Publius2000

BCS Controversy

2008-12-10T13:41:00.000-08:00

There is a lot of anti-BCS ranting going on and a very funny example of this referencing WWII can be found here.

While funny, it is flawed and playoff utopians that think abandoning the BCS are merely fooling themselves. Here is the proper analogy to WWII...

WWII ENDS: U.S. SET TO FACE SOVIET UNION IN “COLD WAR” MATCHUP BUT AXIS FANS CALLING FOR EIGHT NATION PLAYOFF
By Darren Guerra staff writer

Last week the United States knocked Japan out of WWII with a long range aerial attack the likes the world has never seen. The American leader Truman said, “I knew if we through a bomb against their defense it would work; I just didn’t realize how devastating it would be…Japan just wasn’t prepared for our attack. They never knew what hit them.” Now that the U.S. has scored decisive victories against Italy, Germany, and Japan consecutively, it is poised for a one on one showdown for world dominance with the Soviet Union emerging as the winner in the East.

However what was expected to be a showdown between the world’s two remaining superpowers has become embroiled in controversy. Citizens in Germany, Italy, Japan, and even Great Britain, France, and Belgium are pushing for an eight nation playoff to determine world dominance. “It isn’t fair that the two most powerful nations get to square off in the Cold War! I mean with a second chance we might have developed the bomb first!” responded a German leader as he pounded his fist on the podium. There does indeed seem to be a growing world consensus that including more nations in the final showdown would be more inclusive and more interesting.

Some Italian leaders have pointed out that it isn’t fair that the larger more prosperous nations always seem to produce better armies. While, Italy’s strength of schedule has been called into question for their road win against Ethopia, it hasn’t stopped them from complaining about not getting a chance at being ranked number one.

Germany on the other hand has faced some tough opponents such as Great Britain and Russia but they too have taken criticism for scheduling Belgium, Holland, Poland, Czechoslovakia, and France. “Sure France let us walk right into Paris, but they used to be a formidable power, I remember a Napoleon fella who did some damage a few years back that should count for something!” fumed a German spokesman. Japanese leaders were hopeful that a playoff could be instituted thereby resurrecting their chances at world domination. A German source said that Chancellor Hitler was not issuing statements because his “mind was blown” at the unfairness. Similarly, Italy’s Mussolini was reportedly tied up and unavailable for comment, but Italian sympathies surely favored a playoff.

Truman continued to make the case for the U.S. v. Soviet matchup, “We have worked hard to get where we are, we have beaten the best, why should we open the process up now to nations who clearly have weak schedules and have suffered devastating defeats? Where is the fairness in that? Would our boys have fought so hard at Anzio, Normandy, the Ardennes, Midway, Guadalcanal, Iwo Jima, and Okinawa had we known that it wouldn’t count for anything in the end? I don’t think so. The two strongest nations will face each other and that is the way it should be.” Truman’s arguments only seemed to anger German, Italian, and Japanese fans all the more. Axis fans say they will never rest until they get a playoff. Story developing…
Labels: College Football

Mark Steyn Cracks me up...Don't buy the Obama Hype

2008-10-03T17:58:00.000-07:00

While this is Steyn's take on Obama's acceptance speech in June it is still very timely and hilarious...

"The short version of the Democratic Party primary campaign is that the media fell in love with Barack Obama but the Democratic electorate declined to.

"I felt this thrill going up my leg," said MSNBC's Chris Matthews after one of the senator's speeches. "I mean, I don't have that too often." Au contraire, Chris and the rest of the gang seem to be getting the old tingle up the thigh hairs on a nightly basis. If Obama is political Viagra, the media are at that stage in the ad where the announcer warns that, if leg tingles persist for more than six months, see your doctor."

...

A few months back, just after the New Hampshire primary, a Canadian reader of mine – John Gross of Quebec – sent me an all-purpose stump speech for the 2008 campaign:

"My friends, we live in the greatest nation in the history of the world. I hope you'll join with me as we try to change it."

I thought this was so cute, I posted it on the Web at National Review. Whereupon one of those Internetty-type things happened, and three links and a Google search later the line was being attributed not to my correspondent but to Sen. Obama, and a few weeks after that I started getting e-mails from reporters from Florida to Oregon, asking if I could recall at which campaign stop the senator, in fact, uttered these words. And I'd patiently write back and explain that they're John Gross' words, and that not even Barack would be dumb enough to say such a thing in public. Yet last week his demand in his victory speech that we "come together to remake this great nation" came awful close.

...

Marc Ambinder is right. Obama's rhetoric is in a different "emotional register" from John McCain's. It's in a different "emotional register" from every U.S. president – not just the Coolidges but the Kennedys, too. Nothing in Obama's resume suggests he's the man to remake America and heal the planet. Only last week, another of his pals bit the dust, convicted by a Chicago jury of 16 counts of this and that. "This isn't the Tony Rezko I knew," said the senator, in what's becoming a standard formulation. Likewise, this wasn't the Jeremiah Wright he knew. And these are guys he's known for 20 years.

Yet at the same time as he's being stunned by the corruption and anti-Americanism of those closest to him, Obama's convinced that just by jetting into Tehran and Pyongyang he can get to know America's enemies and persuade them to hew to the straight and narrow. No doubt if it all goes belly-up, and Iran winds up nuking Tel Aviv, President Obama will put on his more-in-sorrow-than-in-anger face and announce solemnly that "this isn't the Mahmoud Ahmadinejad I knew."

Every time I hear an Obama speech, I start to giggle. But millions of voters don't. And, if Chris Matthews and the tingly-legged media get their way and drag Obama across the finish line this November, the laugh will be on those of us who think that serious times demand grown-up rhetoric.

Read the rest here...

Video of Aborted Babies? Not a Chance

2008-09-16T09:25:00.000-07:00

Here is a piece by a respected professor and friend Dr. Dennis McNutt. There are times you have to cut through all the polite euphemisms and show the stark truth for what it is. Please read it is important.

Dear Family and Friends,

Where are the videos of babies being left to die without love or
medical care because they were born alive from a botched abortion?
Lacking full-color video with sound we are left to discuss such acts
only in words, but that insulates us from the moral horror of what is
being done. An illustration of this would be to consider studying the
Holocaust but not being allowed to see movies of the death camps.
That would be much more sterile.

So we need such videos to help us during this electoral season. Should
one start circulating, or if protestors should carry photos of these
babies on their signs, the pro-abortion activists would be outraged.
They wish to deny us the terrible truth of what they advocate!

Where is Obama in all this?

As a lover of transparency, he should be eager for us to have the full
facts of his position, and the video also.

We all find it difficult to separate the facts from the dubious claims
shouted by political partisans on both the left and the right during
this campaign season. I wanted to find out the undisputed facts of
Barak Obama's position on whether children born alive after an
abortion should be allowed to die, or should be loved and given full
medical care. His opponents charge that he voted against a bill
protecting such babies while he was an Illinois state senator. He
argues that his actions are being maliciously distorted.

To filter out facts from partisan rhetoric, I first went to Senator
Obama's own website to read his statement and arguments on the issue
and for a record of his actual votes on this legislation in Illinois.
See:

http://factcheck.barackobama.com/factcheck/2008/08/19/fact_check_born_alive_1.php

I found this sentence in his opening statement: "But the recent
attacks on Senator Obama that allege he would allow babies born alive
to die are outrageous lies." Yet only four sentences later we find
this sentence. "Obama voted against these laws in Illinois because
they were clear attempts to undermine Roe v. Wade."

The attacks are not only lies, but "outrageous lies." But if it looks
like a fact, and walks like a fact. . . . .

Reading a but further we find a paragraph explaining his votes against
other "Born Alive" bills. In paragraph #6 appears this sentence from
one of the bills, "Also provides that a live child born as a result of
an abortion shall be fully recognized as a human person and that all
reasonable measures consistent with good medical practice shall be
taken to preserve the life and health of the child." He voted against
this language.

Later we find this sentence, "Obama Voted Against Two Born Alive
Bills, With Almost a Quarter of the Senate, Saying They Would Be
Struck Down." So he agrees that he did vote against the Illinois
legislation, but gives reasons for dong so.

Hardly outrageous lies. Even if reasons are given to explain the
facts, the facts stand.

Four paragraphs later Obama states that he voted
"present" (effectively a "no" vote according to the rules of the
Illinois Senate) on another "Born Alive" bill which stated, ". . .
that a live child born as a result of an abortion shall be fully
recognized as a human person and that all reasonable measures
consistent with good medical practice shall be taken to preserve the
life and health of the child." Please note the identical language of
the two bills, which I have highlighted in blue.

To balance the perspective of Obama's website, I then looked for some
public right-to-life organization that would lose public credibility
if it played fast and lose with the facts in the matter.

(If this becomes too long, please be sure to read my summary at the
bottom of this message.)

The following text comes from the website of the Illinois Federation
For Right to Life. See their link at:

http://www.ifrl.org/ifrl/index.html

__________________________

"Thirty-five years after the Supreme Court decided Roe v. Wade, it's
never been more important to protect a woman's right to choose....Throughout my
career, I'vebeen a consistent and strong supporter of reproductive justice, and have
consistently had a 100% pro-choice rating with Planned Parenthood and
NARAL Pro-Choice America."

-Senator Barack Obama

Barack Obama is a co-sponsor of the "Freedom of Choice Act" (FOCA), a bill that would nullify virtually all federal and state limitations on abortion, including the types now permitted by the Supreme Court, such as parental notification laws and waiting periods. It would also make partial-birth abortion legal again. While in the Illinois State Senate, Barack Obama voted against legislation that prohibited taxpayer dollars from being used to pay for abortion. His campaign has stated that he "does not support" the Hyde Amendment, which prohibits taxpayer funding of abortion through the Medicaid program.

Barack Obama voted to block a bill to require an abortionist to notify a parent before performing an abortion on a minor who lives in another state. Barack Obama voted against an amendment to allow states to provide federally subsidized health care insurance for an unborn child (within the SCHIP program). The amendment would have written explicit language into the SCHIP statute to guarantee that a covered child "includes, at the option of a State, an unborn child." The amendment further defined "unborn child" as "a member of the species homo sapiens, at any stage of development, who is carried in the womb."

Senator Barack Obama

Record on Abortion

Barack Obama sharply criticized the Supreme
Court for its 2007 Gonzales v. Carhart decision
upholding the Partial-Birth Abortion Ban Act. He
said, "I strongly disagree with today's Supreme
Court ruling...I am extremely concerned that this
ruling will embolden state legislatures to enact
further measures to restrict a woman's right to
choose, and that the conservative Supreme Court
justices will look for other opportunities to erode
Roe v. Wade, which is established federal law and
a matter of equal rights for women."

While a member of the Illinois State Senate,
Barack Obama opposed the proposed "Born-Alive
Infants Protection Act" (BAIPA). The measure
was very similar to the federal BAIPA, which
President Bush signed into law in 2002. Obama
opposed the legislation for three straight
legislative sessions and twice spoke against the
bill on the Senate floor. He voted against the bill
twice in committee and once on the Senate floor.
Both laws were intended to provide protection for
babies who survived abortions equal to protection
received by babies who are spontaneously born
prematurely.

Since his election to the Senate in 2004, Barack
Obama has compiled a 0% voting record on pro-
life issues scored by the National Right to Life
Committee. By contrast, he has a 100% rating
from NARAL Pro-Choice America.
Please copy and distribute freely.
512 10th Street NW Washington, DC 20004
www.nrlc.org
national Right to Life
____________________________________

I will try to summarize Senator Obama's position briefly, clearly and
fairly, even if starkly: he is willing to let defenseless babies die a
horrible death because he feels that doing so would dignify them and
accord them constitutional rights that might be affirmed eventually by
the U.S. Supreme Court.

May God help us all. . . and those little human beings

Please double check me at the links above to see if I have been fair
with these sources.

Please feel free to circulate this widely.

Dennis McNutt
dmcnutt1@sbcglobal.net

Dinesh D'Souza on America

2008-04-22T20:57:00.001-07:00

9-11

2008-04-21T23:36:00.001-07:00

Tiananmen Square, 1989

2008-04-21T23:19:00.000-07:00

Man in the Arena

2008-04-21T22:45:00.000-07:00

Great McCain ad...

Homage to the Noble, the Fallen...

2007-10-07T20:47:00.000-07:00

You simply must read this piece by Christopher Hitchens on a local Irvine soldier named Mark Daily. It is simply in a word--moving--and it captures the bittersweet nature of a just cause that can only be won with the spilt blood of men whose glorious life is shortened by their courage, and sense of duty to a noble cause. There is something sublime yet painful in the example of men like Mark Daily, an example that seems to defy words...although Hitchens does an impressive job of coming close to capturing the complex brew of sadness and admiration in his prose. I may have my beef with Hitchens and his recent rants against religion, but I cannot accuse the man of not having a soul and a keen sense of morality, even if we disagree on the origins and nature of both. I believe in giving a man his due, and so I will give it to Hitchens, just as he has exceedingly given Mark Daily his due as well. Enjoy.

I was having an oppressively normal morning a few months ago, flicking through the banality of quotidian e-mail traffic, when I idly clicked on a message from a friend headed "Seen This?" The attached item turned out to be a very well-written story by Teresa Watanabe of the Los Angeles Times. It described the death, in Mosul, Iraq, of a young soldier from Irvine, California, named Mark Jennings Daily, and the unusual degree of emotion that his community was undergoing as a consequence. The emotion derived from a very moving statement that the boy had left behind, stating his reasons for having become a volunteer and bravely facing the prospect that his words might have to be read posthumously. In a way, the story was almost too perfect: this handsome lad had been born on the Fourth of July, was a registered Democrat and self-described agnostic, a U.C.L.A. honors graduate, and during his college days had fairly decided reservations about the war in Iraq. I read on, and actually printed the story out, and was turning a page when I saw the following:

"Somewhere along the way, he changed his mind. His family says there was no epiphany. Writings by author and columnist Christopher Hitchens on the moral case for war deeply influenced him … "

I don't exaggerate by much when I say that I froze. I certainly felt a very deep pang of cold dismay....

...

Everything that Mark wrote was imbued with a great spirit of humor and tough-mindedness. Here's an excerpt from his "Why I Joined" statement:

Anyone who knew me before I joined knows that I am quite aware and at times sympathetic to the arguments against the war in Iraq. If you think the only way a person could bring themselves to volunteer for this war is through sheer desperation or blind obedience then consider me the exception (though there are countless like me).… Consider that there are 19 year old soldiers from the Midwest who have never touched a college campus or a protest who have done more to uphold the universal legitimacy of representative government and individual rights by placing themselves between Iraqi voting lines and homicidal religious fanatics.

And here's something from one of his last letters home:

I was having a conversation with a Kurdish man in the city of Dahok (by myself and completely safe) discussing whether or not the insurgents could be viewed as "freedom fighters" or "misguided anti-capitalists." Shaking his head as I attempted to articulate what can only be described as pathetic apologetics, he cut me off and said "the difference between insurgents and American soldiers is that they get paid to take life—to murder, and you get paid to save lives." He looked at me in such a way that made me feel like he was looking through me, into all the moral insecurity that living in a free nation will instill in you. He "oversimplified" the issue, or at least that is what college professors would accuse him of doing.

...

Read the rest of this piece in Vanity Fair...

I would also encourage you to visit Mark Daily's myspace account and read his reasons for serving yourself...

The Banality of Evil

2007-09-21T08:49:00.000-07:00

This post is borrowed from my friend Pastorious over at CUANAS. In current times you have the President of Iran claiming he will destroy Isreal with Nuclear weapons, but somehow people just don't believe he will do it. He doesn't look that evil, the Iranians are a rational people, they are simply playing power politics, nothing more...well the pictures at the site linked here show that evil often comes in the guise of regular people. Banal just means, "common" or "unoriginal" you don't need evil to appear with devilish horns breathing fire...often it just looks like the poeple linked below...
See it Here

Liberal Hero JFK Clearly Uncompassionate...

2007-06-29T10:15:00.000-07:00

Here is JFK on Tax Cuts...does he sound like the current Republican Party or the current Democratic Party? While is an icon of the Dems they fail to understand the simple logic of a low tax growing economy and the way it "raises all boats." I don't know if the problem is economic illiteracy or simplistic compassion. Trust me the very poor will do much better in a thriving economy. There will be more jobs for them, more tax dollars, and more private charity...

I MISS REAGAN

2007-06-18T10:33:00.000-07:00

This is a segment of Reagan's speech on behalf of Barry Goldwater's presidency in 1964.

It is a truly masterful speech. It has been called the "A Time for Choosing Speech." This is a key portion of the speech dealing with foreign policy in a coldwar context but set in the current context with current images.

Enjoy...

Oil and Foreign Policy

2006-12-05T13:33:00.000-08:00

Here is a good piece by Victor Davis Hanson:

With the gruesome killing of former Russian spy Alexander Litvinenko, Vladimir Putin's Russia stands accused of poisoning yet another critic.Meanwhile, Syria continues to mastermind the murders of Lebanese democrats. Israeli-free Gaza is as violent as ever. Hezbollah is busy replenishing its stock of Iranian missiles. The theocracy in Iran keeps promising an end to Israel. Venezuela's Hugo Chavez is slowly strangling democracy in Latin America in a manner that an impoverished Fidel Castro never could.And then, of course, there's Afghanistan and Iraq.It's easy to think that all of this violent instability across the globe is unconnected. But, in fact, in one way or another, oil and its huge profits are at the bottom of a lot of it...

Read the rest

ELECTION SHOWDOWN 2006

2006-10-31T10:14:00.000-08:00

I have not posted since May. My summer and fall have been incredibly busy times. With the looming election I thought it was time to post some information for the election.

My own prediction is that the Republicans will retain leadership of the Senate but lose the House...however it all depends on the Republican get out to the vote operation that is much better than the Democrats (or so the word on the street says).

Here is a good analysis from CQ:

Buoyed by a battery of independent and partisan polls, and handicapping by CQ and other nonpartisan political analysts that shows their candidates highly competitive in battleground districts and even some traditional Republican strongholds, Democrats are increasingly bullish on their chances to net the gain of at least 15 seats that they need to oust the GOP’s J. Dennis Hastert of Illinois as the Speaker of the House and install Nancy Pelosi of California instead.
As of Oct. 27, CQ’s individual assessments of all 435 House races showed Democrats seriously contesting Republican holds on 72 seats (31 percent of the party’s current total) with seven of those races already leaning toward a Democratic takeover and 18 more considered genuine tossups — the result of a combination of Republican political weaknesses and the Emanuel team’s success at growing the roster of competitive Democratic challengers, many in districts that the party had not contested in years. By contrast, only 21 Democratic seats were in play, and only a handful appeared seriously at risk. The bottom line is that the Republicans are now ahead at least marginally in only 207 races, meaning that even if they hold on to all of those (which won’t happen) they must win 11 of the 18 tossups to retain power. The Democrats are now ahead in 210 races — nine more than the number of seats they have now — so if they hold all those leads they will need to win just eight of the tossups to gain control.
As they have throughout the campaign, the Democrats face their more daunting task in the Senate: They must gain a net of six seats to take control — an all-the-more-unlikely prospect just two years after they lost four seats. But their quest has now put them within striking distance...

WE WILL NOT BE BULLIED

2006-05-03T10:43:00.000-07:00

The May 1st immigration protests were an utter failure in my opinion. It was a failure for a number of reasons, all of which rest on a fundamental misunderstanding of politics and the soul of the American people:

1. Most people did not experience hardship in their day "without an illegal." Freeways were clearer, classrooms were less crowded, most people were able to shop and eat without a problem. To be fair, in terms of access to food was because the vast majority of illegal aliens did not protest, so they were sill on the job, cooking, cleaning, constructing, etc. Which leads to my next point.

2. It was also a failure because most illegals did not participate. Latino activists are trying to agitate a mostly apolitical group. Those who have come here illegally did not rise up politically against the corruption of the Mexican government, nor will they be politically active here. Most of them do not want to be political, and won't be, they just want to feed their families. Sure 500 thousand marchers is impressive, but it is a very small fraction of the millions that are here. Latino activists will have to wait a generation or two to politicize this group.

3. The protests were also a failure because the Latino activists fundamentally misunderstand the American people. WE WILL NOT BE BULLIED.

The American people are at their core a fair people, a good people. You can appeal to our heart. But you cannot get in our face and challange us to back down to threats or pressure, that is not in our character.

Martin Luther King realized this. He appealed to the highest in the American public. He appealed to the Declaration, the Constitution and the basic goodness of the American public. In the end Americans had to face up to the fact that they were not living up to their own deeply held ideals. King was successful, but the "in your face" black power movement was not.

Americans will not be bullied and will not give in to blackmail or intimidation. The rascist activists from La Raza and Mecha miss this fundamental point. Those who want to open avenues for citizenship for illegals might have greater success if they seek to construct arguments that appeal to Americans higher nature and acknowledge the arguments of those opposing illegal immigration make that are based on law and fairness.

The protests are just continuing a string of protests that seek to intimidate. In doing this they will backfire and the American people will no tolerate such bravado and ingratitude.

They would be much better off if they simply had a string of immigrants at a podium who stood up and said:

Gracias America, thank you for giving me opportunity, thank you for allowing me to feed my family, thank you for constructing a society that rewards hard work and opportunity, thank you for constructing a society that values the rule of law, that punishes government corruption. Thank you creating the American dream. We wish to be part of this and we submit to whatever means you deem necessary for us to become part of this dream. Thank you America, Gracias America.

No demands, no intimidation, simply gratitude. This will have a better chance of touching the hearts of Americans.

Illegals the wagon being driven by the arrogant yet essentially ignorant latino activists from La Raza and Mecha. They should jump off that wagon before these leaders drive them over a cliff.

We Protest School...err...Immigration Policy!

2006-03-29T11:01:00.000-08:00

1. I agree with Michelle Malkin about the affect of the protests. Unwittingly these walk outs will only help push the reforms that they are protesting (to the extent that they even know what they are protesting). This same thing happened in the mid '90s with prop 187 in California (that sought to deny social services to illegals). As memory serves, the measure was pretty close in the polls; that is until there were similar walk outs with thousands of students waiving flags and stopping traffic. The front page of the LA times had a 16 yr old hoodlum on the front page with a huge Mexican flag running down the middle of the street. I and many others knew that day, that 187 would pass. It would pass because those images symbolize everything that actual voters in this state actually fear. These walk outs are counter productive to their own interests and do not trigger sympathy but rather fear and outrage from those who actually have political power in this country. These protests will more likely lead to the opposite of what these students want (assuming most of them really want anything but an excuse to skip class thinly veiled as a principled stand).

2. Second, I fully agree with Dennis Prager's comment that the flaunting of the Mexican flag is simply ingratitude and there is nothing worse than an ingrate. The parents of these students fled the corruption, poverty, disease, and chaos of Mexico for the opportunities, stability, wealth, and order of the United States. Yet they celebrate the country whose ruling elite would rather engage in graft than provide a stable and prosperous society for their own citizens? Ingratitude is a very ugly thing and most Americans will not stand for it.

3. I have seen some talking heads on TV say silly things like this is the maturation of the Mexican political movement in the US. There is nothing mature or sophisticated about mobilizing teenagers to skip class. They are not voters, they will not impact voters (except to vote against them) and they will not be taken seriously. To impact this system one needs to build sustained grass roots organizations that can put pressure on government at all levels for years, even decades. These walk outs are not evidence of this. That being said, some day these students will be voters, and the hispanic vote is growing and that is something that in time cannot be ignored. But these students are not hispanic voters nor do they represent them.

4. On the Hispanic vote. The good news is that these protestors are still a minority of the hispanic community. Hispanic voters are often conservative on social issues but trend liberal on economic issues. Even on immigration, while most of them would be for more liberal policies, more than one would think favor tightening border security. For instance one recent survey found that 56% of hispanics favor maintaining or reducing immigration levels, but not increasing. Also 53% of latino voters favor laws denying drivers licenses to illegals. Also 55% believe they have to speak English and 79% believe they have to believe in the US Constitution to be considered American. High numbers also believed that moral values and the war on terror were important policy issues. My point is that these punk students do not represent most of the more responsible hispanics (legal or illegal) in this country. I also believe in the historical ability of American culture to assimilate those who come to our country (that is provided that we can actually control the amount of people that come at any one time).

5. In my view there is only one responsible party on the issue of the war on terror and only one party that recognizes the serious threat that radical Islam truly is. If that party is to maintain power, they must find a way to address security issues at the border. Meaning they must close it and control it. And they must do so without alienating hispanic voters with nativistic rhetoric or unreasonable policies, because a significant proportion of those hispanic voters could be allies (and increasingly so) in sustaining a political coalition. Republicans must maintain a winning political coalition well into the future; a coalition that will in turn allow Republicans to continue to fight the war on terror, rather than denying it exists as their opponents do. Hispanics must increasingly be considered part of this coalition an can be if the issue is handled correctly.

I believe Republicans must focus first and foremost on closing and controlling the borders and do so primarily for security purposes. That is the single most threating problem in terms of security and immigration. If this is not done then there is no reason to discuss any other programs guest worker or otherwise. However, I would not rule out such programs if the border were truly controlled.

Christmas Time at the Supreme Court

2006-03-23T10:58:00.000-08:00

It is Christmas time at the ol' SC. Yes Christmas in spring. This is the time that the court starts handing down its decisions that it heard in the fall. What makes it particularly interesting this year is we will begin to see glimpses of just what we got in John Roberts and to a lesser extent Sam Alito (only because he participated in fewer cases). It will be like unwrapping Christmas presents and seeing exactly what President Bush and the Senate gave us citizens. Will it be someone who upholds the rule of law and the written fixed nature of the Constitution or will they turn out to be one or two more "squishy" judges who enjoy altering the Constitutional text on a whim as fits their personal views of justice or societal standards.

Take a look at Georgia v. Fitzgerald which recently came down. Check out Robert's dissent, it is very promising. Scalia and Thomas are worth reading as well.

There is a point of caution in this case...yet again Kennedy drifted to the left on this case...I predict and fear that he is moving solidly into the Souter, Ginsberg, Stevens, Breyer camp...I would be surprised if he were a vote to overturn current abortion laws on future cases. That still leaves the Roe majority in place with 5 votes if I am reading tea leaves correctly.

THE CASE: The case involved whether or not an "unreasonable" search was conducted by police when the wife agreed they could search the premises but the husband refused. The Police entered on the wifes permission and found drugs and the husband was convicted.

THE MAJORITY: The Majority ruled that this was an unreasonable search because "widely shared social expectations" should govern police conduct here. They argue that if a welcome is mixed then social expectations should dictate that a guest would stay out. As such this search was "unreasonable" and violated the husband's constitutional rights.

ROBERTS DISSENT (excerpts):
The Court creates constitutional law by surmising what is typical when a social guest encounters an entirely atypical situation. The rule...provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room. And the cost of affording such random protection is great, as demonstrated by the recurring cases in which abused spouses seek to authorize police entry into a home they share with a nonconsenting abuser.

...

This exception is based on what the majority describes as “widely shared social expectations” that “when people living together disagree over the use of their common quarters, a resolution must come through voluntary accommodation.” Ante, at 6, 9. But this fundamental predicate to the majority’s analysis gets us nowhere: Does the objecting cotenant accede to the consenting cotenant’s wishes, or the other way around? The majority’s assumption about voluntary accommodation simply leads to the common stalemate of two gentlemen insisting that the other enter a room first.

Nevertheless, the majority is confident in assuming—confident enough to incorporate its assumption into the Constitution—that an invited social guest who arrives at the door of a shared residence, and is greeted by a disagreeable co-occupant shouting “ ‘stay out,’ ” would simply go away.

...

The fact is that a wide variety of differing social situations can readily be imagined, giving rise to quite different social expectations. A relative or good friend of one of two feuding roommates might well enter the apartment over the objection of the other roommate. The reason the invitee appeared at the door also affects expectations: A guest who came to celebrate an occupant’s birthday, or one who had traveled some distance for a particular reason, might not readily turn away simply because of a roommate’s objection. The nature of the place itself is also pertinent: Invitees may react one way if the feuding roommates share one room, differently if there are common areas from which the objecting roommate could readily be expected to absent himself. Altering the numbers might well change the social expectations: Invitees might enter if two of three co-occupants encourage them to do so, over one dissenter.

The possible scenarios are limitless, and slight variations in the fact pattern yield vastly different expectations about whether the invitee might be expected to enter or to go away. Such shifting expectations are not a promising foundation on which to ground a constitutional rule, particularly because the majority has no support for its basic assumption—that an invited guest encountering two disagreeing co-occupants would flee—beyond a hunch about how people would typically act in an atypical situation.

I will post more on this decision as I digest it...

Our Interconnected World

2006-03-23T10:24:00.000-08:00

Victor Davis Hanson has an interesting postmortem on the Ports deal...

In retrospect, America went collectively insane over the possibility that a company owned by Dubai's government would operate several of our ports.

Rarely has reason been so routed by pure emotion. Dubai is a Westernizing state that long ago left the 8th century and accepts the modern world of globalized commerce and finance. This member of the United Arab Emirates has — especially after Sept. 11 — passed on intelligence, hosted our fleet and provided a foothold in the Gulf near Iraq and Iran.

No doubt some members of its extended government, as is true of many of the monarchies of the Gulf, have triangulated against the United States. But then so have China, Russia and most of Europe.Yet if we are going to win this war against radical Islam, it will be through drawing the Arab world into the global system of Western jurisprudence, politics and business. The perceived defamation of a proven Arab consortium only hurts our cause.

To understand the fiasco, we must allot blame to almost everyone involved. A Republican administration — almost daily accused of talking down to "the people" — somehow feels no need to reveal how its own familiar world of transnational corporations works. Much less does anyone up on Olympus explain to us mere mortals below why our long-term strategic interests would remain safe with ports owned by Dubai's government.

The result of still more of this Harriet-Meyers "trust me" approach is that the ports deal is pilloried as near traitorous by prairie-fire conservative talk radio, blogs and cable news. The administration apparently never thought that the hyped caricature of Arabs guiding cranes on our docks was going to provide good fodder.

Meanwhile, the Democrats, who have lectured us ad nauseam about ethnic stereotyping, couldn't resist the political opening. So they jettisoned this old sensitivity to score jingoist points by suggesting that an Arab fifth column could, in theory, gain control of our ports.It was surreal to hear Sen. Hillary Clinton, D-N.Y., the multicultural guru, lecture us about the dangers of these Gulf middlemen — even as her huckstering husband advised the United Arab Emirates how to finesse the American Congress.

The American public was supposedly outraged that an Arab country would oversee the operation of its major ports. Yet did we have a clue that a Chinese company took over operation of Panama Canal ports during the Clinton administration? Do most realize that the People's Republic has amassed such a pile of U.S. dollars that it soon will control the very financial solvency of the United States?

If we are truly worried about autonomy, consider that our entire southern border with Mexico is nearly wide open. Or that former politicians like Vin Weber and Bob Dole (who also has a wife in the Senate) get richer thanks to their connections to Gulf State sheikdoms.

For a country that is addicted to imported petroleum, hooked on cheap imported goods, and eager for illegal alien labor, and which has hundreds of military bases abroad, it is a little late to worry about dangerous foreign ganglia.The port deal reveals deeper pathologies than the hypocrisy of our politicians and ignorance of the public. A now hyper-media is fueled by a 24-hour news cycle — regardless of whether there is enough earth-shattering news to justify thousands of salaried telejournalists. And 2006 is an election year, in which Democrats see advantage and Republicans fear losses.

But more importantly, the Dubai port deal shows how at odds are American perceptions and reality. For the last half-century, we have been living in a complex interconnected world of mutual reliance. Soon we will import more food than we grow. We already burn more oil than we pump. For years we have bought more than we export, and we borrow far more than we lend. To justify these precarious dependencies, America assures foreign business leaders, investors and lenders that our markets remain open and immune to the distortions of xenophobia and provincialism.

Americans may not like that devil's bargain, but it was made long ago and, for better or worse, we are long past being an agrarian republic. The resulting singular affluence of the American consumer derives from just these tradeoffs in our autonomy — and the trust we receive from those who loan and sell us things we cannot immediately pay for. So rejecting the Dubai port deal is not only hypocritical, but in the end dumb.

Constitutional Interpretations

2006-02-24T13:49:00.000-08:00

A good little piece from over at Bench Memos on the NRO site...

Over at the American Prospect’s “Tapped” blog, someone named Ulrik Jørstad Gade offers a snide commentary on Justice Scalia’s talk at AEI the other day. What bugs Gade is that Scalia would not make a choice in the false dichotomy between “strict” and “loose” interpretation of the Constitution. He quotes the justice as saying “Legal text should be interpreted neither strictly nor loosely. It should be interpreted reasonably.” For some reason Gade finds this unsatisfactory, as though it were simply a non-answer. It is in fact a capsule version of the only satisfactory answer. 185 years ago another judge put it this way:

"What do gentlemen mean by a "strict construction?" If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support or some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction which would cripple the government and render it unequal to the object for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded. As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said."

That’s Chief Justice John Marshall (of course — by now I am a broken record citing his example). Between the Scylla of “strict” and the Charybdis of “enlarged” construction of any legal text is a proper attention to the “natural sense,” the “natural and obvious import” of the words used by the makers of the text. That is surely what Scalia meant by the “reasonable” interpretation of the Constitution. If Gade is still in the dark, that’s okay. To find the reasonable, one is expected to reason. That’s Scalia’s job. It appears not to be Gade’s.

Sober Sound Judgement from Iraq...

2006-02-24T11:42:00.000-08:00

Again from Victor Davis Hanson...

The insurgency in Iraq has no military capability either to drive the United States military from Iraq or to stop the American training of Iraqi police and security forces — or, for that matter, to derail the formation of a new government. The United States air base at Balad is one of the busiest airports in the world. Camp Victory near Baghdad is impenetrable to serious attack. And even forward smaller bases at Kirkuk, Mosul, and Ramadi are entirely secure. Instead, the terrorists count on three alternate strategies:

...

Again, the question now is an existential one: Can the United States — or anyone — in the middle of a war against Islamic fascism, rebuild the most important country in the heart of the Middle East, after 30 years of utter oppression, three wars, and an Orwellian, totalitarian dictator warping of the minds of the populace? And can anyone navigate between a Zarqawi, a Sadr, and the Sunni rejectionists, much less the legions of Iranian agents, Saudi millionaires, and Syrian provocateurs who each day live to destroy what’s going on in Iraq?

The fate of a much wider war hinges on the answers to these questions, since it would be hard to imagine that bin Laden could continue be much of a force with a secure and democratic Iraq, anchoring ongoing liberalization in the Gulf, Lebanon, and Egypt, and threatening by example Iran and Syria. By the same token, it would be hard to see how we could stop jihadism from spreading when an army that is doing everything possible still could not stop Islamic fascism from taking over the ancestral home of the ancient caliphate.

Can-do Americans courageously go about their duty in Iraq — mostly unafraid that a culture of 2,000 years, the reality of geography, the sheer forces of language and religion, the propaganda of the state-run Arab media, and the cynicism of the liberal West are all stacked against them. Iraq may not have started out as the pivotal front in the war between democracy and fascism, but it has surely evolved into that. After visiting the country, I think we can and will win, but just as importantly, unlike in 2003-4, there does not seem to be much of anything we should be doing there that in fact we are not.

Read the whole thing...

Notes on Appeasement...

2006-02-23T10:10:00.000-08:00

Here is a provocative piece by Victor Davis Hanson...Enjoy...

February 22, 2006
Appeasement 101
by Victor Davis Hanson
Tribune Media Services

It is easy to damn the 1930s appeasers of Hitler — such as Stanley Baldwin and Neville Chamberlain in England and Edouard Daladier in France — given what the Nazis ultimately did when unleashed. But history demands not merely recognizing the truth post facto, but also trying to reconstruct the rationale of something that now in hindsight seems inexplicable.

Appeasement in the 1930s was popular with the European public for a variety of reasons. All of them are instructive in our hesitation about stopping a nuclear Iran, or about defending the right of Western newspapers to print what they wish — or about fighting radical Islamism in general.

...

But deja vu pertains not just to us, but our enemies as well. Like the Nazi romance of an exalted ancient Volk, the Islamists hearken back to a mythical purity, free of decadence brought on by Western liberalism. Similarly, they feed off victimization — not just recent defeats, but centuries-old bitterness at the rise of the West. Their version of the stab-in-the-back Versailles Treaty is always the creation of Israel.

Just as Hitler concocted incidents such as the burning of the Reichstag to create outrage, Islamist leaders incite frenzy in their followers over a supposed flushed Koran at Guantanamo and several inflammatory cartoons, some of them never published by Danish newspapers at all.

Anti-Semitism, of course, is the mother's milk of fascism. It is always, they say, a small group of Jews — whether shadowy cabinet advisers and international bankers of the 1930s or the manipulative neoconservatives and Israeli leadership of the present — who alone stir up the trouble.

The point of the comparison is not to suggest that history simply repeats itself, but to learn why intelligent people delude themselves into embracing naive policies. After the removal of the Taliban and Saddam Hussein, the furious reply of the radical Islamist world was to censor Western newspapers, along with Iran's accelerated efforts to get the bomb.

In response, either the West will continue to stand up now to these reoccurring post-Sept. 11 threats, or it will see the bullies' demands only increase as its own resistance weakens. Like the appeasement of the 1930s, opting for the easier choice will only guarantee a more costly one later on.

Read the rest...

The Fate of Europe? Fate of America?

2006-02-09T11:58:00.000-08:00

Here is a provocative piece by Theodore Dalrymple on the future of Europe.

If one views the American left as largely pushing for a more European approach to the world (secular, socialist, appeasement, cultural passivity) then watching and analyzing the European dilemma or developments is an important way to try and understand where they want to take us and what potential problems may be....

Hat tip to Gates of Vienna.

Is “Old Europe” Doomed?

by Theodore Dalrymple
Lead Essay
February 6th, 2006

The late Professor Joad, a popularizer of philosophy rather than a philosopher in the true sense, used to preface his answer to any question by saying, "It depends on what you mean by…"—in this case, "doomed."

The word "doomed" implies an ineluctable destiny, against which, presumably, it is vain for men to struggle. And this in turn implies a whole, contestable philosophy of history.
Historical determinism has two sources: first the apparent ability of historians, who of course have the benefit of hindsight, to explain any and all historical events with a fair degree of plausibility, even if their explanations of the same events differ widely, thus giving rise to the impression that if the past was determined, the future must be determined also; and second the tendency of people to assume that current statistical or social trends will continue, or in other words that projections are the same as predictions. One has only to consider the exponential growth of a bacterium on a Petri dish, which if continued would mean that the entire biosphere would soon consist solely of that organism, to realize that projections do not necessarily give rise to accurate predictions.

Nevertheless, it is undeniable that a pall of doom does currently overhang Europe. In retrospect, the Twentieth Century may be considered Europe’s melancholy, long withdrawing roar (to adapt Matthew Arnold’s description of the decline of religion). And just as, according to Disraeli, the Continent of Europe would not long suffer Great Britain to be the workshop of the world, so the world would not, and did not, long suffer the Continent of Europe to dominate it, economically, culturally and intellectually. Europe’s loss of power, influence and importance continues to this day; and however much one’s material circumstances may have improved (just take a look at photographs of daily life in France or Britain in the 1950s and compare them to daily life there today), it is always unpleasant, and creates a sense of deep existential unease, to live in a country perpetually in decline, even if that decline is merely relative.

...

The principal motor of Europe’s current decline is, in my view, its obsession with social security, which has created rigid social and economic systems that are extremely resistant to change. And this obsession with social security is in turn connected with a fear of the future: for the future has now brought Europe catastrophe and relative decline for more than a century.

...

The dependent population does not like the state and its agents, indeed they hate them, but they soon come to fear the elimination of their good offices even more. They are like drug addicts who know that the drug that they take is not good for them, and hate the drug dealer from whom they obtain their drug, but cannot face the supposed pains of withdrawal. And what is true of Britain is true, with a few exceptions, everywhere else in Europe.

In the name of social justice, personal and sectional interest has become all-powerful, paralyzing all attempts to maximize collective endeavor.

...

Doom or further decline is not inevitable, however, though avoidance of it requires active effort. The auguries are not good, not only because of the political immobilism that elaborate systems of social security have caused in most European countries, but because of the European multinational entity that is being created against the wishes of the peoples of Europe (insofar as they can be gauged).

The European Union serves several purposes, none of which have much to do with the real challenges facing the continent. The Union helps Germans to forget that they are Germans, and gives them another identity rather more pleasing in their own estimation; it allows the French to forget that they are now a medium sized nation, one among many, and gives them the illusion of power and importance; it acts as a giant pension fund for politicians who are no longer willing or able successfully to compete in the rough and tumble of electoral politics, and enables them to hang on to influence and power long after they have been rejected at the polls; and it acts as a potential fortress against the winds of competition that are now blowing from all over the world, and that are deeply unsettling to people who desire security above all else.

Apocalyptic thought is curiously pleasurable. Doom is too strong a word, in my view; I think it would be more accurate to say that Europe is sleepwalking to further relative decline. But we should also modestly remember that the future is, ultimately, unknowable.

Read the Rest...

Why do Civilizations Collapse?...a book review

2006-02-03T17:46:00.000-08:00

Here is an interesting book review from one of my favorite scholars Victor Davis Hanson...

Decline and Fall
From the March 28, 2005 issue of National Review.
By Victor Davis Hanson
Collapse: How Societies Choose to Fail or Succeed, by Jared Diamond (Viking, 592 pp., $29.95)

Jared Diamond’s bestselling Guns, Germs, and Steel argued that geography trumped culture, and that the current privileged position of the West was therefore mostly attributable to the advantageous resources in, and location of, Western countries, rather than to Europe’s singular values. Despite the allure of such a politically correct exegesis — President Clinton endorsed the book wholeheartedly — there were numerous criticisms of this determinist idea of natural accidents resulting in the present-day dominance of the West. At some point a Cleisthenes, Plato, Augustine, Magna Carta, Sistine Chapel, Thomas Edison, or Albert Einstein — and the thinking and substructure that produced them — is worth more than long, indented coastlines and concentrations of iron ore. Diamond seemed to be terribly confused about the course of 2,500 years of Western history: Environment, far from being a precondition for Western success, was often almost irrelevant to it.
For example, how did the Ptolemies create an even more dynamic civilization than that of the earlier dynastic pharaohs, when they inherited from them a supposedly exhausted and increasingly salinized landscape? Or why did the palatial culture of Mycenae prove to be a dead-end society, and yet the radically different Greek city-state centuries later blossomed in the exact same environment? More immediately, are we to suppose that there are underappreciated micro-climates that separate Tijuana from San Diego, strangely different soils on the two immediate sides of the Korean DMZ, and something about those ever-changing lagoons of Venice that made it irrelevant in late Roman times, a world power in 1500, and once again a backwater by 1850? Did the environment of Britain improve from A.D. 400 to 1700 while Rome’s declined, thus explaining why the former outpost of the Western world became its new center and vice versa?

...

Diamond’s natural determinism and condemnation of the West’s pathological means of exploitation are nothing new, but represent a synthesis of the previous pessimisms from Marx and Toynbee to Paul Ehrlich and Kirkpatrick Sale. Most scholars, however, would accept the notion that societies like those of the Egyptians, Romans, Aztecs, or Ottomans — civilizations that, unlike those of Diamond’s tiny settlements at Pitcairn Island or Vineland, had millions of inhabitants — at some period in their growth, evolution, and maturity inevitably declined; whether abrupt or insidious, such breakdowns were largely due to government overcentralization and rigid bureaucracy, affluence and leisure among a bored elite, high taxation, and depopulation in the countryside — all of which made rulers insensitive to change and unable to react rapidly to the radically new stimuli of invasion, novel religions, internal dissent, and, yes, occasional natural challenge

....

Yes, Americans once clear-cut the northeast, but now it has more forests than ever — because, among other things, technology moved us beyond wood-burning fuels. Iceland lost its topsoil and trees and thus many of its early settlements — but modern technology, liberal government, and Western jurisprudence ensure that its current Scandinavian descendants inhabit a successful society despite its cold, denuded, and unfertile island. And if Diamond believes that is so because Icelanders finally got smart and now follow his environmentally correct nostrums, he should ask why that is so — or what would happen in a decade should they magically be transferred to Haiti or Yemen and, in turn, Haitians and Yemenis were to take over Iceland.

Read the rest...

Bush's Legacy?

2006-02-03T13:49:00.000-08:00

Is it possible that Stevens will retire within the next year? He is 85 and if he does, expect the Roberts and Alito nominations to be child's play. Here is an interesting article exploring this possibility.

One interesting aspect of the article is the Stephens (the most liberal on the court) actually wants a Republican to pick his replacement...interesting...I just don't know how true it is. Hat tip to Confirm Them...

If Bush is able to actually get another Conservative on to the Court, he three picks that shift the Court back onto its Constitutional moorings could be one of his most enduring legacies...

Next Court Pick: Mother of All Battles
Jason Barnes and Jim MeyersThursday, Feb. 2, 2006

Speculation is that Justice John Paul Stevens, the court's most liberal member, will retire in the near future, possibly as soon as this year.

The appointment of a conservative replacement would definitely push the court solidly to the right – and likely touch off a furious fight from Democrats.

An analysis published in the Wall Street Journal found that conservative Justices Antonin Scalia and Clarence Thomas agreed on court decisions 92.4 percent of the time. Stevens agreed with Scalia-Thomas on those 787 cases only 55.2 percent of the time, the lowest percentage of any justice. The score marks Stevens as more liberal than former ACLU counsel Ruth Bader Ginsburg.

As presently constituted, the Supreme Court is balanced, with four liberals (Ginsburg, Stevens, David Souter and Stephen Breyer) and four conservatives (Scalia, Thomas, Alito and Chief Justice John Roberts).

Anthony Kennedy defies a label, and thus becomes the swing vote on many issues.

Stevens has not made any formal announcement regarding his retirement, nor is he known to be in poor health. But he is 85 years old, and rumor has it that he hopes to have his replacement named by a Republican president.

"The buzz in Washington is that Stevens was appointed by a Republican president and he considers himself one that plans to retire under a Republican president," Gary Marx, executive director of the conservative Judicial Confirmation Network, told NewsMax.

"After seeing the type of highly qualified nominees that the president has chosen in Roberts and Alito, I would think that would give him a lot of confidence that the president's not just picking ideologues to go up there, but he's picking careful jurists that understand their role as justices."

So Washington insiders say the court's current term could very well be Stevens' last.

Read the rest here...

Alito Confirmed

2006-01-31T09:32:00.000-08:00

It is good to see Alito finally confirmed to the US Supreme Court. If Roberts and Alito do not drift to the left (as often happens on the court) then there should be a solid four votes on the Court that consistently respect the text of the Constitution and not their whims and policy preferences.

Kennedy now remains the lone swing vote. It will be interesting to see how he votes in the future. Will he continue to move left and sustain a 5-4 majority for Roe and other key social decisions or will he be wooed to the right by the intellectual fire power of Scalia, Roberts, Alito, and Thomas?

Only time will tell...

ROSE BOWL 2006

2006-01-12T10:10:00.000-08:00

My first real post of the year, must address the Rose Bowl.

I was lucky enough to be in attendance of one of the greatest College Football games ever played. I am a huge USC fan so I was disappointed with the eventual outcome, however as a college football fan I was exhilirated to see two amazing teams slug it out in an instant classic. Here are some random thoughts on the game:

1. The Rose Bowl is one of the great public events ever. The environment the aescetics of the Rose Bowl are unsurpassed by any other bowl and by few if any other public events. It is just great to be there and soak it in.

2. USC was in command with 6 minutes left in the game...only to let it slip away. I would put it this way...USC opened the door just a crack and Vince Young kicked it in!

3. The Texas fans were at first cocky and by the end of the game they were relieved and overjoyed at having won. They were also very good winners. More than a few offered me congratulations and remarked how well USC played.

4. One Texas fan behind me remarked after the first play (USC got stuffed by the Texas defense) "This is not a Pac-10 defense you are facing!" yelling for anyone to hear. As USC passed for a first down on the next play I shouted back, "This isn't a Big-12 offense YOU are facing!" By the end of the game he had learned to respect USC's offense and he had kind things to say about the Trojans even in victory.

5. Why did Reggie Bush pitch the ball? (this probably cause a 6-10 pt swing in the game). Why did USC use a time out on the Texas extra point? They could have used it to try and get a feild goal with 19 seconds left in the game.

6. I hate instant replay.

7. The second Vince Young broke for the endzone I knew he was in...

8. I am glad I was able to enjoy history in the making.

I am bitterly disappointed...but What a great game!

New Year... Welcome Back

2006-01-12T10:08:00.000-08:00

Obviously I have not been faithful to posting every day. The Semester became quite demanding and I was not as able to blog as much as I would have liked. I look forward to getting back on track and posting more regularly.

Thoughts on the California Election...

2005-11-09T22:24:00.000-08:00

Looking for some perspectives on the election yesterday? One question regarding the elections is where does Arnold go from here? Will he move left to try and appease his oponnents or will he move right to solidify his base for next years election. Here is an interesting open letter from Hugh Hewitt for one is arguing that Arnold should move right and shore up his Conservative base. Here is Hugh's open letter to Governor Arnold...

"Dear Governor:
November 9, 2005 06:19 AM PST
There is no such thing as a fusion candidate, no such thing as a bipartisan campaign or a non-partisan issue, and come election night,there are just two parties, one at the GOP HQ and one at the Dem HQ. There's a winners' party and a losers' party. Last night you werespeaking to the losers' party.

I didn't go. Why bother? The polls had shown for a few days that only Prop 75 had a chance (the measure to stop public employee unions from deducting political dues from their members' paychecks without prior authroization), and besides, most of your people aren't my friends and colleagues from nearly 30 years around California politics. They are fine folks, to be sure, and I have run into them in many of the seminar rooms of the state's hundred universities, but you have now run into the reality of California politics. The folks who don't care much about politics, well, they reallydon't care much about politics. They certainly can't get you wins on their own. There aren't enough of them.

As Nixon often remarked: You can't win with just the conservatives, but you cannot win without them.

Your team told you that if you put enough bait on the hook, you'd get the troops to marching. While those that showed up no doubt dutifully voted for your four initiatives --and Prop 73, which would have required notice to parents when their teen daughter sought an abortion-- the base most certainly did not march. The collective yawn was hard to miss.

And they aren't even that upset this morning. They didn't lose a thing --you lost. Perhaps you will spend the next couple of weeks figuring out that you have exactly zero high profile GOP conservatives close to you, and that there are a whole bunch of lefties running around your offices busy advancing agendas with which the right cannot agree.

Name the conservative icon upon whom you depend and to whom you go for solid advice? There isn't one.

Name the single conservative cause with which you are associated. Spending restraint? Private property rights? Limits on abortion? Second Amendment advocacy? Judges?
You have picked fights with all the right people, but over what? Redistricting that might have cost the GOP crucial seats in D.C., a spending cap that wasn't, teacher tenure tweaks? Again, mixing it up with the public employee unions was fine, but off-year elections aren't exactly gladiator time, especially when a messed-up budget got passed because your advisors didn't want a show-down in the summer.

Which is not to say that you won't win in 2006. You probably will, because both of the would-be Democratic candidates are stiffs with big bucks, and California remembers Gray Davis. Sending all Democrats to Sacramento is a recipe for power shortages and same sex marriage, abandonment of the public schools to failure and endless traffic congestion. A Republican governor is sort of like a fail-safe on the doomsday machine of California government. This helps you, a lot.

Plus, charisma and the technique that will get a grin and a yes vote from relentlessly bored voters who care not a whit about anything are still much in demand.
(But you must know that Rob Reiner could change things. Not Beatty --who looks more and more like Nixon every day-- but Reiner. Reiner's smart, very funny, very savvy. That would be a debate for the ages. They could sell tickets. No bobo dolls named Arianna, but a real contest.)
So you've got to get serious about winning in '06, and that means getting serious about the GOP base. Some suggestions:

1. Clear out the left from inside the "horseshoe," the Governor's offices inside the Capitol.

2. Bring in some senior advisors with pedigrees on the right and listen to them. Ask Bruce Herchensohn to spend a couple of days a week in the offices, as a "minsiter without portfolio." You don't have to do a thing he recommends, but there is no more respected figure on the California right than Bruce. Associated with Bruce, but also with Reagan, is Ken Khachigian. Ask Ken to take up a post somewhere on the battlements. And raid Hoover --get Peter Robinson to convene a three day idea-fest with the folks who haven't spent their lives trading quarter percents with Sacramento's lobbyists.

3. The press operation. Someone has persuaded you that the political press is like the Hollywood gang. But they can't be wooed that way. They can't be wooed at all. And they don't matter. They don't create the buzz anymore than they do majorities. Retool and figure out new media.

4. The 2006 slate. There are big, big problems forming here, and the downticket matters as much as the top. The initiatives in the pipeline haven't been thought through. Get a marriage amendment qualified, period. And take another swing at the unions as well. Develop and qualify an initiative that protects churches/synagogues/other worship facilities from the local planning departments. Develop and qualify an anti-Kelo intiative.
Don't just say "I'll be back." Live it.

5. Finally, don't blow the California Supreme Court appointment or the rest of your judicial appointments. I sighed when I saw the latest round of your court picks in southern California. Look. If you are going to appoint Democrats to the bench --even one--don't ask me to get excited about your re-election. I know you can't do much with a legislature that makes the Swedish parliament look conservative, but you own your judicial picks. Ask around. There are great Republican lawyers who would make great Republican judges.

On the California Supreme Court vacancy, understand that this is the biggest decision you will make between now and next November. If you blow it, it will be a sure fire message to the base that the candle isn't worth the fight. If Lockyer is against a nominee, that's a great sign of that nominee's qualifications.

I don't doubt that you are more enrgized than ever and ready for a knock-down 12 months. Your spokeman on the tube last night wasn't. (Enough of "rolling up our sleeves" already!)
It is going to be sweet to win re-election, especuially after all the doom-sayers on this Wednesday morning, but you can't get there with the tactics or the team of 2005.
I know you made some lousy movies, and you must have known at some point that the team you had on the set just wasn't cutting it.

Have you got that feeling now? You should. You're the producer and the director. Change the script. Change everything. Or go back tp making movies in 15 months."

Alito It Is

2005-10-31T17:48:00.000-08:00

Samuel Alito Jr. is Bush's pick to replace O'Connor on the Court. This will almost certainly spark a Democratic reaction and great political conflict in the U.S. Senate. Democrats will likely draw a line in the sand and use whatever tools they can to defeat Alito. Both sides are jockeying to frame Alito in the public's mind. Democrats are and will seek to paint him as a "far right wing, extreme knuckle dragging conservative" and Republicans will seek to present him as a reasonable Conservative who simply has a philosophy of judicial restraint.

Here is a U.S. News article on Alito from earlier in the year...

"Nicknamed "Scalito" for views resembling those of conservative Supreme Court Justice Antonin Scalia, Samuel Alito Jr. is a favorite son of the political right. Appointed in 1990 by George H.W. Bush to the Third Circuit Court of Appeals, Alito has earned a reputation for intellectual rigor and polite but frequent dissent in a court that has been historically liberal. His mettle, as well as a personable demeanor and ties to former Republican administrations, has long had observers buzzing about his potential rise to the high court. "Sam Alito is in my mind the strongest candidate on the list," says Pepperdine law Prof. Douglas Kmiec. "I know them all . . . but I think Sam is a standout because he's a judge's judge. He approaches cases with impartiality and open-mindedness."

A New Jersey native, the 55-year-old Alito received a bachelor's degree from Princeton and graduated from Yale Law School. He worked in the solicitor general's office during the Reagan administration and was a U.S. attorney for the District of New Jersey when George H.W. Bush nominated him to the Third Circuit. His 15 years on the bench have been marked by strong conservatism on a case-by-case basis that avoids sweeping opinions on constitutionality.
In 1997, Alito authored the majority opinion upholding a city's right to stage a holiday display that included a Nativity scene and a menorah because the city also included secular symbols and a banner emphasizing the importance of diversity. In Planned Parenthood v. Casey, Alito was the sole dissenter on the Third Circuit, which struck a Pennsylvania law that required women seeking abortions to consult their husbands. He argued that many of the potential reasons for an abortion, such as "economic constraints, future plans, or the husbands' previously expressed opposition . . . may be obviated by discussion prior to abortion." The case went on to the Supreme Court, which upheld the lower court's decision 6 to 3.

Alito's conservative stripes are equally evident in criminal law. Lawrence Lustberg, a New Jersey criminal defense lawyer who has known Alito since 1981 and tried cases before him on the Third Circuit, describes him as "an activist conservatist judge" who is tough on crime and narrowly construes prisoners' and criminals' rights. "He's very prosecutorial from the bench. He has looked to be creative in his conservatism, which is, I think, as much a Rehnquist as a Scalia trait," Lustberg says.

Some observers say that Alito cannot be easily pigeon-holed. In Saxe v. State College Area School District, Alito, writing for the panel, argued that the school does not have the right to punish students for vulgar language or harassment when it doesn't disrupt the school day. "Sam struck that down as a violation of free speech," Kmiec says. "That's not a conservative outcome."
Off the bench, friends and colleagues describe Alito as quiet and self-effacing with a wry sense of humor. He is a voracious reader with a particular love for biographies and history. With his wife, Martha, he has a son in college and a daughter in high school. "He's mild mannered and generous and family oriented," Lustberg says. "I don't agree with him on many issues, but I have the utmost respect for him. No one can question his intelligence or integrity."

One more...Luttig in Play?

2005-10-28T14:43:00.000-07:00

Here is more speculation and a pitch for Luttig by Hugh Hewitt....

"Damn the Torpedoes: A Pitch for Justice Luttig.
October 28, 2005 12:25 PM PST

The encouraging news about the new short list indicates that the president is willing to run the opinions gauntlet, a preview of which we received in the attention paid my "hapless toad" case during the Roberts' hearings. Chief Justice Roberts only had a couple of years worth of opinions, though, so the distortion level we saw was significantly less than what we witnessed in September. I have long thought that this was the single biggest obstacle to a set of candidates moving to the top. Opinions are often difficult to explain to laymen, easily distorted by opponents, and mangled --intentionally or otherwise-- by media.
Both Judges Alito and Luttig (and others) have a large set of drawers full of opinions they issued, and these will all be on the table if either man is nominated. The advantage of a McConnell over a Luttig was simply skipping this parsing, but the advantage of Luttig over all others really is a sort of jovial toughness combined with deep familiarity with D.C. thrust and parry.
There is also the factor of age --51-- which would promote Judge Luttig over most others, his long and close friendship with the new Chief Justice --which I think would be a significant advantage short and long term.
But it is really temperment that gives Luttig a special attraction. Both the Chief Justice and Judge Luttig are proteges of former White House Counsel Fred Fielding, whom I have never seen perplexed or perturbed, even during his time on the 9/11 Commission when things were getting dicey with his fellow commissioners. Fielding's aplomb has been absorbed by both the Chief Justice and Judge Luttig. It is a marvelous quality in a witness having to listen to Patrick Leahy, Joe Biden etc go on for hours and hours.
The fact that Luttig has been around the D.C. wars for literally decades has two other significant advanatges.
First, he knows walking in what is coming and he will not flinch. In fact, he will smile throughout. Nothing will surprise him.
Second, he has friends on the other side of the aisle --good friends, and help unlooked for could arrive early and perhaps even often in the process.
The Farragut Option. If the president introduces Judge Luttig as the nominee, there will be no doubt about getting the band back together."

More Speculation

2005-10-28T14:08:00.000-07:00

More scuttlebut...I am not sure how much stock to put in any of this speculation but it is interesting to consider the possibilities. This again from over at Confirm Them...

"Okay, I was already rejoicing at the rampant rumors that Alito would be the choice. As I’ve posted repeatedly, he has long been my first choice. I think he is terrific. But as most of you have seen this week, my first choice for the current circumstances is Chris Cox, for reasons amply explained in other posts and on NRO. Now I see a James Pinkerton column on the wire, which tracks what John Fund has said on MSNBC. I hope that if the Alito rumors aren’t right (and it would be great if they ARE right), then the reason they aren’t right is because these other rumors a la Pinkerton are correct isntead. Either way, we win! Here’s the key passage from Pinkerton:But if Bush wants to keep his base happy and get his nominee on the court, he does have one option. The hot rumor in D.C. is that he is eyeing Christopher Cox, a former Republican congressmen with impeccable conservative credentials, who in August became chairman of the Securities and Exchange Commission.Cox has the brainpower for the job, and he was unanimously confirmed by the Senate just a few months ago. Indeed, he is an obvious choice for Bush, except for one thing: He’s a white male. But the conservative movement has never worried much about diversity. That’s a preoccupation of the liberal movement, and it has never been for Bush, nor will it ever be."

Forza Italia...Alito?

2005-10-28T13:41:00.000-07:00

Here is the latest rumor over at Confirm Them...

"Multiple sources are telling RedState that Samuel A. Alito, Jr. of the Third Circuit Court of Appeals will be named by the President at the next associate justice of the United States Supreme Court as early as Monday.
“The situation is still in flux,” says one source, “but not very much.” Says another, “The White House Counsel’s Office is not doing too good at keeping this a secret.”
Still another source says, “Luttig and Alito were the fall backs to Miers. They have both been vetted. Alito seems more palatable. There is no need to drag this out, he’s been vetted a million times.”
And yet another source tells me that he is convinced Alito is the nominee barring some last minute unforeseen issue. All signs are pointing to Judge Alito right now. Things could change, but as the weekend draws closer it seems more and more likely that Judge Alito will be the nominee and conservatives will have a fight on their hands in the Senate — a very winnable fight."

A Plea for Cox

2005-10-27T12:44:00.000-07:00

One writer over at Confirm Them is making a plea for Chris Cox. I don't have firm reasons, but I doubt he will be Bush's pick...An interesting take and a compelling argument.

"As big a fan as I am of Alito, Batchelder and Sykes — all three of whom, along with a few others, would receive my enthusiastic support — I repeat here my arguments for Chris Cox as the nominee. 1) He is brilliant. 2) He is a wonderfully principled conservative. 3) He has a tremendous resume at Harvard Law, as a federal appeals court clerk, running a business translating Russian newspapers, serving in a solid law firm doing important work, serving in Reagan’s counsel’s office vetting judicial nominees, serving 17 years in Congress including either 10 or 12 in leadership, chairing important committees that reached bipartisan consensus on crucial matters, thinking deeply and writing cogently on constitutional issues while in Congress, and now SEC chairman. 4) He just was confirmed unanimously (I believe) to the SEC, with bipartisan praise, so he’s tough to attack politically. 5) He enjoys excellent relationships across the aisle because, even though he is so conservative, he is so consistently fair, courteous, etc. 6) Republicans like him enough that if Dems DID try to filibuster him, there is NO QUESTION the GOP would invoke the constitutional option to pass him, and in the process obviously kill the filibuster against judges for good. 7) Bush and Cheney both like and respect him. If he gets confirmed,he embarrasses Barbara Boxer for her blue slip against his Ninth Circuit nomination. 9) He is so telegenic, so articulate, so quick on his feet, so obviously brilliant and upstanding and dignified — but still so youthful in terms of energy level, etc., making him dynamic — that the Dems won’t be able to lay a hand on him during hearings, as he explains our jurisprudential philosophy even more effectively than Roberts does. I.e, he is the perfect person to make this a “teaching moment” for the country and help bring the general public even more firmly on our side. 10) He’s only 53, and appears to be in great shape, so he should be able to serve for 25 years.Okay, I could add other reasons, but 10 is a nice, round number. Let me just add a personal note, that I have worked with him personally in a small group when I was an aide to Bob Livingston, and so I have seen first-hand, in a way most staffers of other members don’t, all his brilliance and other solid personal characteristics.COX FOR SCOTUS!"

We were Against Her Before We Were For Her

2005-10-27T12:40:00.000-07:00

Here is an interesting piece from Carol Platt Liebau from over at Confirm Them...

"At this point, it’s extremely important to point out that the discontent over the Miers nomination was bipartisan, at the very least — because Barbara Boxer has just been stating (on Fox radio news) that she “had no problem” with Harriet Miers.
Ha. Check out this quote from the San Francisco Chronicle:
Barbara Boxer: “Here’s what I know about Harriet Miers,” Boxer said. “I know that she’s a crony of the president. I know she thinks he’s the most brilliant man she’s ever met. I know that she was head of the search committee and wound up being the nominee, and I know that she is personally anti-choice. Those are things I know.”
And Russ Feingold said (as reported here), “The president has chosen someone here about whom objectivity and independence is a very real question. He’s selling this to the American people, saying, ‘This is a person I know real well. You should trust me and trust her.’ This is one of the president’s closest confidantes.”
As for Patrick Leahy, check this out: “Leahy Has Concerns About Harriet Miers.” In it, he said, “What I do know is that she has a reputation for being loyal to this president, whom she has a long history of serving as a close adviser and in working to advance his objectives.” That’s not a compliment, coming from him — and don’t forget he was one of the first to note that some had characterized Ms. Miers initial questionnaire as “insulting”.
Hillary Clinton’s reaction to the Miers nomination was described as “cool.”
And this piece notes that Teddy Kennedy may have been working to defeat the nomination behind the scenes.
And, of course, MoveOn.org was digging for dirt.
The long and short of it is that no Democrat had pledged support for Ms. Miers, and Republicans were unhappy. Seems to me that few of them can fault the President for listening to some of his conservative constituents when they themselves were unwilling to press for Ms. Miers to get a hearing.
Let’s not permit the liberals to start rewriting history."

Miers Withdraws

2005-10-27T12:17:00.000-07:00

Today, Miers has decided to call it quits...obvious speculation is that she was asked by Bush to resign under pressure from the conservative wing of the party. True, Bush was under pressure from conservatives, but that alone did not change things in my opinion. Conservative opposition was important, but so was the emerging picture of Democrats ready to torpedo her nomination in order to deal Bush a political blow. With support from Capitol Hill waning it became increasingly clear that Miers would not make it.

My guess is that she likely saw the writing on the wall and the White House was willing to be bailed out on this one. If I were Miers and I knew that Conservative Republican senators had no confidence in me or my nomination and Democratic senators would be seeking to sink my nomination to deal Bush a political setback, and both had begin to coalece around accusations about my competance, I would certainly begin to have second thoughts about going through the process. Furthermore, in this context the hearings began to look more and more like the potential for both sides to engage in a game of human pinata. Who would seek to put themselves through this? Thus, I will not immediately subscribe to the cynical view that she was asked to resign by Bush. However, I also believe the White House was more than willing for her to step aside given the forboding future ahead. Below is the AP story, complete with "objective" speculation as to what really happened.

Don't let the story fool you, Democratic senators, the very ones quoted in the story were having doubts and were ready to pounce on Miers...

"WASHINGTON - Under withering attack from conservatives,

President Bush abandoned his push to put loyalist Harriet Miers on the Supreme Court and promised a quick replacement Thursday. Democrats accused him of bowing to the "radical right wing of the Republican Party."

The White House said Miers had withdrawn because of senators' demands to see internal documents related to her role as counsel to the president. But politics played a larger role: Bush's conservative backers had doubts about her ideological purity, and Democrats had little incentive to help the nominee or the embattled GOP president.
"Let's move on," said Republican Sen. Trent Lott of Mississippi. "In a month, who will remember the name Harriet Miers?"....

....Bush blamed the Senate for her demise.
"It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House — disclosures that would undermine a president's ability to receive candid counsel," the president said shortly before leaving for Florida to assess hurricane damage.
There were few regrets on Capitol Hill, from either party. Republicans control 55 of the Senate's 100 seats, but several GOP lawmakers were wavering on Miers amid intense lobbying from conservative interest groups.
Republicans and Democrats alike questioned her qualifications — Miers had never served as a judge — and Bush faced charges of cronyism for tapping his former personal lawyer for the highest court in the land.
Frist spoke with White House chief of staff Andy Card Wednesday night and offered a "frank assessment of the situation," Frist spokesman Bob Stevenson said. Coincidentally or not, Miers told Bush of her plans the same night.
"Somebody probably pulled her aside and said, 'Harriet, it's going to be a terrible experience and why go through with it, because they've already made up their minds,'" said Sen. George Voinovich, R-Ohio, who blasted conservative groups for undermining the nominee. Other lawmakers welcomed the move.

Read the rest of the AP story....

Anti is Not Just Your Uncle's Wife...

2005-10-25T09:59:00.000-07:00

Dennis Prager has an interesting column this week and I thought I would bring your attention to it...

The difficulty of intellectually engaging the Left
By Dennis Prager

One of the more appealing aspects about being on the Left is that you do not necessarily have to engage your opponents in debates over the truth or falsehood of their positions. You can simply dismiss your opponent as "anti."

Anti-worker: It all began with Marxism. If you opposed communism or socialism, you were not merely anti-communist or anti-socialist, you were anti-worker. This way of dismissing opponents of leftist ideas is now the norm. Anyone, including a Democrat, who raises objections to union control of state and local politics is labeled anti-worker: "anti-teacher," "anti-firefighter," "anti-nurse," etc. This is how the unions are fighting California Gov. Arnold Schwarzenegger's attempts to rein in unauthorized union spending of members' dues to advance leftist political goals. He is depicted as an enemy of all these groups.

Anti-education: Those who object to the monopoly that teachers' unions have on public education and to their politicization of the school curricula are labeled "anti-education." Of course, the irony is that if you love education, you must oppose the teachers' unions.

Anti-intellectual: If you object to the dwindling academic standards at universities, or to the lack of diversity in ideas there, you are dismissed as "anti-intellectual." Given the universities' speech codes, the intellectually stifling Political Correctness that pervades academia, and the emotionalism that characterizes most leftist views on campus (American "imperialism," Israeli "apartheid," "war for oil" are emotional outbursts, not serious positions), if any side seems to express anti-intellectualism, it would be the Left....

...Anti-peace: The very fact that anti-war and "peace" activists have labeled themselves "pro-peace" and "anti-war" renders their opponents vulnerable to charges of opposing peace and even loving war. Again, no intellectual argument is needed. According to much left-wing rhetoric, those who support the war in Iraq do not love peace. Of course, there was no peace in Iraq prior to the American deposing of Saddam Hussein, and there would be far more bloodshed if America now left Iraq. But it is far harder to engage those arguments than to label those who make them "anti-peace."

Read the rest...

The Debate Goes On...

2005-10-25T09:56:00.000-07:00

One interesting analysis of the Miers nomination comes from Hugh Hewitt who has articulated these general themes on his radio show.

He argues that…
1. Bush and his team knew they did not have the votes in the Senate to defend the nomination of a known conservative. The Gang of seven (Snowe, Collins, Chafee, De Wine, Warner, McCain, and Graham; and perhaps even Specter) were not solid votes to override a Democratic filibuster. While they may have a 51 vote majority to confirm a conservative, they did not have a 60 majority to override the filibuster, nor a 51 vote majority to institute a rule change eliminating the filibuster.
2. Thus the timing is not right to have WWIII over the principle of whether or not judicial filibusters are Constitutional, and over what a legitimate judicial philosophy regarding Constitutional interpretation is. Because of weak Republicans, Bush did not have the numbers to have an all out war over the judicial nominee thus he went with a “stealth conservative” pick that is confounding both sides of the spectrum as to her true philosophy. (Bush may have miscalculated the depth of conservative anger over her however).
3. Bush may be banking on getting another nominee next summer (perhaps a big if…). If so senators facing election in November will be less inclined to vote against their Republican brethren when they know they will be facing Republican voters a mere month or two later. This may be the time to push for the Conservative nominee that we all want. Is it better to hold your fire now and save it for all out war later?
4. In the mean time Bush decided to go with someone he knows very well and “anti-Souter” in his mind since his father barely knew Souter. While she was not the best choice He knew “in his heart” that she would uphold an original intent standard even while no one else from the outside can be sure.
5. Hewitt also makes the observation that those justices that have not strayed to the left came directly out of working in partisan administrations (Rehnquist, Scailia, Thomas) and those that have strayed have come from the bench or have not been in directly partisan offices in a Presidential administration (O’Connor, Kennedy, Souter). He argues, Miers partisan credentials may provide the glue for her judicial philosophy.

I am not necessarily subscribing Hewitt’s views or to Bush’s potential strategy here, and it does include a lot of “ifs.” But, Hewitt’s analysis is the most novel I have heard and brings in the political constraints that may be influencing Bush’s thinking. The question of whether or not Bush would prevail in a war with the Dems now, and whether Republicans will be better positioned at a later date for all out war is a fair question. Also what is the best predictor of a justice who will not stray in their philosophy is a fair question. I am not sure I know the answer to that one.

Miers under attack...

2005-10-06T12:27:00.000-07:00

Some samplings from the bristling attacks in the political cartoon world...

Controversy Ensues...

2005-10-06T11:59:00.000-07:00

DAVID FRUM ON WHY MIERS SHOULD NOT BE THE CHOSEN ONE...
"OCT. 5, 2005: RULE OF REASON
The president was visibly angry at his press conference yesterday. Nobody likes criticism, especially when it's justified. But was he convincing? He sure did not convince me. The closest thing he offered to a defense - praise for his nominee for hailing from outside the "judicial monastery" - entirely misses the point. Senator John Cornyn elaborates on this defense in the Wall Street Journal this morning, and makes it clearer than ever what is wrong with it:
"[S]ome have criticized the president because he did not select an Ivy-League-credentialed federal appeals court judge for the open seat."

The problem with Harriet Miers is not that she lacks formal credentials, although she does lack them. Had the president chosen former Solicitor General Theodore Olson, or Securities and Exchange Commission chair Christpher Cox, or Interior Department secretary Gail Norton, nobody would complain that they were not federal appeals court judges.

Or had the president named Senator Jon Kyl (LLB, University of Arizona) or Senator Mitch McConnell (LLB, University of Kentucky) or Edith Jones Clement (LLB, Tulane), nobody would be carping at the absence of an Ivy League law degree.

Those who object to the Miers nomination do not object to her lack of credentials. THey object to her lack of what the credentials represent: some indication of outstanding ability.
The objection to Miers is not that she is not experienced enough or not expensively enough educated for the job. It is that she is not good enough for the job.
(See more on this in my article in the next print NR.)

And she will remain not good enough even if she votes the right way on the court, or anyway starts out voting the right way. A Supreme Court justice is more than just a vote. A justice is also a voice.

The president's defense of Miers in many ways amplified the problem. His case for her boils down to: "Because I say so" and "She really is a nice person."

But "because I say so" is not an argument. It is an assertion of pure authority. And have not the great conservative legal minds of the past three decades warned again and again that the courts have gone wrong precisely because they have relied too much on authority and too little on argument?

"She really is a nice person" likewise is a statement grounded on feeling rather than thought. And don't conservatives object to legal liberalism precisely because it is based on sloppy emotion rather than disciplined thought?

Legal conservatism is a powerful and compelling school of thought. The Scalias and the Thomases and the Rehnquists have changed the law not by forcing their positions on the country by brute vote-counting, but by persuasion. That's why, to pick out just one example, that Bush v Gore was decided by a 7-2 majority and not lost 3 to 6.

This president has never believed much in persuasion. He believes that the president should declare and that the country should then follow. But judges cannot and should not do that. He should have chosen a justice who could lead by power of intellect, and not because she possesses 1/9 of the votes on the supreme judicial body

It has been conservatives who have been most up in arms about the Miers nomination - and can I single out here the broadcaster Laura Ingraham, who has been first and most forceful with this story? Not for a second has she wavered under the pressures that have been deployed against her and the others who have joined this fight.

But the Miers nomination is a disservice, not just to conservatives, but the whole country.
All Americans are entitled to know that those judges who exercise the power of judicial review have thought hard and deeply about the immense power entrusted to them. If the courts were just about getting the votes, then the preisdent should have chosen Dennis Hastert for the Supreme Court. But to change American law, it's not enough to win the vote count. You have to win the argument. And does anybody believe Harriet Miers can win an argument against Stephen Breyer?

Yesterday's White House talking point was that Miers "reflects the president's judicial philosophy." OK. But can she articulate it? Defend it? And persuade others of it - not just her colleagues, but the generations to come who will read her decisions and accept them ... or scorn them. That's the way this president should have thought about this choice. And that's the way the Senators called on to consent to the choice should be thinking about it now.
PS"

HUGH HEWITT ON MIERS AND FRUM
"October 5, 2005 07:39 AM PST
The sort of conservative critique of Harriet Miers that ought to embarass all conservatives is a personal attack that makes sweeping assertions without a detailed factual basis, and which also makes claims that can not be rebutted by resort to evidence, present or future. It is the sort of critique that David Frum makes this morning. The ordianrily persuasive and careful Frum doubles down (triples down?) on his first blast at Miers, and does so in such a fashion as to raise the question of whether there is some personal ax being ground fine here. Frum served 13 months in the Bush White House as a speechwriter, a time when Harriet Miers was Staff Secretary, so they know each other -- a little or a lot, I don't know. Given what follows in this column, you have to wonder what sort of relationship they had.

Here's the key paragraphs of the Frum blog from this morning:
Those who object to the Miers nomination do not object to her lack of credentials. They object to her lack of what the credentials represent: some indication of outstanding ability.
The objection to Miers is not that she is not experienced enough or not expensively enough educated for the job. It is that she is not good enough for the job.
(See more on this in my article in the next print NR.)
And she will remain not good enough even if she votes the right way on the court, or anyway starts out voting the right way. A Supreme Court justice is more than just a vote. A justice is also a voice.

Not only is Frum inaccurately reporting the harshest criticism made of Miers --though not from him-- he is turning his face from all contrary evidence already on the table and, incredibly, puts forward the anti-intellectual argument that nothing she does or writes in the future will be enough to ever prove him wrong."

JAMES LILEKS ON MIERS
"The wailing! The gnashing! The rending of garments! If the conservative reaction to Harriet Miers is any indication, Bush has no chance of winning a third term. The decision to appoint a relative unknown – or, given her proximity to the Bush inner circle, an unknown relative – has caused many on the right to open a vein and the let the despair flow out into the warm bath of misery, disappointment, and overextended metaphors. Why didn’t Bush clone Scalia in a dish and appoint him? Here, use some stem cells if you have to. Anyone but another Souter!...

...Keep one thing in mind: Souter was nominated by Bush 41, who stood for genial, ideologically indifferent governance by the Establishment. Bush 43, we’re constantly told by his opponents, is so besotted by neocon ideology he cannot blow his nose without calling Wolfowitz and asking if it’s okay to touch his left nostril. He would nominate a squishy cipher? Maybe....

...And it shouldn’t bother the administration that hard-core conservative pundits aren’t happy. They’re never happy nowadays. These were the people who caught a whiff of Souterism in John Robert’s nomination, and wouldn’t be happy unless a nominee announced his intention to back Souter into a corner in the cloakroom and give him a turbo-wedgie every day. Yes, the base would be happier if the Republicans acted like a party that had won all the elections, and pursued its agenda as unapologetically and brazenly as some accuse. But what does one expect? The operative word in that sentence is “Republicans,” the party that dare not speak its own name. If it’s pronounced Conservative, that is. "

Harriet Miers nominated by Bush

2005-10-06T11:41:00.000-07:00

Bush has made his nomination...a quite controversial one...for the right. Both sides have expressed mirror image opinions of the nomination:

Stealth Candidate- Right fears she is a lefty stealth candidate, the Left fears she is a righty stealth candidate.

Both sides agree they don't know much about her political views, or judicial philosophy.

Here is her bio over at the Washington Post...

Harriet Ellan Miers was born in Dallas on Aug. 10, 1945.
Miers received her bachelor's degree in mathematics in 1967 and JD in 1970 from Southern Methodist University. Upon graduation, she clerked for U.S. District Judge Joe E. Estes from 1970 to 1972. In 1972, Miers became the first woman hired at Dallas's Locke Purnell Boren Laney & Neely.
In March 1996, her colleagues elected her the first woman president of Locke, Purnell, Rain & Harrell, at that time a firm of about 200 lawyers. She became the first woman to lead a Texas firm of that size.
Locke, Purnell eventually merged with a Houston firm and became Locke Liddell & Sapp, LLP, where Miers became co-managing partner of a firm with more than 400 lawyers.
Miers had a very distinguished career as a trial litigator, representing such clients as Microsoft, Walt Disney Co. and SunGard Data Systems Inc.
Throughout her career, she has been very active in the legal community and has blazed a trail for other women to follow.
* In 1985, Miers was selected as the first woman to become president of the Dallas Bar Association.
* In 1992, she became the first woman elected president of the State Bar of Texas. Miers served as the president of the State Bar of Texas from 1992 to 1993.
* She played an active role in the American Bar Association. She was one of two candidates for the number two position at the ABA, chair of the House of Delegates, before withdrawing her candidacy to move to Washington to serve in the White House. Miers also served as the chair of the ABA's Commission on Multijurisdictional Practice.
On numerous occasions, the National Law Journal named her one of the nation's 100 most powerful attorneys and as one of the nation's top 50 women lawyers.
Miers also has been involved in local and statewide politics in Texas.
* In 1989, she was elected to a two-year term as an at-large candidate on the Dallas City Council. She chose not to run for re-election when her term expired.
* Miers also served as general counsel for the transition team of Governor-elect George W. Bush in 1994.
* From 1995 until 2000, Miers served as chairwoman of the Texas Lottery Commission, a voluntary public service position she undertook while maintaining her legal practice and other responsibilities. When then-Governor Bush appointed Miers to a six-year term on the Texas Lottery Commission, it was mired in scandal, and she served as a driving force behind its cleanup.
Miers came to Washington, D.C., in 2001:
* She was appointed assistant to the president and staff secretary on Jan. 20, 2001.
* In 2003, Miers was promoted to assistant to the president and deputy chief of staff.
* Miers has served as counsel to the president since February 2005.
She is not married and does not have children.Two brothers and her mother live in Dallas; a third brother lives in Houston.

March of the Thin Skinned...

2005-09-29T09:30:00.000-07:00

A couple of concerned citizens are filing a suit in Las Cruces due to a horrible violation of their rights...What was this violation you ask? Were they drug from their homes by city officials and forced to recite the Lord's prayer in public? Were they taxed to support the establishment of the Catholic Church in the city of Las Cruces? Were they fined for not attending Christian services every week? Were they forced to sign a statement of adhering to the Christian faith before being elected to public office or getting a job in city government? Were they subjected to epithets or denunciations from government officials for their lack of adhering to the Christian faith? Were they vitims of a religious covenant that only allowed Christians to sell property to other Christians? How were their rights so terribly violated?

Well they have CHOSEN to live in a city whose origins and name are rooted in a historical religious heritage. They have CHOSEN to live in a city whose name when translated into English means "the crosses." They have CHOSEN to live in a city who has for more than 40 years utilized a logo that symbolizes its name and its historical heritage by utilizing three crosses on the logo.

Furthermore, these poor citizens are subjected to seeing these crosses on the city logo on city vehicles and on...stationary. Their Constitutional rights are actively being violated by the mere sight of stationary...this is truly a travesty of epic proportions.

What a set back for civil rights in our country. I mean when two citizens have chosen to live in a city where they may inadvertantly see a municipal vehicle with the cross logo, or may have to fill out a job application with a logo on the letterhead I just don't think our country is living up to its core principles. I am outraged! Citizens should never have to see religious symbols that do not reflect their own beliefs. Citizens should never have to see evidence of the religious heritage of the town in which they live. We should never have to be subjected to such visual reminders of our country's religious diversity and background.

I know exactly how these men feel. I know I am deeply offended when I visit Japan and I see Budhist artifacts and historical temples that recieve government funding...I think...how dare they affront me with the dominant religious and cultural heritage of Japan! Don't they know I do not share the Budhist faith? How can they allow their government to fund such obtrusive and insensitive objects? I am so glad that I can live in a country that is progressively working towards removing any historical reminder of our religious heritage...someday when people visit the United States we can hope that there will be no official civic reminders of the religious origins and history of certain towns and cities. The religious past of the country and some of our localities may be factual, it may be historical, but some history is just too offensive to be reflected in any official way...we must insure that our society reflects the needs of the most easily offended amongst us. We need to be sensitive to the thin-skinned Americans that cannot cope with some of the historical realities of the society in which they choose to live.

"LAS CRUCES, N.M. (AP) - The city of Las Cruces' official emblem has three crosses that a federal lawsuit alleges are unconstitutional religious symbols on public property.

The lawsuit, filed Sept. 16 in U.S. District Court in Albuquerque, seeks the removal of the crosses."The crosses serve no governmental purpose other than to disenfranchise and discredit non-Christian citizens," said the lawsuit filed by Paul F. Weinbaum, who lives in the Las Cruces area, and Martin J. Boyd of Las Cruces.

Defendants include city officials, city councilors, Mayor Bill Mattiace, District Attorney Susana Martinez, state Attorney General Patricia Madrid and Gov. Bill Richardson.

"We have had to defend ourselves before and we're ready to do it again," Mattiace said."The crosses have a basis for being in our logo. We will hold course and will defend that," he said. Las Cruces is Spanish for "The Crosses."

Fermin Rubio, city attorney, said the lawsuit did not raise any new issues since attempts were made in 2003 to prevent the city from using the logo.

The state Highway and Transportation Department, now the Department of Transportation, had announced that the logos would be removed from two state highway underpasses. But Richardson ordered the agency not to remove the logo from state roads, saying it represents a historical event and is a point of pride for Las Cruces residents."

Read the rest of the article...

Speculation Mounts...

2005-09-27T10:00:00.000-07:00

More speculation from over at Confirm Them...

"With a Presidential announcement any day regarding Sandra Day O’Connor’s replacement, it is time to review what we know and what we do not know.
First, we know that many in the legal community think Priscilla Owen has the nod. Robert Novak’s reporting has been consistent with that assumption. We also know that she had a private meeting with the President. Lastly, we know the President is fond of her. Unfortunately, some also think Owen is not strongly pro-life and would never vote to overrule Roe v. Wade.
Second, I have five unconnected sources, including two inside the White House, who are telling me that Rove thinks Gonzales needs to be considered and that Gonzales is more conservative that we all think. The Washington Post has had similar information. One source alone would be rather inconsequential, but five unconnected people telling me the same thing makes me think this is credible. Nonetheless, I agree with K-Lo. I do not think Alberto Gonzales will become Justice Gonzales. I just don’t see it happening.
Here’s why. The conservative base got a very upset stomach when it appeared all but certain that Joy Clement was the nominee. The base is already against Gonzales. While Rove may be doing his calculations that there is enough on the court’s docket to prove Gonzales’s bona fides before the midterm elections, the base will be apoplectic for a good long while and the President will have a lot of difficulty moving what little remains of his agenda until people realize Gonzales is actually a conservative. Additionally, what went under the radar for most was that while Rove is pushing Gonzales, there are doubts as to how easily Gonzales could be confirmed. The Democrats are itching for a fight and Gonzales gives them lots to fight with.
If the President wants to rally the base, choosing Gonzales would be a disaster. The base is already angry over spending and Gonzales will not help. This does not make sense and I do not think it will happen.
What we do not know is very obvious. Who the nominee will be is a great mystery right now. Owen is up there. I still think Luttig is in play based solely on my gut and his qualifications. One name that started surfacing in my email and IMs over the past twenty-four hours has been Diane Sykes. Batchelder’s name keeps coming up too.
Perhaps the most interesting name that keeps surfacing is that of Miguel Estrada. Former Solicitor General Ted Olson has been a big proponent of Estrada’s, but it is unclear that Estrada wants to try that fight again — especially when the stakes are so much higher. I am, however, inclined to think the next justice will come from one of the United States Courts of Appeal and Estrada does not fit.
The White House is doing an even better job of keeping the lid on this nominee than the last. That leads me to believe that all the outside chatter is meant to misdirect us from the actual nominee. I have said repeatedly here and elsewhere that Karl Rove and President Bush both believe one of the main reasons the Republicans have been so dominant since 2000, is because of a conservative base who think judicial victory is just around the corner. That to me means that we will see the President nominate a conservative — perhaps not a Jones or a Garza, but a conservative of high professional reputation with a paper trail that does not contain the specific answer to the question “how definite has the nominee been on the issue of overturning Roe?”
We’ll find out who it is rather soon."

Roberts Out of Committee

2005-09-22T12:30:00.000-07:00

Roberts is successfully out of committee. Surprisingly he did get three Democratic votes. This vote should be seen in the context of both sides jockying for position to win the battle of public opinion on the next nominee. The fact that Patrick Leahy voted for Roberts does not mean that Leahy truly supported him, likely it means that now when the next nominee comes up Leahy can credibly say that he is not unreasonable, since he did support Roberts, but this nominee (fill in the name) is just too extreme and he will have to vote against them. The Dems will likely seek to have enough votes against Roberts to satisfy their core constituencies but enough votes to try and credibly claim that they worked with Bush on the Roberts nomination. By appearing reasonable on Roberts it gives them more room to conduct an all out war on the next nominee. They can tell the public, "See we can work with Bush when he sends 'moderate' judges, but this one is just too extreme."

There will likely be little difference between Roberts and the next pick except for the fact that they will be replacing O'Connor not Rehnquist.

All the while the Republicans will seek to paint the tepid Democratic support for Roberts as proof that they are unreasonable and cannot be satisfied, thus the Republicans will be justified in changing Senate rules should the Dems filibuster the next nominee.

The relative ease with which Roberts will be confirmed will only serve to doubly intensify the next battle.

Roberts will not alter the balance on the court. The next nominee will. Dems cannot let that happen for the Court has been their most reliable and forceful public policy organ.

"WASHINGTON Sep 22, 2005 — The Senate Judiciary Committee on Thursday approved John Roberts' nomination as the next Supreme Court chief justice, virtually assuring his confirmation by the Senate next week.
The official tally of 13-5 was anticlimatic, with the committee's 10 majority Republicans lined up solidly behind the conservative judge's nomination to the full Senate weeks in advance.
But the decision by three Democrats to join Republican efforts to make Roberts the nation's 109th Supreme Court justice outlined the division in the minority caucus over whether Democrats can, or should, mount even symbolic opposition to Roberts to send President Bush a message on his next Supreme Court nomination..."

Read the Rest...

Speculation on O'Connor's Replacement

2005-09-20T09:55:00.001-07:00

When you start with your best foot, how do you avoid stumbling on your next step. If Roberts was so exceptional that the Dems couldn't touch him, then how do you follow his performance? Who do you pick who will be similarly excellent and qualified, but who will be able to stand up to the withering attacks from the Left. The battle for the next nominee will be much more heated, by a factor of at least 10. There will be fireworks and who do you expect will be able to withstand the onslaught?

Here is another piece from Confirm Them:

"Needed: One Tough Judge

The New York Times reports that The White House is revising its criteria for Justice O’Connor’s replacement: The nominee needs to be tough. Quite rightly, the Administration apparently suspects that the Democrats’ frustration at being unable to lay a finger on Judge Roberts may spill over and be vented on the next nominee.

Fair enough — in my view, any Supreme Court nominee should have the mental toughness that will serve him/her well not only in confirmation hearings, but in resisting the blandishments of the (liberal) Beltway establishment if he/she is ultimately confirmed.The story likewise notes that some Democrats want to muster numerous votes against John Roberts to “send a message” to The White House, while others believe most Dems should vote for him in order to promote the illusion that they are reasonable.

But the real truth comes at the story’s end, when it’s noted that liberal legal groups and unions have come out against Judge Roberts’ nomination. The fact is that these groups will oppose any Bush nominee. So the nominee might as well be someone who’s worth what will surely be a bitter and unpleasant fight. "

In another piece there is a vote for Luttig...

"I spoke with a member of our version of the House of Lords today. He has a decided preference for O’Connor’s spot — Judge Luttig. His reasoning, though basic, makes sense.Roberts, he said, sets the bar very, very high for any other nominee. “The field is very small for top notch conservative judges,” he says. “In my opinion, at the very top there are only two who are of Roberts’ caliber: Michael Luttig and Michael McConnell.”

“We know the Democrats are going to fight like hell. We need a nominee who can withstand the assault, handle himself as well under questioning as Roberts, and appear as credible to the public as Roberts did.” The Senator thinks that Luttig and McConnell fit those criteria better than any other potential nominee.

Of those two, the Senator is more comfortable with Luttig than McConnell. Luttig is “more judge than academic” to the Senator and the Senator thinks Luttig would be better equipped to handle the questions and the fight.

“The President will be consulting with the Senate. I intend to suggest that Michael Luttig should be considered.”"

The Politics of Voting...

2005-09-20T09:41:00.000-07:00

Here is some speculation of the confirmation of Roberts from over at Confirm Them:

"Notwithstanding the WaPo editorial and the “Dean” of the Washington Press Corp going to bat for Roberts (which we know will make some conservatives nervous), I hear that the vote will not be a landslide for Roberts. In fact, I have gotten word that some Democrats are going to vote against Roberts, knowing he will pass and being inclined to support him, because they are fearful of “the base,” which wants Roberts to be opposed. My sources echo Robert Novak’s and are touting the number 65.

Ironically, I’ve been told late today of a new movement being kicked around by several Democrat Senators, including some members of the Filibuster Gang, that if the majority of Democrat Senators vote for Roberts, they will have a greater argument to oppose Bush’s O’Connor replacement. The feeling is that polls already show the public expects the Dems to oppose anyone the President picks. By not vociferiously opposing Roberts, the Dems will be in a much better position with the public when they actively oppose the next nominee, which I’m told they have every intention of doing."

Observations of an Athiest

2005-09-15T11:59:00.000-07:00

Tocqueville observed that religion in America helps shape the character of the American people and that the success of democracy required a good and moral people who were capable of meeting the needs of society on their own, without the aid of the state. Here is a fascinating piece by an atheist who admits that while he believes that religion is foolish and false, it nevertheless creates "better people."

Here is an excerpt...

"The arguments against religion are well known and persuasive. Faith schools, as they are now called, have left sectarian scars on Northern Ireland. Stem-cell research is forbidden because an imaginary God - who is not enough of a philosopher to realise that the ingenuity of a scientist is just as natural as the instinct of Rousseau's noble savage - condemns what he does not understand and the churches that follow his teaching forbid their members to pursue cures for lethal diseases.

Yet men and women who believe that the Pope is the devil incarnate, or (conversely) regard his ex cathedra pronouncements as holy writ, are the people most likely to take the risks and make the sacrifices involved in helping others. Last week a middle-ranking officer of the Salvation Army, who gave up a well-paid job to devote his life to the poor, attempted to convince me that homosexuality is a mortal sin.

Late at night, on the streets of one of our great cities, that man offers friendship as well as help to the most degraded and (to those of a censorious turn of mind) degenerate human beings who exist just outside the boundaries of our society. And he does what he believes to be his Christian duty without the slightest suggestion of disapproval. Yet, for much of his time, he is meeting needs that result from conduct he regards as intrinsically wicked.

Civilised people do not believe that drug addiction and male prostitution offend against divine ordinance. But those who do are the men and women most willing to change the fetid bandages, replace the sodden sleeping bags and - probably most difficult of all - argue, without a trace of impatience, that the time has come for some serious medical treatment. Good works, John Wesley insisted, are no guarantee of a place in heaven. But they are most likely to be performed by people who believe that heaven exists..."

"...The only possible conclusion is that faith comes with a packet of moral imperatives that, while they do not condition the attitude of all believers, influence enough of them to make them morally superior to atheists like me. The truth may make us free. But it has not made us as admirable as the average captain in the Salvation Army."

Read the rest...

Biden's House built on sand...

2005-09-15T09:28:00.000-07:00

The hearings have been at times good theatre and at even better times they have provided very instructive insight into the difference between those who see a strong policy role for the Court and those who do not. One exchange between Biden and Roberts is particularly insightful. This is from the Day Three Transripts...

"BIDEN: See, you've told me nothing, Judge.
With all due respect, you've not -- look, it's kind of interesting, this Kabuki dance we have in these hearings here, as if the public doesn't have a right to know what you think about fundamental issues facing them.

There's no more possibility that anyone one of us here would be elected to the United States Senate without expressing broadly and sometimes specifically to our public what it is we believe.
The idea that the founders sat there and said, "Look, here's what we're going to do: We're going to require the two elected branches to answer questions of the public with no presumption they should have the job as senator, president or congressman. But guess what? We're going to have a third co-equal branch of government that gets to be there for life; never, ever again to be able to be asked the question they don't want to answer. And you know what? He doesn't have to tell us anything. It's OK, as long as he is" -- as you are -- "a decent, bright, honorable man, that's all we need to know. That's all we need to know."
Look, let's -- I only have three minutes and 45 seconds left -- and by the way, I'd ask permission for the record to introduce the number of questions asked by Senator Hatch and others, very specific questions, as to Justice O'Connor with very specific answers on these very questions. I'd like to ask that they be submitted to the record.

SPECTER: Without objection, they will be made part of the record.

BIDEN: Let me conclude.. "

You see Biden realizes that key policies that he supports and his supporters hold dear, rest on the policy activism by the Court, thus it is inconcievable to him that a Judge's policy views should not be open to public inspection and debate. His ignorance of the Founder's views on the role of judges is astounding for a sitting Senator. Biden suggests lamentably that the Founder's did not mean to set up three coequal branches where one branch would not be subject to public scrutiny based on their policy views. Yet, that is exactly what they were doing and meant to do. Biden is simply ignorant of those facts, or is twisting them. If he were intellectually honest he would say "The Framers meant for judges to be free from public scrutiny regarding their policy views, but the Court now plays a policy role and therefore I see it appropriate for you to answer policy related questions." But Biden doesn't say this he merely incorrectly suggests that the founders expected judges to answer questions on their policy views. Read Federalist #78 and see if you can concievably come to Biden's conclusion. Federalist #78:
.

"The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty."
.

Later on in Federalist #78

"To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity."

How does Biden draw is ruminations from any careful study of the Framer's intent? He simply can't. Let's see how Roberts answered Biden's challenge.

"Now, the only point I was going to make earlier, because I do think it's an important one -- you make the point that, "We stand for election and we wouldn't be elected if we didn't tell people what we stand for."

Judges don't stand for election. I'm not standing for election. And it is contrary to the role of judges in our society to say that, "This judge should go on the bench because these are his or her positions and those are the positions they're going to apply."

Judges go on the bench and they apply and decide cases according to the judicial process, not on the basis of promises made earlier to get elected or promises made earlier to get confirmed.
That's inconsistent with the independence and integrity of the Supreme Court."

Bottomline, Robert's get's it...Biden doesn't. Biden and many other liberals have staked their core policies in the sands of the "living" Constituion. Now he is deathly afraid that Roberts and others will cause the sands to shift and destroy policies he values and his constituents value. Roberts is challenging Biden by asserting that our written Constitution is not and should not be built on the sand of judicial policy preferences, but on the rock of its own text as ratified by a super majority of the people.

There is an old sunday school song with a chorus that states "The foolish man built his house upon the sand...the foolish man built his house upon the sand..." the next chorus sings, "The wise man built his house upon the rock...the wise man built his house upon the rock..."

Biden was showing clear frustration with Roberts. Biden should be frustrated with himself, vor by the standards of the song above, Biden has built his house on sand and in that sense, he has been a "foolish man."

The Hearings...The Analysis

2005-09-13T21:56:00.000-07:00

Here is some interesting analysis from Hugh Hewitt...

"The Potemkin Opposition to Roberts
September 13, 2005 02:11 PM PST

The collapse of the opposition to Judge Roberts is almost visible in today's questions from Democrats. Judge Roberts is so well prepared and so extraordinarily reasonable and informed, that Democrats are coming off looking silly at best (and churlish at worst, as with Senator Kennedy's repeated interruptions of the nominee.)

In fact, the tactics used by the Democrats suggest they aren't even fighting very hard. Assume --correctly-- that nothing any Democratic senator can say will in any way change the dynamic that is moving towards a huge yes vote on the nomination. The only thing that can change that dynamic is (1)an explosive revelation which is nowhere in sight nor likely to appear or (2) something that Judge Roberts himself says.

Given that the only hope the left has of defeating this man who will be Chief Justice --God willing-- for 30+ years is something that he himself says, the Democrats' long winded and almost endless set-ups to their questions are in fact great favors to Roberts, allowing the judge to in effect run out the clock while not appearing to do so. The Democrats should be asking short, simple, and open-ended questions --hundreds of them-- but they cannot bear to forfeit the television time so they chew up their only hope --the time that Judge Roberts spends talking-- and their opposition is thus perfunctory.

They aren't even trying very hard. If it was a fight, you'd suspect the fix was in.
The additional great benefit of the proceedings as they unfold is that the next nominee will in effect get to read the roll of Roberts' putt in preparation for his or her own hearing. Once the Roberts' answers are given and absorbed into the Senate's records and he is confirmed, a new nominee delivering substantially the same answers to what will no doubt be substantially similar questions will also be as confirmable as Judge Roberts, especially if that nominee is other than a white male. For if the next nominee gives the same answers to the same questions, but a senator who voted for Judge Roberts' confirmation then votes against a Judge Jones, a Judge Owens or a Judge Garza, the question will arise as to why, and the presumption will have to be a non-substantive one.

Still, the superb performance we are watching is the best argument for the appointment not of a judge of a particular background, race or gender, buf for the appointment of a brilliant mind experienced in the very subjects being discussed this week. Nominate a Judge Luttig or a Judge McConnell, and the results will be exactly the same. The American public will not stand for the defeat of a superb jurist at the hands of the small-minded ideolouges that dominate the Senate Democrats.

UPDATE:
Professor B. thinks the roll-over by the Dems has to do with future political ambitions, and he may be right. But judging from the various commentators at various lefty blogs, the "activists" are fuming at the preening of the Democratic senators. As I just discussed with Senator John Kyl, running a four corner offense when you are 30 points behind."

Let the Games Begin

2005-09-13T12:09:00.000-07:00

Well, yesterday the Roberts hearings finally started up. So far the hearings are a mix of legitimate questions that should be answered and a game of trying to get Robert's to tip his hand on how he would rule in specific cases. Senators will ask him questions they know he won't answer (or shouldn't answer) then they will feign indignance and try to paint Roberts as not being forthwright or transparant and thus they will in the end conclude they do not know enough about him to in good conscience confirm his nomination.

In all it seems Ginsberg, despite her activism on the court may have given us a valuable precedent for confirmation hearings. The "Ginsberg Rule" is providing judges the space not to have to answer to a litmus test before being confirmed.

Biden got pretty hot under the collar with Roberts to the point of accusing him of being misleading. Let's just say Biden is not exactly a pillar of civility in this case...

Here are Day1 and Day 2 (first half) transcripts...

Preparing for WW III?

2005-09-08T10:45:00.000-07:00

Here is a perceptive piece by John Hinderacker looking at the implications of Robert's elevation to the Chief Justice Position. I agree with him that Robert's elevation does shift the grounds of the battle a bit and it shifted in the Democrat's favor. However, the reality is that aside from considerations of political perception (which can be great sometimes) Republicans have the votes to confirm any nominee Bush puts up. Furthermore, if Democrats attempt a filibuster (even when "extreme circumstances" are not present) Republicans can alter Senate rules to guaruntee an up or down vote. The battle is essentially an internal one for both Bush and Senate Republicans. Do they have the political will to fight through Democratic attacks or will they shrink from the condemnations and political drama that will no doubt ensue. WW III will only be avoided if the Republicans decide to abandon the field...

"...Now, the Democrats have been granted a reprieve. They can let Roberts go through with only token opposition, knowing that the philosophical composition of the Court will not change significantly, and concentrate their fire on Bush's second nominee, who will fill the critical seat being vacated by Justice O'Connor. One question, from a conservative point of view, will be whether President Bush can find another nominee who is both as solidly conservative and as non-controversial as John Roberts. Unfortunately, it is not obvious that he can...

...None of the other solidly conservative candidates appears any less likely to engender controversy. So President Bush faces a choice: he can either nominate another conservative and trigger the most bitter confirmation battle since Robert Bork, or he can bow to pressure from the Democrats and the media and appoint a moderate, thereby forgoing, perhaps forever, his opportunity to move the Court in a conservative direction.
Pressure to appoint a centrist will undoubtedly be fierce. Indeed, such pressure is already beginning, even though the Senate has not yet begun to consider Roberts's nomination. Senator Dick Durbin said this week that he wants to know who the second nominee will be before he votes on Judge Roberts. Arlen Specter added, unhelpfully, that O'Connor's replacement should be a woman. It seems unlikely that the senator has Janice Rogers Brown in mind...

...If President Bush nominates another strong conservative to replace O'Connor, the result will be the political equivalent of World War III. Liberal interest groups will face an existential crisis if they do not fight bitterly to keep the Court's current ideological makeup. Win or lose, they have no choice but to make the effort to oppose Bush's second nominee. And, unfortunately for Republicans, it appears likely that any conservative jurist whom Bush may appoint will give the Democrats more ammunition than John Roberts did. So be prepared for the ugliest, most bitter confirmation battle in a generation."

Read the Rest...

Rehnquist Remembered

2005-09-06T10:39:00.000-07:00

Here is a good, fair, obituary on Rehnquist....

"Was it a modest man's way of poking fun at himself, and deflating the importance of the mighty office he held? Or was it simply a wry tribute to the masters from a lifelong fan of Gilbert and Sullivan? Some time in 1994, William Rehnquist, the 16th Chief Justice of the United States, appeared in a new robe. Until then, the head of the Supreme Court had worn the same plain black gown as his eight colleagues. One day, however, Rehnquist's had suddenly acquired four golden bars on each sleeve. It was modelled on one he had seen in a production of Iolanthe, worn by the Lord Chancellor who deftly amended a law by adding the word "not", and thus saved a company of fairies from a terrible death.

In the real world, it was not so easy for Rehnquist, as he presided for 19 years over the US Supreme Court - the third branch of the constitution and, whether it likes it or not, the ultimate arbiter of the culture wars that divide American society. But so adroitly did he carry out the job that history may well remember him as one of the great Chief Justices in US history.
Rehnquist was a conservative, but an old- fashioned one, as distant as could be imagined from the doctrinaire modern variety that tends to drown out opponents by sheer volume. His views were consistently right-wing, but invariably tempered by moderation and common sense.
Most important of all, he was a superb organiser of the court's business. He abhorred windy and protracted argument. Rehnquist was a creature of habit, arriving at the court at 9am each morning, and rarely staying beyond 4pm. In his deft, self-effacing way, he held together a court that was often sharply divided and which contained its fair share or more of outsized intellects and tender egos.

He smoothed over rows, and almost never allowed himself to become angry. "I have a very high boiling point," he once said. Never was the Rehnquist style more evident - and more necessary - than in his low-key handling of the Clinton impeachment hearings of early 1999 over which, as the constitution stipulated, he presided.

In his approach to the central duty of the court, to uphold the constitution and make sure that the laws of the land conformed to it, he was similarly measured. He was uncomfortable when the court was expected to resolve social problems, and hated anything that smacked of judicial meddling. Under Rehnquist, the high court halved the number of cases it agreed to hear each year, so that more time could be spent on getting the big decisions right..."

Read the rest...

May He Rest in Peace...

2005-09-06T10:29:00.000-07:00

I was saddened by the death of William Rehnquist. He has been a congenial man, a stately figure, and a true trustee of the Constitution. Under his leadership the court has begun the slow turn towards taking the text of the Constitution seriously and seeking to preserve the authority of the Constitution by interpreting it in a manner consistent with its text and the intent of those who wrote and ratified it.

His presence will be missed.

I have no personal memories of interacting with him. I did have one opportunity to meet him but declined the opportunity. Back in 2000, my brother and I were having lunch at the legendary D.C. restraunt The Monacle, which is steps away from the Senate buildings and the Supreme Court. While eating we noticed Rehnquist eating lunch with what seemed to be some of his law clerks a couple of tables away. Neither of us felt it was appropriate to go interrupt his lunch just to introduce ourselves. We merely remarked to each other how we both admired him as a Justice and were glad that we were able to see him in person.

Again our country will miss William Rehnquist as a Justice and as a man.

May he rest in peace and God bless him and his family.

Publius2000

Back in the Saddle

2005-09-06T10:21:00.000-07:00

It has obviously been a while since I have been able to post. Over the last month I have been overwhelmed with moving and starting my new job teaching American Government at a local University here in Southern California. As a result my ability to post timely articles has been hampered to say the least. I look forward to picking up the pace again. A great deal has happened in the last month...between Hurrican Katrina, the death of Rehnquist, and the continuing situation in Iraq. I look forward to slowly beginning to comment on all of these in an appropriate manner.

Sincerely,

Publius

The Blood Sport Has Begun

2005-08-11T13:37:00.000-07:00

I didn't think the left led by NARAL (National Abortion Rights Action League) would hold its fire on this nomination...there is too much at stake. You would think they would be a bit more sophisticated though. They have tried to link Roberts to a position defending clinic bombings. One big problem...the case Roberts worked on defending pro-life groups happened years before the bombing they are trying to link him to. Here is a point by point rebuttal of the ad from over at Bench Memos:

"Even by the standards of the pro-abortion movement, the new television ad (which Kathryn links to here) that the group now calling itself NARAL Pro-Choice America has unleashed is particularly mendacious. The ad features a woman injured in the 1998 bombing of an abortion clinic, attempts to link her injury to an amicus brief that Roberts filed in 1991, and says that Americans should oppose a nominee “whose ideology leads him to excuse violence against other Americans.” NARAL’s press release disingenuously claims that “we are not suggesting Mr. Roberts condones or supports clinic violence” when that of course is exactly what its ad does.

A few comments: 1. The case in which Roberts submitted an amicus brief on behalf of the United States, Bray v. Alexandria Clinic, presented the question whether the Ku Klux Klan Act of 1871 provides a federal cause of action against persons obstructing access to abortion clinics. The particular provision at issue had long been construed to require showing of a “class-based, invidiously discriminatory animus.” Relying on precedent and logic, the Supreme Court easily determined that opposition to abortion does not reflect an animus against women as a class, “as is evident from the fact that men and women are on both sides of the issue, just as men and women are on both sides of petitioners’ unlawful demonstrations.”

2. Roberts never “excuse[d] violence against other Americans.” There are plenty of laws that criminalize violence outside abortion clinics. Roberts never took any action to undermine any of them. It is NARAL that has the “ideology” that every law should be distorted to advance the cause of abortion.

3. Following the Bray decision, Congress enacted into law in 1994 the so-called FACE Act, which imposes far more comprehensive and severe penalties against those obstructing access to abortion clinics. The fact that this law failed to deter the 1998 bombing that injured the clinic worker featured in NARAL’s ad makes it all the more ludicrous to suggest that Roberts’s proper reading of the Ku Klux Klan Act of 1871 in 1991 is somehow responsible."

Roberts on Judicial Restraint

2005-08-03T14:26:00.000-07:00

Here is a draft article written by Judge Roberts from his time in the Reagan administration. It was released by the national archives (HT to Confirm Them). If Roberts still holds these views some 20 years later then he will make a fine trustee of the Constitution if confirmed by the Senate.

Here are a couple of excerpts

"The greatest threat to judicial independence occurs when the courts flout the basis for their independence by exceeding their constitutionally limited role and the bounds of their expertise by engaging in policymaking committed to the elected branches or the states. When courts fail to exercise self-restraint and instead enter the political realms reserved to the elected branches, they subject themselves to the political pressure endemic to that arena and invite popular attack. Recently, Judge Malcolm Wilkey of the United States Court of Appeals for the District of Columbia Circuit expressed a "sense of relief" upon learning that the federal government would raise arguments designed to limit courts to their proper role rather than thrust them further into the domains of the elected branches..."

"...Our concern is not with results in a particular case; it is with the institutional role of the courts in our federal system and the scheme of separation of powers. Our effort, therefore, will focus on the procedures and approaches which help define the judicial role. We will, specifically, urge courts to observe strictly the requirements of justiciability, to avoid testing the constitutionality of laws by those devices which permit ready intrusion into the domain of the legislature, and to exercise restraint in the formulation of equitable decrees."

"...Throughout history and to this day both liberal and conservative interests have sought to enlist an activist judiciary in the achievement of goals which were not obtainable through normal political processes...Now different groups urge judges to substitute their own policy choices for those of federal and state legislatures, but the evils of judicial activism remain the same regardless of the political ends the activism seeks to serve."

Read the Rest...

Froggy Went A-Courtin'

2005-08-01T12:06:00.000-07:00

Here is a good piece on one of Robert's past decisions and the attempts of the left to twist it to their favor...(HT to Confirm Them)

Mr. Toad’s Wild Ride

By Alexander Schwab

A California toad is creating quite a stir in Judge John Roberts’ nomination to the Supreme Court of the United States. And no, it’s not Barbara Boxer.
Judge Roberts, whose indefatigably mainstream record on the bench has frustrated attempts to brand him an extremist, is now under fire for an opinion he penned that discusses the federal government’s power over the habitat of the Arroyo Southwestern Toad. Never mind that the opinion was a dissent, and so establishes no precedent; never mind that the court was simply ruling on whether or not to hear the case; never mind that Judge Roberts was not alone. Judge Roberts’ failure to support the toad (via the vehicle of federal regulation) proves he must be an anti-environmentalist reactionary.

Rancho Viejo v. Norton concerned a proposed housing development, blocked by the federal government through the Endangered Species Act after the Department of the Interior determined the construction project would endanger the Arroyo Southwestern. The DC Circuit panel upheld the governmental intervention, spurring a petition from Rancho Viejo urging the court to reconsider en banc. A majority denied the petition, but Judge Roberts and a fellow judge dissented, positing that the decision might merit examination in light of certain Supreme Court precedents limiting the extent of federal regulatory power.

However, the left-wing People for the American Way (PFAW), finding itself with extensive funds and no useful way to spend them, has decided to make an issue of an otherwise innocuous suggestion for greater scrutiny. They hope with their press releases that the general American populace comprehends as little of the judicial process as they do, transforming Rancho Viejo v. Norton into the public trial of Judge Roberts v. Endangered Species.

This method of “creative” simplification is just the latest example of a deep error in understanding the role of courts. The judges in this case were not asked to rule on whether they liked toads and found them worth protecting, but whether the Constitution provides Congress with the power to do so. Under Article I of the Constitution, Congress has the power to regulate interstate commerce (the so-called “Commerce Clause”). Judge Roberts simply observed that a toad that lives its entire life in one state and is not the source of any commercial dealings might not fall into the category of interstate commerce. What an atrocity.

To see this case as an indication of whether one likes or dislikes toads (at least the Arroyo Southwestern variety) is to view legal jurisprudence through the lens of political policymaking — the very fate Bush seeks to avoid in his judicial nominations. Instead, Judge Roberts nobly adheres to the words of his mentor, Chief Justice Rehnquist: “A judge is bound to decide each case fairly in a court with the relevant facts and the applicable law even when the decision is not what the home crowd wants.”

Environmentalism is not the issue; the Commerce Clause is. Through a near-boundless interpretation of “interstate commerce,” the Supreme Court has justified federal government encroachment in all aspects of American life. Special interests tout amphibian welfare, but their true concern is the restriction on government that stems from an honest reading of the Commerce Clause. As Barry Goldwater cautioned, "the government that can give you everything is the very same government that can take it all away."
When President Bush was sworn into office, he took an oath — as every President does — to protect the Constitution of the United States. Mr. Justice John Roberts may be his best means of fulfilling that obligation.

Back from Vacation...Thoughts on Roberts...

2005-08-01T10:35:00.000-07:00

Well, I am back from a week of vacation where I was obviously unable to post. I was pretty much out of the loop in terms of news of the day. I did read one piece in Newsweek in an airport on the Roberts nomination. I had a couple of thoughts on this article.

I was struck by just how fair it was to Roberts. They described him as someone who was not an outcome based jurist who is looking to fit the law around their preconcieved notions of a given policy outcome (they did describe Rehnquist as an outcome based jurist, which is not fair or accurate description of Rehnquist in my opinion). The article described Roberts as someone devoted to the law, and an independent thinker. They described him as someone whose respect for the law would outweigh any political preferences he might have. Overall the article was pretty favorable.

The article even went so far as to predict that his confirmation was likely. It seemed to imply that the left my hold its fire on the Roberts nomination and go for broke on the next nominee.

So far it is all quiet on the western front and Roberts seems to have the support of moderate Democrats (or more critically members of the "gang of 14"). One's optimism is tempered however by remembering that the Clarence Thomas nomination went smoothly for 80 days before degenerating into a national spectacle full of unsubstantiated allegations and showboating by Senators. I am not as sanguine as some that this nomination may be bloodless. I do not think that the leftist political groups such as NARAL, or radical senators such as Kennedy, Schumer, and Leahy, will hold their fire. Everybody is being cautious and playing nice, even the press, but when the allegations come (and they will) they will say, "Hey we gave him the benefit of the doubt, but we didn't know about this (fill in the blank with the allegation of the day)!" By September 6th when the hearings are about to convene there will be some attempt to undermine Roberts, if they can manufacture some kind of semi-credible accusation. That is my belief. I hope it does not come true, but I just do not believe that the left will let Roberts slide through untouched. They haven't let a "trustee" nomination go through unscathed in nearing 20 years, why should they start now?

More on this article and Roberts in the coming days...

Speculation...

2005-07-21T10:28:00.000-07:00

I was pursuaded by the predictions that Bush would nominate a woman for the O'Connor seat (I agreed that Owens was a likely pick) and then John Roberts for the Rehnquist seat. Obviously he has not followed that pattern.

After thinking about it I believe Bush has done the right thing by putting Roberts up now. His credentials make him a very difficult target (although his opponents surely will dig something up to pick a fight about) and I like that Bush is not bowing to this notion that there are "designated seats" on the court for a woman, or an ethnic or racial minority, etc. While the court may not see fit to strike down Affirmative Action at the University of Michigan there is no reason they have to practice it as well.

Anyway, it is possible that Bush is nominating Roberts now because Roberts is someone who is undoubtedly qualified and if there is a big fight over Roberts the Republican majority will certainly get him confirmed. After winning a bloody fight, surely the opponents of a "Trustee Court" will re-double their efforts to stop the next nominee. Thus, perhaps Bush is saving Owens or a female nominee for the Rehnquist seat. The Left will have a very difficult time filibustering the first female Chief Justice ever nominated. We know how Bush likes to make historical nominations (Colin Powell, Condileeza Rice etc.) and he values personall loyalty, so perhaps Owens will be the nominee for the next Cheif. It is all pure specualtion...but it is interesting to try to play chess along with the White House.

Bush names John Roberts to Supreme Court...Publius2000 endorses pick

2005-07-21T08:32:00.000-07:00

All signs are that Roberts is a fine pick and will take his role as "Trustee" of the Constitution seriously. He seems to have impeccable credentials and is well respected by the sitting members of the court for his litigation skills that have been on display before them many times during his career. For constant updates on the confirmation prcoess visit Confirm Them.

Here is an excerpt from Bush's nomiation speech:

"Judge Roberts was born in Buffalo and grew up in Indiana. In high school, he captained his football team, and he worked summers in a steel mill to help pay his way through college. He's an honors graduate of both Harvard College and Harvard Law School. In his career, he has served as a law clerk to Justice William Rehnquist, as an Associate Counsel to President Ronald Reagan, and as the Principal Deputy Solicitor General in the Department of Justice...."

It is a great sign that he clerked for Rehnquist who has been a very good justice...I would only put Scalia above the Chief with Thomas very close or even with Rehnquist. Rehnquist has been a solid trustee of the Constitution, it seems likely that Roberts will be as well. It is rumored that Rehnquist was pushing for Roberts's nomination and I would doubt he would push for someone who would seek to undue the modest move back to sanity that the Rehnquist court has achieved in some very limited areas. Here is more from the address...

"In my meetings with Judge Roberts, I have been deeply impressed. He's a man of extraordinary accomplishment and ability. He has a good heart. He has the qualities Americans expect in a judge: experience, wisdom, fairness, and civility. He has profound respect for the rule of law and for the liberties guaranteed to every citizen. He will strictly apply the Constitution and laws, not legislate from the bench."

Well Bush clearly believes that Roberts won't legislate from the bench. I am glad Bush is stating this clearly in his nomination speech. Some may be wonder why Bush didn't make this the center peice of his speech, but I understand the politics of the situation and while it would be nice for the President to take this moment to educate the American people on the virtues of judicial restraint and having justices that will be "trustees" of the Constitution rather than "activists" it is important to set the stage for a reasonable and civil confirmation process and the nomination speech is probably not the place for a lecture on sound judicial philosophy. In the end, Roberts seems like a fine pick and he certainly does not constitute an extraordinary circumstance, so the Gang of 14 Democrats will be hard pressed to argue for a filibuster.

Now let's sit back and see how and when Robert's opponents (NARAL, Schumer, Kennedy, Leahy, etc.) start attacking Roberts. At long last, Kennedy can now have reporters fill in that name.

Priscilla Owen...A Trustee of the Constitution?

2005-07-18T18:02:00.000-07:00

Here is some encouraging background on Priscilla Owen. It comes from material submitted for her nomination to the 5th Circuit Court of Appeals by C. Boyden Gray. (Hat Tip to Confirm Them) The qualities described below seem to suggest that Owen would be a responsible and capable "Trustee" of the Constitution and not an "Activist" (See my previous post for this distinction).

"The Ninth Circuit’s recent decision to hold the pledge of allegiance
unconstitutional1 serves as a vivid reminder that the federal bench must be staffed by jurists who are committed to deciding cases according to the law, not their personal policy preferences (See Newdow v. U.S. Congress, No. 00-16423 (9th Cir. June 26, 2002). Judges are neither legislators nor constitutional drafters, and it is
an abuse of power to use the judicial office to impose one’s political views in the guise of legal interpretation.

Though startling, and inconsistent with America’s constitutional traditions, the Ninth Circuit’s ruling has provoked a nationwide civics lesson. The pledge decision presents an opportunity for the American people to reconsider what sort of judges should be confirmed to the federal bench. And at a more general level, it is an occasion
to revisit the issues of the judiciary’s proper role in a democratic system of government, and what is meant by “judicial activism” and “judicial restraint.”

Ultimately, judicial restraint is an appreciation for the judiciary’s limited powers, and a reluctance to usurp prerogatives that the Constitution assigns or reserves to the other branches of government. In particular, restrained judges:
1. adhere faithfully to binding precedent issued by higher courts, especially
the United States Supreme Court;
2. defer to the policy choices the legislature enacts into positive law, and
refrain from substituting their views for those of the legislature;
3. interpret the Constitution and laws enacted by the legislature as intended
by those who wrote them;
4. respect the traditional authority of trial courts, which are in the best
position to assess the credibility and demeanor of witnesses, to make
factual findings;
5. uphold the right of individuals to take actions which the law permits them to take; and
6. approach each case without any preconceived notions, or reflexively
siding with any one litigant.

Judged by any of these criteria, Justice Priscilla Owen of the Texas Supreme Court, whom the President has nominated to a vacancy on the U.S. Court of Appeals for the Fifth Circuit, undoubtedly is a restrained and principled jurist. Time and again, in her opinions Justice Owen has stressed that the function of a court in interpreting legal text is to give effect to the intent of the lawgiver. Justice Owen consistently has interpreted Texas statutes in light of the binding precedents of the United States Supreme Court. She has deferred to the enactments of the Texas Legislature, denying
that judges legitimately can interpret statutory language to reflect their own political or ideological commitments. And she has declined, as an appellate judge, to meddle with the traditional prerogative of the trial courts to make findings of fact.

The discussion below demonstrates Justice Owen’s fidelity to these and other jurisprudential pillars, a fidelity that earned her a unanimous “well-qualified” rating from the American Bar Association, the highest rating a judicial nominee can possibly achieve. We agree that Justice Owen is superlatively well suited to occupy a seat on
the Fifth Circuit, and we urge the Senate to approve her nomination as soon as possible."

You can read the rest of this recommendation here...
And There is more on Owen Here...

Court Speculation...

2005-07-18T17:35:00.000-07:00

Here is a prediction by Quin over at Confirm Them as to the nominees and the order. Only time will tell...

"Two weeks ago, I predicted the order of nominees would be Priscilla Owen, then John Roberts (for Rehnquist), then Gonzales. I still stand by that prediction — even though Joy Clement remains VERY much in the running, or at least was in the running still late last week. The president personally has asked top Louisiana politicians about Clement, supposedly, and his college roommate is a big booster of hers, supposedly. But here’s why I’m predicting Owen and then Roberts and then Gonzo: Bush prizes personal loyalty and also puts high value on having a personal sense of somebody’s character (sometimes he’s wrong, as with Putin). And there’s this quote in an AP story this morning: “I’ve got some people, perhaps in contention, that I’ve already spent time with, that I know. In other words, I’m familiar with some people that are being speculated about in the press. And so I don’t need to interview those.” To my knowledge, there are only four short-listers who he knows well personally: Owen, Gonzales, Cornyn, and Roberts. (Roberts, apparently, is known to W through Roberts’ work in the Bush 41 administration, for which W was the omni-present, unpaid, highly involved enforcer for his father.) Unlike Pryor and J.R. Brown, Owen did quite well on her final cloture vote, and she received, I believe, 58 votes for confirmation. She was endorsed for the 5th Circuit even by the Wash Post. She puts the Dems on the spot on the filibuster, but probably will (barely) avoid one — and if the Dems DO try to filibuster, I guarantee that McCain, Graham, DeWine and probably Warner and Specter WILL use the constitutional option on her behalf. In short, she is confirmable — and she’s a personal friend of the Bushes, and very very bright.
So she gets on. Then Rehnquist, satisfied, retires — and Bush rewards him by picking his former clerk, Roberts, who Bush knows and likes, and who is supprters even by Seth Waxman.
I’d still pick Alito, by the way, but I don’t get to pick."

War on Two Fronts...

2005-07-16T08:59:00.000-07:00

This is a must read by one of my favorite thinkers/writers Victor Davis Hanson. Also my friend Pastorius has a good write up on this piece over at CUANAS Enjoy...

(excerpt)
...So it is not true to say that Western civilization is at war against Dark Age Islamism. Properly speaking, only about half of the West is involved, the shrinking segment that still sees human nature as unchanging and history as therefore replete with a rich heritage of tragic lessons.

This is nothing new.

The spectacular inroads of the Ottomans in the16th century to the gates of Vienna and the shores of the Adriatic were not explainable according to Istanbul’s vibrant economy, impressive universities, or widespread scientific dynamism and literacy, or even a technologically superior and richly equipped military. Instead, a beleaguered Europe was trisected by squabbling Protestants, Catholics, and Orthodox Christians — as a wealthy northwest, with Atlantic seaports, ignored the besieged Mediterranean and Balkans and turned its attention to getting rich in the New World.

So too we are divided over two antithetical views of the evolving West — Europe at odds with America, red and blue states in intellectual and spiritual divergence, the tragic view resisting the creeping therapeutic mindset.

These interior splits largely explain why creepy killers from the Dark Ages, parasitic on the West from their weapons to communications, are still plaguing us four years after their initial surprise attack.

"The fault, dear Brutus, is not in our stars/But in ourselves, that we are underlings."

Read the whole thing...

Kennedy Saves the Republic...

2005-07-11T19:25:00.000-07:00

From Scrappleface:

"July 02, 2005
Kennedy Slams Unnamed Supreme Court Nominee
by Scott Ott

(2005-07-02) -- Sen. Ted Kennedy, D-MA, today criticized President George Bush's as-yet-unnamed replacement for retiring Supreme Court Justice Sandra Day O'Connor as a "brutal, Bible-thumping, right-wing ideologue who hates minorities, women and cocker spaniels."

"He or she is clearly outside the mainstream of American values," said Sen. Kennedy. "President Bush has again ignored the Senate's 'advice and consent' role, forcing Democrats to filibuster this outrageous nominee."

The Massachusetts Senator said his aides have already discovered "reams of memos" showing that the man or woman Mr. Bush will appoint has "a history of abusing subordinates, dodging military service, hiring undocumented workers, spanking his or her children and rolling back the clock on human rights to the days when the Pharaohs ruled Egypt with an iron fist."

The Senator's office issued a news release to the media documenting the allegations against the potential high court judge, with a convenient blank line allowing reporters to fill in the nominee's name as soon as that information is leaked."

This piece is supposed to be satire...if only it were.

It's the Judicial Philosophy Stupid...Pt II

2005-07-06T12:20:00.000-07:00

The left openly advocates nominating justices based on their political ideology or policy preferences. This is nothing new, and this insistence on ideological purity or "litmus tests" for judicial nominees and the resulting actions by the Court of implementing their policy views over and above the plain meaning of the Constitution is what is slowly eroding the authority of the Constitution as a written document that enumerates and limits the power of the Federal government. This is nothing new and there are volumes written about it. I will surely have more to comment on by the left's disregard for written constitutionalism.

However, it is similarly disturbing that in their zeal to restore the Court to its Constitutional moorings, some conservatives lapse into "policy speak" and seem to be evaluating potential justices based on the results of their rulings rather than the philosophy that undergirds them. Again the debate over the next justice should focus on whether or not they will be a "trustee" of the Constitution rather than an "activist." Here are some examples of Conservatives using a policy criteria to evaluate potential nominees over at Confirm Them.

From someone commenting on Confirm Them:

"I am surprised I have not heard more about Senator Reid’s comments regarding Mel Martinez for SCOTUS. He is Hispanic (Cuban), the same age as Garza (58), and devoutly pro-life (his wife as given an award by a crisis pregnancy center if I remember correctly). He also backed the marriage amendment and is against the government use of racial classifications. Most importantly, POTUS is comfortable with him and likes his life story."

Here is a conservative arguing the Martinez should be considered as a potential nominee because he has the correct policy views. He is pro-life, backed the marriage amendment, and is against racial preferences. Those are apporpriate criteria for a Senator, but not good criteria for a Justice to the Supreme Court. What are Martinez's views on how to properly interpret the Constitution? Does he believe he is bound by a plain meaining of the text of the Constitution when making rulings? It is important to make these arguments based on Martinez's judicial philosophy and not his policy views.

Here is another one from Confirm Them via RedState

"Well placed sources are telling RedState that various business interests are lining up in opposition to Michael Luttig as a possible appointment to the Supreme Court.

According to the sources, Luttig tacks too much to the Scalia position when it comes to government regulation. The source says that business interests are concerned that Judge Luttig might be too willing to accept government regulation — more so than the business community would like. Luttig, it seems, sees eye to eye with Scalia on the United States v. Mead Corporation decision and would give, in the opinion of certain business interests, too much deference to an adminstrative body’s regulations arising from ambiguous legislation under a Chevron analysis."

By all accounts Luttig would be a fine Justice who would be a trustee of the Constitution however conservative business interests oppose him because he might not have the correct policy views on government regulation? This is absurd. If conservatives do not reject policy preferences as a basis from which to evaluate potential Justices, then who will? I am certainly not naive; as a political scientist I know that interests exist and they seek to influence governmental policy if they can. I am not surprised that business interests are seeking to oppose a given conservative nominee, but I simply reject their shortsightedness. Americans left, right, Republican, Democrat, of whatever stripe, must return to a standard for Justices that holds their judicial philosophy as the most important criteria for a position on the Court. We must articulate the importance of nomiating Justices who will be trustees or we will slowly see the Constitution recede into the swirling waters of activism and petty policy debates. We are already seeing this cancer eat away at the confirmation process. When just 20 years ago Scalia was confirmed 98-0 and now he could not get nomiated without a bloody and expensive confirmation "campaign." Something has gone terribly wrong.

As we have let our Court engage in policy making. As the Court has be come a sitting legislature, and at times a sitting Constitutional convention the stakes have become too high for both the left and right to allow the process to proced along congenial lines. The United States are still a democratic republic and Americans are demanding that the Court be more accountable given its policy making posture. This implicit move towards accountability is putting immense stress on a confirmation process not designed to be engulfed in a nationwide political campaign with all of its excesses and corseness.

I will continue to hammer this point as much as necessary. Americans must reject political ideology as a basis for choosing Supreme Court nominees. We need trustees of the Constitution, not activists (either liberal or conservative) and conservatives of all people need to elevate their discussions about the next nominee. They need to avoid talking in terms of political ideology and elevate the discussion to focus on judicial philosophy.

If conservatives won't then who will?

It's the Judicial Philosophy Stupid...

2005-07-05T09:59:00.000-07:00

The punchline from the Clinton election in 1992 was "It's the Economy Stupid." Which was meant to highlight Bush Sr.'s purported ineptitude regarding Domestic issues...

Well with regard to the upcoming Supreme Court battles, we should remember that "It’s the Judicial philosophy stupid” as opposed to political ideology.

As the ripples of the Sandra Day O'Connor's resignation continue to inspire debate and discussion, it is important to make one thing clear. Most media commentators are speaking in terms of "liberal" versus "conservative" nominees. These terms serve only to confuse not clarify the issue. These terms most commonly refers to the policy preferences of potential nominees on key issues or in other words it refers to their political ideology. These terms do not translate well into the area of Constitutional philosophy. The terms "liberal" and "conservative" are often used as shorthand for judicial philosophy because the nuance of jurisprudence is so varied and often confusing.

Perhaps some more useful terms might be between "activists" and "trustees". Activists, (whether liberal or conservative) would see their role as a justice to actively pursue their policy preferences, or their vision of a just society from the bench, sometimes at the expense of the Constitution. A trustee would see their role as to preserve the authority of the Constitution by putting their notions of justice or their policy preferences aside in order to simply interpret the Constitutional text as faithfully as possible. Sometimes these judges are called "originalists," "strict Constructionists," or "textualists." I advocate the term trustee because it focuses on their primary responsibility which is to preserve the Constitution and faithfully interpret it. Originalism or strict constructionism merely serve as the best means of achieving the end of preserving our written Constitution.

Activists put the preservation of a written Constitution behind the immediate need to pursue a given vision of justice, or the wisest policy in a given case. Their activist posture may come from a good heart or benign motives, but by ignoring or glossing over the authority of the Constitutional text they do more long term harm than short term good. Ultimately they undermine the ability of a sovereign people to constrain their government by outlining Constitutional boundaries in a written text.

Thus, I simply do not want a conservative justice appointed...I want a "trustee"...someone who sees the job of Supreme Court Justice as the guardian of a public trust with that trust being the United States Constitution. I want them to see their sole function as a Justice to preserve and protect the Constitution during their tenure. This will not ensure they will always make the right decision, but it will go a long way in preventing them from intentionally making the wrong decision merely because they don't like the outcome dictated by a plain reading of the Constitution's text.

In the end, our focus should be on their judicial philosophy and not their political ideology.

There is much more to be said on this issue and I am sure the coming weeks will provide ample time to comment…

Theocracy 101

2005-06-23T17:57:00.000-07:00

There has been much written recently by those on the left over the “theocratic” impulses of the so called "Religious Right"…Hugh Hewitt has talked about Martin Kaplan’s comments in a recent piece, and Mark D. Roberts has posted a series analyzing the article that Kaplan’s remarks were printed in. Here is Kaplan’s quote from the article:

"Martin Kaplan, director of the Norman Lear Center at the Annenberg School of Communication at USC, calls the new Christer offensive a drive toward 'theocratic oligopoly. The drumbeat of religious fascism has never been as troubling as it is now in this country,'”

Unfortunately this not an isolated instance where the term “theocracy” or “theocratic” has been ominously bandied about by the left. That charge seems to carry weight when simply thrown out to the public in the form of a generalization. Given the context of the 2004 Presidential election where the religious conservatives played a significant role; in addition to the confessed religious views of many key Republican leaders, even the President himself, this charge seems to ring true for many on the left, especially if the charge is unexamined in any depth.

Demagoguery of this nature has two targets. First, religious conservatives are targeted as having interests that are a threat to the public good and public liberty. Their reputation is maligned and such comments are meant to chill any future political participation on their part. Second, those who are told to fear the religious conservatives are the target as well, for they will carry the weight of concern over their harm at the hands of the "thoecracy." The demagogues intend for such rhetoric to strike fear in those who are not particularly religious; fear that their liberties hang precipitously in the balance. Furthermore, such fear is meant to motivate the fearful to action and to isolate religious conservatives. Such rhetoric seeks to play on existing anti-religious prejudice and to sow the seeds of future prejudice in the minds of those who do not know any better.

I have good news to those who truly fear a “theocracy.” There is nothing to fear and you don’t even have to trust me just trust yourself. Just sit back, take a deap breath, open your mind just a bit and pretend that perhaps...just perhaps the likes of Kaplan might not have a corner on the logic market. Just perhaps they haven't the evidence to back up their claims. Just perhaps he is using innuendo to sway your opinion and strike fear in your heart. In the end, it takes just a little analysis to reject claims of impending "theocracy" as utter nonsense. Claims of theocracy usually find fertile soil in the educational gaps of pseudo-intellectuals who know just enough to be dangerous.

First, those charging theocracy do so by pointing to efforts of religious conservatives to address issues such as abortion, gay marriage, school prayer, embryonic stem cell research, etc. The obvious problem with this assertion is that mere decades ago all of these policies were exactly what the religious conservatives desired (save embryonic stem cells which weren't even an issue); abortion was illegal, school prayer was legal, homosexuality was illegal in most states let alone gay marriage, and yet no one has ever claimed that the United States at any time in its past has been a theocracy. How can this be? Either the United States was a theocracy (by the left’s twisted definition) and we are emerging from some past "theocratic era" or we have never been a theocracy and conservatives just want to preserve a certain status quo. There is no room to argue that conservatives are seeking to institute a theocracy when they merely seek to “conserve” existing policies or reinstate policies that had previously existed. Even at that religious conservatives seem willing to accept significant compromise on most of these issues (e.g. no one is arguing to make homosexuality illegal, but merely to preserve marriage as solely being between a man and a woman). Apparently to secular demagogues resisting any change to the moral status quo in the dominant culture, or even seeking to slow it a bit, is the functional equivalent of instituting a theocracy. To hold this position is to essentially define the word theocracy in a manner that strips it of any real meaning.

Second, the one single silver bullet that will, and has, prevented any type of sectarian government from rising to power since the nation's founding is simply the unprecedented religious pluralism that has always characterized the United States. Those charging theocracy are clearly out of touch with the dizzying diversity that is readily apparant in American religious life; and they are utterly uninformed of American religious history.

The so called “religious right” as the left refers to it, is far from a monolith of theological uniformity. At a minimum, it is made up of religious Jews from varying traditions (Conservative, Reform, and Orthodox), Catholics, Mormons, mainline Protestants such as Lutherans, Episcopalians, Methodists etc. (each with their own unique theological doctrines), and of course Evangelicals (who are anything but monolithic). All of these groups have significant religious differences among them. Interestingly even in the much feared Evangelical wing of the religious right there are serious theological and denominational divisions; between Calvanists and Weslyans, Pentacostals/Charasmatics and those who are not, just to name a couple big ones. Then there are a myriad of denominational differences from mega-denominations such as Southern Baptists, along with many mid-size and smaller denominations, and then an infinite number of “non-denominational” churches. While all Evangelicals share some broadly defined theology and are committed to spreading the gospel message, all of these various denominations and "non-denominational" churches have varying theological emphases or beliefs. Even this brief list of members of the “religious right” is far from exhaustive. The theological differences between these groups is so varied that any unity on a “theocratic state” is utterly absurd.

Religious conservatives are united on a relatively small slate of public policy issues that have grave moral implications for American society. On some general level they simply decry the erosion of the broad and inclusive Judeo-Christian tradition that provided much of the cultural mortar for the building of this nation and the securing of natural rights for people of all faiths.

The fact that the left has been able to unify such disparate religious groups and motivate them to take united action is a testament to just how deep and vital the outcome of the culture wars are; and just how ostentatious and ambitious the Left has been in assaulting the Judeo-Christian foundations of America.

If the likes of Martin Kaplan disagree with the religious conservatives then he should simply argue his case and explain why Americans should reject the philosophical foundations of their culture. Kaplan’s propensity to use words such as “theocracatic” do little to elevate civil discourse and even less for his cause.

It is worthy of note that back in 1789, when the United States was much more homogenous religiously, James Madison used the “multiplicity of sects” as an example for how a plurality of interests might check one another in government.

Here is Madison in his own words writing in Federalist No. 51:

“It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure… Whilst all authority in it [the United States] will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government.”

So even at a time in American History where Protestantism was dominant in American religious life, when some states still had established churches, in a time that Martin Kaplan might argue there was a “theocratic oligopoly” (since gays didn’t have corporate benefits, and abortions weren’t legal), James Madison uses the “multiplicity of sects” as an example of how the new government might function to secure the natural rights of its citizens if the Constitution were adopted. It seems that the religious freedom Americans experienced at that time was so widely acknowledged that it was a strong example to use in explanatory defense of the new Constitution.

This “multiplicity of sects” has only grown exponentially since 1789, America is no longer a dominantly Protestant nation, but a nation that is the most religiously diverse that has ever existed. The idea of one sect rising to power through the democratic process and imposing a theocracy, or a “theocratic oligopoly,” obviously lacks intellectual depth or even a cursory understanding of religious life in this country.

Perhaps intellectuals of the left should educate themselves before throwing out quotes that are better suited to a guest appearance on “Romper Room” than for serious discourse on American politics.

Cruel and Unusual Punishment at Gitmo?

2005-06-13T18:44:00.000-07:00

As Americans we are always questioning whether or not our government is using force in our name appropriately...So the question naturally arises...Are we going too far in our interrogation of terrorists...(a term that is slowly losing its impact)? Let me rephrase...Are we going too far in our interrogations of men who belong to a movement that revels in brutality, men who gleefuly slaughter innocent humans by way of sawing their head off on camera for a world wide audience with knives...multiple times. Men who rejoice when their comrades destroy the lives of thousands and their victims are forced to jump from towering buildings rather than be burned alive? Are we going too far in our interrogations of these men?

As American citizens we should critically examine the evidence.

Read this article from Time for a list of the horrible interrogation techniques used by our military on the 20th hijacker on 9/11 Al-Qahtani. Here is a brief glimpse of some of these clearly innapropriate techniques...

Pouring water on their heads. The HORROR!
It was probably Perrier or Dasani no less...don't laugh, I have seen just the threat of brand name water bring grown men to their knees.

Puppet shows: "According to the log, his handlers at one point perform a puppet show 'satirizing the detainee’s involvement with al-Qaeda.'" I just pray they weren't sock puppets, I can't even describe the utter devastation that results when sock puppets are used by well trained interrogators...it is indescribable. Just thank God you haven't had to witness such acts. We can only hope that Iran and North Korea aren't developing sock puppets at this very moment.

God Bless America: "He is taken to a new interrogation booth, which is decorated with pictures of 9/11 victims, American flags and red lights. He has to stand for the playing of the U.S. national anthem." What is wrong with him having to look at the victims of his insanity? I say he should also have to stand and sing along with Lee Greenwood's "Proud to be an American" on the hour every hour...that song may just bring them around to our side!

Waking them up with loud bursts of Christina Aguilera...I knew her music was good for something I just didn't know what.

The interrogation technique that apparently broke him down was the deplorable "Invasion of space by female." Imagine that? Pouring water, blasting Christina Aguilera and other forms of cruel and unusual punishment did not break him, but trying to defile him by putting a female in close proximity? He just couldn't take that anymore. Hey, I say if their Achilles heel is their deep seeded misogyny then use whatever means possible.

It’s a Crazy Mixed up World…Gonzales v. Raich

2005-06-07T12:26:00.000-07:00

The medical marijuana case handed down yesterday is politically fascinating for a number of reasons...

You have the entire left leaning side of the Supreme Court bench crushing the dreams of the lefty drug legalization crowd joined by moderate Kennedy and conservative Scalia departing from the rest of his conservative collegues in joining the majority opinion (and who write a concurring opinion).

You also have none other than conservative icon Clarence Thomas supporting the right of people to “pass the duche” (for purely medical purposes of course) writing his own dissent and also joining O’Connor and Rehnquist in dissent.

Why this topsy turvy decision, with liberal justices pulling the bong out of the hands of the medically ill, and most of the conservative justices (save Scalia) arguing for a hashish heaven in California?

In essence you have the policy issue and the Constitutional issue moving at cross currents and creating some interesting results. You have several important issues layered upon one another….

1. First, you have the obvious policy issue of whether or not people should be allowed to use marijuana for medical purposes. Liberal left wingers and conservative libertarians are allies on this issue.
2. Second, you have the policy issue of what role the Federal government should play in the drug war and whether the war on drugs is damaged by states passing their own laws that contradict federal law on this issue.
3. Third, you have the larger Constitutional issue of national governmental power and whether or not the Commerce power of Congress extends to the regulation of the economy (in this case Marijuana).

While I haven’t as yet the whole 79 page decision, what I have skimmed shows that the Court was at least trying to step beyond the policy issue and tackle the deeper Constitutional issues. Witness the following from the majority opinion (remember this is the all the liberal judges Stevens, Breyer, Ginsburg, Souter, joined by Kennedy and Scalia):

“The case is made difficult by respondents’ strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally.”

Refreshing language from the Court that brought us Lawrence v. Texas, Roper v. Simmons and other great hits, where the court seems preoccupied with their vision of justice and not the Constitutionality of the case before them. Here the Court says that no matter how much they sympathize with those wanting to use medical marijuana, they cannot allow California and other states to violate the will of Congress and Federal law.

So why are the left leaning justices acting as the tools of the “evil”
drug enforcement arm of the “feds?”

This is due to the stakes. For left leaning justices, the very foundation of National governmental power is at stake in these types of cases. The “Commerce Clause” has furnished the authority for Congress to erect the entire Federal regulatory state. If the liberal justices on the Court are not about to undue the authority of Congress to regulate pretty much whatever it wants just to provide pot to ailing cancer patients. The stakes are just too high.

In terms of precedent the case seems very straight forward. The majority relied on well established precedent namely Wickard v. Filburn 1942, which was vitually identical to this case if you substituted the word “majrijuana” for the word “wheat.” The dissent relied upon U.S. v Lopez and U.S. v. Morrison. However, in Lopez (I haven’t read Morrison) the Court, while placing limits on Congressional commerce power, explicitly did not overrule its Wickard precedent.

At the heart of all of this is the fact that the Constitution was altered during the New Deal era. However, this alteration was not recorded in the Constituitonal Text. Congressional power to “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes” was altered. The Supreme Court decided, with pressure from FDR and Congress to begin interpreting this phrase as if it read, “Congress has the power to regulate the economy of the United States.”

Over 70 years of precedent and dozens of Federal agencies, and probably millions of lines of federal regulations have been predicated upon this alteration to the Constitution. Now if the American people wanted Congress to wield this power then they could have amended the Constitution via Article V and added that power to Congress legitimately. While there would still be plenty of court cases to be interpreted on these issues, at least the text of the Constitution would not be at obvious variance with reality.

James Madison argued that at some point established precedents gain a legitimacy over time and should not be overturned. My guess is that the commerce clause jurisprudence falls into this category. However, the cognitive dissonance that results from such muddled jurisprudence that increasingly does not square with the text of the Constitution should be example “A” of why it is best to secure alterations to the Constitution by established means and not with a wink and a knod to the established means of amending the Constitutional text…

Paying Respect

2005-06-01T12:44:00.000-07:00

I credit Dennis Prager (see title link) with increasing my awareness of the importance of public ritual as a means of providing meaning and purpose to our collective lives. Usually Memorial Day has meant a three day weekend and no more. This year I was resolved to have a “meaningful” Memorial Day honoring those who have sacrificed themselves for our country in battle. I thought I would share some of my thoughts on the weekend…

First, Friday night I assembled a group of friends to watch Saving Private Ryan in this special theatre setting that was available to us. I provided a brief history of Memorial Day and some facts and background on D-Day before the movie. Saving Private Ryan is a truly great film (the best “war” film ever made in my mind) and perfect for the purpose of reflecting on Memorial Day.

SPR (Saving Private Ryan) does an excellent job of showing the pure horror of war while not diminishing the sacrifice of the men who fought in it. The soldiers are portrayed with respect and reverence but none of the brutality of combat is glossed over. The “bookends” of the movie with private Ryan as a old man, a grandfather, with a familial legacy immediately present give a context and a perspective to the sacrifice of those who did not make it and were not able to “pursue happiness” and get married and have a family, or make it back to see their wife, their mother, father, or children. SPR is a deeply personal look at the characters and their sacrifice that also takes in the scope and importance of the Normandy invasion. It is a truly great movie.

I highly recommend viewing it as a Memorial Day ritual; it definitely puts one in a reflective posture and causes one to be thankful to those young men who have given the “last full measure of devotion” for their country.

Second, on Monday we attended a Memorial Day service at the local cemetery. When we drove into the cemetery I was amazed at the hundreds of large American Flags lining the entrance drive and the surrounding roads, supported by over 3,500 small American flags on the graves. I expected a small dedicated crowd, mostly older largely WWII generation; but, I was thoroughly surprised and tremendously encouraged by the one thousand people and overflow crowd who had shown up for the ceremony. Even more notable perhaps was the cross-generational cross-cultural make up of the crowd. Our culture is so niche marketed with youth music, youth clubs, and restaurants and movies targeted to certain ages and tastes…it is rare to have a community event and location that draws people from all ages and backgrounds. There were the WWII generation folks, veterans of every recent conflict, as well as young families with their young children, teenagers, young couples, boy scouts, the fire department, the police department, all types of service organizations. I was really buoyed by the crowd and their enthusiasm and respectful demeanor. It felt good to share this experience with fellow Americans, Americans who were proud of the service that our Armed services have provided, and thankful enough to take their day off to attend a service commemorating their sacrifice. As I looked around and took it all in I was enjoying the communal experience and the respite from the normal isolation that our individualistic society normally serves up (don’t get me wrong I love individualism, but there needs to be a balance).

It was a fine and reverent service complete with a speech by a Marine General who had just returned from Iraq and gave first hand accounts of the battle for Fallujah. He praised the parents, teachers, coaches, ministers and everyone who had shaped the lives of the young marines that served under him. He said he had internal skepticism about whether or not this “MTV” generation of Americans would have the metal for battle and sacrifice, but his hope was renewed by the tremendous valor, courage, and sacrifice of those who served in his command.

There were some songs, a laying of wreaths on a memorial to the overseas war dead from all the wars and it ended with the whole crowd joining in “God Bless America.” I must say that I truly enjoyed my first Memorial Day service and I look forward to making it a tradition.

We have lost a sense of public ritual in our society. Our many national holidays are minimally celebrated and are usually not cause for celebration and reflection but merely as an excuse to take a three day weekend trip to Vegas, the river, the beach etc. Even if we do take these times for trips and fun in the sun, it seems appropriate to make space for some form of ritual and tradition to remember the purpose of these holi-days…

Memorial Day

2005-05-30T15:06:00.000-07:00

The Title of this blog is linked to a brief history of Memorial Day and the first proclamation about it by Gen. Logan. One of the great aspects of Memorial Day is that it was not decreed from on high by political leaders, rather it slowly emerged out of the practices of the citizens who naturally thought it proper to honor their war dead after the Civil War. The North and South practiced different days until after WWI when the whole nation settled on May 3oth. Now that I have pointed out that it did not start by proclamation...here is the first proclamation about Memorial Day by General Logan in 1868:

"The 30th day of May, 1868, is designated for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village, and hamlet church-yard in the land. In this observance no form of ceremony is prescribed, but posts and comrades will in their own way arrange such fitting services and testimonials of respect as circumstances may permit.
We are organized, comrades, as our regulations tell us, for the purpose among other things, "of preserving and strengthening those kind and fraternal feelings which have bound together the soldiers, sailors, and marines who united to suppress the late rebellion." What can aid more to assure this result than cherishing tenderly the memory of our heroic dead, who made their breasts a barricade between our country and its foes? Their soldier lives were the reveille of freedom to a race in chains, and their deaths the tattoo of rebellious tyranny in arms. We should guard their graves with sacred vigilance. All that the consecrated wealth and taste of the nation can add to their adornment and security is but a fitting tribute to the memory of her slain defenders. Let no wanton foot tread rudely on such hallowed grounds. Let pleasant paths invite the coming and going of reverent visitors and fond mourners. Let no vandalism of avarice or neglect, no ravages of time testify to the present or to the coming generations that we have forgotten as a people the cost of a free and undivided republic.

If other eyes grow dull, other hands slack, and other hearts cold in the solemn trust, ours shall keep it well as long as the light and warmth of life remain to us.

Let us, then, at the time appointed gather around their sacred remains and garland the passionless mounds above them with the choicest flowers of spring-time; let us raise above them the dear old flag they saved from hishonor; let us in this solemn presence renew our pledges to aid and assist those whom they have left among us a sacred charge upon a nation's gratitude, the soldier's and sailor's widow and orphan.

It is the purpose of the Commander-in-Chief to inaugurate this observance with the hope that it will be kept up from year to year, while a survivor of the war remains to honor the memory of his departed comrades. He earnestly desires the public press to lend its friendly aid in bringing to the notice of comrades in all parts of the country in time for simultaneous compliance therewith.

Department commanders will use efforts to make this order effective.
By order of

JOHN A. LOGAN,
Commander-in-Chief

N.P. CHIPMAN,
Adjutant General

Official:
WM. T. COLLINS, A.A.G."

Antietam or Cuban Missile Crisis...you be the judge

2005-05-26T17:11:00.000-07:00

My two cents…

Only time will tell if the deal means the Democrats lost this battle and the deal allowed them to save face (Cuban Missile Crisis) or whether it just postpones an inevitable battle (Antietam) of this same issue at some latter date. I suspect the latter…

I will risk using an inappropriate Civil War analogy here…This reminds me of the numerous blunders by Union generals during the Civil War who repeatedly had their enemy outnumbered and weakened and were in a position to deal crushing defeats to the Confederates. However, being timid and overly cautions these generals lost the initiative, did not seize the day and prolonged the conflict making the war much more bloody and costly than it needed to be. For instance, the battle of Antietam (military historians are free to add or correct me here) saw McClellan overestimate Lee’s strength. Being overly cautious and risk averse, he did not commit his forces into battle during a crucial moment even though he greatly outnumbered Lee’s forces. This caused him to lose the initiative, allowed the enemy to regroup and live to fight another day.

The Union had McClellen and the Republicans have McCain…
(the difference being McCain was never appointed to this position he has tried to seize leadership by usurping Frist)…

While recognizing the limits of analogies, I believe the Republicans had the initiative, had the numbers, and had the Democrats back-peddling and now the “squishy seven” led by McCain have prevented the Republicans from dealing a decisive blow to the judicial filibuster and it will likely come back to haunt them.

Like Antietam I believe the “Deal” was a victory for Republicans, but a costly one (two nominees likely lost) and it will prolong this conflict over the filibuster and which will likely explode with even more force and devastation in the midst of a Supreme Court nomination battle. The Republicans will likely regret not having put this issue to rest here and now.

Of course McCain and company would prefer to use the Cuban Missile Crisis analogy. With two powers minutes away from “pushing the button” he, a modern day JFK, rushes in and saves the day by initiating a compromise that prevents the utter devastation of the “nuclear option.”

Perhaps this is the correct model. I don’t know, but I doubt it. While the stakes are high, they are not quite as high as during the Cuban Missile Crisis. While it is possible that the Dems are merely retreating from battle and the deal was a face saving matter I don’t believe that is the likely explanation. There is too much at stake for them. They have more to lose by letting sound jurists on the court than they do in losing a Senate showdown.

They will likely try to use the judicial filibuster again…but only after seeking to destroy the career and character of the next Supreme Court nominee first…then if that doesn’t work they will save the filibuster as their last line of defense.

Lets just hope McClellan…I mean McCain isn’t there to prevent the Republicans from doing the right thing next time around.

Thanks

2005-05-26T17:05:00.000-07:00

My thanks to Jack of Clubs to adding this site to his blogrole. I will obviously reciprocate and look forward to reading his blog regularly.

The Deal...The Fallout

2005-05-24T19:26:00.000-07:00

Confirmthem.com has a great survey of reactions and analysis of the "Monday Night Mischeif" where moderates of both parties pieced together a compromise deal on Judicial nominations...

The Deal Stinks Perspective...

From Confirm Them.com:

"Hugh Hewitt wonders:

It is impossible to say whether this is a “terrible” deal, a “bad” deal, or a very, very marginally “ok” deal, but it surely is not a good deal.

It’s terrible, Hugh.

1. Democrats agree to allow votes on three nominees, but make no commitment on the others. [It’s amazing how a minority of Senators is able to dictate terms to a fairly large majority.]
2. Democrats reserve the right to filibuster: “Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.”
3. Republicans give up any check on the minority’s power: “…we commit to oppose the rules changes in the 109th Congress.”

The commitment to oppose rules changes is unconditional. There is no out clause such as, “We commit, so long as Democrats are not abusing their discretion in our eyes. ” Instead, it says, “We trust that the Democrats won’t filibuster Luttig, McConnell, Estrada, Alito, or whomever is nominated to the Supreme Court unless they, in their own discretion, decide they want to. For our part, we put it in writing that we won’t support any rules change because our trust in those Democrats is absolute. Trust but verify? Nah. That’s mean. We just trust–period.”

The Upside perspective....

Again from Confirmthem.com:

"Much hand-wringing on all sides, in wake of the McCain for President Announcement compromise on judges. Many on both sides think they’ve lost.

This is a bad deal, no question. It undermines Senator Bill Frist, Senator McConnell - and frankly, the entire Senate leadership.

On the other hand - Democrats are surely screwed. They get their little scalps - Myers and Saad will not soon see the inside of an appellate court. But the Democrats have simply grabbed enough rope to hang themselves.

Why? Because they’ve defined extraordinary - if not specifically, by who they’ve “allowed” on the courts to date - and when Chief Justice William Rehnquist retires on June 27th of this year - all President Bush need to do is select one of the 30-some odd appellate juddges confirmed since he took office and elevate him/her to the Supreme Court. In that case, the Democrats have completely surrendered any opportunity to block such a nominee on any grounds.

Plus, it doesn’t hurt that Nan Aron, Ralph Neas, Nadine Strossen, and the New York Times will be nursing some wicked headaches in the morning.

P.S. John McCain is dead to me."

Why This Fuss Over Judicial Nominations?

2005-05-20T14:04:00.000-07:00

Americans don’t like squabbling. They don’t like to get mixed up in the antics of selfish parties fighting over narrow interests…after all who would? Especially when both sides paint each other as protecting “extreme” positions and responding to pressures from “narrow” interest groups. There are times however, when what appears to be petty partisan squabbling is really a deep philosophical disagreement about the nature and future of the American regime.

While many seek to portray this as a trivial quarrel between two parties acting as mere proxies for extreme interest groups on both sides of the political spectrum there is much more here than meets the eye. The Republicans are not merely responding to pressures from the “religious right” and the Democrats are not just protecting the interests of NARAL.

There is a great principle at stake and the American people should not tune out this debate as simply another round of “Washington politics.” Rather they should brave the shallow rhetoric from both sides, realize what is at stake, and support the side they agree with.

In broad terms what is at stake is nothing less than the future America’s written constitution. I don’t mean this in an alarmist manner, the Constitution will not disappear overnight, but in the long run these are the stakes and the American people need to affirm what they expect from their judges in terms of jurisprudence, if they want to preserve our Constitutional tradition.

Put more concretely the principle at stake is whether or federal judges are, or should be, accountable to anyone but themselves and their own conscience. That is to say, should judges feel bound by the Constitutional text or some outside sense of wisdom or justice?

Republicans, in general, have held that judges ought to hold a judicial philosophy of self-restraint. They believe that judges should defer their own political views to the letter of the law, whether that law is a statute passed by Congress or it is the fundamental law of the Constitution as ratified by the people. They believe the best way to pursue the common good is to let the people speak through their elected representatives, and judges should be very hesitant to overrule them. The only time a judge should strike down a state law or a congressional law is when it clearly violates a plain reading of the Constitutional language, not when it violates their political sensibilities. A judge should never substitute their will for the will of the people as expressed in the law.

Democrats, in general, have held that judges ought to hold a judicial philosophy in which they should not restrain their own conscience or political beliefs. Judges are free to “find new meanings” in the law and expand it if need be to conform to what they feel is just or wise. Simply deferring to established precedent and established law may not serve the judge’s view of what policy is best for the common good. As such they do not feel constrained by a plain meaning of the Constitutional text and in the end they are accountable to their own conscience and perhaps in some sense to history. It is acceptable for the judge to substitute their will for the people’s when the judge believes the people are wrong. While Democrats are not comfortable admitting that judges amend the constitution, they are comfortable admitting that judges should continue to find new meanings in the Constitutional text.

Neither of these legal views is new, and in that sense it seems odd to refer to either as “extreme.” The Republicans are drawing on a legal tradition that dates back to the founding and the Democrats are drawing on a legal tradition that rose to prominence during the progressive era over 100 years ago. In the past both parties have honored the electoral process and generally allowed the President to choose justices that reflect his judicial philosophy.

Currently the Democrats have decided that the President should no longer have this prerogative and are seeking to prevent any appointment of judges who do not share their judicial philosophy. They are seeking to paint as “extreme” any judge who simply holds an opposing judicial philosophy. Even though they are no longer the majority party they believe their judicial philosophy should reign exclusively. Republicans having won the Senate and the Presidency reasonably expect that it is their turn to appoint judges that share their judicial philosophy and they are refusing to yield to the establishment of a precedent that would allow these judges to be systematically excluded from the bench.

So how does this relate to the future of the American Constitution? As a simple point of logic one of these approaches is more compatible with written constitutionalism and one is not. That is to say, if judges uniformly defer to the Constitution’s text, then that text will maintain its authority, conversely if judges do not defer to the text then the authority of that text will diminish over time. As the authority of the text is diminished we begin to move from a written Constitution to an unwritten one. As one judicial philosophy becomes more dominant than the other, so goes the future prospects for maintaining a written Constitution.

Ideally both parties would both share a judicial philosophy that is compatible with our written constitution and simply work to enact their different policy visions through the representative branches of government. As we know the world is not ideal and it is not unusual to use the authority of the Constitution to pursue partisan policy.

Of course the embrace of a judicial philosophy that shows impatience with the Constitution and its forms and formalities is not new, nor is it to be unexpected. As Alexis de Tocqueville observed the pursuit of immediate policy goals at the expense of important forms is to be expected and guarded against:

“Equality awakens in men several propensities extremely dangerous to freedom, to which the attention of the legislator ought constantly be directed. I shall only remind the reader of the most important among them.
Men living in democratic ages do not readily comprehend the utility of forms: they feel an instinctive contempt for them, I have elsewhere shown for what reasons. Forms excite their contempt and often their hatred; as they commonly aspire to none but easy and present gratifications, they rush onwards to the object of their desires, and the slightest delay exasperates them. This same temper, carried with them into political life, renders them hostile to forms, which perpetually retard or arrest them in some of their projects.
Yet this objection which the men of democracies make to forms is the very thing which renders forms so useful to freedom; for their chief merit is to serve as a barrier between the strong and the weak, the ruler and the people, to retard the one and give the other time to look about him. Forms become more necessary in proportion as the government becomes more active and more powerful, while private persons are becoming more indolent and more feeble. Thus democratic nations naturally stand more in need of forms than other nations, and they naturally respect them less. This deserves most serious attention.”

In the end this showdown between the Republican and Democrats has much larger implications than the current media coverage would suggest, and it would behoove the American people to pay attention and throw their support behind the party that is more likely to appoint judges who respect the authority of the Constitution and its forms.

Lincoln's Faith: Excerpt from CUANAS and New York Times

2005-05-12T18:08:00.000-07:00

My friend Pastorious posted this over at CUANAS, enjoy:

Lincoln's Faith
From David Brooks, in the New York Times:

"On Sept. 22, 1862, Abraham Lincoln gathered his cabinet to tell them he was going to issue the Emancipation Proclamation. He said he had made a solemn vow to the Almighty that if God gave him victory at Antietam, Lincoln would issue the decree.

Lincoln's colleagues were stunned. They were not used to his basing policy on promises made to the Lord. They asked him to repeat what he'd just said. Lincoln conceded that "this might seem strange," but "God had decided the question in favor of the slaves."

I like to think about this episode when I hear militant secularists argue that faith should be kept out of politics. Like Martin Luther King Jr. a century later, Lincoln seemed to understand that epochal decisions are rarely made in a secular frame of mind. When great leaders make daring leaps, they often feel themselves surrendering to Divine Providence, and their strength flows from their faith that they are acting in accordance with transcendent moral truth.

And I also think back on Lincoln at moments like these, when other boundaries between church and state are a matter of hot dispute. Lincoln is apt, because this emancipation moment was actually exceptional. Lincoln was neither a scoffer nor a guy who could talk directly to God. Instead, he wrestled with faith, longing to be more religious, but never getting there.

Today, a lot of us are stuck in Lincoln's land. We reject the bland relativism of the militant secularists. We reject the smug ignorance of, say, a Robert Kuttner, who recently argued that the culture war is a contest between enlightened reason and dogmatic absolutism. But neither can we share the conviction of the orthodox believers, like the new pope, who find maximum freedom in obedience to eternal truth. We're a little nervous about the perfectionism that often infects evangelical politics, the rush to crash through procedural checks and balances in order to reach the point of maximum moral correctness.

Those of us stuck here in this wrestling-with-faith world find Lincoln to be our guide and navigator. Lincoln had enough firm conviction to lead a great moral crusade, but his zeal was tempered by doubt, and his governing style was dispassionate.

The key to Lincoln's approach is that he was mesmerized by religion, but could never shake his skepticism. Politically, he knew that the country needed the evangelicals' moral rigor to counteract the forces of selfishness and subjectivism, but he could never actually be an evangelical himself.

So, like many other Whigs, he was with the evangelicals, but not of them.

Lincoln believed in this cause as fervently as anybody, but he was always trying to slow down his evangelical allies. As the great historian Allen C. Guelzo argues, Lincoln favored the classical virtue of prudence, which aims at incremental progress and, to borrow a phrase from Lincoln, at making sure that politics doesn't degenerate "into a violent and remorseless revolutionary struggle."

Lincoln came to believe in a God who was active in human affairs but who concealed himself. The only truths he could rely upon were those contained in the Declaration of Independence: that human beings are endowed with unalienable rights. We Americans can be ardent in championing that creed, but beyond that, it's best to be humble and cautious.

One lesson we can learn from Lincoln is that there is no one vocabulary we can use to settle great issues. There is the secular vocabulary and the sacred vocabulary. Whether the A.C.L.U. likes it or not, both are legitimate parts of the discussion.

Another is that while the evangelical tradition is deeply consistent with the American creed, sometimes evangelical causes can overflow the banks defined by our founding documents.

Lincoln's core lesson is that while the faithful and the faithless go at each other in their symbiotic culture war, those of us trapped wrestling with faith are not without the means to get up and lead."

Comments from Pastorius:
"My faith is of the wrestling with God variety. I do not absolutely believe in the tenants of my faith, nor do I absolutely believe that God loves me cares about us. I doubt.

I spend many long nights tossing and turning, sweating and pondering decisions. Nothing ever comes easy to me. But, I have learned during the course of my lifetime to use my faith as my starting and ending point. In other words, to defer to that which I do not have absolute certitude.

It may not make sense to me, and I may disagree and argue with it, but that isn't the point. The point is, that in which I have faith has a better track record than I, in making important decisions.

That's faith, not certainty, but a struggle with and against doubt, guided by a scripture and a relationship which you believe to be a higher authority than yourself.

Maybe believers aren't that shallow and self-deluding after all."

Frankenstein and the Battle over the Judicial Filibuster

2005-05-11T14:24:00.000-07:00

A couple of thoughts on the ongoing confrontation over judicial nominees…

I am a bit concerned that in their zeal to win the battle over the judicial filibuster Republicans and their conservative supporters may be seeking to win a battle at the expense of the war.

A common refrain from the Republican side is that the Democratic filibuster in some ways constitutes religious discrimination against Catholics (or anyone) whose religious beliefs would cause them to question abortion laws or Roe v. Wade, etc. I have heard more than one conservative commentator lament something along the lines of, “If the Democrats had their way, anyone who took their faith seriously would be disqualified from the bench.” Or “One simply can’t be a devout Catholic and be confirmed by the Democrats.” It is certainly understandable that conservatives would use this argument because it paints Democrats into a corner of religious bigotry; furthermore, the charge is likely true, most Democrats would certainly love to exclude deeply religious Catholics from the bench. It is effective politics and puts the Democrats on the defensive rhetorically.

However, what is potentially damaging about this line of argument is that it implicitly concedes the much larger and more important point; that the religious views of judges should not matter at all, because judges should not engage in policy making when issuing their rulings. Rather than infusing their policy opinions into court rulings, judges must be experts at interpreting and applying the policy judgments of others; therefore, their religious views are and should be irrelevant.

Hypothetically, a devout Catholic or Evangelical judge may have to rule that a given statute is indeed constitutional or legitimate in a given state even though it violates their religious convictions (say allowing abortions). Their private views should have no impact upon their interpretation of the law and what it allows or does not allow. Therefore when Republicans argue that devout Catholics or Evangelicals are being excluded because of their religious views, they are implicitly conceding the point that their views should matter at all.

The religious views and convictions of the judges should be a non-issue for both parties. Democrats should not bring it up as a source of disqualification and Republicans should not use it as a tool to pry Democrats into a corner.

The only views that should matter are the judges’ views on the limits of their power and their role as judges.

Republicans should take the occasion of this confrontation to remind the American people why this conflict over judicial nominees matters. More is at stake than the mere policy preferences of either party. What is at stake is the very soul of the Constitution and the survival of written constitutionalism in America. The United States cannot maintain a written constitution in perpetuity if its text is subject to the whims of the Supreme Court. Its text must be honored as authoritative until altered by an “explicit and authentic act of the people,” which is how George Washington put it in his farewell address. The judicial philosophy of most Supreme Court justices and of those judges the Democrats would like to appoint undermines this fundamental aspect of our American system of written constitutionalism.

Democrats have advocated and defended a judicial philosophy that allows the judiciary to engage in policy making with very little Constitutional restraint. They have in effect turned the Supreme Court into a counter-majoritarian legislature that is insulated from public opinion or the more representative branches. By empowering the Supreme Court to act as a sitting Constitutional convention over the decades the Democrats have created a “monster.”

Like a Democratic Frankenstein, the Supreme Court has long done left wing bidding on key cultural touchstone issues such as abortion, school prayer, death penalty, criminal justice, etc. Only now having created this powerful tool, the Democrats are fearful that they will lose control of the Court and now the monster, their creation, may turn on them.

Having lost Congress and lost the Presidency, and threatened by the portent of becoming a national minority party, the Democrats are panicked and deathly afraid of losing control of this counter-majoritarian legislature (aka Supreme Court) to the Republicans. They are on the verge of becoming victims of their own un-constitutional jurisprudence. This is why they are willing to risk so much and expend so much political capital on this confrontation.

The Republicans, particularly conservatives, have long advocated the proper role of a constitutionally limited and responsible judiciary. In their zeal to pin Democrats in the corner, conservatives need to avoid embracing rhetoric that subtly concedes this larger goal. Moreover Republicans must resist the corrupting temptation, to tame the “monster” by appointing justices that will pursue conservative policy from the bench. So far they have resisted this temptation, but they should also avoid rhetoric that implies they haven’t. Instead they must stay focused and simply engage in the long struggle to restore the judiciary to its proper function as an interpreter and not a creator of the law.

Roper v. Simmons pt III: The "risk" of Democracy

2005-05-03T18:11:00.000-07:00

Roper v. Simmons is a key example of where the Court has overstepped it's Constitutional bounds and ultimately seems to have little patience or faith in representative democracy.

Let's step beyond the policy argument for a minute. There are good arguments on both sides of the policy issue of whether or not our society should sanction the death penalty for minors. For the sake of argument let's even assume that the Court was indeed correct; that it is unjust to subject minors to the death penalty.

Do we want five graduates of law school to be the ultimate authority on such complex social issues?

Are we capable as a democratic people to work throught these issues in our own states by petitioning our legislators?

Do we need the paternalistic hand of the Court even when they are right?

If a segment of the American citizenry wants to eliminate the juvinile death penalty then there is a democratic process to be followed:

1. Mobilize like minded citizens in each state.
2. Push each state legislature to eliminate the juvinile death penalty
3. If the Legislature does not respond, then convince a majority of your fellow citizens in each state to elect legislators who agree with your position.
4. Vote out legislators who do not agree with your position.
5. If your position is just and the rest of the American people agree with you, in time the law will be changed in each and every state.

The problem with this? It takes work. It takes convincing fellow citizens you hold a just and moral position and that your policy makes sense and will make sociey better. It takes mobilizing enough citizens to do something about it. It is difficult, it is democracy.

But democracy is so messy, it is so hard to convince my fellow citizens I am right. It is much easier to find a good test case channel resources into talented lawyers and seek to convince a handful of judges that you have a just position...who needs to bother with your fellow citizens.

At most the Court could have said, "We may agree with your policy position, but unfortunately the Constitution does not take a position on the juvenile death penalty. The term "cruel and unusual" has never been construed to prohibit such penalties. In this case the Constitution may allow for an unjust policy. Go back to your respective states and change state law. Or convince enough of your fellow citizens to enact a Constitutional amendment."

Democracies are not infallible, they simply seek to honor every person's natural right not to be ruled by another without their consent. Along with democracy comes the risk that the people will not always choose well. In the end, the lesson of Roper v. Simmons seems to be that the Court is just not willing to accept this risk...

Roper v. Simmons: Who decides what is Cruel and Unusual?

2005-04-16T09:56:00.000-07:00

It seems the court was divided over who in American Society is empowered to determine what is indeed cruel and unusual. The majority believes that the court is empowered to decide when a national consensus has evolved and they can draw added support from international law. The Dissent believes that the state legislatures are empowered and capable of deciding what or what is not cruel or unusual.

THE MAJORITY OPINION: Note their reliance on the "evolving standards of decency" as a guide for their decision.
The Majority opinion reads:

"The prohibition against “cruel and unusual punishments,” like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework we have established the propriety and affirmed the necessity of referring to 'the evolving standards of decency that mark the progress of a maturing society” to determine which punishments are so disproportionate as to be cruel and unusual. Trop v. Dulles, 356 U.S. 86, 100—101 (1958) (plurality opinion).'

THE DISSENT: Here is Justice Scalia's reply to the course taken by the majority. Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting.

"In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people’s representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since “[t]he judiciary … ha[s] neither FORCE nor WILL but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, “bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” Id., at 471. Bound down, indeed. What a mockery today’s opinion makes of Hamilton’s expectation, announcing the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years–not, mind you, that this Court’s decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to “the evolving standards of decency,” ante, at 6 (internal quotation marks omitted), of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people’s laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: “[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Ante, at 9 (internal quotation marks omitted). The Court thus proclaims itself sole arbiter of our Nation’s moral standards–and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent."

I would suggest that people read Scalia's full dissent, it is very powerful. It can be found at the link above.

Is it hip to be a Violent Totalitarian?

2005-03-05T14:32:00.000-08:00

I have been annoyed for years about the appearance of Che Guevera on the t-shirts of the hip young urban wannabees. I am amazed that they would ignorantly honor a totalitarian whose views and actions led to the death and imprisonment of many innocent people. What's next? Leather wallets with "Lenin" embossed on the outside complete with a wallet chain modeled after chains Lenin approved for use in the Gulag. How about womens cotton shorts with the word "Stalin" stitched across the butt. Or perhaps we will see t-shirts with the name "Pol Pot" above a Marijauna leaf bearing the image of that horrible Cambodian murderer in the middle of the leaf. Hey if totalitarianism is that cool why not?

Note to young hip wannabees, research the guy in the shirt you want to wear, before going out into public. Don't just say "Cool a Dude in a Beret!" and then become an unwitting billboard for tyranny.

Regarding the ridiculous creation of the Che Guevera myth. I was pleased to read this review, over at Slate, of the movie the "Motorcycle Diaries." This review rightly exposes the movie as a whitewash of a totalitarian and exposes Che for what he was...someone who actively supported and propogated evil. Read the piece it is good.

-Federal Farmer

Roper v. Simmons, Death Penalty for Minors

2005-03-05T11:00:00.000-08:00

I haven't as yet read the opinion and but I will as soon as possible. Regardless, I thought I would give some initial reactions to this case based upon the news reports that I have heard or read.

First, the reporting on this case and Supreme Court cases in general, reveal a complicity among the media in embracing the destructive view of the Supreme Court as policy maker.

Much of the reporting tends to portray the Supreme Court as the ultimate policy maker rather than mere interpreters of the Constitutional text. Accordingly, in discussions of the issue, media reports often focus merely on the policy merits of the issue at hand. They treat Supreme Court cases almost exactly as if they were pieces of legislation and the only considerations are the relative wisdom or justice of the issue and not the Constitutionality of the issue.

For example, one news report on the radio gave a quick summary of the decision and then gave a few brief public reactions from people on the street. The clips were basically people's opinion on the wisdom or morality of the issue and nothing regarding the Constitutionality of the issue.

The clips were similar to the following:

"Oh I agree with the Court, young people shouldn't be executed."

the next clip

"I think the decision is wrong, why shouldn't a 17 year old be held accountable like an 18 year old."

Then the report signs off, leaving the impression that the case has been adequately and fully covered, especially since they had sound bites from two citizens with differing opinions on the matter. There is no hint that perhaps the Court ruling had to do with the Courts interpretation of the text rather than their view of the policy.

Here is how the opening paragraph of an NPR online story read:

"The Supreme Court on Tuesday abolished the death penalty for convicted killers who committed their crimes before the age of 18. The court ruling, closely divided at 5-to-4, affects 72 people in 20 states. The practice will also be banned for any future crimes."

The Court abolished it?

or

Did the Constitutional text (democratically ratified by the people) compel the court to rule laws allowing the death penalty for minors unconstitutional?

The Court is not allowed to "abolish" they are only allowed to interpret. While they often don't restrain themselves to merely interpreting, such reporting merely serves to legitimate this disturbing practice in the mind of the public.

Whatever one's opinion of the issue, the policy merits of taking one position or the other should not be the question before the Court. The real question is whether or not this policy or law is "Constitutional" not whether or not it is "wise" "just" or in the "public interest."

The role of the Court is not to determine the merits of a given policy.

The role of the Court is to simply establish whether or not a given policy is Constitutional.

Granted the Court is not good at maintaining this distinction themselves, and they engage in policy making all the time, thus contributing greatly to this poor reporting. Ultimately, the reporting often falls right in line, pretending that it is perfectly fine for the the Court to tell the rest of us what is moral or just on a given policy issue rather than simply telling us whether or not this policy (irregardless of its wisdom) is indeed allowable under the Constitution.

The hard truth that many do not want to face, is that:

The Constitution allows for unjust policies to be enacted by the people.

The remedy for unjust policies is making the public case for justice to fellow citizen's, mobilizing like minded citizens, lobbying one's legislature, and electing representatives who agree with you. In short, in a democracy one must build a consensus amongst one's fellow citizens to get that unjust policy overturned, democratically.

The proper remedy is not to take a short cut by hiring lawyers skilled at convincing five elite citizens in positions of power to pronounce what is or is not moral for the rest of society. This does not lay our nation's core policies on a firm democratic foundation.

When government does enforce moral positions it is best done with the establishment of broad support in society and it should reflect a moral consensus among the nation's citizens. There is a big difference between the assertion of a national concensus and the actual existence of one. A true national consensus is best built and recorded through the workings of the democratic process, not from pronouncements on high.

In the end, news reports that fail to make this basic distintion between policy making and Constitutional interpretation by the Supreme Court are simply aiding and abetting the regrettable development in American Constitutoinal Jurisprudence, where the Court is widely seen as the arbiter of national morality.

-Publius2000

Initial Post

2005-01-29T10:51:00.000-08:00

This is the initial Post of Publius2000. The pen name Publius is borrowed from "The Federalis Papers" which are perhaps the most fundamental articulation of the form and function of the United States Constitution as it was understood by those who framed it and argued forcefully for its ratification. The Publius of the Federalist Papers represented the triad of Hamilton, Madison, and Jay as a writing team who wrote numerous essays publised throughout the states in support and defense of the newly proposed Constitution. They are known for their insight and power of clearly articulating the philosophy behind the design of the United States Constitution.

This blog will seek to tap into the spirit of the Federalist Papers by seeking to provide thoughtful analysis and commentary on the functioning of the United States Constitution and its institutions in this new 21st century. It is this author's hope that these posts will provide helpful insights to the average citizen that will allow them to gain a thoughtful perspective regarding the United States Constitution and American politics; a perspective that is rooted in the thoughtful deliberations and writings of the founding generation. While these posts will certainly not compete with the sheer power, force, and grace, with which Madison, Hamilton, and Jay wrote, it is my hope that this site will provide at least a shadow of the inspiration exhibited by that trio and their efforts.

I hope that you will all enjoy this blog and give reactions positive and negative tot he posts.

Publius2000