May 26, 2009
A roundup of some early reaction to the nomination of Sonia Sotomayor to the US Supreme Court:
- Powerline has the pro-Sotomayor talking points, and the Lawyers' eval from the Almanac of the Federal Judiciary
- Scotusblog has responses to some of the predicted criticisms.
- The Volokh Conspiracy wonders how this will play out among Hispanics.
- Ann Althouse has a bunch of stuff
- There's some back-and-forth between Althouse and Jeffrey Rosen,
although to be fair, Althouse isn't really engaging in an all-out
- Stuart Taylor on Sotomayor's embrace of Democratic-Left identity politics
- At Volokh, Jonathan Adler's take on Sotomayor's problematic comments
- And via Orin Kerr at Volokh, the relevant portions of her speech, and a link to the whole thing
- The Anchoress has her own comments, and a series of links, as well
- Ed Whelan's earlier research, Part 1 and Part 2
July 3, 2006
Last night, John and I interviewed Mark Smith, author of Disrobed, which he touts as an action plan for using the courts to advance the conservative agenda. Note that carefully. He does not want to "retake the courts." He wants to file targeted lawsuits in judge-shopped districts to find judges willing to impose the conervative agenda on the citizenry.
This is a profoundly bad idea, no matter how emotionally satisfying it may be.
The problem, the dispiriting truth, is that Smith is right in many of his premises. Liberals have misused the courts for 50 years. Liberals have refined judge-shopping and lawsuit-tailoring to a fine art. Conservatives have failed to make progress in reclaiming the courts, despite a generation of electoral success. So many core conservative agenda items - vouchers, repeal of racial quotas - are still annulled by the courts, no matter whether passed by referendum or by legislation, no matter how many times rewritten to satisfy the micromanagers in robes.
Facing this, and mindful that national moods may change over time, Smith sees an appeal to conservative judicial activism as the only way to play the game now. After all, if judges are going to be activists, they may as well be our activists. He sees this as raising the bar. It's actually just giving up.
First, it's lousy politics. Emotionally delicious as it might be to hang the leftist judiciary on the rope they've sold us, it's not the kind of thing most Americans are going to vote for. After all, if the best you can offer is a choice of dictators, that's not much of a menu. Principled conservatives - the majority of those who vote for a president based on the judges he'll apoint - will be confused by this kind of a U-turn. And surprising though it may be to some, while many conservative policies are quite popular, imposing them by fiat, not so much. Much conservative progress on judicial nominations has been won with the help of the vast middle who are persuaded not by this policy or that, but by democracy.
More importantly, though, Smith's proposal is essentially an abandonment of Constitutionalism, and it is the Constitution and the Declaration - not school vouchers - that is America's great gift to the world, and what sets us apart from what came before. Smith argues that "it will take 50 years of conservative judicial activism to undo the damage of 50 years of liberal activism." He might be right. But by then, we'll be 100 years removed from courts that behave Constitutionally, and really, do we think that conservatives, whatever that might mean 50 years from now, will give up that kind of power any more readily than liberals would today?
In fact, this reminds of nothing so much as the late Roman Republic, with greater and greater political forces being brought to bear on fewer and fewer offices with more and more power. The Founders were well aware of this history, and sought to distribute power in three ways: federalism, separation of powers, and enumeration of powers. To spend vast sums on a continuous poliical battle for the control of five seats on the Court is to invite lawlessness and violence in pursuit of that control, and to acquiesce in the lawlessness of Courts that rule at their whim.
There is one way in which Smith's ideas might conceivably work. If enough judges were to start imposing ideological quotas at law schools, affirmative action for conservatives, the liberals at those faculties might rediscover the virtues of Constitutionalism.
June 12, 2006
Our Postmodern Judiciary
For decades, conservatives have been claiming that liberals only like judicial activism out of expediancy, not out of principle. Today's Colorado Supreme Court ruling on Defend Colorado Now's ballot initiative to deny non-essential services to illegal aliens is the new Exhibit A in that debate.
In a 4-2 opinion, which (sic) one justice abstaining, the court ruled the proposed constitutional amendment violates a requirement that ballot questions deal only with one subject.
The ruling brought sharp words from members of Defend Colorado Now, the group pushing the measure.
"This is outrageous judicial activism, Exhibit A in how courts disregard precedent to reach a political result," former Democratic Gov. Richard Lamm said in a statement. "This isn’t law, it is raw, naked politics."
Dick Lamm appointed most of these jokers in the first place, and the number of judicially active rulings he's applauded over the years is countless.
Here's the operative part of the amendment, lifted from its complete text:
Except as mandated by federal law, the provision of non-emergency services by the state of Colorado, or any county, city, or other political subdivision thereof, is restricted to citizens of and aliens lawfully present in the United States of America.
And here is the Court's reasoning:
The ruling said Defend Colorado Now touts the possibility of reducing taxpayer expenditures by restricting illegal immigrants’ access to services, as well as the goal of restricting access to services.
"Because we determine these purposes are unrelated, we conclude they comprise multiple subjects connected only by a broad and overarching theme," the ruling said.
Note that the text of the amendment says nothing at all about revenues, it only speaks of spending. In fact, it doesn't even speak of spending, it speaks of services to be provided or denied. The fact that these services cost money is, while an unfortunate fact of life and governance, completely incidental to the language of the amendment. Were Marx to be proven triumphant, and the State be able to provide services without paying for them, the text of the amendment would still be operative. The idea that arguments used in the advocacy of any amendment actually have any force of law is bizarre to say the least, especially for a Court that has a pronounced distaste for the actual legislative histories of bills.
In fact, it's hard to conceive of any ballot initiative which would pass this test. Measures directly related to revenue by definition potentially affect the tax burden in a state with a balanced budget law and TABOR spending restrictions. That's reading the decision narrowly. Reading it broadly, any sentence containing more than one word necessarily encompasses two things.
A cynic would suggest that the four justices involved are unrelated, comprising multiple intelligences connected only by a broad and overarching need for remedial logic and English instruction.
Such cynicism would mask the truly dangerous, indeed dictatorial nature of this ruling. In effect, it opens the door for the Court to overturn any checks on its powers. Try, just try, to imagine any restraint on judicial authority which can't be separated into multiple purposes. And then remember who the final arbiter in such matters is.
UPDATE: It gets better. The Court, in arguing an agenda hidden in plain view on DCN's website, notes:
Because “emergency services” are commonly defined, as Defend Colorado Now does, as including police and fire protection and emergency room medical services, a voter might well assume that the converse of “emergency” would pertain to the single subject of nonemergency medical or social services. In the absence of a definition for “services” or a description of the purposes effected by restricting nonemergency services, the unrelated purpose of restricting access to administrative services is hidden from the voter.
And yet, isn't that exactly the first thing that public debate would illuminate? The Court want to both discount the usefulness of political debate and to use that debate (i.e., DCN's stated arguments in favor of their amendment) as a reason for disqualifying the initiative.
Nathan Coats's dissent is worth reading in its entirety, but here's the money paragraph:
Of course, the majority might just as easily have found that the proposal was motivated by a host of other reasons, including the deterrence of unlawful presence in the state, it’s clear and expressed ultimate objective. The susceptibility of any group motivation or objective to being thinly sliced is limited only by the ingenuity (and desire) of the court doing the slicing. And according to the majority’s logic, each such “purpose,” apparently constitutes a “subject” of the initiative. The constitutional limitation itself, however, does not purport to examine the hearts of those advancing an initiative but merely prescribes the form an initiative must take for it to be considered by the electorate.
January 26, 2006
Salazar on Justice Thomas: "an Abomination"
Sen. Salazar, champion of civil discourse.
Thomas is an abomination. James Dobson is the antichrist. And Thurgood Marshall's on the way to sainthood. Good thing the liberals are around to preserve separation of church and state.
January 13, 2006
January 12, 2006
Listening to Senator Kennedy cross-examine - in his own way - Judge Alito on the concept the "unitary Presidency," you can see why he had to cheat in law school.
By the way, at the time the Senator attended U.Va., the undergraduate schools there did not admit women. Although the future Senator was at the Law School, not there as an undergraduate, I think such fine distinctions are really just an attempt to evade responsibility for the institution as a whole. He also shares membership in the U.Va. Alumni Association with known terrorist apologists as well as actual, card-carrying members of the Republican Party. Why does his association with the University continue to appear on his official bio?
Vindication By Association
The Democrats on the Judiciary Committee, in particular Feinstein, Kennedy, and Schumer, have been trying to use Judge Alito's association with CAP to claim that they know what's really in his heart concerning non-Italian minorities.
Alberto Rivas, with whom I spoke last Thursday, would beg to differ. A center-left Democrat who worked with Alito 20 years ago in the US Attorney's office and has known him well ever since, Rivas wouldn't be out on tour promoting Alito's nomination if he had any doubts the Judge's character. Racism is one of those things that pretty hard to keep locked away without saying something incriminating over the course of decades. Lord knows, the Democrats have had no trouble digging up such disqualifying comments in the past.
Sadly, Mr. Rivas had to leave the interview early - to go speak to Univision, the Spanish-language TV network.
October 31, 2005
Salazar's Feelings Wounded
Turns out there's no truth to the rumor that Scalia recommended Alito for the Court just to get his hands on the new justice's Italian recipes, featuring the famous Sauce Alito.
OK, if you're still with me, we can get down to business.
Turns out our new junior Senator has a pretty thin skin. According to the Post, Salazar, sulking outside his office like an Achilles heel (although Achilles didn't usually call press conferences to complain),
Speaking with reporters Monday outside his office in Denver, the freshman senator said he was dismayed that "there was no consultation whatsoever with members of the Senate" over the choice, which he said was part of deal the "Gang of 14" senators hashed out.
"That is disrespectful," Salazar said, noting he learned of Bush's latest choice on TV.
Oh, the horror of it all, having to hear about it on television! The shame, the insult, the embarassment, the sheer humiliation! Maybe Salazar is having a flashback to his prom or Sadie Hawkins dance. There must have been some glitch in the system, because as part of the vast right-wing blogospheric conspiracy, my own personal elk came by at about 5:00 AM Mountain Time. Since I haven't heard anyone else complaining about being dissed, maybe Sen. Ken just forgot to set his clock back, although according to Chuck "The Phish" Schumer, if he's confirmed, Alito will be doing that for the whole country. Maybe with the extra sleep, Salazar won't be such a grouch.
Also note how Salazar thinks that the White House is governed by an agreement among Senators concerning their own procedures. And never mind that there was obviously plenty of consultation in advance of the Miers nomination. I'm sure her name wasn't the only one that came up; it's obvious from media reports at the time that Alito was being considered, so obviously there was consultation, whatever that means, about the Judge. The whole thing looks like an Official Senatorial Temper Tantrum, which I understand is part of freshman orientation.
Salazar also complained that Bush did not nominate a woman to replace Sandra Day O'Connor. At least three suitable candidates are available in Colorado alone, Salazar said - including Colorado Supreme Court Justice Rebecca Kourlis, "a Republican well-versed in western water law."
OK, scratch the part about Sadie Hawkins. Salazar's been pushing Kourlis for months now, but really, neither he nor she is all that important, and with all due respect to western water, it's just not that big a deal, either.
Salazar said he hopes to meet with Alito, as he did with then-chief justice nominee John Roberts and with Miers. Salazar voted for Roberts, but said he hadn't decided on Miers before her nomination "was basically killed by the religious right."
Can the Senator name a single leader of a major conservative or evangelical religious group who came out against Miers? I know this is now part of the established mythology, but the National Review Online was the loudest voice complaining about Miers. They're certainly to the right, and some of them are even religious, but somehow I don't think that's was Sen Ken was trying to allude to.
Other Democrats are questioning Alito's past opinions, saying he could tilt court positions against abortion rights. But abortion for Salazar "is not a litmus test," he said.
One of the standards he'll use in evaluating Alito is the extent to which the judge respects legal precedent and has an ideology to impose on Americans.
Of course, "precedent" and "ideology" are the current focus-group-tested liberal code words for "abortion," there being only one precedent that matters (or, if you're Arlen Specter, "super-precedent," or "super-duper-precedent"), and only one ideology that's acceptable. So this is a little like my saying that I won't hold my food to a kosher litmus-test, but I do check to see if it's got a little O-U on it. I'm far from the Catholic or conservative Christian position on abortion, but any legal position that claims that first-term abortion can only be protected by legalizing infanticide has to be classified as an "ideology."
So Salazar is pouting over invented Senatorial privileges (which really takes some imagination at this point), making up political dynamics, and talking in code like a Navajo during WWII. I think our junior Senator needs to grow up.
October 27, 2005
So Much For That
The AP is reporting that Harriet Miers has withdrawn her nomination to the Supreme Court. It appears that they've taken the Krauthammer route, blaming a separation-of-powers struggle over internal documents. While the Democrats made this an issue during the Roberts confirmation, he had enough of a paper trail of speeches and articles, as well as his time in the White House Counsel's office, that the Solicitor General's papers seemed like piling on. Time will tell if blaming the withdrawal of a poor nominee on a turf struggle is the wisest course of action. Given that another nominee is now due, it shouldn't be much time.
It's hard to escape the idea that this was the right thing to do. While an embarassment to the administration, in all likelihood, Miss Miers's name will simply become the answer to a trivia question, like Kimba Wood or Douglas Ginsburg or Harold Carswell. The political effect on a Presidency of a Supreme Court nomination is usually pretty minor during that Presidency.
The White House involvement is usually limited to the selection, and the nominee stands or falls on his own. In the end, rejecting clearly highly-qualified nominees has tended to hurt the Democrats more than losing them has hurt the Republicans. This is a live, winning issue now.
The President now has a chance to get it right.
October 10, 2005
What Karl Told James
Probably nothing that we haven't already heard. But Sen. Schumer and Sen. Salazar, and Sen. Specter (to the extent that he can be distinguished from them) want Dobson to let them in on the briefing.
The irony here is that conservatives are the ones that have been worried about Miers, while Harry Reid put her on the "approve" list he submitted to the White House. My guess is that Rove & Bush wanted to use Dobson to reassure social conservatives, since he's as likely as anyone to be a tough critic of this nomination. It wouldn't surprise me in the least if Dobson's little aside about "things I probably shouldn't know" is calculated more to enhance his reputation that Miers's.
While I don't really believe that any backroom deals have been cut, using Dobson as the evangelical pointman on this nomination probably wasn't the most savvy move available. In the past, his comments have gone a long way towards persuading me that he wants conservative activists, not Constitutionalists.
In any event, the notion of Senate Democrats, of all people, decrying the "demeaning of the process," would be funny if it weren't so relevant. While backroom deals to get on the Court would make a mockery of the process, the fact is Rove is in no position to make such promises on Miers's behalf, and Dobson would be powerless to enforce them, in any event.
Neither such set of condition obtains with regard to Senate Democrats, who only seem to be elected for life, but who in fact were caught taking marching orders from their own interest groups on judicial nominations.
October 5, 2005
I've been reading John Steele Gordon's An Empire of Wealth: The Epic History of American Economic Power, over the last few days, and it contains a number of interesting nuggets.
The one that stands out, given the questions about Chief Justice Roberts and prospective Justice Miers, concerns the difference between political and judicial philosophy. Salmon Chase, as Lincoln's Secretary of the Treasury, helped push through the first income tax to help finance the War of Northern Aggression. Later, as Chief Justice, he ruled it unconstitutional, although by then the war was over.
There is a difference between political and legal opinion.
Oh, yes. The book is very interesting, and hopefully I'll be posting a review shortly.
October 3, 2005
Justice Harriet Miers
The Wall Street Journal is reporting that President Bush will nominate Harriet Miers to succeed Sandra Day O'Connor on the Supreme Court. Miers is a trusted advisor and White House counsel. She had been rumored to be on the short list since last week.
The President was, evidently, looking for someone he believed he could trust who also hadn't left a paper trail a mile long for Senate Democrats to pick on. In addition, there's simply nothing for the Democrats to subpoena, since so much of her current work would be covered by executive privilege. Perhaps since Roberts worked in the Counsel's office, Bush went back to that well.
Here's a WaPo profile from June, before we knew there would be two openings.
Power, Faith, and Fantasy
Six Days of War
An Army of Davids
Learning to Read Midrash
Deals From Hell
A War Like No Other
A Civil War
The (Mis)Behavior of Markets
The Wisdom of Crowds
When Genius Failed
Blink: The Power of Thinking Without Thinking
Back in Action : An American Soldier's Story of Courage, Faith and Fortitude
How Would You Move Mt. Fuji?
Good to Great
Built to Last
Financial Fine Print
The Day the Universe Changed
The Multiple Identities of the Middle-East
The Case for Democracy
A Better War: The Unexamined Victories and Final Tragedy of America's Last Years in Vietnam
Zakhor: Jewish History and Jewish Memory
Beyond the Verse: Talmudic Readings and Lectures
Reading Levinas/Reading Talmud