Newt Checks and Balances Liberal Judges

Newt Checks and Balances Liberal Judges

via The American Spectator and The Spectacle Blog by Peter Ferrara on 11/16/11

The genius of America's Founding Fathers is reflected in the innovative system of checks and balances they adopted for our government, to prevent abuse of power by any authority. Congressional legislation is subject to veto by the President, and to review for constitutionality by the courts. The President and his Executive branch are subject to the laws passed by Congress, enforced by the courts, and presidential appointments are subject to confirmation by the Senate. So are treaties. The President appoints the judges, subject to Senate confirmation.
And if those judges refuse to apply the law objectively as written, and instead engage in judicial activism making up their own law based on their own liberal/left values, then they are applauded by the liberal/left media and academia. The rest of us can go pound sand.
At least that is the view of the New York Times, the Washington Post, the bar association, and the law schools. They are the ultimate authority and rulers in America under this doctrine of judicial supremacy. Any other view is dangerous to our most fundamental liberties, they tell us (at least while the judges reflect their liberal/left views).
But not according to Newt Gingrich, the Founding Fathers, and American history. To these authorities, it is judicial supremacy that is dangerous to our most fundamental liberties.
Gingrich explained the historical checks and balances on the judiciary in our American system of government, in a brilliant speech to the Value Voters Summit last month. He accompanied that with a detailed campaign position paper released at the same time, entitled "Bringing the Courts Back Under the Constitution." These insights are reflected as well in Plank 9 of his new 21st Century Contract with America.
The currently reigning establishment counterauthorities cited above reject any such checks on their power. But in Gingrich they have a foe who has proven he knows how to beat the establishment, and has the guts to take them on.
Checkmate
Gingrich recalls the actual checks and balances on the judiciary established by our Founding Fathers, who recognized the dangers of judicial supremacy. Jefferson wrote in challenging such judicial supremacy in 1820, "You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy." Jefferson further wrote later that year, "The judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine our Constitution from a co-ordinate of a general and special government to a general supreme one alone. This will lay all things at their feet."
The view of Jefferson, the Founding Fathers, and Gingrich is that interpretation of the Constitution is not the role of the judicial branch alone. Because we have three, equal, co-branches of our government, reflecting the separation of powers that enables checks and balances, Congress representing the legislative branch and the President representing the executive branch, have equal authority to interpret the Constitution as well.
Under our Constitution, Congress and the President consequently serve as checks and balances on a runaway judiciary of activist judges reading their own elitist liberal/left values into the Constitution, contrary to the will of the people. Because Congress and the President are subject to regular elections, they are subject to the ultimate check by the people holding them responsible for their conduct in office, including their interpretations of the Constitution.
For an example as to how this works, Gingrich points to Abraham Lincoln and his response to the Dred Scott decision upholding slavery as involving established property rights. Lincoln disagreed with the Supreme Court's interpretation of the Constitution, as informed by the Declaration of Independence and other founding documents, concluding that there was no basis in the Constitution or anywhere in American law for holding that some people could have property rights in the person of other people. Lincoln agreed that the Dred Scott decision was binding on the parties to that case, but not on the whole nation, or on his Administration, saying in his 1861 Inaugural Address:

[T]he candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

Consequently, Lincoln's Administration refused to enforce the Supreme Court's doctrine that slaves were the valid property of others, or to recognize the Dred Scott decision's binding authority on his Administration. He acted contrary to it in granting passports to African Americans who applied for them, recognizing them as people not property. He signed legislation denying the Supreme Court's property rights over slaves whose "owners" took them to Federal territories, which was directly contrary to the ruling in Dred Scott. In 1863, Lincoln issued his Emancipation Proclamation freeing all slaves within the United States, again directly contrary to the Supreme Court's "property rights" announced in Dred Scott. If that case was binding on the Lincoln Administration, then the federal government would have had to pay compensation for the Emancipation Proclamation to all slaveowners under the Fifth Amendment's Takings Clause.
In his Values Voter Summit speech last month, Gingrich similarly explained how Franklin Roosevelt exercised his check and balance on the Supreme Court, saying:

In 1942 a group of German saboteurs were landed in Florida and Long Island. They were all picked up within two weeks. Roosevelt brought in his attorney general and said: They will be tried in a military court, they will be executed, it should happen within three weeks, and tell the Supreme Court if they issue a writ of habeas corpus, I will not honor it, and therefore they should not issue it. I am the commander in chief in wartime. They aren't.

Just as Lincoln, Roosevelt refused to be bound by Supreme Court rulings he viewed as contrary to the Constitution. In such a case, the Attorney General would issue an opinion as to the Administration's view of the Constitution on a particular matter, and it would then be up to the people ultimately to decide in holding the President and his party accountable at election time. This is how a system for a free, self-governing people works.
Gingrich cites the precedent of President Andrew Jackson as well in the controversy over whether the Bank of the United States was constitutional. Gingrich quotes Jackson's response to Supreme Court precedents that the Bank was constitutional:

"The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve."

This was the same position that Lincoln took in regard to Dred Scott. Gingrich further explained the issue in his speech at the Value Voters Summit:

Jackson in -- in tackling the Bank of the United States, which he said was a(n) overly centralized form of power -- think of it as the earlier Bernanke -- was told, well, the Supreme Court has said that it's constitutional. He said: Fine, that's their opinion. And he said: I have a different opinion. I am the president. They're a court. They get their opinion in court. I get my opinion in the White House.

Still More Checks and Balances
Gingrich and his campaign present a thorough program for countering runaway liberal judicial activism. President John Adams appointed Federalist Party federal judges who enforced the Alien and Sedition Acts to imprison Jeffersonian activists contrary to the Constitution. When the people had their say in the election of 1800 and voted out Adams in favor of Jefferson, Adams responded in the following lame duck session by doubling the number of federal judges. Those abusive appointments were labeled "Midnight Judges."
When Jefferson came into office, he and his party simply abolished the judicial seats to which the Midnight Judges had been appointed, thereby removing at the time half of all federal judges. They didn't impeach the judges, they just abolished their offices. The Supreme Court in Stuart v. Laird recognized that this was a valid exercise of Congress's power explicitly provided in the Constitution to provide for the appointment of inferior (to the Supreme Court) federal judges.
Gingrich argues that the same can be done today in regard to federal judges who exhibit a pattern of judicial activism, making up the law in accordance with their liberal values rather than objectively enforcing the law as written. He raised that possibility in response to a recent ruling of a San Antonio federal judge holding that if a student at a graduation ceremony even used the words "God" or "benediction" or "invocation," he would lock up school officials. Ninth Circuit beware, Gingrich recognizes that under established law, you can just be abolished outright.
Gingrich notes as well that Article III, section 2, clause 2 provides that "the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." That means that yes, indeed, Congress has the power to limit the jurisdiction of the federal courts, and this power has already been upheld by judicial precedents. That means duly adopted legislation can provide that the federal courts would have no jurisdiction, for example, to hear cases challenging the Defense of Marriage Act (DOMA). Legislation could define marriage in America as between a man and a woman, and provide that is outside the jurisdiction of the federal courts as well.
Of course, the people would be free to hold Congress and the President accountable for such actions at the next election. But that only means that the ultimate check and balance is in the hands of the people, rather than unelected judges, which, again, is the right system for a free, self-governing people.
Gingrich argues further that Congress has the right and power to impeach federal judges for wrong decisions, or to subpoena them before Congress to explain their decisions to the American people if they can, or to discipline the judiciary through its control over the spending power. If Congress can defund a war with troops in the field, surely it could defund the Ninth Circuit, or other judges who think they can march to the beat of their own drummers, rather than objectively apply the Rule of Law. Those who favor rule by lawyers rather than rule by the people object to these powers. They can take their case to the people as well.
Gingrich's Value Voters Summit speech, his campaign position paper, and his Contract with America provide a thorough, powerful complex of checks and balances to abuse of judicial power by activist judges, grounded in American history and established American law. It is the most powerful challenge to the liberal establishment in this campaign. Pro-family and Christian voters, take notice: there is a special opportunity here to restore the power of the people intended for us by our country's founders.

Allegations Against Clarence Thomas Highlight Media’s Double Standard (Again)

Allegations Against Clarence Thomas Highlight Media's Double Standard (Again)

 

via Big Journalism by AWR Hawkins on 11/3/10

When Associate Justice Clarence Thomas was nominated to the Supreme Court in 1991, his Senate confirmation turned out to be what he described to as a "high tech lynching." This was chiefly because accusations of sexual harassment by a co-worker, Anita Hill, were "leaked" to the press, then given a position of prominence in the hearings. With this, the white, liberal onslaught against a black conservative began in earnest.

Following the tortuous hearings, the Senate rejected Hill's accusations and confirmed Thomas 52-48.

End of story, right? Wrong. Although Thomas became an Associate Justice, the mainstream media has continued to remind people of Hill's accusations again and again (in a not-so-subtle attempt to discredit Thomas and his conservatism altogether).

As a matter of fact, on October 24, 2010, a full nineteen years since Thomas was confirmed, Lillian McEwen, a woman who describes herself as one of his past girlfriends, appeared on CNN's Larry King to revisit Hill's accusations.

When King brought up Hill's accusations, McEwen would not denounce them. But she did tell King that when she was in a relationship with Thomas, he was a "raving alcoholic" whose worldview was framed by pornography.

While King and McEwen interacted on air, I couldn't help but notice that he never once asked her if someone could verify her claims. In other words, he didn't seem to care that her claims might prove as vacuous as Hill's had nineteen years ago. Rather, he treasured the opportunity to ask leading questions that succeeded in securing what every liberal the world over wanted to see: newspaper headlines highlighting a drinking problem and a porn addiction Thomas allegedly had in years gone by.

But if King's interview of McEwen is the only substantiation of such claims available, how can honest journalists and news outlets run with this storyline?

Or, to put it another way, where is this same degree of media interest in revisiting Juanita Broaddrick's claim that Bill Clinton sexually assaulted her?  (Doesn't Clinton's track record at least make it feasible that he could have possibly assaulted her, and shouldn't such feasibility justify a few tough questions?) And when is Larry King hosting a guest who will provide an overview of Secretary of the Treasury Timothy Geithner's tax problems and his failure to pay the standard Social Security and Medicare paycheck deductions "from 2001 to 2004"? And when are we going to have a series of solid interviews with some of President Obama's old friends, so we can figure out just how much "blow" he did when was trying to "ease the pain of his ongoing struggle to define his racial identity" during his college years?

Call it a hunch, but I think it's a safe bet that King won't bring up Broaddrick's allegations, Geithner's tax problems, or Obama's cocaine use any time soon. Yet I'll bet the farm that if anyone wants to step up and accuse Associate Justice Thomas of bestiality, King will rearrange his entire schedule to air more unfounded claims against the black conservative.

Rarely has the double-standard of current journalism been so visible (if one can really consider King's show an example of journalism).

Questions for the Kagan hearing

George Will has... A few 'vapid' questions for Elena Kagan

...If Congress decides that interstate commerce is substantially affected by the costs of obesity, may Congress require obese people to purchase participation in programs such as Weight Watchers? If not, why not?

-- The government having decided that Chrysler's survival is an urgent national necessity, could it decide that "Cash for Clunkers" is too indirect a subsidy and instead mandate that people buy Chrysler products?

-- If Congress concludes that ignorance has a substantial impact on interstate commerce, can it constitutionally require students to do three hours of homework nightly? If not, why not?

-- Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce? If courts reflexively defer to that congressional pretense, in what sense do we have limited government?

-- In Federalist 45, James Madison said: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite." What did the Father of the Constitution not understand about the Constitution? Are you a Madisonian? Does the doctrine of enumerated powers impose any limits on the federal government? Can you cite some things that, because of that doctrine, the federal government has no constitutional power to do?

-- Is it constitutional for Arizona to devote state resources to enforcing federal immigration laws?

-- Is there anything novel about the Arizona law empowering police officers to act on a "reasonable suspicion" that someone encountered in the performance of the officers' duties might be in the country illegally?

-- The Fifth Amendment mandates "just compensation" when government uses its eminent domain power to take private property for "public use." In its 2005 Kelo decision, the court said government can seize property for the "public use" of transferring it to wealthier private interests who will pay more taxes to the government. Do you agree?

-- Should proper respect for precedent prevent the court from reversing Kelo? If so, was the court wrong to undo the 1896 ruling in Plessy v. Ferguson that segregating the races with "separate but equal" facilities is constitutional?

-- In 1963, President John Kennedy said Congress should "make a commitment . . . to the proposition that race has no place in American life or law." Was he right?

-- In 1964, Sen. Hubert Humphrey, a principal sponsor of that year's Civil Rights Act, denounced the "nightmarish propaganda" that the law would permit preferential treatment of an individual or group because of race or racial "imbalance" in employment. What happened?

-- William Voegeli, contributing editor of the Claremont Review of Books, writes: "The astonishingly quick and complete transformation of the Civil Rights Act of 1964, from a law requiring all citizens be treated equally to a policy requiring that they be treated unequally, is one of the most audacious bait-and-switch operations in American political history." Discuss.

-- In a 2003 case affirming the constitutionality of racial preferences in law school admissions, Justice Sandra Day O'Connor said: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." If you are a sitting justice in 2028, do you expect to conclude that such preferences can no longer survive constitutional scrutiny because they no longer serve a compelling public interest?

-- The president is morose about the court's Citizens United decision holding that the First Amendment, which says Congress shall make "no law" abridging freedom of speech, means no laws abridging a corporation's freedom to speak, including nonprofit advocacy corporations such as the National Rifle Association and the Sierra Club. The court called it "censorship" for government "to command where a person may get his or her information or what distrusted source he or she may not hear." Do you agree?

-- You have noted that the court often considers legislative motives when deciding First Amendment cases. Should the court consider legislators' motives if, in response to Citizens United, they impose new burdens on corporate speech?

-- When incumbent legislators write laws restricting the quantity, content and timing of speech about legislative campaigns, are not their motives presumptively suspect?

Chief Justice Roberts Knows the Difference Between E-mail and a Pager

A bit of intellectual ammunition...

Chief Justice Roberts Knows the Difference Between E-mail and a Pager

by Mary Katharine Ham on 4/23/10

Everyone's having a big laugh over the Supreme Court's alleged lack of tech savvy, as illustrated during oral arguments in a case (Ontario vs. Quon) focusing on text message privacy for a city employee using a city-provided pager.

The gist of the case is that a SWAT team member had a government-issued pager with which he was sending racy text messages to his girlfriend. There was an official policy in the police department that messages sent on department-owned technology would not be private, but another of the SWAT team member's bosses deemed that pagers could be put to personal use outside of work, as long as he paid for overages. At issue is how much privacy someone texting with such a device can expect from the government. It's relatively new territory for the courts, and the SCOTUS decision could have a big impact on how Fourth-Amendment protection is extended to electronic material.

Which leads us to oral arguments, several exchanges of which led to lots of Internet mocking of the justices. It was the perfect nerd storm. Nerds who love technology and politics were nerdy enough to be attuned to news of a Supreme Court oral argument about a nerdy technology issue. When the nerds on the Court evinced insufficient familiarity with the tech nerds' domain, young, tech nerds of the Internet promptly turned on old, legal nerds of the Court in a shocking display of nerd-on-nerd mockery. See Rachel Maddow, who made an entire finger-puppet segment out of the "spectacularly uninformed" SCOTUS, which can be seen here. (I, too, am guilty, having linked a post poking some fun at the justices yesterday without reading the original transcript first.)

Soon, everyone with a Twitter account was electronically guffawing about how John Roberts doesn't know the difference between e-mail and a pager and enjoying a bonus laugh at the fact that John Roberts was appointed by George W. Bush. No wonder he's dumb, huh?

The problem is, the mockery (at least of Roberts's question, which has gotten the most attention) is based on an unfair and incomplete reading of the transcript.

The question for which the Court has gotten the most flack is this one from Roberts (pdf):

CHIEF JUSTICE ROBERTS: Maybe -- maybe everybody else knows this, but what is the difference between the pager and the e-mail?

Wow, that does sound silly, doesn't it? But Roberts isn't asking about the difference between e-mail and a pager. He's asking about the differences in how police department policy treated e-mails sent from a computer and texts sent from department-issued pager. He's actually making a rather sophisticated distinction, not betraying his ignorance. The exchange preceding Roberts' question features Quon's lawyer Dieter Dammeier explaining the policy, "The city will periodically monitor e-mail, Internet use and computer usage," and Justice Ginsburg asking if it wouldn't be reasonable for an employee to assume the same would apply to texts sent via pager.

And, here's Dammeier's answer to Roberts:

MR. DAMMEIER: Sure. The e-mail, looking at the computer policy, that goes through the city's computer, it goes through the city's server, it goes through all the equipment that -- that has -- that the city can easily monitor. Here the pagers are a separate device that goes home with you, that travels with you, that you can use on duty, off-duty.

CHIEF JUSTICE ROBERTS: You can do that with e-mails.

MR. DAMMEIER: Certainly, certainly. But -­ but in this -- in this instance with the pagers it went through no city equipment, it went through Arch Wireless and then was transmitted to another -- another person.

What Roberts is trying to tease out is whether there are differences in reasonable expectations of privacy and the police department's conduct depending on where e-mails are stored (on a government server) vs. where text messages are stored (by a private company).

He expands upon this thought later:

CHIEF JUSTICE ROBERTS: Again, it depends upon their reasonable expectation. Do any of these other people know about Arch Wireless? Don't they just assume that once they send something to Quon, it's going to Quon?

MR. DAMMEIER: That's -- that is true. I mean, they expect -­

CHIEF JUSTICE ROBERTS: Well, then they can't have a reasonable expectation of privacy based on the fact that their communication is routed through a communications company.

That's when he and Scalia and the lawyer get into a discussion, also ridiculed, about how text messages are routed through a communications company, which is later analogized by the justices to a post office.

MR. DAMMEIER: Well, they -- they expect that some company, I'm sure, is going to have to be processing the delivery of this message. And -­

CHIEF JUSTICE ROBERTS: Well, I didn't -- I wouldn't think that. I thought, you know, you push a button; it goes right to the other thing.

MR. DAMMEIER: Well -­

JUSTICE SCALIA: You mean it doesn't go right to the other thing? (Laughter.)

In this instance, Roberts and Scalia both admit to ignorance about how exactly text messages are routed, but it's less about their own ignorance than it is to get to an understanding about the general public's reasonable expectation and how the Fourth Amendment might apply. To argue they're hopelessly out of touch doesn't make sense once you read their conclusion, in which they seem to grasp the service provider concept just fine:

CHIEF JUSTICE ROBERTS: So we have to assume for your argument to succeed that they know this goes somewhere else and then it is processed and then it goes to Quon...

JUSTICE SCALIA: Well, but that's the situation here. The -- the central location that stores the message is one thing, but she's made -- made the message public effectively by sending it to Quon. Once it gets to Quon she knows that Quon can make it public or that the employer can -- can find out about it... That -- and that's why you have the statute, because the Fourth Amendment wouldn't solve the problem, because you are effectively making it public by sending it to somebody whom you don't know is immune from disclosure. So in order to stop the intermediary from making it public, you needed the statute. Otherwise you wouldn't need it; the Fourth Amendment would solve the problem, right?

There are certainly some humorous moments in the transcript (some come from the lawyers)— a discussion between Roberts and Kennedy about whether a pager allows for SWAT members to receive notices while he's texting his girlfriend off-duty ends with Kennedy wondering whether an emergency work call might get, "Your call is very important to us; we will get back to you."— but it's too easy to stereotype the justices as old, out-of-touch boobs. A reading of the transcript, which is here, reveals they're not for the most part.

And, in the areas where they are ignorant of technology's ins and outs, they seem willing to admit it, and try to understand. One would hope that's what we'd want from justices offering up the ultimate decisions on privacy protections in such a new and quickly evolving area as mobile technology. Orin Kerr suggests that knowing their limitations should lead the judges to be cautious in applying Fourth-Amendment protections to new technologies. Whether you agree with that or not, certainly knowing their limitations is important if they have any chance at getting things right.

My understanding of the transcript is undoubtedly imperfect, as I'm more of a tech nerd than a legal nerd myself, but one thing's certain. John Roberts knows the difference between e-mail and a pager.

Rachel Maddow later added a correction to her finger-puppet segment, but she merely apologized for assigning the wrong finger-puppet face to the wrong "dogmatic, right-wing Supreme Court justice." Kind of missing the big picture. Do the Supreme Court legal nerds get to make fun of all the tech nerds now for their apparent inability to read, old-fashioned words on paper? Maybe they should text their transcripts to all of us.

The Outrageous Order of Judge Vaughn Walker

The Outrageous Order of Judge Vaughn Walker

Judge Vaughn Walker, after ordering a trial which neither party requested, is now ordering only one side – the pro-marriage forces, to turn over confidential campaign communications.

This is outrageous. Prop 8 was not passed by the five or six men who form the Protect Marriage Committee. It was passed by the votes of millions of Californians. Confidential campaign communications cannot, by definition, be relevant to their personal motivations in voting for Prop 8.

This is judicial harassment, plain and simple. It means that millions of Californians who expressed opinions to the Prop 8 campaign may now be exposed to the tactics of intimidation that have taken place against donors. It means that campaign strategy may be judicially revealed a few months before 2010, the year gay-marriage advocates have pledged to repeal Prop 8.

This is not an even playing field. It is one-sided in the extreme. The private, confidential intentions of the proposers could not have had any influence on the voters – and so are irrelevant.

How much respect will gay-marriage advocates show to the ordinary civil rights of Americans who disagree with them? So far, the answer is: not much. Not much, that is, short of eschewing open espousals of violence, and pooh-poohing the level of violence that has already taken place.

NY Times on Sotomayor

The New York Times editorializes over the Sotomayor confirmation hearings, and over what was said and not said.

It was clear that Republicans had overplayed their hand in weeks of trying to portray her as radical, intemperate and even racist. She was disarming in her appearances before the Senate Judiciary Committee — erudite, likable and eminently sensible. She defused some of the main attacks on her by backing away from a past statement that a "wise Latina" judge could decide cases better than a white man and by saying that she saw a judge's duty as applying the law, not making it.

At times, she too willingly ceded ground to her conservative questioners. We wish she had spoken out forthrightly in favor of empathy, a quality President Obama has said he is looking for in his judicial nominees. We would have liked to hear her boldly defend the idea of the Constitution as a living document, one that changes with the times. And we would have preferred if she had used the hearings to explain to the public that the much-mentioned distinction between judges making and applying the law has little meaning.

We may wonder why it is that Sotomayor felt the need to toe a conservative line during these hearings.  After all, the Democrats have a near-filibuster-proof majority in the Senate.  I don't think a Republican filibuster of this nomination will fly -- the votes just aren't there.

So why the conservative positions?

Why not defend the idea of a living, breathing Constitution? Why not defend her other positions if they're so sensible?  Surely she doesn't need to convince the Democrats, does she?

Or is the notion of a flexible Constitution more of a minority position than its defenders would have us all believe?

And is the distinction between judges making law and applying law really that small?  Or do too many people recognize the first as that "judicial activism" that either isn't supposed to exist, or to be evenly distributed on both ends of the left/right divide?

Maybe the New York Times editorial board will spend some time defending these points, since the current nominee declines to do so.

Justice Ginsberg - bad and good news

Bad news:  Justice Ruth Bader Ginsberg has been diagnosed with pancreatic cancer -- a nasty cancer.

Good news: It was caught early, and with luck, they'll have got it all in the surgery.  Keep fingers crossed.

 

Although there are no good ways to go, pancreatic cancer is one of the bad ones.  The only point in its favor is it's usually pretty quick.  But I really hope, for her sake and for her family's sake, they got it all.

 

Besides, I'd like her to hang on until after Obama's term so her replacement can be nominated by a Republican.  :-)

Judicial review, Prop 8, and same-sex marriage

Ilya Somin on the question of how much impact judicial review has had in the question of same-sex marriage:

In recent years, leading scholars such as Michael Klarman and Gerald Rosenberg have argued that judicial review is rarely if ever effective in protecting rights that aren't supported by the political branches of government and majority public opinion. The political backlash against the Massachusetts Supreme Judicial Court's 2003 gay marriage decision has seemingly added fuel to these revisionists' fire.

....

The crucial point here is that in 29 of the 30 states that passed anti-gay marriage amendments, there wasn't any legal gay marriage anyway. Thus, gay marriage advocates didn't actually lose much in these states. To be sure, the enactment of these amendments may make it more difficult to adopt gay marriage in the future. Rosen emphasizes this point. However, it's important to remember that most state constitutions are actually easy to amend. That's why the anti-gay marriage forces were able to pass their amendments so quickly. In many states, a state constitutional amendment is an only slightly greater obstacle to legal change than a statute. From a pro-gay rights standpoint, the adoption of gay marriage in two states and its near-adoption in California was likely worth the cost of making gay marriage slightly more difficult to enact in some 30 states where it was unlikely to be adopted in the near future anyway.

Moreover, both Just and Rosen undervalue the extent to which the pro-gay marriage court decisions have shifted the parameters of the political debate. With the relatively radical gay marriage option now on the table, other pro-gay rights measures such as civil unions seem moderate by comparison. Thus, civil unions are now supported by the majority of the general public, and even by some social conservative politicians, including George W. Bush. It is difficult to imagine this result coming about so quickly without the pro-gay marriage judicial decisions.

None of this proves that the state supreme court decisions requiring gay marriage were correctly decided. It does, however, show that judicial power is often more potent than the Klarman-Rosenberg thesis suggests. To be sure, courts are unlikely to protect rights that are completely bereft of support elsewhere in society. If not for the liberalization of popular attitudes towards gays over the last 50 years, there would never have been enough pro-gay judges to reach decisions like Goodridge. But although the courts are not completely free of outside constraints, they can indeed sometimes protect rights that are opposed by majority opinion and by the political branches of government. Co-blogger David Bernstein and I tried to outline the conditions under which that might happen in this 2004 Yale Law Journal article criticizing Klarman. Although we didn't focus on the gay marriage battle specifically, many of our points apply to it as well.

One point though:  If there is any validity to the notion that the existence of civil unions served to grease the slippery slope toward full same-sex marriage, this may have the effect of stifling a movement toward enacting civil unions where they don't already exist, and ending them where they do.

Orson Scott Card on Same-Sex Marriage

A number of people seem to be ticked off at Card's latest column.

The lightning rod in his piece seems to be:

What these dictator-judges do not seem to understand is that their authority extends only as far as people choose to obey them.

How long before married people answer the dictators thus: Regardless of law, marriage has only one definition, and any government that attempts to change it is my mortal enemy. I will act to destroy that government and bring it down, so it can be replaced with a government that will respect and support marriage, and help me raise my children in a society where they will expect to marry in their turn.

Biological imperatives trump laws. American government cannot fight against marriage and hope to endure. If the Constitution is defined in such a way as to destroy the privileged position of marriage, it is that insane Constitution, not marriage, that will die.

Habeas

Reason Magazine has an article on the Boumediene decision.

Habeas Crappus

Tom DeLay posts his thoughts on the Boumediene v. Bush decision:

Neither the United States military, its elected commanders in the executive branch, nor its representatives in Congress are now in control of America’s prosecution of the war on terror. Justice Kennedy is, or he seems to think.

Until he is disabused of this notion by a Congress with the guts to assert itself, the following not only may happen, but will, and very quickly:

- Captured terrorists will refuse to answer any questions without access to a lawyer;

- Captured terrorists will demand the public disclosure of the military’s evidence against them, thus exposing the means and methods employed by our intelligence community to gather such evidence;

- Captured terrorists will demand to confront their accusers, who will be soldiers on the front lines in Iraq and Afghanistan, in open court back here in the states; and,

- Captured terrorists will go venue shopping, filing their habeas claims in dozens of courts in hopes of getting the most liberal activist judge they can find.

Unless, I suppose, terrorists suddenly start fighting to the death in the battlefield.

The question is, what are conservative legislators going to do about it. Beginning in 1996 and continuing throughout the Republican majority in the House of Representatives, we had an aggressive, concrete agenda to combat judicial activism and supremacy.

Because Congress creates lower federal courts, Congress can also set its jurisdiction. Thus, except for the narrow field of cases in which the Supreme Court has original jurisdiction – cases involving individual states, ambassadors, and the like – Congress can simply remove the Supreme Court from the picture. A “court stripping” strategy would reassert the legislative and executive branches’ co-equal status as interpreters of the Constitution. Much of the groundwork has already been set.

Notice, by the way, what is not being considered.

We're not hearing anyone say, "They have made their ruling, now let them enforce it."

Nor, despite the ravings of the "911 Truth" or "BusHitler" crowd, does anyone seem the least bit worried that Justice Kennedy is going to disappear some night.

Clarence Thomas Corner

At The NRO Corner blog, links to interviews with Justice Clarence Thomas.

Can't detain enemy combatants?

The Fourth Circuit has held that al Qaeda agent Ali Saleh Kahlah al-Marri can't be detained as an enemy combatant. The Wall Street Journal is wagering this opinion will be overturned, and the legal framework allowing enemy combatants to be detained indefinitely will still be in place past January 20, 2009.

What have Kennedy and Kerry wrought?

Ed Whelan notes that by forcing a vote on cloture, the Democrats have done three things.

1. Absent the filibuster effort, lots of attention would mistakenly have been focused on whether Judge Alito would reach the filibuster-proof level of 60 votes on final confirmation. If he were to fall short of that, the media would proclaim that the vote level sends a warning shot that another nominee like Alito could be filibustered. By forcing an actual vote on cloture, Kerry and Kennedy have deprived the Left of this pretend-filibuster argument.

2. Kerry and Kennedy have turned the wrath of the Left against those 19 Democrats (nearly half the caucus) who voted for cloture.

3. By using the filibuster weapon against a nominee whom the public rightly recognizes to be superbly qualified, Kerry and Kennedy have undermined Democrats’ future use of that weapon.

If you doubt that those 29 Democrats are the subject of anyone's wrath, may I call your attention this post? Terry Karney names "those sonsabitches" in his tirade and recommends his readers give them large pieces of their minds.

A liberal's tirades over Alito

Terry Karney has been ranting over the complete unsuitability of Judge Alito to be a Justice. Or, indeed, to be a Judge.

A list of his posts:

Alito, and searches

Wherein he looks at Doe v. Groody, and links to the decision itself. His take on it is that Alito was willing to let police officers use an unincorporated affidavid to expand a search warrant, thereby making a mockery of the warrant process. To him, there are two places in the decision where "I think his reading of the law is either flawed, or dangerous."

Something I forgot yesterday

Wherein the Republicans are hypocrites for wanting an up-or-down vote on Alito.

More on the ideas of Alito

Wherein he looks at Alito's decision to overturn a lower court's ban on a nativity scene. Problem: "The [lower court's] condemnation was, however, so clear (and unanimous) that surely Judge Alito could have chosen to honor it, or pressed for en banc consideration of the case, rather than just pushing it aside and replacing it with his own vision of the right outcome under the Establishment Clause."
Therefore what? Therefore: "It isn't about choice. Not only do we lose on that one (because the Right is loud, and the base wants Roe overturned..."

A quick reference

Wherein he links to Law Students against Alito.

Alito, and trust

Wherein he paraphrases Alito's response to questions about what he said when he was hoping to be hired by the Reagan administration. His translation: "I didn't really mean it, I was just trying to get the job". In other words, he lied to get the job.
He further says, "His record is one of putting the corporation over the individual, the police over the magistrate, the gov't ahead of the citizen." and "To be honest, I'd rather see nine Thomases on the court, than one Alito."

More on Alito

Some more on the NSA

Alito, again

Just being one of those days (lots of posting)

Those sonsabitches

Some homework, to cheer you up.

Wherein he offers his analysis of how the addition of any Justice might affect a court. He offers a prediction that "it may be safe to say that he could have trouble getting his opinions handed down."

(Later, I'm planning to add quick capsule descriptions of each post [halfway there now!], and some general commentary to wrap up, but I'll put this up right now. You can tell he's spent a lot of energy on his tirades.)

Why pick on this fellow? To be sure, he's not a major pundit, but he has a following, I've had friends cite his writings as somehow authoritative. He has a fairly large number of readers of his Live Journal. Based on numbers of comments to his posts, quite a few more than I have.

And frankly, his way of thinking seems to be a very good representative sample of that of the Lunatic Left. Therefore, I present it for your consideration.

NSA – National Spying Argument

Nat Hentoff, one of the Washington Times' pet liberals, has his thoughts about the NSA telephone monitoring argument.

In brief, he has concerns about concentrating too much power in the hands of the executive branch, and breaching the Constitutional protections against excessive executive power.

In the Federalist No. 47, Madison said plainly: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

...Justice Roberts and Judge Alito have shown excessive deference to executive government powers.

There's a question-begging term for you. "Excessive deference". Hentoff does not show that Alito or Roberts are giving "excessive deference" to executive power, he asserts it, and then takes it as given with no further need for demonstration.

As it happens, there are many knowledgeable lawyers and law professors who don't consider these Justices (Alito was sworn in a handfull of hours ago) to give "excessive deference". That such a divergence of opinion exists should warn Nat Hentoff, and others, that they aren't allowed to assume "excessive deference" as a premise and base their argument on it.

Ribstein on Alito

Larry E. Ribstein, Corman Professor of Law at the University of Illinois College of Law, has another take on (soon to be) Justice Alito.

The past decisions of Alito, should he win confirmation, suggest how he might approach the pending cases. This analysis undercuts the simplistic description of Alito during the nomination hearings that he won’t give the "little guy a fair shake."

...while politicians try to fit a Justice Alito into sound bites, this ignores the complexity of issues Alito will face in day-to-day cases, and his attention to these competing concerns throughout his judicial career.

Prof. Ribstein is the author of http://www.ideoblog.org/.

Dershowitz on Alito

To what extent does a justice's rulings depend on the law, and to what extent on personal beliefs? Alan Dershowitz believes he knows.

Almost all justices vote almost all of the time in accordance with their own personal, political and religious views. That is the reality, especially on the Supreme Court, where precedent is not as binding, and where cases are determined less by specific facts than by broad principles.

The broad outline is obvious for all to see. Justice Alito will generally favor big government, big corporations, big religions and big majorities over ordinary citizens, consumers, minorities, religious dissidents, immigrants, persons suspected of crime and disenfranchised voters. He will have a narrow view of civil rights, women's rights, disability rights and immigrants' rights, and he will have a broad view of presidential power and states' rights (except in cases like Bush v. Gore). His membership in the Princeton alumni group that opposed the admission of women and affirmative action for minorities suggests that he will be unsympathetic to affirmative action.

A modest proposal

Reading Captain Ed's comments on the Alito hearings reminded me of an idea that's been rattling around in my head.

It reminds me of the Lloyd Bentsen moment in the VP debate in 1988 with Dan Quayle, when the VP nominee told the eventual VP that he was no John Kennedy. The difference in this case was that Teddy didn't have the guts to face Aldisert, having fled the scene when these witnesses came to the bench -- like almost all of his Democratic colleagues.

And

When what should be a simple confirmation process reduces family members to tears, it shows that one party has degenerated into a secular Inquisition.

I'm no lawyer, and I don't even play one on TV. (To be sure, I don't play much of anything on TV – not my profession.) But whatever "badgering the witness" may be defined as, I'd bet money at least some of the questioning of Alito qualified.

My proposal is:

Confirmation hearings should be conducted using at least some of the rules of courtroom hearings. Let a judge, perhaps the Chief Justice of the Supreme Court, or parhaps a Supreme Court Justice drawn at random, oversee it. He would have the power to terminate lines of questioning that were not probitive, that were overly prejudicial, or that were just plain abusive.

Also, it seems many Senators on the committee would wander off to do something else while testimony was underway.

I had remarked in a previous post that I'd been under the impression that the purpose of a hearing was for the Senators to hear the Witnesses. Maybe it wasn't a joke – maybe the purpose is for the Witnesses to be harangued by whichever Senators care to be present.

If the purpose of a hearing is for the Senators in a committee to hear evidence so they can decide on an issue, then by golly, they should be required to stay in the room while testimony is being given.

I've served on two juries to date. Once a trial is underway, everyone has to be present for it to convene. If a juror (including any of the alternate jurors) is absent, the entire proceding waits until that juror returns, and he'd better have a darn good reason for wasting the court's time. This is because the jurors in any trial are themselves judges. They are judges of the facts in the case.

In these confirmation hearings, the Senators on the committee are judges. They are judging the qualifications of the nominee to hold the office to which he's been nominated. The notion that a judge should be able to wander off and tend to other things while a trial is ongoing appalls me.

In fact, while court is in session, even the spectators are expected to behave with a certain decorum. They may be able to leave and return while court's in session, but they're expected to pay attention. No reading, no doing crossword puzzles, no updating your blog. Senators on a committee hearing testimony should have to abide by those same rules, and at least give the appearance they're paying attention to the witness. This is, at the very least, simple courtesy.

And if individual Senators want to bloviate, then at the very least, they should have to sit through and look attentive while all their colleagues do the same.

The Alito hearings

Captain Ed observes that Sen. Schumer may have gotten in trouble because he likes to hear himself talk. He asked one question too many.

What did Schumer accomplish here? He got the ABA to emphasize that Alito has a mainstream judicial temperament as well as a high sense of ethics -- and that an extreme temperament would have damaged his rating from the ABA. But even more damaging, the answer that the ABA "doesn't do politics" slaps at the committee's handling of the hearings and the question of the confirmation itself. Politics shouldn't enter into it for two reasons. The first is that the position should be non-political and would remain so if the Court stuck with an originalist approach to Constitutional issues. Secondly this hearing itself shows the danger of allowing the Court to drift into legislative tasks.