacle might not have gone down.

Posted by: jk at October 22, 2005 12:33 PM

October 19, 2005

Harsh Medicine

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:
The construction of housing that was large in number, close together, close to the street where there wasn't a place for children to play or really just seemed so compact that it didn't seem like it was planned properly to provide the kind of environment where people could really exist and have much of an existence.

The expansion of eminent domain that led eventually to Kelo came about because the court in decades past decided that combating "urban blight" was a "public use" for which the government could confiscate private property. Miers's rather condescending thought that people in small, densely packed homes don't "have much of an existence" leads one to wonder if, were she on the Supreme Court, she would respect the property rights of those South Dallas residents or others similarly situated.

No word on where she stands on the infield fly-rule or the DH.

Posted by John Kranz at 4:08 PM | Comments (2)
But AlexC thinks:

It's too bad you couldn't launch the pilot episode of "Internecine" this week.

It would have been awesome.

Posted by: AlexC at October 13, 2005 7:50 PM
But jk thinks:

Indeed! But who's on the pro-Miers side? If Hugh Hewitt is busy, we're down to the guy who was dating her...

Posted by: jk at October 14, 2005 2:14 PM

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?"

Dark days.

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.
Shorter Taranto: "Nobody I met at a National Review event likes Harriet Miers." Now that's a revelation.
-- Kurt Brouwer

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

Constitutional Clarity

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 Constitution was written for those in whose name it was cast, “we the people.” It is a relatively short document, and it is generally straightforward and clear-cut. With only a few exceptions, there is an absence of legalese or technical terms. While the contemporary constitutional debate has focused overwhelmingly on a few broad phrases of the Constitution such as “due process” and “equal protection,” the overwhelming part of this document specifies, for example, that a member of the House of Representatives must be 25 years of age, seven years a citizen, and an inhabitant of the state from which he is chosen; that a bill becomes a law when approved by both Houses and signed by the president, etc. One willing to invest just a bit more time in understanding the Constitution need only peruse The Federalist Papers to see what Madison, Hamilton or Jay had to say about its provisions to a popular audience in the late-18th century.

One reason I believe that the Constitution, as well as our laws generally, should be interpreted according to the straightforward meaning of their language, is to maintain the law as an institution that belongs to all of the people, and not merely to judges and lawyers. Let me give you an illustration: One creative constitutional scholar has said that the requirement that the president shall be at least 35 years of age really means that a president must have the maturity of a person who was 35 back in 1789 when the Constitution was written. That age today, opines this scholar, might be 30 or 32 or 40 or 42. The problem is that whenever a word or phrase of the Constitution is interpreted in such a “creative” fashion, the Constitution—and the law in general—becomes less accessible and less comprehensible to ordinary citizens, and more the exclusive province of attorneys who are trained in knowing such things as that “35” does not always mean “35.”

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.

Ms. Miers has actually managed a business, a substantial one with hundreds of employees, and has had to meet a payroll and conform to tax, affirmative action, and other regulatory demands of the state. She has also been highly active in a White House during wartime, when national security considerations have been a matter of life and death. When the Supreme Court deliberates in private, I think most conservatives would agree that having such a perspective at hand is a good thing, not a bad thing.

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.

Posted by John Kranz at 6:05 PM | Comments (9)
But Sugarchuck thinks:

Did you see the Monday night game? The one with Brett Favre berating Robert Ferguson on the sidelines for not fighting hard enough to hold onto the ball... the ball that was stripped from his hands after the completion and run back, setting up a Carolina TD. "You got to fight, you've got to fight harder!" Watching that was like watching the president's handling of the latest SCOTUS opening. People worked tirelessly for decades to get us to where we are, ... Republican president, Republican controlled sentate and two open postions on the bench. They busted their hind ends to get the ball into this presidents hands and W let the other side strip the ball from him and run the other way. He wasn't willing to fight for it.
I don't care much where Ms. Miers went to school, or what state she's from or where she goes to church; file all of that nonsense under "she has a really nice personality" and let's get to the point... she doesn't deserve to move to the head of the line over so many better qualified candidates. This is not an "earn while you learn gig" and for many of us, this was the single most important decision the president had to make. Republicans are supposed to believe in meritocracy.
And ya'all can keep the "I trust Bush" line because I don't, not any more. Not only that but his judgement on this was so bad it has me rethinking an awful lot of the rest we've had to trust him on. I don't know if this pick was hubris or idiocy, or both but I do know it stinks. We lament the fact that a truly engaging candidate seems to be a thing of the past. We weep and tear our garments over the mediocrity implied when there is no paper trail. But how many of us are going to write to our Republican Senators and demand better. There are enough Republicans and fence sitting democrats to put a real conservative on the bench, a conservative with the intellectual firepower not to simply vote as we would like, but to articulate the powerful arguments neccassary to uphold their decisions when future courts revisit things. Sadly, we won't get that nominee in Ms. Miers. I had serious doubts about W when he backed Arlen Specter over his primary challenger but I didn't expect him to completely roll over, placing political expediency over principal in such a critical area.
One last thing... damned if I know why liberals are all so giddy about this lady. I would be darned scared of an evangelical church lady that jumped parties after finding God. Those folks tend to be pretty serious and shouldn't be trifled with. She will most likely be another yes vote for the right. My guess is that I will agree with her votes more often than not. That still doesn't mean she belongs on the court.

Posted by: Sugarchuck at October 6, 2005 10:15 AM
But jk thinks:

I'll put you down for a "no," then...

I am far from confident that this is a great pick. But I reject a few things that I continue to hear from the detractors.

Idiocy or hubris? Running from a fight? I don't get it (well, yeah, maybe idiocy...) But I don't agree with the running from the fight sect, and by extension your fighting for the ball (I did see the game and I did see Farve's disapprobation, I thought I'd rather get hit in the ribs catching a high one up the middle than face Farve like that!)

Like Emerson, I will look for the best in others. I may doubt whether this is a good pick, but don't doubt for a second that W thinks it is a great pick.

Throw out "Trust W" for an argument. The best arguments I have from club Polyanna are:
-- non-elitist, western state, non-academic;
-- pro business;
-- pro executive;
-- pretty certain vote against Roe.

Your pessimism to me is betrayed by your inclusion of Chief Justice Roberts. I had my questions when that one came down, but after the Senate hearings, I am sold on our new Chief.

A concern with my party is that the right wants a fight. I would have loved a good scuffle over Janice Rodgers Brown as much as anybody, but if a constructionist gets on the bench with Leader Reid's blessing, we can get on to other items.

I agree that the Democrats will rue the day they let "church lady" through and, yes, she is a vote and not a leader. Neither of those depresses me that much.

Posted by: jk at October 6, 2005 1:59 PM
But Sugarchuck thinks:

Let me ask you this...what did you hear from Mr. Roberts that leads you to think he won't be another Souter. What did he say that set you at ease. I didn't hear a thing. Is he brilliant? Yes. Is he qualified to be on the court? Yes. Was it fun watching him reduce Biden to rubble? Of course. Should Bush have picked him? I don't know. The fact is, Alan Dershowitz is samrt and facile and qualified to be on the Supreme court but I wouldn't have wanted Bush to nominate him. If you are right and Bush truly believes he put up the best nominee in Ms. Miers then Bush's critics are right and he shouldn't be president. If I am right and he chose to back down from a fight he should have been preparing for prior to his first inauguration then he is a weasel and he has betrayed a large number of the folks that got him elected in the first place. I've put up with record spending and compasionate conservatism and Republican Lite all in the hopes that he would get this one thing right and he has blown it. I don't fault him for Katrina or 9/11 aftermath or any of the other things that have been dropped in his lap but this, along with his signature on McCain Fiengold, suggests he doesn't take the court seriously.

Posted by: Sugarchuck at October 6, 2005 3:07 PM
But jk thinks:

You know how to hurt a guy. Signing McCain-Feingold is one of the worst things President Bush has done. And, yes, it's a clear abdication of his Constitutional responsibility.

What did I see from (now Chief Justice) Roberts? Exactly what we're not seeing today from Ms. Miers. A man who belonged on the court for his skill and intellect (like, say, Robert Bork).

Safe to say, I'll trust the President on his ideology. I don't know what happened with Blackmun, but those who bring up Souter forget that Bush pere took his eye of the ball and trusted John Sununu. I do trust Bush file not to do that. Maybe an O’Connor, maybe a Kennedy, not a Souter.

I have also had to trust others. I don't know Chief Justice Roberts but I liked what I saw (Biden-abuse!) and I liked even better what I read on PowerLine and other lawyerly blogs. The PowerLine guys know more than I do and are less interested in another Souter than I am.

Posted by: jk at October 7, 2005 10:51 AM
But johngalt thinks:

The truly lamentable fact is that the Supreme Court, like so many modern institutions, has forgotten the primary guiding principle this nation was founded upon - Liberty for all. The purpose of the Constitution is to limit government's intrusion upon the rights of the people. The Supreme Court, as final arbiter of the Constitution's principles, should hold an individual's freedom from government coercion as its highest principle. Federalism is a valuable concept, but upholding it cannot be allowed to trump liberty.

JK takes solace in the estimation that Miers is a "pretty certain vote against Roe." Reversal of Roe is an example of the government infringement upon liberty that I'm referring to. But I take no solace in the fact that, despite this estimation, anti-Roe conservative luminaries such as Robert Bork, Ann Coulter and Sugarchuck consider Miers' nomination a "complete disaster." She is still "the church lady."

The Supreme Court was never meant to function as a "jury of our peers." The court was to enforce the Constitution's restrictions upon the government. Its justices were presumed to be ever loyal to the Constitution they swore an oath of allegiance to. But when politically motivated presidents promote command-economy liberals and science-phobic theists to the court, that court eventually devolves into a mini-legislature with its members casting ideological votes rather than rendering objective judgments. It is a case of Left vs. Right vs. Liberty.

Posted by: johngalt at October 10, 2005 12:53 AM
But Silence Dogood thinks:

Very nicely put johngalt.

Posted by: Silence Dogood at October 10, 2005 10:25 AM

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.

Conservatives shouldn't throw up their hands in despair, at least yet. They should wait until they hear from Miers as a witness before the Senate Judiciary Committee. It's then that we'll begin to find out if Bush was correct in his view that she's the person to fulfill the dreams of so many conservatives and finally shove the Supreme Court to the right.

Call me circumspectly optimistic...

Posted by John Kranz at 6:33 PM | Comments (1)
But Sugarchuck thinks:

I am throwing in with Kristol. As to why I don't trust Bush on this or the Roberts nomination see depressing GOP facts below. W has it right on defense and that is good enough... I guess. It's all we have for now.

Posted by: Sugarchuck at October 3, 2005 7:53 PM

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.


Posted by AlexC at 7:00 AM | Comments (2)
But jk thinks:

The blogosphere roundup of Meirs on Instapundit is not good. I heard a lot of negative thoughts on Roberts and have been quite pleased. Perhaps, President Bush knows something that others do not, and perhaps he is selling all of his supporters down the river...

Posted by: jk at October 3, 2005 11:38 AM
But AlexC thinks:

I was in Jury Duty today (my first!) so I didn't have time to look around... but on the drive home, Michael Medved was very up on her. Especially as an "original intent" Constitutionalist.

Where's the fight though? F*ck. I was promised "some spending of political capital"... Where's Luttig? Janice Rogers Brown?

Do we know she's a good conservative? I don't know. She teaches sunday school at a "fundamentalist" church.

We'll see.

The Judiciary isn't really my beat. I'll leave it to the experts.

Posted by: AlexC at October 3, 2005 4:22 PM

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.

"I hope I am proved wrong about John Roberts," said Sen. Edward Kennedy, (D., Mass.), the Senate's longtime liberal stalwart. "I have been proved wrong before on my confirmation votes. I regret my vote to confirm Justice Scalia, even though he, too, like Judge Roberts, was a nice person and a smart Harvard lawyer."

Sorry Senator. Elections matter.

Posted by John Kranz at 12:32 PM | Comments (2)
But johngalt thinks:

Kennedy had more than that to say. From:

"And try as I might, I cannot find the evidence to conclude that John Roberts understands the real world impact of court decisions on civil rights and equal rights in this country. And I cannot find the evidence to conclude that a Chief Justice John Roberts would be the kind of inspirational leader who would use his powers of persuasion to bring all the Court along on America's continued march of progress. Therefore, I do not believe that John Roberts has met the burden of proof necessary to be confirmed by the Senate as Chief Justice of the United States."

What part of the Constitution compels the Supreme Court to consider "the real world impact of court decisions?" That's like saying the "real world" impact of the Constitution should have some bearing on whether or not we abide by it. He is pledging loyalty to only those parts of the Constitution with which he agrees - such parts as are supportive of (or at least, not hostile to) "civil rights and equal rights in this country." I'm quite certain that the oath taken by the senator from Massachusetts was quite different from this.

Kennedy adds,

"Both in committee and on the floor, some have argued that those of us who oppose John Roberts's nomination are trying to force a nominee to adopt our "partisan" positions, to support our "causes," to yield to our "special interest" agendas.

But progress towards a freer, fairer nation where "justice for all' is a reality -- not just a pledge in the Constitution -- is not a personal "cause," or a "special interest," or a "partisan" philosophy or ideology or agenda."

But Kennedy's notion of "fairer" is the antithesis of "freer." If one individual is prevented from keeping all of the fruits of his labors because it isn't "fair" to other, less industrious individuals, then freedom is in descendence. This is what Kennedy means by "justice for all," in direct contradiction to what the founders established.

Posted by: johngalt at September 29, 2005 2:51 PM
But jk thinks:

When I say I expected better, I must confess I didn't mean Senator Kennedy.

I could see as many as ten nay votes, but 22 surprises. Bayh, Feinstein and Clinton surprise.

Posted by: jk at September 29, 2005 5:48 PM

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.

Instead, five Democrats voted "no" yesterday. Chuck Schumer, Dick Durbin and Ted Kennedy claimed they didn't know enough about how Judge Roberts would rule on specific precedents. Joe Biden was, well, Bidenesque. Dianne Feinstein apparently thought the candidate had been nominated for Chief Family Man instead of Chief Justice. "Rather than talking to me as a son, a husband, a father -- which I specifically requested he do -- he gave a very detached response," she said yesterday. Imagine that: A judge who is restrained.

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

I got beat up when I linked to what I thought to be a serious Scrappleface post. Here's hoping y'all will like this better:

"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."

The Senator explained that balance is the most important feature of the high court, trumping ideology, logic and the intent of the framers of the constitution.

"As much as we'd like to have another lefty like [Ruth Bader] Ginsburg, we must maintain balance," the anonymous legislator intoned. "Even if it means overturning Roe v. Wade, we Democrats shall remain true to our principles."

Hat-tip: Insty

Posted by John Kranz at 1:01 PM | Comments (1)
But Silence Dogood thinks:

I can't imagine why that senator would want to remain anonymous with such great insights...

Posted by: Silence Dogood at September 6, 2005 4:20 PM

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.

Posted by John Kranz at 7:40 PM | Comments (3)
But AlexC thinks:

Alan Dershowitz said some nice things.
"He started his career by being a kind of Republican thug who pushed and shoved to keep African-American and Hispanic voters from voting."

Posted by: AlexC at September 4, 2005 10:46 PM
But johngalt thinks:

As for Dershowitz, no one can have a higher opinion of him than me, and I think he's a filthy little beast.

Posted by: johngalt at September 5, 2005 12:37 AM
But jk thinks:

Like Krugman, one has to view Dershowitz as a warning against hyper-partisanism.

I read a collection of his "Taking Liberties" essays a long time ago and was enlightened by some of his ideas and elevated opinion of several organizations based on his brilliant exposition.

Sadly, he has become not only a partisan hack, but has truly lost all reason. I think it happened during the Clinton impeachment contretemps, but I'll accept evidence that it happened sooner.

Yet both he and Krugman were once smart guys and serious thinkers. I am glad that I am STARTING life as a partisan hack, so I don't have to worry...

Posted by: jk at September 5, 2005 12:54 PM

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.

Unfortunately, Rehnquist was unable to put his stamp on the Rehnquist court. Indeed, it's a bit misleading to refer to such a thing. But that wasn't his fault; three different Republican administrations let him down. If Nixon, Reagan and Bush-I done a better job picking Justices, the Rehnquist court would have been a fitting memorial to the man.

Put Michael Luttig on the court and elevate Clarence Thomas to Chief Justice.

Posted by John Kranz at 12:35 PM | Comments (4)
But johngalt thinks:

Rehnquist knew right from wrong, and he didn't have to attend Washington dinner parties to figure out where he "should" stand on a given case. He will be missed.

I expect the president will promote Scalia to Chief, and I'm pulling for Janice Rogers Brown to fill the new vacancy.

Posted by: johngalt at September 5, 2005 12:36 AM
But AlexC thinks:

I would have figured Thomas or Scalia to Chief Justice. Whoda thunk Roberts?

Maybe Karl Rove? ;)

Posted by: AlexC at September 5, 2005 11:36 AM
But johngalt thinks:

Media correspondents were discussing this scenario yesterday. I thought Scalia would get the nod over Thomas partially due to seniority. Now the most junior justice of all is being nominated as chief. I'm no fan of "social promotion" as it were, but it certainly seems that the leader of the court should be someone who's actually BEEN there for a while. And the lack of consideration for the service of those conservative justices already on the bench is curious.

As I understand it, the Senate has a role in confirming the elevation of a justice to Chief, so this move reduces the number of rings in the Senate circus by one. Still, I doubt this was the primary motivation for the president. It may be to stack the court for short-term rulings on cases soon to come before the court. If he doesn't nominate a replacement for O'Connor soon then this theory will gain credence.

Posted by: johngalt at September 5, 2005 12:55 PM
But jk thinks:

I heard chatter about this too. I thought "no way" but I picked the Broncos over the 49ers in Super Bowl XXIV.

I thought Thomas the natural choice because 1) he's jk's -- and many other conservatives' -- favorite after Raich v Ashcroft; 2) he has more than a decade on the Court; and 3) Democrats would be forced to scuttle the appointment of the first African-American Chief Justice.

I like to trust the President on the big things, but this concerns me. I trust Roberts is a good conservative jurist enough to support his nomination as Associate Justice, not quite onboard for this leapfrog appointment. I will try to keep an open mind.

Posted by: jk at September 5, 2005 1:18 PM

August 23, 2005

Sarcasm Alert

Judge John Roberts cracks me up.

Here's why.

    "How fascinating and edifying it must have been for you to review the files I compiled during my service to the attorney general," Roberts wrote. "I assume that the archivist will deposit my files in one of those hermetically sealed display cases that drop into a concrete vault in the event of nuclear attack, similar to the cases housing the Constitution and the Declaration of Independence. Once this is done, I will consider donating my personal papers, at a time to be determined by my tax advisers."

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


Leahy Lambastes Roberts' 'Radical' Stands

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 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.

Within hours of publication of the first Post story, Mr. Leahy hit the barricades with a statement calling Judge Roberts "an eager and aggressive advocate" of policies "deeply tinged with the ideology of the far right wing of his party." During the Reagan years, the Senator added, the nominee held views "that were among the most radical being offered by a cadre intent on reversing decades of policies on civil rights, voting rights, women's rights, privacy, and access to justice." At least he didn't call Judge Roberts a member of the Taliban.

As for Senator Kennedy, he sent a letter to colleagues claiming the Reagan documents show that Judge Roberts "was on or beyond the outer fringe of that extreme group eager to take our law and society back in time on a wide range of issues of individual rights and liberties."

Posted by John Kranz at 1:49 PM | Comments (4)
But Silence Dogood thinks:

The only thing I know he has taken back in time is fashion. Did you see the photos of his family at his announcement at the White House? I thought at first that the caption must be wrong, that the photo was actually of a 5 year old Judge Roberts 40 years ago not of his son current day. An Eton suit and saddle shoes? Yikes.

Posted by: Silence Dogood at August 18, 2005 1:10 PM
But jk thinks:

Silence, I think you should take over as ThreeSources Fashion Editor. I'd have never recognized an Eton Suit.

Posted by: jk at August 18, 2005 3:53 PM
But Silence Dogood thinks:

Yes, fashion deity that I am. Truthfully I had to do a Google search on "suit with short pants" to find the name. They did go out of style about 1960 and some say that now more are sold in doll sizes as no 5 year old will consent to wear one. Just injecting a little pithiness really, not sure there is any big cultural insight into the man based on how his family dresses, but just as some here have talked about the "dirty hippies" you gotta wonder about a guy whose family dresses straight out of 1955.

Posted by: Silence Dogood at August 18, 2005 5:20 PM
But AlexC thinks:

I don't think I coined "dirty hippies" but I love using it.

The difference between the Roberts family and the dirty hippies, is that in a social setting you probably wouldn't be offended by the fetid odor and grooming skills of the Roberts. Yeah, the clothes are a little, ahem, "classic." But they're clean, pressed and acceptable.

Dirty Hippies, on the other hand, if you can cut through the stench, you still have to contend with the tofu crumbs and bong water stains.
Never mind the lice in the armpits.


Posted by: AlexC at August 18, 2005 5:30 PM

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.

As NARAL seems to have recognized, the rest of us are currently undergoing the Wishful Thinking Phase of a Supreme Court nomination. WTP, which can afflict both sides of the aisle, is when we get to meet the candidate, hear many flattering and endearing stories, and begin to hope--despite evidence to the contrary--that we'll like the jurisprudence.

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.

Sorry, liberals--you can't do Karl Rove. Only Karl Rove can do Karl Rove, and the rest of world must wait patiently until prison or old age makes him stop. Meanwhile, liberals can step out of the WTP, remember that Bush's favorite justices are Clarence Thomas and Antonin Scalia, and run negative ads that are tough but--in un-Rovian fashion--actually fair. Even though it will not stop Roberts from being confirmed, it can still cost the White House political capital. There should not be too many qualms over this. After all, Roberts has to please a lot of people, and if he's fooling anybody, it's probably not conservatives.

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,'s conclusion.

Democratic senators do not like people to think that left-wing groups like NARAL lead them around like dogs on leashes. They have a chance to prove that by denouncing the NARAL ad.

"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

12,000 Votes

From the NYTimes...

    In a three-page letter to Judge Roberts, Mr. Specter raises pointed questions about two recent court decisions invalidating legislation Congress passed under its authority to regulate interstate commerce. That power has for decades been used to produce expansive legislation, including environmental protections, civil rights laws and the Americans With Disabilities Act.

    "I think Republicans have a duty to pursue this line of questioning and any relevant line of questioning," Mr. Specter said on Monday in a telephone interview from his home in Philadelphia.

    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)

Posted by AlexC at 12:40 AM | Comments (4)
But sugarchuck thinks:

Arlen Specter was, is and always will be a disaster. It would have been better to have lost his seat in the Senate than have him in the position he is in now. It is a shame that Bush lent support to this knucklehead and that support will come back to haunt him. Of course when Roberts turns out to be another Souter we might well wish Specter had been able to derail him.

Posted by: sugarchuck at August 9, 2005 10:41 AM
But jk thinks:

I am still stumped that the Administration supported Specter in the primary. I think he must've had pictures of W freebasing with Rick James or something -- it was clearly not in the President's interest.

I must protest the Roberts pessimism, I trust President Bush on the big things, and this is a big thing. If it makes you feel better, NARAL is spouting scurrilous lies about Judge Roberts

Posted by: jk at August 9, 2005 1:25 PM
But AlexC thinks:

Hence the 12,000 vote mention... that's how close Pat Toomey was to taking down the Senator in the primary. Sadly Bush and Santorum went for party over principle.

Posted by: AlexC at August 9, 2005 2:01 PM
But jk thinks:

... and got neither.

Posted by: jk at August 9, 2005 3:11 PM

July 26, 2005

Roberts Requests

From the Bleachers...

    Hill folks are saying that the Senate Judiciary Committee can expect to receive over 75,000 pages of documents relating the John Roberts' work as a young attorney working for then-president Reagan.

    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."
Chappy adds...
    Don't count on this being enough paper for Schumer, Kennedy, Durbin and others.


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

Hotel Souter

From Chicago Sun-Times

    People from across the country are getting behind a campaign to seize Supreme Court Justice David Souter's farmhouse to build a luxury hotel, according to the man who came up with the idea after a Supreme Court decision favoring government seizure of private property.

    ''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.

    Souter has declined to comment, but he has defenders, like Betty Straw, his sixth-grade teacher.

    ''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.

"All of that said, my best guess is that he would be a very conservative justice. And because he is so gifted and so decent a human being, he might become incredibly influential on the Court, moving it in ways that justices like Scalia and Thomas have been incapable. In short, he could ultimately be a progressive's worst case scenario."

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

'Nother Souter?

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.

After President Bush's terrific, upbeat presentation of Roberts, and Roberts' graceful, brief talk, Leahy and Schumer sounded like they had just dropped in from another planet. They were dour, hateful, and came across as sad and pathetic minions who have been sent on a hopeless mission by their bosses at "People for the American Way."

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?
Again, for reasons of precedent and preservation of executive privilege, Dubya won't and can't share those private, confidential documents, nor those private, confidential personal assessments, with you, me, or the Senate. But he has them; they're incredibly meaningful; and we have every reason to believe that Dubya has made very, very good use of them. Don't misunderestimate your president, my conservative friends. Rejoice and have faith!

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

Blonde Sagacity sez...

    VERY IMPORTANT: Keep saying "He's too moderate, we don't like him." Say it over and over --it worked for Alberto Gonzalez (they hated him for the GITMO stuff, but wanted him once they found out that Conservatives didn't)...libs seem to fall for reverse psychology...LOL

It sounds like fellow blonde right-wing babe Ann Coulter got the message.
    And it makes no difference that conservatives in the White House are assuring us Roberts can be trusted. We got the exact same assurances from officials working for the last president Bush about David Hackett Souter. I believe their exact words were, "Read our lips; Souter's a reliable conservative."

Or did she?

Posted by AlexC at 12:00 PM | Comments (1)
But jk thinks:

It ain't necessarily faked. I received an extremely downbeat email this morning that imagined if Senators Barbara Boxer and Hillary Clinton were not in full apoplexy, then W has obviously picked another Souter.

I gave a sanguine reply. I like what I have heard, and I fully suspect that the Democrats have a careful plan to act nice and thoughtful (Schumer was really trying, if you can believe it). Then when something is disclosed, or a question is not answered, they will spring into life.

It is odd that a person would not make a public and clear position on Roe v Wade. That might be a sign of wobbliness or it might really be good politics.

Posted by: jk at July 20, 2005 2:52 PM

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.

Posted by AlexC at 11:45 AM | Comments (5)
But johngalt thinks:

A number of pro-life pundits are calling Clement a "surrender" nominee, (to Senate Dems). This largely for her statement that the abortion issue is "decided law." Limbaugh's not so certain that she's "pro-Roe" as her statement was that of a district judge with no ability to alter that law.

Not knowing any more than this about her I can only say, at least she's not certifiably pro-life as many Bush backers have been demanding. There's a good chance that, as I learn more about her, I won't prefer to see her go down in flames. So far, so good Mr. Prez.

Posted by: johngalt at July 19, 2005 3:03 PM
But jk thinks:

So, jg, You'd be happy seeing Justice Scalia or Thomas "Go down in flames" were there confirmation hearings happening at this time?

Posted by: jk at July 19, 2005 5:05 PM
But AlexC thinks:

Uh. I guess we're wrong. Karl Rove is a genius!

Posted by: AlexC at July 19, 2005 10:12 PM
But johngalt thinks:

No, I don't consider Scalia or Thomas to be anti-Roe activists. Edith Jones, on the other hand...

And AlexC... What do you mean "we," white man!

Posted by: johngalt at July 19, 2005 11:48 PM
But johngalt thinks:

Oh yes, and as far as I can tell at this point, Roberts is a good choice as well. Not that I don't believe he disagrees with Roe, but I don't believe he considers it his mission in life to "reverse" it, somehow.

Posted by: johngalt at July 19, 2005 11:53 PM

July 16, 2005

Eminent Domain

The Kelo decision is going to affect a lot of cities negatively if this kind of attitude doesn't change.

    When Mayor Street declared his war on blight in Philadelphia, it is unlikely that he imagined the James J. Clearkin construction company as the enemy. The 87-year-old, family-owned business is located just off Castor Avenue in Juniata Park, in a modest, two-story office building that is as sturdy today as it was when the family mortared in the last buff-colored brick in 1950.

    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.

    The Clearkins - James Jr., James 3d and Joseph - are so bitter about the city-sponsored foreclosure they have vowed to move their company out of Philadelphia. If they do, they will join other businesses evicted from the development site in decamping to the suburbs.

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.

Posted by AlexC at 9:00 PM | Comments (2)
But jk thinks:

Hmm, wonder if there are any young guys in the Philadelphia area who might be tempted to enter politics...

What I like is the legislative solution. While we all wish they had defended property rights better, courts cannot force a municipality to take property.

Posted by: jk at July 17, 2005 12:21 PM
But johngalt thinks:

I don't think you understand AlexC. Planned Parenthood is a "good" civic citizen. A profit making business that builds Catholic schools and churches is a scourge on urbanism.

'Kelo' gives free rein to local governments to boot out anyone they have a grudge against, or who doesn't pay the "protection" fee under the table, as long as it can gin up some higher-revenue possible use for the acreage they occupy. Anti-American to the extreme.

Posted by: johngalt at July 18, 2005 3:30 PM

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

Excusing Murder

With eminent domain and the strange Decalouge ruling, as well as retirements dominating the headlines, another SCOTUS ruling slid in under the radar.

    On Jan. 14, 1988, James Scanlon's body was discovered in a pool of blood in his Allentown bar. He had been stabbed multiple times, including 16 wounds in the neck and head. He also had been beaten with a blunt object, and his face had been gashed with shards of broken bottles found at the scene. After he had been fatally stabbed, Scanlon's body had been set on fire. Rompilla was convicted of murder and related offenses and sentenced to death.

    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.

    [Writing for the majority] Justice Souter first chides Rompilla's defense attorneys for failing to uncover what he deigns to be "a range of mitigating leads" about Rompilla's childhood, mental capacity and health, and alcoholism - all hidden deep in the 1974 rape file. He cavalierly dismisses their common-sense strategy. They sought mitigating material by interviewing the defendant and members of his family and consulting with three mental-health experts. Then they opted to beg for mercy rather than risk drawing the jury's attention to his violent past.

    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.


Posted by AlexC at 10:00 AM | Comments (1)
But johngalt thinks:

Absolutely proper evaluation, AlexC. Even in this "anything goes" climate of post-modern relativism, this IS unbelieveable.

Souter is a cancer on the US Constitution.

Posted by: johngalt at July 8, 2005 3:10 PM

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.

Posted by John Kranz at 10:56 AM | Comments (12)
But jk thinks:

That's exactly my point, Silence. There is no enumerated right to abortion in the Constitution, therefore it should be left to the States to decide. States could legally regulate, outlaw or permit abortion, but SCOTUS has used the precedent of Roe to strike down state laws on parental notification and will likely disallow the partial-birth (D&X) ban.

Back to my original -- if highly sarcastic -- point, how are states and municipalities allowed to infringe so blatantly on the clearly enumerated right to bear arms? San Francisco can remove this right from its citizenry, yet Nebraska cannot institute a parental notification law. I seriously do not understand this.

Posted by: jk at July 9, 2005 2:41 PM
But johngalt thinks:

Sure you understand it JK. "The constituency that defends that particular liberty is the very one that is so eager to infringe on MOST of the others." And, the constituency that wants to infringe on this one is impotent to stop those infringements because infringing upon individual liberties is one of their prime directives as well. But because you understand it doesn't mean you have to accept it. The thing is, two wrongs don't make right.

The one thing Silence and I still can't abide is your Federalism argument in defense of infringement upon an individual liberty granted, in blanket fashion, by the fourth amendment.

Posted by: johngalt at July 10, 2005 10:04 AM
But jk thinks:

It's the emanations & penumbras part of your "right" that disturbs me. The right to bear arms is clearly stated, the right to abortion is a made-up right based on a made-up privacy right. So I say, let the Supreme Court defend the clearly enumerated rights and leave everything else, per the Tenth Amendment to the States.

Posted by: jk at July 10, 2005 3:00 PM
But johngalt thinks:

I'll stipulate this right is an emanation, but not a penumbra. The right to freedom from unreasonable searches of one's body emanates from the Fourth Amendment right "to be secure in their persons" because it doesn't say "to be secure in their bodies." Not much of a stretch there, is it? ("Unreasonable" meaning without probable cause that a crime against another's person or property is being committed. HERE'S where the real dispute lies.) This would only be a penumbra if this right to bodily security was somehow to a lesser or uncertain degree. But the right is absolute. Individual liberty is sacrosanct.

The real dispute in the case of abortion is whether an unborn fetus has an individual right to liberty himself. I've consistently maintained that one must first be "individual" to have individual rights. This is the only position that is fully defensible.

The Christo-fascists, among others, argue that everyone has equal rights whether they're strong or weak, good or evil, born or unborn, or even merely a zygote. This position is far from defensible.

When you consider how the concept of "right" has been manipulated by collectivists to mean "entitlement" you can see that a pregant woman is under no more obligation to carry to term against her wishes than a free man is to pay unjust taxes to support, say, an indigent mother, or her infant child, or her decision to abort. All individuals have the right to THEIR life, et. al, and no valid claim on any others.

It is true that this language never appears in the Constitution, or in any amendment, but this is the philosophy of individual liberty upon which the founders based their eloquent, if imperfect, prose. And it's the part that makes America the greatest nation on earth. To a true patriot, allowing "emanations" from said text in defense of individual liberty should cause him no fear or shame or guilt.

Posted by: johngalt at July 13, 2005 4:21 PM
But jk thinks:

Comments will close soon -- I may get the last word!

Sorry, jg, you are putting words in my mouth. I said nothing about individual rights of the child, or really anything about abortion except that it is too far a leap for me from "secure in their persons" to "you cannot require parental notification for abortions" and "you must allow partial birth abortions -- because the Constitutions sez so!"

Every newfound right by emanation, as I said, is one less thing that I have a right to pursue legislatively. This patriot is scared quite rightly. "Secure in their person," huh? I think we'd better establish the right to universal health care! No fear or shame or guilt required, boys, we just protecting your liberty!

Posted by: jk at July 13, 2005 7:31 PM
But johngalt thinks:

I don't believe I put any words in your mouth. The words you cite were attributed to Christo-fascists (a term I believe I have coined) and unnamed "others." In mentioning those things here I'm just pointing out what ideas you're aligning yourself with.

So-called "partial birth" abortions, yes.
Abolition of parental notification, no.
And your universal health care analogy is vacuous. "Secure in their person" means secure from force at the hands of others, not from biology.

You do no service to your federalist cause by assailing liberties and drawing false analogies. Keep in mind, I'm an ally!


Posted by: johngalt at July 14, 2005 10:18 AM

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.

The principal threats to property rights lie elsewhere. In particular, regulatory actions often severely limit what an owner can do with his property. Unlike urban development projects, such regulations are often adopted in forums that are remote from, and unresponsive to, the political process. And what an owner generally hopes for in such situations is to be covered by the Fifth Amendment's guarantee of compensation for the loss of use of his property, which is automatic in the case of a condemnation.

Posted by John Kranz at 12:49 PM | Comments (5)
But johngalt thinks:

Hinderacker is wrong. It is EMINENTLY clear that the case was wrongly decided.

H's problem is his thinking is so infused with pragmatism that he can defend principles when packaged together that he'd never endorse separately. He writes that since "the project includes a typical mix of public and private uses" (the vast majority of which are indeed private - a riverwalk, the boatramp portion of the marina, and a dubious museum being the identified public uses) the city's development entity is justified in using condemnation to clear the deck for the WHOLE project. Such slight-of-hand would make Houdini proud.

And H's claim that "most takings are compensated generously" is in dire need of substantiation. Let's start by asking for a statistical analysis of condemnation compensations nationwide, and then look at the number of property owners who settled for a nominal buyout offer from the developer with the 600 pound gorilla of eminent domain sitting in the anteroom. Our argument was never that eminent domain must be abolished, but that it must be strictly limited to purely public uses, as so stated in the Constitution. Kelo did precisely the opposite.

Hinderacker argued that if the Kelo decision had been reversed it "would have the practical effect of making such ['economic development'] projects virtually impossible. This is poppycock! It would have made them cost more, but what does the government care when they're spending taxpayer's money anyway, and private developers doing the city's bidding will simply pass their costs along, with a neat little "administrative fee" to boot. Some individuals may decide not to sell at any price, but when presented with the architect's plan for what their neighborhood will soon become, with highrises on all four sides perhaps, along with a check for a tidy sum and suggestion of what he could build in some cornfield somewhere, most will budge. And for those who don't, aren't these civic do-gooders (sorry Silence) trying to create mixed-use developments anyway? What could be more mixed-use than to leave a few of the original properties peppered throughout their grandiose new-urban dream? Still, there may be some who claim the "economic development" project is a taking of value from their property by the required zoning changes in the neighborhood. The only recourse of these individuals is to take the city to court. This is and expensive and exhausting process that may ultimately go all the way to the Supreme Court of the United States before the Constitional limits on the government can be enforced. Kelo, et. al., did this on all of our behalf, but the Court forgot why it exists.

And what is the cost of the decision the court DID reach? Oh, not that much really. Just the erosion of one of the key pillars of liberty left on earth - a man's right to his property. But hey, at least we still have a new Coast Guard Museum!


Those of us who refuse to play the "pay for play" game with our local government officials have long known that "you can't fight city hall." This abysmal ruling only makes that sad reality more prevalent and more potent.

Posted by: johngalt at July 7, 2005 3:21 PM
But jk thinks:

Very well said, jg, and I do not join "Hindrocket" in supporting the decision. I will sustain my original view that in the litany of bad SCOTUS decisions, Kelo v New London did not deserve the attention it received.

I love Chris Muir's DayByDay as much as anything on the Internet, but the sequence of Damon coming home to find his house missing is the best (and most humorous) example of over-the-top invective.

Silence: are you going to stand still and be called a "civic do-gooder" by Johngalt? If you need a second for your duel, let me know -- your honor has been impugned!

Posted by: jk at July 8, 2005 10:56 AM
But johngalt thinks:

No no, wait! I was apologizing to Silence for impugning his name, not implying that he was such a "civic" do-gooder. Maybe that didn't come across clearly. (And the good editor over at the Weekly Standard must really be scratching his head, since I sent him this same comment in reply to the Hinderacker article, verbatim.)

As for "over-the-top" I'll just repeat myself: "Erosion of one of the key pillars of liberty left on earth."

Posted by: johngalt at July 8, 2005 3:07 PM
But jk thinks:

Well, if Silence accepts your apology, I will stand down...

Posted by: jk at July 8, 2005 6:07 PM
But Silence Dogood thinks:

Yes, please don't lump me in with the civic do gooders, especially in this case. I am right with you on the right to property and second your motion to hear more substantiation of the generous compensation. This would be generous compared to the current property rights? Before or after the area is deemed blighted or condemned? The blighted or condemned term is actively sought by developers to lower property values prior to an acquisition. After this, any analysis of how generous the compensation is a bit of a farce.

Posted by: Silence Dogood at July 12, 2005 5:33 PM

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...

    Rumors are already swirling about a possible third retirement after November. The most likely would be Justice Ruth Bader Ginsburg, who according to former Supreme Court clerks may be in poorer health than Justice Rehnquist.

And Bush 41's appointee and the generally not conservative David Souter.

    Here's a wildcard for you: I have it on reasonably good authority that an unlikely retirement might be on the way, too. A Supreme Court insider told me several weeks ago that Souter may well retire. He apparently told friends and family that he has always planned to step down upon turning 65, and that he'd rather return to New Hampshire year-round than continue to spend time in D.C. He's 65 now., which brought Souter and Ginsburg to my attention adds...

    Of course, Rehnquist is almost universally expected to retire soon and nobody knows how much longer 85 year-old John Paul Stevens can hang in there on the court.

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.

Posted by AlexC at 2:51 PM | Comments (1)
But jk thinks:

You don't understand -- he didn't win by a large enough margin to change the fundamental makeup of the court!

But seriously folks, even with fewer vacancies, a new SCOTUS could really end up a key component of the W legacy.

Posted by: jk at July 5, 2005 6:13 PM

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

ON OCTOBER 23, 1987--a day that lives in conservative infamy--Robert Bork's nomination to the Supreme Court was rejected by a Democratic Senate. Now, 18 years later, George W. Bush has the chance to reverse this defeat, and to begin to fulfill what has always been one of the core themes of modern American conservatism: the relinking of constitutional law and constitutional jurisprudence to the Constitution.
George W. Bush's has been a Reaganite presidency in the areas of foreign and economic policy. He has impressively adjusted Reaganite principles to deal with today's challenges. Now he has the chance to once again follow Reagan's lead by nominating a jurist as impressive as Robert Bork for the Supreme Court. And now he has the chance to surpass Reagan--by getting that nominee confirmed.

Posted by John Kranz at 1:46 PM

July 2, 2005

Supreme Court Prediction

A prediction from the Polish Immigrant....

    ... that sometime between July 8th when Bush comes back from Europe and September a liberal cartoonist will draw 9 Iranian mullahs in robes worn normally by the justices of the US Supreme Court and call it Bush's Court.

    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.

Posted by AlexC at 2:00 PM | Comments (8)
But jk thinks:


I don't really see that the President's opposition will take on the "constructionist" label. These folks truly believe that the Constitution is a living document and that its penumbrae should be explored.

A strict constructionist (as I prefer) will use what is actually written in the Constitution.

I wish, in the wake of Kelo and Raich, people might see SCOTUS as something more than the abortion police, but perhaps I wish for too much...

Posted by: jk at July 3, 2005 1:21 PM
But Silence Dogood thinks:

I certainly intend to take on the constructionist label as I think it will be applied to anyone whose beleifs match those of groups like Focus on the Family. It's a big ill defined term that will be misused and overused in the next few months. As I have blogged before I am a frim beleiver in the power of the 9th and 10th amendments and their design as catch-alls to limit legislative power. I agree completely on Kelo and Raich but my conclusion from those rulings is that it is proof we need an active court to prevent unchecked activism by the other two branches - legislatvie (Kelo) and executive (Raich).

Posted by: Silence Dogood at July 5, 2005 11:03 AM
But jk thinks:

I lost you on that one, Silence. Before I rant on some meaning that I misconstrued, can I ask you to write up longer description?

You really believe that the court is not activist enough and is ceding power and purview to the other branches?

And, I'm not a member of Colorado Focus on the Family but, there is no right to abortion in the Constitution. Even though I am pro--choice, anybody who "finds" one will not be a judge I support.

Posted by: jk at July 6, 2005 1:57 PM
But johngalt thinks:

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.

No matter how you slice it, until a fetus is seperated from it's mother it is a part of the mother's "person." It is not an individual, and therefore has no individual rights.

Posted by: johngalt at July 6, 2005 3:01 PM
But Silence Dogood thinks:

Stunning as it may sound I am actually making the argument that we need a very activist Judicial branch. The last 25 years have seen a huge increase in executive power and for the most part a decrease in legislative power. The Judicial branch is about the only thing left maintaining a balance. Do the courts overstep their bounds on occasion? Sure they do, but so too do the other branches, hence the checks and balances system. The "enemy combatants" term created and defined by the Patriot Act is a classic example of executive over reach and legislative compliance.

I still side with johngalt on the abortion issue, he makes my point very nicely. The power to limit or abolish abortion does not exist in the Constitution either, try to find it anywhere and you will be left with an even more tenuous link than that which Raich uses between federal drug laws and interstate commerce.

Posted by: Silence Dogood at July 6, 2005 5:09 PM
But jk thinks:

Yeah, you and Johngalt teaming up on me -- as usual...

I appreciate the candor but the balance of power that concerns me is State vs. Federal. Every "landmark" decision from SCOTUS, and every new "right" discovered is one less thing that be decided by States or local communities.

Posted by: jk at July 6, 2005 10:00 PM

July 1, 2005

Bush Nominees: The List

George Bush nominated Framer Benjamin Franklin to the Supreme Court today.
Democrats immediately denounced Franklin for his close ties to "Big Energy."

President Bush may also nominate George Washington to the nation's highest court, though the nominated General would face scrutiny of his environmental record.

Posted by AlexC at 5:00 PM | Comments (1)
But johngalt thinks:


Posted by: johngalt at July 2, 2005 2:30 PM

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.

    Seeking a possible consensus nominee, Reid recommended Republican Sens. Lindsey Graham of South Carolina, Mel Martinez of Florida, Mike DeWine of Ohio and Mike Crapo of Idaho.

    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.

Posted by AlexC at 4:00 PM | Comments (2)
But jk thinks:

I guess we're both sick, sad puppies. But I am really looking forward to a good fight.

1) August news doldrums -- banished!

2) I think Rove can position things to make the left look unreasonable.

3) Maybe get a SCOTUS that won't make decisions like Kelo v New London. (Though sadly, O'Connor joined Thomas on the correct side of Raich).

Posted by: jk at July 2, 2005 1:04 PM
But johngalt thinks:

Ask yourself if John Kerry had become president, and Republicans suggested he nominate a justice with "mainstream" views, how much deference would JFK give to the opposition party's sensibilities? ZIP. We'd be in for another Ginsberg! It's time now for another Thomas instead. (Readers know that Janice Rogers Brown is my dream candidate, but I predict Alberto Gonzales for this vacancy.)

What I'd like to see is some learned speculation as to the strategy of O'Connor's resignation preceding Rehnquist's, for I expect the latter to follow suit before the end of this President's administration.

Posted by: johngalt at July 2, 2005 2:28 PM

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.

Justice O'Connor, 75 years old, said she expects to leave before the start of the court's next term in October, or whenever the Senate confirms her successor. There was no immediate word from the White House on who might be nominated to replace Justice O'Connor.

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