Sonia Sotomayor’s absolutely revolting racism

Justice SotomayorYesterday, Sonia Sotomayor announced that she is absolutely horrified that the 14th Amendment can be used to prevent state government from engaging in race-based discrimination. Some may be a little confused by her argument, given that the 14th Amendment explicitly states that ” No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” In ordinary parlance, that means that all laws must apply equally to all American citizens, regardless of anything that distinguishes one citizen from another (such as race, color, creed, sex, etc.).

For sensible people who believe that all humans are created equal, the 14th Amendment is a good rule. But it’s not good enough for Ms. Sotomayor (and yes, I mean “Ms.” because, really, after what she just did, it seems so wrong to give her the honorific “justice”). What did Sotomayor do? She abandoned legal reasoning in favor of ill-informed, racist navel-gazing, and she used the most august court in the land for her platform in feminist, racist idiocy. (I say “feminist” because, even though the case was about race, Ms. Sotomayor promised from the beginning that, rather than following the law, she’d offer ruminations from a “wise Latina.” So all her stuff is a “girl thing,” you know?)

Anyway, in Schuette v. Coalition to Defend Affirmative Action, Sonia (I’m so disgusted by her right now, I don’t even feel like using the generic honorific of “Ms”), wrote a 52 page pile of touchy feely goop about the fact that minorities are inferior beings. Moreover, she felt so strongly about innate minority inadequacies that she felt compelled to read all 52 pages from the bench — clearly, part of the punishment she wished to impose on dead, or still living, evil white males the world over.

I’m not trying to be mean, or anything, but the woman is a walking, talking argument against affirmative action, which advances women, minorities, and other non-white, non-straight, non-Asian, non-Jewish people simply because they weren’t born white, straight, Asian, or Jewish.   Here’s the heart of Sonia’s insanely racist (and non-legal, non-factual, highly navel-based) rant. Sonia starts by attacking the US’s bad history:

For much of its history, our Nation has denied to many of its citizens the right to participate meaningfully and equally in its politics. This is a history we strive to put behind us. But it is a history that still informs the society we live in, and so it is one we must address with candor. Because the political-process doctrine is best understood against the backdrop of this history, I will briefly trace its course.

She’s right, of course. Italians, Irish, Germans, Jews, Russians, Chinese, Japanese, East Asian, etc., all faced horrific discrimination. Peculiarly enough, once the discrimination ended as to these disparate groups, all were able, without any further effort on the government’s part, to ascend to the halls of wealth and power. Sonny’s problem (yeah, I’m at the point where even calling her by the pretty name “Sonia” irks me) is that she firmly believes that what worked for every other minority — just to be left alone — won’t work for blacks and Hispanics.

Before Sonny gets to her conclusion that blacks and Hispanics are inherent deficient (her thoughts, not mine), she takes us on an endlessly boring journey of efforts to discriminate which have all been done away with. Even as she tries to paint America as racially evil, she inadvertently keeps pointing to its self-correct mechanisms.

I sort of fell asleep somewhere when reading her tripe, but when I awoke, I found her claiming that there’s nothing in the 14th amendment that prohibits discriminating on the basis of race, because America’s educational institutions are improved by racial discrimination. No, really. That’s what she said:

Rather, race-sensitive admissions policies further a compelling state interest in achieving a diverse student body precisely because they increase minority enrollment, which necessarily benefits minority groups. In other words, constitutionally permissible race-sensitive admissions policies can both serve the compelling interest of obtaining the educational benefits that flow from a diverse student body, and inure to the benefit of racial minorities.

The above stunning quotation is followed by a lot more soporific stuff. Considering how plagued I am by insomnia, I really should have a copy of Sonny’s dissent by my bedside. It makes for exhausting reading. The only downside, of course, would be the inevitable nightmares flowing from her racially carved up universe.

So, anyway…. Blah, blah, blah. And then this, the moment at which she states that the only way to make effective the 14th Amendments constitutional guarantee not to discriminate is to . . . wait for it . . . discriminate:

That view [that the 14th amendment means that the law applies equally to everybody] drains the Fourteenth Amendment of one of its core teachings. Contrary to today’s decision, protecting the right to meaningful participation in the political process must mean more than simply removing barriers to participation. It must mean vigilantly policing the political process to ensure that the majority does not use other methods to prevent minority groups from partaking in that process on equal footing. Why?

Did she just end that deconstructionist, magical thinking rant by asking “Why?” Well, I’ve got the answer, so you can ignore Sonny’s new-Age, victim-based, PC bibble-babble version of an answer. The obvious reason Sonny believes that the government must discriminate, world without end, on behalf of blacks and Hispanics is that, in her mind, these two racial groups are congenitally incapable of partaking in the political process without Mommy and Daddy government holding their hands. Unlike all other minorities who pulled themselves up by their own bootstraps, her posse can’t do it. And if that isn’t the most vile racism you ever heard — a Supreme Court justice saying that blacks and Hispanics are defective and will always need government help just to get back — I don’t know what is.

I’m now bored with Sonny. Sonny is pathetically burdened by an unpleasant reality:  she got into college and law school and government work and the Supreme Court thanks to affirmative action.  She had neither the brains nor the self-discipline to make it on her own (unlike the legions of Jews, Italians, Irish, Asian, and East Asian immigrant kids who looked at their often squalid surroundings and made the decision to be the best and, without either government discrimination or aid, rose to the heights.  This painful knowledge goes some way to explaining her embarrassingly self-referential opinion. She knows that she’s inadequate and, rather than admitting to her own mental infirmities, makes herself feel better by telling the American people that all blacks and Hispanics are just as mentally deficient as she is.

Let me say this again: for every other group in America that suffered government sponsored discrimination, after the government stopped discriminating (either against or for them) that group was able to achieve social, economic, and political success within one generation. Sonny is too scared to give blacks and Hispanics that same chance. In order to justify in her own eyes the unfair advantage she got at every stage in her career, she wants to ensure that no black or Hispanic ever has to compete on a level playing field.

Part of Sonny’s decision is her racism, a disdain for blacks and Hispanics that would fit comfortably on a KKK Imperial Wizard’s lips. And the other part of it is her fear that, if they succeed, she’ll have to acknowledge the failure that lies under all the undeserved accolades and professional advancements that came her way.

Can federal courts ever become zealous defenders of individual rights under the Constitution?

Clark NeilyI went to a lunch today where the speaker was Clark M. Neily, III, author of Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government. Neily is an attorney at the libertarian Institute for Justice, a public interest organization that focuses on Constitution-centric civil liberties cases. (I know that it sounds redundant to say “Constitution-centric civil liberties cases” but I use that phrase deliberately to distinguish it from the ACLU’s version of “civil liberties,” which is also known as the “We hate Christians” school of thought.)  The subject of his talk was the poisonous effect of the “rational basis” analysis that the Supreme Court has mandated for cases involving government infringement on an individual’s right to work.

Neily is a great speaker. He speaks quickly, so you have to pay attention.  Paying attention isn’t a problem, though, because Neily also speaks clearly, and everything he says is interesting, with enjoyable and appropriate dollops of humor thrown in at warp speed. This is a man with a very high verbal, analytical intelligence. Even as I was listening closely to what he said, a small part of my brain was running an IQ calculator. When he started speaking, I pegged him at about 145 on the IQ scale. By the time he was done, I’d moved him up to 175. After all, his is precisely the type of intelligence the IQ test measures.

Before I begin, it behooves me to tell you that I haven’t yet read Neily’s book. I was planning on looking for it in the library or getting it on Kindle (because, as I’ve probably mentioned more than once, I’m very cheap). By the time he was done speaking, though, I wanted a signed copy and shelled out $26 (!) just so that I could gloat about having it signed by the man himself. This disclaimer is to warn you that I’m not reviewing his book, which I assume is as interesting as the speech. The book’s Table of Contents also tells me that it covers a much broader range of topics than the speech did. Finally, since I haven’t done anything remotely related to Constitutional law in years, you’ll have to pardon (or perhaps be grateful for) the fact that this is not a lawyerly analysis.

The “rational basis” test is the Supreme Court-mandated test for “non-fundamental rights.” One of those non-fundamental rights (and this may come as a surprise to you) is the right to hold a job in the field of your choice or to sell a product of your choice. Non-fundamental rights, by definition, are less important than rights such as speech or freedom of worship. (And no, don’t get me started on Obamacare’s attack on faith.)

If you protest a state or federal law imposing such a great burden on your profession that you cannot run a viable business, or that imposes ridiculous impediments as a predicate to holding a certain type of job, the federal court judge hearing your case will ask the government to justify the law.  Fortunately, for the government, the standard, known as the “rational basis test” is so low that it requires no facts or analysis, just imagination.  Worse, it turns the judge into an active part of the government’s defense team.  Or as Neily explains:

Unlike strict and intermediate scrutiny, it does not involve a search for truth but rather an exercise in creativity. Instead of trying to determine what the government is really up to, as they do in other cases, judges applying rational basis review are required to accept — and even help invent — purely imaginary explanations for the government’s actions. (p. 50.)

Here’s how this standard played out in a real case that is near and dear to Neily’s heart.  Sandy Meadows was a Baton Rouge, Louisiana, widow with one marketable skill:  she could arrange flowers.  We’re not talking the fancy flower arrangements you see in the lobby of deluxe hotels.  She put together the little posies at the local supermarket and was paid a livable salary to do so.  Unfortunately for Meadows, the state of Louisiana requires that florists — with a florist defined as anybody who assembles more than two flowers and sells them — to have a license.

Meadows took the license test five times and failed it five times.  Lest you think she was an ignoramus, she wasn’t.  She didn’t have a problem with the 50 written questions.  Her problem was with the practical exam.  In Louisiana, anyone who wants to put together posies for profit must assemble four arrangements that are then judged, not by some bureaucrat (which would be bad enough), but by a panel of florists who are given a chance to size up potential competition.  That’s where poor Meadows failed every time.  She wasn’t alone.  I believe Neily said that the floral panel passed only 37% of test-takers.  Neily compared this to Louisiana’s State Bar pass rate, which is 61%.  In other words, it’s easier to become a lawyer in Louisiana than to become the gal who puts together bouquets at the local Piggly Wiggly.

Neily, on behalf of the Institute of Justice, took on Meadows’ case . . . and lost.  He lost because the “rational basis” test meant that the government could come up with any nonsense it wanted to justify a monopolistic licensing requirement and, when the judge wasn’t convinced by the government’s arguments, he was able to come up with his own, even sillier, reason for having the state put its giant thumb firmly on the scale on the side of florists.

As Neily explained it, the judge rejected the government’s argument that a poorly-tied bouquet might fall apart in a bride’s hands, spilling flowers at her feet, and causing her to trip and injure herself at her own wedding.  Apparently that was too silly even for the judge to contemplate.  Instead, the judge had his own theory, and that won the day:  the florist license was necessary to protect against “contaminated soil.”  The judge was unmoved by the fact that nothing in the requirements for becoming a florist, or in the written exam, made mention of contaminated soil.  The mere possibility that contaminated soil existed in the judge’s mind meant that it could have existed in the legislature’s mind when it passed the law, and there you had it — a rational basis for destroying a person’s livelihood.

Meadows, incidentally, died in abysmal poverty thanks to the fact that the state of Louisiana, with the complicity of the federal judiciary, stole her livelihood.

Louisiana, of course, isn’t the only place where states play favorites when it comes to the right to work.  As I drove back from the lunch, I called my sister, an Oregon resident.  She loves living in Oregon, but complains frequently about the fact that it is so heavily regulated one practically needs a license to sneeze.  In exchange for the story about poor Meadows, my sister told me that, in Oregon, you need a license to “serve” alcohol.  By this she did not mean that you need a license to work as a bartender or that a business establishment needs a license if it wants to sell alcohol to the public.  What my sister meant is that, if you’re the waiter who brings the wine from the kitchen to the diners’ table or the martini from the bar to that same table, you need a license to do so.  God alone knows what the “rational basis” for that is, but I can readily tell you the practical basis:  alcohol is often the most expensive part of a meal, so the server who brings it to the table gets the biggest tips.

There is nothing whatsoever in the Constitution that gives a limited government the right to put irrational hurdles in the way of people’s right to a job. The irrational hurdles come about because certain professions get the bright idea that they can lower competition (and increase profit) if they convince the government to mandate a license as a prerequisite for doing the work they do.  Black women braiding hair in Washington, D.C.?  They better stop braiding unless they get an expensive education, and apply for an expensive license, thereby assuring those getting their hair braided that the woman knows how to do dye jobs too.  Incidentally, don’t kid yourself that the politicians who pass this legislation do so because they have a principled belief that, if they don’t, the Apocalypse will be minutes away.  They do it because they’re paid to do it in the form of campaign donations.  There’s nothing wrong with this . . . provided that the judges do their job.

So where do the judges stand in all this?  In theory, the judges should be a bulwark against this type of unconstitutional activity — except that they’re not.  Instead, they bend over backwards to keep the laws on the books.  Part of the problem is that they feel constrained by the Supreme Court’s “rational basis test.”  Neily pointed out, though, that at least two appellate court panels have basically said that “rational” must have one foot grounded in reality.  If the government’s lawyers can come up only with manifestly ridiculous theories involving Martians and tripping brides, these courts indicated that they were not required to lend a hand.

The bigger problem with the judges, which is one that George Will addresses in a column published just today about Neily’s book, is that too many judges are willing to give too much deference to state legislators.  The judiciary, after all, is the only branch of government given the task of protecting the Constitution.  Legislators aren’t too concerned with the constitution.  They’re concerned with passing laws, especially those that they’re paid to pass.  The judges, whether because they’re passive, or Leftists, or unthinking, or wrongheaded, are abandoning their constitutional responsibilities.

Incidentally, you should ignore the column title at the Washington Post, which suggests that courts should engage in judicial activism, a concept that is anathema to conservatives and libertarians.  Judges are not activists when they follow the Constitution.  They are activists only when the ignore or re-write it.  The column title was a WaPo addition, that has nothing to do with Will’s or Neily’s argument that judges need to step up and protect the Constitution — and, by doing so, to protect individual liberty against government overreach.

I’ve long thought that government-created monopolies are bad things.  I’ve had a lot of time to think about this, too, since I’ve been a member of California’s State Bar for more than 30 years, a “privilege” that costs me several hundred dollars a year, much of which is used to promote political causes that I deeply dislike.

My main grumble with the Bar, though, has always been the requirement that we have to take 25 hours of “minimum continuing legal education” classes every three years in order to keep our jobs.  One could argue that this isn’t such an onerous requirement.  Thanks to the internet, I was able to get all 25 hours done for $49.  In the beginning, though, back in the mid-1980s, it was a very expensive proposition.  Big firms could circumvent the cost by having a senior lawyer “teach” a room full of assembled junior lawyers. 

Sole practitioners, however, weren’t so lucky. They had to go out hunting for classes, and those classes were costly, ranging from $50 to $200 per hour.  Oh, and back in the day, you needed 12 hours a year.  As far as I could see, the only benefit flowed to the MCLE providers, who had a captive audience mandated to buy their goods.  (Hmmm, sounds like Obamacare, doesn’t it?)  Once I figured out that MCLE was a scam, I began to realize that the State Bar was a scam too — and an unconscionable monopoly as well.

If it were up to me, membership in the State Bar would be voluntary.  It would be something that the “better” class of attorney could boast about, just a they could boast about the myriad expensive classes they took in their specialty.  Bar membership would be a marketing advantage, rather than a monopoly.  In the old days, pre-internet, one could argue that the State Bar was the only reliable purveyor of necessary information about whether a person was qualified to be a lawyer, but that’s bunk nowadays.  I imagine that, were the bar to disband today, tomorrow there would be dozens of websites offering consumers information about lawyers and law firms.

At the end of the talk, I asked Neily how he expected any turnaround to happen in the courts.  After all, the Supreme Court itself is the author of the instruction that judges use the “rational basis” standard, complete with creative writing, in their approach to state-mandated monopolies.  Moreover, especially since Harry Reid destroyed the filibuster specifically to pack the federal courts, we can expect that there will be more judges on the bench, rather than fewer, who will always give obeisance to Big Government.

In answer, Neily said two things:  First, he thinks that the American people can only be pushed so far towards big government, before they push back in sufficient numbers to force a change in politics that will eventually be reflected in the courts.  He doesn’t see this happening instantly, but rather posits a 30 or 40 year trend toward more respect for the Constitution and individual liberty.  Let me just say, “From his lips, to God’s ear.”  Second, he told me that he discusses in his book some practical ideas for speeding the trend towards liberty, and you can be assured that I’ll check those ideas out.

All in all, although Neily kept his speech brief, it was sufficiently packed with interesting ideas and information to sustain a long telephone call with my sister, and an even longer blog post for all of you.  I look forward to reading Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, and getting even more information about the way America’s federal courts have abdicated their role as the Constitution’s guardians.

Harry Reid’s nuclear option is a red herring — but the effects will still be profound

Mitch McConnell is too often a GOP stalwart (as opposed to a conservative) for my taste, but when he’s good, he’s very, very good.  He was very, very good this morning, as he attacked Harry Reid’s attempt to change Senate rules so that only 51 votes are needed to get judges onto federal benches (except for the Supreme Court):

Even though Harry Reid’s nuclear option is a red herring meant to distract from Obamacare’s many and varied failings, it’s still an enormously consequential thing. I know all about ideologically packed courts, having practiced in the Bay Area for my entire legal career, and I can tell you that blind justice is never seen in those halls.

As with everything else the Left touches, law is not about applying settled, reliable principles to known facts.  Instead, on the civil side, it becomes purely redistributive. I cannot tell you the number of cases I’ve handled that saw the judge rule against my corporate client, even while admitting that my client had the better legal case. Nor can I count how many times judges have engaged in obscene intellectual contortions to ensure a redistributive outcome. I’ve even worked on a few cases in which appellate court justices have out-and-out lied about the facts in order to achieve a specific end — and then they’ve published those cases, making them case precedent in California.

A court that owes its fealty to a political ideology, rather than to applying settled law to undisputed facts, is an inherently corrupt institution. That corruption spreads far beyond the parties standing in the courtroom. Take just one example:  I worked on a case where a woman defaulted on loan. The bank sued. The woman’s defense was that she hadn’t read the loan documents. Settled law going back to forever says that the failure to read documents is not a defense to a default. The far Left judge felt differently. On the one hand, he had a mean bank; on the other hand, he had a poor little old lady. You can guess the outcome. You can also guess that, in future, the bank increased the cost of loans to offset bad debts such as this one.  You can also bet that the little old lady went home and let her community know that defaulting on a loan in San Francisco county was a reasonably safe thing to do.

The problems with an ideologically corrupt judiciary don’t flow solely from the lessons people take away as they walk out of the courtroom, even though such lessons resonate throughout the community and affect future behavior. There’s an even more insidious problem with a system in which the judge’s pick winners and losers based, not upon facts or law, but upon their place in their hierarchy of Leftist victim-hood.  It’s also the fact that the law is utterly unpredictable if the outcome is dictated by each judge’s personal redistributive biases. Businesses cannot operate in a system that isn’t predictable. They go one of two ways: they become as corrupt as the courts, since lawlessness is contagious; or they retrench, taking their services, products, and investments out of a market that is too unreliable for them to risk.

blind_justice

Justice Alito’s footnote sums up everything that is wrong with our judicial system

I haven’t had the heart or the stomach to read the Supreme Court decisions that came out today.  (It’s not about content.  It’s about the fact that, with rare exceptions, I find most Supreme Court decisions too horribly written and turgid to read.)  I therefore didn’t discover this gem from Justice Alito in the DOMA case  Instead, I’m passing it on to you from Paul Mirengoff at PowerLine, including the emphasis Mirengoff added:

The degree to which this question [the traditional view of marriage vs. the consent-based view] is intractable to typical judicial processes of decisionmaking was highlighted by the trial in Hollingsworth v. Perry. In that case, the trial judge, after receiving testimony from some expert witnesses, purported to make “findings of fact” on such questions as why marriage came to be, Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 958 (ND Cal. 2010) (finding of fact no. 27) (“Marriage between a man and a woman was traditionally organized based on presumptions of division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family”), what marriage is, id., at 961 (finding of fact no. 34) (“Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents”), and the effect legalizing same-sex marriage would have on opposite-sex marriage, id., at 972 (finding of fact no. 55)(“Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”).

At times, the trial reached the heights of parody, as when the trial judge questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify in person in his courtroom. See 13 Tr. in No. C 09–2292 VRW (ND Cal.), pp. 3038–3039.

And, if this spectacle were not enough, some professors of constitutional law have argued that we are bound to accept the trial judge’s findings—including those on major philosophical questions and predictions about the future—unless they are “clearly erroneous.” [citations omitted] Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously.  (Emphasis added)

Gay Marriage Open Thread

I really don’t have much to say about the DOMA decision.  I think it’s another Roe v. Wade in terms of creating rights that never existed.  The difference, though, is that the Supreme Court waited to make the decision until the tide had turned at the popular support level, with more and more Americans supporting gay marriage.

As for the Prop. 8 decision, I agree with a Facebook friend of mine who wrote:  “SCOTUS has made its ruling on Prop 8 today. No matter which side of the issue one comes down on, it should be frightening to all of us that an Attorney General of ANY STATE can simply choose not to defend ANY LAW and *POOF* the law will be overturned.”  There lies the way to tyranny, when the people no longer have standing on their own behalf.

Lastly, Kennedy has altogether too much power.  I never get the feeling that the guy has any fixed legal or constitutional principles.  At least the guys (and gals) on the Left are Lefties and the guys on the right are Righties (except for Chief Justice Roberts, who I think was blackmailed on ObamaCare).  Kennedy is a “whatever.”  When I was in law school, there was a saying that “the law is what the judge had for breakfast.”  With Kennedy, it’s also what he had for lunch, dinner, and his little midnight snack.

Please chime in here with your feelings on the subject.

 

FDA must make Morning After pill available over the counter to everyone

Birth Control Pills

Kathleen Sebelius, showing one of her rare moments of good sense, had the FDA limit the Morning After pill to girls and women over 17.  A federal judge in Brooklyn has overruled that, saying it must be sold over-the-counter without limits to help slow teen pregnancy. I’m not going to discuss morality right now.  I’ll take a minute to discuss the logic:  it’s not the judge’s business to make this decision about medicine.  It was Sebelius’s decision, and for once she made the right one.  If she made a stupid one, the people could raise up their voices and protest.  Since it’s now law, the people are stuck.  Gawd, I hate judges. I wish them well personally as human beings, as sons and daughters, husbands and wives, sisters and brothers, but I wish that every Democrat judge would leave the bench.

Here’s what you need to know about this drug’s side effects, which range from uncomfortable to “are you out of your ever-loving mind to let a 12 year old, who is still developing hormonally and mentally take this?”:

Minor Side Effects

Minor side effects of the morning after pill may include abdominal pain, breast tenderness, diarrhea, dizziness, fatigue, headache and nausea.

Menstrual Side Effects

The timing or heaviness of your next period may be affected. Menstruation may be lighter, heavier or delayed after taking the morning after pill.

Serious Side Effects

The morning after pill can change blood sugar levels, which is potentially dangerous to diabetics. Severe abdominal pain is considered a serious side effect and may be an indication of ectopic pregnancy.

Ectopic Pregnancy

Ectopic pregnancies occur when a fertilized egg attaches outside of the uterus. If the morning after pill fails to prevent pregnancy, ectopic pregnancy is possible.

This drug is a pedophile’s dream — rape your 12-year-old stepdaughter, or niece, or girlfriend’s daughter, or neighbor girl, threaten to kill her or her loved ones if she talks, and to Walgreen’s to buy a pill that hides the evidence.

In California, if you’re under 18, you can’t shoot paint balls without a parent’s consent, nor can you get a fake tan or have your ears pierced.  You can, however, at age 12, with an immature mind and a maturing body, walk into Walgreen’s and order a medicine that has a significant effect on your hormonal system.

Pfui!!

 

Sotomayor reminds us that affirmative action is terribly unfair

Justice Sotomayor

Justice Sotomayor came to San Francisco and inadvertently made the case that affirmative action terribly unfair — and, moreover, that people are right if they believe, not that it gives qualified minorities a chance, but that it handicaps non-minorities at the expense of any minorities, qualified or not.

Let me unpack that first sentence.  All of us would like to see bright, hard-working kids succeed.  We have an innate sense that it is “fair” that those who work hardest get opportunities.  We approve of scholarships that reach out to poor children, enabling them to get the benefit of their own hard work and intelligence.

What we don’t like is a system that says to completely ordinary kids who make no specific effort:  “You!  Yeah, you.  Although you are undistinguished in all relevant ways, you’re going to get a leg up simply because of your race.”  In the old days, that sentence, more fully written, read “Although you are undistinguished in all relevant ways, you’re going to get a leg up simply because you’re white.”  Looking back now, we realize how heinous it was to spread opportunities unevenly simply because of race.

Yet that’s precisely what affirmative action does — spread opportunities unevenly because of race.  The government, rather than being magisterially even-handed, has taken sides.  Instead of funding scholarships for accomplished young people, it funds scholarships for racially appropriate people (emphasis mine):

Supreme Court Justice Sonia Sotomayor, in town Monday to promote her newly released memoir, said she couldn’t talk about affirmative action because of a pending court case. In the next breath, she talked about what it had meant to her – admission to Princeton and Yale Law School and the launching of a legal career.

“I was given the chance to get to the start of the race and it changed my life,” the 58-year-old justice told a sold-out Commonwealth Club audience at the Herbst Theatre in San Francisco.

When she entered Princeton on a scholarship in 1972 despite unspectacular test scores, she recalled, the school was in only its third year of admitting women and had barely a handful of minority students.

Isn’t that nice for Sotomayor?  She got into Princeton despite the fact that she didn’t qualify.  And doesn’t it just suck for the hard-working white or Asian kid who, in that same year, had spectacular test scores (not to mention good grades), but was nevertheless barred from Princeton because Sotomayor took her place?  If Sotomayor had been a brilliant student, it’s probable that none of us would have cared that she, a kid from a dodgy New York neighborhood, was granted admission over a kid from somewhere suburbia.  What grates is that Sotomayor hadn’t earned her place academically.

I recognize that Sotomayor’s opportunity came about in 1972, when affirmative action was meant to be a quick fix — a head start — to make up for the decades of discrimination that immediately preceded those first few years of affirmative action.  What rankles is that, two generations later, we’re still giving a hand up to mediocre people in the name of race.  In other words, we’ve institutionalized racism just as certainly as those Jim Crow people did.  We now frame it affirmatively, in that we boast that we’re pulling some people up, as opposed to pushing other people down, but it’s the same thing:  too often race, not merit, determines who gets to grab the educational and employment gold ring.

Sotomayor seems like a nice, hard-working woman, although I couldn’t disagree more with her approach to the law.  She also seems like someone who benefited from an inequitable program at a time that at least gave some credibility to the program, but who now seeks to use the extraordinary power granted to her to make Leftist Jim Crow laws a permanent part of America’s racist landscape.

________________________

*I’d originally written “economically disadvantaged children,” and then thought, “Why am I cluttering my writing with this lardy PC jargon?”  So I changed it to “poor children,” which makes the point just fine.

Your betters in Washington are just more important than you are

There’s still time to make a stand by signing the White House petition urging that we establish “gun free zones” around the President, VP, and their families.  The thinking is that what’s sauce for the goose (we, the People) should definitely be sauce for the gander (our employees in Washington, D.C.). As of now, the Petition needs only 4,511 more signatures.  I would love to see the White House explain why the Progressive privileged few are more important than you and your children.  (I assume they’ll talk about the increased risk to them because of their office, but it seems to me that the residents of Washington, D.C., Chicago, Detroit, Houston, and L.A. slums are at infinitely greater risk.)

I was reminded again of Progressive double standards when I saw 60 Minutes’ slobbering love letter to Justice Sotomayor.  (Funny, I don’t remember that kind of drooling love for Clarence Thomas, who has an equally compelling life story.)  The story opens with the love-struck reporter taking a walk with Sotomayor through her childhood stomping grounds in the Bronx.  That would be fine, but for the fact that the first minute of the story points out, not once, but twice, that she’s surrounded by armed guards.  First, the reporter makes a verbal point of that fact; then the Bronx segment ends with Sotomayor taking a group shot with the five members of the NYPD drafted to provide her with a type of protection none of her former neighbors will ever see.

From Sotomayor’s armed guards, to Obama’s Secret Service for life, to David Gregory getting a pass for blatantly breaking the law, the message is clear — our Progressive overlords are more important than those who pay their salaries.

Near the end of the 19th century, Anatole France famously quipped that “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” The joke, of course, was that the rich would never be caught engaging in those illegal activities. In Obama’s America, the joke has gone one step further: the Progressive elites get to engage in precisely the same activities as ordinary folks do, including illegal acts, but they get to do so wrapped up in cotton wool that protects them from the risks they’ve forced upon the regular Joes in this great country.

The Watcher’s Council forum examines the ObamaCare opinion

If you’d like to see in one place a broad range of opinions about the Supreme Court’s ObamaCare decision (or, more accurately, opinions John Roberts’ intellectual spasm), check out this week’s Watcher’s Council forum.  This is a special one, because we not only have a sampling of Council members participating (including me), but we also have two wonderful guest contributors:  Robert Avrech and Maggie.

Is there a rehearing in ObamaCare’s future?

You probably know that Glenn Reynolds pointed out that, if the administration is going to go around arguing that ObamaCare isn’t a tax, they’re conceding that it’s unconstitutional.  That’s a clever line, but Rhymes With Right explains that the administrations’ strenuous denials also open a pathway to a Supreme Court rehearing.

Judge Roberts’ decision forces Americans to stand on their own two feet — and that’s a good thing *UPDATED*

[UPDATE:  Since I wrote this post, there is now reason to believe that Roberts issued his opinion for the wrong reasons, not the right ones.  If I were to rewrite this post today, I would be less charitable to the man.  Nevertheless, putting aside Roberts' motives, I stand by the substance of my post, which is that it forces conservatives to recognize that they cannot look to any branch of the government for succor from Big Government.]

Now that the first shock of the Roberts opinion is over, many conservatives are very busy digging through the pile of manure, confident that there’s a pony in there somewhere.  In this, we are distinct from our Progressive/Democrat counterparts, who would be busy rioting in the streets and sending death threats to John Roberts.

Having had more than 24 hours to come to terms with the decision, I’m beginning to think that there may indeed be a pony (or several ponies) hiding in there somewhere.  Moreover, I’m also realizing that Roberts, despite the apparent wackiness of his decision, stayed true to his constitutional roots.

As is always the case with me, I build my argument slowly, so please bear with me.  I’ll try to maintain some tension and excitement as I go.

Speaking of tension and excitement, my first point involves a screaming fight some colleagues of mine got into yesterday.  Because they’re nice folks, it wasn’t a vicious, personal, ad hominem fight.  They just kept making the same points over and over again, at ever-increasing volume.  They seem to have locked into the same line of reasoning that says that, if you speak really LOUDLY to someone who doesn’t understand English, you will make yourself understood.

The topic my friends were debating was whether heroin should be legal or not.  One side staunchly opposed legality because heroin is so dangerous; the other side equally staunchly advocated legalizing the drug, because it has benefits that go beyond the medicinal.  (I’ll take the other side’s word for it, since recreational heroin seems merely self-indulgent to me.)

What was fascinating was that both sides laid claim to the government to support their argument.  Those who feared heroin’s risks felt that only the government could protect Americans from the drug’s dangers.  Those who believed it should be legalized, after pointing out correctly that making heroin illegal doesn’t stop either its use or the societal downsides, believed that only government could manage heroin.  These people envisioned corner dispensaries, apparently along the line of the DMV.

At a facetious level, I have to agree with the guy who wants to put heroin in government hands.  Can you think of anything that would make heroin less appealing than having to deal with government functionaries a la your local DMV?  I can just see it now:  Long lines, rude clerks, poor quality service, mountainous bureaucracy and, to make it worse, you’ve got the joneses the whole time.

At a more serious level, both sides were right and both were wrong.  Making heroin illegal hasn’t stopped heroin use, just as it hasn’t stopped marijuana use, or underage drinking.  Putting it in government hands, however, is a recipe for corruption and still won’t stem abuse.  It will just make the government the pusher, which is a sleazy and awful idea.

Perhaps the smartest thing is to legalize heroin and put it into the free market.  Then, as we do with alcohol, we punish behaviors that stem from the abuse, such as driving under the influence or, less directly, any robberies, assaults, etc., that results from someone’s need for the drug or use of the drug. Let individuals make their choices.

Of course, some individuals aren’t in a position to make a choice.  They get the burdens, not the benefits.  Which leads me, inevitably, to Prohibition.  (Believe it or not, I’m still on track to a rip-roaring conclusion about Justice Roberts’ opinion.)

Prohibition was not the result of whacked out Church ladies, anxious to destroy all joy in the world.  Instead, it arose in response to an alcohol-soaked culture, one that saw working men instantly spending their paychecks at the local saloon.  “Father, dear Father, come home with me now,” wasn’t just a maudlin song; it was real life for tens of thousands of children, begging their father to leave the saloon and bring what little remained of his week’s pay home to the family.  Of course, when father came home, there was always the risk that he’d beat the living daylights out of Mama and the kids, but as long as he brought some money with him, what could you do?

The Dry Movement was a direct response to America’s sodden state.  But here’s the thing:  the reason Prohibition passed was because the culture changed so radically that a critical mass of Americans could force a change to the Constitution.  By 1920 — and this is something no one at the time realized — the paradigm shift in American culture was probably sufficient to change its drinking habits without coercive pressure from the federal government.  Drinking was no longer morally acceptable in many communities, which were already dry by 1920.  Local values controlled.  People who hated alcohol could move to a Dry town or they could agitate to change things within their own communities.

Once the government stepped in to control alcohol (and it was controlled, rather than completely prohibited, as certain religious or “medicinal” brews were still allowed), all Hell broke loose.  We became a nation of scofflaws, organized crime, and corrupt law enforcement.  Yes, drinking did continue to diminish, but it had already been diminishing before the Feds stepped in.  All that happened with government-control is that bad things happened too.

You can see an analogous situation with Johnson’s Great Society.  In the years leading to it, two things happened in America:  The Civil Rights movement, which focused on the serious wrongs done to black Americans, and which was a topic that dominated America’s intellectual airspace; and the rise of the black middle class, which happened behind the scenes as the culture changed.

Laws banning discrimination rightly addressed the Civil Rights crimes.  However, the Democrats added to the mix huge changes in welfare, i.e., Government-involvement in black lives.  As is so often the case with the government good intentions, the massive legislative intervention into American life — and, specifically, into black American’s lives — reversed black folk’s economic advancement.  If the government could just have stopped itself with leveling the playing field, it’s questionable whether today blacks would consistently rank among America’s poorest, least educated, and crime-ridden population.  The problem was that, in the 1960s, as in the 1920s, Americans, especially educated Americans, couldn’t conceive of an organic solution to a visible problem.  Government had to “fix” things.

Which, at long last, gets me back to health care and Justice Roberts’ decision.  (And you doubted that I would ever loop back to my main point.  Oh, ye of little faith!)  Roberts wrote the decision at the end of a 90 year continuum holding that Government fixes problems and the Supreme Court fixes Government.  This approach makes “We, the people” unnecessary.  Rather than elections being the corrective, the Court is the corrective — except that the Court’s make-up is controlled by the Government.  (Remember the Bork debacle?)

Roberts refused to play this game.  He slapped back the Democrats’ hands when it came to the Commerce Clause, telling them that the federal government cannot legislate inactivity.  And he held — quite correctly — that if there’s any possible way for the Court to salvage a law, it must do so.  His salvaging was to say that, this particular law, written in this particular way, with these particular controls over the people, can be salvaged by calling it a tax.  It’s an ugly decision, but probably a correct one.  And then he tossed the whole thing back to the American people.

I can just see Roberts’ thought-process (although he might have thought in more polite terms):  You idiots elected a Congress and president that used every kind of political chicanery known to man in order to pass the biggest tax in American history and one that, moreover, completely corrupts the free market system.  It’s not the Supreme Court’s responsibility to correct that kind of thing, provided that the judges can, as I did, find a smidgen of constitutionality in it.  There’s an election coming up in November.  Let’s hope you’ve wised up enough to figure out that my Supreme Court is returning power to “We, the people.”  We will not pull your chestnuts out of the fire.  We will not legislate from the bench.  We will construe things as narrowly as possible.  If you, the people, don’t like it, you, the people, elect different representatives.

In the short run, this is an enormously painful pile of manure for American conservatives.  In the long run (a run that, I hope, includes November 2012), if we Americans are smart and genuinely believe in our liberties, we’ll find so many ponies in that manure we’ll be able to have a pony parade right up to the steps of White House and both Houses of Congress.

 

Second and third thoughts about the ObamaCare decision, which does have some saving grace

I was driving along in the car and, suddenly, the phrase “Roe v. Wade” popped into my head.  In 1973, the Supreme Court waded into what should have been a state-by-state legislative matter, and created the most vicious 39 year fight in America since the Civil War.  One side found the decision completely invalid, while the other side became so invested in its validity that it almost became a one-issue party — and, moreover, a one-issue party that became ever more extreme in its defense of its victory.  By parsing the decision as he did, Justice Roberts prevented another American civil war.

When I returned home and turned on my computer, I discovered that Charles Krauthammer was thinking along the same lines.  If I’m in sync with Krauthammer, I’m clearly in good company.

Krauthammer’s view is that Roberts wears two hats.  The first hat is the constitutional conservative, which kicked in to prevent him from allowing a vast expansion of the Commerce Clause.  The second hat is as the Supreme Court’s custodian.  That second hat requires Roberts to protect a Court that’s been under a shadow since the decisions in Roe v. Wade (favoring the Dems) and Bush v. Gore (favor the Republicans).  So, after wearing his conservative hat to deal with the Commerce Clause, Roberts still had some work left to do:

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. The result has been four decades of popular protest and resistance to an act of judicial arrogance that, as Justice Ruth Bader Ginsburg once said, “deferred stable settlement of the issue” by the normal electoral/legislative process.

More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5–4 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 5–4 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.

I think Krauthammer’s analysis is correct.  Roberts didn’t rule as he did because of his seizure medicine or because he was blackmailed.  He ruled this way because, perhaps rightly, he was keeping a legislative problem in the legislative sphere.  The American voters, by putting Democrats into Congress and the White House, broke the American system.  They now own that broken system and it’s up to them to fix it.  In this case, if the voters are smart enough, they’ll elect Republicans by a large majority.  If they’re not smart enough, we’re in for a lot more breakage.

Viewed this way, Roberts did the right thing.  He protected the Supreme Court’s integrity and he made the American people responsible for their own stupidity.

The best bet for the coming months is that Obama’s base will go home happy, and that he will not be able to rally them for the election.  They’ll be like the person who ate too much at dinner and sits there in a stupor, even as the roof falls on his head.  Unfortunately for Obama, Romney will be able to rally his base.  If you thought 2010 was the year of the Tea Party, wait until you see the summer of 2012.  Like 2012, Tea Partiers are up in arms; and unlike (and better than) 2012, this time they’re already organized with mailing lists, data bases, and vast amounts of political and protest experience.

Even better, after Americans suffered through months of the drug-addled, filthy, violent Occupy movement, the media is going to find it impossible to paint clean, polite, educated, employed Tea Partiers as crazed radicals.  This summer, the Tea Party will have traction, especially because the Supreme Court, in ruling in Obama’s favor, put a name on Obama’s conduct:  taxes on the middle class.

That’s all good.  What’s bad is that, as I noted in my original post on the subject, the Supreme Court has managed to allow taxes to have the scope of the Commerce Clause:  From this day forward, Congress can not only tax activity, it can also tax inactivity.  Long after Obama is gone from office, that legacy will remain.  The only saving grace is that taxes require simple majorities.  Easy come, easy go, one might say — except that taxes never go away easy, do they?