Click here to view the embedded video.

h/t:  Mike Devx

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.

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.

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.

Are you wondering what an Obama court will look like?  You don’t need to look very far.  If you haven’t yet read Christina Hoff Sommers’ wonderful 1995 book, Who Stole Feminism?: How Women Have Betrayed Women, run out right now and get a copy.

Generally speaking, the book is about the difference between equity feminists (a view held by most Americans who believe that women should get equal treatment under the law and equal work for equal pay) and gender feminists (who have embraced victimhood and who hate men). Hoff Sommers makes compelling arguments about the insanity of the latter approach, and the death of the former.

While every chapter is well worth reading, the one chapter that’s stuck with me almost 15 years later is the one that predicts a Sotomayor/Obama court.  In this chapter (and I don’t have a copy in front of me), Hoff Sommers describes her attendance at a conference for feminist academics — or, more accurately, gender feminist academics.  Before these academics could even get to the business of the conference, they had to get to the even more serious business of putting in proper heirarchical order the various degrees of victimhood represented at the conference.

Even without the book to guide me, I have vivid memories of black feminists duking it out with lesbian feminists who are outraged by the demands made by handicapped hispanic feminists.  Each of these little feminist academic subsets was absolutely certain that its handicap (sex, race, sexual orientation, physical disability, etc.) entitled it to some special regard within the confines of the seminar — and, most certainly, out in the wide world.

You can see the parallels between a viewpoint that claims all attendees are not equal at a conference and all citizens are not all equal under the law.  Inevitability, once such a regime is enshrined, the special interest groups start duking it out over who is the most special.  The end result is people groveling before judges to assert their special victim status, while the judges, certain that they are founts of special wisdom because they have cast off the shackles of the traditional patriarchal legal system, opine from the bench about who is the most pathetic of all.

Nor is this scenario hypothetical or confined merely to the groves of academe.  I’ve worked a long time in the San Francisco Bay Area legal system and can tell you that, once all the white men and corporations have been cast into the dirt (which is already par for the course in many Bay Area courts), the fight is on to determine which group or person is sufficiently pathetic to become the recipient of the court’s identity politics beneficence.  The concept of equality at the law has no place here.  It’s anarchy.

This system is also insanely unreliable.  Although Sotomayor testified before the Senate back in 1998 that the law is meant to be unreliable (a statement I heard her make on the radio, but can’t find now), the fact is that the only good legal system is one that is reliable.

It is impossible for a business or an individual to plan ahead if it or he cannot predict with reasonable certainty what it’s rights are.  How can a bank make a loan if it cannot rely on the loan papers and the law to enforce that debt, but must instead rely on the court’s goodwill?  In a fight between a bank and a business, there’s a 50-50 chance the lender will win, unless of course the debtor business is women or minority (or gay or lesbian) owned.  In a fight between a bank and an individual, since banks are categorically evil, the bank will always lose.

It’s clearly a short term pleasure for the tyrannical activist justice to reach this ruling, but a long term disaster as banks refuse to grant loans and fail.  (Although, with the US owning banks now, I guess that was a lousy hypothetical.  The banks will continue to grant loans and they won’t fail because we, the taxpayers, are clearly stuck with paying for all the bad loans.)  California’s business exodus isn’t simply a result of high taxes; it’s also a result of grossly unfair judicial rulings.  Here are just two examples (and please pardon the poor formatting on the second example, which is a very old post I wrote while still at my Blogger site).

This way lies madness.

Don Quixote and I had a very interesting conversation yesterday about the libertarian way to change societal evils. I don’t recall how the conversation wandered over to that topic, but it seems to me it started with a chance reference to a very well known incident in California in the late 1970s.

Back then, a landlady made headlines when she refused to rent one of her apartments to an unmarried couple, since she believed to do so would condone a sin.  (And yes, it is hard to believe that such an antiquated notion was still prevalent in certain quarters as little as thirty-odd years ago.)  I cannot remember if the matter was resolved by judicial fiat or legislation, but resolved it was — and against the landlady’s religious preferences.

The libertarian way to deal with the situation, of course, would have been to let the market decide which way housing should go.  If there were enough unmarried couples seeking housing, the landlady would either have abandoned her principles in favor of profit, or ridden off into the sunset, proud and broke.  As it was, government threats, rather than the profit motive, bullied the landlady into the Hobson’s choice of eschewing her beliefs or abandoning her home.  There’s a crude, high speed bullying to the latter force, that is absent when the market shifts organically.

But what, I asked Don Quixote, can one do when society condones a something that is absolutely wrong?  Of course, nowadays wrong is a fuzzy concept.  In this day and age, short of abasing himself on the floor and giving away all his money, everything the average white male does is wrong.  Rather than get into that mess, I wanted to treat the discussion in a pure, abstract way.  Both DQ and I therefore scoured our brains for a big wrong in the modern era.  We simultaneously came up with the same thing:  the way in which the Jim Crow South denied blacks their rights.

In a perfect libertarian world, two forces would have converged on the Jim Crow South, forcing a change in those bad racist habits.  First, blacks would have left en masse and second, the disapproval of the rest of the United States would have weighed heavily on the South.

Both of those things did happen, of course.  There was a huge black exodus from south to north, spanning the first half of the 20th Century.  Detroit, Chicago and Philadelphia, among other cities, were flooded by Southern blacks.  But a whole bunch of blacks remained in the South — more than enough to suffer the indignities, fear and poverty of Jim Crow.  Likewise, there were many in the North who looked upon the South with great disapproval, but the South was sufficiently insular that Northern condescension seemed to make little difference.

It is true that, given time, Jim Crow would probably have died on the vine.  Lots of evils, if allowed to play out, will die.  One interesting one we’re watching right now is taking place in China and India:  In those countries, girls are second (nay, fifth) class citizens, a situation that is made especially manifest by the fact that those boy-oriented cultures abort an overwhelming number of girl babies.  Currently, the situation is awful for girls, whether born or unborn.  However, as there are fewer and fewer girls, their stock is going to have to rise.  It will be impossible for either culture both to maintain its rate of female genocide and survive.  Given enough time and enough female deaths, female infanticide will die out.

A problem arises, however, when moral people don’t want to sit around and wait for the inevitable.  They cannot tolerate the pain and suffering that will lead to the ideology’s demise.  They want to do something now.

In the case of the Jim Crow South, to those paying attention, some decisive action seemed absolutely necessary.  With the “malcontents” of the black population having emigrated, leaving a more massive and easily bullied black population, and with most of the world looking away, it seemed as if the South had achieved some form of stasis (no matter how foul) that would enable it to continue its un-American practices indefinitely.

There is a reason that, in the previous paragraph, I highlighted the phrase “to those paying attention.”  Libertarianism works, as much as anything, by having a critical societal shift.  People decide something is wrong, and they stop sending money that way; conversely, they decide something is right, and flood that market with their wealth.  The problem was that much if the nation (a) didn’t care; (b) sort of agreed with Jim Crow; or (c) wasn’t paying any attention at all to the situation.

What made people care, what made them sit up and pay attention, was the fallout from an activist Supreme Court opinion:  1954′s Brown v. Board of Education.  The opinion said, as we all know, that it is impossible for separate to be equal.  That is silly.  In terms of government providing equal education, it would have made more sense to say that school districts have to ensure that all students have precisely the same facilities, precisely the same quality of teachers, and precisely the same resources as white students, in order for their education to be considered equal.  That ruling would have made sense.

The sensible ruling would also have been a back door to desegregation, because no Southern school districts could have afforded having two perfectly equal school systems, one for blacks and one for whites.  The districts would have had to raise taxes or lower educational offerings to their white students . . . or bitten the bullet and let the blacks in.  It would have been up to the districts which they chose, but the results would almost certainly have been desegregation. As it was, though, the Brown opinion forced instant desegregation by creating a crackpot legal, education and social theory out of whole cloth.

Brown’s real important, though, didn’t lie in silly legal opinions that basically affected only a small number of blacks (the children).  Instead, it’s real importance was the fact that, at the start of the media age, its publication caused all American eyes to turn to the South.

As I noted before, before Brown, the rest of America wasn’t paying attention, or didn’t care, or even sort of agreed with the Southern system.  By turning up the heat on the South, though, and forcing a sea change without the gradualism of libertarianism, Americans suddenly had images of the Little Rock Nine being escorted by troops and excoriated by white citizens on television screens and in newspapers and magazines:

Thanks to the spotlight the Supreme Court turned on the South, Americans were riveted and disgusted by a spectacle they’d chosen earlier to ignore. The South, with American eyes upon it, opted for self-immolation. Rather than yielding gracefully to what it should have perceived as the inevitable, the South, led by the practically retarded Bull Connor, provided even more fodder for the media.

In the years subsequent to the Brown decision, Americans were treated to even more grotesque images from a backwater they’d previously ignored:

Societal pressure against Jim Crow became overwhelming.  The Federal Civil Rights Act wasn’t the leading edge, it was the last swipe at a system that had begun to die with great speed in the wake of the immediate changes wrought by Brown v. Board of Education.

Considering the evil that was the Jim Crow South, and considering that the system would have taken decades to die out on its own, here’s the big question:  Was it a good thing that the Supreme Court jump-started Jim Crow’s death by issuing an activist decision that was both Constitutionally incorrect and factually just a tiny dent in the system, but that worked to turn America’s eyes onto a great wrong being done in its own back yard?

My answer is that, righteous though the results were, the decision was still wrong.  Keep in mind that the societal benefits in Brown‘s wake were not the intended consequences of the decision.  Instead, the benefits flowed from an unintended consequence:  the novelty of media attention focusing on an issue most Americans had managed to disregard.  In other words, it wasn’t the Court decision that brought about the change; it was the dumb luck that flowed from that decision. While the decision is viewed as carte blanche for activism, because it was followed by a successful societal change, the change flowed, not from the decision itself, but simply from the attention it garnered.

Sadly, when courts get all activist about education, rather than having a great wrong righted, you’re much more likely to end up with the situation in the Kansas School District.  In that District, a federal judge micromanaged billions of dollars in expenditures, only to end up with exactly the same situation as before:  poorly performing minority students.  Funnily enough, in light of my comments about Brown, the Kansas court could reasonably have said what the Brown court should have said:  expenditures must be equal.  End of story.  Let the communities figure out how to make that happen. The Kansas judge, however, took his activism much further and ordered, in great detail, that the Kansas school district create perfect schools, schools that could only be dreamed in the fantasy world of an education school’s wet dreams.  Unsurprisingly, everyone suffered.

That’s my two cents.  What’s yours?

UPDATE:  I wrote the above post in response to a conversation about the libertarian versus the Leftist (liberal/Progressive) approach to dealing with societal evils.  It occurs to me, though, that it’s a worthwile post to consider in light of the upcoming hearings for a new Supreme Court justice.

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.

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.

Dennis Prager has a good column discussing what will be, in his view, the ramifications of the California Supreme Court decision creating a new right out of thin air.  One of the points he makes is that, in the future, to avoid charges of discrimination, homosexual relationships will have to be promoted equally with heterosexual relationships.  Schools that once had books about boys and girls meeting and starting a family, will now have to have an equal number of books for little kids showing same sex couples meeting and starting families.  That thinking will have to permeate every reference to marriage and relationships, and this trend will appear in every aspect of life.

While Prager doesn’t say it in his article, on his show yesterday, he mentioned that this inevitable trend (which will be legally mandated on discrimination grounds) will create a rather unexpected fall-out, one that I’d already figured out on my own:  parents who have previously encouraged their children not to be discriminatory against gays will, when faced with a society that is required to promote homosexuality equally with hetereosexuality, begin preaching against homosexual behavior in the home.

Many of these parents will be like me:  They will recognize that a small percentage of people are homosexual out of the box.  However, they will also know that, as in ancient Greece where popular culture encouraged homosexual relationships for pleasure and heterosexual relationships solely for procreation, people in the great middle can have their sexuality manipulated.

Lastly, these parents will know that, while there are gays and lesbians live the same stolid (and solid) middle class life that I do (which is what I want for my children), a large number — especially men — enjoy the promiscuity that comes from (a) no worries about pregnancy and (b) dealing with sexual partners who match them testosterone for testosterone.  Sadly, the evidence shows that, with this type of promiscuity, you also get rampant diseases and statistically increased substance abuse and domestic violence.

I actually don’t need studies to know about these problems.  I grew up in the SF Bay Area and, until I switched from urban life to suburban domesticity, had many gay friends — and these were people whom I valued greatly and whose friendships I cherished.  Nevertheless, even then I saw them going down a life trajectory antithetical to what I hoped for myself — one of unbridled, although often classy and beautiful, hedonism.  And so many of them died of AIDS.  It wasn’t AIDS they got at the dentist or from a blood transfusion or from one unlucky coupling.  It was AIDS they got at the orgies they used to boast about attending.  Only two men I know who were monogamous got AIDS and, in both cases, it was because their partners were incredibly promiscuous — something my friends knew about and tolerated.

Without passing any judgment on homosexuality itself, this is not the lifestyle I want for my children.  Therefore, if the state is promoting homosexuality because it is required to do so, it’s my responsibility as a parent to push back, not because I don’t like gays, but because I fear the consequences of a lifestyle that has too many negative consequences for my children.

Cliff Thier talks about the far-reaching implications of the Court’s (and the government’s) “fundamental rights” language.

The WSJ’s editors take on the election ramifications of the decision — a bit of unexpected, and undeserved, good luck for Republicans in a terribly managed campaign season.

As was to be expected, National Review quickly put together a whole catalog of articles about the ruling, with thoughts from the editors themselves, William Duncan, Maggie Gallagher, and Ed Whelan.

All of the above articles on the subject make clear that the case is a bit of judicial legerdemain, creating entirely new rights where none existed before, so as to bypass the troglodytes who troop regularly to the voting booths.  Marvin Baxter, a dissenting associate justice, sums up in a nutshell everything that is wrong with the Court’s opinion (and this holds true whether or not one agrees with the Court’s outcome):

“Nothing in our Constitution, express or implicit, compels the majority’s startling conclusion that the age-old understanding of marriage — an understanding recently confirmed by an initiative law — is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means.” (Emphasis mine.)

Hate John McCain as much as you like — and he’s doing his dangerous maverick thing again which deserves condemnation — but if you want to try to keep more activist judges from getting on the US Supreme Court, gamble on him. I can guarantee you that, no matter how “mavericky” McCain gets, a President Obama, working with a Democratic Senate, will put on the Supreme Court justices who will make your head spin.