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

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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)

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

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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!!

 

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

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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?

 

A careful analysis of the ObamaCare ruling (NOT)

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I’ve now had the chance to digest myriad analyses of the Roberts decision on ObamaCare.  I think I can sum up the various conclusions that liberal and conservative pundits have reached.  Here goes:

The decision is a victory for Obama and the Democrats because it keeps ObamaCare on the books.  However, it’s a victory for Mitt Romney and the GOP because it reminds Americans that Democrats like to tax them.  The only problem with the latter view is that Americans aren’t paying attention to things like ObamaCare and taxes and these credulous citizens will just role with whichever side looks victorious, which is either the Democrats and the Republicans.

The only exception to the rule that Obama’s role with the winner is the Tea Party, which is likely to be galvanized into action.  Naturally, though, the Tea Partiers are too demoralized to do anything constructive, other than riot in the streets.  We know from past Tera Party events that the smiling grannies togged-out in matching red, white, and blue outfits are especially dangerous.

ObamaCare will never be repealed because the Republicans cannot get a majority in 2012, let alone win the White House.  This is a “true fact” as long as you take into consideration that Mitt Romney will almost certainly win the 2012 election on an anti-tax platform and that the House will stay Republican.  The Senate, of course, can go either way, with Republicans getting either 51 seats (enough to reverse a tax) or 60 seats (enough to prevent President Obama, who will definitely win in 2012, from vetoing a repeal.

If the Republicans take over both Congress and the White House, which won’t happen, they can fully repeal ObamaCare, which won’t happen.  However, if they only keep the House, they can refuse to fund ObamaCare, which is great, because it leaves it useless, except for all of the mandates that continue to exist.

Over the long haul, of course, Americans are more free because the decision restricts the Commerce Clause.  This, however, ignores the fact that they’re less free, because they can be taxed for anything, including breathing or, as the case may be, not breathing.

John Roberts is someone who is suffering from a seizure disorder and is probably being blackmailed.  Neither of these factors really matters, though, because the Chief Justice is clearly a Machiavellian bridge, chess, or poker player who is taking the long view and setting the Republicans up to win in 2012 on the issue of higher taxes.  Or he’s taking some sort of really long view that enables Obama to do a victory dance in November 2012 because his signature legislation survived.  In a second Obama term, with a Democrat House and Senate, people will really learn to hate those tax-and-spend Democrats.  Those few remaining Americans who have not been sent to re-education camps or have not been disenfranchised by a vote transferring all citizenship rights from native-born Americans to illegal aliens, will have the opportunity in 2016 to make all 48,739 of their voices heard.

In the end, insane, brilliant, diseased, medicated, blackmailed, weak-spined, far-sighted, Machivellian Chief Justice John Roberts simultaneously built up and tore down American liberties.  Moreover, he also ensured that both Obama and the Democrats, on the one hand, and Romney and the Republicans, on the other hand, can claim a clear victory, both today and in the November 2012 elections.

I hope everyone understood this lesson.  There will be a test tomorrow.

A beautiful definition of what constitutes judicial activism

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In preparation for a possible Supreme Court ruling overturning ObamaCare, the Left is already hysterically screaming about the Supreme Court’s judicial activism.  The Wall Street Journal will have none of this, and provides a simple, elegant definition of what constitutes actual judicial activism:

Judicial activism is not something that happens every time the Supreme Court overturns a statute. The Justices owe deference to Congress and the executive, but only to the extent that the political branches stay within the boundaries of the Constitution. Improper activism is when the Court itself strays beyond the founding document to find new rights or enhance its own authority without proper constitutional grounding.

The rest of the article is worth reading too.

Even legal ethics opinion writers cannot resist the urge to be anti-Republican pundits

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As a dues paying California lawyer, I periodically receive an email from the California State Bar offering random tidbits and squiblets of news some assumes California lawyers might find interesting.  The January edition intrigued me because of drive-by punditry that appeared in an ethics analysis of Judge Richard Posner’s latest decision.  I wasn’t paying attention, but Posner’s decision apparently has lawyers talking because as it takes very direct aim at a specific lawyer, and does so using rather broad humor.

There’s nothing new about a judge taking potshots at a lawyer.  One of the funniest (and meanest) opinions ever written comes out of a federal court in Texas and includes the foll0wing gems:

Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact — complete with hats, handshakes and cryptic words — to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions.

With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor’s edge sense of exhilaration, the Court begins.

[snip]

Plaintiff seems to rely on the fact that he has pled Rule 9(h) and stated an admiralty claim versus the vessel and his employer to demonstrate that maritime law applies to Phillips. This bootstrapping argument does not work; Plaintiff must properly invoke admiralty law versus each Defendant discretely. Despite the continued shortcomings of Plaintiff’s supplemental submission, the Court commends Plaintiff for his vastly improved choice of crayon — Brick Red is much easier on the eyes than Goldenrod, and stands out much better amidst the mustard splotched about Plaintiff’s briefing. But at the end of the day, even if you put a calico dress on it and call it Florence, a pig is still a pig.

Now, alas, the Court must return to grownup land.

[snip]

The Fifth Circuit has held that “absent a maritime status between the parties, a dock owner’s duty to crew members of a vessel using the dock is defined by the application of state law, not maritime law. Specifically, maritime law does not impose a duty on the dock owner to provide a means of safe ingress or egress. Therefore, because maritime law does not create a duty on the part of Defendant Phillips vis-a-vis Plaintiff, any claim Plaintiff does have versus Phillips must necessarily arise under state law. Take heed and be suitably awed, oh boys and girls — the Court was able to state the issue and its resolution in one paragraph … despite dozens of pages of gibberish from the parties to the contrary!

[snip]

After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties’ briefing (and the inexplicable odor of wet dog emanating from such) the Court believes it has satisfactorily resolved this matter. Defendant’s Motion for Summary Judgment is GRANTED.

[snip]

In either case, the Court cautions Plaintiff’s counsel not to run with a sharpened writing utensil in hand — he could put his eye out.

Bradshaw v. Unity Marine Corp., Inc. (S.D. Tex. 2001) 147 F.Supp. 2d 668.

Bradshaw is a remarkably savage opinion, and one that will follow plaintiff’s attorney to the end of his career.  It is also, quite possibly, deserved.  After all, there are myriad decisions in which courts have chastised, sanctioned and even disbarred attorneys for poor or despicable behavior.  Bradshaw stands out only because it adds the humiliation of being laughed at to what is probably a deserved reprimand.  (Lord knows, I’ve appeared opposite attorneys who operate on the “bury someone under paper” principle, an approach that invariably generates, not just dozens, but thousands of pages of gibberish.)

Judge Richard Posner therefore did nothing out-of-the-ordinary when he delivered a strong rebuke to an attorney in front of him.  Even the fact that he used humor was not sufficient to make it stand out.  Posner, though, added something a little different:  pictures.  To make known his disdain for counsel’s decision to file what he considered a completely unwarranted appeal, Posner had this to say — and show:

The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.” Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir. 1989), quoting Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir. 1987).


I don’t particularly take umbrage at what Posner did.  Using rather amusing pictures strikes me as better than being sanctioned heavily or referred to a State Bar for disbarment proceedings.  And if indeed the lawyer ignored controlling law, that’s a big no-no, and deserves some judicial umbrage.

Although it’s not entirely clear, though, Diane Karpman, who wrote the ethics post from the California State Bar, seems to believe that it was a bad thing for Posner to use illustrations to take aim at a lawyer who violated appellate rules.  Thus, after carefully explaining the decision, Diane Karpman poses a series of questions indicating, without actually saying, that she thinks that maybe Posner crossed a line:

Is it acceptable conduct or unacceptable conduct to make a public spectacle of the lawyer? McKeand is now (and forever will be) known as the “Ostrich Lawyer.” As lawyers, we all make silent promises to members of the bench to protect them from ridicule and scorn, because they cannot protect themselves. Isn’t there a reciprocal promise made that everyone will behave in a civil, respectful and professional manner?

Those are fair questions.  Where Karpman goes of the rails as far as I’m concerned is in the paragraph immediately following, when she suddenly becomes political pundit, turning on Newt Gingrich:

Now we have Newt Gingrich, who in the final Iowa debate described the courts as “grotesquely dictatorial,” and who wants to subpoena justices before Congress to explain decisions he rejects.

Did you see that coming?  I didn’t.  As far as I can tell, it’s a complete non sequitur.  I can certainly conceive of an argument that might lead into this bit of punditry.  For example:

Although judges have the power to sanction the attorneys who appear before them, that should not give them the right publicly to ridicule those same attorneys by likening then to animals or to otherwise demean them.  Engaging in this type of judicial conduct lowers the judges’ own standing, leaving themselves open to challenges to their authority.  In such an environment, it is not surprising the Newt Gingrich has proposed making judges more accountable.  While Newt’s proposal is fatally flawed insofar as it attacks the separation of powers, there is no doubt that judges who behave vindictively, rather than showing a true judicial temperament, leave the door open to these kinds of political challenges.

By the way, I’m not saying that I agree with what I just wrote.  In fact, I happen to feel that way too many judges erroneously liken themselves to priests, whose ordination makes them conduits to a higher moral authority.  I’ve seen too many judges who believe that, merely by donning that iconic black robe, they’ve suddenly hooked into a hotline to some higher truth, one that usually has little to do with statutory and case law, and a great deal to do with Progressive ideas about social justice.  (Can you tell that I’ve spent my legal career in the San Francisco Bay Area, heartland of activist judges?)

What Karpman seems not to understand is that, if you’re desperate for some punditry, there’s a way to do it gracefully.  She made no such graceful transition.  In the middle of a mild challenge to what she apparently perceives as Judge Posner’s discourtesy, she suddenly, and irrelevantly, launched random criticism against Newt Gingrich.  This is liberal drive-by wannabe punditry at its worst.

“In God We Trust” banned in California classrooms

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Do you have any spare change lying around?  Yes?  I thought you might.

My dollar coins say “In God We Trust.”

My dollar bills say “In God We Trust.”

My quarters say “In God We Trust.”

My dimes say “In God We Trust.”

My nickels say “In God We Trust.”

My pennies say “In God We Trust.”

Every time I touch American legal tender, I touch the words “In God We Trust.”

Nevertheless, it turns out that those words are illegal — if they appear, not on a student’s coins, but on his classroom wall:

Saying a high school teacher has no right to “use his public position as a pulpit,” a federal appeals court ruled Tuesday that a San Diego County school district was on solid legal ground when it ordered a math instructor to remove large banners declaring “IN GOD WE TRUST” and “GOD SHED HIS GRACE ON THEE.”

Those inscriptions and others that longtime teacher Bradley Johnson displayed on his classroom wall amounted to a statement of religious views that the Poway Unified School District was entitled to disavow, said the Ninth U.S. Circuit Court of Appeals in San Francisco.

Under U.S. Supreme Court rulings, the appellate panel said, government employees, including public schoolteachers, have no constitutional right to express views in the workplace that contradict their employer’s rules or policies.

“Johnson took advantage of his position to press his particular views upon the impressionable and captive minds before him,” said Judge Richard Tallman in the 3-0 ruling, which reversed a lower-court decision in the teacher’s favor.  (Emphasis mine.)

"Hey, you can't say that in here!"

I especially like Judge Tallman’s reference to “impressionable and captive minds.”  Apparently those young minds can withstand the constant propaganda emanating from legal tender, but put it on a classroom wall and their mushy psyches are completely overcome.  Under that kind of pernicious “God We Trust” influence, the next thing you know, those poor, weak-brained students are going to rush out and commit some heinous acts of morality and decency. You can see pictures of the hypnotic, over-powering banners here.

(By the way, if you’re getting old, as I am, and are trying to fix “God Shed His Grace On Thee” in your mind, it’s from “America The Beautiful,” a song that liberal media stalwart Lynn Sherr identified in her book about its creation as our “nation’s favorite song.”)

We need to stop worrying about al Qaeda and start getting seriously worried about our judiciary.  For three federal appellate court judges to say that the motto imprinted on every coin in America constitutes a private statement of religious views that can be banned from the classroom crosses a line from Progressive to deranged.

Liu out!

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I haven’t been blogging about far Left judicial activist Goodwin Liu, but if you’ve been following the story on your own, you’ll be happy to know that the Senate Republicans successfully filibustered his nomination — a reminder, as if we need one, that the filibuster is an important tool for allowing the minority in Congress to put the brakes on the majority.  (And, if conservatives become a majority again, I hope that I have the good sense and lack of hypocrisy to remember that principle should it arise in a reversed context.)

Judge not lest ye be judged

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People who know me in person also know that nothing is more likely to send my blood pressure spiking than talk about judges.  (To any of my readers who are in fact judges, I’m sure you’re the exception to anything nasty I might be about to say about judges.)  I dislike judges, something that is almost certainly a product of having practiced law in the San Francisco Bay Ara for the entire length of my career.

In the Bay Area, the vast majority of judges act as if they consider their judicial robes the equivalent of a priest’s vestments.  This means that, rather than being constrained by the law, they believe that they have some sort of direct connection, not to God (whose laws exert moral control over the priest), but to some higher liberal morality located somewhere around each judge’s own navel.  The practical result of this is that rulings almost invariably favor politically correct parties over legally correct parties.

This lack of judicial temperament is on its most blatant display in the trial courts.  It’s been about 15 years, but I still haven’t recovered from the trial court judge (now an appellate court judge) who said to me “I don’t care what the law is; I think there’s something here.” Although few judges were as open about their reluctance to apply the law, the deceit that emanates from the bench to justify manifestly wrong decisions indicates that there are a lot of judges out there who “don’t care what the law is.”

The appellate courts are not immune — which is unsurprising, I guess, given that they’re made up of former trial court judges.  Several years ago, I worked on a case that saw the justices lie about the underlying facts in order to achieve their preferred outcome.  This was a particularly vicious little thing to do, since the case (which was published) looks perfect on its face, with stated facts inexorably driving towards an inevitable legal conclusion — except that the stated facts were false, and the underlying record proved their falsity.

The other day, an opinion came down that saw the judges being a little less clever.  They simply lied about the law itself.  Worse, it was a simple enough lie to track down, because they quoted from a case to justify their holding — except that the case from which they quoted said the exact opposite of the principle they claimed to derive from that earlier ruling.  Since they’re appellate judges, which is an office reserved for quality lawyers, I’m going to acquit them of carelessness and stupidity, which leaves only malice.

All of the above griping is a lead-in to an article Thomas Sowell wrote saying that, if judges are going to act like politicians, its time to treat them that way, and vote them out of office:

Arrogant politicians who do this [pass laws that directly contravene the Constitution] are dismantling the Constitution piecemeal — which is to say, they are dismantling America.

The voters struck back, as they had to, if we are to keep the freedoms that define this country. The Constitution cannot protect us unless we protect the Constitution by getting rid of those who circumvent it or disregard it.

The same thing applies to judges. The runaway arrogance that politicians get when they have huge majorities in Congress is more or less common among federal judges with lifetime tenure or state judges who are seldom defeated in elections to confirm their appointments to the bench.

The problem, of course, is that judges function under the radar. Even in elections, voters usually know nothing about them. When it comes time to mark the ballot, the voters either abstain or they pick a name at random. As often as not, the judges (at least in California) run unopposed, which means that votes are irrelevant.

If judges would act like judges — if they would be impartial arbiters ensuring that the Constitution controls overall and that constitutional laws are enforced as written — I would have no problem with lifetime tenure which, in theory, keeps the judges out of the political fray and, therefore, makes them less likely to engage in the type of favoritism that would ensure them reelection.  However, decades of liberal ideology in the court means that judges are not impartial arbiters.  They are, instead, political players who need to be called to account.

Cross-posted at Right Wing News

Random wonderful stuff

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Just random stuff that’s so good you shouldn’t miss it:

Shirley Sherrod’s been on a roller coaster.  Thanks to a video snippet that Andrew Breitbart posted, she got pilloried as the face of Leftist/NAACP racial intolerance.  When it turned out the snippet was out of context, she got sanctified as the face of true racial harmony.  Now, though, that we know who this formerly anonymous government worker is, we’ve learned that she is indeed just another Leftist race-baiter, that she’s been complicit in government fraud, and that she has a long history of much badness.  Turns out that Breitbart managed to target precisely the right person to show what the Left is like.

May I recommend to you — no, may I urge upon you — Wolf Howling’s fabulous post regarding the judicial activism on display in Perry v. Schwarzenegger?  As a conservative, whether one agrees with gay marriage or not, the true issue is whether judges should be allowed to impose their values, wrapped in an ostensible cloak of legal reasoning, on citizens. Or, as Wolf Howling more eloquently says, “gay marriage is not an issue of Constitutional law for the Courts, but rather one of social policy for the people of the fifty states and their state legislatures to decide.”  A nice companion piece is James Taranto on the same subject.

And a simple economics video for you (h/t Danny Lemieux):

Another one to add to your reading list is Michael Totten’s article about the way in which the media, which never steps outside of its small Leftist bubble in Israel, grossly misrepresents that country.

I’ve never liked David Letterman, whom I’ve always found self-centered and mean-spirited.  His periodic forays into actual wit could never compensate in my mind for the essential ugliness of his character.  According to Ed Driscoll, he’s only gotten worse, attacking conservatives with “sclerotic” glee.  (Isn’t “sclerotic” a great word?  I fell in love with Ed’s post practically on the basis of that word alone.)

Everything you needed to know about the Dems, run through the Kagan filter

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Kim Priestap, who blogs at Up North Mommy, got an impassioned email from the Democratic Party, raving about Elena Kagan.  Does it rave about her brains?  No (although it mentions as an aside that she’s “among the best legal minds this country has to offer,” which is a depressing comment about legal minds in America).  Her legal expertise?  No.  Her judicial experience?  No (because there is none, no matter how one puffs up her limited management experience and some government work).  Her looks?  No, no and no.

Instead, the email is very clear about Kagan’s single most important virtue, along with a little subsidiary fillip to add to the Progressive excitement:  She’s a woman and, even better, she’s almost black because she once worked for a black man.

Read the following and tell me if the whole point of the Democratic euphoria isn’t that, after being the first female Harvard Law School dean, and the first female Solicitor General, she’s poised to become the third female Supreme Court justice sitting on the court, and one who is black by association, thereby raising both the female and black liberal quota on the Supreme Court:

Have you been watching the hearings? The nomination of a Supreme Court justice is a special time in Washington, DC. The air tastes different — it buzzes with an electricity even the humidity can’t conquer — and even more so this time.

Elena Kagan’s nomination is special. It took us almost 200 years as a country to get the first woman on the Supreme Court, but now we’re on a roll! If Elena Kagan is confirmed, for the first time, we’ll have three women serving together. We’re still a far cry from parity, but we cannot allow the perfect to become the enemy of the good. We’re making progress, and Elena Kagan is great progress.

Over the past three days of hearings, she has conducted herself with poise, grace, rigor, and humor. She has won praise from liberals and conservatives — prior to her nomination and since. It’s no easy feat to become the first female dean of Harvard Law School and the first female to serve as solicitor general. Her illustrious resume also includes periods as associate White House counsel and deputy policy director under President Bill Clinton, as a teacher at the University of Chicago Law School, and as a law clerk for Justice Thurgood Marshall.

Lend your name to help us show that the American people back Elena Kagan’s nomination.

Let there be no doubt: She earned this nomination. It’s not simply because she’s a woman, or because she’s among the best legal minds this country has to offer. I know firsthand the strength of Elena’s character and am certain she is the best choice.

The Supreme Court nomination process, like almost any political contest, is like a food fight where the nominee does his or her best to stay clean and dry while everyone else in the room slings Sloppy Joes. I’ve watched this before (recently) and there’s nothing the Republicans won’t do to take down a nominee chosen by a president they’ve vowed to obstruct at all costs.

Republicans are attacking her credibility, her credentials, and her character. They’ve become particularly focused on her work as a clerk for Justice Marshall, seemingly maligning his long and respected service to our country. As chief counsel to the NAACP, Justice Marshall argued the case of Brown v Board of Education. Later he would become the first African American to serve as solicitor general and the first African American to serve as a justice of the Supreme Court. We would be better off with more justices like Marshall, and Kagan’s work for him should be a feather in her cap, not a thorn in her side right now.

The other side is grabbing at straws, with nothing to support their groundless accusations, but it doesn’t stop the attacks. The Democratic Party is pushing back to ensure that this incredible woman gets a fair hearing, but we must also show that public support for Kagan is overwhelming.

Elizabeth Cady Stanton and Susan B. Anthony are rolling in their graves.  I think Martin Luther King is also starting to wiggle around in there.  This is not what they envisioned when they campaigned for equal rights for women, or demanded that people be measured, not by the color of their skin or bra size, but by the content of their character.  These trailblazers wanted women and blacks to enjoy full inalienable, constitutional, and legal rights in America.  For women and minorities to be valued just as numbers on some quota list is heartbreaking and as dehumanizing in its own way as the ancient status quo.

I have nothing more to say.

Elena Kagan

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You’ve probably noticed that I’ve had nothing to say about Kagan.  There is nothing to say.  She’s a bright, often charming, lady from the far Left who, entirely separate from her anti-Constitutional ideology, is grossly unqualified in terms of professional experience and intellectual heft to be a Supreme Court justice.  She is, in other words, the perfect Obama nominee.

Kagan does get kudos for her moral support for Israel (she’s open about supporting that nation and I applaud her for that), but even as to that, I’d wait before giving her a free pass.  After all, a lot of Leftie Jews think that the best way to support Israel is to yield completely to all Palestinian demands.  (Think Tacitus.)

A leftist guide to mis-defining terms when it comes to Kagan

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The American Prospect has written a little guide for its readers explaining why Republican attacks will fall off Kagan like eggs off Teflon.  You and I know that they won’t matter because of the Democratic majority, and maybe the American Prospect knows that too, because its defense is lazy.  One aspect of the defense, however, caught my eye, and I wanted to share it with you:

She’s an activist.

Republicans have pointed to two things — Kagan’s clerkships for Thurgood Marshall and liberal judge Abner Mikva, and her admiration for Israeli Supreme Court Justice Aharon Barak, whom she praised as a “judicial hero” — as evidence that she is a judicial activist who tailors her reading of the law to whatever result she wants to achieve. Criticism of Marshall, though, isn’t likely to take Republicans very far. As the first African American on the court, he’s a largely unimpeachable figure. Democrats will also note that some conservatives have expressed admiration for Barak, including Justice Antonin Scalia, the current intellectual leader of the conservative wing of the court.

This kind of criticism would offer an opportune moment for Kagan to provide a liberal rebuttal to John Roberts’ hollow conceit about judges merely calling balls and strikes.

The Democratic response, though, will likely be a simple one. In terms of overturning precedent, this court is the most activist one ever produced. This may be effective, but it also reinforces the conservative canard that judges simply interpret the law as written rather than resolve the inherent and inevitable tensions between the principles and obligations outlined in the Constitution.

There are three arguments there.  The first argument is that, simply because Marshall was the first black Supreme Court Justice, nobody can criticize his approach to judicial interpretation.  It’s a closed subject. This is not an argument, of course.  It’s the absence of argument.

The second argument is that the mere fact that Barak may have admirable traits means that he is off limits for criticism when it comes to his approach to judicial interpretation.  Again, this is simply a way of preventing intellectual discourse, and shutting down argument ab initio.

The third and final argument is that, because Roberts’ court is the most activist ever, no one can criticize Kagan on the ground that she might be an “activist.”  It’s this argument that intrigues me, because it shows how differently Lefties and Righties view the notion of judicial activism.

When conservatives think of activist judges, they think of judges who, at their core, are unconcerned with the limits the United States Constitution places on both federal and state governments in their relationship to the individual citizen.  Their decisions are decided by references to natural law, and penumbras, and African tribal decisions, and Israeli Supreme Court decisions, and emanations and emotions.  The Constitution, if it makes an appearance at all, is folded, spindled and mutilated into meaninglessness (there are those penumbras and emanations).

To the conservative mind, the anti-Constitutional bent of decisions made by liberal, or activist, judges, means that, to the extent a prior judicial decision violates Constitutional restrictions, that decision is invalid, and should be overruled.  In other words, merely because a case exists, it is not automatically valid precedent.  If the case was void ab initio, overruling the decision isn’t activism; it is, instead, a corrective act to reinstate Constitutional limitations on government.

To the Left, however, “activism” means any decision that overturns liberal precedent — even if that precedent is, in and of itself, unconstitutional.  It’s therefore no wonder the Left is dismayed by the fact that the Roberts court is tidying up the record and reversing preexisting cases enacted by activist judges.

Tony Blankley tells Republicans in the Senate that it’s time to stop playing by the old rules

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Gentleman of the old school might confirm Kagan.  Americans who believe in the Constitution and its freedoms must not:

Those [traditional Senate] rules [for confirming Supreme Court Justices] might be summarized as follows: (1) The president is entitled to an appointee who generally shares his views (i.e., a liberal president is entitled to a liberal justice; a conservative president is entitled to a conservative justice). (2) A nominee should be confirmed if he or she is professionally qualified and of generally good character. (3) The only exception to Rule Two is if the nominee’s views are provably and dangerously outside the mainstream of respectable thought.

By those rules, most people would probably conclude that Ms. Kagan is entitled to confirmation — although I and others would argue that her restricted views on freedom of speech would disqualify her under Rule Three above.

But I want to make a different argument in this column: The current rules are obsolete, having come into being at a time when the federal courts had not yet been consciously politicized. Today, liberal presidents attempt to use their appointments with the intent to systematically undermine — not uphold — the Constitution. And they do so because their vision of an ever-more-statist America is inconsistent with the Constitution’s fundamental purpose: to limit the size and scope of government.

And note, this is not a case of “both sides do it,” although it is true that conservative presidents look for nominees who will support original intent, strict construction or other methods of trying to adhere to the Constitution.

But — and this is paramount — because liberal justices tend to seek to undermine the clear intent of the Constitution while conservative justices try to hold the line: The result is an inexorable march toward undermining the Constitution, with conservative appointments functioning as mere temporary holding actions.

As a conservative, I respect Republican senators who wish to venerate well-established traditions. But now, in the fateful spring of 2010, those senators need to consider which of conflicting traditions they intend to venerate. They can either venerate the traditional rules of confirmation or they can venerate the United States Constitution — but not both.

I introduce, as Exhibit A on behalf of this choice, the provision in Obamacare that requires every American citizen to buy a health insurance policy. When the case challenging the constitutionality of that provision reaches the Supreme Court (as about 20 state attorneys general are currently attempting to accomplish by litigation), the government will argue that it is permitted under the power of the federal government to regulate interstate commerce.

They will be forced to argue that the mere inaction of an individual American citizen is an act of interstate commerce worthy of regulation. If that proposition is upheld by the Supreme Court — then we no longer have a limited government. The government would then have the power to outlaw and punish (by fine or prison term) any American’s decision not to exercise, not to vote, not to eat four servings of vegetables a day — any human inaction would be sanctionable under the Interstate Commerce Clause — and then adios liberty.

Elena Kagan Open Thread *UPDATED*

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To no one’s surprise, Obama nominated Elena Kagan to fill the opening on the Supreme Court.  Many have pointed to the fact that she’s never served as a judge before as one of the main reasons Obama did so — she has no paper trail.  Since I have a generally low estimation of judges at the best of times, I can’t see that it’s too disastrous that she hasn’t sat on the bench.  This is especially true considering that being on the Supreme Court is an entirely different experience from presiding over a trial.  The skill sets just aren’t the same.

My primary sense of Kagan is that she is, first and foremost, a leftist politician.  The perfect evidence of this fact is her decision to kick the military out of Harvard Law School.  That was knee-jerk Leftism pandering to a base.

Funnily enough, the one thing I don’t carry away when thinking of Kagan is intelligence or, rather, I should say I don’t have a sense of a well-stocked brain, strong analytical abilities, and a quick mind.  Instead, she strikes me as something of an Obama clone:  a feral intelligence, unhindered by real knowledge, that is most adept at using Leftist political trends for self-advancement.

I’m sure she will be confirmed — since she’s got no record of anything to support not being confirmed — and I’m hopeful that the intellectual heft that Roberts, Alito, Scalia and Thomas bring to the court will overwhelm her.

UPDATE: Jennifer Rubin on the main problem with Kagan’s activism:

Her entire career has been spent either as a law school administrator or as an advocate (e.g., in a political position in the Clinton administration or as solicitor general). The question she was used to asking herself was: what do I want the law to be? But the business of judging is determining what the law is. Liberals see no difference — the law is what five justices say it is. But most Americans and a majority of the Court think otherwise. So the questions for her now are: how does she decide what the law is, what method does she use for separating personal conviction and constitutional interpretation, and does she have a view of the Supreme Court that is something other than as an uber-legislature? We’ll find out this summer.

Cross-dressing jihadists, disillusioned Leftists, and judicial madness

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Sadie sent me a great trio of stories today, and I want to pass them on to you:

The UN wants to make sure that the Western nation’s efforts to protect themselves against cross-dressing jihadists (you know, those guys who don burqas to hide bombs) don’t offend transgendered individuals (who may or may not be hiding bombs).   Here’s a quiz for you:  On a scale of one to five, with one being not serious at all and five being very serious, answer two questions.  First, how serious do you think the huge number of socialist and or Islamist tinpot dictatorships that hold sway in the UN are about protecting transgendered rights?  Second, how serious do you think the huge number of socialist and or Islamist tinpot dictatorships that hold sway in the UN are about ensuring that Western democracies are able to defend themselves against socialist and Islamist tinpot dictatorships?

In the too little too late category, one more sign that the bloom is wearing off the Leftist rose when it comes to Obama worship.  Leftist stalwart Richard Cohen, reviewing a hagiographic HBO “documentary” about Obama’s election, has this to say:  “What’s striking about this inside look at Obama is how being inside gets you nowhere. It is virtually the same as being outside. What’s also striking about this movie is its lack of arc.”  In other words, Cohen is starting to realize, as we have long known, that with Obama there’s no “there there,” a problem made worse by the habit his most rabid fans have of trying to prop this empty suit up high on a pedestal.

Have I mentioned how much I dislike judges?  In a long career, I can’t tell you the number of times I’ve dealt with judges who let utterly insane, unprovable, legally impossible cases go forward because the plaintiffs’ claims messed perfectly with the judges’ activist biases.  We now have another example of judicial activism, in which a judge gave a pass to a case against oil companies alleging that they caused Hurricane Katrina by increasing global warming.  What!?  No lawsuits against cows, India or China?  And how about a more logical suit against the unholy cabal of corrupt government officials and environmentalists who ensured that the levies would break?  Nah.  That last one is impossible as being logical and politically incorrect.

Roe v Wade a warning about Supreme Court involvement in gay marriage

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Whether you are for or against gay marriage, Robert George issues a sound warning about the dangers that flow from letting the Supreme Court get its hands on the issue:

It would be disastrous for the justices to do so [rule against California's Prop. 8 and, by extension, make gay marriage the law of the land]. They would repeat the error in Roe v. Wade: namely, trying to remove a morally charged policy issue from the forums of democratic deliberation and resolve it according to their personal lights.

Even many supporters of legal abortion now consider Roe a mistake. Lacking any basis in the text, logic or original understanding of the Constitution, the decision became a symbol of the judicial usurpation of authority vested in the people and their representatives. It sent the message that judges need not be impartial umpires—as both John Roberts and Sonia Sotomayor say they should be—but that judges can impose their policy preferences under the pretext of enforcing constitutional guarantees.

By short-circuiting the democratic process, Roe inflamed the culture war that has divided our nation and polarized our politics. Abortion, which the Court purported to settle in 1973, remains the most unsettled issue in American politics—and the most unsettling. Another Roe would deepen the culture war and prolong it indefinitely.

Do we dare vote against the first Hispanic justice? *UPDATE*

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I keep seeing headlines all over the place to the effect that Republican Senators will be afraid to vote against the first proposed Hispanic justice.  This may certainly be true for Senators, who are a weaselly, unprincipled bunch, I suspect, though, that for many voters Obama himself is causing the bloom to depart the identity politics rose.

I believe that many voters rushed to the polls to vote for Obama because they were caught up in the rapture of a historic first:  “The first black President.”  These moments are exciting.  Heck, I desperately wanted Michael Phelps to be the first person to get 10 gold medals in one Olympics.  I’d never heard of Phelps a few months before and suddenly, there I was, screaming hysterically in front of my TV.

In the political arena, the November rapture is now over, and the first black President is proving to be something of a problem.  In national security ways, he’s following the path of the last white president (and, for that, I am grateful).  In other ways, he’s proving to be indecisive, ineffectual, and suspiciously corrupt.  In other words, not withstanding his exciting skin color, he’s just your usual unprepared, inexperienced, Leftist, Chicago-style political hack.

Obama, therefore, is an object lesson in the superficiality of identity politics.  The fact that someone is the right color for the job doesn’t mean that he’s the right person for the job.  Voters — including Hispanic voters who trend conservative on social issues — may finally be willing to look at the candidate and not the color.

UPDATE:  The Anchoress has a good post on the reality of how that race/identity card works.

Abortion, politics and Obama’s agenda

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Okay, I admit it.  I’m easy.  Call me “winsome” and write a thoughtful, well-informed, interesting article about the continuing resonance abortion has on the political process — even if it did not serve as the centerpiece of this last political campaign — and of course I’m going to link to the article.  In this case, “the article” is Patrick O’Hannigan’s rumination about the fact that a person’s views about abortion are themselves a litmus test of their morality and about their understanding of the limitations of government and the judiciary.  In other words, abortion is not going to go away in large part becauase it actually helps define the body politic.

Speaking of the judiciary, I had a thought this morning about both abortion and the unfairness doctrine.  As you know, Obama promised that the first thing he would do as president would be to enact laws promoting abortion to an absolute unfettered federal right, something that takes it even beyond the trimister-by-trimester limitations the Roe v. Wade court imposed.   And if you missed it, the FCC, looking forward to an Obama administration, has already made noises about a backdoor approach to the unfairness doctrine — namely, requiring all radio shows to be vetted by local panels, to ensure that the shows meet “community” interests.

With regard to these local reviewing committees, you already know from school books that, if you abandon the marketplace and hand content decisions over to government committees, you first get a voiding of any meaningful content, followed fast and hard by a creeping political correctness.  This, incidentally, occurs not just because liberals take over these committees.  It occurs because your average fairly conservative person on the committee is a nice person and doesn’t want to make waves.  He doesn’t see the Ailinsky incrementalism in front of him. Instead, he just sees a few nice people from his community who make all these heart-rending victim arguments about people’s feelings being hurt by myriad little facts.  Your average committee conservative therefore finds himself making one little concession after another so as not to get into a tussle with those other nice people on the panel.  The result, of course, is that the product under review (whether it’s a book or a radio show), becomes an information vacuum that is slowly and deliberately filled with Ailinsky-directed content.

But I’m digressing.  My point was that Obama, if he’s wily (note that I say wily, which he is, not smart, which I question) is not going to rush into making these changes.  Why not?  Because the Supreme Court is not yet a reliably liberal, activist engine of change.  Justice Kennedy, having taken over O’Connor’s swing position, will probably side with the liberal justices on expanding Roe v. Wade or putting a free speech imprimatur on the unfairness doctrine, but that’s not 100% certain.  He’s a bit of a loose cannon.  The wily Obama will wait to push these issues until he gets a solid majority on the court.  Once it’s a firmly activist court, he can do anything the heck he pleases when it comes to trampling on fundamental constitutional rights such as free speech, the right to bear arms, a true separation of church and state (which also means not making religion second class), etc.

So, my current bet is that, while Obama will do things that have dreadful repercussions, he’ll move slowly on the things that have dreadful constitutional repercussions.  He simply won’t take the risk that the Roberts’ Court will undo his efforts.

Those logical disconnects

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I’m sorry blogging has been so light today, but it’s been a go-go-go kind of day that’s left little time for anything but, well, going.  I did have a thought today, which I’ll share with you.

Most lawyers I know have little that’s complimentary to say about the average trial court judge, a feeling that often extends to appellate courts (who are viewed as slightly brighter, although just as capable of intellectual dishonesty and bias).  Any conversation with lawyers eventually gets around to this or that judge and the terrible decisions emanating from that “honorable” member of the bar.

Given all that, I find it incredibly perplexing when lawyers announce to me that they have no problem with judicial activism.  Let’s just ignore entirely, for the moment, the anti-democratic nature of judicial activism — something the Founding Fathers devoutly hoped to avoid.  Even with that out of the way, I can’t grasp why someone who deals daily with the fact that judges are, on average, merely average, with a striking number (let’s say, about half) below average, would still want to place decisions of major national importance in the hands of these same judges.

This is the kind of cognitive dissonance that drove me away from the Left and into the Right.  There’s a lack of logic driving liberal thinking that I simply couldn’t handle any more.  My brain rebelled.  Considering that I spent more than a decade harping about bad judges, why would I increase their power?  I simply elevated learned real world over theory.

Do I see a “to hell with democracy” moment in California’s future? *UPDATED*

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A few months ago, the California Supreme Court overruled the will of the California voters and announced that gay marriage was a fundamental right.  The voters responded by changing the California Constitution to state that, in California, marriage is between one man and one woman.  As you know, if it were up to me, I’d get the state out of the “marriage” business altogether, leaving it to religions, and limiting the state to civil unions.  Second best to that, though, is that marriage remain what it has been in Western culture for thousands of years:  a male/female thing.

What do you bet, though, that the California Supreme Court, smarting from the rebuff that the voters issued, will once again sweep aside the people’s will and announce that gay marriage is so fundamental a right that it cannot even be addressed through constitutional amendment:

California’s highest court has agreed to hear legal challenges to a new ban on gay marriage, but is refusing to allow gay couples to resume marrying until it rules.The California Supreme Court on Wednesday accepted three lawsuits seeking to overturn Proposition 8. The amendment passed this month with 52 percent of the vote. The court did not elaborate on its decision.

All three cases claim the ban abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change.

UPDATE: At Power Line, there’s a feeling that the anti-Prop. 8 party’s briefs are so awful that they don’t give the California Supreme Court a legal leg to stand on when it comes to declaring unconstitutional the California constitution.

Bang, bang! *UPDATED*

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Just in time for July 4th, the Supreme Court confirmed that the Second Amendment says what it means and means what it says.

I personally am not now, nor have I ever been, a gun owner.  I keep meaning to go the local firing range and take lessons (operating on the principle that, since I’m surprisingly good at darts, I might be good at target shooting too), but the road to Hell is paved with good intentions.  Nevertheless, my personal laziness and history aside, I know a Constitutional right when I see one, and I’m always delighted to see those vindicated.

The opinion (including the dissent) is 157 pages long (which surprises me, since the Amendment’s language is one sentence long), so I haven’t plowed through the whole thing — and, barring the unlikely event that I find myself actually litigating a gun rights case — I probably never will. Still, I’m starting to read it now, and if I stick with it and anything particularly wonderful (from the opinion) or awful (from the dissent) leaps out at me, I’ll let you know.

The one thing that does immediately leap out is that Kennedy has fully and completely filled O’Connor’s shoes as the swing vote.  The case went the way it did only because he chose to side with the four strict constructionists on the court, rather than the four activists.

The decision is another reminder that an Obama presidency, which will give him the chance to appoint at least one, and possibly more, Supreme Court justices is an extremely dangerous thing.  I know that many people who are lukewarm about or dislike McCain are assuming that, even if Obama gets his hands on the court, he’ll be able to touch only the old liberals, such as Stevens or Ginsberg.  This thinking is a mistake.  Bad things happen and there is always the possibility (God forbid), that one of the strict constructionist seats may suddenly open up.  Do you really want to take the chance that something bad happens and Obama gets to fill the vacancy?

UPDATE: Another thing leaping out:  Scalia is a wonderful writer — lucid and simple.  He complete avoids the turgid, serpentine, incredibly boring prose that routinely characterizes opinions by O’Connor (Ret.), Ginsberg, and Stevens.  This opinion is actually written in English a lay person can understand.

Interestingly, thinking about it, the worst writers are always the activists:  Ginsberg, Stevens, O’Connor, etc.  I suspect that, since their arguments are so often not bounded by actual American law, they have to throw up huge, wordy, impenetrable smoke-screens to hide that fact.  The strict constructionists, who are writing within a sound framework, have no need to hide or dissemble.

UPDATE II:  On the subject of (God forbid), bad things happening to good judges, the moonbats are already talking judicial assassination.

The madness of the judiciary

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The alternative title for this post would have been:  You’re in prison, not a hotel.  From Best of the Web Today:

He Wouldn’t Hurt a Fly
Henry Boateng is an inmate in a Massachusetts State prison. He went to court arguing that his rights were being violated. Yesterday, a federal judge agreed:

Boateng, who has changed his name to Daniel Yeboah-Sefah and identifies himself as a Buddhist, has won a significant legal victory: A federal judge found that the state prison system violated his civil rights by denying him a vegan diet.US Chief District Judge Mark L. Wolf concluded that the system violated a 2000 federal statute that protects religious freedom in prison. In a judgment entered Tuesday, Wolf ordered the head of the system, beginning Friday, to provide the inmate at the Old Colony Correctional Center at Bridgewater with a vegan diet that hews to his religious beliefs.Although the prison system had offered Yeboah-Sefah a standard vegetarian diet, he has spent nearly a decade unsuccessfully seeking a vegan diet that excludes all animal products, including eggs and milk products.

In 1992, Boateng fathered a son, Jameel Moore. Like his dad, Jameel does not eat animal products. That’s because Boateng beat him to death when he was five weeks old.

Why you shouldn’t cut off your nose to spite your face

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I’ve been finding very disturbing the intense hostility that conservatives direct against John McCain. So much so that I wrote a very long rant on the subject, which American Thinker was kind enough to publish and which I reprint below:

Perhaps because I’m a neocon, and not a dyed-in-the-wool, native-born conservative, I look at John McCain, with all his flaws, and still think that he’s a pretty darn good candidate for our time. More importantly, I think that Obama is a very dangerous candidate precisely because of the time in which we live. I therefore find disturbing the number of conservative purists who insist that they’re going to teach John McCain — and everyone else, dammit! — a lesson, either by sitting out the election or by throwing their vote away on a third party candidate. This is a kind of political game that may be fun to play in uninteresting eras, but I think it’s suicidal given the pivotal existential issues we now face.

It’s easy to target John McCain’s flaws. Most recently, he’s managed to buy into the whole green machine just as it’s becoming clear that the greenies probably rushed their fences, and leapt into hysteria well in advance of their facts. Still, whether because you view the world through green colored glasses, or because you really hate funding totalitarian governments that are hostile to America, there is a lot to be said for exploring energy alternatives. McCain’s free market approach should help that effort. Also, by the time he becomes President, there should be a sufficient aggregation of rationally based information about the climate to allow McCain a graceful retreat from a foolish campaign promise.

McCain also seems to be unresponsive to the feeling ordinary Americans have that illegal immigration is a big problem. This feeling arises, not because we’re all xenophobic nutcases, but because we recognize a few fundamental truths: (a) American law starts at American borders, and it is deeply destructive to society’s fabric to have an immigrant’s first act in this country be an illegal one; (b) a country’s fundamental sovereign right is the ability to control its own borders; (c) unchecked immigration provides a perfect pathway, not merely for the field worker, but for the bomb-maker; and (d) immigrants who come here should be committed to this country and its values, and shouldn’t just by moseying over to grab some illegal bucks to send to the folks back home.

Nevertheless, while illegal immigrants are irritating, they’re not an existential threat that can bring America to its knees within the next four years. They are a problem, but not an imminent one.

McCain may also never be absolved of the sin he committed with the McCain-Feingold Act, a legislative bit of bungling that has George Soros singing daily Hosannas. However, that’s done. There is no doubt that it reflects badly on McCain’s judgment, but I think it’s a sin that needs to be ignored, if not forgiven, in light of the person facing McCain on the other side of the ballot box.

You see, from my point of view, this election isn’t really about John McCain at all. It’s about Barack Obama. Of course, it shouldn’t be about Barack Obama. During a time of war and economic insecurity, one of the two presidential candidates should not be a man who has no life history, beyond a remarkable ability at self-aggrandizement, and no legislative history, despite a few years paddling about in the Illinois State Legislature and three years (count ‘em, three) doing absolutely nothing in the United States Senate.

That Obama is a man of no accomplishments or experience, though, doesn’t mean that he hasn’t managed to acquire some bad friends and bad ideas. The friends are easy to identify: Comrade . . . I mean Rev. Wright; Michelle “the Termagant” Obama; the explosive Ayers and Dohrn duo; Samantha “Hillary is a Monster” Power; Robert “Hamas” Malley; Zbigniew “the Jews are out to get me” Brzezinski; etc. Over the years, he’s sought out, paid homage to, and been advised by a chilling collection of people who dislike America and are ready to give the benefit of the doubt to anyone who talks the Marxist talk and walks the Marxist walk.

Obama’s ideas are as unnerving as his friends. To my mind, the Jihad that Islamists have declared against us is the fundamental issue of our time. Thanks to the nature of modern asymmetrical warfare, the fact that these Jihadists number in the tens of thousands, rather than the millions, and that they’re often free operators, not formal armies, does nothing to lessen the serious threat they pose to American freedoms. We’ve seen with our own eyes the fact that, using our own instruments of civilization, 19 determined men can kill almost 3,000 people in a matter of hours.

Nor was 9/11 an aberration, committed by the only 19 Islamic zealots on planet Earth. Whether they’re using the hard sell of bloody deaths, or the soft sell of co-opting a nation’s institutions and preying on its well-meant deference to other cultures and its own self-loathing, the Jihadists have a clearly defined goal — an Islamic world – and they’re very committed to effectuating that goal. And while it’s true that, of the world’s one billion Muslims, most are not Jihadists, the fanatic minority can still constitute a critical mass when the passive majority either cheers on the proposed revolution from the sidelines or does nothing at all. As Norman Podhoretz has already explained, this is World War IV.

I understand this. You understand this. McCain understands this. Obama, however, does not understand this. He envisions cozy chit-chats with Ahmadinejad and loving hand-holding with Hamas. There’s every indication that, given his world view, he’ll take Clinton’s “Ah feel your pain” approach one step further, and engage in a self-abasing “I — or, rather, America — caused your pain.” That approach failed when Carter tried it, and it’s only going to fare worse the second time around.

Obama is also bound and determined to withdraw instantly from Iraq, even though the momentum has shifted completely to the American side. Even though another famous Illinois politician spoke scathingly of General McClellan for “snatching defeat from the jaws of victory” at Appomattox, Obama has not learned from that painful lesson. He is adamant that he will repeat McClellan’s errors and enshrine the snatching method as national policy. Every five year old understands that you don’t leave the fight when it’s going your way; Obama, however, does not. That is scary in and of itself.

There is one thing, though, that Obama understands with perfect clarity: the role of Supreme Court judges. He knows that they should apply compassion and empathy, without the restrictive hindrance of the outdated United States Constitution. I’m not making this up. He’s said so: “I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through.”

As someone unfortunate enough to litigate in a jurisdiction filled to overflowing with these empathic judicial actors, I can tell you that this approach is disastrous. First, it’s unfair within the confines of a single case when the judge can ignore the law and, instead, decide a case based on the color of his underpants on any given day. Second, and more importantly, judicial activism (for that is what Obama describes) also destroys the stability necessary for a safe, strong society. It becomes impossible for people and entities to make reasoned calculations about future behavior, since they cannot rely on cases or statutes as guides. They simply have to hope that, if things go wrong, the judge before whom they appear likes them better than he likes the other guy. This is no way to run a courtroom, let alone a country.

What should concern all of us is the power a President Obama will have to effect an almost permanent change on the Supreme Court, one that will last far beyond his presidency. Those with gambling instincts point to the fact that, if anyone leaves the Court during an Obama presidency, it will be the existing liberal justices. In other words, they say, Obama, by replacing the departing liberal justices with equally liberal incoming justices, will simply be maintaining the status quo. I’m not so sanguine.

Although I preface the thought with a “God forbid,” it is possible that conservative justices might leave the Court too, whether through death, illness, incapacity, or personal choice. If that’s the case, Obama, backed by a compliant Democratic Congress, will be able to appoint anyone he pleases to the Court. With a solid activist majority, you can bet that, in your lifetime (as well as your children’s and grandchildren’s lifetimes), the Supreme Court will become the second Legislative branch, with the sole difference being that it will be completely unhindered by having to woo or be answerable to any pesky voters back home.

It’s these last two points — the War and the judiciary — that make me feel very strongly that we have to accept John McCain as president, warts and all. While he is far from perfect, he is rock solid on the two issues that can’t just be massaged away in four years. He will continue to wage war, both on the field and in the realm of ideas, against the Jihadists, and he will appoint conservative Supreme Court justices.

He is, therefore, a much better bet than the scenario in which the gamblers among us have placed their faith; namely, a replay of 1976 and 1980. These risk-takers believe that, as happened before, we’ll elect a horrible, horrible ultra-liberal President who will expose to the world how hollow Democratic ideologies really are. Then, after a mere four years, a sadder but wiser American public will elect the next Ronald Reagan who will magically make everything right again.

I have my doubts. First, I think there’s a great deal of conservative hubris in believing that we can just wish for and get the Second Coming of Ronald Reagan. Not only was he a pretty unique man, he’d been kicking around the political arena for decades. Do you look out in that same arena right now and see anyone remotely like him who will be ready to serve and acceptable to the American public in the next four years? Second, Reagan came in facing two primary problems: a stagnant Cold War and a moribund economy. Both of these situations were remediable. Reenergizing a stagnant war game America the dominant position; and rejiggering a damaged, but fundamentally strong economy was difficult, but do-able.

Here, however, we have two situations that are not so easily repaired should Obama bungle them (as I confidently expect he will). We are not fighting a Cold War, we are fighting a hot war. To walk away now inevitably places the momentum in the hands of our enemies, enemies who have done what the Soviets never did: entered our borders and killed our people in the thousands. Further, unlike the Soviets who had replaced their revolution with a cold, calculating political machine, one that could yield to rational self-interest, we now find ourselves facing fanatics in the blind grip of an ideology completely antithetical to any rational negotiation. To lose the high ground now – and we certainly have that high ground in Iraq – may mean to lose it forever. Even the best case scenario would only echo the changes between the late 1930s and early 1940s, when the Allies, having lost the high ground, were eventually able to win it back at the cost of more than twenty million lives.

Likewise, the Supreme Court situation, if Obama is able to switch the balance from strict constructionist to activist, cannot magically be remedied. Even Reagan was unable to make that change. It’s been thirty-five years, and American is still riven by Roe v. Wade, the most famous activist decision of them all (and that is true whether you are pro-Choice or pro-Life). One can only imagine how many decades of damage an activist Obama Supreme Court can do.

It is very tempting to those who care deeply about their country and their politics to “punish” an ostensibly conservative politician who has, too often and too visibly, wandered from the fold. Sometimes, however, teaching someone a lesson can be infinitely more painful for the punisher than for the punishee. That’s what I fear will happen now, if conservative voters decide that McCain has failed to pass the purity test and then gamble that Obama can’t really be that bad. I’m here to tell you that Obama can be that bad, and that we owe it to ourselves and our fellow citizens to keep him out of office.