Analyzing Roberts--and Politics' Role--in Wake of Health Care Ruling

While disagreeing with the outcome, Charles Krauthammer has some ideas as to why Chief Justice Roberts may have ruled as he did in the Health Care case:

Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature.

As a conservative, he is as appalled as his conservative colleagues by the administration’s central argument that Obamacare’s individual mandate is a proper exercise of its authority to regulate commerce.

That makes congressional power effectively unlimited...“The Framers . . . gave Congress the power to regulate commerce, not to compel it,” writes Roberts. Otherwise you “undermine the principle that the Federal Government is a government of limited and enumerated powers.”

That’s Roberts, philosophical conservative. But he lives in uneasy coexistence with Roberts, custodian of the court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger courts, most egregiously with Roe v. Wade, which willfully struck down the duly passed abortion laws of 46 states....More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5 to 4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.

Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5 to 4 decision split along ideological lines that might be perceived as partisan and political.

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

Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the commerce clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the commerce clause fig leaf.

Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce clause contained, constitutional principle of enumerated powers reaffirmed.

Whilst ruminating (and persuasively at that) about whether or not Chief Justice John Roberts changed his mind late in the game, David Bernstein avers that the Supreme Court justices do feel political pressures (like it or not) and, if the political situation were different, the case may not have been heard at all:

I should note that I think the Supreme Court is a political body (which is not to say that its decisions are primarily motivated by partisanship or political ideology) and that one can expect that the Court’s rulings are affected by outside events. As I noted long ago, the challenge to the individual mandate would have stood no chance if the president and the ACA were riding very high in the polls, as the Court would not have had the political wherewithal to write what would be seen as a radical opinion invalidating a popular law from a popular president. Similarly, the level of heat defenders of the ACA were giving the Court could have persuaded Roberts that discretion was the better part of valor....I don’t find it at all illegitimate for political actors to put pressure on the Court, so long as they stay within proper legal bounds, and keep their rhetoric within the broad boundaries of decency. But it is ironic that while liberal critics were quick to accuse the Court of playing politics by taking seriously the Obamacare challenges, it may turn out that it was only politics that saved the ACA.

There's no "may" about it; that's exactly how it turned out. But the method--for the moment--is less important than the outcome. Something that Rhode Island's own William Jacobson on his Legal Insurection blog puts into proper perspective:

Some well-meaning people are peddling the notion that today’s Obamacare decision was a long term victory, that we lost the battle but won the war, that there was some master plan by Chief Justice Roberts to gut the expansion of Commerce Clause power under the fig leaf of a majority ruling upholding the mandate under Congress’s taxing power.

To paraphrase Joe Biden, I have just four words for you:

BIG —— DEAL

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

I might be inclined to agree with you.

...Whether the Chief Justice did it out of good faith belief in the correctness of his opinion (which is what I believe) or as part of some master plan (the theory some are peddling), the result is the same: Until further notice Obamacare is the law of the land....And under any reasonable theory of conservative judicial restraint, the Chief Justice should have allowed Obamacare to fall of its own weight, of a weight born of a political process in which the mandate could not be called a tax because the nation would not have stood for it....

We live to fight another day, but don’t tell me we won because someday possibly in the future in some other case with some other set of Justices we maybe might achieve some doctrinal benefit from the Commerce Clause ruling.

So please don’t delude yourselves. Today was a bitter loss because it was one we should have won.

Civically Valuable Performance Art Courtesy of the Supreme Court

During Tuesday's oral arguments over Obamacare, Supreme Court Justices Clarence Thomas and Stephen Breyer apparently teamed up to pay tribute to the old adage, attributed to Abraham Lincoln and Mark Twain amongst others, that it is "better to remain silent and be thought a fool than to speak out and remove all doubt".

Justice Thomas has attained a degree of notoriety over his career for not asking questions during Supreme Court oral arguments. Tuesday was not an exception.

And here's a part of what Justice Breyer had to say about the US Constitution's Commerce Clause, transcripted by Conn Carroll of the Washington Examiner...

I say, hey, can't Congress make people drive faster than 45 -- 40 miles an hour on a road? Didn't they make that man growing his own wheat go into the market and buy other wheat for his -- for his cows? Didn't they make Mrs. -- if she married somebody who had marijuana in her basement, wouldn't she have to go and get rid of it? Affirmative action?

Carroll's blog post includes a longer excerpt from Justice Breyer, a decrypting of what he was trying to say, and an explanation of his legal errors.

All in the Judiciary's Hands

The precedent that this ruling out of Michigan, related to a constitutionally created ban on affirmative action, sets is astonishing:

The 2-1 decision upends a sweeping law that forced the University of Michigan and other public schools to change admission policies. The 6th U.S. Circuit Court of Appeals said the law, approved by voters in 2006, violates the 14th Amendment's Equal Protection Clause.

The court mostly was concerned about how the affirmative action ban was created. Because it was passed as an amendment to the state constitution, it can only be changed with another statewide vote. This places a big burden on minorities who object to it, judges R. Guy Cole Jr. and Martha Craig Daughtrey said.

It sounds as if "equal protection" is being expanded to mean that minorities must have as much chance of changing a law as majorities. That remains the case, of course, inasmuch as minorities need only convince a majority to side with them, but this is something more targeted — like an affirmative action for democracy.

And if the ruling stands, think of the role that the judiciary will then play in our system. If the people's representatives pass a law that a judicial elite doesn't like, judges will strike it down as unconstitutional. If the people write it into the constitution, judges will strike it down as too difficult to change by democratic or judicial means.

A Due Respect for Political Patronage Job Holders

Looking out the window prior to work, today, brings to mind this article about truants that I've been meaning to note for a few weeks, now:

For years, magistrates for Rhode Island Family Court's truancy program have imprisoned students who misbehave during hearings on their attendance, despite a state law created to keep the government from locking up juveniles for noncriminal offenses.

The magistrates, who run the weekly truancy court in classrooms, cafeterias and school offices around the state, have declared youths as young as 12 in criminal contempt of court for not answering their questions, swearing, slamming a door on their way out of the room or otherwise showing "total disregard for authority," according to court documents and interviews.

Once inside the state's juvenile correctional system, the youths are forced to undergo strip searches, urine and blood tests. They wear prison uniforms and, for a night or two, mix with teenagers accused of drug dealing, robbery, weapons possession, assault and other violent crimes.

All of this without legal representation. Moreover, as we note from time to time (here and here, for two), magistrates are tainted by the fact that they are not appointed by the same process as judges, but by the Chief Justice of the RI Supreme Court and by other magistrates.

Imprisoning kids for disrespect is certainly the sort of thing that the holder of a political patronage job would talk him or her self into believing to be in the best interest of all involved. Perhaps people acting as judges who aren't judges at all, but mere politically connected lawyers, come to believe that they're above the law. Or perhaps they feel like they've got something to prove.

Questions of Law and Questions of Power

Edwin Meese is not impressed with U.S. District Judge Vaughn Walker's decision that the Constitution requires recognition of same-sex marriage:

By refusing to acknowledge binding Supreme Court precedent, substantial evidence produced at trial that was contrary to the holding and plain common sense, the ruling exhibits none of the requirements of a traditional decision. This opinion is arbitrary and capricious, and its alarming legal methodology and overtly policy-driven tenor are too extreme to stand.

Regardless of whether one agrees with the result, structurally sound opinions always confront binding legal precedent. Walker's is a clear exception because the U.S. Supreme Court has spoken on whether a state's refusal to authorize same-sex marriage violates the equal protection and due process clauses of the 14th Amendment. In 1972, Baker v. Nelson, a case over whether Minnesota violated the Constitution by issuing marriage licenses only to opposite-sex couples, was unanimously thrown out on the merits, for lack of a substantial federal question. The Supreme Court's action establishes a binding precedent in favor of Proposition 8. But Judge Walker's ruling doesn't mention Baker, much less attempt to distinguish it or accept its findings.

A summary of the legal history of Baker illustrates that many of the arguments for the maintenance of traditional marriage were the same back in the early '70s as they are now — notably that marriage is intrinsically tied to procreation, that some opposite-sex couples' decision not to fulfill that link (or inability to do so) in no way eliminates the norm, and differences of race and of sex are not equivalent. The difference, nowadays, is that a significant portion of the ruling class — those in the judiciary leading the way — has decided simply to ignore basic meaning and common sense.

Marriage However They Want It

Yes, there are distinctions, and obviously, it is possible to argue both points simultaneously, but consider the circumstances that some early federal judicial rulings on same-sex marriage have created. A judge in Massachusetts has declared that the U.S. Congress and President cannot define marriage for the purposes of federal law, because the Constitution leaves the definition of marriage to the states. Now, a judge in California has single-handedly insisted that the people of that state, following the process of changing their constitution in order to affirm the definition of marriage as a relationship between members of the opposite sex, have violated the national Constitution.

Perhaps I'm not alone in inferring that the game is rigged and in taking this instance as evidence of the broader relentlessness of a ruling class that disagrees with the people of, by, and for whom the government is supposed to exist. On the blog Gay Patriot (via Instapundit), B. Daniel Blatt highlights some evidence that Chief U.S. District Judge Vaughn Walker ruled based, above all, on his own value system, rather than the law or the consensus of Americans:

Whoah, this guy is given more to popular jargon that to constitutional interpretation: "the evidence shows that Proposition 8 harms the state's interest in equality, because it mandates that men and women be treated differently based on antiquated and discredited notions of gender." Antiquated and discredited notions of gender? Discredited by whom? Sociologists writing in the 1970s, inventing a social construct out of thin air?

Commenting to a related post on the Volokh Conspiracy, Bart DePalma extrapolates the broader oligarchical question well:

The federal courts are not doing the Dems any favors.

Missouri's Prop C showed that the voters are already in full rebellion over an imperial Congress taking control of their health insurance against their will.

Then, last month, a district court judge in AZ decreed that the most popular law in the country — Arizona's attempt to enforce federal immigration law — was likely unconstitutional because it would be contrary to Obama policy not to enforce the law.

Now, a district court judge in San Fran has literally decreed that homosexual unions are marriages and the voters of CA were irrational to vote otherwise.

The courts may have just added law and order and social issue voters to the tsunami already headed to the ballot box in November.

How many more times does the ruling class think voters can be denied before there is a revolution — first at the ballot box and then if that fails on the streets?

If I may paint in even broader strokes: Incremental imposition of a national worldview — which is not very far, at all, from an organized religion — had served progressives well for a number of decades, as they infiltrated opinion-forming sectors of society, such as education and entertainment. By that method, they numbed and isolated their opposition. By a more political method, they drew in constituencies wanting some change to the order of American society, whether by encouraging dependency on government or picking the sides in cultural battles that appeal to our most basic desires and disruptive impulses (sex most prominently).

In recent decades, cultural conservatives aligned with civil libertarians and began building means of conveying their ideas even when locked out of more traditional media. At the beginning of this millennium, I'd have wagered that the conservative arguments thus promulgated would gradually win the day against the bankrupt and totalitarian ideas of the Left, and that the discoursive struggle would be between the right-leaning erstwhile allies. Unfortunately, the combination of 9/11 and President Bush's "compassionate conservatism" confused the trend and ushered in a far-left Democrat Congress and President Obama, who slithered into office on a centrist lie and a stolen dream.

Perhaps liberals have lost faith in incrementalism and are attempting to leap several rungs of the ladder at a time. Or perhaps conservatives are now better positioned to respond to the usurpation of our civil society. Whatever the case, big questions have been brought forward for pivotal answers, and support for immediate outcomes could come at the cost of much more fundamental concerns.

Guess it Depends on Who Nominates the Blank Slate

October 14, 2005.

The White House [needs to] recognize that, in the absence of any judicial record on her part, in the absence of any significant work that she appears to have done related to Constitutional issues, that she is going to need to be more forthcoming and the White House is going to need to be more forthcoming...[She] is completely a blank slate. ~ Senator Barack Obama on President Bush's nomination of Harriet Miers to the U.S. Supreme Court

I'll grant that Elena Kagan has more "significant work...related to Constitutional issues" than Miers--whose nomination I also opposed because she simply lacked experience--but both are blank slates when it comes to *how* they would actually rule from the bench because, well, neither of them were ever judges. Perhaps there are cases when that's OK (former Chief Justice William Rehnquist was never a judge, for instance), but I don't think that it will really fly in a day and age when we all need the right credentials before we do anything!

Separation Doesn't Mean That One Silences the Other

By way of follow-up on an issue that I've mentioned, before, the Supreme Court has ruled that a plain cross on public land in the middle of the desert does not constitute an establishment of religion:

By a 5-4 vote, the justices reversed lower courts in California that ordered the U.S. Park Service to remove an 8-foot-tall cross that has stood in various forms in the Mojave National Preserve since 1934 as a memorial to the soldiers of World War I. ...

In the past, the high court, led by O'Connor, has said a city or state's display of a religious symbol was unconstitutional if it could seen as an official "endorsement" of a particular faith. In June 2005, a 5-4 majority cited this reason for striking down the display of the Ten Commandments in Kentucky courthouses.

But days later, O'Connor retired and was replaced by Alito. On Wednesday, he joined with Kennedy and Roberts. They agreed that if a religious display carries other meaning, it can be upheld. The cross "evokes far more than religion," said Kennedy, speaking for the divided court. He faulted the judges in California for having "concentrated solely on the religious aspects of the cross, divorced from its background and context." Justices Antonin Scalia and Clarence Thomas joined to form the majority. They said they would have gone further and ruled that the former park service official who sued had no legal standing to object to the cross.

Whitehouse to SCOTUS?

As I was driving around this morning, I heard from our corporate overlords on WPRO that RI Sen. Sheldon Whitehouse was an "out of the box" candidate to fill the soon-to-be vacated Supreme Court seat currently held by Justice Stevens. Upon further research, it seems the idea was first floated by a contributor to the Huffington Post yesterday afternoon. In a piece titled "Sheldon Whitehouse and 4 Other Superb 'Out of the Box' Suggestions to Replace Justice Stevens," Paul Abrams wrote:

Senator Sheldon Whitehouse (D-RI) has the sharpest mind in the Senate. He is a former attorney general. His sharp mind, rhetorical skills, keen understanding of how government works, and his political experience suggest he would be a strong advocate, persuasive thinker, consensus builder, and, when in the minority, a cogent dissenter. Advocates before the Court would have to triple their preparation to meet his withering questioning. The Court, the standard of advocacy, and the entire country would benefit.

Yes, Glenn Beck would likely conjure a grand conspiracy in sending someone named "Whitehouse" to the Supreme Court, but as a sitting Senator it would be difficult for Republicans to filibuster his nomination recognizing he would be among them for a long time. Moreover, Republicans know, by serving with him, that their attempts to posture and to lie would result in their undressing on national television. A Democrat, or a Lincoln Chafee, would replace him. He could do far more benefit as 1 of 9 on the Supreme Court than 1 of 100 in the Senate.

Hm. Whitehouse hasn't exactly enamored himself to some of his potential future colleagues with his criticism of the Court's decision on campaign finance reform, in which he accused the conservative justices of being nothing more than puppets for corporations (and more). To this point, Sen. Whitehouse hasn't exactly displayed the sort of judicial temperament one would expect. Ideological firebrand is more like it. While I wouldn't lose any sleep over the idea of "losing" Sen. Patrician--I didn't vote for him (ahem)--I can't quite bring myself to support the idea of pawning our problem onto the entire U.S.

McConnell Joins Rogeriee

With their recommendations to President Obama to nominate local Democrat Party mega-donor lawyer Jack McConnell to the First Circuit Court of Appeals, we learn that Senators Reed and Whitehouse are proving to be unique evaluators of judicial talent. Apparently, McConnell has joined previous nominee O. Rogeriee Thompson as being one of the 4 nominees (out of 56) to receive a few "not qualified'' marks from the American Bar Association's judicial rating panel. Don't worry, though. It's not their fault!

Reed and Whitehouse have both expressed reservations about the ABA's system of rating candidates to the federal bench. Commenting on Thompson's ratings, Whitehouse said the ABA system tilts toward a "big-firm, corporate law" view of judges that "does not sufficiently value" her career of service. Reed has objected to the fact that the ABA discloses only its final grades on nominees, generally withholding any information about the interviews and other factors that led to the final grade.

Yeah, that's the ticket. Somehow the system routinely discriminates against Rhode Island's nominees (since Reed and Whitehouse started tag-teaming, anyway).

The Legal Primacy of Sex

This from the court that blazed the path of determining that the word "marriage" can't mean, in the law, what it's always been known to mean:

Matt Zubiel of Beverly was arrested in 2006 after driving to Marshfield to meet with the girl, who really was a Plymouth County Deputy Sheriff, authorities said. The next year, he was convicted of four counts of attempting to disseminate harmful material to a minor.

But in his appeal, Zubiel argued that the "harmful material" banned under the law didn't include sexually explicit instant messages, and the Supreme Judicial Court agreed on Feb. 5. ...

In his appeal, Zubiel argued that though the law listed more than a dozen examples of the obscene "matter" that adults can't give to minors, it didn't include instant messages.

Look, this appears to have been the correct ruling, according to the law, and we can take some comfort in the fact that the arrest was based on a sting, not an actual attempt to abuse a minor, and now the law will likely be updated. But doesn't seem as if the decisions always break in a particular direction when courts decide how literally to take the law?

For Less Judicial Ideology, Shorten Government Reach

Something about this line of thinking, in an AP essay about the Supreme Court by Mark Sherman, doesn't sit right:

As in dozens of earlier cases, Kennedy was in the majority each time. He was the author of the campaign finance decision.

The rulings demonstrate the extent to which ideology — not fidelity to precedent or a particular interpretation of the Constitution — is the driving force on the court.

The immediate peculiarity is the failure to comprehend that ideology affects methods of interpreting the Constitution, and vice versa. That isn't to say that judges will necessarily choose the interpretation that best suits whatever their ideology dictates on an issue-by-issue basis, but that beliefs about the role of government will lend themselves toward certain approaches to the law.

The larger point that ought to be made, however, is that the underlying problem is the reach of the government overall. If every aspect of American life, and all tiers of government, were not relevant to the Supreme Court, ideological factions wouldn't have the incentive to put so much emphasis on procuring "the right kind" of judges. Moreover, ideology would be less relevant.

Without Grounding, There Is Only Personal Preference

Another founding father of modern progressivism described in the series of National Review essays that I mentioned yesterday is Oliver Wendell Holmes, whose repercussions in modern jurisprudence Bradley Watson describes thus:

There is a residual incoherence to the progressive jurisprudence that has followed Holmes. It alternates between two poles. On one hand, it expresses the desire to make decisions that are legitimate in the eyes of the community--decisions that respond to something like, in Holmes's words, the "felt necessities" of the age. On the other, it encourages decisions that oppose what it claims is illegitimate majority will. But neither pole is rooted in constitutional text, tradition, logic, or structure. Rather, they are both rooted in the judge's view of which necessities are most deeply felt and most likely to encourage social and personal growth. The practical result, in contemporary jurisprudence, is that art trumps economics, expression trumps the common good, subjectivity trumps morality, freedom trumps natural law, and will trumps deliberation. Such is the face of progressive jurisprudence, a face that now seems tremendously weather-beaten from its triumphal march of a hundred years' duration.

In sum, the preferences of an elite statist class, as inculcated in a given judge, trump everything. It's outcome first, reasoning post hoc, and there's no way to oppose it in common terms among countrymen, because the arguments aren't, as Watson says, rooted in anything. That is to say that the argument itself is a mere performance in support of a peremptory opinion.

What Good Are Judges' Sales Pitches?

With the judiciary as important as it is, and with those who typically populate its benches being, by nature, somewhat less prominent, in the public eye, than politicians, the Providence Journal's series of profiles of the five people whom the Judicial Nominating Commission has passed along to Governor Carcieri as candidates to fill a state Supreme Court vacancy could have been a valuable resource. But the pieces that reporter Tracy Breton actually offered — here, here, here, here, and here — read more like the self-promotional blurbs that actors submit about themselves for playbills than as reportage intended to serve the public. That is to say that they're useless and not worth the time to read.

Sure, actual research of the potential judges' pasts, with an eye toward opposition and problems, could create an uncomfortable position for the subject and journalist, both. If a reporter can't find anything good about one candidate or anything bad about another, that could create the impression of favoritism. But in any employment competition, facts should favor the candidate who ultimately wins. The governor's task shouldn't be seen as the selection of the most darned nice and inspiring personage on the slate, but of the one whose experience and proven disposition — in positive circumstances and negative — suits the mission of the court.

The Judicial Wing of Government

Two points on an article about the RI judiciary's declining to answer the governor's request for further budget cuts:

Overall, the courts brought in $25.2 million in fines in 2009, he said, $23 million of which went into the state's general fund.

This is entirely the wrong mindset for the judiciary. It isn't meant to be a revenue-garnering function, and making it such grievously distorts its role as a guarantor of justice.

Unlike other state agencies, the judiciary does not answer to the governor regarding budget matters. The General Assembly, at the urging of then-Chief Justice Frank J. Williams, five years ago passed a last-minute budget article that dictated that the governor must pass along the judiciary's budget request to the state lawmakers without changes.

This factor also does grievous harm to the judiciary's function in Rhode Island government. Budgeting is an executive function (remember separation of powers?), which a representative democracy prudently places in the hands of an elected official.

The Process for Judges Like the Process for Politicians

Michael McConnell uses a book review on the topic of judicial philosophy to bring forth an image of the new process for being confirmed to the Supreme Court:

Sotomayor's repudiation of the president's empathy criterion raised eyebrows and not a few questions about her sincerity. But in truth her answer was a powerful tribute to the traditional American commitment to the rule of law. Even facing no serious threat to her confirmation, Sotomayor found it necessary to embrace an ideal of judging as old as the republic.

One prominent law professor, however, found Judge Sotomayor's response "disgusting." Michael Seidman asked, "How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First-year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments." Ronald Dworkin likewise took on the notion of being "faithful to the law," arguing that "the phrase means nothing, because there are so many contesting views about how to discover what the law is that 'fidelity to law' means fidelity to your own conception of law." Surely many more in the academy were thinking the same thing.

It is a shame that no one on the judiciary committee asked Sotomayor the question posed by Seidman and Dworkin: When the law is not clear, what does it mean to say that "the job of a judge is to apply the law"? Without elaboration, the statement is more platitude than commitment. What could it mean? And it would have been interesting to ask Judge Sotomayor why a judge should not decide hard cases based on her own moral judgment.

It has long been the case, but with Sotomayor the judicial confirmation hearings have become more a matter of showmanship than judicial philosophy, making statements that are, at best, arguably in conflict with previously stated beliefs and actions, giving politicians cover to vote for candidates who were nominated on the basis of their actual behavior. One more reason (if you need one) to edge our country back from its creep toward judicial tyranny. When the latest president and the latest Supreme Court justice have both achieved their positions by repackaging themselves to the point of falsehood, government is surely at a tipping point — at least in the sense of needing to be tipped.

"Judiciously Empathetic" Thompson Nominated to 1st Circuit

President Obama has nominated O. Rogeriee Thompson to the U.S. Court of Appeals for the First Circuit. This is the same Judge Thompson, who, as Bob Kerr recently explained, "granted continuance after continuance as [Pocahontas] Cooley claimed various physical ailments or requested additional evidence..." in Cooley's attempt to take over former-boyfriend Paul Kelly's home. (Justin has written extensively about this case). In particular, the impression that emerges of Thompson is that of a judge showing a liberal amount of "judicial empathy" to Cooley and not so much to Kelly. As Justin detailed:

[Cooley's] first ploy was to demand thirteen subpoenas for information — some of which actually proved to support the case against her, and all of which Judge Thompson granted at taxpayer expense. During one subsequent appearance in court, Cooley insisted that she was awaiting subpoenaed information from the Pentagon, a clear impossibility. At other times, she challenged the reality of Kelly's deployment.

In December, she had the good fortune to fall on the way into the courthouse. In the intervening months, Ms. Cooley has appeared in court on a regular basis, each time finding ways to err in her attempts to prove that she is not physically capable of a hearing. While granting continuance after continuance, the judge has provided Cooley with further instructions on acquiring the proper doctor's note.

Meanwhile, Mr. Kelly is living in his sister's basement (without his dogs), awaiting his next chance, on May 29, to receive a hearing date at last. Judge Thompson rotates out of the county at the end of June, at which point she may either take the case with her or leave it for one of her peers — one more whim over which Kelly is powerless. Even more so is Thompson's potential elevation to federal court a variable in his fate.

One wonders if Thompson's recent finding that Kelly is in the right and that the home is indeed his own was prompted by word that she would, indeed, be so elevated.

Tackiest Post To Date

I thought former Rhode Island Supreme Court Justice Frank Williams’ role model was Abraham Lincoln, not Dwight Eisenhower.

Applying the Law, Even When Wrong

Since we're already on the topics of self reliance and freedom, it's a good time to recall a Providence Journal editorial about a New Yorker who is suing everybody conceivable over his fall from Newport's Cliff Walk. The fellow left the path, apparently required more protection than his own common sense to keep him from falling, and is not embarrassed to admit publicly that he's the one-in-a-million doofus who couldn't enjoy the scenery safely.

Which is to say that I agree with the editorial writers, except where they delve into legal process:

Let's hope the state Supreme Court understands this concept: that personal responsibility has a place even in the modern world, and that others do not deserve to be punished when someone fails to use a reasonable degree of caution.

Actually, I prefer to hope that the law doesn't require the judges to find in the klutz's favor, but if it does, we should all prefer that they do so. Such circumstances would be an indication that we, the people, have wandered off the safe path along the treacherous cliff of liberty and ought regain our legislative senses. If we look to the judiciary to pass judgment on when the law, as it exist, applies, then we've created an arbitrary system governed by an oligarchy of appointees and litigation is just an expensive roll of the dice.

Senator Whitehouse's First Round of Questions to Judge Sotomayor

The Washington Post has the first round of Senator Sheldon Whitehouse's questioning of Judge Sonia Sotomayor available at their website.

Ed Whelan of National Review Online notes that the exchange concerning Judge Sotomayor's involvement with the Puerto Rican Legal Defense fund contradicts what was reported in the New York Times earlier this year. This is what was said today...

WHITEHOUSE: And in terms of the way that the Puerto Rican Legal Defense and Education Fund operated, you were a member of the board. Is that correct?

SOTOMAYOR: I was.

WHITEHOUSE: Did the attorneys for the Puerto Rican Legal Defense and Education Fund make it a practice to vet their legal filings with the board first? Did the board approve individual briefs and arguments that were made by attorneys in the -- for the organization?

SOTOMAYOR: No, because most of us on the board didn't have civil rights experience. I had actually when I was a prosecutor in -- in private practice, that wasn't my specialty of law. Even if they tried to show it to me, I don't know that I could have made a legal judgment, even if I tried. That was not our function.

...and this was what was reported in the Times in May...

Ms. Sotomayor stood out, frequently meeting with the legal staff to review the status of cases, several former members said. And so across her 12 years on the board — she left when she was appointed a federal judge in 1992 — she played an active role as the defense fund staked out aggressive stances on issues like police brutality, the death penalty and voting rights.

The board monitored all litigation undertaken by the fund’s lawyers, and a number of those lawyers said Ms. Sotomayor was an involved and ardent supporter of their various legal efforts during her time with the group.

Other than that, I can't find anything particular interesting -- except for the fact that Senator Whitehouse may have outed himself as a closet originalist...

WHITEHOUSE: I see the Constitution as being changeless, timeless and immutable.

But to be honest, after his opening statement, I'm not really sure that the Senator knows what he's saying when he's talking about legal matters.

Re: A Question that Senator Whitehouse Might Ask of Judge Sotomayor

I think a Rhode Island Tea Party member needs to drop a copy of the United States Constitution off at the office of Senator Sheldon Whitehouse, because the Senator seems stunningly unfamiliar with its content. This is part of what Senator Whitehouse had to say during his opening remarks at Judge Sonia Sotomayor's Supreme Court confirmation hearing...

For all the talk of modesty and restraint, the right-wing justices of the Court has a striking record of ignoring precedent, overturning congressional statutes…for instance; the Louisville and Seattle integration cases, the first limitation on Roe versus Wade that outright disregards the woman's health and safety; the D.C.-Heller decision discovering a constitutional right to own guns that the Court had not previously noticed in 220 years...

In describing the District of Columbia v. Heller decision as the “discovery” of a right, the Senator appears unaware that a right to keep and bear arms was written into the Constitution in 1791, in the form of the Second Amendment…

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

As the Court laid out in Heller, the reference to a right of the people clearly describes an individual right, and no Supreme Court majority has ever attempted to contract the meaning of the Constitution to suggest that rights of the people sometimes imply rights that can only be exercised through government-authorized collectives…

The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment ’s Assembly-and-Petition Clause and in the Fourth Amendment ’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.

... so whatever it is that Senator Whitehouse meant by the right of an individual to own a gun having been "discovered" is unclear.

Furthermore, given that Senator Whitehouse makes a point of defending a Constitutionally guaranteed right to abortion -- which by his own "reasoning" went unnoticed for at least 180 years or so -- he manages to be both logically inconsistent (some rights obviously exist, even when they are not mentioned by the Courts for 100+ years, but not others) and wrong on the facts (on the meaning of the Court’s Second Amendment rulings) at the same time.

As noted here yesterday, Second Amendment jurisprudence is of direct relevance to the Sotomayor nomination. Earlier this year, Judge Sotomayor joined a Second Circuit opinion supporting the right of state governments to ignore Second Amendment limitations on their actions, despite the fact that the Courts have ruled that most limits on government power contained in the Bill of Rights, through the Fourteenth Amendment, constrain state governments as well as the Federal government. However, the Second Circuit’s opinion also suggested that, in light of the Heller decision, the Supreme Court could readily change the controlling precedent on this matter. As it is a Supreme Court seat that Judge Sotomayor has been nominated for, she owes the public a clear and direct explanation of whether she believes the Second Amendment is incorporated by the Fourteenth Amendment, or if she believes that judges can selectively ignore rights of the people guaranteed expressly in the Constitution.

The idea that the Second Amendment is incorporated into the Fourteenth Amendment and therefore constrains the states is, by the way, supported by the Attorney Generals of 33 states, who haved filed an amicus brief with the Supreme Court in the cases of NRA v. Chicago and McDonald v. Chicago, arguing that…

Over the last century, the Court has held that “virtually all” of the individual rights found in the Bill of Rights apply to the States through the Due Process Clause of the Fourteenth Amendment....

As history has proven, the right to bear arms provides the foundational bulwark against the deprivation of all our other rights and privileges as Americans—including rights that have already been incorporated against the States by this Court. Accordingly, the Court should grant the petitions and hold that the Second Amendment also secures a “fundamental” right that can no more be abrogated by local government than by the federal government.

Rhode Island Attorney General Patrick Lynch chose not to join this brief. I put the question of whether the Fourteenth Amendment incorporates the Second Amendment to Attorney General Lynch's Office, and received this reply from his official spokesman...

First, this case posed the question of whether or not a state or local government could enact a law prohibiting possession of weapons in the home. As you may know, Rhode Island law already allows possession of weapons in the home; the permit process, in which the Attorney General is extensively involved, applies only to carrying a concealed weapon outside of the home or a business. Thus, the issue that is before the court is not applicable to Rhode Island. We recognize that some have sought to broaden the question to be more of a referendum on the Second Amendment and what it means, but the issue is actually more narrow than that.

Second, this office generally does not participate at the cert stage, although we have participated in a number of briefs once the court accepts a case for review (i.e., the "merits" stage). In the event this case is accepted for review, we will certainly review any proposed amicus briefs being considered by attorneys general.

A Question that Senator Whitehouse Might Ask of Judge Sotomayor

The United States Supreme Court has held, in various rulings, that the Fourteenth Amendment extends the Federal Constitution to state governments, prohibiting states from violating the limitations on government action expressed in the Bill of Rights.

In June of 2008, in the case of District of Columbia v. Heller, the Supreme Court ruled that the Second Amendment protects an individual right to keep and bear arms from infringement by the Federal Government.

In January of 2009, Judge Sotomayor joined a Second Circuit opinion stating that it is "settled law" that Second Amendment protections are not incorporated into the Fourteenth Amendment…

It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right.

…but that, in light of the Heller decision, the Supreme Court might change the controlling precedent on this question…

And to the extent that Heller might be read to question the continuing validity of this principle, we “must follow Presser” because “[w]here, as here, a Supreme Court precedent ‘has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.’”

Given that Judge Sotomayor is being considered for a position on the Court which she has cited as the proper authority for modifying precedent on this issue, the public has a compelling interest in knowing...

1. If Judge Sotomayor believes that the Second Amendment is incorporated by the Fourteenth Amendment and therefore cannot be infringed upon by the states, or if she believes that the Second Amendment is fundamentally different from most other Constitutional protections afforded to individual Americans in the Bill of Rights and is not incorporated...
2. And, given her particular usage of the term "settled law", if there are other areas where Judge Sotomayor believes that the Supreme Court might readily change what "settled law" currently says.

Re: RI Supreme Court Undercuts Ethics Commission

Writes the RI Supreme Court majority in the case of William Irons and the Ethics Commission:

"We wish to stress in the strongest possible terms, however, that it in no way grants a legislator the right to transgress the Code of Ethics or any other law," the majority wrote. Unprotected actions include political activities, efforts for constituents, assistance in securing government contracts, soliciting and taking bribes and criminal activities — "even those committed to further legislative activity."

It's good of them to break out those dusty ol' "strongest possible terms," but how exactly would that work? Here's the full text from that part of the ruling (PDF; citations removed):

This Court has interpreted the speech in debate clause to provide legislators with "absolute" immunity from questioning "by any other branch of government for their acts in carrying out their legislative duties relating to the legislative process." We wish to stress in the strongest possible terms, however, that it in no way grants a legislator the right to transgress the Code of Ethics or any other law. Legislators are held accountable for violations of the Code of Ethics, and they are not immune for actions which violate that code. The only exceptions are those in which the speech in debate clause of the constitution is implicated. The immunity afforded merely precludes the Ethics Commission from prosecuting within a narrow class of core legislative acts. Actions of legislators "in proposing, passing, or voting upon a particular piece of legislation" are core legislative acts that fall "clearly within the most basic elements of legislative privilege." In short, "as long as [a legislator's] challenged actions, stripped of all considerations of intent and motive, were legislative in character, the doctrine of absolute legislative immunity protects them from such claims."

Activities that remain unprotected by this immunity include, but are not limited to: speeches delivered outside of the legislature; political activities of legislators; undertakings for constituents; assistance in securing government contracts; republication of defamatory material in press releases and newsletters; solicitation and acceptance of bribes; and criminal activities, even those committed to further legislative activity.

"Mr. Legislator, your testimony is that Mr. Money gave you $500,000 to assemble a $15 plastic toy wagon on Saturday, June 27. Didn't that seem like a lot of money?"

"It's generous, but I'm a lawyer, not a professional toy assembler, so I wasn't sure what to charge."

"Why then would the Moneys hire you for that job?"

"I don't know. I guess they know I'm good at bringing pieces together."

"The next day, Mr. Legislator, Mr. Money's business partner, Mrs. Bucks, gave you a check for $200,000. What was that money for?"

"It was a gift."

"You then introduced legislation effectively giving Bucks and Money a monopoly on processing government widgets in the state of Rhode Island — legislation that later passed with your vote — is that true?"

"Objection, your honor. The Rhode Island Supreme Court ruled in William V. Irons v. The Rhode Island Ethics Commission et al. that a legislator cannot be questioned for his 'core legislative acts,' which is clearly what the prosecutor is doing."

"Sustained. Mr. Prosecutor, do you have any further evidence that these financial transactions constituted bribery for activity not involving Mr. Legislator's core duties as an elected representative?"

"No, your honor."

"The witness may step down."

Breaking: RI Supreme Court Undercuts Ethics Commission

The Rhode Island Supreme Court has managed to take away one of the RI Ethics Commission's big sticks:

The Rhode Island Supreme Court has upheld a lower-court ruling on behalf of former Senate President William V. Irons, saying that state legislators cannot be prosecuted by the state Ethics Commission for their votes or official legislative actions.

The vote was 3-1, with retired chief justice Frank Williams joining Francis Flaherty and William Robinson. Paul Suttell, recently confirmed by the Rhode Island Senate as the next chief justice, dissented.

Full opinion here. At issue was how to reconcile two sections in the RI Constitution; the "speech and debate" clause--that "enables representatives to execute the core legislative functions of their office without fear of civil or criminal prosecution and ensures the separation of powers among the coordinate branches of government"--and the amendment that created the Ethics Commission. As soon-to-be Supreme Court Chief Justice Suttell writes (in dissent):

I agree with the majority that the ethics amendment and the speech in debate clause are two conflicting constitutional provisions. If both are accorded their broadest readings, neither can flourish to their fullest extents....Harmonization, however, is not possible in this case; I share the majority’s view that the two provisions “stand in diametrical opposition to each other.” Accordingly, these provisions being irreconcilably repugnant, one provision must necessarily bend to the other. The majority resolves this conundrum by declining “to abridge such a long standing and widely accepted constitutional provision in the absence of an express and uncontroverted manifestation of electoral intent.” By doing so, however, it perforce vitiates the applicability of the ethics amendment to legislators with respect to their performance of legislative activities, contrary to the plain and unambiguous language of the ethics amendment. In essence, the majority chooses to accord greater import to “an ancient and venerable hallmark of our form of government” than to the more newly minted ethics amendment.

(snip)

I would hold that in matters concerning the ethical conduct of legislators the ethics amendment creates a narrow exception to the immunity historically adhering to legislators in the performance of their legislative activities. Such a construction of our constitution, I believe, gives greater effect to the intent of the convention delegates and electorate in 1986 than an interpretation that places legislators beyond the reach of the ethics commission for violations of the code of ethics with respect to their performance of legislative activities. It would also preserve the full measure of protections accorded legislators by the speech in debate clause as to questioning from any person or entity except the ethics commission.

The majority has essentially made it impossible for any Ethics Commission investigation to be able to show a quid pro quo (ie; getting a "favor" for a favorable vote). Instead, back to business as it used to be done. Great.

The Daughter Is In

Kristin Rodgers, now confirmed to the Superior Court, has an admirable background suggestive of the possibility that, in a world of judicial activism, Anchor Rising readers should prefer her to most others. But still:

In remarks to those gathered in the Senate chamber, Sen. John F. McBurney III, D-Pawtucket, whose father was a state senator, said that some there understood "the honor and responsibility when we carry on in the footsteps of a parent."

Not to be too delicate about it, but given the state in which Rhode Island finds itself, "honor and responsibility" aren't the words that come to mind when I consider those who've contributed to its guidance. We do not need legacies. We do not need carrying on in footsteps. We need redefinition. We need a change in the governing relationships.

Ms. Rodgers may be a fantastic judge, but she should be one somewhere else — where her father wasn't a judge before her and her husband isn't a state trooper. It can only exacerbate Rhode Islanders' tendency toward fatal apathy when the impression is proven accurate again and again that a cadre of families and close associates run the state.

RI Supreme Court Places More Emphasis on Family than the Family Court

In one case, anyway.

The Rhode Island Supreme Court on Friday overturned rulings by the Family Court that had allowed a divorced woman and her two children to remain in Rhode Island for almost seven years despite an order from a North Carolina judge that they return to that state, where the children’s father lived.

* * *

In concluding the Family Court erred, the high court deplored the case’s being allowed to languish “in a judicial morass for many years,” particularly when the jurisdiction of the Rhode Island Family Court was being challenged.

The years of delay to “complete a case that was both cast as an emergency and was one in which the authority of the court to hear the case was challenged, while two young lives hung in the balance, is simply inexcusable,” the high court said.

On this eve of Father's Day, we have to ask: why did the Rhode Island Family Court deprive two children of their father for seven years? Is it because the court's rumored bias in favor of one particular gender has a basis in actuality?

By the way, "languish in a judicial morass for many years". Isn't that an apt description of another case currently pending in the Rhode Island court system?

Shifting Laws, Corrupt Continuity

By now you should have read yesterday's front-page advertisement for the Gaspee Tea Party rally in the Providence Journal. I'm referring to the article on big-money state pensions that Monique mentioned last night.

Most of the article is a series of revelations that make one wish for something symbolic (but not harmful) to tip over or sink, but this insidious qualifier ought not slip by without note:

No one is allowed any longer to buy credit for more time than they actually served in the military. Since 1994, there has been a minimum 20-hour-a-week work requirement for pension credit. That same year, lawmakers repealed the pension provision that recognized the part-time, six–month-a-year legislative clerks and doorkeepers as full-time state employees for pension purposes.

As egregious pension-related schemes have come to light, policies have been changed, but neither the players nor the politics have been rectified significantly. Legislators and judges still offer mutual support for budgets and jobs and so on. Unions still get away with manipulating contracts to drain the public coffers. Who knows what tricks haven't been exposed in the pension system and in other areas of state government.

The only way to prevent such stories from being regular features of the state's major media outlets is to turn up the spotlight and change the people in office.

Toward that end, I hope to see you Wednesday.

How the Moderate Enables the Liberal

David Brooks's recent column on judicial empathy is a wonderful example of the method by which moderates enable liberals. He begins with a strawman that in no way bears scrutiny:

The American legal system is based on a useful falsehood. It's based on the falsehood that this is a nation of laws, not men; that in rendering decisions, disembodied, objective judges are able to put aside emotion and unruly passion and issue opinions on the basis of pure reason.

Oddly, his very next sentence is, "Most people know this is untrue." If that's the case, perhaps Mr. Brooks should reconsider the accuracy of declaring the entire system's "basis." At the very least, some red flags ought to go up: It isn't accurate as a statement of our nation's founding, or else the Founders wouldn't have bothered interweaving the judiciary with the system of checks and balances. It isn't accurate as a statement about complaints against "judicial activism," which is made comprehensible by the fact that those who do the complaining don't promote the development of a system (one can imagine software) that takes the judgment out of judging.

By packing straw within reasonable-man's clothing, however, Brooks attempts to smuggle through an issue about which there would be some argument: that ours is a "nation of laws." His mechanism, here, is to present a definition of that phrase and to declare it false, while the substantive debate is over what the phrase means. I'd suggest the definition that our laws — not our personal histories, pedigrees, or credentials — set up the boundaries within which we should, as is unavoidable, rely on our human intellectual messiness. For his part, Brooks indulges in the falsehood that such plausible and necessary ideals are not ideals, but strict rules that may easily be proven to be impossible.

Thus, when he puts forward a perfectly banal observation about the process of decision making, he gives it the embellishing air of deconstructing a philosophical pillar of Truth (which, by the way, "most people know is untrue.")

The decision-making process gets even murkier once the judge has absorbed the disparate facts of a case. When noodling over some issue — whether it's a legal case, an essay, a math problem or a marketing strategy — people go foraging about for a unifying solution. This is not a hyper-rational, orderly process of the sort a computer might undertake. It's a meandering, largely unconscious process of trial and error.

The mind tries on different solutions to see if they fit. Ideas and insights bubble up from some hidden layer of intuitions and heuristics. Sometimes you feel yourself getting closer to a conclusion, and sometimes you feel yourself getting farther away. The emotions serve as guidance signals, like from a GPS, as you feel your way toward a solution.

Then — often while you're in the shower or after a night's sleep — the answer comes to you. You experience a fantastic rush of pleasure that feels like a million tiny magnets suddenly clicking into alignment.

Notice the transition of Brooks's subject from "the judge" to "you." He's shooting for a moment of recognition in the reader — an "oh yeah, I've felt that." At the other end of the transition, the author slips in what is likely subconscious legerdemain: "The crucial question in evaluating a potential Supreme Court justice, therefore, is not whether she relies on empathy or emotion, but how she does so." He's made us sympathetic to the process and now applies it to his specific topic so as to slip right past the significance of evidence that's already on the table, such as Sonia Sotomayor's view of legal indefiniteness, her use of the language of identity politics, and President Obama's view that "one of the roles of the courts is to protect people who don't have a voice."

Brooks's column, in short, skirts the relevant questions. He states that "Sotomayor will be a good justice if she can empathize with the many types of people and actions involved in a case," but he doesn't engage in the debate over whether that looks likely to be the case. He restates the "crucial question" in such a way as to brush aside previous attempts at an answer.He ends the piece by hearkening back to wise conservatives of yore, with the implication being that those participating in the particular current debate on the potential Supreme Court justice are drifting from those roots.

It makes a cartoon of conservatives to presuppose that we don't understand the limits of our humanity. If anything, conservatives focus on them and, as Brooks ought to know, construct our philosophies of governance around acknowledging them. In the case of the judiciary, we raise up the principle of objectivity — the rule of law — and encourage a system whereby the sides nominate judges who will strive to achieve that ideal, with some missing the mark to the left and some missing it to the right.

In the hands of "moderates," such strategies skew by virtue of their presentation. Aesthetically, modern "centrists" lean toward liberalism and so will tend to construct their obvious, nice-sounding abstractions in such a way as to elide the left's extremism while making the right's mainstream seem dogged and extreme. The end result is an expression of the truism that perfect balance and compromise is not realistic, which ultimately cedes to the liberal argument that factors outside of our shared system — be it legal, political, or social — ought to predominate.

Now It's "Indefinite" Judicial Empathy

If, like me, you've mainly viewed Sonia Sotomayor as a sort of Hispanic-hued less-undangerous-than-you'd-like nominee for Supreme Court, Ed Whelan might push you over the edge to full opposition:

Sotomayor complains that "the public fails to appreciate the importance of indefiniteness in the law." But beyond pointing out the uncontroversial fact that some indefiniteness is inevitable (for reasons (a), (b), and (d) in point 1), she nowhere makes the case that indefiniteness is somehow a positive good. She relies heavily on Jerome Frank's legal realist views about the development of law, but nowhere explains why legislatures aren't the proper forum for (to use Frank's phrase) "adapting [law] to the realities of ever-changing social, industrial, and political conditions."

Jurists like Sotomayor are transforming the law from a set of rules by which a society agrees to live into a philosophy decipherable only by an elite class of robed seers. And with a political bias.

Empathy Up and Down, but Not All Around

A week or so ago, I put forward as an example of "judicial empathy" the case of Paul Kelly, whose house has been inhabited by somebody else for almost two years with the permission of RI Superior Court Judge Ojetta Rogeriee Thompson, but not of the homeowner. Thomas Sowell provides another example related to U.S. Supreme Court nominee Sonia Sotomayor:

Nothing demonstrates the fatal dangers from judicial "empathy" more than Judge Sotomayor's decision in a 2008 case involving firemen who took an exam for promotion. After the racial mix of those who passed that test turned out to be predominantly white, with only a few blacks and Hispanics, the results were thrown out.

When this action by the local civil-service authorities was taken to court and eventually reached the Second Circuit Court of Appeals, Judge Sotomayor did not give the case even the courtesy of a spelling out of the issues. She backed those who threw out the test results. Apparently she didn't have "empathy" with those predominantly white males who had been cheated out of promotions they had earned.

The mechanisms in play are significantly different between the two cases, but mechanisms can be mere means to a priori ends when the issue of identity groups and subjective definitions of "equality" are imposed as higher principles. As Sowell suggests, though the Left may scream extremism at those who worry about these trends, it would be foolish not to throw down markers along this dangerous path to totalitarianism.

Quotes from Judge Sotomayor

This Sonia Sotomayor quote from a 2001 lecture at the Berkeley School of Law has been getting a lot of attention…

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

…but as Peter Kirsanow has pointed out at National Review Online, an earlier section of the same lecture is potentially more troubling…

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.

It will certainly be fair game to ask Judge Sotomayor to expand on what kinds of national-origin based physiological differences she believes are relevant to performing the duties of a judge.

Obama Selects Sonia Sotomayor for Supreme Court

So says the Associated Press...

U.S. President Barack Obama tapped U.S. Circuit Judge Sonia Sotomayor for the Supreme Court on Tuesday, officials said, making her the first Hispanic in history picked to wear the robes of a justice.

UPDATE:

This is from a Sotomayor supporter, interviewed by Jeffrey Rosen in the New Republic...

She's a fine Second Circuit judge--maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?

Memories of G. Harrold Carswell, anyone?

UPDATE II:

Three quick bullets out of the AP story...

• "In one of Sotomayor's most notable decisions, as an appellate judge she sided last year with the city of New Haven, Conn., in a discrimination case brought by white firefighters. The city threw out results of a promotion exam because too few minorities scored high enough."

• "As a federal appeals court judge in 2002, Sotomayor ruled against an abortion rights group that had challenged a government policy prohibiting foreign organizations receiving U.S. funds from performing or supporting abortions.

• (On a bit of a lighter note) "In one of her most memorable rulings as federal district judge, Sotomayor essentially salvaged baseball in 1995, ruling with players over owners in a labor strike that had led to the cancellation of the World Series."

Senator Whitehouse's Imaginative Qualifications for a US Supreme Court Justice

Outlined in this morning's Ten News Conference with Jim Taricani and Bill Rappleye. (Thanks to commenter Joe Bernstein for the heads up.)

I think [President Obama]'s used an interesting word about this which is empathy and I think that's a good word. I hope he leans towards someone who is not yet another white male. But I think that the most important thing is that the person has to be spectacularly intellectually qualified, have broad experience and have that quality of empathy that he's looking for so we don't get somebody up there who is a cipher (slave?) for corporate and political interest but remembers that every lawsuit has people at the heart of it.

1.) "... not yet another white male".

Aren't we supposed to refrain from pre-judging on the basis of race and gender? Or has there been a scientific study that determined that white males are intrinsically less qualified for this position?

2.) "... empathy ..."

Empathy for one side of a case can mean the opposite for the other side. Who promulgates the guidelines for establishing which side receives empathy? Further, empathy can so warp judicial actions that it entirely take the place of law. This is what we are witnessing in the Cooley/Kelly case that Justin highlights.

What the Senator (and the President) have overlooked is the function of the US Supreme Court. It is to enforce the law; more specifically, determine the constitutional of a law. By definition, this does not leave a lot of room for empathy, which, if anything, is the purview of the legislative branch; i.e., those who make laws.

Justice Souter to Retire?

From National Public Radio, via Drudge...

NPR has learned that Supreme Court Justice David Souter is planning to retire at the end of the current court term.

The vacancy will give President Obama his first chance to name a member of the high court and begin to shape its future direction.

NBC, also via Drudge, says...

A court spokesman said Souter had no comment.

A Continuing Travesty of Justice

I can't believe this is still ongoing:

Call it a farce, call it a travesty, call it legal loonie tunes. Paul Kelly still can't get into the cabin he owns in Exeter near the Rhode Island Veterans Cemetery. He pays the taxes and pays the mortgage, but he can't walk in the door.

"I've spent so much money," says Kelly, "and I haven't even gotten up to the plate yet."

Kelly, who went to war in Iraq at the age of 51, not only can't he get in his cabin, he can't even stand up in court and say why it's so crazy and unjust to keep him out.

He goes to court regularly with his lawyer, Pat McKinney. And he hears Judge O. Rogeriee Thompson grant yet another continuance before testimony can be heard. There were continuances in January, February and March.

The case of Paul Kelly-and-home-denied is scheduled for its next court go-round in May.

For those who aren't familiar with the details, Kelly allowed a down-on-her-luck exgirlfriend to stay at his place while he went off to war. Upon his return, she filed a restraining order and refused to leave and has, apparently, been gaming the system ever since.

Re: Federal Judgeships and Campaign Contributions - Two Completely Unrelated Items?

For those inclined to throw their hands up in the air and say “dat’s the way da game is played” in response to the appointment of Jack McConnell to a Federal District Court judgeship, take a moment to remember that before he was a Senator with direct influence on judicial appointments, Sheldon Whitehouse joined an amicus brief as Rhode Island’s Attorney General in support of campaign finance regulation that stressed the importance of combating the appearance of corruption…

“Democracy works ‘only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities which arouse suspicions of malfeasance and corruption.’”

So apparently, Senator Whitehouse is concerned (or at least was concerned, maybe he’s changed his mind) that giving too much money to political candidates would create the appearance of corruption. But when the guys taking the money decide to give judgeships to their party's big-time donors, what concern could there be about corruption there?!

This is a version of the same Rhode Island logic that says that it’s OK for legislators to vote based on bribes they might take, as long as giving the bribes is not legal -- because rules are for little people, not for the aristocracy bred to be our leaders.

What is the Procedure for Removing a Supreme?

United States Supreme Court Justice Ruth Bader Ginsburg furnishes grounds to ask inasmuch as she has demonstrated that she misunderstands the fundamental requirements of both American laws and the function of the court on which she serves.

I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law.

* * *

Justice Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.

But if the court permits itself to be influenced by the reasoning of a foreign precedent and then shape or reshape an American law on that basis, doesn't that have exactly the same effect as if the court were were bound by that foreign law? Further, shouldn't the American Constitution, not a foreign law, play the primary role in the decisions rendered by American courts?

She added that the failure to engage foreign decisions had resulted in diminished influence for the United States Supreme Court.

So Justice Ginsburg believes that the US Supreme Court should have influence outside of US borders? That sounds colonialistic. Shouldn't the court aspire to influence only American law?

The Canadian Supreme Court, she said, is “probably cited more widely abroad than the U.S. Supreme Court.” There is one reason for that, she said: “You will not be listened to if you don’t listen to others.”

Is the Supreme Court involved in a popularity contest or some sort of global rap session? That's a section of Article Three, Section One that we appear to have overlooked all these centuries.

On the plus side, this may shed light on certain rulings by the US Supreme Court. Blatantly erroneous decisions become inevitable if the eyes of one too many justices are focused on far away horizons instead of on the nearby document that should be guiding them.

A Man Who's Sure Courts and the "Global Community" Will Remain on His Side

Rick Santorum introduces his fellow Pennsylvanians (and us) to a man whom he says is on President Obama's short list for Supreme Court:

Watching President Obama apologize last week for America's arrogance - before a French audience that owes its freedom to the sacrifices of Americans - helped convince me that he has a deep-seated antipathy toward American values and traditions. His nomination of former Yale Law School Dean Harold Koh to be the State Department's top lawyer constitutes further evidence of his disdain for American values.

This seemingly obscure position in Foggy Bottom's bureaucratic maze is one of the most important in any administration, shaping foreign policy in the courts and playing a critical role in international negotiations and treaties.

Let's set aside Koh's disputed comments about the possible application of Sharia law in American jurisprudence. The pick is alarming for more fundamental reasons having to do with national sovereignty and constitutional self-governance.

What is indisputable is that Koh calls himself a "transnationalist." He believes U.S. courts "must look beyond national interest to the mutual interests of all nations in a smoothly functioning international legal regime. ..." He thinks the courts have "a central role to play in domesticating international law into U.S. law" and should "use their interpretive powers to promote the development of a global legal system."

And how's this for night-is-day speak:

He wrote that "the principles of human dignity and autonomy that are the essence of the modern right-protecting democracy demand that civil marriage be available to all couples and that the equality of all citizens triumph over historical attitudes."

In Koh's view, the underlying principles of democracy "demand" that the practice of democracy itself be circumvented. One suspects that Mr. Koh's personal beliefs align reasonably closely not only with principles, but practices, as well, that he believes a global judiciary ought to impose.

When the Dictator Branch Takes Over for the Representative One

Andrew McCarthy puts it well:

Courts are not there to resolve national controversies, to stand outside and above the United States. They were created as a sub-section of government to remedy individual injuries, and they were given no power to enforce their judgments. That, indeed, is why Hamilton (in Federalist No. 78) anticipated that the judiciary would be the "least dangerous" branch: It would be "least in a capacity to annoy or injure" the "political rights of the Constitution." In fact, the law of "standing," which addresses what grievances litigants may bring before courts, teaches that the more a controversy affects the body politic rather than the individual citizen, the less appropriate it is for judicial resolution. It is for just such controversies that we have political rights.

We're on track to cede our rights of self-governance to a global judiciary supported by an aristocracy of bureaucrats. Needless to say, we'd be better off if the cart were derailed.

The Fundamental Dishonesty of an Antidemocratic Movement

If one knows the history of the same-sex marriage debate, the opening paragraph of this editorialized report in the DesMoines Register strikes an odd note:

Basic fairness and constitutional equal protection were the linchpins of Friday's historic Iowa Supreme Court ruling that overturned a 10-year-old ban on same-sex marriage and puts Iowa squarely in the center of the nation’s debate over gay rights.

The redefinition of marriage in Iowa took a peculiar path, indeed, beginning in 1996:

1. The Supreme Court of Hawaii declared a right to same-sex marriage.
2. Although the state legislature ultimately circumvented the court, the federal government passed the Defense of Marriage Act to limit the ruling's implications for other states.
3. Individual states, including Iowa, passed laws affirming that marriage is definitionally a relationship between people of opposite sex, typically with the intention of securing the protection of the public policy exception interpreted to exist to the full faith and credit clause of the Constitution. In essence, if a state explicitly does not recognize same-sex relationships as marriage, the Constitution cannot force it to treat as valid a same-sex marriage enacted in another state, so states like Iowa made their understanding of marriage explicit.
4. The Iowa judiciary has taken that statutory affirmation of preexisting principles as an occasion to redefine marriage in the state according to the judges' preference.

In a direct way, the judges of Hawaii exported their activism across state lines not in spite of laws designed to prevent such a thing, but because of those laws. The process does nothing so clearly as illustrate the extent to which democracy is becoming an (at most) dilatory control on the implementation of the social system preferred by the powerful. All that is required is for the powerful to couch their diktats in some mutable principle introduced in a high-level legal source (e.g., the Constitution); the most common such principle is "equal protection," but there may be others that are as yet unexplored.

In an interesting conversational thread on RI Future, commenter Brassband points to this mechanism when he questions the following sentences from the Iowa court's ruling (PDF, page 16):

The process of defining equal protection, as shown by our history as captured and told in court decisions, begins by classifying people into groups. A classification persists until a new understanding of equal protection is achieved. The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.

As a matter of grammar, what the court argues, here, is that a society may consider groups to be different in some legally allowable way until a particular individual or several individuals perceive discrimination and take the matter to the courts, and the judges — "free from the [social] influences" under which we ordinary humans labor — declare in their favor. Rhode Island College professor Thomas Schmeling subsequently puts that perspective in the company of a fundamentally sacerdotal yet "well-respected theory" that judges rule based on hunches that are justified in the fact that a jurist "not only has his/her own preferences but is also acquainted with constitutional principles, precedents, the views of other (and higher) court judges, so it's not totally subjective." Schmeling goes on to state the matter in terms of his own take:

... I think the Court here is actually making a sensible point, one which which you may well agree. Here's my read:

1. The legislature creates a classification. (let's use bans on interracial marriage as an example). That classification will remain until two things happen:

a. somebody becomes convinced that the classification creates an inequality (one that violates equal protection) and challenges it in court.

b. A court invalidates it.

Now, the legislation presumably embodies society's understanding of what "equal protection" requires, which (as in the case of bans on interracial marriage) may be nothing more than its irrational prejudices. If the courts do nothing more than reflect that understanding, it will never find any classification violative of equal protection and the court will have failed to fulfill its duty. (Do you agree so far?)

If the legislature's/society's judgement/prejudices accurately reflect the principle embodied in the Constitution's equal protection clause (state or federal...there might be a difference)...there is no problem.

However, if the legislature's/society's judgement departs from an accurate understanding of equal protection, that's a problem. To do its job, the court must obviously get beyond this judgement. To do this, the court must be "free from the influences that tend to make society's understanding of equal protection resistant to change". That is, the court should not simply reflect the views of the people and/or the legislature, it must uncover the "true" principle behind the equal protection clause, and use that principle to judge the classification.

If the members of the court simply say "I think equal protection clause should embody MY prejudices", I think we'll agree that the court has departed from its proper role.

If, on the other hand, the Court adopts a principled interpretation of the clause (which must, of necessity be independent of the prejudices of the judges AND of the prejudices of the legislature/society), the court has fulfilled its proper role.

Consider for a moment who has been excluded from the interpretation of equal protection's "'true' principle": the judges' personal views don't apply, the relevant legislators' personal views don't apply, the people's personal views (as expressed democratically) don't apply, and certainly the personal views of those who penned the Fourteenth Amendment back in 1868 don't apply. So from whence — by whom — is it determined that the true meaning of the equal protection clause requires that the true meaning of marriage be something other than what it has always been understood to be — a relationship between men and women?

Ah, there's the nub. The reality is that, like the interstate process of bouncing judicial rulings, the whole thing is a performance to enact the preferences of an elite class as written into the "hunches" of judges. On the page following the above quotation, the Supreme Court of Iowa states:

The same-sex-marriage debate waged in this case is part of a strong national dialogue centered on a fundamental, deep-seated, traditional institution that has excluded, by state action, a particular class of Iowans.

The whole dance — costumes, streamers, stage props, and all — is a distraction from the truth that the "particular class of Iowans" are not excluded by "state action," but by definition and by the way in which they choose to live their lives.* They are excluded by the fact that humankind has recognized a natural distinction of the intimate relationships into which men and women enter and sought to guide those relationships in the direction of social health — as understood not through contrived experiments, but by centuries of observation and social evolution — through an institution called "marriage," which it acknowledges and privileges as something unique.

Our nation's founders pursued representative democracy as a means of layering social control such that the most basic and profound questions would not become subject to immediate battles of power, but would require engagement of the process and efforts toward persuasion. Progressives' broad-based campaign has been to corrupt process for their own ideological benefit, and it will spell calamity whether the masses respond with a forceful expression of the only forms of power that remain to them or by stepping back and watching their civilization collapse out of an aversion to conflict.

---

* I am not invoking, here, the "homosexuality is a choice" declaration. I'm merely pointing out that — quite reasonably — homosexuals opt to form their lives around their affections rather than a traditional family structure.

This Is How the State Works (Its Way into a Hole)

It's important to keep in mind that this report consists mainly of allegations, some of them (at least) made by people with compromising motivation. That said, the insight into the practices of our state are well worth familiarization:

[Probate Judge Robert E.] Rainville says he has done nothing wrong — and that the complaints against him are "100 percent politically motivated." He claims that Council Vice President Angelo A. Padula Jr. is trying to oust him because he is a lifelong friend of Stephen Alves, the former state senator from West Warwick who lost a reelection bid in November. ...

In Rhode Island, probate judges are political appointees. They do not operate under any uniform rules but wield great power. They can inalterably change an elderly person's life by appointing a stranger to take control over every facet of their affairs — from how their money is spent, to where they live and with whom they associate.

Some probate judges are experts in probate law. But others have very little expertise in these matters. Some routinely tape-record proceedings so that a complete record of what is said is made; others do not. Some routinely seal parts of court files while similar records in other cities and towns remain open to public inspection. At least one probate judge in the state routinely has lawyers who appear before him make their presentations to him privately at the bench so the spectators in the courtroom cannot hear what he or the lawyers say. The proceedings usually aren't taped, unless a lawyer brings a stenographer to make a record — at the client's expense.

As part of their duties, probate judges decide what fees to award guardians and lawyers who represent estates. The amounts charged vary greatly based on the complexity of the case, the amount of time spent by the attorney and how much the lawyer charges per hour, which varies based on the attorney. The Supreme Court Rules of Professional Conduct put no limit on what a lawyer may charge, only that the fee be "reasonable."

At first reading, so to speak, it's difficult to understand how a part-time legislature and the small-scale operations of our tiny state engender such endemic corruption as we all know to exist, but when one digs into matters, it begins to appear that the principle of mutual back scratching permeates the entire structure of government. It's as if corruption is laundered so thoroughly that it transcends the law.

That's why no one should be surprised if Rhode Island scores more highly in corruption as a matter of opinion survey than of prosecutions.

The Supreme Court on Legislative Immunity

Robert Benson's solution, proposed in last Friday's Projo, to the legal question of whether ethics rules can be applied to the official lawmaking activities of legislators presented by the Rhode Island Ethics Commission v. William Irons case…

Why not keep the speech in debate provisions in place except when the legislator is accused of a serious crime or a violation of the state’s code of ethics?

…is entirely consistent with United States Supreme Court jurisprudence on the issue.

As is noted in the Superior Court's opinion dismissing the case against former Senator Irons…

Rhode Island follows the guidance issued by the Johnson and Brewster Courts that legislators may, in particular circumstances, be questioned and prosecuted outside of the legislative chambers.

Johnson refers to the 1966 case of United States v. Johnson; in that case, the Supreme Court had this to say on the issue of the applicability of narrowly drawn ethics rules to legislators…

We expressly leave open for consideration when the case arises a prosecution which, though possibly entailing inquiry into legislative acts or motivations, is founded upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members.

Thus, even prior to the addition of the 1986 Ethics Amendment to the State Constitution, the Courts had found no "speech-in-debate" prohibitions against the application of ethics rules to legislators. Speech-in-debate immunity therefore cannot be a compelling reason for overturning the Constitutional Amendment now.

The Response to Defensiveness Is in the Eyebrows

To some extent, the suspicious mind will be inclined to see evidence in contradiction, but Supreme Court Chief Justice Frank Williams does seem to be a bit to defensive about his sudden decision to retire:

"Why can't they accept the truth for a change?" he asked with frustration. "Why can't they accept the fact that we accomplished what we set out to accomplish in my inauguration, which was big, and we did it in very quick time. I want to be relieved from the administrative burdens that are 24/7 as chief, and I want to continue to do jurisprudential stuff … Why can't that be accepted?" ...

"If I stayed two years for 100 percent [of my pension] instead of leaving for 75 percent, I'd get criticized for that, too," he said. "If I think outside the box and say, at [age] 68, I have other interests, in cooking and Lincoln and writing, why isn't that acceptable? Because this is Rhode Island, because people here are suspicious and cynical?"

Believing Rhode Islanders to be "suspicious and cynical" and knowing the recent history of those who've held his position, Williams would be, you'd think, more apt to acknowledge the appearance of his decision. He might even have sent out signals for months in advance were there not some sudden catalyst.

Or perhaps he's just an impetuous guy, in which case it's undoubtedly a positive development for the state that his impulse was to resign.

Justice Williams Out the Door

It's difficult not to suspect something other than a desire for a life change lying behind this:

Frank J. Williams, the chief justice of the Rhode Island Supreme Court, stunned the legal and political community today with his announcement that he is stepping down from the high court. ...

He plans to continue his Lincoln scholarship, and looks forward to relinquishing the administrative duties of his job before the start of the new General Assembly session in January. ...

Williams, an Abraham Lincoln scholar who earns about $180,000 a year, will be eligible for 75 percent of his salary in retirement. Had he remained for two more years, he would have been able to collect his full salary.

Apparently absolutely nobody had any idea this was coming. That aspect of the report alone makes one wonder whether there's somebody out there who had advance warning, and who knows the reason... if you catch my drift.

Re: Marriage Amendments

As Marc notes, traditional marriage won big, this election, despite a political turnout that would have seemed likely to point in the other direction. For federalist conservatives, these results are pretty close to the ideal of how things should work: The people of each state decide their policies, and when the judiciary over reaches, the people correct it.

Me, I see this heading quickly to the Supreme Court. That's the critical path left to same-sex marriage advocates. The state-by-state strategy is blocked by the will of civilian majorities, but a Constitutional Amendment at the federal level trumps all, and the Supreme Court has transformed itself into a vessel for short-hand amendments.

The Judiciary as Impediment to Compromise

A recent editorial from National Review highlights one of the procedural detriments that has been advanced in conjunction with the cause of a progressive marriage regime:

... Connecticut, at least, decided the matter democratically. Those people who objected could try to persuade their fellow citizens to repeal the law.

Now Connecticut's supreme court has decided that marriage in all but name is not good enough, and imposed same-sex marriage on the state. Like other courts, the Connecticut court treated the legislature's attempt to meet gay activists halfway as a reason to throw out the compromise and hand the activists a victory. If the legislature was willing to recognize same-sex unions as though they were marriages, the court reasoned, why not call them marriages too? Opponents of same-sex "marriage" should be warned: Thanks to the courts, compromise is now folly.

As a strategy, "by any means necessary" embeds a belief in the justificatory power of the ends. Me, I worry that the result will be to end more crucial beliefs and practices than our society can afford to lose.

Pinga/Alves: Rhode Island Supreme Court's Fatal - yet Inadvertant? - Inaction

In view of the stunning effect - the voiding of an election - of their non-action yesterday in the matter of Stephen Alves' request for a new election, I wonder if the RI Supreme Court was simply unaware in pragmatic terms of the effect of their decision in the context of dates and ballot printing deadlines.

The cutoff date for printing ballots seems to be October 20. Accordingly, whatever happens at that hearing before the Supreme Court on October 23 matters not. However they eventually decide - even if they uphold the three ballot counts and the ruling by the BOE - another primary election will have to be held. (It should be noted, though it is a secondary consideration at this point, that another general election will also have to be held.)

The Supreme Court, then, would be giving the losing candidate a do-over. With no factual reason to do so, they would be stepping into a duly held election with a winner recognized by the duly appointed authority and ordering that a second election take place.

"No factual reason". Let's review that. The smallest margin by which Michael Pinga won any of the ballot counts was seventeen. The West Warwick Board of Canvassers has stated that possibly up to ten Republicans may have voted in this Democrat primary. Further, there are apparently three ballots for which signature cards cannot be found. Set aside the fact that these irregularities, presumed to be clerical and accidental, were found acceptable in the Lynch/Bennett race, not to mention in so many other elections. More fundamentally, those thirteen ballots are insufficient to make up Mr. Alves' vote deficit.

In short, it is not that there is a flimsy basis to revisit this election. It is that there is no basis to do so.

And this is the crux of the matter. The RI Supreme Court is now being criticized for interceding, with no basis whatsoever, in a fundamental and critically important democratic process and for doing so deliberately.

This I refuse to believe. This was not done knowingly. It is some sort of terrible misunderstanding - once again, probably clerical in nature - on the part of the honorable court. It is easily and swiftly remedied.

The Problem with Activism, Per Se

Although I obviously agree with his immediate point, something in this post by Damon Root strikes the ear funny, in a way that betrays the lack of long-term thinking among libertarians (emphasis added):

McCain's response? "That's an excellent point." I don't know if excellent is the word I'd use. When conservatives complain about judges "legislating from the bench," they mean protecting rights that aren't explicitly listed in the Constitution, such as privacy (or liberty of contract or the right to educate your child in a private school). Unless McCain starts campaigning to pass a new amendment reinstating slavery, I think Whoopi can rest easy. Besides, if she had read Lysander Spooner or Frederick Douglass, she'd know that slavery was already illegal before the ratification of the Thirteenth Amendment.

Are liberty of contract or the right to educate children in private school really on conservatives' hit list? From the piece (of his own authorship) that Root links on the words "liberty of contract":

Dissenting from the majority in Lawrence v. Texas (2003), which nullified that state's anti-sodomy law, Supreme Court Justice Antonin Scalia argued that the Texas legislature's "hand should not be stayed through the invention of a brand-new 'constitutional right' by a Court that is impatient of democratic change."

Such views are widely shared on the right, where few subjects produce greater outrage than judicial activism, which conservatives blame for the forced imposition of liberal values on American society. But libertarians, who have frequently allied with conservatives in the effort to rein in the federal government, should not join their battle against the judiciary. There is no inconsistency between principled judicial activism and limited government.

Root goes on to explain that, in the past, "judicial activism was associated almost exclusively with the protection of economic rights" and "that a principled form of libertarian judicial activism--that is, one that consistently upholds individual rights while strictly limiting state power--is essential to the fight for a free society." What's jarring is that modern conservatives like those outcomes, and it's instructive to consider ideological groups according to the beliefs that they actually hold, rather than in the relativist terms that equate today's "conservatives" with yesterday's.

The lesson for Root, who presumably joins many libertarians in approving of the more-recent social outcomes of judicial activism, is that the mechanism by which political ends are achieved matters, because the ends have a way of (quote, unquote) evolving. He describes the first, economic wave of judicial activism as a reaction to a movement among the states toward "legislating a variety of new 'progressive' regulations," which amounts to a preservation of understood structures against the imposition of change. The social wave of judicial activism, by contrast, has entailed transforming the established understandings of "liberty" to include (most prominently) various sexual behaviors, with the trail leading predictably toward social recognition of all sexual relationships as equivalent in all respects.

The first wave made the statement: "The government can't change that." The second: "The government must change that." The next step (again, predictable, indeed, already underway) is: "The government must enforce that." In other words, one citizen's liberty has a way of becoming another citizens compelled compliance when there's an untouchable arbiter to persuade.

Peeling back Root's statements by one layer, it becomes apparent that one could say much the same about any form of government or government action. He writes that "a principled form of libertarian judicial activism... is essential to the fight for a free society," but both his boundary for principle and his chosen mechanism are arbitrary. One could just as easily declare that a principled dictatorship — a principled theocracy — is essential. The problem is that those who find themselves in positions of imbalanced power will find ways to control the levers of power, to ensure that their "principles" are included in the practical definition of the term, and the smaller the group that upholds the principles, the smaller the task of manipulating it.

Me, I say we should let states institute foolhardy, even oppressive rules, as long as folks are remain able to vote, to speak, and to leave. If Rhode Island were to forbid the use of private schools, for example, statistics suggest that I'd hardly be alone in taking my tax dollars and productivity elsewhere. Relying on judges to determine — especially for the entire nation — what is right and wrong, we invite a precedent that will remain even when judicial wisdom takes a turn that we oppose.

Senator Irons' Flawed Defense

Former Rhode Island Senate President William Irons' initial line of defense against charges brought against him by the Rhode Island Ethics Commission rests, first, on a claim of immunity that has never before been recognized in the law and, second, on a claim that a judge can use an interpretation of the law without precedent to nullify the plain language of the state constitution.

1. According to (most recently) Bruce Landis of the Projo, the Rhode Island Ethics Commission has proceeded against Senator Irons for his casting of votes on legislation that directly affected a company he was taking commissions from, in their view, a violation of state ethics rules...

The Journal reported that Irons received $70,000 in commissions on a Blue Cross health-insurance policy for CVS employees in 2000 and 2001, and another $25,000 in 1999. Irons chaired the Senate Corporations Committee that handles health-care legislation, and opposed a controversial pharmacy-choice bill that Blue Cross and CVS also opposed.

2. The Ethics Commission derives it power to bring such cases from a 1986 amendment to the Rhode Island Constitution (Article III, section 8)...

Ethics commission -- Code of ethics. -- The general assembly shall establish an independent non-partisan ethics commission which shall adopt a code of ethics including, but not limited to, provisions on conflicts of interest, confidential information, use of position, contracts with government agencies and financial disclosure. All elected and appointed officials and employees of state and local government, of boards, commissions and agencies shall be subject to the code of ethics. The ethics commission shall have the authority to investigate violations of the code of ethics and to impose penalties, as provided by law; and the commission shall have the power to remove from office officials who are not subject to impeachment.

3. In defense, the lawyers for Senator Irons claim that the Ethics Commission can have no jurisdiction over official acts of legislators, due to the speech-in-debate immunity for legislators that is an original part of the Rhode Island Constitution (Article VI, section 5)...

Immunities of general assembly members. -- The persons of all members of the general assembly shall be exempt from arrest and their estates from attachment in any civil action, during the session of the general assembly, and two days before the commencement and two days after the termination thereof, and all process served contrary hereto shall be void. For any speech in debate in either house, no member shall be questioned in any other place.

In today's Projo article, Senator Irons' lawyer John Tarantino explains his client's basic position on speech-in-debate immunity vs. the Ethics Commission…

Tarantino said that because the Constitutional Convention delegates didn’t explicitly set aside the legislators’ immunity under the “speech in debate” doctrine, that immunity continues and legislators can’t be prosecuted for the way they vote.

4. The principle of speech in debate immunity is well-established in American jurisprudence. Courts have long held that the immunity extends beyond words spoken in floor and committee session, out to any official act associated with lawmaking. The key affirmation of this principle cited in the Irons case comes from the United States Supreme Court 1972 ruling in United States v. Brewster, where the Court made clear that speech in debate immunity prevented legislators from having their motivations for the votes probed by any branch of government seeking to enforce general statutes...

It is beyond doubt that the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process, and into the motivation for those acts.

In other words, as offensive as it may be to the sensibilities of honest citizens, it is established precedent in American law that a legislator cannot be sued or prosecuted under general statute for voting a certain way based on the influence of cold hard cash, instead of concern for the common good.

The Brewster decision was brought into Rhode Island law in 1984 by the Rhode Island Supreme Court in its decision in Holmes v. Farmer.

5. However, in its Brewster ruling, the Supreme Court also made clear that speech in debate immunity did not place the official acts of legislators above every law imaginable. The Brewster decision reaffirmed a principle established six years earlier, in the case of United States v. Johnson, that speech-in-debate immunity did not automatically extend to laws whose specific purpose is regulating the conduct of legislators...

Without intimating any view thereon, we expressly leave open for consideration when the case arises a prosecution which, though possibly entailing inquiry into legislative acts or motivations, is founded upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members.

6. It's a dubious proposition, at best, to ever allow judges to circumvent the plain language of the Constitution, but in this case, the proper decision is especially a no-brainer:

The 1986 amendment to the Rhode Island Constitution charged the legislature with creating an ethics commission, specifically and narrowly empowered to create rules for the conduct of legislators. At that time the constitution was amended, the applicability of speech-in-debate immunity to laws specifically regulating legislator conduct had not been decided. The inclusion of direct language into the constitution subjecting legislators to Ethics Commission jurisdiction, therefore, resolved an ambiguity in the law -- using the most decisive means our system of government allows, a Constitutional amendment -- without creating any conflict with the existing body of speech-in-debate immunity law.

The only way for a court to rule that speech-in-debate immunity trumps the Constitutionally established powers of the Rhode Island Ethics Commission would be for that court to strike down the plain language of the constitution while ignoring established precedent at the same time. For the sake of the rule of law, let's hope that this attempted double-bank shot by Senator Irons and his lawyers doesn't hit its target.

Alert David Mittell...

From Andrew M. Seigel, Associate Professor at the Seattle University School of Law, posting at Prawfsblawg (h/t Orin Kerr via Instapundit)...

Without further ado, here is my highly subjective lists of the ten people most likely to find themselves on the Supreme Court at the end of a first Obama term...

(8) Deval Patrick--Was already on a lot of lists before we knew his friend was going to be the nominee. The rare elected official with all the right legal credentials. Would be much higher if not for the rockiness of his term as governor.

Lincoln Courthouse Delayed at Least a Year

With the other excitement going on in state government yesterday, this news-nugget, here reported on by Edward Fitzpatrick of the Projo, flew in a bit under-the-radar…

Construction of the proposed $71-million Blackstone Valley Courthouse will be postponed for a year and commence in fiscal year 2010, Supreme Court Chief Justice Frank J. Williams said yesterday during his annual State of the Judiciary address.

Williams reminded legislators they approved borrowing money for a new courthouse, and he reminded them of reasons for the project....But the state is facing a projected budget deficit of $150 million in the current fiscal year and a projected deficit of nearly $400 million in the fiscal year beginning July 1.

So, “in recognition of the hardship we all face,” Williams said he has spoken to House Speaker William J. Murphy and Senate President Joseph A. Montalbano about deferring the project for a year. “And the governor has indicated his support for construction if we wait another year,” he said. “Therefore, all have agreed to postpone the construction until fiscal year 2010.”

First Circuit Nomination Surprise: William Smith

Eagle-eyed William Felkner calls my attention to this news-breaking White House Press Release…

Nominations Sent to the Senate

Ricardo H. Hinojosa, of Texas, to be a Member of the United States Sentencing Commission for a term expiring October 31, 2013. (Reappointment)

Ricardo H. Hinojosa, of Texas, to be Chair of the United States Sentencing Commission. (Reappointment)

Michael E. Horowitz, of Maryland, to be a Member of the United States Sentencing Commission for a term expiring October 31, 2013. (Reappointment)

Stephen N. Limbaugh, Jr., of Missouri, to be United States District Judge for the Eastern District of Missouri, vice Donald J. Stohr, retired.

Ed Schafer, of North Dakota, to be Secretary of Agriculture, vice Mike Johanns, resigned.

William E. Smith, of Rhode Island, to be United States Circuit Judge for the First Circuit, vice Bruce M. Selya, retired.

George W. Venables, of California, to be United States Marshal for the Southern District of California for the term of four years, vice Raul David Bejarano.

UPDATE:

Apparently, the nomination is only a suprise with respect to the very recent round of Robert Corrente-or-Robert Flanders speculation. William Smith's name was mentioned about a year ago as one of the frontrunners for the position for the seat being vacated by Judge Selya in a Projo article by Scott MacKay.

UPDATE 2:

Here's some more biographical information on Judge Smith, from the White House website.

And John Mulligan and G. Wayne Miller have a story on the nomination in today's Projo, including the initial reactions from Rhode Island's Senators...

As they had the day that Mr. Bush nominated U.S. Magistrate Judge Lincoln D. Almond to the federal District Court last month, Senators Jack Reed and Sheldon Whitehouse declined to be interviewed about Smith’s nomination.

Instead, the Rhode Island Democrats, who will enjoy much deference from their colleagues as the Senate weighs the nomination, issued a noncommittal joint statement.

“Rhode Islanders deserve to have highly qualified judges who are thoughtful and independent,” said Reed and Whitehouse. “Before giving someone a lifetime appointment to the federal bench we need to carefully review their record. We will be sure to give Judge Smith’s nomination thorough and independent review.”

Clarence Thomas

Think of the way some people have sought to portray Supreme Court Justice Clarence Thomas.

Then check out this video of him.

Hard not to respect the man and see his depth.

(h/t Power Line)

Check out his book, too.

The RI Lead Paint Case: Sherwin-Williams Versus DuPont?

According to a report published by Legal Newsline, paint manufacturer Sherwin-Williams wants the Rhode Island courts to take a closer look at how DuPont's lead-paint agreement money is being spent, and what that says about what the costs of lead remediation should be...

Sherwin-Williams is requesting that two portions of DuPont's settlement with the State be removed because they serve only Lynch's interests. DuPont settled before the State's trial against several paint companies, three of which were found liable for creating a public nuisance when they manufactured lead paint.

Sherwin-Williams filed two motions Wednesday -- one to value the DuPont settlement and another to stay the lead paint abatement process ordered by Superior Court Judge Michael Silverstein.

"In addition to valuing the overall DuPont settlement, Sherwin-Williams also moves to disgorge two monetary amounts from the settlement that were improperly diverted to two purely private purposes, to satisfy either the Attorney General's or the State's counsel's private interest," attorneys for Sherwin-Williams wrote.

In their filing, Sherwin-Williams' attorneys repeatedly draw attention to several figures associated with the DuPont's "settlement" (which, I believe, DuPont still claims is not a settlement), taking the position that only $4.25 million of $10 million or $12 million that DuPont agreed to pay out is going directly to remediate lead-affected homes in Rhode Island, 600 homes in total. On its surface, much of the filing is about making sure that Sherwin-Williams is not charged a second time for work that DuPont is supposed to be responsible for.

The larger goal of bringing this matter to the attention of the court, however, may be to help establish that Rhode Island Attorney General Patrick Lynch's proposed remediation figure is inflated. AG Lynch would like the three defendants found liable for creating a lead-paint nuisance in Rhode Island (Sherwin Williams, NL Industries, Millenium Holdings) to pay a total of $2.4 billion dollars to remediate 240,000 homes. However by Sherwin-Williams' reasoning, DuPont has been assessed a maximum figure of about $7000 per home ($4.25 million divided by 600, and I say maximum because they are asking for the DuPont settlement to be officially valued by the court, and I don't think they'd be doing that if they thought the $7000-per-home assessment was going to go significantly up). Multiply the 240,000 homes in Rhode Island needing to be remediated (actually 239,400 by SW's estimate) by $7000, and you arrive at a total of about $1.7 billion dollars.

That's a $700 million difference between the Attorney General's number and the number being backed out by Sherwin-Williams. As one of three defendants potentially responsible for financing a remediation program, that's a potential savings of over $200 million for Sherwin-Williams. For a regular person or a small business, a $200 million reduction in the amount owed for anything would be huge, but for a big company like Sherwin-Williams, it's probably not a enough of a reduction to be considered the best case outcome. It's pretty clear that Sherwin-Williams is laying the groundwork to use the DuPont "settlement" to argue that they owe significantly less (should they be unable to get the verdict completely overturned), but not yet clear to us legal laypeople what the full chain of their reasoning will be.

Impeach Frank Williams?

Kevin McKenna, president of the 1986 Rhode Island Constitutional Convention, writes in today's Projo that he believes Frank Williams' participation in the traffic tribunal magistrate selection process created by the General Assembly to be an impeachable offense…

Chief Justice Frank Williams’s Oct. 11 “appointment” of William R. Guglietta, chief legal counsel to Majority Leader Gordon D. Fox (D.-Providence), to the position of chief magistrate of the state Traffic Tribunal was an impeachable act, a violation of the constitutional principle of separation of powers, and a violation of the chief justice’s oath to enforce the state constitution.

A chief justice is not a governor. Constitutional officers are prohibited from exercising the power of other constitutional officers. In the 2004 separation of powers constitutional amendments, the governor was delegated by the electors the same powers of appointment as a U.S. president to appoint principal officers of the state.

I agree with Mr. McKenna that letting judges appoint other judges (and a magistrate is a judge) is a violation of the principle of separation of powers, but I'm not sure if Chief Justice Williams playing along with the flawed rules created by the legislature rises to the level of an impeachable offense.

Mr. McKenna does suggest a number of other remedies to the problem of the judicial branch exercising executive power certainly worthy of public consideration…

• Urge your governor not to fund unconstitutional appointments. Surely funds for unconstitutional appointments could be better used for other purposes, such as funding for abandoned children in the state’s custody.
• Urge your state senator not to approve appointments to unconstitutional positions.
• Urge your representative and senator to repeal and amend the laws delegating the governor’s budgetary and appointment powers to the chief justice and to other chief judges and to the chief magistrate.
• Vote in 2008 only for a state representative and senator who supports constitutional judicial reform.

UPDATE:

Commenter "Brassband" disagrees with Mr. McKenna's position on the constitutionality of judges appointing magistrates, and even my suggestion that the legislature has created a process that's flawed, making the eminently reasonable argument that "unconstitutional" must be defined in terms of what's in the Constitution...

McKenna is not reading the R.I. Constitution correctly.

The recent "separation of powers" amendments specifically provided in Art. 9, sec. 5 that the General Assembly could assign the appointment power for lesser officers with the judicial branch in this manner:

---

Section 5. Powers of appointment. -- The governor shall, by and with the advice and consent of the senate, appoint all officers of the state whose appointment is not herein otherwise provided for and all members of any board, commission or other state or quasi-public entity which exercises executive power under the laws of this state; but the general assembly may by law vest the appointment of such inferior officers, as they deem proper, in the governor, or within their respective departments in the other general officers, the judiciary or in the heads of departments.

---

This is completely consistent with Article II, sec. 2 of the U.S. Constitution, which similarly permits Congress to authorize such appointments to be made by "the courts of law."

As I have pointed out in other comments, in the federal system, U.S. District Judges appoint Magistrates within their own Districts, and the R.I. provision is obviously patterned after that system.

The voters specifically adopted a system based on the federal model, and, whether McKenna likes it or not, the magistrate appointment system fits that pattern.

UPDATE REBUTTAL:

Contra "Brassband", commenter "David" defends Mr. McKenna's position on the basis that Rhode Island magistrates are true judges while Federal magistrates are not...

Federal magistrates preside mainly over preliminary hearings relating to evidentiary and discovery issues and their decisions are not effective until reviewed and approved by the district court judge responsible for the case. The judge is, of course, nominated by the president and approved by the senate in conformance with the Constitution.

Rhode Island magistrates, by contrast, have all the powers of judges as Mr. McKenna pointed out in his op-ed. The actions of traffic tribunal magistrates have the same legal effect as the acts of any trial court judge in the state and are reviewable only by appeal to the Supreme Court. Rhode Island magistrates are judges in all but name and, with apologies to Shakespeare, that which we call a judge by any other name must be approved by the judicial nominating commission, the governor and the senate.

Of Federal Judges and Federal Candidates

1. According to Charles Bakst in Sunday's Projo, Warwick Mayor Scott Avedisian is more interested in running for House or Senate at a future undisclosed date than he is in running for governor in 2010…

[Lincoln Chafee] says he’d welcome a gubernatorial bid by Warwick Mayor Scott Avedisian, a close ally. Avedisian, who says he has no plans to leave the party, says he’s focused now on a 2008 reelection. While not ruling out a try for governor later, he’s more interested in the House or Senate.

2. The Political Scene column from today's Projo takes it as a given that Robert Flanders is out of the running for the vacant seat on the First Circuit Court of Appeals, and adds another name to the previously floated name of Robert Corrente…

Political Scene has heard that the White House might be getting close to nominating people for those vacancies, which were created when former Chief U.S. District Judge Ernest C. Torres and former Circuit Judge Bruce M. Selya left full-time service and assumed senior status about 10 months ago.

Those seen as front-runners for the 1st Circuit seat include U.S. Attorney Robert Clark Corrente and District Court Judge William E. Smith. Those seen as front-runners for the District Court judgeship include Corrente and U.S. Magistrate Judge Lincoln D. Almond, son of former Republican Gov. Lincoln C. Almond.

However, as some of us have feared, Senate Democrats, via Senator Sheldon Whitehouse, are indicating that they may not approve any new judicial appointments made by the Bush administration…

Whitehouse, a former U.S. Attorney and Rhode Island attorney general, spoke at the Roger Williams University School of Law last week, and afterward he was asked if the Bush administration had reached the point at which it’s too late to make those appointments.

“I think we’ve reached it, particularly based on the process we’ve gone through so far,” Whitehouse replied. “There has been zero meaningful discussion between the White House and the Senate on these appointments.”

Judge Selya is not impressed by Senator Whitehouse's characteristic hyper-partisanship, when the subject is judicial appointments…

When reached on Friday, Selya said, “I’m really very disappointed in the senator’s remarks. This is not a political game. The courts and the country and the state need these judges, and the question ought to be not who makes these nominations but the quality of the nominees.”

Selya, who was appointed by former President Ronald Reagan, said, “If this president or any future president nominates a first-class person, then that man or woman deserves to be considered on the merits and not held up because someone is waiting for some kind of political accommodation to be made.”

It looks as if a fitting slogan, on many levels, for Senator Whitehouse's next re-election campaign will be "Qualifications no! Partisanship yes!".

Senator Montalbano's Flawed Defense, Part 1

Rhode Island Senate President Joseph Montalbano wants four of the charges brought against him by the Rhode Island Ethics Commission thrown out on the grounds that "members of the General Assembly cannot be prosecuted for an offense based on a past legislative act such as voting". The legal claim is based on the "speech-in-debate" clause in the Rhode Island Constitution, the last sentence of Article VI, section 5…

The persons of all members of the general assembly shall be exempt from arrest and their estates from attachment in any civil action, during the session of the general assembly, and two days before the commencement and two days after the termination thereof, and all process served contrary hereto shall be void. For any speech in debate in either house, no member shall be questioned in any other place.

Talking to Projo columnist Charles Bakst, Senator Montalbano's defense counsel Max Wistow explained how broad he believes the immunity privilege to be…

Montalbano is accused of a conflict for voting to support legislation for a West Warwick casino while doing legal work for the town involving land abutting the proposed site.

The commission plans a trial-like hearing in six weeks, but Wistow wants a court to block it…Under his view about votes themselves being off limits, Wistow says you could still prosecute a legislator if, for instance, you could show he agreed to take a bribe. But, I asked after Tuesday’s commission session, suppose he hadn’t plotted with anyone? Suppose he sought to make a buck by, say, voting to sell the state a building he owns?

Wistow said the solution is for voters to throw the guy out in the next election. Or delete the Constitution’s speech-in-debate provision, something I wouldn’t hold my breath waiting to happen.

Speech-in-debate immunity is an aspect of the doctrine of separation of powers, inserted into both the state and the Federal Constitution to prevent the executive and judicial branches of government from improperly interfering with the workings of the legislature by using criminal or civil charges to punish legislative debate.

According to briefs filed in this case, the key ruling establishing the scope of speech-in-debate immunity was the 1972 United States Supreme Court case United States v. Brewster (introduced to Rhode Island law via the State Supreme Court decision in the 1984 case of Holmes v. Farmer). In Brewster, the court held that a legislator could not be questioned about his votes, even when compelling other evidence existed indicating that he or she had accepted bribes…

It is beyond doubt that the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process, and into the motivation for those acts.

The response from the Ethics Commission to Senator Montalbano's claim that floor-actions of legislators are immune from Ethics Commission scrutiny rests heavily on the "unique constitutional mandate" (a phrase taken from the Ethics Commission brief) of the RI Ethics Commission. Under the Rhode Island Constitution, the Ethics Commission does not truly belong to the legislative, executive or judicial branches of government, but is built from an amalgam of functions that have been separated from their "natural" branches of government and united under the Commission. Because of its special nature, the Commission's lawyers argue that Ethics Commission proceedings do not constitute executive or judicial interference with the legislative branch, and that…

1. Ethics commission proceedings do not come into conflict with the speech-in-debate clause, and...
2. In the absence of such a conflict, there is no basis for the courts (or anyone else) to override the clear intent of the people expressed via the 1986 Constitutional Convention that subjected legislators to the jurisdiction of the Ethics Commission.

Even in the absence of any unique Constitutional standing, however, Senator Montalbano's claim of immunity would still be very weak, as the the Brewster precedent cited by Senator Montalbano’s defense team does not apply to the laws relevant to this case. We know this because the Supreme Court has said so....

Corrente over Flanders for the First Circuit Judgeship?

National Review Online Capitol Hill correspondent David Freddoso is reporting that President Bush is leaning towards appointing Robert Corrente to the First Circuit Court of Appeals over Robert Flanders, the choice recommended by former Senator Lincoln Chafee...

In March 2006, liberal former Sen. Lincoln Chafee (R) had been asked by the White House to submit three names as possible nominees, from which the President planned to choose. But Chafee, ever dodgy in his dealings with George W. Bush, only submitted one name, that of Flanders. An active member of the state GOP who is described by sources in the state as a “real Republican,” Flanders is also publicly supported by conservative Gov. Donald Carcieri (R.). He happens to be a personal friend of Sen. Sheldon Whitehouse (D., R.I.), causing speculation that his confirmation would have been relatively easy.

But the White House was upset that Chafee submitted just one name, and interpreted this as an attempt by the senator to force President Bush’s hand. As a result, Flanders’s recommendation has languished for well over a year with no action taken. The administration is said to be leaning instead toward nominating Robert Clark Corrente, the current U.S. attorney from Rhode Island, whom Chafee had earlier recommended for a federal district judgeship.

A significant local impact of this decision may be its effect on Operation Dollar Bill, the Federal probe into corruption at the Rhode Island statehouse currently being led by Corrente.

New Jersey Supreme Court Rejects the Public Nuisance Rationale in Lead-Paint Suits

In a decision that likely will have ripples reaching Rhode Island, the State Supreme Court of New Jersey has ruled that lead paint manufacturers cannot be held liable for lead-paint clean-up costs under “public nuisance” laws. If NJ municipalities want to take lead-paint manufacturers to court, they must do so under the rules of product liability law, which involve a substantially higher burden of proof. The Philadelphia Inquirer has the details…

The court said municipal and county officials can't sue paint manufacturers, which included DuPont Co. of Wilmington and Sherwin-Williams Co. of Cleveland, for creating a public nuisance with their lead-based coverings. Another defendant was American Cyanamid Co., which now is owned by Wyeth, the Madison, N.J., pharmaceutical company.

"Were we to find a cause of action here, nuisance law would become a monster," the state justices said in a 71-page opinion....

The court determined that the towns and counties failed to identify a special injury that could be compensated. It said the claim was essentially a product-liability issue, and falls under the state Product Liability Act, which excludes coverage for exposure to toxic material.

The New Jersey suit was among a number of cases filed by U.S. cities and states over lead-paint damages that have been thrown out. The Missouri Supreme Court ruled this week that St. Louis officials couldn't use the so-called nuisance theory to sue manufacturers over the costs of dealing with the paint.

But a Rhode Island jury ruled last year that Sherwin-Williams, NL Industries Inc. and Millennium Holdings L.L.C. were responsible for cleaning up problems created by their products. It was the industry's first such loss.

Richard Faulk, who has researched and written extensively on the subject of lead paint and lead paint law, offers this brief synopsis of the ruling…

The crux of the holding is the Court’s conclusion that the conduct of the defendants, who manufactured and sold a product which was legal at the time of its distribution, is not the type of conduct that “creates” a public nuisance. Instead, the nuisance is only “created” when the premises become dangerous through “deterioration and poor maintenance by the purchasers.”

Now, legal laypeople (like me) may be wondering how much impact a New Jersey ruling ultimately has on the affairs of Rhode Island. After all, the United States is a Federal system, where the different states are allowed to set their own legal rules. However, two explanations have already been advanced as to why the NJ ruling may impact the resolution of the RI lead paint case. One explanation comes via Jane Genova's Law and More blog, from a source identified only as a "brandname plantiff attorney"...

NJ courts have national standing on issues of strict liability doctrine. Prominent jurists such as William Brennen have sat on that court. In addition, the fundamental issue in this ruling is public nuisance. In MO, it was proof of causation or product ID. Since the plaintiff law firm Motley Rice has been involved in the NJ case, this can be construed as a significant blow to the firm's influence going forward. Also, the decision represents the end of the road for this issue in NJ. There is no where further to go.

As New Jersey goes so goes the nation (at least when it comes to product liability jurisprudence)? That’s not exactly confidence-inspiring proof of the rationality of our legal system.

A second, broader explanation comes from Mr. Faulk, who argues that the New Jersey court’s ruling is rooted in legal principles so fundamental, they date back to the Magna Carta and the structure of common law itself…

In New Jersey, as in Rhode Island and many other states, the legislature and regulatory authorities have allocated the primary responsibility for detecting and preventing lead risks to property owners. In Rhode Island, the trial court flatly ignored the impact of these mandates from other branches of government, holding that they were irrelevant to the “common law” remedy sought by the State. In New Jersey, however, the Supreme Court paid careful attention to the legislative mandates and properly recognized that their requirements were essential considerations in evaluating the scope and meaning of the remedy being pursued… Although the “common law” may have its sources solely within the judiciary, the people have increasingly imposed policies that regulate its discretion. These began as early as the Magna Carta and have proceeded through the industrial revolution to mature into today’s complex legislative and regulatory environment. The impact of these mandates cannot be ignored, as they were in Rhode Island, merely because a court is faced with a “common law” cause of action.

Law and More has more analysis here and here.

Carcieri Says "No" to Extension of Chief Justice's Fiefdom

Rhode Island Chief Justice Frank Williams made headlines a few months ago for his smackdown of Governor Carcieri's idea of across the board cost-cutting as "draconian." Well, the Governor is waving a bloody steak in front of the Judicial lion again:

Governor Carcieri is criticizing legislators for authorizing up to $71 million in borrowing for a new state courthouse in Lincoln when the state is trying to close a $300-million budget gap.
...

“Governor Carcieri does not support building yet another brand new courthouse at this time,” Carcieri spokesman Jeff Neal said yesterday. “State officials are working to deal with the largest budget crisis in recent memory. The solution to that crisis involves a myriad of proposed budget cuts that will affect thousands of Rhode Islanders. We simply cannot afford to pay for another shiny new state office building.”

Neal noted the new Kent County Court House, which cost $60 million, opened last August, and the new Traffic Tribunal courthouse, which cost $21.8 million, opened in January. “In the last two years, the judiciary has already opened two new, expensive courthouse buildings,” he said. “I think we can wait a few years before we open a third.”

Heck, not even Lincoln wants it. Chief Justice Williams didn't comment (though, as in the past, I'm sure he'll have something more to say), but a spokesman...

...said Williams “still thinks it is important to build a Blackstone Valley courthouse for all of the reasons we’ve been citing all along.”

The courthouse would “better serve the 12 communities of the Blackstone Valley, where there has been significant population increase in the last several years,” Berke said. “Now, people from those communities have to come to Providence, where parking is a problem. And the other major factor is aimed at decongesting the Garrahy Judicial Complex” in Providence.

Berke noted the initial spending on the project would be deferred a year. “The chief justice appreciates the governor’s concerns about the state’s deficit but still feels it is important that this project go forward at some point,” he said.

Do I detect a slight backing off, there? Regardless, spare me the pity party about the people who have to travel "all the way to Providence". And if congestion at the Garrahy complex is such a problem, why don't we just funnel them over to the Taj Ma-Williams Courthouse in Warwick?

To Appoint or To Reappoint, That is the Question

One of the restrictions on membership on Rhode Island’s Judicial Nomination Commission, part of the system intended to provide for merit selection of judges in Rhode Island, is this…

No member shall be reappointed to the commission.

Governor Donald Carcieri wants to interpret this law as prohibiting only sitting members of the commission from being reappointed to consecutive terms, and reappoint someone (C. June Tow) who already served a previous term between 1998 and 2002. Senator James Sheehan (D-Narragansett/North Kingstown) argues in today’s Projo that this interpretation of the law is absurd, as it would mean that the same group of people could be reappointed to the commission ad infinitum, as long as they took some time off between terms. Senator Sheehan has asked the Attorney General for an advisory opinion on the issue.

Jon Pincince of RI Law Journal has an analysis of how the legislature’s intent probably was to bar anyone from serving more than one term, but that the letter of the law does allow room for either interpretation. (Obviously, the RI Legislature needs more practice in writing effective reform laws!)

Though I am skeptical of relying too heavily on “legislative intent” arguments, which are not applied with consistency, with all of the other major problems that Rhode Island is facing, I don’t see fighting this battle as a great use of the Governor’s political capital.

The Lead Paint Trial -- And Maybe Lawyers Getting Sued?

With the exception of DuPont agreeing to roughly double its contribution to the Children's Health Forum as part of its let's-not-call-it-a-settlement out of the case, the Rhode Island lead paint trial hasn’t been much in the local news lately. However, the national business and legal communities are still keenly watching to see what happens next.

NL Industries, Millennium Holdings, and Sherwin-Williams were found guilty last year of creating a “public nuisance” because they sold lead paint. They will likely appeal the verdict to Rhode Island's Supreme Court. Grounds for appeal haven't yet been specified, but past statements by the defendants' lawyers and some recent legal analysis of the verdict suggest that an appeal will likely be based, at least in part, on the fact that the state never proved that the defendants sold more or less lead paint in Rhode Island than did any other manufacturer. The trial court, in fact, did not require the state to show that products sold by the defendants were the major source of the problem.

Jane Genova of the Law and More blog offers commentary from an unnamed “legal expert” on the likely outcome of an appeal. You might ask how an expert can analyze an appeal without knowing the grounds. The answer would be by knowing how Rhode Island works, regardless of the case...

It seems to them and to me that the RI Supreme Court likes to see gradual changes in the law and not those which could be interpreted as drastic. In general, this Court tends to offer narrow opinions in which it only decides the matters immediately in front of it. That's to say: This Court hasn't in the past used opinions to make broad social commentary.

However, the Court is likely to give deference to the RI legal community at large and considers standing and respect within that community to be very important. Sources say that the conundrum is this: The RI Supreme Court, according to past rulings and other statements, is not likely to be comfortable with Superior Court Justice Michael Silverstein's decision in this case. That's primarily because it is a broad expansion of the public nuisance legal concept. But, would the RI Supreme Court reverse this decision and risk contempt of the RI legal community? That's hard to say.

Also, as most of us lead paint watchers know, RI is an old boys network in many ways. If the state Attorney General and or Judge Silverstein has strong enough pull with the legal community at least it could mean that the RI Supreme Court justices bite their tongues.

Another grounds for appeal, one that might be more difficult for the old boy network to ignore, may be based on the state's argument during the trial that the number of new lead-poisoning cases per year in Rhode Island had become constant. The state argued this was evidence that the situation could not improve unless more active clean-up measures were undertaken. However, according to an extensive report on the history of lead paint related issues authored by Richard O. Faulk and John S. Gray and published by the Bureau of National Affairs (a privately-owned, legally-oriented publishing company), the state obtained updated evidence during the trial showing the number of new lead poisoning cases to be declining under existing remediation laws and regulations, but did not share this information with the court...

During the trial, the State and its experts relied on 2004 data to argue that Rhode Island’s lead-poisoning prevention programs had reached the limits of their effectiveness, that too many children still had elevated blood lead levels, and that elevated blood lead levels had ‘‘plateaued.’’

After the verdict was returned, the defendants complained about this argument for a fundamental reason – it was simply untrue. The truth is that there were 621 elevated blood lead levels in Rhode Island for all of 2005 (compared to 1,167 elevated blood lead levels in 2004), a drop of 47% from the previous year. The State knew these facts by not later than January 31, 2006 (during the trial) when Rhode Island’s Department of Health prepared a draft report documenting the 2005 numbers. Yet, after learning that the new 2005 data directly contradicted its theme of the ‘‘plateauing’’ of declining lead levels, the State still allowed its ‘‘special assistants’’ to continue claiming that a plateau existed. According to the defendants, this misrepresentation of facts is sufficient grounds for granting a new trial.

To compound the problem, neither the State nor its ‘‘special assistants’’ disclosed this relevant and critical information regarding the effectiveness of Rhode Island’s existing lead poisoning prevention program to the defendants after it became aware of the new data. The choice was made even though there was a discovery request seeking that very information. Defendants argue that the state breached its duty of candor to the Court and its Rule 26(e) duty to supplement its discovery responses. They claim that this undisclosed information was relevant to the heart of the issue in this trial -- whether a public nuisance exists in Rhode Island -- and was crucial to Defendants’ case.

To rebut this claim, the State and its special assistants claim that they were not obligated to supplement discovery because the Court ended discovery on May 30, 2005. Therefore, the State argues that the defendants were obligated to go to the judge to seek an order requiring the State to supplement its discovery.

And in a possible wild-card development, based on the many irregularities associated with this case (most notably, possible special treatment given to DuPont and the use of contingency-fee lawyers who are motivated to seek the most expensive remedy, not necessarily the most effective one) there is some loose talk beginning about the possibility of a Sherwin-Williams shareholder lawsuit against the state of Rhode Island and/or the Attorney General of Rhode Island and/or the contingency fee lawyers hired by the Attorney General...

What I would like to see for a change is a shareholder lawsuit against the State of Rhode Island for the financial harm we have suffered as owners. Our loss would be both the artificial stagnation of the stock price, the money spent on this litigation that cannot be used for corporate purposes or returned to us owners as a dividends or share repurchases and the time executives have spent on the litigation, not the selling of paint and coatings.

Jane Genova, again, quotes a "Wall Street expert" on whether a shareholder lawsuit could succeed...

I don't see a shareholder suit against the state of Rhode Island as likely. However, damages from an unconstitutional act such as a contingency-based-lawsuit can be addressed to the plaintiff firm of Motley Rice and to possible Rhode Island parties who deemed to benefit. This could be highly likely given the possible missteps of Rhode Island Attorney General Patrick Lynch in what I perceive as alleged preferential treatment of DuPont. I will add this: The state of Rhode Island has a major hurdle to get past the contingency issue. From that, there could well be an onslaught of litigation directed at Attorney General Patrick Lynch and the plaintiff law firm of Motley Rice.

It's not clear how likely a shareholder lawsuit really is, but it is clear that the chances of this all being resolved in a timescale of less than years is increasingly remote.

The Lead Paint Trial -- And Maybe Lawyers Getting Sued?

With the exception of DuPont agreeing to roughly double its contribution to the Children's Health Forum as part of its let's-not-call-it-a-settlement out of the case, the Rhode Island lead paint trial hasn’t been much in the local news lately. However, the national business and legal communities are still keenly watching to see what happens next.

NL Industries, Millennium Holdings, and Sherwin-Williams were found guilty last year of creating a “public nuisance” because they sold lead paint. They will likely appeal the verdict to Rhode Island's Supreme Court. Grounds for appeal haven't yet been specified, but past statements by the defendants' lawyers and some recent legal analysis of the verdict suggest that an appeal will likely be based, at least in part, on the fact that the state never proved that the defendants sold more or less lead paint in Rhode Island than did any other manufacturer. The trial court, in fact, did not require the state to show that products sold by the defendants were the major source of the problem.

Jane Genova of the Law and More blog offers commentary from an unnamed “legal expert” on the likely outcome of an appeal. You might ask how an expert can analyze an appeal without knowing the grounds. The answer would be by knowing how Rhode Island works, regardless of the case...

It seems to them and to me that the RI Supreme Court likes to see gradual changes in the law and not those which could be interpreted as drastic. In general, this Court tends to offer narrow opinions in which it only decides the matters immediately in front of it. That's to say: This Court hasn't in the past used opinions to make broad social commentary.

However, the Court is likely to give deference to the RI legal community at large and considers standing and respect within that community to be very important. Sources say that the conundrum is this: The RI Supreme Court, according to past rulings and other statements, is not likely to be comfortable with Superior Court Justice Michael Silverstein's decision in this case. That's primarily because it is a broad expansion of the public nuisance legal concept. But, would the RI Supreme Court reverse this decision and risk contempt of the RI legal community? That's hard to say.

Also, as most of us lead paint watchers know, RI is an old boys network in many ways. If the state Attorney General and or Judge Silverstein has strong enough pull with the legal community at least it could mean that the RI Supreme Court justices bite their tongues.

Another grounds for appeal, one that might be more difficult for the old boy network to ignore, may be based on the state's argument during the trial that the number of new lead-poisoning cases per year in Rhode Island had become constant. The state argued this was evidence that the situation could not improve unless more active clean-up measures were undertaken. However, according to an extensive report on the history of lead paint related issues authored by Richard O. Faulk and John S. Gray and published by the Bureau of National Affairs (a privately-owned, legally-oriented publishing company), the state obtained updated evidence during the trial showing the number of new lead poisoning cases to be declining under existing remediation laws and regulations, but did not share this information with the court...

During the trial, the State and its experts relied on 2004 data to argue that Rhode Island’s lead-poisoning prevention programs had reached the limits of their effectiveness, that too many children still had elevated blood lead levels, and that elevated blood lead levels had ‘‘plateaued.’’

After the verdict was returned, the defendants complained about this argument for a fundamental reason – it was simply untrue. The truth is that there were 621 elevated blood lead levels in Rhode Island for all of 2005 (compared to 1,167 elevated blood lead levels in 2004), a drop of 47% from the previous year. The State knew these facts by not later than January 31, 2006 (during the trial) when Rhode Island’s Department of Health prepared a draft report documenting the 2005 numbers. Yet, after learning that the new 2005 data directly contradicted its theme of the ‘‘plateauing’’ of declining lead levels, the State still allowed its ‘‘special assistants’’ to continue claiming that a plateau existed. According to the defendants, this misrepresentation of facts is sufficient grounds for granting a new trial.

To compound the problem, neither the State nor its ‘‘special assistants’’ disclosed this relevant and critical information regarding the effectiveness of Rhode Island’s existing lead poisoning prevention program to the defendants after it became aware of the new data. The choice was made even though there was a discovery request seeking that very information. Defendants argue that the state breached its duty of candor to the Court and its Rule 26(e) duty to supplement its discovery responses. They claim that this undisclosed information was relevant to the heart of the issue in this trial -- whether a public nuisance exists in Rhode Island -- and was crucial to Defendants’ case.

To rebut this claim, the State and its special assistants claim that they were not obligated to supplement discovery because the Court ended discovery on May 30, 2005. Therefore, the State argues that the defendants were obligated to go to the judge to seek an order requiring the State to supplement its discovery.

And in a possible wild-card development, based on the many irregularities associated with this case (most notably, possible special treatment given to DuPont and the use of contingency-fee lawyers who are motivated to seek the most expensive remedy, not necessarily the most effective one) there is some loose talk beginning about the possibility of a Sherwin-Williams shareholder lawsuit against the state of Rhode Island and/or the Attorney General of Rhode Island and/or the contingency fee lawyers hired by the Attorney General...

What I would like to see for a change is a shareholder lawsuit against the State of Rhode Island for the financial harm we have suffered as owners. Our loss would be both the artificial stagnation of the stock price, the money spent on this litigation that cannot be used for corporate purposes or returned to us owners as a dividends or share repurchases and the time executives have spent on the litigation, not the selling of paint and coatings.

Jane Genova, again, quotes a "Wall Street expert" on whether a shareholder lawsuit could succeed...

I don't see a shareholder suit against the state of Rhode Island as likely. However, damages from an unconstitutional act such as a contingency-based-lawsuit can be addressed to the plaintiff firm of Motley Rice and to possible Rhode Island parties who deemed to benefit. This could be highly likely given the possible missteps of Rhode Island Attorney General Patrick Lynch in what I perceive as alleged preferential treatment of DuPont. I will add this: The state of Rhode Island has a major hurdle to get past the contingency issue. From that, there could well be an onslaught of litigation directed at Attorney General Patrick Lynch and the plaintiff law firm of Motley Rice.

It's not clear how likely a shareholder lawsuit really is, but it is clear that the chances of this all being resolved in a timescale of less than years is increasingly remote.

Global Warming at the US Supreme Court

For those interested in the “global warming” case (Massachusetts v. EPA) heard by the Supreme Court on Wednesday (which Rhode Island is a party to), Jonathan Adler of the Volokh Conspiracy has been compiling links on the media coverage, the Supreme Court has already posted the official transcript of the oral arguments, and the legal briefs filed in the case are available from the Community Rights Council website.

In one sentence, the case is not directly about the science of global warming, but about whether a) states can sue a Federal agency to force it to enact regulations in areas where they have not been granted express authority by Congress and b) whether anyone has the standing to sue for damages for the broad, collective effects of something like “global warming”. Expect the Court’s four liberal justices to rule that “Statutory mandates on executive branch agencies should be interpreted very broadly in places where we agree with the policy outcomes”, the four conservative justices to say that “Congress must grant specific authorization to a Federal agency before it can act”, and Anthony Kennedy to be the swing vote.

Scalia on the Supreme Court & Social Issues

Supreme Court Justice Scalia:

Deeply controversial issues like abortion and suicide rights have nothing to do with the Constitution, and unelected judges too often choose to find new rights at the expense of the democratic process, Supreme Court Justice Antonin Scalia said Saturday.

Scalia, during a talk on the judiciary sponsored by the National Italian American Foundation, dismissed the idea of judicial independence as an absolute virtue. He noted that dozens of states, since the mid-1800s, have chosen to let citizens elect their judges.

"You talk about independence as though it is unquestionably and unqualifiably a good thing," Scalia said. "It may not be. It depends on what your courts are doing."

Scalia added, "The more your courts become policy-makers, the less sense it makes to have them entirely independent."

Scalia, a leading conservative voice after 20 years on the court, said people naturally get upset with the growing number of cases in which a federal court intrudes on social issues better handled by the political process.

"Take the abortion issue," he said. "Whichever side wins, in the courts, the other side feels cheated. I mean, you know, there's something to be said for both sides."

"The court could have said, 'No, thank you.' The court have said, you know, 'There is nothing in the Constitution on the abortion issue for either side,'" Scalia said. "It could have said the same thing about suicide, it could have said the same thing about ... you know, all the social issues the courts are now taking."

Scalia said courts didn't use to decide social issues like that.

"It is part of the new philosophy of the Constitution," he said. "And when you push the courts into that, and when they leap into it, they make themselves politically controversial. And that's what places their independence at risk."

Justice Samuel Alito Jr., the newest member of the Supreme Court, agreed that "the same thing exists, but to a lesser degree, with the lower courts."...

Later, Scalia observed, "It so happens that everything that is stupid is not unconstitutional."

Why is the approach of allowing social issues to be resolved by appropriately messy democratic processes, instead of imperial judges, so difficult for people to understand and accept?

ADDITIONAL THOUGHTS:

In response to Bobby's first comment, the posting entitled Moving Beyond Loyalty to the Rule of Law Mixes Law & Politics describes a different view of the judiciary's role and contains a wealth of further links to other postings that elaborate further:

...That exchange crystallized the fundamental difference between John Roberts and the eight Democrats on the Senate Judiciary Committee. The Democrats believe a good judge will move "beyond loyalty" to the rule of law, if necessary, and seek to advance certain political outcomes--in Durbin's question, the expansion of personal freedom. Roberts dissents: He believes a good judge will distinguish between law and politics and stick resolutely to the law, regardless of the result...

Roberts took care on numerous occasions to emphasize the importance of the distinction between law and politics as it relates to judging. For example, in response to Lindsey Graham's question about what the judge regarded as the biggest threats to the rule of law today, Roberts identified only one threat--the "tendency on behalf of some judges to take . . . [their] authority and extend it into areas where they're going beyond the interpretation of the Constitution, where they're making the law"--the province of elected officials. He observed: "Judges have to recognize that their role is a limited one. That is the basis of their legitimacy. I've said it before and I'll just repeat myself: The Framers were not the sort of people, having fought a revolution to get the right of self-government, to sit down and say, 'Let's take all the difficult issues before us and let's have the judges decide them.' That would have been the farthest thing from their mind."...

In addition, from Rediscovering Civility and Purpose in America's Public Discourse:

JUDICIAL ACTIVISM: COMMANDEERING THE PUBLIC DEBATE & VIOLATING THE FOUNDING PRINCIPLES OF AMERICA

Many of these aggressive attempts by liberal fundamentalists to redirect societal practices have been done through a hyperactive judiciary. It has been going on for enough decades now and, with our weak knowledge of history, many Americans do not appreciate how judicial activism is a relatively recent phenomenon, it violates the governmental principles upon which our nation was founded, and it has an insidious effect on the relationship between the government and the governed.

Chief Justice Warren Burger elaborated on this in the 1982 case of Plyler v. Doe:

The Constitution does not constitute us as "Platonic Guardians" nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, 'wisdom,' or 'common sense.'...We trespass on the assigned function of the political branches under our structure of limited and separated powers when we assume a policy-making role.

Subsequently, Justice Antonin Scalia reinforced this point in his dissent in the 2003 case of Lawrence v. Texas:

The Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.

In the case of West Virginia State Board of Education v. Barnette nearly 70 years ago, Justice Felix Frankfurter also emphasized how judicial activism is contrary to American principles of government:

As a member of this Court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. The duty of a judge who must decide which of two claims before the Court should prevail, that of a State to enact and enforce laws within its general competence or that of an individual to refuse obedience because of the demands of his conscience, is not that of the ordinary person. It can never be emphasized too much that one's own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one's duty on the bench. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could in reason have enacted such a law...

When Mr. Justice Holmes, speaking for this Court, wrote that "it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts..." he went to the very essence of our constitutional system and the democratic conception of our society. He did not mean that for only some phase of civil government this Court was not to supplant legislatures and sit in judgment upon the right or wrong of a challenged measure. He was stating the comprehensive judicial duty and role of this Court in our constitutional scheme whenever legislation is sought to be nullified on any ground, namely, that responsibility for legislation lies with legislatures, answerable as they are directly to the people, and this Court's only and very narrow function is to determine whether within the broad grant of authority vested in legislatures they have exercised a judgment for which reasonable justification can be offered...

This is no dry, technical matter. It cuts deep into one's conception of the democratic process...

In his book entitled The Uncivil War: How a New Elite is Destroying our Democracy, David Lebedoff offers an explanation about the intent underlying the push for judicial activism:

Many who loudly insist on the appointment of activist judges describe themselves as political "activists," as well. But how can one possibly endorse both judicial and political activism, unless, of course, political activism has come to mean something different from what the label implies? One who believes in judicial activism can be a political activist only if he or she no longer views political activity as directed toward the achievement of majority support. If one believes that the point of politics is to see that society does what is "right," regardless of what the public thinks or wants, only then can these two forms of activism indeed be reconciled.

Lebedoff then discusses the eventual consequences of judicial activism:

As those of one political philosophy or another seek to write their own notions into law, with no restraint from themselves or the public, the immigrant wisdom of Justice Frankfurter may be recognized at last for what it really is: a timeless warning that if consent of the governed is not our goal, it will become our memory.

In their book entitled Democracy by Decree: What Happens When Courts Run Government, Ross Sandler and David Schoenbrod note how judicial activism undermines government accountability to the citizenry:

Democracy by decree undermines accountability of government to the voters. Democratic accountability is, in our constitutional scheme, not an unalloyed good. The framers of the U.S. Constitution recognized that a democratically accountable government may reflect bigotry or be inattentive to the people's needs or rights that they should have. For that reason, the Constitution includes rights and authorizes Congress to enact statutes necessary to ensure that state and local government honor them. These are rights, not aspirational goals dressed up as rights.

As long as rights are honored, everything else, including how the rights are honored, is a question of policy to be left to elected officials. The Constitution and its state and local counterparts set up the ground rules for how policy should be made. These ground rules are designed with careful attention to the potential faults of people and those they elect. The guiding principles are division of power and accountability.

Division of power is required because of distrust of both the people and those whom the people elect. Power is divided, first of all, between those who are empowered to govern and those who are governed. Those who are governed retain the power to vote the elected out of office. The power of those who govern is further divided many ways - between the federal government and the states, and within each level of government among the legislature, the executive, and the courts. Inherent in the whole scheme is that elected officials should bear the responsibility for the key policy choices and must retain the power to change policy.

Although the system is far from perfect, democracy by decree makes it worse. It does not substitute the dispassionate rule of judges for the rule of politicians. Decisions by controlling groups are politics in a different form. By hiding ordinary politics behind the robes of judges, democracy by decree makes government less accountable and therefore less responsive. Judicial reason does not supplant politics. Instead, the courts become political.

It is only through the "messiness" of a reasoned public discourse that a broad societal consensus can be achieved on major issues. Judicial activism short-circuits that process, to the detriment of our democratic institutions and habits.

Re: Judge Decided on Station Fire Plea Deal

There are at least four problems with Judge Francis Darigan's statement regarding the Derderian pleas in the Station Fire case that Marc posted on earlier this afternoon.

Continue reading "Re: Judge Decided on Station Fire Plea Deal"

Two Ballot-Question Cases to be Decided Today

Because the section of Rhode Island general election ballots containing referenda is supposed to be sent to the printer today, two ballot related court cases are expected to be decided today. The first case, argued in Federal court, centers on whether the no-bid, favor-one-company provision of this year's version of a Rhode Island casino amendment violates the Federal Constitution. Jim Baron summarizes the central legal issue in today's Pawtucket Times...

As John Killoy, lawyer for the tribe, explained, if the tribe is considered a racial or ethnic group, the proposed amendment would be subject to the "strict scrutiny" standard of its constitutionality, a very high bar to clear. If the tribe is deemed a political entity, then the matter will be decided on a "rational basis" standard - did the state have a rational basis for framing the proposed amendment as it did?

If the tribe is ruled to be a political entity, and not a racial or ethnic group, I hope the court tells people where they can go to make their application to join.

The other case, argued before the state Supreme Court, concerns the issue of the Governor's power to place non-binding questions on the statewide ballot. The legislature tried to strip that power away from the Governor this session. Governor Carcieri sued to prevent the law from being applied retroactively, i.e. from being applied to questions that had been submitted before the legislature acted. In a decision that surprised everyone, Superior Court Judge Stephen Fortunato ruled that the Governor of Rhode Island has an inherent power to place non-binding questions on the statewide ballot, even in the absence of any specific authorizing legislation. Here's the counter-argument from the General Assembly's lawyer, as quoted by Elizabeth Gudrais in the Projo?

"Rhode Island operates by representative democracy, not participatory democracy," John A. "Terry" MacFadyen wrote in the House and Senate brief.

MacFadyen quoted James Madison, saying that when Rhode Island residents approved the state Constitution they chose a republican form of government "premised upon the fact that the people cannot speak in mass, and the right to choose a representative is every citizens' portion of sovereign power."

In other words, if the government doesn't give its express permission for something and lay down a procedure, then that something is forbidden! I don't think Mr. MacFadyen gets the principle of limited government. Or maybe his clients just pay him to eviscerate it. Leave it to a lawyer for the General Assembly to make Judge Fortunato's unusually expansive view of inherent powers seem reasonable by comparison.

No One is Above the Law, Except for Employees of the Rhode Island Court System

Over at the RI Law Journal, Jon Pincince points out something odd about the reacton to the Projo�s inquiries about $42 million in assessed but unpaid fines. The Projo asked for a list, mandated by law, of who hadn't paid the fines they owe�

The Journal has been asking the courts since March how much in fines from the last six years is outstanding and who hasn't paid. Court officials initially rejected the request, saying the law doesn't require the release of such information.

Actually, the law does require the information to be released. Mr. Pincince points us to the relevant section of Rhode Island law�

Notwithstanding any other provision of law, the director of the finance section on a quarterly basis shall prepare a list of the persons who owe court imposed or court related fees, fines, court costs, assessments, charges and/or any other monetary obligations which have been unpaid for a period in excess of ninety (90) days from the date that any such amounts were due�

Any such list prepared by the director of finance shall be available to the public for inspection and shall be published by the director of the finance on the website that is maintained by the courts. Provided, however, that any such list prepared by the director shall not include any individuals social security number.

However, according to the Projo, the courts have not been complying�

State law currently requires the judiciary to produce a list four times a year of all the people who have outstanding fines in the Superior and District courts and the Traffic Tribunal. The list was supposed to include names, addresses and the amounts owed. The information was also required to be posted on a court Web site. The courts have never generated such a list or posted it online.

Rhode Island Court Administrator Joseph Baxter told the Projo that the disclosure law was not being obeyed because �the courts� thought it was unconstitutional. However, that opinion has never been rendered in any case heard in the RI Court system. Mr. Pincince asks at what point being employee of the court system came to mean that you get to pick and choose which laws you will obey�

Can employees of the Rhode Island judiciary disregard a statute that mandates certain action when �the courts� believe the statute is unconstitutional? While this issue has been discussed in terms of whether �the courts� have complied with the law and whether �the courts� believe the law is constitutional, the statute speaks in terms of requiring the �director of the finance section� to prepare the list of persons who owe fines and to publish that list on a web site maintained by the courts. It seems to me that the director of the finance section would have two options: (1) comply with the law, or (2) challenge the law in the courts. Instead, the director of finance, or someone higher up in the judiciary�s chain of command, made an unofficial, out-of-court determination that the law is unconstitutional and need not be complied with.

The courts aren�t the only branch that has been acting weirdly here. Members of the House Judiciary Committee also initially tried to protect the identities of people who haven�t paid their fines, though the move ultimately failed. Again, from the Projo story�

The original version of the bill voted on yesterday, sponsored by Judiciary Committee Chairman Donald J. Lally Jr., D-Wakefield, and filed May 18, would have eliminated disclosure requirements or limited them to Traffic Tribunal fines.

The revised version, which the committee passed, put them back in, requiring the courts to prepare a quarterly list of people who have owed fines for more than 90 days, are not part of a court-ordered payment plan and are not appealing the fines.

Given that the reporting of fines is a fairly innocuous requirement, it�s hard not to wonder about who Mr. Baxter and the sponsors of the original legislation that would have ended the disclosure requirement are trying to protect.

Thoughts on the Law & Social Order

As a child, did you ever make up a new game and spend time trying to define the rules of that game? If so, did you ever end up fighting with your friends because, after you started playing the game, something unplanned happened and conflict broke out? After the conflict broke out, did you find that you could work it out with certain friends - without having to write down an entirely new set of rules? That your ability to work things out informally was only possible if you shared common values with the friends - and the others likely ceased being your friends after that? In retrospect, did you ever look back and realize that there was no way to anticipate every possible outcome, to write out explicit rules to cover all outcomes?

Okay, maybe not. Which is probably why you didn't go to law school later in life.

But, it is a relevant analogy as we extend the concept to a broader societal level. Unfortunately, we have devolved to the point where we frequently turn to government every time there is a problem and request new legislation to "fix" it. Never mind that the new law may be in conflict with existing laws. Never mind that the laws are frequently written with vague language and then turned over to faceless, nameless, unelected and unaccountable bureaucrats for rule-making from afar. Never mind that rule-making from afar only allows rigid rules that must apply uniformly to everyone and offer no subtlety of application that can occur at the local level where there is personal knowledge of what is needed and what will work. Never mind that societal changes may obviate the need for the legislation but the regulations will continue on regardless. Never mind that trying to legislate every issue increasingly eliminates the freedom to apply judgment to different situations, no two of which will be identical.

In that context, two recent comments on The Corner by Jonah Goldberg and Andy McCarthy offered a thoughtful perspective on how increasingly explicit laws adversely impact our social order.

Jonah Goldberg makes the first comments:

My understanding of the Hayekian social order is that life is complex but that the public, written, law should be clear. Bright lines are necessary to illuminate clear principles. It is in the shadows of these bright lines that hidden law operates. We have clear laws - and ethics - against doctors killing patients, but most of us understand that in the outer-reaches of the real world, there will be situations where the rules should be bent or even broken. But we don't then change the law to make the rare case the norm. It may sometimes be morally necessary to look the other way when a cop smacks someone, a desperate man steals something, a doctor kills a hopelessly suffering patient, but we don't rescind the laws against police brutality, theft, or - until recently - euthanasia, in response.

Andy McCarthy then offers some profound observations:

The awful thing about the hyper-lawyered society we are becoming is that there is less and less hidden law. The hidden law is where judgment, discretion and common sense reign. It's like the referee who you only notice when there's a bad call. We only think about it when there is some blunder or atrocity, but these are the rarest of aberrations.

Traditional law assumed a society's values are shared and that people will act accordingly even when there is not a precise regulation telling them what to do. When a screw-up (or worse) happened, we assumed the person - not the regulatory system - was at fault. Modern rule by lawyers, to the contrary, assumes the aberration is the rule and must be explicitly regulated against. It figures that if we account for every possibility, we won't need to trust individual judgment anymore - the system will save us from ourselves. It's what makes bureaucrats say: "What's the big deal about making the competent, honorable 99.9 percent of troops go through sensitivity training because of something screwy done by the other .01 percent?" - a .01 percent, by the way, which will do the something screwy no matter how many hours of values training you make them endure.

Rogues will be rogues no matter what the rules are. But rule by lawyers doesn't see it that way. One Nixon gets you 30 years of FISA - on the seeming assumption that if only we'd had FISA, Nixon would never have happened. Meantime, the fact is that we are simply not smart enough to anticipate every contingency and every technological development. So your one-size-fits-all FISA, in addition to being irrelevant if there is ever another Nixon, turns out also to be inadequate when email, cellphones and al Qaeda come along.

That's modern law: politically correct, unresponsive, and unreal.

Thoughts on the Law & Social Order

As a child, did you ever make up a new game and spend time trying to define the rules of that game? If so, did you ever end up fighting with your friends because, after you started playing the game, something unplanned happened and conflict broke out? After the conflict broke out, did you find that you could work it out with certain friends - without having to write down an entirely new set of rules? That your ability to work things out informally was only possible if you shared common values with the friends - and the others likely ceased being your friends after that? In retrospect, did you ever look back and realize that there was no way to anticipate every possible outcome, to write out explicit rules to cover all outcomes?

Okay, maybe not. Which is probably why you didn't go to law school later in life.

But, it is a relevant analogy as we extend the concept to a broader societal level. Unfortunately, we have devolved to the point where we frequently turn to government every time there is a problem and request new legislation to "fix" it. Never mind that the new law may be in conflict with existing laws. Never mind that the laws are frequently written with vague language and then turned over to faceless, nameless, unelected and unaccountable bureaucrats for rule-making from afar. Never mind that rule-making from afar only allows rigid rules that must apply uniformly to everyone and offer no subtlety of application that can occur at the local level where there is personal knowledge of what is needed and what will work. Never mind that societal changes may obviate the need for the legislation but the regulations will continue on regardless. Never mind that trying to legislate every issue increasingly eliminates the freedom to apply judgment to different situations, no two of which will be identical.

In that context, two recent comments on The Corner by Jonah Goldberg and Andy McCarthy offered a thoughtful perspective on how increasingly explicit laws adversely impact our social order.

Jonah Goldberg makes the first comments:

My understanding of the Hayekian social order is that life is complex but that the public, written, law should be clear. Bright lines are necessary to illuminate clear principles. It is in the shadows of these bright lines that hidden law operates. We have clear laws � and ethics � against doctors killing patients, but most of us understand that in the outer-reaches of the real world, there will be situations where the rules should be bent or even broken. But we don't then change the law to make the rare case the norm. It may sometimes be morally necessary to look the other way when a cop smacks someone, a desperate man steals something, a doctor kills a hopelessly suffering patient, but we don't rescind the laws against police brutality, theft, or � until recently � euthanasia, in response.

Andy McCarthy then offers some profound observations:

The awful thing about the hyper-lawyered society we are becoming is that there is less and less hidden law. The hidden law is where judgment, discretion and common sense reign. It's like the referee who you only notice when there's a bad call. We only think about it when there is some blunder or atrocity, but these are the rarest of aberrations.

Traditional law assumed a society's values are shared and that people will act accordingly even when there is not a precise regulation telling them what to do. When a screw-up (or worse) happened, we assumed the person � not the regulatory system � was at fault. Modern rule by lawyers, to the contrary, assumes the aberration is the rule and must be explicitly regulated against. It figures that if we account for every possibility, we won't need to trust individual judgment anymore � the system will save us from ourselves. It's what makes bureaucrats say: "What's the big deal about making the competent, honorable 99.9 percent of troops go through sensitivity training because of something screwy done by the other .01 percent?" � a .01 percent, by the way, which will do the something screwy no matter how many hours of values training you make them endure.

Rogues will be rogues no matter what the rules are. But rule by lawyers doesn't see it that way. One Nixon gets you 30 years of FISA � on the seeming assumption that if only we'd had FISA, Nixon would never have happened. Meantime, the fact is that we are simply not smart enough to anticipate every contingency and every technological development. So your one-size-fits-all FISA, in addition to being irrelevant if there is ever another Nixon, turns out also to be inadequate when email, cellphones and al Qaeda come along.

That's modern law: politically correct, unresponsive, and unreal.

Calling It Like It Is: Eminent Domain Abuse

With a H/T to the Club for Growth blogsite, Donald Boudreaux says it like it is:

Editor, The New York Post

To the Editor:

The Supreme Court says that property can be seized from private citizen Smith and transferred to private citizen Jones as long as the government declares that the seizure serves a good cause ("Supreme Court Rules Cities May Seize Homes," June 24).

So let's see. If I poke a gun in my neighbor's nose and demand that he "sell" his house to me, I would be arrested. But if I get a city council to poke the gun on my behalf - in exchange for my promise to generate handsome tax revenues for the city - all's well and constitutionally okie-dokie.

Makes sense�for a nation that worships power and disdains liberty.

Sincerely,

Donald J. Boudreaux
Department of Economics
George Mason University

Further Commentary on the Rhode Island Lead Paint Trial

To add some additional color commentary to Andrew's coverage of the Rhode Island lead paint trial in Today's Lead Paint Filing and The Lead Paint Trial Continues, here are excerpts from the February 27 Wall Street Journal editorial Motley Legal Crew (available for a fee):

Even as its asbestos and silicosis scams are unraveling, the trial bar is looking for its next industry to loot. It may have found it last week in a state court in Providence, Rhode Island, where a jury found three paint companies liable for creating a "public nuisance" by selling lead paint many decades ago. The mere presence of lead paint -- whether or not it was safely contained -- was deemed a danger to public health.

There are so many screwy aspects to this case that it's hard to know where to begin. The jurors heard no evidence about an injured party, nor were they informed of any specific house or building that constituted the "nuisance." As for the defendants, Judge Michael Silverstein instructed the jury that it wasn't necessary to find that Sherwin-Williams, NL Industries and Millennium Holdings had actually manufactured the paint present in Rhode Island or that they had even sold it there.

Oh, and did we mention that at the time the companies may or may not have sold lead paint in Rhode Island it was an entirely lawful product? "The fact that the conduct that caused the nuisance is lawful does not preclude liability," Judge Silverstein said. Lead paint was banned for residential use in 1978.

The legal "reasoning" at work in Rhode Island comes courtesy of Motley Rice, the South Carolina law firm that won hundreds of millions of dollars in contingency fees for its litigation against tobacco companies and is now seeking new deep pockets. It marketed its lead-paint strategy to the state government, which agreed to pay the trial lawyers 16 2/3% of whatever settlement is reached. Sheldon Whitehouse, who was attorney general at the time, is already trumpeting the verdict as part of his campaign for the Democratic nomination for the U.S. Senate.

The potential Rhode Island jackpot looks to be enormous. Judge Silverstein could order the paint companies to fork over millions, or even billions, of dollars in clean-up costs. That's not including the possibility of punitive damages...

There is also the not-so-little matter of public policy, and who has the authority to make decisions about the 300,000 or so buildings in Rhode Island that contain lead paint. Judge Silverstein's abatement orders are likely to be in direct conflict with the guidelines set down by the U.S. Centers for Disease Control, the Department of Housing and Urban Development, the Environmental Protection Agency and the state Health Department.

The recommended and sensible maintenance policy of all these agencies stresses painting over lead paint to keep it from peeling or flaking. Maintenance works, as can be seen by the dramatic drop in the prevalence of lead poisoning among children in Rhode Island. The state department of health reports only about 1,600 cases a year, mostly in low-income families. The state knows their addresses. A better way to help these children would be to go after landlords who don't maintain their properties properly...

The bizarre tort theory in Rhode Island is terrible news for the paint business and the thousands of people it employs, and it has potential ramifications for other industries that make lawful products that years later turn out to have health or safety problems. It also demonstrates once again that "liability" in America has become completely untethered to either legal precedent or basic fairness.

Today's Lead Paint Filing

According to both the Projo's 7-to-7 blog and NBC-10, the three paint manufacturers found liable for what could amount to billions of dollars in damages in the Rhode Island lead paint trial have filed suit in Rhode Island Superior Court asking for either a dismissal of the case or for a new trial to be held. This is a separate filing from the filing based on contingency fee issues reported earlier this month.

A joint press release issued by NL Industries, Millennium Holdings, and Sherwin-Williams details what they believe to be grounds for overturning last month's verdict. The most compelling arguments are the defendants' claims that the state never proved how much lead paint, if any amount at all, was sold by each company in Rhode Island...

Each defendant should have had a separate trial. The state consistently blurred evidence among defendants, resulting in an unfair trial to each;

The state evaded a dispositive motion by asserting that it was not relying on a "market share" liability theory. At trial, however, the state presented national "market share" data rather than any proof that the defendants' lead pigments are present in Rhode Island today and contributing to an alleged public nuisance. The use of market share data conflicts with Rhode Island Supreme Court precedent and doesn't show that any company was a substantial factor contributing to the alleged nuisance;

The state defeated numerous summary judgment motions and succeeded in striking defendants' affirmative defenses by assuring the court that this was not a product liability case. The state then turned around at trial and presented a product liability case, stripped free from any product-related defenses;

The state defeated summary judgment on the Manufacturer Immunity Act by contending that this case was not about the manufacture or sale of a product. But the state presented a case at trial premised solely and exclusively on evidence concerning manufacture and sale of a product;

The state failed to connect the evidence it promised -- such as defendants' advertising, marketing or sales activity -- to the state of Rhode Island.

The other arguments are concerned with the basic premise of the case...

The jury did not have to find that the defendants had done anything wrong;

By presenting a fictitious public nuisance theory, the state defeated defendants' efforts to join property owners, conduct property-specific discovery, and hold property owners responsible for not maintaining their properties. The court compounded the error by failing to instruct the jury about the responsibility of property owners to properly maintain their property,

...and with assorted technical legal errors that may have been made...

Opening and closing arguments given by counsel for the state were so inflammatory and prejudicial that a new trial is necessary;

The State impermissibly sought to hold defendants liable for exercising their First Amendment rights to belong to trade associations, express their opinions and communicate with public officials;

The state convinced the court to delay its agency ruling for almost a year, promising additional evidence to legitimize the state's use of Lead Industries Association (LIA) evidence. No such evidence ever materialized at trial. It was only after the LIA information had been conditionally admitted that the state conceded that it had no further evidence, and the court finally ruled in defendants' favor. The incurable evidentiary damage, however, already had been done. The state then compounded this error by arguing "LIA" and agency issues during its closing arguments

Lead Paint Cleanup Could be in the Billions

In today's Projo, Peter B. Lord reports on the damage determination phase of the Rhode Island lead paint trial...

State lawyers are asking a Superior Court judge to appoint a public health expert to plan and oversee a lead-paint cleanup program in Rhode Island that they say could cost between $1.37 billion and $3.74 billion.

The proposal is part of the final step in the state's public nuisance lawsuit against Sherwin-Williams, NL Industries and Millennium Holdings...

The state lawyers say their witnesses uniformly argued that the safest and most prudent policy is to remove all lead from homes.

"The single question that remains is not legal, but practical -- how should these defendants undertake abatement of the public nuisance in Rhode Island," the lawyers argued.

However, when contrasted against DuPont's $12.5 million dollar "settlement" in the same case, the billion-dollar damage figures raise a question or two.

The DuPont "settlement", according to an earlier Peter B. Lord Projo article, took the form of charitable contributions, including "$6.6 million to abate lead problems in 600 houses...funneled through the Children's Forum". According to Julie Creswell's New York Times article, Rhode Island Attorney General Patrick Lynch was willing to offer similar deals to the other defendants in the lawsuit...

Mr. Lynch said the other paint companies could have reached a similar conclusion, an assertion disputed by Philip H. Curtis, a partner at Arnold & Porter representing Atlantic Richfield.

The questions are...
1. If damages in this case are being determined by the public interest, why was DuPont allowed to settle for a fraction of the amount that the other companies may pay and address only a fraction of the homes (fewer than 1%) that the other companies must address?
2. If all of the companies had taken a DuPont-type deal, where would the billions that the state is now claiming is necessary for cleaning up lead paint have come from?

The Lead Paint Trial Continues

Julie Creswell of the New York Times had an excellent summary in Sunday's paper of the Rhode Island lead paint trial and how it may not be as finished as you think it is. In addition to detailing the history of the case and the pending issues involving possible appeals and setting damages, Ms. Creswell also reported on a mostly unnoticed aspect of the case that was heard today by the Rhode Island Supreme court...

As painful and expensive as the case's outcome could be for the paint companies, it also raises issues that go far beyond that industry. In particular, should state officials be allowed to essentially outsource public-health and public-nuisance cases to private legal firms that will try the cases free but take a piece of any recoveries made? Seven years ago, Sheldon Whitehouse, then Rhode Island's attorney general, agreed to those terms.

Defense lawyers representing the paint companies say that contingency-fee lawyers are interested only in racking up huge settlements, not in addressing the underlying problem. They have formally challenged the practice before the Rhode Island Supreme Court, which is scheduled to hear oral arguments on the issue tomorrow.

The official name of the case is State of Rhode Island v. Lead Paint Industries Association.

There's a slight quibble with Ms. Creswell's reporting. The use of contingency fees in this case is an issue, in part, because the lawyers didn't really provide their services for free. According to the Washington Legal Foundation, which has filed an amicus brief in the case,...

The State agreed that if it ever decided to drop the suit, it would be required to pay its attorneys on a quantum meruit basis; i.e., the value of all hours devoted to the case, at the attorneys' regular hourly rates....

[In their amicus brief], WLF also argued that the contract clause requiring a quantum meruit fee payment if the State seeks to abandon its suit effectively cedes all control of the suit to the lawyers -- because the Attorney General does not have at his disposal the millions of dollars required to satisfy that fee obligation.

What the WLF is pointing out is that after contingency-fee lawyers have invested so much time in a case, the state must continue to pursue it, not in the interest of the public good, but because it's the only way to pay off the lawyers without bankrupting the Attorney General�s office.

There's another dimension to this problem raised in the WLF brief...

WLF argued that the private attorneys handling the case for Rhode Island have an irreconcilable conflict with the State because it is in their interest to maximize any damage award paid by the defendant -- the larger the award, the larger the fee they will receive. WLF noted that a damage award based on the cost of removing all lead paint would be vastly larger than an award based on the cost of ensuring that painted surfaces on older buildings are kept intact. WLF argued that the decision of the attorneys to seek the former remedy -- despite the views of the Rhode Island legislature and virtually all scientists that the latter remedy is far better from a public health standpoint -- can only be explained by the attorneys' financial interest in maximizing their own fees.

In other words, since contingency fee lawyers are compensated based of damages awarded, they have an incentive to advocate (in the name of the state) for whatever is most expensive, not for what is most effective.

A third problem with states hiring contingency-fee layers to pursue class-action cases is described in detail in an amicus brief filed by the United States Chamber of Commerce. Remember the cronyism that everyone was upset about after the nomination of Harriet Miers to the Supreme Court? Well, according to the Chamber of Commerce, it runs rampant through the world of public contingency fee litigation. Their amicus brief lists 7 cases in 7 different states (list) where Attorney Generals made either their political donors or their former law firms rich by farming out contingency fee cases.

Unfortunately, Rhode Island does not seem to be immune to this. Jack McConnell, the lead lawyer in the lead paint case, is a big donor to the Rhode Island Democratic Party. Should the Attorney General be using his office to help enrich big Democratic donors?

Finally, one other campaign contribution of interest has been brought to Anchor Rising�s attention. Last summer, paint manufacturer DuPont "settled" their part of the case for donations totaling $12.5 million dollars to be given to various charities. Not everyone involved in the DuPont agreement, however, agrees that "settling" describes the final result. Here is Dupont's position, as quoted in the Times...

A spokeswoman for DuPont, Mary Kate Campbell, said, "When you look at the terms of the understanding that we reached with the Rhode Island attorney general, the attorney general and the state of Rhode Island got nothing. Nor did any of the outside lawyers."

But is it true that the Attorney General got nothing? Last December, after the case was "settled", a lawyer by the name of Bernard Nash gave a $1,000 campaign contribution to Rhode Island Attorney General Patrick Lynch. Mr. Nash works for the law firm of Dickstein, Shapiro, Morin & Oshinsky. Mr. Nash's firm is listed on a website called the "Dupont Legal Model" as a "Challenge Award Winner" with Bernard Nash listed as an "Engagement Partner"

Here's how the Dickstein website describes their relationship with DuPont...

DuPont continues to rely on Dickstein Shapiro's attorneys for a competitive edge in resolving complex public policy and litigation matters, and recently recognized the Firm as one of the best among its select network of Primary Law Firms and Service Providers.

Should an Attorney General really be taking a $1,000 contribution from a member of a law firm involved with a corporation that just settled a multi-million dollar case with his state?

Continue reading "The Lead Paint Trial Continues"

Moving Beyond Loyalty to the Rule of Law Mixes Law & Politics

One of the most powerful long-term benefits of the Senate hearings for Chief Justice Roberts and Justice Alito was that the American people were reintroduced to the proper and limited role of the judiciary as envisioned by our Founders. In other words, conservatives were not simply seeking to confirm judges who will be activists - albeit conservative ones - from the bench.

This proper role for judges was discussed last year when Terry Eastland wrote an editorial entitled Chief Justice Roberts: The distinction between law and politics that the Judiciary Democrats do not respect lies at the heart of Roberts's approach to judging, in which he said:

On the final day of the Roberts hearings, Sen. Richard J. Durbin of Illinois tried one last time: "If you've made one point many times over...the course of the last three days," he told the judge, "it is that as a judge you will be loyal and faithful to the process of law, to the rule of law." But "beyond loyalty to the process of law," he asked Roberts, "how do you view [the] law when it comes to expanding our personal freedom?...That's what I've been asking."

And so, in various ways, had Durbin's Democratic colleagues been asking about such matters--ones "beyond loyalty" to the rule of law. In response to Durbin, Roberts stuck to the point he had indeed made "many times over." Reframing the senator's question so as to reach the core issue, Roberts said, "Somebody asked me, you know, 'Are you going to be on the side of the little guy?' And you obviously want to give an immediate answer. But as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that 'I'll look out for particular interests.'...The oath is to uphold the Constitution and laws of the United States, and that's what I would do."

That exchange crystallized the fundamental difference between John Roberts and the eight Democrats on the Senate Judiciary Committee. The Democrats believe a good judge will move "beyond loyalty" to the rule of law, if necessary, and seek to advance certain political outcomes--in Durbin's question, the expansion of personal freedom. Roberts dissents: He believes a good judge will distinguish between law and politics and stick resolutely to the law, regardless of the result...

As for just how Roberts will go about interpreting the law--and thus carrying out his oath--his testimony last week confirmed his earlier observation that he does not have "an overarching judicial philosophy."...

There is unease among some conservatives as to how Chief Justice Roberts will turn out. Yet it must be said that Roberts has made emphatically clear his view that a judge must be restrained by the law--the rules, principles, customs, practices, and understandings that define it--and must not allow the law to be infused with the judge's own political views and personal values. In other words, the distinction between law and politics that the Judiciary Democrats do not respect lies at the heart of Roberts's approach to judging...

Roberts took care on numerous occasions to emphasize the importance of the distinction between law and politics as it relates to judging. For example, in response to Lindsey Graham's question about what the judge regarded as the biggest threats to the rule of law today, Roberts identified only one threat--the "tendency on behalf of some judges to take . . . [their] authority and extend it into areas where they're going beyond the interpretation of the Constitution, where they're making the law"--the province of elected officials. He observed: "Judges have to recognize that their role is a limited one. That is the basis of their legitimacy. I've said it before and I'll just repeat myself: The Framers were not the sort of people, having fought a revolution to get the right of self-government, to sit down and say, 'Let's take all the difficult issues before us and let's have the judges decide them.' That would have been the farthest thing from their mind."

The failure of the Judiciary Democrats to applaud comments like these, their evident desire to have justices and judges who go beyond any loyalty to the rule of law to advance "progressive" visions, demonstrates how far their party has traveled since the middle of the past century, when Justices Robert Jackson and Felix Frankfurter still sat on the Court. Jackson (whom Roberts admires, by the way) and Frankfurter sought to preserve the judiciary "in its established but limited place in American politics," wrote Arthur M. Schlesinger Jr. in 1947. But Hugo Black and William O. Douglas aimed to settle particular cases, Schlesinger said, "in accordance with their own social preconceptions"--such that, as a Yale law professor of that era said, "the less favored in life [would] be the more favored in law." By the end of the Warren Court, political judging had become the norm for most Democrats. So it has been ever since, and so it is today that a nominee committed to judicial restraint like Roberts received the reception he did from the law firm of Leahy, Kennedy, Feinstein, Biden, Schumer, Feingold, and Durbin...

Continue reading "Moving Beyond Loyalty to the Rule of Law Mixes Law & Politics"

Elaborating Further on the Constitutional Principle of Federalism

Discussing the recent Supreme Court decision on Oregon's assisted suicide law, the Wall Street Journal editorial entitled Federalism, a la Carte (available for a fee) states:

Supreme Court watchers can be forgiven if they thought they were in a Twilight Zone episode yesterday as they read the 6-3 opinion upholding Oregon's assisted-suicide law against attempted federal encroachment. The High Court's liberal wing, joined by Sandra Day O'Connor and Anthony Kennedy, has suddenly discovered the Constitutional virtues of federalism.

Meanwhile, Justices Antonin Scalia and Clarence Thomas, along with Chief Justice John Roberts, argue in favor of the broad grant of federal power that the Attorney General was seeking in Gonzales v. Oregon. Count us with the federalists in this one, even if they are of the born-again variety.

The case concerned the Bush Administration's attempt to use the 1970 Controlled Substances Act to invalidate an Oregon statute passed in the 1990s that has allowed about 200 state residents to kill themselves with a doctor-assisted barbiturate cocktail. The state's voters have twice endorsed the statute in referendums. But former Attorney General John Ashcroft tried to block the statute on grounds that the drugs the state allowed to be used for the suicide had been abused under federal law.

Writing for the majority, Justice Kennedy unloads a paean to states' rights worthy of the folks at the Cato Institute. [See page 6 here.] The federal statute "manifests no intent to regulate the practice of medicine generally," he writes, and such "silence is understandable given the structure and limitations of federalism, which allow the States 'great latitude under their police powers to legislate to the protection of the lives, limbs, health, comfort, and quiet of all persons.'"

That sounds good to us, since a policy on assisted suicide is profoundly about health and local police powers. We don't favor assisted suicide as a policy, especially as evidence has grown about the way it has been abused to become euthanasia in Europe. But in the American system, there's no good reason that Washington should be able to trump states' rights in the matter.

...The Court's majority holds that the federal law in question did not give the Attorney General the authority to determine what constitutes "legitimate medical practice" for the entire country, but was something for the states to decide.

In his characteristically caustic dissent [see page 34 in above link], Justice Scalia zeroes in on the word "legitimate," and says it is a "naked value judgment" for the Court to decide that somehow the AG lacks such authority because the case involves a practice (suicide) the liberals presumably endorse. And he has a point, insofar as Justice Kennedy's opinion jumps through logical hoops to square this decision with so many of its previous cases upholding federal power against the states...

In his own brief dissent [see page 59 in above link], Justice Thomas cuts to the heart of the hypocrisy, pointing out that a mere seven months ago five of the six Justices in the majority in Oregon found broad federal authority under the same Controlled Substances Act to forbid the growth of medical marijuana, overruling a California law permitting the practice in Gonzales v. Raich.

Justice Thomas had argued for a more-limited federal authority in Raich, but in Oregon he seems to have cast what amounts to a protest vote for the minority. "I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure," Justice Thomas writes. "But that is now water over the dam." In other words, he's not about to join the Court's liberals in ignoring their own precedents simply to get to their favored policy conclusion.

We sympathize with Justice Thomas's suggestion that this is another case of results-oriented jurisprudence in federalist drag. But then again, even liberals come to the right conclusion once in a while. And if this case has led them to have greater respect for state prerogatives on profound cultural issues that ought to be settled by voters, rather than judges, so much the better for our democracy.

...Results-oriented jurisprudence isn't any more admirable from the right than it is from the left.

In a subsequent letter to the editor (also available for a fee), Roger Pilon of the Cato Institute responds to the above reference to the Cato Institute and offers a clarification about the difference between federalism and states' rights:

In an otherwise excellent editorial commending the Supreme Court for rejecting a federal challenge to Oregon's Death With Dignity Act...you write that "Justice Kennedy unloads a paean to states' rights worthy of the folks at the Cato Institute."

We appreciate the ink, of course, but pause simply to note that "federalism" is not quite the same as "states' rights." Rather, it is at bottom about dual sovereignty concerning enumerated and thus limited powers -- and hence about pitting power against power for the sake, ideally, of liberty. The sad history surrounding "states' rights" points to the difficulty often of achieving that ideal. But more often federalism, or dual sovereignty, affords liberties unavailable in a unitary system, as the Oregon case illustrates. Thus, we stand rather less for states' rights than for federalism, a principle at the heart of the Constitution.

Mark Moller of the Cato Institute offers further commentary on the case, with particular attention to Justice Thomas' dissenting opinion.

Reflecting on Justice Alito's Confirmation Hearings: Not All Law is Politics in Robes

In a January 14 Wall Street Journal article entitled Not All Law is Politics in Robes (available for a fee), Jonathan Adler offers these comments:

...Sen. Joseph Biden suggested in frustration that the Senate scrap confirmation hearings and simply debate the nominee's decisions as if they were considering legislation.

Mr. Biden's remarks are symptomatic of a larger problem: the assumption that judicial nominees are politicians with policy views that they will -- and should -- impose from the bench. This assumption is most brazenly made when interest groups characterize nominees as "for" or "against" specific policies...

This is not an entirely new phenomenon...Yet the scale of activist involvement in judicial nominations today is unprecedented...It doesn't hurt, too, that a high-profile campaign to block (or support) a Supreme Court nominee is an effective way to raise funds.

For most groups, opposition to Judge Alito is purely result-oriented...

Journalists have also treated judicial nominees like political candidates. Several media outlets conducted quantitative analyses of Judge Alito's decisions, detailing how often he held "for" or "against" a given side. Instead of analyzing his reasoning, and the extent to which it adhered to or departed from applicable precedent, the analyses tallied his opinions based upon their results...These analyses, in turn, were relied upon by senators seeking to tar Judge Alito as "for" or "against" given causes.

Setting aside the methodological problems...such analyses are not particularly probative of judicial fitness...The relevant question is not who won or lost but whether the judge applied the law in a neutral and consistent manner...

Viewing judges as life-tenured politicians who get to impose their own policy preferences furthers the downward spiral of judicial politicization. To be sure, judges themselves are not blameless. The Supreme Court's willingness to inject itself into controversies traditionally resolved by the political branches of government only encourages interest groups to devote resources to shaping the federal bench.

Reversing the trend will be difficult. In today's political climate, to say that the judiciary should not resolve an issue is itself viewed as taking a side. Ironically, the same senators who worry that Judge Alito shows insufficient respect for the political branches are aghast that he might leave some thorny issues for the elected branches to sort out...

...Judge Alito stressed that the process of judging -- the exercise of judgment rather than will -- is more important than a specific result. His testimony was a forthright reminder that not all law is politics in robes...

Which is why Wendy Long wrote the following in Justice Alito: What It Means:

The confirmation of Justice Alito is a great moment for the country for two reasons.

One: the triumph of quality. We have a new Justice with outstanding qualifications and experience, proving that the demagogues of the liberal left can no longer 'Bork' such outstanding nominees. The process is still nasty, and the demagogues still try their hardest, but the partisan judicial filibuster has failed...it is clear that his attackers are the real extremists.

Two: the triumph of the philosophy of judicial restraint. Americans are appreciating the virtue of judicial modesty and respect for democracy in our courts. The last few years, Americans have grown increasingly frustrated with out-of-control judges imposing a leftist agenda on them through judicial activism...Justices like Chief Justice Roberts and Justice Alito hold the promise of greater faithfulness to the Constitution and the laws enacted by the people through their elected representatives. Today, a significant step has been taken in restoring American self-government.

Re: That's Our Chafee

On Monday evening, Justin wrote�

I've been a little surprised at the intense interest in Senator Chafee's vote on [Samuel] Alito. From conservatives' standpoint, the only intriguing turn of events would have been a "yes" vote on the nomination and the questions that it would have raised about whether Chafee might make further efforts to court us.

Speaking as one conservative who was very interested in the nomination of Justice Alito, let me try to explain my (ultimately dashed) hopes.

I had held out hope � false hope, it turns out � that Senator Chafee was an unwitting prisoner inside of the liberal echo chamber. If the Senator is surrounded by typical Rhode Island politcos, then the Senator must usually be surrounded by people who blame the weakness of Rhode Island�s Republican party on the Republican association with conservatism and are thus unwilling to advance conservative ideas and policies.

Was it unreasonable to believe that Senator Chafee�s liberal voting record was, to some degree, the result of a lack of interaction with conservative ideas? A week ago I would have said not necessarily. Justin, I believe, would have replied "you�re kidding yourself" -- and been right.

The Alito nomination was too big to be contained inside of the echo chamber. To many conservatives, Supreme Court nominations are the #1 issue for electing a President. Conservative Rhode Islanders met with the Senator and made their case for confirming Alito; outside voices made their way past the usual filters. And with Samuel Alito clearly qualified to sit on the Supreme Court, the discussion would move right to constitutional issues, to ideas about the role of the courts, and to ideas about the role of government in general. Maybe Senator Chafee would gain a fresh perspective on some important ideas he tended to too quickly dismiss.

On one side, there was a Supreme Court nominee who had a commanding knowledge of the law, a record of adherence to precedent, and who had been praised by every law clerk he had ever employed and every judge he had ever served with. On the other side, there was little more than the usual boilerplate liberal shrieking.

Ultimately, the boilerplate mattered more to Senator Chafee than any real ideas. All that really mattered was contemporary liberalism�s visceral fear of change, manifest in a desire to forever freeze abortion law in its 1973 form, no dissent tolerated. To avoid appearing to have applied a litmus test, Senator Chafee tried repeating some other liberal boilerplate, that he may well believe to be meaningful.

But the repetition was disingenuous. On the issue of the environment, the fact Judge Alito does not believe that the interstate commerce clause is an unlimited grant of power to Congress was strectched by the Senator to become a threat the environment. And on the issue of executive power, what Judge Alito had said was so non-controversial, the Senator had to misquote it to make it sound controversial.

Now, I don't see how it's reasonable to ever expect anything different from Senator Chafee. The Senator can always be counted on to dismiss whatever honest debate the right brings to a problem and, instead, base his decisions on the loudest hysterics coming from the left.

Where Senator Chafee has Gone "Off the Reservation"

In addition to being the only Republican Senator to vote against the confirmation of now-Justice Alito, Senator Chafee has opposed President Bush and--more often--conservative ideals on the following substantive matters. (All links are to data provided by ProjectVoteSmart. An index of Sen. Chafee's complete voting record is here).

Presidential Appointments:

Voted against nomination of Judge Priscilla Owen.
Voted against nomination of Judge William Pryor.

Domestic Issues:

Voted against cloture on debate on the Federal Marriage Amendment Bill in 2004, thus upholding a filibuster.
Voted against the provision that allowed for opening up ANWR to oil exploration and drilling.
Voted against the Firearms Manufacturers Protection bill that limited civil liabilities against gun makers--twice.
Voted against the Unborn Victims of Violence Act 2004 that would have made it a criminal offense if a "fetus" is injured or killed while carrying out a violent crime on a pregnant woman.
Voted for the Medicare Prescription Drug Benefit (thus supporting the President).

Foreign Policy:

Voted against the use of military force against Iraq.
Voted for an attempt to make members of the US Military subject to the International Criminal Court.
Voted against an amendment that prohibits any employee of the Federal government from holding a security clearance for access to classified information if they disclose such information to unauthorized persons (say, to the NY Times).

Finally, of course, he voted against the President in the 2004 election.

To be fair, there are many important issues in which Sen. Chafee has been in line with many conservatives or the President. For instance, there can be little doubt that he's a free-trader. However, as can be seen, on substantive issues he is just as likely to bolt the President as he is to join him.

Olympia Snowe Votes FOR Alito

Contrast Maine "RINO" Sen. Olympia Snowe's reasoning for supporting the nomination of Judge Alito to that put forth by Senator Chafee for opposing Judge Alito (via Bench Memos).

WASHINGTON, D.C. - U.S. Senator Olympia J. Snowe (R-ME) today announced that she will vote to confirm the nomination of Judge Samuel Alito to be the next Associate Justice of the United States Supreme Court. Snowe released the following statement:

"This nomination presented me with a close and difficult decision. It was only after a careful, full, and fair review of Judge Alito�s judicial record, as well as the role of the Senate and the founding fathers� intent for the confirmation process, that I have concluded I will vote to confirm him to the Supreme Court.

�While I have several concerns with this nomination, history has consistently demonstrated that predicting how a justice will rule on a particular case is inherently unreliable. Therefore, I believe the most appropriate standard of review should include a comprehensive evaluation that measures intellectual ability, diversity of professional experience, and reputation for integrity and fairness. A nominee must also demonstrate a commitment to judging individual cases on their own merits and with an open mind, a mainstream judicial methodology and philosophy, and a respect for court precedents.

"Based on the totality of his qualifications, Judge Alito appears to meet these standards, as evidenced by the American Bar Association�s highest rating of �well-qualified,� as well as his judicial record and Senate testimony. The unprecedented statements of support from well-respected Circuit Court judges who have served with him � judges who were appointed by both Democrat and Republican presidents � also proved compelling.

�What we do here today will have a profound impact on preserving the integrity of the confirmation process � and I think each of us individually and collectively should take this responsibility seriously to achieve this goal.� {emphasis added}

[Full disclosure: While in the House of Representatives, then-Congresswoman Snowe nominated me to the U.S. Merchant Marine Academy, which I accepted.)

Jack Reed�s Reservations about the Free Exercise of Religion and His Vote Against Samuel Alito

Senator Jack Reed has announced his opposition to confirming Judge Alito to the Supreme Court and voted to filibuster the nominee. According to a statement by Senator Reed, first amendment concerns play a prominent role in his opposition�

The first amendment protects Americans' religious liberties through two clauses that work in tandem: the free exercise clause and the establishment clause. I worry that if confirmed, Judge Alito would upset the careful balance the Founders sought in constructing the first amendment. In fact, Judge Alito seems to interpret the establishment clause as a rarely applicable part of the first amendment. He applies the free exercise clause on a much broader basis, often interpreting establishment clause cases as free exercise cases. He seems to see a plaintiff's complaint of establishment clause violations as attempts to block the free exercise of religion.

In other words, Senator Reed opposes Judge Alito because he believes that Judge Alito believes too strongly in the free exercise of religion. An example of what this means comes from the Senator�s criticism of Judge Alito�s opinion in Child Evangelism Fellowship v. Stafford Township (2004).

CEF had requested permission to distribute materials in the Stafford schools, in the same way that other groups, including the Cub Scouts, the Ocean County Girl Scouts, the Long Beach Island Foundation of the Arts and Sciences, the Ocean County Library, Stafford Township Volunteer Fire Company #1, the Stafford Basketball Club, Pop Warner football, and the PTA, were allowed to distribute materials. However, the school administration denied CEF�s request (and denied CEF�s request to participate in a back-to-school night) arguing that religious organizations do not have the same rights of free speech and public access enjoyed by non-religious organizations.

Judge Alito -- and the panel of third circuit Judges who heard the case -- disagreed. Alito wrote an opinion stating that Stafford could not treat CEF differently from other organizations simply because CEF was a religious organization.

Senator Reed stands by the position of the school district; strict government regulation of religious organizations, to the point of banning religious organizations from public access granted to non-religious organizations, is permissible in the public sphere. Reed, apparently, thinks that treating religious organizations as the equals of non-religious organizations would upset his "careful balance".

Is the contrary view -- that religious organizations should enjoy the same freedom of speech enjoyed by non-religious orginazations -- really a radical position that justifies a filibuster? Is Senator Reed really representing Rhode Island when he embraces discrimination based on religious beliefs?

Filibuster Rejected, Full Senate Vote on Alito to be Held Tommorrow

According to the Washington Post's Campaign for the Supreme Court blog, the attempt to filibuster the Alito nomination has been officially rejected by the Senate by a vote of 72-25. As to what follows...

A vote by simple majority to confirm in the full Senate is expected about 11 a.m. tomorrow, with a swearing-in to follow shortly, possibly allowing Alito to attend the State of the Union Address as Justice Alito.

Chafee to Vote No on Alito

From Jack Perry on the Projo's 9-to-5 blog...

U.S. Sen. Lincoln D. Chafee announced this morning that he will vote against the nomination of Judge Samuel A. Alito Jr. to the Supreme Court.

Chafee Decision on Alito to be Announced at 10AM

From Jack Perry of the Projo's 9-to-5 blog...

U.S. Sen. Lincoln Chafee has scheduled a press conference this morning to announce how he will vote on the nomination of Judge Samuel A. Alito Jr. to the United States Supreme Court.

The Republican senator plans to announce his decision at 10 a.m. in his office on Westminster Street.

Chafee Misquotes Alito to Justify his �No� Vote

In his statement explaining his vote against confirmation of Samuel Alito to the Supreme Court, Senator Lincoln Chafee misquotes an answer given by Judge Alito on the subject of executive power. Here is Senator Chafee�s version�

Judge Alito was also asked ��is it possible under your construct that an inherent Constitutional power of the President could, under some analysis or some case, override what people believe to be a Constitutional criminal statue?� Judge Alito responded that this was possible noting a �possibility that that might be justified�.

The selective quotes presented by the Senator leave the impression that Judge Alito has already decided that the Constitutional power of the President can override a Constitutional statute.

That is not what Judge Alito said. Here is the full exchange, involving Judge Alito and Senator Russell Feingold, as transcripted in the Washington Post�

FEINGOLD: But it is possible under your construct that an inherent constitutional power of the president could, under some analysis or in some case, override what people believe to be a constitutional criminal statute?

ALITO: I want to be very precise on this. What I have said -- and I don't think I can go further than to say this -- is that that situation seems to be exactly what is -- to fall exactly within that category that Justice Jackson outlined, where the president is claiming the authority to do something, and the thing that he is claiming the authority to do has been explicitly disapproved by Congress.

So his own taxonomy contemplates the possibility that -- says that there is this category, and cases can fall in this category. And he seems to contemplate the possibility that that might be justified.

What Senator Chafee attributes as Alito explaining his own position is really Alito explaining the view of Justice Robert Jackson in the case of Youngstown Sheet & Tube v. Sawyer (1952). When Judge Alito (very cautiously) presents his own view, he explains that he does not necessarily concur with Justice Jackson on this issue�

ALITO: But I don't want to even say that there could be such a case. I don't know. I would have to be presented with the facts of the particular case and consider it in the way I would consider any legal question. I don't think I can go beyond that.

If this issue is as important to Senator Chafee as he claims that it is, then the Senator should have made a better effort to understand -- and present -- what Judge Alito actually said.

This is a perfect example of the source of the widespread disaffection with Senator Chafee. It�s not just the liberal positions that he takes (though that is undeniably part of it) but also the sloppy reasoning, like the above, used to justify those positions. Deference to liberal groupthink is not equivalent to taking a principled stand.

No Filibuster: Alito Vote to be Held on Tuesday

From the Associated Press, via Breitbart.com...

Supreme Court nominee Samuel Alito enjoys sufficient bipartisan support to surmount any Senate filibuster attempt by minority Democrats, Senate leaders said Friday.

A final vote making the New Jersey jurist the nation's 110th Supreme Court justice is scheduled for Tuesday, hours before President Bush gives his State of the Union address to Congress and the nation....

"Everyone knows there are not enough votes to support a filibuster," Senate Democratic leader Harry Reid of Nevada said Friday. Senate Majority Leader Bill Frist, R-Tenn., said the same thing on Thursday. "A bipartisan majority will vote to confirm Judge Alito as Justice Alito," Frist said.

Alito's supporters already have those commitments, with 53 of the Republicans' 55-member majority and three Democrats; Robert Byrd of West Virginia, Tim Johnson of South Dakota and Ben Nelson of Nebraska, already publicly supporting his confirmation as the replacement for retiring Justice Sandra Day O'Connor.

Sen. Kent Conrad, D-N.D., also announced Friday he is "leaning in favor of voting for" the conservative judge. "It is clear to me that a majority of the American people and the people I represent support his confirmation," he said after meeting with Alito in his office.

As of the time of this posting, there is still no official word from Senator Lincoln Chafee as to how he will vote on this matter. Senator Jack Reed has already declared that he will vote against Alito.

Things That Make You Go Hmmmm...

From Jim Lindgren of the Volokh Conspiracy...

In response to a question from an audience of Northwestern law students and faculty, [Senator Richard] Durbin disclosed that the Senate leaders were counting votes, not only on Alito's nomination, but on the possibility of a filibuster: "At this point, I wouldn�t want to project whether we will have a filibuster.�

On the nomination more generally, Durbin said that one Democrat, Ben Nelson of Nebraska, had publicly indicated that he would vote for Alito, and one undisclosed Republican Senator had privately indicated that he or she would probably vote against Alito.

Projo Editorial Board: "Confirm Samuel Alito"

The Projo's editorial board has officially come out in favor of confirming Samuel Alito to the Supreme Court...

There is little in his record that suggests extremism. On the contrary, Mr. Alito seems a thoughtful and rather self-effacing jurist, who has attempted to perform his duties within the constraints of precedent and legitimate judicial power.

Nothing in the Senate's recently concluded nomination hearings cast doubt on his character or qualifications. Indeed, his modest demeanor and informed answers made him look much better than many of his pontificating questioners, from both sides of the aisle....

Given his judicial temperament and impressive r�sum�, and the absence of anything in the vetting process strong enough to disqualify him, the Senate should confirm Mr. Alito.

Let's give credit to the board for basing their decision on Judge Alito's testimony at the confirmation hearings, and not on their pre-conceived notions about Judge Alito.

RI Republicans: Don't Take the Confirmation of Samuel Alito for Granted

Despite the climate of optimism surrounding the nomination of Samuel Alito to the Supreme Court, the Rhode Island Republican party is encouraging its members not to take anything for granted. In this month�s edition of the RI Republican Newsletter, editor Dave Talan encourages Rhode Island Republicans to �speak out on the Alito nomination� and make their position known to Senator Lincoln Chafee�

Very soon, the U.S. Senate will vote on the nomination of Samuel A. Alito to the Supreme Court. We need to continue lobbying Senator Chafee to vote the right way on this (i.e. to confirm Judge Alito; to insist on a vote by the full Senate; and to prevent a Democratic filibuster by any means necessary). Call Sen. Chafee's local office at 453-5294. Or you can send him an E-mail by going thru his web site chafee.senate.gov.

Also, the Rhode Island Republican Assembly (RIRA), Rhode Island�s largest conservative Republican organization, has sent a letter to Senator Chafee urging him to vote in favor of Judge Alito�

President George W. Bush has nominated a brilliant jurist and scholar with a proven fidelity to the Constitution of the United States. Judge Samuel Alito has an impeccable resume, bona fide professional credentials, and has demonstrated that he has a clear understanding of the role of the judiciary in American life.

The Constitution gives the United States Senate the power of �advice and consent�. We are confident that Judge Alito�s exceptional legal expertise and fair-minded temperament will not be found wanting. Hence, the Senate has an obligation to give Judge Alito a fair hearing and an up or down vote.

Judge Alito is an objective, brilliant and honorable individual. We request that you join fellow Senators in allowing for a fair up or down vote, which we are confident will lead to his confirmation. Additionally, we hope that you will not participate in any Democrat led filibuster, which is in direct opposition to the express language of the US Constitution, which requires only a simple majority vote by the Senate to confirm judges. Furthermore, we ask that you vote in the affirmative during his confirmation vote.

Rhode Island Alito Supporters Meet With Senator Chafee

After meeting with members of Rhode Islanders for Judge Alito and the Rhode Island Judicial Confirmation Network on Friday afternoon, Senator Lincoln Chafee stated that still he has not taken a public position on how he would vote on the nomination of Samuel Alito to the Supreme Court, but that he has 99% of the information he needs, and will announce his position before the vote is taken, possibly by the middle of next week. Senator Chafee believes that it is unlikely that the nomination will be held up by a filibuster.

Eugene Bernardo of Rhode Islanders for Judge Alito praised Senator Chafee for taking his responsibilties seriously, looking at the nomination with a fair and open mind, and conducting a dignified process.

Joseph White, also of Rhode Islanders for Judge Alito, described the meeting with Senator Chafee as a "brainstorming session" with particular emphasis on the areas of constitutional law of importance to the Senator; the 1st amendment (interpretation of the the establishment clause), the 14th amendement, the commerce clause (finding an appropriate balance between what is and what is not regulated), and Roe v. Wade.

When asked about the particulars of the Judiciary Committee's confirmation process, Senator Chafee responded that issues like the Concerned Alumni of Princeton "could have been dismissed more quickly" and more important issues, particularly constitutional issues, could have been discussed. (Senator Chafee produced a copy of the constitution from his jacket pocket at this point). Senator Chafee noted that some of his fellow Senators had done a good job, but a few had "gone off on filibusters, talking too much".

Mr. White added that it was obvious Samuel Alito was very similar to John Roberts, who was confirmed by the Senate to the Supreme Court earlier this year, and that President Bush had done a great service for the American people by finding two great Supreme Court nominees.

The Testimony of Samuel Alito's Colleagues, Part 2

After the American Bar Association Panel presented Samuel Alito's rating of well-qualified to the Senate Judiciary Committee, testimony was heard from the Judges who have served with Samuel Alito on the Third Circuit Court of appeals. Here are a few snippets�

From Judge Edward Becker (appointed to the 3rd Circuit Court of Appeals in 1981 by President Ronald Reagan)...

The Sam Alito that I have sat with for 15 years is not an ideologue. He's not a movement person. He's a real judge deciding each case on the facts and the law, not on his personal views, whatever they may be.

He scrupulously adheres to precedent. I have never seen him exhibit a bias against any class of litigation or litigants.

From Judge Anthony Scirica (appointed to the 3rd circuit in 1987 by President Ronald Reagan)...

Judge Alito approaches each case with an open mind and determines the proper application of the relevant law to the facts at hand. He has a deep respect for precedent. His reasoning is scrupulous and meticulous. He does not reach out to decide issues that are not presented in the case.

From Judge Maryanne Trump Barry (appointed to the 3rd circuit in 1999 by President Bill Clinton)...

Now, of course, in 1990 Judge Alito became Judge Alito. And you have heard the most glowing things said about Sam as a colleague on our court. I embrace every glowing statement.

Let me just conclude with this: Judge Alito is a man of remarkable intellectual gifts. He is a man with impeccable legal credentials.

He is a fair-minded man, a modest man, a humble man. And he reveres the rule of law.

From Judge Ruggero Aldisert (appointed to the 3rd circuit in 1968 by President Lyndon Johnson)�

And as has been heard several times in this hearing, Justice O'Connor, in 1995, described her approach to judging. What she said then is even more important today. And I quote, "It cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis. The only way for judges to mediate these conflicting impulses is to do what they should do anyway: Stay close to the record in each case that appears before them and make their judgments based on that alone."

And knowing Sam Alito as I do, I am struck by how accurately these words also describe the way in which he has performed his work as a United States circuit judge.

And that is why, with utmost enthusiasm, I recommend that he be confirmed as an associate justice on the Supreme Court.

From Judge Leonard Garth (appointed to the 3rd circuit in 1973 by President Richard Nixon)...

In my opinion, Sam is as well qualified as the most qualified justices currently sitting on the Supreme Court.

A word about Sam's demeanor is in order. Sam is and always has been reserved, soft spoken and thoughtful. He is also modest, and I would even say self-effacing. And these are the characteristics I think of when I think of Sam's personality. It is rare to find humility such as his in someone of such extraordinary ability.

The Testimony of Samuel Alito�s Colleagues, Part 1

After Supreme Court nominee Samuel Alito completed his testimony before the Senate Judiciary Committee, several panels of witnesses presented testimony to the committee. Here�s a quick summary of the first two panels, as transcripted in the Washington Post.

First, a panel representing the American Bar Association�s Standing Committee on the Federal Judiciary testified about the �well-qualified� rating -- the highest rating awared by the ABA -- given to Judge Alito. In addition to describing their procedure for arriving at the rating, they commented on the Vanguard Case�

We also interviewed an incredibly broad array of judges -- virtually all of the members of the 3rd Circuit, virtually all of the district judges that were in New Jersey and were in Philadelphia. We interviewed a number of the other judges in the 3rd Circuit who were on the district court who had contact with Judge Alito.

And what we learned from them almost unanimously was that he is held in incredibly high regard with respect to the issues that this committee, the ABA's committee, looks at: his integrity, his judicial competence and his judicial temperament.

And on the issue of the recusals, everyone thought that he has the highest integrity and that these few cases that slipped through do not diminish his integrity.

�and on the Concerned Alumni of Princeton�

We were very concerned about that listing, knowing that membership in that organization would put him, perhaps, on an extreme that we would be uncomfortable with.

His answers to our committee were very similar, if not identical, to the answers to your committee. He did not recall when he became a member or even what he did. He didn't recall ever attending any meetings or reading any publications.

He did recall that he joined the organization because of the university's attempt to remove ROTC�.

But I should say, in fairness, we were very concerned about the membership of that and what happened. And all of the people we spoke to on the courts, women and minorities, people who he had worked with, people who had sat on panels with him side by side in issuing judicial opinions, almost universally said that they saw no bigotry, no prejudice.

In others words, after a thorough investigation, the ABA determined that there was no merit to either of these issues.

"Laffey Denounces Shameful Senate Hearing, Says Alito Should Be Confirmed�

Republican Senatorial Candidate Steve Laffey has come out in support of the confirmation of Samuel Alito to the United States Supreme Court�

Today, Cranston Mayor and U.S. Senate candidate Stephen Laffey declared his support for the confirmation of Samuel Alito to be an Associate Justice on the U.S. Supreme Court. While commending the qualifications of Judge Alito, Mayor Laffey also denounced the character assassination spectacle at the Senate Judiciary Committee, and urged Rhode Island�s U.S. Senators Jack Reed and Lincoln Chafee to support the nominee.

Mayor Laffey commented, �Over the course of three full days of extensive public hearings, we now clearly know two things. First, Judge Alito is a person with tremendous legal credentials, an open and independent mind, and an incredibly reasonable temperament. Second, the hearings demonstrate once more what is wrong with Washington today, where character assassination and tawdry treatment is all too common.�

Laffey continued, �Judge Alito has an inspiring personal story of rising up from humble roots to live the American Dream. I believe he will be a fair and good member of the Supreme Court. I would urge Rhode Island�s two Senators to vote for Judge Alito�s confirmation, and reject the tactics of the liberal extremist groups and the hyper-partisan environment of Washington, DC.�

The Alito Nomination & A Local Case of Bush Derangement Syndrome

Over at RI Future, they're relying partially on distortions, partially on just making stuff up to advocate against Samuel Alito. Here's the distortion...

RI FUTURE: Sen. [Richard] Durbin asked Judge Alito, �John Roberts stated unequivocally that Roe v. Wade was the settled law of the land. Do you, Judge Alito, believe that Roe v. Wade is the settled law of the land?�

Unlike, John Roberts, Alito refused to say that Roe is the settled law of the land.

Here's Judge Alito's actual answer to Senator Durbin's question as transcripted in the Washington Post...

DURBIN: But let me just ask you this: John Roberts said that Roe v. Wade is the settled law of the land. Do you believe it is the settled law of the land?

ALITO: Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. So it's been on the books for a long time. It has been challenged on a number of occasions. And I discussed those yesterday.

And it is my -- and the Supreme Court has reaffirmed the decision; sometimes on the merits; sometimes -- in Casey -- based on stare decisis. And I think that when a decision is challenged and it is reaffirmed, that strengthens its value as stare decisis for at least two reasons.

First of all, the more often a decision is reaffirmed, the more people tend to rely on it. Secondly, I think stare decisis reflects the view that there is wisdom embedded in decisions that have been made by prior justices who take the same oath and are scholars and are conscientious.

And when they examine a question and they reach a conclusion, I think that's entitled to considerable respect. And, of course, the more times that happens, the more respect the decision is entitled to. And that's my view of that.

So it's a very important precedent...

DURBIN: Is it the settled law of the land?

ALITO: If "settled" means that it can't be reexamined, then that's one thing. If "settled" means that it is a precedent that is entitled to respect as stare decisis and all of the factors that I've mentioned come into play, including the reaffirmation and all of that, then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that way.

Judge for yourself if you think RI Future's portrayal is accurate.

Now, here's where RI Future just makes stuff up...

RI FUTURE: With Judge Alito on the Supreme Court, the count will be 5-4 to make abortion illegal.

We don't yet know how Justice Roberts will vote. In fact, by RI Future's logic, Justice Roberts is a vote in favor of keeping Roe because of precedent.

But forget that for a moment. And pretend that it's not Samuel Alito being nominated to the Supreme Court, but someone who has declared their intention to always vote pro-life, no matter what the facts of the case are. Now what's the hypothetical count in a Roe v. Wade case? Still at least 5 votes in favor of upholding the precedent -- John Paul Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. This majority reflects the fact that Justice Ginsburg, a vote in favor of upholding Roe, replaced Justice Byron White, who wrote one of the original dissents in Roe.

The errors in reading, errors in counting, and errors in logic show how unhinged the left has become in its attempts to defeat any Bush judicial nominee, no matter who it is.

If you are interested in the details of Samuel Alito's record of ruling according to the law -- and not according to personal feelings -- in abortion related cases, click here.

What is the Unitary Executive?

Here's how to understand the meaning of the term "unitary executive" being bandied about at Samuel Alito's confirmation hearing.

Suppose Congress decides that their campaign-finance laws aren't being enforced aggressively enough. To step up enforcement, they create a national police force to investigate campaign finance cases, granting it powers equivalent to those of the FBI. The chief of the Campaign Finance Police Force will be hired by and serve at the pleasure of the Senate Judiciary Committee. The Senate also creates an office of special prosecutors, outside of the US Attorney system, to take cases investigated by the new Campaign Finance Police to court.

Does Congress have the power to create this special police force, or to create its own police force to patrol the US border with Mexico, or to create its own agency to close down schools not conforming to the No-Child-Left-Behind Act? The answer is no. The American system of government is based on the idea that powers to make, enforce, and interpret the law must be divided amongst different groups of people.

Article II, section I of the Constitution states that...

The executive power shall be vested in a President of the United States of America.

The power to enforce the law is the integral component of executive power. The unitary executive means that Congress or the courts cannot grant themselves chunks of the executive's enforcement authority. They cannot act contrary to Article II's requirement that enforcement of the law be carried out through the branch of government headed by the President. This in no way implies that the President is above the law.

Lest you think that a unitary executive somehow automatically implies increasing the power of the government, please note that my argument from a year ago as to why WJAR-TV reporter Jim Taricani should not have been sentenced to home-confinement for refusing to disclose a source to a judge was, in part, a unitary executive argument. Taricani's case was prosecuted by a court-appointed special prosecutor. A special prosecutor beholden only to the judiciary, and not to any executive branch of government, should not have the power to enforce laws by threatening people with jail time.

Samuel Alito Opinions in Cases Involving Race

As an antidote to Senator Edward Kennedy's attempt to use Clintonian language parsing to distort the record of Samuel Alito, here are a few opinions written by Judge Alito in civil rights cases where he sided with plantiffs in civil proceedings and defendants in criminal ones. An unsigned editorial from the Washington Post provides an overview...

[Judge Alito] has sided with civil rights plaintiffs in cases involving race. He dissented from a decision barring a race bias lawsuit because of a statute of limitations -- not what you would expect from a judge unblinkingly keen to protect businesses from civil rights litigation. He has voted to overturn convictions because of racial manipulations of juries. And he declared unlawful the search of a car whose driver had been stopped because police were looking for two black men driving a black sports car following an armed robbery; such vague knowledge, he wrote, "could not justify arrest [of] any African-American man who happened to drive by in any type of black sports car."

The statute of limitations case was Zubi v. AT&T Corp (2000). Madhat Zubi sued AT&T, claiming that he had been fired because of race. The district court dismissed Zubi's suit on the grounds that he had waited too long to file suit. Alito disagreed with the dismissal on the grounds that the court had misinterpreted a recent change in the law extending the statute of limitations in race-discrimination cases from two to four years. The Supreme Court eventaully agreed with Alito's position. This was a clear-cut case of Judge Alito siding with a �little guy� versus the big, confusing Federal bureaucracy.

The jury case was Brinson v. Vaughn (2005). Curtis Brinson, an African-American, was convicted of murder by a jury after the prosecution used 13 out of 14 peremptory strikes to keep African-Americans off of the jury. The lower appeals court held that Brinson could not have been the victim of racial discrimination because "the victim, the perpetrator and witnesses [were] black". In his opinion, Alito declared this rationale �clearly wrong� and remanded the case to the trial court.

The unlawful search case was United States v. Kithcart (1998). Jesse Kithcart, an African-American, was stopped by the police about an hour after a series of robberies began and was eventually convicted of a firearms charge. The officier who made the stop testified that she stopped Kithcart because he was the first African-American male she had seen after hearing the reports of the robberies. Judge Alito held that evidence from the traffic stop was not admissible against Kithcart because being a black man driving a sports car an hour after a robbery occurs does not provide probable cause for a traffic stop...

The district court erred in concluding that there was probable cause to arrest and search Kithcart....The mere fact that Kithcart is black and the perpetrators had been described as two black males is plainly insufficient.

It is not a crime to drive-while-black in Samuel Alito�s America.

Samuel Alito & Vanguard

In a National Review Online article from about two months ago, Ed Whelan of the Ethics and Public Policy Center explained the details of the mutual fund case that has come to fascinate Supreme Court nominee Samuel Alito's detractors�

In Monga v. Ottenberg, a bankruptcy receiver sought to have a party's IRA assets (which included funds in a Vanguard account) made available to pay the bankrupt party's creditors. Vanguard was a party to the case because the bankrupt party sued it to prevent it from releasing his IRA funds to his creditors. In other words, Vanguard's only interest in the case was as a third party who held funds belonging to someone else � it was going to make them available either to the creditors or to the bankrupt party, but Vanguard had no interest in the funds. When the case went to the Third Circuit, Judge Alito, who owned some Vanguard mutual funds, joined two of his colleagues in unanimously dismissing the claims of the bankrupt party. In a desperate attempt to get one last bite at the apple, the bankrupt party claimed after the case had been decided that Judge Alito should have recused because he owned some Vanguard mutual funds�.

As several legal ethics experts have stated, Alito had no obligation to recuse because Vanguard didn't stand to benefit financially (or be harmed financially) as a result of the case. Vanguard was going to release the funds to someone; it was just a question of who got them. So Alito had no conflict of interest that required him to recuse.

We can count the American Bar Association�s Standing Committee on Federal Judiciary among the experts untroubled by this matter. The details of this case were well-known when the ABA -- who include �integrity� as well as �professional competence� and �judicial temperament� in their rating criteria -- unanimously voted to give Judge Alito their highest rating of �well qualified�.

The Samuel Alito 1984 Wiretap Memo

The Projo�s John E. Mulligan refers to a Senator Lincoln Chafee concern about a position taken by Supreme Court nominee Samuel Alito while he was working for the Justice Department�

Chafee said he therefore wants to know Alito's views on the Fourth Amendment to the Constitution, which restricts government searches and seizures....

He cited a 1984 memo in which Alito said that when the attorney general acts to protect national security -- even with illegal wiretapping -- he should be immune from lawsuits. Alito was at the time a Justice Department lawyer in the Reagan administration.

Alito�s expressed opposition to making the AG liable to lawsuits, however, was not an endorsement of an expansive view of executive wiretapping authority. As Senator John Cornyn explains in National Review Online�

Mitchell v. Forsyth had nothing to do with whether wiretapping was legal. The only question was whether the attorney general of the United States should be personally liable for money damages, or whether other remedies for wiretapping � such as injunctions, criminal liability, and the political process � were better options for checking the activities of government officials.

In other words, an attorney general would who abused his wiretap authority would face criminal penalties; he just couldn�t be sued for in civil court for monetary damages.

Supreme Court Justices Sandra Day O�Conor and John Paul Stevens agreed with Alito�s position. Ed Whelan has more details here.

Eminent Domain Reform Introduced to the Rhode Island House

State Representative Matthew McHugh (D-Charlestown/New Shoreham/South Kingstown/Westerly) has introduced a strong version of eminent domain reform to the Rhode Island House (House Bill 6725)�

Notwithstanding any other provision of the general or public laws to the contrary, no city or town, nor any political subdivision thereof shall exercise their power of eminent domain to acquire private residential property and then transfer it to a private developer for the purpose of improving tax revenue, expanding the tax base or for the sole purpose of promoting economic development.

Rep. McHugh�s eminent domain reform proposal is much clearer than the eminent domain proposal introduced last session which carved out significant loopholes and left plenty of room for Kelo-style land seizures.

Representative McHugh�s bill is based on an ordinance passed on August 9, 2005 by the Charlestown Town Council. The Charlestown ordinance is, in turn, based on the eminent domain reform language created by Cranston Mayor Steve Laffey in response to the Supreme Court's Kelo decision.

Direct Perspectives on Samuel Alito III

Anchor Rising continues its interview with Supreme Court nominee Samuel Alito's law school classmate Mark Dwyer and former law clerk Thomas Gentile. Mr. Dwyer and Mr. Gentile can be viewed on 10 News Conference, on WJAR-TV (Channel 10) this Sunday at 6:30 AM. To read Anchor Rising's earlier interview with former Alito law clerk Susan Sullivan, click here.

Anchor Rising: Give us legal laypeople a hint of what to look for in the confirmation hearings that will tell us about what kind of Supreme Court Justice Samuel Alito would be.

Mark Dwyer: You�ll see him be calm, collected and precise. I don�t know what the strategy is for when you say �I can�t answer that question because it may come before me someday� and when you say �look at my past opinions and here�s what I�ve said about that in the past�. I don�t know just where he�s going to draw that line. I guess Judge Roberts drew it in a pretty good place; he�s probably going to try to do about the same thing. But you will see him when he talks be precise in his answers. He will get clarification when the Senators, as they will, ask questions that don�t make much sense. He�s appeared in front of the Supreme Court and done a great job there. For him to appear in front of this group of Senators -- who are not as well versed in the subjects they�ll be asking about as are Supreme Court Justices when they talk to you -- is not going to be a big shock to his system. He is going to be fine. He going to perform, I predict, extremely well, show his intelligence and show what a nice guy he is.

Thomas Gentile: During the confirmation hearings, all of America will see Judge Alito�s facility for legal issues that have come before him in his 15 years on the court of appeals and are coming before the Supreme Court now. Judge Alito knows this stuff and he knows it cold. When I was a law clerk, there were times that Judge Alito would dictate opinions to his clerks off the top of his head -- complete with case cites and page cites. America will be impressed by the scope of his knowledge. America will also be impressed when it sees Judge Alito�s dedication to faithfully applying the law and to never having his personal opinions interfere with his legal decision making process.

AR: If you could tell people something you think will be lost in the fog of partisanship and the focus on judicial outcomes that we will certainly see in the next few weeks, what would it be?

MD: You�re going to hear a lot of Senators and certainly a lot of lobbyists involved in the process look at one opinion that Sam wrote and not pay attention to the reasoning about how he got to the ending. They�ll find one opinion in a particular area, be it abortion, the environment, or employee rights, one opinion they disagree with, and conclude from that one opinion that Sam is a danger to the country because he is anti-abortion, or anti-whatever. They will not be looking at the whole group of opinions he has written over 15 years. They won�t be looking at the group of opinions he has written in a particular area. They will look at the one they don�t like and try to make hay out of that by making this all a political process instead of an assessment of whether somebody is a restrained and fair judge. So watch for that. You�ll see people distort his record by focusing on the one case they don�t agree with and not explaining how the law made him get there.

TG: America has a choice here. It�s a choice about the role of the federal judiciary in our Constitutional democracy. If America wants the kind of Judge who decides cases, regardless of ideology, based on the law and the precedents and the facts of each case, then Sam Alito is the kind of judge they want sitting on the Supreme Court. If America wants judges who reach into their own policy preferences and create the outcome in cases they want to see happen, regardless of what the law requires, then Sam Alito is not the judge for them. I think when America watches the confirmation hearings, America will see that judge Alito respects the limited role of the judiciary in America�s constitutional democracy.

Direct Perspectives on Samuel Alito II

In modern politics, the loudest chatter heard about a Supreme Court nominee -- Samuel Alito included -- usually comes from those who know the nominee as little more than the sum of a paper trail. Anchor Rising was given one more opportunity (click here to read our earlier interview with former Alito law clerk Susan Sullivan) to supplement the paper trail by talking to people who know Judge Alito personally.

Mark Dwyer was Samuel Alito�s roommate at Yale law school. Mr. Dwyer is currently Chief of the New York County District Attorney�s Appeals Bureau. Thomas Gentile was a law clerk for Judge Alito in 1996-1997 on the Third Circuit Court of Appeals. He is currently a partner with the law firm of Lampf, Lipkind, Prupis, and Petigrow. Here�s what Mr. Dwyer and Mr. Gentile think about the man who will stand before the Senate Judiciary Committee starting next week�

Anchor Rising: Were you surprised when you heard that Samuel Alito had been nominated to the Supreme Court?

Mark Dwyer: Only in the sense that even the best person is a huge longshot to get that lone nomination that comes along. I�ve never known anybody who was better suited and who seemed pointed in that direction any more than Sam. He�s been fascinated by the court and by the appellate process and appellate law ever since college. And he obviously went through the steps that would make him a natural nominee. In that sense, it�s a perfect fruition of what he�s been doing his whole career. At the same time, you don�t expect lightning to strike the guy you know, because it's just against the odds.

Thomas Gentile: I agree completely. There is no question that Judge Alito is eminently qualified to sit on the Supreme Court. As soon as President Bush was elected back in 2000, you began to hear discussions of Judge Alito as possibly being a nominee to the Supreme Court when an opening came up. So in that sense, I wasn�t surprised. But on the same note, there was something very surreal about turning on my TV on the morning of October 31 and seeing my old boss standing up there with President Bush.

AR: To me, the toughest part of finding someone who will be a good Supreme Court Justice seems to be finding someone who�s got the ambition to want to sit on the highest court of the greatest nation on earth but also has the humility to respect legal precedent and decisions made by legislatures. Can you give us any insight into how you�ve seen Judge Alito combine these disparate impulses?

MD: You�re certainly right. It�s a hard thing to find. Sam plainly has them both, and it�s just a remarkable combination. In terms of his drive and ambition, ever since I knew him in college, and certainly when I was rooming with him in law school, he was the guy who was burning the midnight oil. He was studying, studying, studying. It wasn�t really labor to him because he loved the stuff. He loved learning what he was learning; it was so natural for him to enjoy all of that. He was really good at it. And all through his career, he put in that same kind of intense work/play in fooling around with the legal concepts in learning appellate law and being a great appellate judge. So he�s got that drive. Does he want to be on the Supreme Court, does he have that ambition? Sure. But even without that goal in mind, he was going to be doing that same stuff anyway, because it�s just so natural for him.

The humility part is so natural for him also. He is a shy, nice, pleasant guy. I know that from living with him for a couple of years, three years actually, it�s just inherent in his personality to be that kind of guy, to be respectful of everybody he�s dealing with including all the people he has to work with who aren�t as smart as he is and people who are as smart as he is. Everybody, whether a judge or in the clerks� office gets the same nice treatment from Sam Alito.

TG: I�ve worked in two of the biggest law firms in America for ten years and Judge Alito is, by far, the most brilliant legal mind I have ever encountered -- including all of my law professors at Harvard. But he couples that intellectual capacity with a judicial temperament and a humility in his approach to the law that uniquely qualifies him for the Supreme Court. He draws praise from the Judges that he sits with whether they were appointed by Republican Presidents or Democratic Presidents. The other judges on the Third Circuit Court of Appeals are pretty much unanimous in saying wonderful things about their colleague Sam Alito who has been nominated to the Supreme Court. When the judges write back and forth in opinions, including dissents, they�re never bitter, never angry, never caustic when Judge Alito is involved. They are very respectful. You will see opinion after opinion where other judges say �I respect tremendously what Judge Alito has written and I disagree on these grounds�. He fosters that atmosphere of judicial collegiality that I think sometimes is missing from the Supreme Court right now. That�s another reason why he�ll be an outstanding Associate Justice.

To be continued...

American Bar Association Gives Samuel Alito its Highest Rating

From the Associated Press via Breitbart.com�

Supreme Court nominee Samuel Alito received a unanimous well-qualified rating from the American Bar Association on Wednesday, giving his nomination momentum as the Senate prepares for confirmation hearings next week.

The rating came after a vote of an ABA committee and will be delivered to the Senate Judiciary Committee, which will launch Alito's confirmation hearings on Monday. Alito will face almost an hour of questioning from each of the 18 senators on the committee.

The ABA rating -- the highest -- is the same that Alito received back in when President Bush's father, George H.W. Bush, nominated him to the 3rd U.S. Circuit Court of Appeals.

David Letterman and Samuel Alito

Last month, Colleen Nestler asked an Arizona court for a restraining order to protect her from talk-show host David Letterman. Here is the basis of the request, according to USA Today�

[Nestler] wrote that she began sending Letterman "thoughts of love" after his show began in 1993, and that he responded in code words and gestures, asking her to come East.

Nestler said Letterman asked her to be his wife during a televised "teaser" for his show by saying, "Marry me, Oprah." Her letter said Oprah was the first of many code names for her and that the coded vocabulary increased and changed with time.

Judge Daniel Sanchez, who heard the case, shocked the world by granting a temporary restraining order against Letterman, but later quashed the order after a full hearing.

Now, suppose at a future time, Judge Sanchez is appointed to the Supreme Court. Would you consider this to be a fair representation of Judge Sanchez�s record...

Judge Daniel Sanchez ruled to make it more difficult for the mentally ill to be protected by restraining orders.

This is exactly the kind of "logic" -- logic that ignores the specific facts of a case -- that is being deployed against Supreme Court nominee Samuel Alito. Here is part of the text of the Coalition for a Fair and Independent Judiciary�s advertisement against Judge Alito, via the Annenberg School�s Factcheck.org website�

As a judge, Alito ruled to make it easier for corporations to discriminate.

The case referred to is Bray vs. Marriott, decided in 1997. After hearing the evidence, Judge Alito decided that plaintiff Beryl Bray had not proven that Marriott had discriminated against her. Bray only presented evidence of Marriott's failure to follow its internal notification procedures, not evidence of racial discrimination. Furthermore the employee promoted over Bray, according to evidence presented by Marriott, had stronger qualifications -- more training, experience at a larger hotel and experience supervising higher-ranking employees.

Judge Alito made it �easier for corporations to discriminate� only in the sense that he required that evidence of racial discrimination be provided before allowing courts to act upon claims of racial discrimination.

A Direct Perspective on Samuel Alito

Most efforts at evaluating the nomination of Samuel Alito to the Supreme Court have focused on parsing the Judge's record (too often looking solely towards the outcomes of cases while ignoring the legal reasoning used). Anchor Rising was provided with an opportunity to approach the question of what kind of Justice Samuel Alito would be from another direction; we had the opportunity to put a few questions to a person who has worked with Judge Alito. Below is a short interview with Susan Sullivan, a former law clerk for Judge Alito (1990-1991), now a solo legal practitioner in San Francisco, CA.

Anchor Rising: We are interested in asking you a few questions about Judge Alito because, as a member of Planned Parenthood and the ACLU, you have a resume that's different from many of Judge Alito's supporters. Do you believe that, as a Supreme Court justice, Samuel Alito would gave a fair hearing to the cases and arguments brought by organizations like Planned Parenthood and the ACLU?
Susan Sullivan: As a self described social progressive, (a registered Democrat, a pro-choice feminist who supports gay marriage, opposes the death penalty and supports gun control), I am not afraid to have Sam Alito as a Justice on the Supreme Court. Having worked closely with him, I never saw his personal or political views dictate an outcome in a case and I do not believe him to be intent on advancing a conservative political agenda. If he were a conservative zealot there would not be the decisions he has made with so called "liberal" outcomes. There are cases with "pro-choice" outcomes; there are cases favoring plaintiffs bringing discrimination suits, cases that ruled in favor of criminal defendants, or expanded a woman's rights to seek political asylum on the basis of gender. These are just not the results you would expect to see if he were a conservative ideologue.

AR: What would you say to your fellow liberals who oppose Judge Alito's nomination because they don't like the outcome of some of his decisions, regardless of the legal reasoning used?
SS: If George Bush had picked anyone other than Judge Alito, I would probably have the same response of suspicion, fear and distrust as many liberals have had to Judge Alito simply because he was selected by Bush. But because I worked closely with the Judge I do not believe he will reach results based on his own personal views. While, it does not sound very complimentary to say that we could do a lot worse, the reality is that with George Bush in charge, we really could do so much worse and end up with a real conservative ideologue and I find that to be really scary! That is in part why I have said that by opposing Judge Alito, we may be shooting ourselves in our own left foot. I cannot predict the future and there are no guarantees but I'm confident that Judge Alito will be fair and impartial, and that is more important me than having a political ideologue of any stripe on the Supreme Court.

Second, we ask juries and judges every day to not judge someone until after they have heard all the arguments and seen the evidence. Some groups have already declared their opposition to him. I think the better approach is to wait until after the hearings to reach a more informed judgment. So I would suggest we take a careful look over his entire fifteen year record. He heard over 2,000 cases and was involved in over 200 opinions.

AR: What kind of boss was Judge Alito?
SS: He is a really likable, modest guy who treats everyone with respect and courtesy. It was great to work with him. He's really smart and he's always open to argument. He's a quiet and a private person. When a judge down the hall from Judge Alito redecorated her office and placed two rather elaborate stone lion sculptures outside her door, Judge Alito (though he won't confess to it), placed two pink, plastic flamingoes outside his own door! A coffee shop down the road named a coffee after him "Bold Justice." Perhaps if he makes it onto the Supreme Court, they'll rename it "Bolder Justice."

Hope that's helpful. All I would ask is that people temper what they are hearing in the mainstream press. Keep in mind that if it is not ugly and sensational, frankly, the mainstream press does not seem interested in reporting it and there is so much at stake, we should give the Judge a fair hearing before reaching any judgment.

Sheldon Whitehouse's Unsupported Innuendo Against Samuel Alito

Rhode Island Senate candidate Sheldon Whitehouse wants Senator Lincoln Chafee to filibuster the nomination of Judge Samuel Alito to the Supreme Court�

It is apparent that President Bush's nominee for the Supreme Court to replace Sandra Day O'Connor, Samuel Alito, is not only anti-choice, but an actual strategist in undermining Roe v. Wade. I strongly oppose this nominee. In light of these extraordinary circumstances, I urge Senator Chafee to reconsider his statement that he will not support a filibuster.

In 2000, Senator Chafee pledged that he would never support a Supreme Court nominee who would put a woman's right to choose at risk. He failed to honor that pledge by supporting John Roberts. Now, the Alito nomination presents an even greater threat -- and it's clear that keeping this nominee off the court will demand not only a simple "No" vote, but a filibuster as well.

Please join me in calling on Sen. Chafee to support a filibuster of Judge Alito....

Whitehouse�s implication is that a pro-life justice will impose his beliefs on the court without regard for the law and use any abortion case before the courts as an oppurtunity to overturn Roe v. Wade.

Judge Alito�s record demonstrates that Whitehouse�s implication fails to rise above the level of innuendo.

In 1997 (Alexander v. Whitman), Judge Alito concurred, regardless of personal beliefs, with the position that a fetus is not a person under the 14th amendment. In 2000 (Planned Parenthood v. Farmer), Judge Alito voted, regardless of personal beliefs, to strike down a state ban on partial-birth abortion because it defined partial-birth abortion too broadly.

Judge Alito has on his side a record of scrupulously applying the law. Does Sheldon Whitehouse have anything on his side besides innuendo and hostility towards the pro-life position?

The Ninth U.S. Circuit Court of Appeals Does It Again

Michelle Malkin has written a posting entitled What are your kids learning about Islam? which discusses a 9th Circuit Court decision and includes this quote from a newspaper article on the decision:

Edward White of the Thomas More Center, the attorney in the case for the two children and their parents, said he will ask the full appeals court for a rehearing. He said the panel failed to address his argument that the district violated parents' rights.

"What happened in this classroom was clearly an endorsement of religion and indoctrination of children in the Islamic religion, which would never have stood if it were a class on Christianity or Judaism,'' White said.

Malkin has posted excerpts of the actual Islam simulation curriculum in the referenced posting and also provides a link to more curriculum information.

Stop the ACLU has a related posting referenced by Malkin which sums up the key concerns:

...You can bet if the children were subjected to participate in a Christian themed role playing game such as a nativity scene in a [Christmas] Winter Break play that the Seperation of Church and State Clause of the Living Document would have had precedent. However, since its not Christianity, the 9th Circus found it o.k. to indoctrinate into children. Where is the ACLU on this one? Anyone? How is it that Gideons giving out little new testaments are found as a threat, but teaching children to recite Muslim prayers is not? So they had the choice to opt out, just like voluntary prayer, or reciting the pledge without using �Under God�, but somehow this is different. Please, Congress split this Circus up!

Can we find a teacher out there willing to make some Muslim students pretend to be Christians for a few weeks? You know, just to better understand the culture and all.

This just keeps on getting more and more absurd.

Here are some postings dedicated to offering counter-arguments to this nonsense:

Liberal Fundamentalism, Revisited
The Naked Public Square Revisited, Part I
The Naked Public Square Revisited, Part II
The Naked Public Square Revisited, Part III

The last posting is a more comprehensive overview of these issues:

Rediscovering Civility and Purpose in America's Public Discourse

Stuart Taylor on Judge Alito

Ed Whelan has highlighted liberal Stuart Taylor's thoughts on Judge Alito.

Taylor continues to be one of the sane voices in the judicial debate, a man whom we can all easily respect even when we disagree with his opinions at time.

...Sure, Alito seems a bit to the right of the current Supreme Court's somewhat left-of-center majority (and of yours truly, too). But his now-famous 1985 application, considered together with his 300 closely reasoned judicial opinions over the past 15 years, places him much closer to the center of American public opinion than his critics are. He also seems closer to the center than does Clinton-appointed Justice Ruth Bader Ginsburg (confirmed by 96-3), and quite comparable to Chief Justice John Roberts (78-22).

Here's what Alito wrote 20 years ago, in applying to then-Attorney General Edwin Meese for a promotion from his civil service job as an assistant solicitor general to a politically appointed position:

"I am and always have been a conservative.... I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values."

Not so scary. But now come what critics call the smoking guns:

"I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate.... In college, I [strongly disagreed] with Warren Court decisions, particularly in the areas of criminal procedure, the establishment clause, and reapportionment.... I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."

These are certainly the words of a Reagan conservative. But are they outside the mainstream? Somebody should tell The New York Times that Reagan won 49 states in 1984...

If Alito is outside the mainstream on abortion, then so are the very large percentage of constitutional scholars -- including many pro-choice liberals -- who agree that Roe was a judicial usurpation of legislative authority with no basis in the Constitution. Even Ginsburg herself wrote (also in 1985) that Roe was "heavy-handed judicial intervention [that] was difficult to justify and appears to have provoked, not resolved, conflict."

To be sure, most Americans disagree with Alito's 1985 view that Roe should be overruled. But this is partly because many do not understand that the Roe abortion right is virtually absolute, and many are under the false impression that overruling Roe would make abortion illegal.

Polls show clearly that wide majorities of Americans want more restrictions on abortion -- especially late abortions -- than Roe allows...

As for racial preferences, Alito's 1985 assertion that "racial and ethnic quotas should not be allowed" places him squarely in the middle of public opinion -- unlike Ginsburg, who has voted to uphold wholesale use of quota-like preferences in college admissions, contracting, and other areas.

Polls show overwhelming public opposition to quotas. And neutrally worded polls that avoid the word "quota" show that more than two-thirds of Americans oppose racial preferences...

The closest that Alito came to being "outside the mainstream" in his 1985 application was his whack at unspecified Warren Court decisions on "criminal procedure, the establishment clause, and reapportionment."

It is clear, however, that Warren Court decisions in these areas were subjected to trenchant criticism by mainstream scholars, and some were broadly unpopular at the time. These include decisions expanding defendants' rights, barring school prayer, and striking down aid to religious schools.

It is also clear that any moves by Alito toward greater governmental accommodation of religion would put him closer to the center of public opinion than Ginsburg is. Some of the liberal precedents that she has supported have been plausibly interpreted by a federal appeals court (among others) as barring all governmental "endorsements" of religion, including even the words "under God" in the Pledge of Allegiance. The appeals court ruling provoked a unanimous Senate vote of condemnation in 2002. Is the entire Senate outside the mainstream?

As for Alito's unexplained 1985 objection to reapportionment decisions, perhaps he had read the widely revered Justice John Marshall Harlan's demonstration in a 1964 dissent that "one person, one vote" was a judicial creation with no basis in the Constitution's text or history...

The list of other Alito statements distorted by critics is long. You will hear of him letting cops "strip-search" a 10-year-old girl. And upholding removal of black people from juries. And gutting the Family and Medical Leave Act. And seeking to legalize machine guns.

You will hear critics scoffing at the virtually unanimous praise of Alito by people who know him well -- liberals, moderates, and conservatives. You will hear him called a "right-wing suck-up" and (by The New York Times again) an "ideologue."

But you will know better...

Samuel Alito: Would you Like to Buy an "O"?

Look, it is fairly obvious that there�s some sort of visceral hostility to the nomination of Judge Samuel Alito on the Projo editorial page. But could they at least get the spelling of the man�s name right? The headline of today�s pro-Alito op-ed, at least in the electronic version, reads�

Ed Feulner: Verdict in: Judge Alioto fine choice for high court

I haven�t seen the dead-tree version yet. Is the error there too?

Hilary Cosell�s Rant against Harriet Miers Samuel Alito

Hilary Cosell�s op-ed in today�s Projo bodes well for the Alito nomination. Her attack against judge Alito stumbles, bumbles, and ultimately fumbles (Hilary is the daughter of legendary sportscaster Howard Cosell). If this is the best liberal Democrats have to deploy against Judge Alito, then his nomination is going to sail through.

It�s a strange op-ed, little more than an extended session of name-calling. She makes a major but common factual error, saying that Planned Parenthood v. Casey proves that Alito is �against a woman's right to choose�. The case did not involve school choice at all. And if it is abortion rights she is referring to, Planned Parenthood v. Casey does not support her assertion either. In Planned Parenthood v. Casey, Alito applied the precedents established by Sandra Day O�Connor to decide that spousal notification � not spousal consent � was not an constitutionally undue burden on access to abortion. In 3 other abortion related cases, Alito has interpreted the law in favor of the policy-outcomes that abortion supporters desire.

Cosell wants the Senate to apply a religious test to judge Alito.

Alito's hitting the halls of Congress, chatting up the Senate, all smiles, all thoughtful countenance, all full of promises about precedent and laws of the land, and, no doubt, eventual refusal to answer direct questions about his religious views and political agenda.

I am curious how direct questions about religious views are relevant. What religious views disqualify someone from a seat on the Supreme Court?

Most interestingly, Cosell�s op-ed goes beyond the usual Democratic talking points, into a total disassociation from reality. She accuses Alito, who has served on the Federal appeals court for fifteen years, of being a �crony�. She talks about Alito, a Catholic from New Jersey, as swimming in the �evangelical swamp of radical-right-wing politics�. It sounds more like she is describing Harriet Miers than Samuel Alito. I wonder if this op-ed was written originally as an anti-Miers piece and after Miers withdrew and Alito was nominated, she didn't want to have to start from scratch, so she changed the name and added a paragraph or two about Alito. That would explain the non-sequitirs about Alito as an evangelical Bush crony.

Ms. Cosell's father got away with obnoxious rants because he actually knew something about the subjects he ranted about. Ms. Cosell herself simply rants from ignorance.

More on Alito's Record

The Christian Science Monitor provides some more detail on Judge Alito�s record on the issue of abortion�

In 3 of 4 cases, Supreme Court nominee Alito voted on the side of abortion rights.

The CSM gives a brief explanation of the four cases involved.

1) A 1991 challenge to a Pennsylvania law requiring married women to notify their husbands before seeking an abortion. The court struck down the restriction. Alito dissented.

This is the case of Planned Parenthood v. Casey, already much discussed. In this case, Judge Alito scrupulously applied Justice Sandra Day O�Connor�s precedents to decide that a spousal consent law with multiple exceptions -- (1) [The husband] is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) [the woman seeking an abortion] has reason to believe that notification is likely to result in the infliction of bodily injury upon her -- did not place an �undue burden� on the right to abortion.

2) A 1995 challenge to a Pennsylvania law that required women seeking to use Medicaid funds to abort a pregnancy resulting from rape or incest to report the incident to law enforcement officials and identify the offender. Alito provided the decisive vote striking down the abortion restriction.

This is the case of Blackwell Health Center v. Knoll. Alito joined an opinion that enjoined Pennsylvania from �(1) requiring certification by a second physician [in cases involving the health of the mother], and (2) enforcing its rape and incest reporting requirements..."

3) A 1997 challenge to a New Jersey law that prevents parents from suing for damages on behalf of the wrongful death of a fetus. Alito ruled that the Constitution does not afford protection to the unborn.

This is the case of Alexander v. Whitman. Alito strictly applied Supreme Court precedent to reach his decision; �I agree with the essential point that the court is making: that the Supreme Court has held that a fetus is not a �person� within the meaning of the Fourteenth Amendment.�

4) A 2000 challenge to New Jersey's ban on so-called partial-birth abortions. Alito struck down the law based on a recent Supreme Court decision.

This is the case of Planned Parenthood v. Farmer. In this case, Judge Alito voted to strike down the law because 1) it did not contain an exception for the life of the mother and 2) it too broadly defined what constituted a partial birth abortion.

The record is clear: Samuel Alito is not a fire-breathing radical who decides abortion cases based on their public-policy outcomes. It's time to replace that argument against him with something honest.

Is the Projo Making Samuel Alito's Religion an Issue?

Today�s Projo editorial on Samuel Alito contains at least one sentence requiring clarification�

One particularly troubling example of Judge Alito's approach is his dissent in Planned Parenthood v. Casey. In that case he backed a Pennsylvania law that required a woman seeking an abortion to consult her husband. It is her body. But then, as Judge Alito's mother, Rose Alito, noted, "Of course he's against abortion." The judge is a Catholic. The Journal continues to support a woman's right to choose abortion.

The context in which Alito�s religion is mentioned seems to imply that the fact that �the judge is Catholic� contributes to the judge�s �troubling approach�.

Is that the correct interpretation? If not, then why mention Judge Alito�s religion at all?

Samuel Alito and Sandra Day O�Connor -- Hard-Right Co-Conspirators

An unsigned editorial in today�s Projo is highly critical of Samuel Alito. The editorial labels judge Alito as a �right-winger�, yet cites only a single case in support of its name-calling�

One particularly troubling example of Judge Alito's approach is his dissent in Planned Parenthood v. Casey. In that case he backed a Pennsylvania law that required a woman seeking an abortion to consult her husband.

The editorial then goes on to pine for a justice in the mold of Sandra Day O�Connor�

President Bush would have served the country better by nominating someone more moderate -- someone like Justice Sandra Day O'Connor, whom Judge Alito would succeed, if confirmed.

Taken together, the two statements are incoherent. Of course, sounding incoherent is the risk you take when you uncritically pass along partisan talking points.

In applying the law in Planned Parenthood v. Casey, Judge Alito had to decide whether a spousal notification provision placed an �undue burden� on the right to abortion. In forming his opinion, Judge Alito followed the precedents established by Justice O�Connor. He combined her definitions of �undue burden� with the fact that she had found parental notification laws to be constitutional to determine that spousal notification was also constitutional.

If Justice O�Connor is the model of a moderate justice, then Alito took the moderate position in Planned Parenthood v. Casey. The Projo editorial board seems more interested in making common cause with abortion rights radicals who believe that no restriction on abortion can ever be justified than it does in supporting moderate jurists who apply the law.

Continue reading "Samuel Alito and Sandra Day O�Connor -- Hard-Right Co-Conspirators"

Pragmatic Reason for Chafee to Support Alito

According to Michael Barone:

The political risks of opposing an Italian-American are therefore probably less than in 1983 [when Judge Antonin Scalia was nominated and confirmed]. But they're not zero. I wonder whether Tom Carper of Delaware (where 7 percent of the population in the 2000 census said they were of Italian ancestry), Frank Lautenberg of New Jersey (14 percent), Hillary Rodham Clinton of New York (11 percent), Christopher Dodd and Joe Lieberman of Connecticut (14 percent), and Jack Reed of Rhode Island (14 percent) really want to go to the length of supporting a filibuster against an Italian-American judge with sterling credentials and majority support in the Senate. I'm pretty sure that Lincoln Chafee, facing a conservative opponent in the Republican primary in Rhode Island, the state with the nation's highest percentage of Italian-Americans, doesn't want to oppose Alito. If I were giving him political advice, I would certainly advise him not to do so. As much as one quarter of Republican primary voters there will have Italian names or Italian ancestors.

Barone also provides this statement:

The National Italian American Foundation (NIAF) applauds President George W. Bush on his nomination of Samuel A. Alito Jr., a judge on the U.S. Court of Appeals for the Third Circuit, to the position of associate justice of the United States Supreme Court.Judge Alito, whose father immigrated to the United States from Italy, is highly respected in the judicial community for his constitutional knowledge and his impeccable character.President Bush has chosen an individual whose intellect and qualifications are above reproach. We are proud and fortunate that he shares our Italian heritage. Washington, D.C. Oct. 31, 2005.

In heavily Roman Catholic (and Italian-American) Rhode Island, can Chafee afford not to support such a well-qualified judicial candidate? Will concern for his "pro-choice" interest group rating prevail over political calculation? On the other hand, despite what Barone may think, I have little doubt that Senator Reed will pay little heed to this sort of "identity politics."

Samuel Alito on Abortion

Let�s match the left�s talking points on Supreme Court nominee Samuel Alito to some honest discussion of Alito�s record. We�ll jump right in with the hottest of the hot button issues � the issue of abortion. The talking points tell us that Judge Alito�s opinion in Planned Parenthood v. Casey proves that �Alito would overturn Roe v. Wade�.

Patterico�s Pontifications does an excellent job describing Alito�s Planned Parenthood v. Casey dissent, the reasoning he used, and how that reasoning was consistent with existing precedent�

In that case, Judge Alito wrote a cogent dissent which argued for the validity of a law requiring spousal notification before an abortion�.

Alito began by noting the contemporaneous state of the law regarding abortion restrictions. He said that his major disagreement with the majority concerned the issue of whether spousal notification was an �undue burden�....

Alito began by noting the contemporaneous state of the law regarding abortion restrictions. "Taken together, Justice O�Connor�s opinions reveal that an undue burden does not exist unless a law (a) prohibits abortion or gives another person the authority to veto an abortion or (b) has the practical effect of imposing 'severe limitations,' rather than simply inhibiting abortions 'to some degree' or inhibiting 'some women'"....

Judge Alito then noted that the spousal notification provision at issue did not give the husband a veto power. Rather, a married woman simply had to certify (through her own uncorroborated and unnotarized statement) either that she had notified her husband, or that her case fell within any one of several statutory exceptions, including: "(1) [The husband] is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) [the woman seeking an abortion] has reason to believe that notification is likely to result in the infliction of bodily injury upon her"�.

He specifically noted: "Whether the legislature�s approach represents sound public policy is not a question for us to decide. Our task here is simply to decide whether Section 3209 meets constitutional standards".

In the words of uberblogger Glenn Reynolds, �read the whole thing�.

Judge Alito has also decided at least one other important abortion case. According to the The Volokh Conspiracy, Judge Alito struck down a 1997 New Jesey ban on partial birth abortion in the case of Planned Parenthhod v. Farmer. From the section of the opinion excerpted a Volokh, Alito followed Supreme Court precedent to find the law unconstitutional 1) because it did not contain an exception for the life of the mother and 2) because it too broadly defined what constituted a partial birth abortion.

In both cases, Alito applied existing Supreme Court precedents. So where is the evidence that he would overturn Roe v. Wade?

The Democrats Like Alito, or They Did.....

The President has nominated Third Circuit judge Samuel A. Alito Jr. to the Supreme Court, by all accounts a jurisprudential conservative. Before the liberals start getting wound up, it's useful to recall that back in 1990, when he came up for a seat in the Third Circuit during a time when the Democrats controlled the U.S. Senate, he was unanimously confirmed by the Democrat-controlled Judiciary Committee. According to NRO's Bench Memos) Ted Kennedy said Alito has �a distinguished record� ... �[w]e look forward to supporting you.� Senator Frank Lautenberg (D-N.J.) said of Alito that he is �the kind of judge the public deserves � one who is impartial, thoughtful, and fair.� By all accounts what they said then still applies now. Let's keep this in mind in the days to come.

A Conservative View of American Politics Today

Upon the withdrawal of Harriet Meirs nomination to the Supreme Court, Senate Minority Leader Harry Reid (D-Nevada) said: "The radical right wing of the Republican Party killed the Harriet Miers nomination. Apparently, Ms. Miers did not satisfy those who want to pack the Supreme Court with rigid ideologues."

Well, once again, Senator Reid doesn't know what he is talking about.

Rather, here is a more accurate "reid" of the conservative view of American politics today.

An editorial by Rod Dreher offers these comments:

...American conservatism is in crisis at the moment because the bizarre Harriet Miers nomination imposed a surreality check on the right, forcing us to consider just how much nonsense we had gone along with for the sake of party discipline.

Where to start? With the Lyndon Johnson-level spending? The signing of the McCain-Feingold campaign-finance bill, which candidate Bush had denounced as unconstitutional? The race-preferences sellout in the University of Michigan cases?

There was also the cynical use of the federal marriage amendment, which the administration dropped after turning out the social-conservative vote in 2004. And grass-roots conservatives cite the president's intent to liberalize immigration policy with Mexico.

Then there is the Iraq quagmire, which, even if initially a worthy cause, has become a rolling disaster.

On top of this came the Katrina debacle, which further damaged conservatism's claim to competent governance.

Conservatives, consciously or not, looked the other way for far too long, mostly because we felt it important to back the president in wartime and because nothing was more important to the various tribes of Red State Nation than recapturing the Supreme Court. For the first time in a generation, a conservative Republican president and a Republican majority in the Senate made that dream a real possibility.

Whatever else Bush might fumble, we trusted him to get that right.

Instead, he gave us a crony pick of no special talents or discernible vision, except for love of Our Lord and George W. Bush, and support for racial preferences. This is what we drank the Rovian Kool-Aid for? The Miers selection was no isolated incident, but the tipping point in a series of betrayals...

A Washington Times article added these comments:

...The choice of Miss Miers was significant because, conservatives critics agreed, it caused some on the right to go public for the first time with their criticism of Mr. Bush, blaming him directly for a major decision he made instead of blaming it on White House advisers, administration aides or renegade Republicans in Congress.

"Withdrawing Miers put a Band-Aid on the rift," says George Conway III, a New York lawyer who is beginning to emerge as one of the new generation of conservative-activist leaders. "That rift now is healed and will be reopened only if he makes the same mistake twice -- then the Band-Aid will come right off."

"Miers was the proverbial straw that broke the camel's back among conservatives," says Mr. Conway, who worked behind the scenes against President Clinton during the Paula Jones and Monica Lewinsky scandals.

He says some nationally prominent conservative leaders have privately dissented from most or, in some cases, all of the president's initiatives on a range of fronts. "It's a long, long list."

He says it includes expanding the federal government's role in education and the welfare state through Medicare drug benefits, encroachment on personal freedoms in the name of fighting terrorism, the decision to go to war with Iraq and what they see as mismanaging the war, not opposing the McCain-Feingold campaign-finance regulations, promoting a guest-worker program for illegal aliens and not fighting the principle of enforced diversity in the University of Michigan racial-preferences cases...

Many anti-Miers conservatives disagree on the desirability and purpose of a nomination fight.

"I think it is a bogus claim people in the press make when they say what the right wants is a fight about ideology," Mr. Conway says. "No. What we want is a good justice nominee but not a fight for the sake of having a fight. If it takes a fight to get a good justice, fine."

Horace Cooper, a former Bush Labor Department official who is now a constitutional law professor at George Mason University, supported the Miers nomination, and he now says a Senate confirmation fight could be useful.

"We need a certifiably conservative judge as Bush's choice so that the fight in the Senate provides that 'teaching moment' when we can explain to the nation what we mean by conservative and constitutionalist."...

Wanting a strong candidate for the Supreme Court, an "A" player and not an unqualified crony. Wanting a teaching moment, a moment to stand on principles carefully and rationally articulated to the American public. Being willing even to lose in the short run in order to take that principled stand. Acting based on the knowledge that, in politics, there is a need to stay on offense - even after a defeat - because there will always be future opportunities to win the battle. This is conservatism at its principled best.

Contrast that principled approach with the way the Democrats are handling the hot topic of special counsel Fitzgerald's investigation, as noted in this excerpt from a New York Times' editorial by David Brooks:

Special Prosecutor Patrick Fitzgerald did not find evidence to prove that there was a "broad conspiracy to out a covert agent for political gain. He did not find evidence of wide-ranging criminal behavior. He did not even indict the media's ordained villain, Karl Rove," writes David Brooks in Sunday's NY Times.

"Leading Democratic politicians filled the air with grand conspiracy theories that would be at home in the John Birch Society."

"Why are these people so compulsively overheated?.. Why do they have to slather on wild, unsupported charges that do little more than make them look unhinged?

Brooks quotes from an essay written 40 years ago by Richard Hofstadter called "The Paranoid Style in American Politics."

Hofstadter argued that sometimes people who are dispossessed, who feel their country has been taken away from them and their kind, develop an angry, suspicious and conspiratorial frame of mind. It is never enough to believe their opponents have committed honest mistakes or have legitimate purposes; they insist on believing in malicious conspiracies.

"The paranoid spokesman," Hofstadter wrote, "sees the fate of conspiracy in apocalyptic terms -- he traffics in the birth and death of whole worlds, whole political orders, whole systems of human values. He is always manning the barricades of civilization." Because his opponents are so evil, the conspiracy monger is never content with anything but their total destruction."

Brooks summarizes: "So some Democrats were not content with Libby's indictment, but had to stretch, distort and exaggerate. The tragic thing is that at the exact moment when the Republican Party is staggering under the weight of its own mistakes, the Democratic Party's loudest voices are in the grip of passions that render them untrustworthy."

As this previous posting noted, the left is trying to frame this judiciary debate on false terms:

Implicit in the public debate about the upcoming Supreme Court nomination is the assumption by many on the left that any nominee by President Bush is going to be an activist from the right who will seek to undo the aggressive legislating done by the Court in recent years with an equally aggressive counter response. Such a belief reduces the debate to nothing more than a raw power struggle between competing interests. And it completely misses the real point of the judicial activism debate...

Those of us who believe in an original intent approach to judicial behavior believe that legislatures are the place where democratic processes should play out in order to build a public consensus on important policy matters. It takes time and it frequently seems like a messy, inefficient process. But, consider the horrible alternative we now live with: When the Supreme Court legislates on policy matters, it immediately stops any public debate before there has been sufficient time to develop a public consensus. As a result, their action immediately yields a polarization on the topic which, as the abortion issue has shown, makes reasoned debate and building a public consensus practically impossible. We have become a more divided society due to judges legislating from the bench.

Nothing would be more valuable for the American public than to see a very public debate between a principled conservatism and a paranoid, unhinged left.

Continue reading "A Conservative View of American Politics Today"

On Withdrawing Miers

Peggy Noonan has called for President Bush to withdraw his nomination of Harriet Miers (or for Ms. Miers to withdraw herself). While she believes such a move doubtful, she does offer a forecast of what would happen next.

The White House, after the Miers withdrawal/removal/disappearance, would be well advised to call in leaders of the fractious base--with heavy initial emphasis on the Washington conservative establishment--and have some long talks about the future. It's time for the administration to reach out to wise men and women, time for Roosevelt Room gatherings of the conservative clans. Much old affection remains, and respect lingers, but a lot of damage has been done. The president has three years yet to serve. That, I think, is the subtext of recent battles: Conservatives want to modify and, frankly, correct certain administration policies now, while there's time. The White House can think of this--and should think of it--as an unanticipated gift. A good fight can clear the air; a great battle can result in resolution and recommitment. No one wants George W. Bush turned into Jimmy Carter, or nobody should. The world is a dangerous place, and someone has to lead America.

The fear among conservatives (at least this one) is that in an attempt to avert a partisan political fight over a conservative judge with a paper-trail, he has instead instigated a political fight between he and his base and may have broken the last, crucial bit of the covenant he had with conservatives. Without this political base, how will George Bush accomplish the rest of his agenda for his final term?

Lowry on Miers Nomination: Hypocrisy, Double Standards & Contradictions

Rich Lowry nails some of the big issues surrounding the Harriet Miers nomination to the Supreme Court.

Lowry begins with these words:

The nomination of Harriet Miers to the Supreme Court is foundering, but President Bush is confident that she will be confirmed. Bush thus displays a touching faith in the power of hypocrisy, double standards, and contradictions to see his nominee through. The case for Miers is an unholy mess, an opportunistic collection of whatever rhetorical flotsam happens to be at hand.

I would encourage you to read the whole editorial. Then read how Laura Bush is parroting the same words as her husband.

Second-rate is still second-rate, regardless of gender. No matter how hard the Bush administration tries, Harriet Miers is no Roberts, no Luttig, etc. Simply Bush league on this one. What a disappointment.

This is an insult to Jim Rice

This started off as an oh-so-serious post. In today�s OpinionJournal, Peggy Noonan endorses the idea of fixed terms for Supreme Court justices�

I find myself lately not passionately supporting or opposing any particular nominee. But I'd give a great deal to see Supreme Court justices term-limited. They should be picked not for life but for a specific term of specific length, and then be released back into the community. This would involve amending the Constitution. Why not? We'd amend it to ban flag-burning, even though a fool burning a flag can't possibly harm our country. But a Kelo decision and a court unrebuked for it can really tear the fabric of a nation.

After agreeing with Ms. Noonan�s reasoning, I was going to go ahead and add another idea of my own -- there�s something profoundly anti-democratic about a system that can allow the deaths of its rulers to influence the shape of the law.

To help make my argument, I went to look up some facts on how frequently Supreme Court Justices die in office. I found a website called Oyez that seemed to have the information I needed. Eventually, I learned that the death of a Supreme Court Justice while in office is not as common today as it was in the past.

However, on the way to discovering this fact, I noticed that every Justice�s page at Oyez has a link labeled �baseball� on the side. It turns out that Oyez assigns a most similar baseball player to every justice in the history of the court. Some of them make sense, e.g. John Marshall = Babe Ruth. Some of them are just bizarre, like Steven Breyer = Jim Rice. I don't get that one.

If you are a political geek and a sports fan, and you have some free internet time today, you might find the comparisons interesting. Or not.

A Blue State Resident explains why Conservatives are Unhappy with the Miers Nomination

The conventional wisdom regarding RI Republicans is that they don�t believe they can win big, so they focus their efforts on winning an occasional office and on making deals to blunt the power of the majority. The CW holds that these modest goals are the rational response to insufficient numbers and institutional weakness. The nomination of Harriet Miers to the Supreme Court makes me wonder if this picture has confused cause with effect.

The national Republican party of George W. Bush does not have a problem with tiny numbers or institutional weakness. The President is supported by a sizeable base that wants conservative judges. The President�s party has a 55 seat Senate majority, 52 of whom have been reliable votes on judicial nominations. Yet despite these advantages, the decision to nominate Harriet Miers to the Supreme Court is strangely analogous to the kind of decision the overwhelmed RI Republican party would make � a less than ideal compromise, based on a fear of having to defend conservative ideas, that has the primary virtue of being acceptable to the opposition in the legislature.

The parallel behavior of a weak state party and a strong national party suggest that problem in RI, and in other blue parts of the country, is not that institutional weakness leads Republicans to settle for watered down ideas. It suggests that the problem is that Republican unwillingness to stand up for their ideals leads to institutional weakness.

Rhode Islanders for Miers Launches Campaign

I just received a missive regarding potential SCOTUS Justice Harriet Miers and thought it worthy to place before our fine readership. (Which, I'm sure, was the ultimate goal of the senders). The jist of the email was to call for a fair confirmation process, similar to that just completed in the case of Justice Roberts. But there was also some talk of Ms. Miers qualifications

Steering Committee member Joseph B. White stated, �President Bush has once again put forth an extremely capable nominee who embraces mainstream principles of social tolerance, privacy and homeland security. With a career founded on community service, she carries the heart, the passion and the intellect that our nation has come to expect from its Supreme Court justices.�

�Ms. Miers has real-world experience,� said Steering Committee member Fain Gildea. She continued, �Her background as a trial attorney is comforting and the fact that she served as the first female president of a large Dallas law firm and later as the first woman elected president of the state bar is inspiring.�

Steering Committee member Lloyd Monroe added, �Associate Justice Nominee Harriet Miers will bring important practical experience to the Supreme Court earned outside of the bench. Miers, like Associate Justice Sandra Day O�Connor, also has experience in local and state government through her service on the Dallas city-council and later as presiding officer over the Texas Lottery Commission.�

Um... I wouldn't get too carried away with the Lottery stuff if your aim is to endear Miers to conservatives, guys! Setting that aside, the organization does offer some useful points regarding her practical, extra-judicial experience.

Who is Harriet Miers?

As most know by now, President Bush has nominated now-former White House Counsel Harriet Miers to the Supreme Court. Immediately, two memes have sprung up. One is that the President followed the "Cheney template," by which it is meant that he ended up nominating the individual he had originally tapped to lead the search committee for that particular position. The second meme, and the one with more partisan legs, is that the President is guilty of "cronyism." Meanwhile, the debate over Miers rages on in the blogosphere, with many conservatives (here, here, here, here, and here) disappointed. This doesn't mean that liberals are giving her a pass, however, as there is too much to be gained ($$$) by ginning up opposition to anyone whom the President would have tapped. (Of course, many are particularly gleeful over the GOP infighting).

I don't know enough about Miers to make a judgement right now, but the criticism seems to hinge on the fact that she's never been considered a top legal mind (she's never been a judge, actually) and the the President could have simply done better. In fact, most of the conservative criticism is of the President, not of Miers herself. For instance, Rush Limbaugh stated that this choice seemed to be "made from weakness" and not strength and one conservative blogger says he's "done with President Bush" over this choice. There are a few (and here) conservatives who find the pick a good one, but, as can be seen, they are distinctly in the minority. Some think that the President is pulling a "rope-a-dope." If that is the case, then Glenn Reynolds prediction that the nomination is already in trouble is all part of some Roveian master plan.

I think some of conservative disappointment is a result of trying to fit a real person, Miers, into the template many have of what, to them, is the ideal conservative SCOTUS judge (in whatever permutation each individual conservative has constructed said person). Especially as she comes on the heels of the nearly-unanimously welll-regard John Roberts. Simply put, they think that the President could have nominated a better-qualified, more clearly conservative--and just as confirmable--person to the SCOTUS. Perhaps the President's close, personal relationship with Miers has clouded his judgement of her qualifications. However, as with most things, should Miers indeed be confirmed, it will take a few years to determine whether or not she was appropriate for the position.

And yet, maybe this is really the crux of the matter: no one is comfortable with the proposition of a candidate surrounded by so much uncertainty assuming a lifetime seat on the highest court in the land. For conservatives who voted for George Bush under the premise that he would select both respected and conservative judges to the court, the Miers pick is disappointing and unsettling. Simply put, conservatives feel as if they've been let down and, concomitantly, that they may not have cast their presidential vote for the type of candidate, George Bush, whom they thought. Maybe the confirmation hearings will clear things up and Miers will emerge as a solid, intellectual conservative.

I have my own doubts that will happen. These are based on her relatively short resume and by my own first impressions of her that I had while I listened to her accepting the nomination this morning. To me she sounded both nervous and overwhelmed. In short, she was not-ready -for-primetime. I know public speaking ability has little to do with one's judicial expertise, but her shaky performance and lack of judicial experience give me pause. Now, I know former Chief Justice Rehnquist was never a judge and that Sandra Day O'Connor was really a politician with a limited judicial resume, but I still think there were many qualified judges (and others) to choose from. The president and his people, including VP Cheney, are telling conservatives to "trust us." I'll try, so I'll reserve judgement until the confirmation hearings.

*A cynic might say that by then I will have talked myself into approving of Miers. Perhaps, but hopefully the fact that I'm aware of this very human tendency to seek equilibrium with one's ideological cohort will mitigate such a thing happening "automatically." Unless it already has, which is why I'm leaning towards doubt along with most of the rest of the conservative blogosphere.

In search of an Honest Democratic Argument Against John Roberts...

...because you won't find one in Sunday's Projo from Democratic party chairman Howard Dean. Here is the start of what is supposed to be the substance of Dean's rant...

The consistent mark of Roberts's career is a lack of commitment to making the Constitution's promise of equal protection a reality for all Americans -- particularly the most vulnerable in our society. He has opposed laws protecting the rights of girls to have the same opportunities in sports as boys....

The case he is referring to, I believe, is NCAA v. Smith. Sports Law Blog has a short summary here...

[H]e successfully defended the National Collegiate Athletic Association ("NCAA") against a lawsuit by Renee Smith, a law school student who alleged that the NCAA, when it refused to allow her to participate in postgraduate intercollegiate volleyball, discriminated against her because of her sex.

The ruling in the case revolved around some technical issues about whether the NCAA itself is subject to Title IX regulations.

Now, ignore the fact that Roberts was representing his client's position. And ignore the fact that, in 1999, the Supreme Court unanimously agreed with the position advocated by Roberts. Which Neanderthal Supreme Court justice do you suppose wrote the opinion concurring with Roberts' position? The answer is Ruth Bader Ginsburg. Following Howard Dean's reasoning, Ruth Bader Ginsburg opposes laws protecting the rights of girls to have the same opportunities in sports as boys.

Are the Democrats telling us that even Ruth Bader Ginsburg is too far to the right to be part of the mainstream? (Maybe the Democrats consider openly Marxist judges, like Rhode Island superior court judge Stephen Fortunato, to be the true representatives of the mainstream). Or are the Democrats telling us that they are not even going to bother with honest arguments against Judge Roberts and that they will say anything to obstruct qualified judicial nominees who don't have the right political credentials?

Judicial Restraint 101

Terry Eastland has written an article entitled Chief Justice Roberts: The distinction between law and politics that the Judiciary Democrats do not respect lies at the heart of Roberts's approach to judging, including these words:

On the final day of the Roberts hearings, Sen. Richard J. Durbin of Illinois tried one last time: "If you've made one point many times over . . . the course of the last three days," he told the judge, "it is that as a judge you will be loyal and faithful to the process of law, to the rule of law." But "beyond loyalty to the process of law," he asked Roberts, "how do you view [the] law when it comes to expanding our personal freedom? . . . That's what I've been asking."

And so, in various ways, had Durbin's Democratic colleagues been asking about such matters--ones "beyond loyalty" to the rule of law. In response to Durbin, Roberts stuck to the point he had indeed made "many times over." Reframing the senator's question so as to reach the core issue, Roberts said, "Somebody asked me, you know, 'Are you going to be on the side of the little guy?' And you obviously want to give an immediate answer. But as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that 'I'll look out for particular interests.' . . . The oath is to uphold the Constitution and laws of the United States, and that's what I would do."

That exchange crystallized the fundamental difference between John Roberts and the eight Democrats on the Senate Judiciary Committee. The Democrats believe a good judge will move "beyond loyalty" to the rule of law, if necessary, and seek to advance certain political outcomes--in Durbin's question, the expansion of personal freedom. Roberts dissents: He believes a good judge will distinguish between law and politics and stick resolutely to the law, regardless of the result...He'll not look out for "particular interests" because his oath obligates him to support not this or that interest but the Constitution and the laws of the United States...

There is unease among some conservatives as to how Chief Justice Roberts will turn out. Yet it must be said that Roberts has made emphatically clear his view that a judge must be restrained by the law--the rules, principles, customs, practices, and understandings that define it--and must not allow the law to be infused with the judge's own political views and personal values. In other words, the distinction between law and politics that the Judiciary Democrats do not respect lies at the heart of Roberts's approach to judging...

Roberts took care on numerous occasions to emphasize the importance of the distinction between law and politics as it relates to judging. For example, in response to Lindsey Graham's question about what the judge regarded as the biggest threats to the rule of law today, Roberts identified only one threat--the "tendency on behalf of some judges to take . . . [their] authority and extend it into areas where they're going beyond the interpretation of the Constitution, where they're making the law"--the province of elected officials. He observed: "Judges have to recognize that their role is a limited one. That is the basis of their legitimacy. I've said it before and I'll just repeat myself: The Framers were not the sort of people, having fought a revolution to get the right of self-government, to sit down and say, 'Let's take all the difficult issues before us and let's have the judges decide them.' That would have been the farthest thing from their mind."

The failure of the Judiciary Democrats to applaud comments like these, their evident desire to have justices and judges who go beyond any loyalty to the rule of law to advance "progressive" visions, demonstrates how far their party has traveled since the middle of the past century, when Justices Robert Jackson and Felix Frankfurter still sat on the Court. Jackson (whom Roberts admires, by the way) and Frankfurter sought to preserve the judiciary "in its established but limited place in American politics," wrote Arthur M. Schlesinger Jr. in 1947...By the end of the Warren Court, political judging had become the norm for most Democrats. So it has been ever since, and so it is today that a nominee committed to judicial restraint like Roberts received the reception he did from the law firm of Leahy, Kennedy, Feinstein, Biden, Schumer, Feingold, and Durbin....

I hope, but am far from certain, that Chief Justice Roberts' central belief about the importance of judicial restraint will lead to the Supreme Court ceasing its recent legislating practices. What I do believe is that a strong belief about restraint has a greater chance of yielding that outcome than the activist views of leading Democrats.

The Religious Bigotry Continues...In Full View, For All To See

A new editorial entitled The JFK Question: Sens. Specter and Feinstein impose an unconstitutional religious test has these words about the confirmation hearings for John Roberts:

...we appear to be traveling in the wrong direction. Article VI of the Constitution prohibits a religious test from being imposed on nominees to public office. The clause was motivated by the experience of Catholics in the Maryland colony and Baptists in Virginia who had been the targets of Great Britain's two Test Acts. These infamous laws of intolerance sought to prevent anyone who did not belong to the Church of England from holding public office. The Test Acts did not say that Catholics could not hold office; the bigotry was more subtle. Officials questioned would-be public servants to determine whether they believed in particular tenets of the Catholic faith.

While questioning John Roberts on Tuesday, Judiciary Committee chairman Arlen Specter asked: "Would you say that your views are the same as those expressed by John Kennedy when he was a candidate, and he spoke to the Greater Houston Ministerial Association in September of 1960: 'I do not speak for my church on public matters, and the church does not speak for me.' "

Hours later, Sen. Dianne Feinstein of California made it worse: "In 1960, there was much debate about President John F. Kennedy's faith and what role Catholicism would play in his administration. At that time, he pledged to address the issues of conscience out of a focus on the national interests, not out of adherence to the dictates of one's religion. . . . My question is: Do you?"

How insulting. How offensive. How invidiously ignorant to question someone like Judge Roberts with such apparent presumption and disdain for the religion he practices. The JFK question is not just the camel's nose of religious intolerance; it is the whole smelly camel.

Outrage over this line of questioning was ecumenical. In his new blog, Jewdicious.blogspot.com, Jeff Ballabon of the Center for Jewish Values posted this from the Senate's hallways:

I mean how grotesque is it that the Left feels free to indulge openly in half-century-old religious prejudice? This is not some crazy person standing outside with a rusty hanger--it is a United States Senator in her official capacity on national television. And this is no off-the-cuff blurt--these questions are excruciatingly researched and drafted and worded and reviewed and approved and choreographed by teams of liberal lawyers and advisors both on her staff and off. She--the senator who keeps harping at this hearing that her concern is the protection of people of faith--thinks an obnoxious question born of religious bigotry is legitimate because it was posed in 1960?

Non-Catholic Christians also spoke up. Wendy Wright of Concerned Women for America issued this statement:

It is precisely this kind of anti-Christian religious litmus test that many Americans find deeply offensive. . . . Feinstein is dipping her toe into the very ugly, muddy waters of religious bigotry. America's Founding Fathers considered religious beliefs to be an asset, even essential to public officeholders. Sadly, Sen. Feinstein apparently believes the opposite of those wise men to whom we owe gratitude for our free and strong country.

Catholic leaders were stunned...Mr. Cella drew distinctions:

Of the two Senators remarks, Senator Feinstein's were the most disturbing because she referred to the Catholic faith as 'dictates.' It shows her callous insensitivity and ignorance of the teachings of the Catholic faith...

The JFK question has no place in a Senate confirmation process. The Constitution says so...

...John Roberts will be only the 11th Catholic (out of 109 justices) to serve on the Supreme Court in its 215-year history. But his confirmation may be a historic first. It marks the introduction, on the record, of a constitutionally prohibited religious test for a Supreme Court nominee. We are going in the wrong direction.

This issue was also discussed in an earlier posting.

The Ginsburg Precedent and John Roberts

Saturday�s Projo (pg. A3 in the paper version) has an article on a local event intended to rally support for the President�s Supreme Court nominee, John Roberts. For those interested in the substance of the discussion (rather than the luncheon menu, which is the major focus of the opening of the Projo article), the event�s sponsor, Progress for America, has created a four-minute video titled �The Ginsburg Precedent�. (Strange Projo decision #2, they link to the moveon.org in the electronic version of their story, but not to the Progress for America website, nor the �The Ginsburg Precedent� video).

What is the Ginsburg precedent? Here it is in the words of Joe Biden, directly from the video, speaking to Ruth Bader Ginsburg at her Supreme Court confirmation hearing...

I do think it�s appropriate to point out that you not only have a right to choose what you will answer and not answer, but, in my view, you should not answer a question of what your view will be on an issue that, clearly, is going to come before the court in 50 different forms, probably, over your tenure on the court.

Of course, Biden is famous for being a bit long-winded. Fortunately, Ginsburg herself gives a more succinct version. Again, from the video, directly from her confirmation hearing�

No hints, no forecasts, no previews.

We can be fairly certain that the Democrats suddenly believe that the Ginsburg precedent is outdated. The question is, will they even bother with a believable explanation of why, or will they simply try to wield power to obstruct the President?

ADDITIONAL INFORMATION:

Don provides much additional information on the details of the Ginsburg precedent here.

Anti-Roberts ad is False...

...but don't take my word for it. Factcheck.org, run by the Anneberg School at the University of Pennsylvania, says the anti-Roberts ad being run on Rhode Island TV is false. Here is their exact wording...

An abortion-rights group is running an attack ad accusing Supreme Court nominee John Roberts of filing legal papers �supporting . . . a convicted clinic bomber� and of having an ideology that �leads him to excuse violence against other Americans� It shows images of a bombed clinic in Birmingham , Alabama .

The ad is false.

Here is one other little gem from their analysis.

The images used in the ad are especially misleading. The pictures are of a clinic bombing that happened nearly seven years after Roberts signed the legal brief in question.

The fact that Roberts' opponents are already resorting to making stuff up means they don't actually have anything to hold against him.

U.S. Constitution: "No religious test shall ever be required as a qualification to any office or public trust"

In an editorial entitled Judging While Catholic: Do journalists understand that the Constitution prohibits religious tests for officeholders?, Manual Miranda provides all of us with a tutorial on religious tests and the U.S. Constitution:

John Roberts will be the fourth Roman Catholic on the current Supreme Court, but only the 10th Catholic among the 109 justices who've served in the high court's 215-year history. A few senators and a good many journalists have made much of it.

Earlier this week, in a span of minutes, three journalists asked me to respond to liberals, like Sen. Richard Durbin (D., Ill.), raising Judge Roberts's religion as a confirmation issue...Minutes before penning this column, a fourth prominent political reporter startled me further by asking: "What religion test clause? Where does that appear?"

Well, here, everyone jot this down. "The line" appears in Article VI of the U.S. Constitution: "No religious test shall ever be required as a qualification to any office or public trust under the United States."

Much bigger than the obvious problem of overreaching Democratic senators (because it is obvious) is that Americans are depending on journalists to catalyze the most important public debate outside an election: the confirmation of a Supreme Court justice...The preface to one [Pew Research Center] 2004 report notes:

Journalists at national and local news organizations are notably different from the general public in their ideology and attitudes toward political and social issues...news people, especially national journalists are more liberal, and far less conservative, than the general public.

Most Americans know this by now. Some may know the result of another Pew survey that found most journalists were overwhelmingly irreligious. What we do not know is how many journalists read, much less understand the Constitution...Here are two sightings from this week alone.

In Monday's Boston Globe, columnist Cathy Young, also a contributing editor of the libertarian Reason magazine, concludes: "A candidate's or nominee's ideology should be fair game whether it's religious or secular in nature, whether it's rooted in conservative Catholicism or liberal feminism."

More interesting is how Ms. Young gets to this conclusion. While applauding John F. Kennedy's milestone election as the first Catholic president, Ms. Young recites Article VI, but she conflates the religious test clause with the provision that officeholders "shall be bound by oath or affirmation, to support this Constitution." She interprets this to mean that "an officeholder could not be required to take an oath or perform a religious ritual affirming his allegiance to a particular religion or denomination, or even a general belief in God."

Ms. Young thinks it's about cookie-cutter discrimination, and not about protecting actual religious beliefs. In fact, the two clauses are quite separate in their intent. Their distinct origin is itself telling. At the Constitutional Convention most proponents of the Oath Clause sought to ensure the public servants were "sincere friends to religion," but greater forces than that had been lobbying to ensure that there would be no "religious test" for public office...

Requiring an oath or affirmation in taking public office was the Framers' nod to God, the requirement that no particular set of religious beliefs be required of office holders was their nod to their painful experience with the religious intolerance of England.

In Wednesday's Washington Post ("Why It's Right to Ask About Roberts's Faith"), columnist E.J. Dionne asks: "Is it wrong to question Judge John Roberts on how his Catholic faith might affect his decisions as a Supreme Court justice? Or is it wrong not to? . . . Why is it wrong to ask him to share his reflections with the public?" It would be helpful, Mr. Dionne concludes, "if Roberts gave an account of how (and whether) his religious convictions would affect his decisions as a justice."

Mr. Dionne's error is found is his own words: "Yes, any inquiry related to a nominee's religion risks being seen as a form of bigotry, and of course there should be no 'religious tests.' " Indeed. And that is the problem, again.

Journalists believe that the religious test clause guards against simple discrimination against Catholics or Jews or any other particular denominations. It does not. It prohibits a probe of what the potential officeholder believes derived of his religious convictions. It is not about what he lists on a questionnaire under religion, as if it were like race or sex. That is why the liberal press has mocked the concern raised by conservatives that the abortion litmus test and other lines of inquiry are a constitutionally prohibited religious test.

When England passed its two Test Acts, they did not prohibit Catholics from holding public office. Rather, the "test" sought to exclude anyone from holding public office who believed that the bread and wine in the ritual of the Eucharist turned into the body and blood of Jesus Christ, a fundamental tenet of Catholic belief.

Fortunately, Mr. Durbin and Sen. Chuck Schumer (D., N.Y.) have shied away from that line of inquiry, since their clients haven't figured out how to profit from it...

The U.S. Constitution is quite clear that there shall be no religious test. Of course, since left-wing Senators Schumer and Durbin don't believe in being guided by the original intent underlying the U.S. Constitution, none of us should find it surprising that they are willing to twist the religious test issue to meet their political objectives.

Several of the other postings listed below elaborate further on Senator Schumer's crass methods, methods driven by raw power objectives instead of principles that have any connection to the Founders' beliefs embodied in our Constitution.

Continue reading "U.S. Constitution: "No religious test shall ever be required as a qualification to any office or public trust""

What is the Federalist Society?

Manuel Miranda's discusses the Federalist Society in an editorial entitled The 'Evil Cabal' Of Conservative Lawyers:

Three years ago Sen. Orrin Hatch (R.-Utah) stood on the floor of the Senate and said: "Mr. President, I take the opportunity today to right a wrong. Over the past two years, members of the Federalist Society have been much maligned by some of my Democrat colleagues, no doubt because they see political advantage in doing so. The Federalist Society has even been presented as an 'evil cabal' of conservative lawyers. Its members have been subjected to questions that remind one of the McCarthy hearings of the early 1950s. Detractors have painted a picture which is surreal, twisted and untrue."

Here we go again.

Before I proceed, let me join the view...that the left looks pretty silly in making a big deal of Judge Roberts's association--whatever it is--with the Federalist Society. It is more than amusing; it is sophomoric. (See the three-page talking points issued yesterday by Howard Dean's Democratic National Committee on the Roberts-Federalist cover-up.)

Judge Roberts's ties with the Federalist Society are not the story. If Judge Roberts is not a member, he's not a member. But the White House should not be in the business of appearing to disassociate itself from its friends. By running to correct media reports last week that Judge Roberts was a member of the Federalist Society, the White House created an issue where none existed. It should have left it to the press or Democrats to unveil this great mystery. To add injury to insult, the move now has the appearance of having been bungled with the Washington Post's discovery of Judge Roberts's name on a Federalist Society list from 1997-98...

There is no Federalist Society handshake and there is no Federalist Society group think. Some years ago the Washington Monthly published an article titled "The Conservative Cabal That's Transforming American Law." It cited a 1999 decision by the D.C. Circuit Court of Appeals as the "network's most far-reaching victory in recent years.'' The decision overturned some of the EPA's clean-air standards on the grounds that it was unconstitutional for Congress to delegate legislative authority to the executive branch.

Oh, really? In this case two prominent individuals closely associated with the Federalist Society were of differing opinions. C. Boyden Gray, former White House Counsel for the first President Bush and a member of the Federalist Society's Board of Visitors, filed an amicus brief making the winning argument. Yet the case was overturned by the Supreme Court in a decision written by Justice Antonin Scalia, a frequent participant in the society's activities.

The Washington Monthly also attacked Mr. Gray as a water carrier for the Federalist Society in advancing Microsoft's effort against antitrust enforcement. Yet Robert Bork, who also served on the Federalist Society's Advisory Board, was Microsoft's chief intellectual adversary.

Rather than assist the left in creating a conservative bogeyman, here is a user-friendly defense of the Federalist Society: Again, the words are Orrin Hatch's. The Federalist Society stands for three propositions, he said: "that government's essential purpose is the preservation of freedom; that our Constitution embraces and requires separation of governmental powers; and that judges should interpret the law, not write it. For the vast majority of Americans, these are not controversial issues."

As Orrin Hatch concluded in his speech three years ago: The Federalist Society is "not quite the vast right-wing conspiracy hobgoblin some [Democrats] would have the American people believe."...

Here is the link to the Federalist Society website.

They define their purpose here:

The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks both to promote an awareness of these principles and to further their application through its activities. This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, and law professors. In working to achieve these goals, the Society has created a conservative and libertarian intellectual network that extends to all levels of the legal community.

You can read more about them here, including these points:

Q. Does the Federalist Society take positions on legal or policy issues or engage in other forms of political advocacy? A. No. The Society is about ideas. We do not lobby for legislation, take policy positions, or sponsor or endorse nominees and candidates for public service. While overall the Society believes in limited government, its members are diverse and often hold conflicting views on a broad range of issues such as tort reform, privacy rights, and criminal justice.

Q. Who joins the Federalist Society?
A. ...Membership is open to anyone who wishes to join the Society, and the organization often attracts people who share a desire for public service.

Q. Who can attend Federalist Society meetings?
A. Everyone is welcome to the programs of our 180 law school chapters, 60 metropolitan lawyers chapters, and 15 nationwide practice groups. The several hundred events sponsored each year by the Federalist Society are publicly advertised and are open to the press and the general public. A number of our events are on television or are webcast.

Q. Who are some of the Federalist Society's participants and speakers?
A. The Society has a strong reputation for hosting speakers on all sides of the ideological spectrum. A number of the Society's most frequent and prominent speakers - from the Left as well as the Right - attest to the fact that the Society has contributed a great deal to free speech, free debate, and the public understanding of the Constitution...

Sounds like a threatening group, doesn't it?

How the Left Blurs the Distinction Between Judging & Politicking

In an editorial entitled "The Inquisitor: Charles Schumer, leader of the anti-Bush crusade," John Miller writes these important words:

...[Schumer] has embarked on a careful strategy of blurring the fundamental distinction between judging and politicking. In 2001, he chaired Judiciary Committee hearings on whether ideology should play a more open role in confirmations. Previously, senators have focused on the professional qualifications of court nominees rather than their political beliefs, which is why a known liberal such as Ruth Bader Ginsburg was able to secure a spot on the Supreme Court with only three Republicans voting against her. With Bush in the White House, however, Schumer decided to try changing the ground rules. One of his mentors has been University of Chicago law professor Cass Sunstein, author of the forthcoming book Radical in Robes: Why Extreme Right-Wing Courts are Wrong for America.

If Democrats want to evaluate nominees on their legal views, Republicans shouldn't object. What Schumer proposes doing, however, is evaluating nominees on their political preferences. This is something else entirely, and it is a natural outgrowth of legal realism, an academic movement that claims laws aren't neutral rules so much as tools of power. By the time Schumer sat in Harvard's lecture halls, variants of this idea were firmly entrenched there - and it is the chief intellectual doctrine behind the judicial activism that liberals applaud and conservatives abhor. It essentially says that judges are no less political than politicians. Therefore, confirmation hearings should not be dispassionate episodes of advice and consent, but raucous quasi-elections that engage the interests and urges of the public...

Schumer cloaks these views about ideology by saying he simply wants to avoid extremes. "People on the far left [and the] far right want to make law," he said on Meet the Press in July. "Neither of them should be on the bench." The presumption, of course, is that senators possess the impartiality to determine what's mainstream and what's not. "If he thinks that he can set aside his liberal ideology and make these choices," asks Republican senator Jon Kyl of Arizona, "then why can't judges do the same when they're ruling on the law?"...

Continue reading "How the Left Blurs the Distinction Between Judging & Politicking"

Nothing But a Fishing Expedition

Power Line highlights the contradictory beliefs and statements of the Left regarding judicial behaviors:

...The Democrats say they need more time so they can "learn more about Judge Roberts' judicial philosophy, especially on whether he will defer to precedent or seek to undo modern American jurisprudence that many conservatives say has been wrongly settled." We hear this a lot; the Democrats worry that Roberts and other nominees might not adhere to the doctrine of stare decisis, which, in general, holds that courts should follow their own precedents rather than revisiting settled principles.

But the Democrats' loyalty to the principle of stare decisis is highly selective. In fact, most of the decisions most beloved by liberals have overturned precedents that held the opposite. For example, in Lawrence v. Texas, which in 2003 discovered for the first time a Constitutional right to homosexual sodomy, the Court expressly overruled its own decision in Bowers v. Hardwick, which was decided as recently as 1986. So as far as the Democrats are concerned, stare decisis applies only after the Court has made a liberal ruling. Liberal rulings are carved in stone, whereas "conservative" rulings--those that represent the traditional understanding of our Constitution and laws, as written--can and should be overturned freely.

As Paul has noted, we aren't sure exactly what Roberts' judicial philosophy is. But we're pretty certain it is more principled than the Democrats'.

Continue reading "Nothing But a Fishing Expedition"

Playing the Religious Bigotry Card, Again

As an American citizen who happens to be a practicing Roman Catholic, I am deeply offended by the Left's willingness to engage in anti-Catholic religious bigotry.

Hugh Hewitt tells the latest story in a Friday, July 22, at 7:50 a.m. posting entitled Preparing to play the "deeply held beliefs" card: Charles Schumer's New Test Act:

...But declarations of victory [about Supreme Court nominee John Roberts] are very premature given the obvious signs that the left is getting ready to mount a two-part campaign against [him].

Part I will be the conventional "give us the documents or we won't vote" blather that currently blocks Bolton and in the past was used to block Miguel Estrada. This is a delaying tactic, and nothing more. [See Power Line for more on this topic.]

The real assault is coming on Roberts --and his wife's-- Roman Catholicism.

It will be carefully coded, but there is no mistaking the set-up work underway to get the Demcrats' version of the Test Act established.

Four articles have appeared in two days that set-up the nominee's religious beliefs as a subject for conversation.

[Read the posting to get the particulars in each article.]

Robert Novak's column from August 11, 2003 provides the key history to the expected assault on John Roberts:

On May 1 in a Senate Judiciary Committee session, Schumer raised religious questions in connection with the nomination of lawyer J. Leon Holmes as district judge from Arkansas. Holmes has the support of his state's two Democratic senators, but not Chuck Schumer. The New Yorker argued that the conservative religious views of Holmes, a devout Catholic, disqualified him because of disagreements interpreting the separation of church and state. Schumer contended that 'religious beliefs cannot dictate government policy, even though they can infuse our values.'

That was preparation for Schumer's opposition to Alabama Attorney General Bill Pryor for the appellate bench, another conservative Catholic who is the most recent of the filibustered Bush nominees. In the Judiciary Committee June 11, Schumer said Pryor's beliefs 'are so well known, so deeply held that it's very hard to believe that they're not going to influence' him on the bench. Sen. Dianne Feinstein of California, another Judiciary member, also has cited the 'deeply held beliefs' standard.

It is going to get ugly, and how ugly depends upon how desperate the left is, and it looks pretty desperate.

Let's call this behavior by its real name: It is another form of religion called Liberal Fundamentalism.

And it reeks of intolerance, best explained by Richard John Neuhaus:

The conflict in American public life today then is not a conflict between morality and secularism. It is a conflict of moralities in which one moral system calls itself secular and insists that the other do likewise as the price of admission to the public arena. That insistence is in fact a demand that the other side capitulate...

And here is the full counter-argument to their attempts to enslave us with their intolerant secular religion.

ADDITIONAL INFORMATION:

Power Line continues the conversation here, a posting which highlights this editorial by Jonathan Turley and which led to discovering an updated editorial by Robert Novak.

Power Line has more as Senator Durbin, a man known in recent times for speaking only the truth! about the American military, denies what Turley wrote about in his editorial. Power Line has more here.

And be sure to check out Justin's thoughtful comment (#3) to this posting, a comment that inspires awe as he once again shows off his remarkable gift for clarity in written communication.

Continue reading "Playing the Religious Bigotry Card, Again"

Senator Schumer's Double Standard

Richard Epstein's editorial entitled Who Will Judge the Inquisitors? notes that Senator Schumer's behavior toward Supreme Court nominee John Roberts is hypocritical:

�Hence I should like to take up the gauntlet thrown down by Sen. Schumer to identify three recent Supreme Court cases that I disagree with�

�I think we have to play by a different set of ground rules. Hard debate is a two-way street. Every time I defend my views, I am rightly at risk for criticism and refutation. But Sen. Schumer thinks his views set the gold standard for constitutional interpretation. But he, too, should be at risk to questions about his deeply held beliefs. Here is how I would start.

From the get-go, I would insist that we view with suspicion the oft-hurled epithet of "judicial activism." Judicial review, which allows the Court to strike down federal and state legislation, is an indisputable part of the Constitution. The structural and substantive prohibitions the Constitution contains are large. One can be a "strict constructionist" and still believe that major legislative initiatives, executive orders, and administrative rules are unconstitutional. By the same token, the government should be accorded a wider degree of discretion in running its own affairs -- the military, courts, schools, etc. -- a view that is largely permissive of government affirmative action programs that parallel those which comparable private institutions adopt on a voluntary basis. In these cases the private benchmark offers a useful measuring rod for state discretion.

But for Sen. Schumer my questions address the coercive use of government power. What presumption should attach to the constitutionality of the use of state force? This vexed question of the "standard of review" is nowhere stated in the Constitution, and thus ultimately derives from a sense of its basic purposes, which I take to be the preservation of "ordered liberty" -- with a state strong enough to rule, but not so strong as to snuff out the liberties of ordinary people to own property, enter contracts, worship, and speak as they please.

Given that view, the proper response to all forms of state regulation of private activities should be to subject them to serious judicial scrutiny, in order to see that they achieve their legitimate objectives. Judged by this twin standard, many decisions come out badly...

[Epstein then goes on to comment about three specific cases, comments which are worth reading in detail for the full impact of his argument.]

Note that my three cases all involve situations in which responsible constitutional interpretation requires some strong acts of judicial intervention [which Sen. Schumer would oppose in the three cases]. Liberals like Sen. Schumer think that this presumption [of judicial intervention] works in cases like gay marriage (where they have a strong case) and abortion (where their case is far weaker, owing to the interest of the unborn child).

�My main point here is that Sen. Schumer's own views are subject to powerful intellectual counterattack, so that before he and his allies cast stones on John Roberts, he should recognize that he and his ilk also live in a glass house.

But, then again, we know what Senator Schumer's agenda has always been - even before John Roberts was nominated.

For the Left, this nomination battle is a raw power struggle focused on sustaining the recent practice of the Supreme Court to legislate on policy issues from the bench in ways that would never be endorsed by the public in state and local legislative bodies.

Continue reading "Senator Schumer's Double Standard"

The Ginsburg Precedent

In a Wall Street Journal editorial entitled Who Will Judge the Inquisitors?, Richard Epstein discusses Supreme Court nominee John Roberts and Democratic Senator Schumer's initial comments:

...I have never met Judge Roberts, nor, for that matter, read a single one of his opinions. But I knew that he enjoyed the reputation as one of the keenest intellects and best Supreme Court advocates in the highly competitive Washington legal market. A glance at his gilt-edged resume -- his 1979-80 clerkship with the late Judge Henry Friendly on the Second Circuit Court of Appeals leaps out -- only increased my confidence in his nomination. His familiarity with complex business matters counts as a big added plus. Well done, I thought. This should be a cakewalk.

Then I heard Senator Charles Schumer, somber and self-righteous, reach, as he so often does, for the microphone, to announce that gilt-edged credentials are not enough. In his view, all nominees must be vetted for the soundness of their ideological positions. More pointedly, he observed that when John Roberts was up for a Circuit Court judge position, he refused, under questioning, to identify three Supreme Court decisions that he disagreed with. This time round, Sen. Schumer warned, that evasion will not work...

Now, if you want to see a double standard at work, consider this posting from Hugh Hewitt entitled The Ginsburg Precedent:

"I prefer not to answer questions like that; again, to talk in grand terms about principles that have to be applied in concrete cases. I like to reason from the specific case," was the response of Ruth Bader Ginsburg to Patrick Leahy's 1993 question to then nominee Judge Ginsburg on which of the two religion clauses of the First Amendment was subordinate to the other.

Judge Roberts will no doubt be spending a lot of time with the transcripts of the confirmation hearings, especially that part where Senator Leahy says "I understand. Just trying, Judge, just trying" in response to Justice Ginsburg refusal to engage in great debate over constitutional principles.

This article by Jay T. Jorgensen explains in detail the importance of the precedents established by the Ginsburg hearings. One of his many key findings:

"Justice Ginsburg declined to answer questions about her views on both prospective and many historical Supreme Court cases. She also declined to answer questions (or gave non-responsive answers to questions) involving a number of controversial issues, hypothetical facts, or areas in which she is not an expert."

Nothing has changed in 12 years, except that the president nominating the justice is George W. Bush and not Bill Clinton. The MSM will attempt to prop up the wild claims of Senators Leahy and Schumer about the duties of nominees, as the New York Times editorialists did this morning when they wrote "[t]he Senate has a duty to scrutinize his background and to question him closely at his confirmation hearings about substantive areas of the law." But when biased papers invent such "duties," or when Ted Kennedy makes the statement that "[n]o nominee, especially a nominee who is well known to have argued ideological positions on issues important to the American people, should be confirmed without full and candid disclosure and discussion of those positions and their importance to him," the Ginsburg precedent must be close at hand.

Useful activism: The Jorgensen article is easily linked and e-mailed. Bloggers should feature it prominently on their blogs, and activists should e-mail it to columnists and editorial writers at every level of the media. It will especially be useful if hundreds of activists e-mail it to D.C. talking heads so that they have no excuse for indulging the Schumers and the Leahys who hold forth on the duty of nominees to answer loaded questions...

Here is the list of questions Senator Schumer has for Judge Roberts.

Mark Levin comments:

Justice Scalia gave a speech about the Pledge of Allegiance, in which he took a position on the words "under God." As a result he was compelled ethically to recuse himself from the case. A nominee for the Court, giving answers under oath, is under a similar obligation. It would be irresponsible to give direct answers to inappropriate questions.

Robert Alt explains further:

During recent confirmation hearings, Senate Democrats have taken to asking candidates very specific questions about legal issues which are likely to come before their prospective courts. Such questions have presented the nominees with a Catch-22: If the nominees answer the questions, then they risk running afoul of the codes of judicial ethics, and may be required to take no part in cases raising that issue coming before the court. If, however, the nominees choose to point out that judicial cannons prohibit them from answering the question, then they face rejection by Senate Democrats for not being sufficiently forthcoming.

Continue reading "The Ginsburg Precedent"

"Restoration of Judicial Restraint Assists the Restoration of Good Will, Because Democratic Governance Gives Everyone Their Say"

The following words are written in a new Wall Street Journal editorial entitled No More Souters:

...the record across recent decades is that justices who join the High Court without a clear and confident jurisprudence eventually become part of what has been a longstanding liberal majority...

By "liberal majority," by the way, we aren't merely referring to such issues as abortion or gay rights. Our objection to Roe and to Lawrence, the Texas sodomy case, isn't on the underlying policy. It is that the Court has hijacked those social disputes from democratic debate, preventing the kind of legislative compromises that would allow a social and political consensus to form. As federal appeals court Judge J. Harvie Wilkinson put it recently in an address at Duke University Law School, "In this sense, a restoration of [judicial] restraint assists the restoration of good will, because democratic governance gives everyone their say."

But there are many other issues on which the post-Warren justices have arrogated to themselves an almost legislative authority: overturning voter-passed Congressional term limits by 5-4, dictating racial and gender preferences in law, extending the Commerce Clause to encompass virtually any federal authority as in last term's Raich medical-marijuana decision, or expanding eminent domain in Kelo.

This is the history...

But the larger goal should be to pick someone who has the intellectual conviction and firepower to help restore the High Court to its more restrained historical role. In a phrase, this means putting an end at last to the judicial legislating that was unleashed in the Warren era and that has slowed only on occasion ever since.

Continue reading ""Restoration of Judicial Restraint Assists the Restoration of Good Will, Because Democratic Governance Gives Everyone Their Say""

Senator Santorum: Judicial Activism is Destroying Traditional Morality

In the first of five excerpts from It Takes a Family, Senator Rick Santorum has this to say about the debate regarding the proper role for the Supreme Court in our society:

The village elders (a.k.a. left-wing members of Congress) introduce very few bills � almost none that attract more than one or two cosponsors. There are no hearings where Congress and the public can hear arguments about the merits to society of changing its moral fabric. Did Congress pass a law that said it was illegal to display a Christmas cr�che on public property, tell us we could not recite the pledge that we are "one nation under God" in schools, or legislate away displays of the Ten Commandments from public buildings? Did we pass a constitutional amendment that gave anyone a right to marry as many people of whatever gender they want? Did we pass an amendment that gave women the right to abort their children at any time, for any reason, during pregnancy? Did we pass a law that minors could undergo the surgical procedure of abortion without parental consent or notification? The answer to all of these questions is: No! Not in one state legislature, much less in the U.S. Congress, did the democratic branches of government, the people�s branches, pass such amendments or enact such laws. How could the moral fabric of America be so torn apart without so much as a single act of Congress duly signed by the president?

The answer is, of course, the courts � most particularly, the federal courts. A generation ago, liberals figured out something that most conservatives couldn�t have dreamed of in their worst nightmare. A few well-positioned autocrats can do what most Americans thought, and the Constitution says, takes two-thirds of the Congress and three-quarters of the state legislatures to do: namely, change the Constitution to mean whatever they want it to mean. The plan was simple. Put justices on the Supreme Court, backed up by lower court judges, to "modernize" our Constitution by fiat...

How often do we hear that our founding compact needs to be a living, breathing document whose meaning changes with the times? Never mind what the words of our Constitution actually say; never mind the clear intent of the Constitution�s writers and signers; never mind two hundred years of judicial interpretation; never mind the centuries-old wisdom of the common law: We are much wiser today than our predecessors. Or so goes the liberal boast...

I have been referring to the Left as the "village elders." Well, when it comes to the Court and its activist decisions, we have come to the high oligarchy of the village elders: accountable to no one, deciding the most important and troubling issues of our time, issues that speak to our very identity as a people and even as human beings. And all of this has been done undemocratically � even anti-democratically.

With Congress, if the people decide its representatives have made a mistake, the people can throw them out and bring in different ones to correct with new laws any errors perpetrated by the old. But the Supreme Court almost never has second thoughts: It certainly has not had second thoughts about its fundamental project of the past generation, the project of moral revolution enshrined in law. In fact, in the infamous Casey decision in 1992, which reaffirmed Roe v. Wade and the abortion license, the Court�s majority opinion actually said that widespread popular opposition to Roe was an important reason for the Court to stick to its pro-abortion decision: To do otherwise would "subvert" the Court�s "legitimacy." In other words, the village elders have spoken, and it is up to the American people to shut up and obey.

...Could our founders...ever have imagined such judicial arrogance? Actually, some eventually did. Thomas Jefferson said in 1821:

The germ of destruction of our nation is in the power of the judiciary, an irresponsible body � working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall render powerless the checks of one branch over the other and will become as venal and oppressive as the government from which we separated.

I often use the extended metaphor of various kinds of "capital." When it comes to what has happened to our moral capital in the past generation or two, I am stymied for a verb to use. It wasn�t "squandered" or "spent down"; it didn�t "trickle away." The verbs that come to mind are destroyed and replaced. Traditional morality is being destroyed, and being replaced by something that claims to be morality, but ultimately has little social benefit or ability to sustain the democratic experiment...What we Americans did with our moral capital over the last generation is...On government orders � in our case, on Court orders � we melted it down, for nothing.

Here are the subsequent excerpts from Senator Santorum:

The Constitutional Wrecking Ball - It all started with Griswold
Enter "Neutrality"- From accommodating separationism to Everson
A Perfect Storm: Privacy. Neutrality. Free Expression.
Mending Morality: Where do we stand? What comes next?

Continue reading "Senator Santorum: Judicial Activism is Destroying Traditional Morality"

Viewing the Supreme Court Nomination Battle From the Far Left

Here is how MoveOn.org describes the upcoming Supreme Court nomination process:

Just days after Justice O'Connor's resignation, the fight to protect our rights is in full swing. By all accounts, this will be a long, fierce campaign. The radical right is already pouring millions of dollars in large, secret contributions into the right wing spin machine, determined to ram through whomever Bush puts forward...

If Bush announces an extremist nominee we'll to need respond fast and hard with ads on the airwaves and in major newspapers that get our message out�and none of it comes cheap. So today we're launching our Emergency Fund to Protect our Rights with an initial goal of $500,000. If you can help us get there now, we can leap straight into action the moment we hear the news.

If keeping an extremist off the Supreme Court is important to you, this is a great time to chip in...

The national press is already reporting that this will be the most expensive, ruthless Supreme Court nomination ever. They're calling this the "Presidential election of 2005" and estimating as much as $100 million will be spent in the fight.

Why are far-right leaders like Jerry Falwell and James Dobson determined to spend so much? Because even with Republican control of Congress and the White House, our independent courts (not to mention the Constitution) still interfere with their drive to impose a narrow, far right agenda on the rest of America. After more than 10 years without an opening on the Supreme Court, this is the chance they've been waiting for to seize complete control...

Look again at the words they use: Radical right. Secret contributions. Right wing spin machine. Ram through. Extremist nominee. Ruthless. Impose a narrow, far right agenda on the rest of America. Seize complete control.

Now contrast those words with the words and substantive content of these previous postings:

Orrin Hatch: Don't Overstate "Advise and Consent"
Judicial Activism: Commandeering the Public Debate & Violating the Founding Principles of America
Are You an Originalist?
How Original Intent Does Not Equal Conservative Judicial Activism
"The Supreme Court Has Converted Itself From a Legal Institution to a Political One"
Relinking Constitutional Law & Jurisprudence to the Constitution
Rediscovering Proper Judicial Reasoning

It is worth repeating: The use of extreme language by the far left is an attempt to turn the nomination process into a raw power struggle that distracts everyone from having a truly open, public debate about the core question of whether judicial activism (i.e., legislating from the bench) or judicial restraint (i.e., legislatures, not courts, legislate) is the proper role for the judicial branch of our government.

Orrin Hatch: Don't Overstate "Advise and Consent"

Republican Sen. Orrin Hatch writes in National Review Online about the proper method of "advise and consent" that should be exercised by the Senate with regards to the process of nominating a Supreme Court Justice.

The fact that the president and the Senate each has a role, however, does not make those roles co-equal. The Founders' view that the president is the "principal agent" and this new theory that the president and Senate are "co-equal partners" cannot both be true. The purpose of this novel theory is obvious, and it is to change the Constitution's assignment of judicial selection roles in order to appoint different judges. As Senator Edward Kennedy said on the Senate floor on July 12, the consultation Democrats demand "is more than a process, it's about an outcome." That outcome is a "consensus" nominee who will win "widespread bipartisan support," whether or not it is whom the president wants to appoint.

In other words, this scheme aims at forcing the president who did win the election to nominate someone acceptable to his opponents who did not. It seeks to turn consultation into co-nomination. Not content to exercise the role the Constitution does assign to the Senate by vigorously debating and then voting on a nominee, these senators and their left-wing enablers want to create a role the Constitution does not assign to the Senate, by manipulating the president's choice of a nominee.

This invented arrangement may serve their political agenda, but it is radically different from what the Constitution prescribes. Especially where the judicial branch is concerned, we should prefer the Constitution over politics. And the Constitution allows the President to decide how best to fulfill his constitutional responsibility of nomination.

He also notes the sudden increase in citation of his book, Square Peg, by Senate Democrats demanding a role in picking President Bush's Supreme Court nominees. He warns them to not take his words out of context.

In 1993, President Clinton sought my input when considering a replacement for the retiring Justice Byron White. Some senators are today fond of waving my book Square Peg, in which I described cautioning President Clinton that confirming some candidates he was considering, such as then-Interior Secretary Bruce Babbitt, would be difficult. President Clinton instead nominated Ruth Bader Ginsburg, and she was easily confirmed.

President Clinton sought my input without my demanding it because he believed it would help him fulfill his constitutional responsibility for making judicial nominations. He did so not because Senate Republicans threatened filibusters or demanded some kind of veto power over his nominations. We did not try to impose a "consensus" standard or insist that a nominee meet some super-majority "widespread support" threshold.

Instead, President Clinton sought my input because I had established a cooperative relationship with him, because he knew his nominees would be treated fairly. Senators demanding consultation and threatening filibusters today might instead consider taking the same approach. Perhaps earning consultation will work better than demanding it.

While I appreciate publicity for my book, I have yet to hear a Democratic senator who holds it up also quote from page 126, where I write: "One of the consequences of a presidential election...is that the winner has the right to appoint nominees to the court." In fact, at the same time I was giving President Clinton the input he sought, I also said on the Senate floor: "The President won the election. He ought to have the right to appoint the judges he wants to." Some who today demand consultation appear to have rejected that notion altogether.

In the end, the constitutional principle is simple. The president, not the Senate, makes judicial nominations. The Senate's role is a check on appointment, not a veto on nomination. Every president must decide for himself what will help him fulfill his constitutional responsibility. President Bush has chosen to reach out to more than 60 senators for input, including more than half of the Democratic Caucus and every member of the Judiciary Committee. Such consultation, as well as his eventual nomination, are his choice.

Shortly after President Bush took office in 2001, the Senate Democratic leadership vowed to use "whatever means necessary" to defeat undesirable judicial nominees. That spring, Democrats huddled with left-wing strategists to "change the ground rules" for the judicial-confirmation process. The filibusters that followed and the current demand for "consultation" and "consensus" nominees is part of that strategy. As Senator Kennedy put it, this is not about a fair process but a desirable outcome. The Senate's integrity and the judiciary's independence, however, requires rejecting political gimmicks and sticking with constitutional principle.

Judicial Activism: Commandeering the Public Debate & Violating the Founding Principles of America

Here is an excerpt about judicial activism from an earlier posting entitled Rediscovering Civility and Purpose in America's Public Discourse:

Many of these aggressive attempts by liberal fundamentalists to redirect societal practices have been done through a hyperactive judiciary. It has been going on for enough decades now and, with our weak knowledge of history, many Americans do not appreciate how judicial activism is a relatively recent phenomenon, it violates the governmental principles upon which our nation was founded, and it has an insidious effect on the relationship between the government and the governed.

Chief Justice Warren Burger elaborated on this in the 1982 case of Plyler v. Doe:

The Constitution does not constitute us as "Platonic Guardians" nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, 'wisdom,' or 'common sense.'...We trespass on the assigned function of the political branches under our structure of limited and separated powers when we assume a policy-making role.

Subsequently, Justice Antonin Scalia reinforced this point in his dissent in the 2003 case of Lawrence v. Texas:

The Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.

In the case of West Virginia State Board of Education v. Barnette nearly 70 years ago, Justice Felix Frankfurter also emphasized how judicial activism is contrary to American principles of government:

As a member of this Court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. The duty of a judge who must decide which of two claims before the Court should prevail, that of a State to enact and enforce laws within its general competence or that of an individual to refuse obedience because of the demands of his conscience, is not that of the ordinary person. It can never be emphasized too much that one's own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one's duty on the bench. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could in reason have enacted such a law...

When Mr. Justice Holmes, speaking for this Court, wrote that "it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts..." he went to the very essence of our constitutional system and the democratic conception of our society. He did not mean that for only some phase of civil government this Court was not to supplant legislatures and sit in judgment upon the right or wrong of a challenged measure. He was stating the comprehensive judicial duty and role of this Court in our constitutional scheme whenever legislation is sought to be nullified on any ground, namely, that responsibility for legislation lies with legislatures, answerable as they are directly to the people, and this Court's only and very narrow function is to determine whether within the broad grant of authority vested in legislatures they have exercised a judgment for which reasonable justification can be offered...

This is no dry, technical matter. It cuts deep into one's conception of the democratic process...

In his book entitled The Uncivil War: How a New Elite is Destroying our Democracy, David Lebedoff offers an explanation about the intent underlying the push for judicial activism:

Many who loudly insist on the appointment of activist judges describe themselves as political "activists," as well. But how can one possibly endorse both judicial and political activism, unless, of course, political activism has come to mean something different from what the label implies? One who believes in judicial activism can be a political activist only if he or she no longer views political activity as directed toward the achievement of majority support. If one believes that the point of politics is to see that society does what is "right," regardless of what the public thinks or wants, only then can these two forms of activism indeed be reconciled.

Lebedoff then discusses the eventual consequences of judicial activism:

As those of one political philosophy or another seek to write their own notions into law, with no restraint from themselves or the public, the immigrant wisdom of Justice Frankfurter may be recognized at last for what it really is: a timeless warning that if consent of the governed is not our goal, it will become our memory.

In their book entitled Democracy by Decree: What Happens When Courts Run Government, Ross Sandler and David Schoenbrod note how judicial activism undermines government accountability to the citizenry:

Democracy by decree undermines accountability of government to the voters. Democratic accountability is, in our constitutional scheme, not an unalloyed good. The framers of the U.S. Constitution recognized that a democratically accountable government may reflect bigotry or be inattentive to the people's needs or rights that they should have. For that reason, the Constitution includes rights and authorizes Congress to enact statutes necessary to ensure that state and local government honor them. These are rights, not aspirational goals dressed up as rights.

As long as rights are honored, everything else, including how the rights are honored, is a question of policy to be left to elected officials. The Constitution and its state and local counterparts set up the ground rules for how policy should be made. These ground rules are designed with careful attention to the potential faults of people and those they elect. The guiding principles are division of power and accountability.

Division of power is required because of distrust of both the people and those whom the people elect. Power is divided, first of all, between those who are empowered to govern and those who are governed. Those who are governed retain the power to vote the elected out of office. The power of those who govern is further divided many ways - between the federal government and the states, and within each level of government among the legislature, the executive, and the courts. Inherent in the whole scheme is that elected officials should bear the responsibility for the key policy choices and must retain the power to change policy.

Although the system is far from perfect, democracy by decree makes it worse. It does not substitute the dispassionate rule of judges for the rule of politicians. Decisions by controlling groups are politics in a different form. By hiding ordinary politics behind the robes of judges, democracy by decree makes government less accountable and therefore less responsive. Judicial reason does not supplant politics. Instead, the courts become political.

It is only through the "messiness" of a reasoned public discourse that a broad societal consensus can be achieved on major issues. Judicial activism short-circuits that process, to the detriment of our democratic institutions and habits.

This issue has been discussed in previous postings:

Are You an Originalist?
How Original Intent Does Not Equal Conservative Judicial Activism
"We Are Going To Go To War Over This"
"The Supreme Court Has Converted Itself From a Legal Institution to a Political One"
Relinking Constitutional Law & Jurisprudence to the Constitution
Rediscovering Proper Judicial Reasoning

Are You an Originalist?

Due to the complete lack of focus on the deeper, underlying issues about constitutional law, certain groups across the political spectrum will be spending their time, energy, and money to develop the necessary political power to frame the debate and create a victory for their side in the upcoming Supreme court nomination battle.

As noted in a previous posting, that exercise of raw power completely misses the important issue missing in the public debate: What is the proper role for the Supreme Court? Therefore, this posting is part of a continuing series of postings that attempt to clarify the core issues that are ignored when the focus is solely on the show of raw political power.

Edward Whelan has offered some valuable perspective on the topic of Are You an Originalist?:

President Bush's promise to appoint originalist justices like Scalia and Thomas invites the question: What is this peculiar creature, the originalist?

The term "originalism" identifies the traditional, common-sense principle that the meaning of various provisions of the Constitution (and of other laws) is to be determined in accordance with the meaning they bore at the time they were promulgated. The status of originalism as the only legitimate method (or class of methods) of constitutional interpretation inheres in the very nature of the Constitution as law. As Chief Justice Marshall explained in his landmark 1803 opinion in Marbury v. Madison, the Constitution is "committed to writing" so that its "limits may not be mistaken or forgotten." To disregard its limits is to "reduce[] to nothing what we have deemed the greatest improvement on political institutions � a written constitution."

It is significant that the term "originalism" appears to be of relatively recent vintage. The reason for this is not that there is anything novel about originalism. Precisely the opposite. Until recent years, originalism had been so unchallenged as constitutional orthodoxy that there was no reason to develop a term that would distinguish it from any rival. As Justice Scalia has put it, "in the past, nonoriginalist opinions have almost always had the decency to lie, or at least to dissemble, about what they were doing." But the rise of the "living Constitution" � the Orwellian euphemism that liberal activists have used to pretend that the Constitution has somehow "grown" to entrench forever their own policy preferences � made necessary a label for what everyone had previously recognized as elementary.

An analogous semantic development might illustrate this point. According to the Oxford English Dictionary, the term "heterosexual" came into usage barely a century ago. This is obviously not because heterosexuals did not previously exist, but rather precisely because what we now call heterosexuality had been widely understood to be normative...

This issue has been discussed in previous postings entitled How Original Intent Does Not Equal Conservative Judicial Activism, "The Supreme Court Has Converted Itself From a Legal Institution to a Political One", and Rediscovering Proper Judicial Reasoning.

How Original Intent Does Not Equal Conservative Judicial Activism

Implicit in the public debate about the upcoming Supreme Court nomination is the assumption by many on the left that any nominee by President Bush is going to be an activist from the right who will seek to undo the aggressive legislating done by the Court in recent years with an equally aggressive counter response. Such a belief reduces the debate to nothing more than a raw power struggle between competing interests. And it completely misses the real point of the judicial activism debate.

Power Line, which is run by lawyers, offers all of us an insightful look at the question of judicial activism and how original intent leads to judicial restraint, not conservative judicial activism, and most certainly does not equal liberal activism:

...The fallacy here is in defining judicial activism and restraint as willingness to vote, respectively, to overturn and uphold legislation. If one accepts this definitional framework, then the moral equivalency argument sounds plausible. But if one defines activism and restraint more sensibly, based on the way judges interpret the Constitution, the argument collapses.

The key distinction here is that conservative judges tend to determine what the Constitution does and doesn't protect and prohibit based on a careful reading of what the Constitution says and how it originally was understood. Liberal judges tend to determine the meaning of the Constitution based on their policy preferences, and because those preferences often bear little relation to those of the Constitution's drafters, they rely on whatever they can get their hands on. It may be true that conservative judges often vote in support of their policy preferences too. But, as conservatives, their policy preferences are likely to reflect the traditional preferences and values that the authors of the Constitution believed in and set forth in the document...

...Policy preferences that aren't rooted firmly in that document should be for legislatures, not courts, to impose.

Those of us who believe in an original intent approach to judicial behavior believe that legislatures are the place where democratic processes should play out in order to build a public consensus on important policy matters. It takes time and it frequently seems like a messy, inefficient process. But, consider the horrible alternative we now live with: When the Supreme Court legislates on policy matters, it immediately stops any public debate before there has been sufficient time to develop a public consensus. As a result, their action immediately yields a polarization on the topic which, as the abortion issue has shown, makes reasoned debate and building a public consensus practically impossible. We have become a more divided society due to judges legislating from the bench.

This issue has been discussed in previous postings entitled "The Supreme Court Has Converted Itself From a Legal Institution to a Political One" and Rediscovering Proper Judicial Reasoning.

"We Are Going To Go To War Over This"

Senate Judiciary Committee member Charles Schumer (D-NY) was overheard on his cell phone aboard an Amtrak train making the following comments about the upcoming Supreme Court nomination battle:

...Schumer promised a fight over whoever the President�s nominee was: "It's not about an individual judge� It's about how it affects the overall makeup of the court."...

Schumer proudly declared: "We are contemplating how we are going to go to war over this."...

Schumer later went on to mock the "Gang of 14" judicial filibuster deal and said it wasn�t relevant in the Supreme Court debate.

"A Priscilla Owen or Janice Rogers Brown style appointment may not have been extraordinary to the appellate court but may be extraordinary to the Supreme Court."...

Such reasonable people, aren't they?

Here is more.

"The Supreme Court Has Converted Itself From a Legal Institution to a Political One"

If you ever wanted further evidence of how political the Supreme Court nomination process has become, consider this 1981 quote from none other than Senator Ted Kennedy during the Sandra Day O'Connor confirmation hearings:

It is offensive to suggest that a potential justice of the Supreme Court must pass some presumed test of judicial philosophy. It is even more offensive to suggest that a potential justice must pass the litmus test of any single-issue interest group. The disturbing tactics of division and distortion and discrimination practiced by the extremists of the new right have no place in these hearings and no place in the nation's democracy.

To explain what has changed and the consequences from those unfortunate changes over the years, here is Robert Bork in a Wall Street Journal editorial (available for a fee) entitled Their Will Be Done:

...until recently Americans did possess a large body of common moral assumptions rooted in our original Anglo-Protestant culture, and expressed in law. Now, however, a variety of disintegrating influences are undermining that unanimity, not least among them is the capture of constitutional law by an extreme liberationist philosophy. America is becoming a cacophony of voices proclaiming different, or no, truths.

Alexis de Tocqueville observed that "If each undertook himself to form all his opinions and to pursue the truth in isolation down paths cleared by him alone, it is not probable that a great number of men would ever unite in any common belief. . . . [W]ithout common ideas there is no common action, and without common action men still exist, but a social body does not."

Contrast Tocqueville with Justices Harry Blackmun and Anthony Kennedy. Blackmun wanted to create a constitutional right to homosexual sodomy because of the asserted "'moral fact' that a person belongs to himself and not others nor to society as a whole." Justice Kennedy, writing for six justices, did invent that right, declaring that "At the heart of [constitutional] liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Neither of these vaporings has the remotest basis in the actual Constitution and neither has any definable meaning other than that a common morality may not be sustained by law if a majority of justices prefer that each individual follow his own desires.

Once the justices depart, as most of them have, from the original understanding of the principles of the Constitution, they lack any guidance other than their own attempts at moral philosophy, a task for which they have not even minimal skills. Yet when it rules in the name of the Constitution, whether it rules truly or not, the Court is the most powerful branch of government in domestic policy. The combination of absolute power, disdain for the historic Constitution, and philosophical incompetence is lethal.

The Court's philosophy reflects, or rather embodies and advances, the liberationist spirit of our times. In moral matters, each man is a separate sovereignty. In its insistence on radical personal autonomy, the Court assaults what remains of our stock of common moral beliefs. That is all the more insidious because the public and the media take these spurious constitutional rulings as not merely legal conclusions but moral teachings supposedly incarnate in our most sacred civic document...ever-expanding rights continually deplete America's bank of common morality...

Democratic senators' filibusters of the president's previous judicial nominees demonstrate liberals' determination to retain the court as their political weapon. They claim that conservative critics of the Court threaten the independence of the judiciary, as though independence is a warrant to abandon the Constitution for personal predilection. The Court's critics are not angry without cause; they have been provoked. The Court has converted itself from a legal institution to a political one, and has made so many basic and unsettling changes in American government, life, and culture that a counterattack was inevitable, and long overdue. If the critics' rhetoric is sometimes overheated, it is less so than that of some Democratic senators and their interest-group allies. The leaders of the Democratic Party in the Senate are making it the party of moral anarchy, and they will fight to keep the Court activist and liberal. The struggle over the Supreme Court is not just about law: it is about the future of our culture...

...the stakes are the legitimate scope of self-government and an end to judicially imposed moral disorder.

That is why Shannen Coffin writes about this upcoming nomination battle in the following way:

...Within minutes of the announcement of O'Connor's retirement, the dinosaurs of the Left took to the airwaves to attempt to frame the debate. Planned Parenthood cried that "women's health and safety [are] on the line." People for the American Way shrieked that our "very national identity hangs in the balance." Kim Gandy, president of the National Organization for Women, declared "a state of emergency for women's rights." Nan Aron, of left wing Alliance for Justice, spelled out what was to come: "a fight that will shape our lives for decades."

All of the breathless talk was evidence of just how far the Far Left have slipped...

So what is left for the Left? The Court. More than any other time in our history, the gears of liberal social activism no longer turn beneath the dome of the United States Capitol, but have moved a few hundred yards across the street to the United States Supreme Court. Liberal groups like the ACLU, Planned Parenthood, and the National Abortion Federation, well aware that the electorate is not solidly (if at all) behind their agenda, have turned to the Courts to advance their mission. Every time the people of the country speak through their legislatures on the hot-button issues of the day � abortion, homosexual rights, affirmative action, you name it � the army of lawyers of the Left line up at the courthouse steps to put a stop to the will of the people...Unlike the conservative movement that seeks to limit the now pervasive influence of the Supreme Court in our daily lives, liberal activist groups need the Court. Their success in changing social norms, their access to bank accounts in the Hamptons and Hollywood, their very existence � all depend on their ability to control its makeup.

It should come as no surprise that this summer will be a liberal political jihad...

Nothing is more telling about the desperation of the Left in modern politics than their warm embrace of Justice O'Connor over the last few days...

...she was a far cry from a Justice Brennan or Thurgood Marshall, the former standard bearers for the Left. For Ted Kennedy and Harry Reid to be embracing O'Connor as the model of a perfect judge speaks volumes to how far they have slipped in the American political debate.

...Despite their empty words of praise, leading Democrats in the Senate know that the best they can do is fight to the death on the president's nominee, demonizing that person no matter how esteemed or qualified. Anyone short of Ted Kennedy himself might not appease desperate liberals. So be prepared for judicial Armageddon. It may be the Left's last stand.

On an important philosophical level, here is a related posting entitled Rediscovering Proper Judicial Reasoning which uses a recent case to talk about the meaning of "original intent" in contrast to judicial activism.

Relinking Constitutional Law & Jurisprudence to the Constitution

William Kristol, in an article entitled Reversing the Bork Defeat, makes this observation:

On October 23, 1987--a day that lives in conservative infamy--Robert Bork's nomination to the Supreme Court was rejected by a Democratic Senate. Now, 18 years later, George W. Bush has the chance to reverse this defeat, and to begin to fulfill what has always been one of the core themes of modern American conservatism: the relinking of constitutional law and constitutional jurisprudence to the Constitution.

The restoration of constitutional government has been the one area in which modern conservatism has had the least success. From Ronald Reagan to George W. Bush, conservative economic policies have been (more or less) pursued, and, when pursued, have been vindicated. From Ronald Reagan to George W. Bush, conservative foreign policies based on American strength and American principles have been--when pursued--remarkably successful. One might even say that, in both economics and foreign policy, the degree of conservative success has been far greater than anyone would have imagined in 1980.

But in the area of constitutionalism, conservative goals have been thwarted, and the key moment of failure, from which conservative constitutionalism has never recovered, was the Bork defeat in 1987. For the last 18 years constitutional jurisprudence has continued to drift away from a sound constitutionalism based on the written Constitution and a proper deference to popular self-government in many areas of public life. Bork's defeat was both a cause and a symbol of this continued downward drift...

The Kelo Decision Revisited: An Ironic Twist

The Kelo decision by the Supreme Court has stirred a lot of controversy, as noted in an earlier posting.

The following twist comes from Justice Souter's home state of New Hampshire:

Could a hotel be built on the land owned by Supreme Court Justice David H. Souter? A new ruling by the Supreme Court...might allow it. A private developer is seeking to use this very law to build a hotel on Souter's land...

Justice Souter's vote in the "Kelo vs. City of New London" decision allows city governments to take land from one private owner and give it to another if the government will generate greater tax revenue or other economic benefits when the land is developed by the new owner.

On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel on 34 Cilley Hill Road. This is the present location of Mr. Souter's home.

Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to own the land.

The proposed development, called "The Lost Liberty Hotel" will feature the "Just Desserts Caf�" and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America. Instead of a Gideon's Bible each guest will receive a free copy of Ayn Rand's novel "Atlas Shrugged."...

"This is not a prank" said Clements, "The Towne of Weare has five people on the Board of Selectmen. If three of them vote to use the power of eminent domain to take this land from Mr. Souter we can begin our hotel development."...

The Just Desserts Cafe in the Lost Liberty Hotel, proposed to be built on what would have been called - one week ago - Justice Souter's private property, free from theft by the government.

How ironic.

But, then again, maybe all of us are approaching this with the wrong thought process. Since government itself neither creates economic value nor generates tax revenue, why don't we we interpret the Kelo decision in a more creative way:

Any time a government agency decides to take away our families' private property, let's make that agency's physical location the replacement target to convert from a government building to a private sector entity that generates lots of tax revenue.

This approach would have several benefits: First, it would save our homes. Second, it would shrink the size of government. Third, it would accelerate the further reduction of our taxes.

Sounds about as logical as the Kelo decision, no? And in doing so, we would simply be abiding by the laws of our land. Any takers?

Rediscovering Proper Judicial Reasoning

The public debate about proper judicial reasoning is often so ill-informed because the focus is only on short-term partisan agendas, a bad habit which damages the fabric of our society and respect for the rule of law.

Into that morass and using the recent Supreme Court decision on medical marijuana use in California, Charles Krauthammer elaborates on the meaning of "original intent" and shows how far away the courts have moved away from a strict interpretation of the Constitution. Here is the link to his very helpful and educational editorial on judicial reasoning:

...In our current, corrupted debates about the judges, you hear only about results. Priscilla Owen, we were told (by the [ultra-liberal] Alliance for Justice), "routinely backs corporations against worker and consumer protections." Well, in what circumstances? In adjudicating what claims? Under what constitutional doctrine?

The real question is never what judges decide but how they decide it. The Scalia-Thomas argument...was about what the Constitution's commerce clause permits and, even more abstractly, who decides what the commerce clause permits. To simplify only slightly, Antonin Scalia says: Supreme Court precedent. Clarence Thomas says: the Founders, as best we can interpret their original intent.

The Scalia opinion (concurring with the majority opinion) appeals to dozens of precedents over the past 70 years under which the commerce clause was vastly expanded to allow the federal government to regulate what had, by the time of the New Deal, become a highly industrialized country with a highly nationalized economy.

Thomas's dissent refuses to bow to such 20th-century innovations. While Scalia's opinion is studded with precedents, Thomas pulls out founding-era dictionaries (plus Madison's notes from the Constitutional Convention, the Federalist Papers and the ratification debates) to understand what the word commerce meant then. And it meant only "trade or exchange" (as distinct from manufacture) and not, as we use the term today, economic activity in general. By this understanding, the federal government had no business whatsoever regulating privately and medicinally grown marijuana.

This is constitutional "originalism" in pure form. Its attractiveness is that it imposes discipline on the courts. It gives them a clear and empirically verifiable understanding of constitutional text -- a finite boundary beyond which even judges with airs must not go.

And if conditions change and parts of the originalist Constitution become obsolete, amend it. Democratically. We have added 17 amendments since the Bill of Rights. Amending is not a job for judges.

The position represented by Scalia's argument in this case is less "conservative." It recognizes that decades of precedent (which might have, at first, taken constitutional liberties) become so ingrained in the life of the country, and so accepted as part of the understanding of the modern Constitution, that it is simply too revolutionary, too legally and societally disruptive, to return to an original understanding long abandoned.

And there is yet another view. With Thomas's originalism at one end of the spectrum and Scalia's originalism tempered by precedent -- rolling originalism, as it were -- in the middle, there is a third notion, championed most explicitly by Justice Stephen Breyer, that the Constitution is a living document and that the role of the court is to interpret and reinterpret it continually in the light of new ideas and new norms.

This is what our debate about judges should be about. Instead, it constantly degenerates into arguments about results.

Two years ago, Thomas (and Scalia and William Rehnquist) dissented from the court's decision to invalidate a Texas law that criminalized sodomy. Thomas explicitly wrote, "If I were a member of the Texas Legislature, I would vote to repeal it." However, since he is a judge and not a legislator, he could find no principled way to use a Constitution that is silent on this issue to strike down the law...

As we approach a time of new Supreme Court nominations, it would be a service to the country if the Senate and the major interest groups across the political spectrum could conduct a reasoned public debate on these important principles.

Since we know that they have lost the ability to conduct that kind of debate over the last 20 years, recovering such a debate will only occur if the requisite public pressure from citizens across America demands it. I hope we are up to the challenge.

Continue reading "Rediscovering Proper Judicial Reasoning"

The Kelo Decision: When Private Property Rights are Eroded, Our Freedom is Diminished

Private property rights have always been central to our free society. That right is now gravely weakened after the Supreme Court issued a ruling that expands the ways in which the government can seize our homes:

The Supreme Court today effectively expanded the right of local governments to seize private property under eminent domain, ruling that people's homes and businesses -- even those not considered blighted -- can be taken against their will for private development if the seizure serves a broadly defined "public use."

In a 5-4 decision, the court upheld the ability of New London, Conn., to seize people's homes to make way for an office, residential and retail complex supporting a new $300 million research facility of the Pfizer pharmaceutical company. The city had argued that the project served a public use within the meaning of the Takings Clause of the Fifth Amendment to the Constitution because it would increase tax revenues, create jobs and improve the local economy.

A group of homeowners in New London's Fort Trumbull area had fought the city's attempt to impose eminent domain, arguing that their property could be seized only to serve a clear public use such as building roads or schools or to eliminate blight. The homeowners, some of whom had lived in their house for decades, also argued that the public would benefit from the proposed project only if it turned out to be successful, making the "public use" requirement subject to the eventual performance of the private business venture.

The Fifth Amendment also requires "just compensation" for the owners, but that was not an issue in the case decided today because the homeowners did not want to give up their property at any price...

The majority endorsed the view that local governments are better placed than federal courts to decide whether development projects serve a public purpose and will benefit the community, justifying the acquisition of land through eminent domain...

New London officials "were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference," Stevens wrote. "The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including--but by no means limited to--new jobs and increased tax revenue."

Stevens added that "because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment."...

Dissenting were justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas, as well as Chief Justice William H. Rehnquist.

In a strongly worded dissenting opinion, O'Connor wrote that the majority's decision overturns a long-held principle that eminent domain cannot be used simply to transfer property from one private owner to another.

"Today the Court abandons this long-held, basic limitation on government power," she wrote. "Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded -- i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public -- in the process."

The effect of the decision, O'Connor said, "is to wash out any distinction between private and public use of property -- and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment."...

This article contains excerpts from oral arguments on the case. Here are the formal opinions from the case.

There are a lot of strong reactions to this ruling and Michelle Malkin provides links here and here to many of them. Professor Bainbridge offers his thoughts. John Eastman offers some historical perspective as does Ken Masugi, whose comments include:

...From the original intent to eliminate slums, the use of eminent domain has degenerated into corruption masquerading as statesmanship and delusion sold as sound public policy...

The Wall Street Journal, in its editorial (available for a fee) entitled Kennedy's Vast Domain, writes:

The Supreme Court's "liberal" wing has a reputation in some circles as a guardian of the little guy and a protector of civil liberties. That deserves reconsideration in light of yesterday's decision in Kelo v. City of New London. The Court's four liberals (Justices Stevens, Breyer, Souter and Ginsburg) combined with the protean Anthony Kennedy to rule that local governments have more or less unlimited authority to seize homes and businesses�

� the plain reading of th[e 5th] Amendment's "takings clause" also appears to require that eminent domain be invoked only when land is required for genuine "public use" such as roads�

The founding fathers added this clause to the Fifth Amendment -- which also guarantees "due process" and protects against double jeopardy and self-incrimination -- because they understood that there could be no meaningful liberty in a country where the fruits of one's labor are subject to arbitrary government seizure.

That protection was immensely diminished by yesterday's 5-4 decision, which effectively erased the requirement that eminent domain be invoked for "public use."�

�Justice Kennedy wrote in concurrence that this could be considered public use because the development plan was "comprehensive" and "meant to address a serious city-wide depression." In other words, local governments can do what they want as long as they can plausibly argue that any kind of public interest will be served.

In his clarifying dissent, Justice Clarence Thomas exposes this logic for the government land grab that it is. He accuses the majority of replacing the Fifth Amendment's "Public Use Clause" with a very different "public purpose" test: "This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a 'public use.'"�

�the unsual coalition supporting the property owners in the case, ranging from the libertarian Institute for Justice (the lead lawyers) to the NAACP, AARP and the late Martin Luther King's Southern Christian Leadership Conference. The latter three groups signed an amicus brief arguing that eminent domain has often been used against politically weak communities with high concentrations of minorities and elderly. Justice Thomas's opinion cites a wealth of data to that effect.

And it's not just the "public use" requirement of the Fifth Amendment that's undermined by Kelo. So too is the guarantee of "just compensation." Why? Because there is no need to invoke eminent domain if developers are willing to pay what owners themselves consider just compensation.

Just compensation may differ substantially from so-called "fair market value" given the sentimental and other values many of us attach to our homes and other property. Even eager sellers will be hurt by Kelo, since developers will have every incentive to lowball their bids now that they can freely threaten to invoke eminent domain�

These kinds of judicial encroachments on liberty are precisely why Supreme Court nominations have become such high-stakes battles�

Justice Clarence Thomas' dissenting opinion included this comment:

Something has gone seriously awry with this Court's interpretation of the Constitution.

Sheldon Richman writes about the decision and further discusses Justice Thomas' dissenting opinion:

O'Connor's words are to be savored, although she largely accepts the precedents, striving only to distinguish them from the current case. But it is to Justice Clarence Thomas we must turn for a model of proper constitutional interpretation and reasoning. His dissenting opinion goes further than O�Connor�s by calling the precedents into question. It is refreshing indeed.

Thomas writes: "Today's decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power. Our cases have strayed from the Clause's original meaning, and I would reconsider them."

Thomas proceeds to show, first, that it is sound constitutional principle to regard every word in the Constitution as meaningful and purposeful; second, that use at the time of the framing meant the "act of employing"; third, that to construe use more broadly would make the takings clause duplicative of powers already expressly delegated; and fourth, that the common law and great legal authorities such as Blackstone support this narrow reading of the word.

Thus, "The Constitution's text, in short, suggests that the Takings Clause authorizes the taking of property only if the public has a right to employ it, not if the public realizes any conceivable benefit from the taking�. The Takings Clause is a prohibition, not a grant of power.� The Clause is thus most naturally read to concern whether the property is used by the public or the government, not whether the purpose of the taking is legitimately public."

Since that is the case, the issue of deference to the legislature is put into perspective: "[I]t is most implausible that the Framers intended to defer to legislatures as to what satisfies the Public Use Clause, uniquely among all the express provisions of the Bill of Rights."

He concludes: "When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning."

Richard Epstein, in a WSJ editorial (available for a fee) entitled Supreme Folly observes:

�for in [Justice Stevens�] view New London had made its case when it asserted, without evidence, that the new projects would both increase tax revenues and create new jobs. It hardly mattered that its projections had been pulled out of thin air and were already hopelessly out of date when the case reached the Supreme Court. All that need be shown to Justice Stevens was procedural regularity and some claim that the proposed project served some "public benefit."

Astute readers will quickly note that the phrase "public benefit" is far broader than the constitutional words "public use." That last phrase clearly covers only two situations. The first arises when land is taken to build government facilities, such as forts, or to construct infrastructure, such as highways, open to all. The second covers those cases where property is taken by, or conveyed to, private parties who are duty bound to keep it open to all users. Private railroads and private grist mills, both of which are subject to the common carrier obligation of universal service, are two obvious examples. Note too that once a given use is properly identified as public, it does not matter for constitutional purposes whether the project is wise or is as foolish as New London's redevelopment program. The constitutional inquiry is over once it is proved that the project falls into these categories. Factually, the standard of review hardly matters, for it takes little genius to prove that a given structure is a fort or a highway.

There are, however, good reasons why the public use language has long been extended to cover some cases of takings for private purposes with indirect public benefits. One recurrent problem of social coordination arises when one party is in a position to blockade the productive ventures of another�

The great intellectual blunder of the public use law over the past 50 or so years is that it has wrenched the public benefit language out of this narrow holdout context. In the mid-1950s, the Supreme Court held that takings were for public use when they were intended to relieve various forms of urban "blight" -- a slippery term with no clear constitutional pedigree. Thirty years later, the Court went a step further by allowing Hawaii to force landlords to sell their interests to sitting tenants, as a means to counteracting ostensible "oligopolistic" market conditions. Now any "conceivable" indirect social benefit would do, without regard to the attendant costs.

Given this past legacy, Justice Stevens found it easy to take New London at its word. Any comprehensive public project will produce some benefit for someone�his test always allows the legislature to gin up some rationale for taking public property for just compensation�

The Court could only arrive at its shameful Kelo ruling by refusing to look closely at past precedent and constitutional logic. Courts that refuse to see no evil and hear no evil are blind to the endemic risk of factional politics at all levels of government. And being blind, this bare Supreme Court majority has sustained a scandalous and cruel act for no public purpose at all.

This decision is a complete and total outrage. Tom Bethell, in his book entitled The Noblest Triumph: Property and Prosperity Throughout the Ages, offers an explanation on why it is such an outrage:

...There are four great blessings that cannot easily be realized in a society that lacks the secure, decentralized, private ownership of goods. These are: liberty, justice, peace and prosperity...private property is a necessary (but not a sufficient) condition for these highly desirable social outcomes.

Of these, the relationship between liberty and property is by now fairly well understood...Milton Friedman has said that "you cannot have a free society without private property."...

Rights are held against the state, and property is an important bulwark against state power...like all genuine rights, property rights protect the weak against the strong...

The institution of private property also plays a key role in establishing justice in a society. This is one of the most important arguments in its favor, yet the connection between private property and social justice has rarely been made, mainly because social justice has been equated with the distribution of already existing goods. Inequality is equated with injustice. Nonetheless, a private property regime makes people responsible for their own actions in the realm of material goods. Such a system therefore ensures that people experience the consequences of their own acts...Both the prudent and the profligate will tend to experience their deserts...As Professor James Q. Wilson has said, property is a "powerful antidote to unfettered selfishness."

Property is also the most peaceable of institutions. In a society of private property, goods must be either voluntarily exchanged or laboriously created. As long as such ownership is protected by the state, goods cannot easily be taken by force. Furthermore, a society with legal institutions that encourage the creation of wealth poses a diminished threat to the wealth of neighbors...Private property also allows a country to become rich enough to defend itself against aggressive neighbors, thereby reducing the likelihood of conflict.

Private property both disperses power and shields us from the coercion of others...It leaves us free to act without interference, within our own autonomous spheres..

Prosperity and property are intimately connected. Exchange is the basic market activity, and when goods are not individually owned, they cannot easily be exchanged. Free-market economies, therefore can only be built on a private property base...

This Supreme Court decision highlights another reason why the nomination of any new justice to the Court is so important to our freedom. And why the appointment of Janice Rogers Brown to the D.C. District Court of Appeals was so important.

Power Line offers further valuable insights that re-connect us with the Founding principles of America:

...The right to property was central to our founding; it occupied a vital place in the system of free government the founders built. The right to property was an instrument to defend common people from the power of the establishment...

For the past hundred years the attack on private property has been central to the Progressive assault on the Constitution, beginning with J. Allen Smith's The Spirit of American Government (1907) and continuing most importantly with Charles Beard's An Economic Interpretation of the Constitution (1913). Smith and Beard portrayed the constitutional protection of private property by the founders as the weapon of an elite interested in preserving its privilege...

The American Revolution is of course the appropriate place to begin to understand the role of property rights in the American legal order. The American Revolution was in part a rebellion against the feudal order...In the feudal order all property belonged to the King; the King retained ownership but conditionally granted the use of property to his subjects.

By contrast, the idea that men possessed the right to acquire and enjoy property separate and apart from the prerogative of sovereign government was one of the "unalienable rights" grounded in "the laws of Nature and Nature's God" at the heart of the American Revolution. In the founders' view, property rights did not emanate from government. Rather, they emanated from the nature of man, and it was the function of government to protect the rights conferred on man by nature. Indeed, Jefferson characterized property rights as "the first principle of association, the guarantee to everyone [of] the free exercise of industry and the fruits acquired by it." As Jefferson's comment suggests, the right to acquire property was the critical right for the founders; it made property rights the friend of the poor by allowing them to earn and safeguard wealth ("the fruits acquired by" work).

Accordingly, when the founders crafted the Constitution and Bill of Rights, they provided numerous protections of property rights...

Further, putting property on a par with life and liberty, the Constitution prohibited the government from taking property in any criminal case without due process. And in the takings clause of the Fifth Amendment, the government was prohibited from taking private property for public use without just compensation; the government was not even afforded the power to take private property for anything but public use.

The founders extended these and other specific protections to the property of Americans in the fundamental law of the United States for the sake of freedom. The freedom to exercise and profit from one's abilities without regard to caste or class was in the view of the founders the essence of freedom.

As James Madison wrote in the Federalist Papers, "the first object of government" is the "protection of the diversity in the faculties [abilities] of men, from which the rights of property originate." In the eyes of the founders, the protection of property rights was a bulwark for the poor in assuring them that the wealth earned with the sweat of their brow could not arbitrarily be expropriated by the heavy hand of government.

It was precisely on this ground that Lincoln sought to persuade Americans of the injustice of slavery...He often spoke of the heart of slavery as a denial of property rights: "It is the same tyrannical principle that says, 'You work and toil and earn bread, and I'll eat it.'"...

The founders' study of history taught them that majority rule was susceptible to tyranny and that the protection of property rights was an indispensable condition for the preservation of freedom and for the growth of national wealth. The founders observed that tyrannical rule and material scarcity had by and large been the fate of man through the ages. They saw the confiscation of property by government in the name of the sovereign power of the state as an old and sorry story. Through the protection of property rights they aimed to forge a new order of the ages. It lies to us to regain their understanding and act on it.

The Kelo decision goes against the Founding principles of America. Slowly but surely, our freedom is being diminished. And don't forget that the people most at risk of losing their freedom are those least able to fight against the tyrannical power of government. Professor Bainbridge reinforces this point with a quote from Justice O'Connor's dissenting opinion:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.

Revisiting the Case for Janice Rogers Brown

The US Senate today approved the appointment of Janice Rogers Brown to the D. C. Circuit Court of Appeals. That news is cause for celebration and revisiting the case for her appointment.

Roger Pilon of the Cato Institute offers these powerful thoughts on Janice Rogers Brown:

How much longer can we go on playing constitutional pretend � pretending that there's a serious connection between the Constitution and so much of what passes today for "constitutional law"?

Rarely faced head-on, the question arises on the few fortunate times when we're presented with a judicial nominee who's been so bold as to publicly doubt the connection. At the moment that's Janice Rogers Brown.

The pretend game is especially well-played by "moderates" wary of "extremists" like Brown. And no one plays it better...than the wonderfully moderate Stuart Taylor Jr., because no one tries harder than he to find common ground between the warring camps brought forth by such a nominee. Blessed are the peacemakers.

But war is sometimes inevitable, as when great principles are at stake...No moderate she, her thinking is indeed "radical," going to the root of the matter. It's the kind of thinking that awakens Washington from its dogmatic slumbers. That's why the battle today is so vicious...because the stakes are so high.

What's the Principle?

Like many a moderate, Taylor sees "grave danger" in the Republican effort to bring an end to the unprecedented judicial filibusters that, for two years, have blocked 10 of President George W. Bush's appellate court nominees. But his criticism is evenhanded, not surprisingly: "Both sides," he writes, "are hypocritical to pretend they're driven by principle, not partisanship."

True, on both sides there's enough hypocrisy to go around, and both sides are driven by partisanship � no surprise there. But that doesn't mean that principle is not also at issue. The question is, What's the principle?

For Republicans, it seems to be "that the Senate's Article I power to 'determine the rules of its proceedings' applies . . . less to confirmation proceedings than to legislative proceedings," Taylor tells us, calling the argument "embarrassingly weak." No, it rests on the history of the extraconstitutional filibuster, which until 2003 had never been used to block judicial nominees with clear majority support. By specifying the few things requiring a supermajority vote, the Constitution fairly implies majority rule for the rest, with "rules of its proceedings" meant mainly for housekeeping. Put it this way: Would constitutional alarms sound were the confirmation rule four-fifths or nine-tenths? Then why not when it's three-fifths?

For Democrats, the principle seems to be to temper majority rule when a nominee is "outside the mainstream" � that is, to filibuster nominees who fail to reflect "the core values held by most of our country's citizens," as Sen. Charles Schumer (D-N.Y.) put it in a 2001 New York Times op-ed, just as he was launching Senate hearings to push for ideological litmus tests for nominees.

Never mind that judges are supposed to apply the law whether or not it's consistent with their own or the citizenry's "core values" (now that is a principle), Schumer's point is captured by Taylor when he concludes his filibuster commentary by invoking the sword of Damocles. The value of the judicial filibuster, Taylor writes, "is not that it should be used, but that it should hang over the process, and serve as a moderating influence on the president."

"Moderating" influence? Moderating toward what? What sense, if any, do terms like "moderate" and "extreme" make in this context? We hear them all the time, yet they serve mostly to end or to cloud � rather than to aid � debate about what a judge should do or what we, and the Constitution, stand for � about matters of principle. In the end, to say that a judge is "outside the mainstream" is simply to make a political appeal, to trade on the pejorative "extremist."

Unwilling to Pretend

We come, then, to that issue of principle, and to Taylor's brief against Janice Rogers Brown, currently a justice on the California Supreme Court. Her chief sin, it seems, is that she stands for something, for principle, not unlike � albeit far from in substance � "the remaining exponents of radical redistributionist and Marxist theories" that Taylor plants opposite her. What is worse, perhaps, is that she is willing to speak truth to constitutional hypocrisy � and plainly, at that. She is unwilling, that is, to play constitutional pretend.

Consider, for example, Taylor's charge that Brown is "a passionate advocate of a radical, anti-regulatory vision of judicially enforced property rights far more absolute than can be squared with the Supreme Court precedents." Quite so, save for the anti-regulatory part (she's actually anti-takings, which is not the same as anti-regulation). But is the problem with her vision or with the Court's precedents � with the "labyrinthine and compartmentalized" case law in this area, as Brown has put it?...

What would Taylor have? Less passion from Brown? A less "radical" approach � one that avoids going to the root of the matter? The virtue of someone like Brown is that she's willing and able to go to first principles to straighten out the mess the Court has here, as in so many other areas of our law. In a word, she has a vision. It's a vision of the Constitution, and of the yawning gap between it and much of our modern constitutional law.

A Vision Lost

Therein lies the problem, of course, because the "mainstream" has largely lost sight of that vision. Indeed, Taylor himself recognizes that when he frames his critique with a question that speaks volumes about modern constitutional confusions. Drawing on charges that Brown, were she on the Supreme Court, would be active in holding Congress to its enumerated powers, he asks: Where is the conservative outrage over the president's having nominated someone who believes the Court has authority to find so many of the administration's programs to be without constitutional authority?

Conservatives like Robert Bork and Scalia, after all, have made careers railing against "judicial activists." Yet here comes Brown, who believes the Court should "actively" hold the federal government to its enumerated powers while securing our rights, both enumerated and unenumerated, against every government � federal, state, and local.

Modern liberals recoil against the first of those � "the Supreme Court's recent 5-4 decisions that constrain Congressional power," as Schumer put it in that New York Times piece. Yet what else could James Madison have meant except limited government when he wrote in Federalist 45 that the powers of Congress would be "few and defined"? Modern conservatives recoil against judicial enforcement of unenumerated rights, fearing "judicial activism." Yet what is the Ninth Amendment about if not unenumerated rights? Or the 14th Amendment's privileges or immunities clause? Or the very structure of the Constitution itself? If we're going to be originalists, let's do it right.

To answer Taylor's question, then, it would seem that there are enough thoughtful people in the Bush administration to have appreciated the constitutional dilemma before the nation � the crisis of legitimacy � and the need to bring it out in the open. In a word, we have a Constitution authorizing limited government, yet Leviathan surrounds us � and Justice Brown is perceptive and secure enough to say so, as Taylor amply notes. For that she should be commended, not criticized...

To be sure, that was one year before the constitutional revolution that is primarily responsible for the constitutional dilemma we have today. Following fast upon President Franklin Roosevelt's notorious Court-packing scheme, the Court caved to political pressure in 1937 and opened the floodgates for the modern welfare state. That's when politics trumped law on a grand scale, and it's never been the same since.

Boston University's Gary Lawson put the upshot well in the 1994 Harvard Law Review: "The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution." But take it from someone who was there, Rexford Tugwell, one of the principal architects of the New Deal: "To the extent that these [New Deal policies] developed, they were tortured interpretations of a document intended to prevent them."

The New Dealers knew exactly what they were doing to the Constitution. Janice Rogers Brown understands that, too. We're fortunate to have so radical a nominee before us.

Continue reading "Revisiting the Case for Janice Rogers Brown"

Bringing Added Clarity to the Judicial Filibuster Debate

Power Line offers a valuable posting on the judicial filibuster debate.

The posting adds to other informative postings about the judicial filibuster debate on this site, including:

The Filibuster...Continued

The Injustice of Smearing A Fellow American For Political Gain

The Senate Judicial Filibuster: Power Politics & Religious Bigotry

Mac Owen's open letter to Senator Chaffee

Senator Mitch McConnell on the Judicial Filibuster

The Foolish Fourteen: An editorial by the former Dean of BU's Law School

It is important to get the real story out because our opponents are actively trying to rewrite history and, thereby, distort the reality of today's debate.

Senator Mitch McConnell on the Judicial Filibuster - Before the Capitulation

Republican Senator Mitch McConnell gave this speech on the Senate floor prior to the capitulation by the 7 Republican senators. It offers a history lesson and is complementary to this posting by Mac Owens.

The Senate Judicial Filibuster: Power Politics & Religious Bigotry

A Wall Street Journal editorial entitled "How We Got Here: Why Republicans can't let the judicial filibuster succeed" states:

�On the eve of this brawl, it's worth recalling how we got here. Our own choice for what started the modern bitterness would be 1987 and the Robert Bork fight�the trashing of such a widely respected jurist marked that date as the one when nominations became political campaigns. During the Clinton years some GOP Senators returned the favor by delaying or blocking individual nominees. But even when Republicans had a Senate majority, there was nothing comparable to the demolitions of Mr. Bork or Clarence Thomas.

The judicial filibuster of the last two years marks another political escalation�

The audacity of the Democrats' radicalism is illustrated by the breadth of their claims against the nominees. It isn't just one nominee they object to; it's 10, and counting. It isn't just abortion they're worried about but the entire range of constitutional law.

Priscilla Owen is said to be a judicial "activist" for a decision interpreting Texas's law regarding parental notification of teens seeking abortions. Janice Rogers Brown is "against" affirmative action and speaks bluntly in public. Brett Kavanaugh is portrayed as a radical for defending executive privilege. William Pryor is hit on the First Amendment. Richard Griffin is "anti-union" and "anti-worker." William Myers is "hostile" to the environment. Every one is labeled an "extremist" and unacceptable no matter their experience or their "well qualified" ABA rating.

This also marks a political escalation in reaching below the Supreme Court to the circuit courts of appeal�

They are going to such bitter lengths, we suspect, precisely because they view the courts as their last hold on federal power. As liberals lost their majority status over the past 30 years, they have turned increasingly to the courts to implement their political program. If Democrats succeed in blocking these nominees, they will feel vindicated in their view that judicial activism pays. They will also conclude that Senate obstructionism works, and so will dig in for more of it�

�Democrats who point to other judicial filibusters are deliberately confusing the distinction between a filibuster and a vote for "cloture," or to end debate�

This is at its core a political fight, and elections ought to mean something. Republicans have gained Senate seats in two consecutive elections in which judicial nominations were among the most important issues�

Robert Novak's latest editorial entitled "Judges' financial info sought" shows how the raw exercise of power politics behind the filibuster is escalating even further now:

On May 5, the U.S. Judicial Conference in Washington received a request from a Mike Rice of Oakland, Calif., for the financial disclosure records of U.S. Appeals Court Judge Edith Jones (5th Circuit) of Houston. A 20-year veteran on the bench, Jones is a perennial possibility for the U.S. Supreme Court. The demand for her personal records is part of a major intelligence raid preceding momentous confirmation fights in the Senate.

Jones was not alone as a target, and Rice is not just a nosy citizen. He and Craig Varoga, a former aide to Senate Minority Leader Harry Reid, are partners in a California political consulting firm. Their May 5 petition requested financial information on 30 appellate judges in all but one of the country's judicial circuits, including nine widely mentioned Supreme Court possibilities. Varoga & Rice's client: NARAL Pro-Choice America.

Nobody can recall any previous mass request for such disclosures by federal judges. This intelligence raid is financed by the abortion lobby, but it looks to Republicans like a front for Reid and other senators who will consider President Bush's appointments for Supreme Court nominations...

While Rice bills himself as an "expert" on "state public-records laws," his special field has been negative research probing the background of political foes...

...But compiling financial profiles of judicial nominees plows new ground...

The abortion advocacy group surely was not asking the judges' views on abortion. Nancy Keenan, who has been NARAL's president some five months, told this column her organization is concerned about "out of touch theological activists" becoming judges. Why seek financial information from them? She said the disclosure information might help identify the "character" of judicial nominees...

To which this Power Line posting entitled "Anything goes if you're planning to attack believing Christians" notes:

...The statement of Nancy Keenan, NARAL's president, is also revealing. She told Novak that her organization is concerned about "out of touch theological activists" becoming judges. What does financial information have to do with this? Keenan says the disclosure information might help identify the "character" of judicial nominees. That's an interesting twist -- when caught with her pants down, Keenan reverts to a facially absurd "we're protecting the country from the God-fearing" defense. The left has journeyed very far, fairly fast...

Remember how the Democrats blasted Senator Frist for suggesting that their opposition to President Bush's nominees had anything to do with religion? "Out of touch theological activists" are, I think, the same people as those who have "deeply held religious beliefs."

In addition, Stanley Kurtz has these comments in a posting entitled "It's What You Believe:"

When asked why her organization was going after these nominees, NARAL president Nancy Keenan said that her organization was concerned about "out of touch theological activists" becoming judges. Now that�s interesting. I thought opponents of the president�s nominees were only concerned about judicial philosophy, not religious belief. Do you suppose [the mainstream media] will now come down on Keenan for injecting religion into politics? Will [the mainstream media] now acknowledge that the president�s nominees are indeed being targeted because of their faith? Will pigs fly?

In a posting entitled "Hating Their Religion," Liberty Files offers these thoughts:

...Essentially, they are looking for the indicia of the serious practice of faith in order to use that as ammunition to slime them as an intolerant religious hack, their premise being that people of sincere faith cannot be effective judges because they will reflexively legislate the Bible.

But NARAL is not concerned about fitness of judges anymore than it is concerned about the health of the mother after an abortion takes place. This plan is rooted in radical left's increasingly conspicuous anti-religious bigotry, and is an effort to portray people of faith as out of the mainstream nuts because they hold a set of unchanging beliefs and vocally object to the moral lawlessness of the left. Listen to their rhetoric and then replace the term "Christian" with "Jew", and the historical parallel will become clearer. NARAL's hope is that real faith, rather than being an admirable personal attribute, will become a skeleton in the closet, so that they can count on moral relativist activist judges and politicians who will maintain the abortion status quo and effectuate the social agenda of the left.

They accuse Christians of being hatemongers, but watch the behavior of these radicals carefully--they commit the very evils of which they accuse their opponents. They are discriminating based on religion. They behave as madmen. They don't argue facts, but only innuendo, prejudice and emotion, hoping that they can scare people into their viewpoint...

A JunkYardBlog posting entitled "An Admission" has this to say:

"Out of touch theological activists." That is a phrase that Andrew Sullivan is sure to love and support, but to the rest of us it can be explained in two words: religious bigotry. NARAL has admitted now that it is applying a religious test to the president's nominees, and NARAL is one of a handful of groups controlling the Democrats on the Senate Judiciary Committee. Therefore the Democrats are engaged in religious bigotry, and are conducting an unconstitutional religious test upon judicial nominees.

Game, set, match. Now let's blow that non-filibuster filibuster out of the water.

Now, again, ask yourself who are really the theocrats threatening liberty in this equation?

For more on the judicial filibusters by Democratic Senators, go here and here.

For more on the fundamentalism of the secular left, go here, here, here, here, here, and here.

The Injustice of Smearing A Fellow American For Political Gain

There is an excellent posting on Captain's Quarters about Janice Rogers Brown, one of the court nominees being filibustered by Senate Democrats, that references this Sacramento Bee editorial written by a liberal who, among other things, said:

I know Janice Rogers Brown, and she knows me, but we're not friends. The associate justice of the California Supreme Court has never been to my house, and I've never been to hers. Ours is a wary relationship, one that befits a journalist of generally liberal leanings and a public official with a hard-right reputation fiercely targeted by the left...

Even though being in general disagreement with Brown's political philosophy, she notes Brown's dissent in the case of The People v. Conrad Richard McKay and comments further:

I find myself rooting for Brown. I hope she survives the storm and eventually becomes the first black woman on the nation's highest court.

I want her there because I believe she worries about the things that most worry me about our justice system: bigotry, unequal treatment and laws and police practices that discriminate against people who are black and brown and weak and poor.

Consider these words from the conclusion to Brown's dissent in the referenced case:

In the spring of 1963, civil rights protests in Birmingham united this country in a new way. Seeing peaceful protesters jabbed with cattle prods, held at bay by snarling police dogs, and flattened by powerful streams of water from fire hoses galvanized the nation. Without being constitutional scholars, we understood violence, coercion, and oppression. We understood what constitutional limits are designed to restrain. We reclaimed our constitutional aspirations. What is happening now is more subtle, more diffuse, and less visible, but it is only a difference in degree. If harm is still being done to people because they are black, or brown, or poor, the oppression is not lessened by the absence of television cameras.

I do not know Mr. McKay's ethnic background. One thing I would bet on: he was not riding his bike a few doors down from his home in Bel Air, or Brentwood, or Rancho Palos Verdes - places where no resident would be arrested for riding the "wrong way" on a bicycle whether he had his driver's license or not. Well...it would not get anyone arrested unless he looked like he did not belong in the neighborhood. That is the problem. And it matters...

It is clear the Legislature could not authorize the kind of standardless discretion the court confers in this case. Why should the court permit officers to do indirectly what the Constitution directly prohibits? How can such an action be deemed constitutionally reasonable? And if we insist it is, can we make any credible claim to a commitment to equal justice and equal treatment under law?

Well...No. Not exactly.

Do those words sound like some scary extremist? Of course not.

And yet, Senate Democratic leader Harry Reid recently said this about Brown:

...She is a woman who wants to take us back to the Civil War days...

Which leads The Captain's posting to end with these words:

This is the real Janice Rogers Brown, not some bogeyman dreamed up by People for the American Way and Ted Kennedy. Even her presumed political opponents in the California state capitol know better. It's high time for the GOP to put an end to the smear campaigns of the Left and get Brown the up-or-down vote she deserves.

Nobody has put forth evidence that Janice Rogers Brown has let her personal beliefs cause her not to follow the Constitution in her judicial opinions. Rather, all they can offer are certain public comments which confirm that she holds some conservative viewpoints. The last time I checked, expressing such opinions was still an allowed freedom in America. This point is reinforced by Thomas Sowell.

Unsurprisingly, Reid's comments have not stopped with just Brown. Here is what he recently said about Supreme Court Justice Clarence Thomas:

I think that he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I don't--I just don't think that he's done a good job as a Supreme Court justice.

Discussing a Supreme Court case, Reid also said this about a dissent by Thomas:

...it's like looking at an 8th grade dissertation compared to somebody who just graduated from Harvard...

Also in the most recent link, James Taranto of the OpinionJournal.com responds with these thoughts:

When Trent Lott crossed the line two years ago, Republicans, after some hesitation, did the right thing and ousted him as their leader. If the Democrats retain Reid, it will tell us something about the party's commitment to racial equality.

Here is the link to a 2003 Wall Street Journal editorial that explains the underlying motives for the words and actions of Senate Democrats:

The truth is that Judge Brown is all too qualified, and what scares the left is her chances for promotion. More U.S. Supreme Court Justices--including Antonin Scalia, Ruth Bader Ginsburg and Clarence Thomas--have come from the D.C. Circuit than from any other federal court...

The lesson liberals learned from Clarence Thomas's success is to start attacking early when fewer people are paying attention. Senators who had approved Judge Thomas's appointment to the D.C. Circuit found it politically difficult later to oppose his promotion to the Supreme Court...

So she's getting the by-now-ritual Borking...

...attacks ultimately descended into something close to parody...Democrats accused her of being insensitive to victims of rape, housing discrimination, age discrimination and even racial discrimination.

Judge Brown was born into a family of Alabama sharecroppers in 1949. She has personal experience with racial segregation and every other precept of Jim Crow America. The idea that she needs a lecture on discrimination from...anyone...in the all-white and mostly male Senate is absurd on its face. But for Democrats the goal is to make her look somehow like an inauthentic black.

As Condi Rice, Colin Powell, Justice Thomas and others can attest, liberals reserve their harshest and most personal attacks for minorities with the audacity to wander off the ideological plantation...Hardly an "extremist," Judge Brown...wrote the majority opinion for the court more times that any other Justice in the 2001-02 term...

This is about political power, and overturning the results of the 2000 and 2002 elections...

Senate liberals are in the process of filibustering a rainbow coalition of conservative judges that deserves to become a major Republican campaign issue: One black, one Hispanic, three women, two Southern whites and perhaps soon an Arab-American. Let's have a 2004 election debate over which party is really the enemy of diversity, intellectual and otherwise.

The Left just doesn't want any blacks wandering off their plantation. No conservative blacks allowed. No school choice for poor inner-city black kids. The list could go on. Now ask yourself who really believes America should be the land of freedom and opportunity for ALL Americans.

See here for more on the Senate judicial filibusters.

ADDENDUM I:

Peter Kirsanow adds these thoughts about Janice Rogers Brown. Nat Hentoff comments here.

The Filibuster...Continued

Marc has a posting on a most important subject: The ongoing Senate filibuster by Democrats over President Bush's judicial nominations.

Here are additional information sources that elaborate further on the multitude of issues behind this unprecedented action.

Continue reading "The Filibuster...Continued"