Friday afternoon round-up and Open Thread

Victorian posy of pansiesThe Taliban has hit Marin County (indirectly).  Marin County is headquarters for Roots of Peace, an admirable charity that seeks to advance agricultural development in poverty-stricken areas.  It has an outpost in Afghanistan, where it seeks to enable the Afghani people to feed themselves.  The Taliban can’t have that kind of thing happening in its country.  It therefore sent off some foot soldiers to attack the Roots of Peace Kabul office, killing a child in the process.  If radical Islam had a cable-TV station, it’s motto would be “All war, all the time.”  One wonders if this will be a bit of reality that mugs that peaceniks who are so self-centered that they cannot envision cultures that have, as their core value, a desire for perpetual warfare.

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David Clarke, Milwaukee’s Sheriff, made a splash when he encouraged Milwaukee’s beleaguered citizens to arm themselves:

Police chief get a gun

I think Clarke may have found a kindred spirit in Detroit Police Chief James Craig. During a press conference in which he discussed the rising numbers of homeowners (successfully) using arms to defend themselves, he had this to say:

Detroit Police Chief James Craig said at a press conference last week that in his 37-year career, he’s never seen as many homeowners defending themselves by shooting intruders. Craig told The News in January he felt the crime rate could be lowered if more “good Americans” were armed, because he said criminals would think twice about attacking.

“It does appear more and more Detroiters are becoming empowered,” Craig said. “More and more Detroiters are getting sick of the violence. I know of no other place where I’ve seen this number of justifiable homicides. It’s interesting that these incidents go across gender lines.”

We want more law enforcement like Clarke and Craig, and less like Marin’s Second Amendment-challenged sheriff.

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I also want more of this:  An Ebony magazine editor went on a rant against conservative blacks; got called on it; claimed that the person calling her out was a white racist; when she learned that the person calling her out was black apologized for calling him white; and then doubled down on rants that were both anti-conservative black and anti-white.  (That’s not want I want to see more of.  It’s this next thing I like.)  Normally, Republicans would run away screaming from this type of confrontation, leaving the racist Leftist in control of the field.  This time, the RNC demanded an apology . . . and got it.

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Speaking of the Left’s racial obsessions:  Any half-sentient being knows that Stephen Colbert’s shtick is that he created a faux-conservative character who is pathologically dumb, racist, sexist, etc., and that Colbert, a marginally-talented generic Leftist, uses this character to claim that all conservatives are pathologically dumb, racist, sexist, etc.  That’s why it’s hysterically funny that, when his show tried to  highlight (non-existent) Republican racism by having his character ostensibly tweet out a crude anti-Asian stereotype, the Asian community got riled and demanded that Colbert be fired for being an anti-Asian racist.  Asians should stop getting their knickers in a twist about stupid TV shows and should start looking at where their real politic interests lie.  (Hint:  It’s not the Democrat Party.)

***

Leland Yee has been around forever as a fixture in Bay Area politics.  As his name implies, he’s Asian, he’s hard Left, and he represents San Francisco and parts of San Mateo in the California legislature.  Since Sandy Hook, Yee’s been very vocal about being anti-guns.  He also just got indicted for gun running, including trying to sell arms to Islamist groups.  The MSM has been trying hard to ignore his story, as it’s been trying hard to ignore a bunch of other stories about spectacularly corrupt Democrat figures.  Howie Carr therefore serves a useful public service when he calls out the media, the Democrat party, and the crooks.

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Speaking of crooks, Harry Reid claims never to have called Republicans liars when it comes to Obamacare, despite footage of him calling Republicans liars because of Obamacare.  There’s some debate on the Right about whether Reid’s gone senile or is just trying out his version of The Big Lie.  My theory is that we’re seeing malignant narcissism in play.  As I’ve said a zillion times before in speaking about Obama, malignant narcissists never “lie” because their needs of the moment always dictate the truth of the moment.  That is, if they need to say it, it must be true.  (It’s nice to be your own God.)

***

Keith Koffler identifies the four roots of Obama’s disastrous foreign policy.  I agree with him, although I would add a fifth, which is that Obama desperately wants to see America knocked down to size as punishment for her myriad sins.  Perhaps Obama should read the DiploMad, as he explains why Russia, the country before which Obama is now weakly doing obeisance, has always been much worse than America could ever be, both as a protector and an enemy.

***

Adm. Jeremiah Denton, Jr. has died at 89.  The public learned about Denton during the Vietnam War when, during one of the forced confessions that the North Vietnamese liked to televise to the world, he blinked out a Morse code message — “T-O-R-T-U-R-E” — thereby providing the first proof America had that the Commies were torturing American POWs.  During the same interview, he bravely said he supported his country, a statement that led to more torture.  Denton was also America’s longest-held POW, spending almost 8 years in the Hell that was the Hanoi Hilton, and various related prisons.  During that entire time, he was brutally and repeatedly tortured and he spent four years in solitary confinement (where he was tortured).  My heart bleeds when I read what happened to him.  But Denton came home and he got on with a full, rich life, including six years in the U.S. Senate.  If anyone deserves to Rest In Peace, it is Adm. Denton.

***

I don’t think much of Stanford.  It’s nothing personal.  I think all the big universities (and most of the small ones) have become intellectually corrupt.  However, Prof. Michael McConnell, at Stanford Law School, has somewhat restored my faith in Stanford by writing one of the clearest analyses I’ve yet seen of the problems facing the government in the Hobby Lobby case.  Of course, law and logic will not sway Ginsberg, Kagan, Sotomayor, and Breyer, all of whom are activists much more concerned with making policy than with applying law.  As happens too often, Anthony Kennedy will cast the deciding vote — a reality that places way too much power in the hands of a man who seems too often to blow, not where the Constitution takes him, but wherever his fancy for the day alights.

***

And to end on a light note, two more ridiculously funny Kid Snippets, offering an inspired combination of kid wisdom lip synched by some remarkably talented adult actors:

 

Ann Althouse seems surprised that Jeffrey Toobin is a moron about law; I am not surprised *UPDATED*

220px-Jeffrey_toobin_2012Jeffrey Toobin shot to national fame during the OJ trial, when he broke the story about the “race card.”  For New Yorker readers, he speaks ex cathedra on all legal issues.  For people who pay attention to the law, he’s a nincompoop.  Ann Althouse just caught Toobin in a major error about the Hobby Lobby case.  He was able to side firmly with the Obama administration only by ignoring the Religious Freedom Restoration Act, which serves as the basis for the plaintiffs’ claim.

I was not surprised.  Back in 2007, I wrote about another embarrassing Toobin article purporting to explain the law to New Yorker readers.  Since that post was on my old blog site, I’ll reprint it here and now:

*****

Today’s entry on the long list of media dishonesty is Jeffrey Toobin’s article about the current United States Supreme Court, an article given pride of place as the first entry in the New Yorker‘s “The Talk of the Town.”

The article, which ends with a reminder to New Yorker readers to keep the Supreme Court in mind when they cast their votes in November 2008, manifestly intends to scare people into believing that a new Dark Age, led by Catholic men in dark robes, is dawning. Sadly for Toobin’s authorial honor, and unfortunately for his credulous liberal readers, the only way he can do this is to lie, both by implication and, I’m sorry to say, by an outright falsehood.

Toobin confines his little attack on the Court to three decisions that came out under Chief Justice Roberts aegis. As to one of those cases, involving a death sentence, I have no information and, since it’s in criminal law, I have no desire to educate myself about the case’s ins and outs. As to the other two, however, because I’m familiar both with the cases and with the type of jurisprudence at issue, I do feel capable to comment.

The first case Toobin goes after is Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S.Ct. 2162 (2007). This following paragraph constitutes Toobin’s entire discussion of the case and its outcome:

Moving with great swiftness, by the stately standards of the Court, Roberts, Alito, and their allies have already made progress on that agenda. In Alito’s first major opinion as a justice, earlier this year, he sharply restricted the ability of victims of employment discrimination to file lawsuits. The Court said that plaintiffs in such cases must bring their suits within a hundred and eighty days of, say, an unfair raise. But, because it generally takes employees longer than that to establish that they have been cheated, the effect of the ruling will be to foreclose many lawsuits.

What any sensible reader will understand from this terse summary of the case is that the reactionary Supreme Court, lusting after a return to the 19th Century’s golden era of unfettered employer rights, has foreclosed forever the possibility that employees can claim wage discrimination more than 180 days after that discrimination occurs. In the minds of Toobin’s readers, the justices have placed a permanent wall between these hapless employees and legal redress. Except that this understanding, which is really the only reasonable understanding possible based on the limited information Toobin provides, is entirely untrue.

What the Supreme Court said was that a Federal law imposing a 180 day deadline within which to file a wage discrimination begins to run on the date the employer makes the decision to discriminate, not on the date the employer cuts the last paycheck reflecting that discriminatory decision. That’s all.

Here’s the applicable law as summarized in Ledbetter:

Title VII of the Civil Rights Act of 1964 makes it an “unlawful employment practice” to discriminate “against any individual with respect to his compensation … because of such individual’s … sex.” 42 U.S.C. § 2000e-2(a)(1). An individual wishing to challenge an employment practice under this provision must first file a charge with the EEOC. § 2000e-5(e)(1). Such a charge must be filed within a specified period (either 180 or 300 days, depending on the State) “after the alleged unlawful employment practice occurred,” ibid., and if the employee does not submit a timely EEOC charge, the employee may not challenge that practice in court, § 2000e-5(f)(1).

Ledbetter, 127 S.Ct. at 2166 -2167. In other  words, Congress had mandated that if a person claims that her (or his) gender led her (or his) employer to pay her (or him) a discriminatory salary, then that person has between 180 or 300 days from the discriminatory act to file a claim with the EEOC.

Ms. Ledbetter argued that the legislatively vague phrase “alleged unlawful employment practice” should be understood to refer to her paycheck.  Her interpretation would mean that every single paycheck starts a new cause of action (and, presumably, reaches back to encompass prior paychecks). Her employer contended that the “alleged unlawful employment practice,” if any such act existed, would be the employer’s decision to pay its employee a discriminatory amount, as opposed to the fruit of that decision (i.e., the paycheck). The Supreme Court carefully analyzed myriad prior decisions and concluded that the employer had the better argument.

Speaking personally, I find Alito’s analysis clear and compelling.  As is always the case in the law (or at least mostly the case in the law), one can examine legal precedent and draw different conclusions or find entirely different cases to act as precedent. The dissent, for example, contends that it’s unreasonable to ask people to investigate how their pay ranks against their peers’ pay, and that they should be allowed to wait years, perhaps, before they figure out that they’re getting the short end of the salary stick. By advocating a different standard of responsibility for the employee, the dissent can look to different cases so as to reach a different outcome. And that, from beginning to end, is what Ledbetter is all about.

Knowing what the case is about helps one appreciate what the case is not about: It is not a ruling holding that, henceforth, employees must forever be barred from bringing wage discrimination claims if they don’t figure the problem out within 180 days of their most recent pay raise (or pay raise refusal). The Supreme Court is not making law. It is simply interpreting the law as written in light of case precedent. If the Legislature feels there’s a problem, it can change the law. That last is a singularly important point, since it goes to the heart of the difference between strict constructionists, who limit themselves to interpreting law, and judicial activists, who feel impelled to correct perceived Legislative errors, omissions, and ambiguities.

As I pointed out initially, Toobin’s short, elliptical analysis of the case utterly fails to explain to his readers that the majority was not making a law barring employees forever from complaining about wage discrimination more than 180 days after the fact, but was instead merely interpreting the law as written, leaving the matter open for Legislative change. This serious omission about the impact of a Supreme Court decision forces Toobin’s less informed readers to believe that the Supreme Court has dealt a permanent policy blow to the rights of American workers.

Toobin goes from misleading by omission to out-and-out misrepresentation when he discusses Gonzales v. Carhart, 127 S.Ct. 1610 (2007), the decision upholding Congress’ 2003 Partial Birth Abortion Ban. Here is Toobin’s summary. I’ve highlighted the language that is out-and-out false:

Most notoriously, the Court, for the first time in its history, upheld a categorical ban on an abortion procedure. The case dealt with so-called partial-birth abortion—a procedure performed rarely, often when there are extraordinary risks to the mother, the fetus, or both. But more important than the ruling were the implications of Justice Anthony M. Kennedy’s opinion. The Court all but abandoned the reasoning of Roe v. Wade (and its reaffirmation in the 1992 Casey decision) and adopted instead the assumptions and the rhetoric of the anti-abortion movement. To the Court, it was the partial-birth-abortion procedure, not the risks posed to the women who seek it, that was “laden with the power to devalue human life.” In the most startling passage in the opinion, Kennedy wrote, “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Small wonder that Kennedy’s search for such data was unavailing; notwithstanding the claims of the anti-abortion movement, no intellectually respectable support exists for this patronizing notion. The decision to have an abortion is never a simple one, but until this year the Court has said that the women affected, not the state, had the last word.

That last statement is just plain, absolutely, completely wrong.

Contrary to most people’s assumptions about Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that case does not create an unfettered right to abortion. Instead, it established a delicate balancing act over the entire length of the pregnancy between the State’s interests and the woman’s interest in the fetus.  In the first trimester, when the fetus is not viable outside the womb, the balancing favors the woman’s right to choose how she wants to handle her pregnancy. In the second trimester, as the fetus nears viability, the balance begins tipping in the State’s favor. And, in the third trimester, when the fetus is viable, the State’s interests may triumph:

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Roe v. Wade, 410 U.S. at 163, 93 S.Ct. at 732.

Because it has never been the law of the land that the woman affected “had the last word,” it is dead wrong when Toobin says that Gonzales marks a stunning reversal of American abortion law. Instead, Gonzales is nothing more than a recycling of principles already articulated in Roe v. Wade. No matter how people may fulminate about Justice Kennedy’s touchy-feely analysis of abortion (a bad writing habit he no doubt picked up from his years in a liberal dominated court), the fact remains that the decision he authored in Gonzales did not take away any rights already granted in Roe v. Wade — a case which more than 30 years ago ensured that, near the end of the pregnancy, the State’s interests, not the woman’s, can be given primacy.

Toobin, of course, is not the only liberal to try to make political capital out of what must be a deliberate mis-reading of Roe v. Wade’s clear language. Immediately after the Supreme Court handed down its decision in Gonzales, Hillary Clinton issued a press release that also positioned the case as something entirely new and horrible:

Washington, DC — “This decision marks a dramatic departure from four decades of Supreme Court rulings that upheld a woman’s right to choose and recognized the importance of women’s health. Today’s decision blatantly defies the Court’s recent decision in 2000 striking down a state partial-birth abortion law because of its failure to provide an exception for the health of the mother. As the Supreme Court recognized in Roe v. Wade in 1973, this issue is complex and highly personal; the rights and lives of women must be taken into account. It is precisely this erosion of our constitutional rights that I warned against when I opposed the nominations of Chief Justice Roberts and Justice Alito.”

That Hillary created rights under Roe v. Wade that never existed in the first place isn’t too surprising. While she may be trained as a lawyer, she is first and foremost a politician, and one who has shown a willingness to do and say whatever it takes to obtain a political advantage.

That Toobin did the same thing is more disturbing. Toobin is not only a lawyer, he is a journalist who specializes in legal matters. His readers believe that he is using his legal knowledge and narrative fluidity to explain to them accurately legal matters that, while they may not be intelligible to the average person, nevertheless have immediate and significant impact on ordinary peoples’ lives. Toobin has taken this trust and used it to perpetuate lies. I’d cry “shame” but I suspect that, as to Toobin, that concept, whatever role it may once have had in his life, no longer exists.

UPDATE:  Earl Aagaard reminds me that, while Roe v. Wade refutes Toobin’s statement, it was illusory in its effect:

“…Roe v. Wade…does not create an unfettered right to abortion. Instead, it established a delicate balancing act over the entire length of the pregnancy between the State’s interests and the woman’s interest in the fetus. ”

This is true, Bookworm…..but your post ignored the fact of Doe v. Bolton, issued the same day as Roe v. Wade.  Doe says that a woman’s decision can be based on her “health”, and interprets health to include “mental health”, meaning that there is NO balance.  A woman has only to say she might be suicidal if she has to carry the baby to term and the decision of the SCOTUS says she must be allowed to abort – through all nine months of pregnancy.

What Roe gave, Doe took away, and our country has FAR less restrictive abortion laws than Europe….ever since 1973.

About Chief Justice Roberts . . . . A counterintuitive observation from James in Hayward

John RobertsJames in Hayward thinks that the Supreme Court’s Obamacare decision might have been a blessing in disguise:

Yep, John looks better all the while. If SCOTUS had knocked down that utopian hogwash, Demorats would be having a field day parroting about how the Repubs have destroyed America’s chance for decent health care. I don’t think the Justice was being blackmailed, I think he had contacts in Canada who informed him of the pub gossip.

And have you considered that Obama and Putin are two sides of the same fool’s gold coin? Perhaps a Euro.

History is made up of “what ifs.” Certainly Obama would be in a more powerful position now if he didn’t have Obamacare and could spend his time decrying Republican cruelty. As it is, even with all the media cover he’s been getting, Americans are getting a good look at socialism’s reality.

(An aside: I love James’ neologism — “Demorats”.)

An embarassment of riches; or links to all over

Quick Link and Open Thread image

There’s so much good stuff out there, I’m just going to spill it all here, a la Instapundit.

Jonathan Tobin doubts that Obama’s upcoming three-week long “Sham-Wow” commercial for ObamaCare will miraculously turn around the public’s perception that the program is a failure and the president a liar.

The success of the president’s snake-oil show is especially doubtful given that the narcissists in the White House are now blaming the public for the website’s manifest failings.

Oh, and Obama junket will also have dubious success because news is leaking out that the Obamacare site is a hacker’s wet dream.

Right now, it looks as if Obama has finally been unable to fool all of the people all of the time, at least when it comes to Obamacare.

After Chief Justice Roberts resuscitated Obamacare, I find it hard to imagine the courts dismantling that monstrosity.  Still, it’s possible.

For people who want to see the inevitable graveyard of Obama’s anti-capitalist, anti-freedom, redistributionist policies, they need look no further than Venezuela, where the country has gone from stable to basket-case in a decade.

If you want to renew your driver’s license in Oregon, you’d better come in prepared with every bit of proof known to man showing that you are who you say you are.  Interestingly, though, you don’t need to show any ID to vote in Oregon.  Just sayin’.

I was reading Glenn Reynold’s article explaining why we should abolish the TSA, and I was nodding so hard in agreement, I looked like one of those bobble-head dolls in someone’s car.

I could dig up the zillions of posts I’ve done about the way in which the welfare state destroyed the black community because it was rational for blacks to put forth less effort.  I won’t though.  Thomas Sowell makes the same point, only he does so brilliantly in his article about test scores.

When you’re George Bush and increase AIDS aid to Africa, you’re reviled; when you’re Hillary Clinton and you decrease AIDS aid to Africa, you get a reward from the AIDS Foundation.  It’s not what you do, it’s whether there’s an “R” or a “D” after your name.

Regarding Iran, here’s the good news:  Obama’s an idiot, but the Iranians aren’t necessarily that smart (although, so far, their madman chess is a lot more successful than Obama’s amateur basketball).

On Passover, Jews the world ask “Why is this night different from all other nights?”  When it comes to Islam, if you still find yourself “Why is this religion different from all other religions?”, you’re not asking that because you’re engaging in a timeless religious ritual.  Instead, if you still have to ask that question you, like our President, are an idiot.  Islam is indeed different from all other religions and that difference lies in the fact that it’s utterly barbaric as written and as practiced.

No, Obama is not Hitler.  (He’s more Neville Chamberlain, with a large dollop of the Hugo Chavez school of economics.)  Nevertheless, the Dems couldn’t have been more tin-eared when they came up with “White House Youth” or WHYouth (to which I either want to answer, Why not? or I want to do an endless bullet-point list explaining why you’re not getting good public policy if you look to young people as your guide).

I’m sure there’s someone in the British government who could be dragged to a microphone to say, “Hey, some of my best friends are Jews.”  Nah!  Not really.  Because there’s no one left in Britain who could say that with a straight face, why Britain was able to ban Robert Spencer and Pamela Geller from entering England in part on the ground that they were pro-Israel.

Is it the Onion or is it just an ordinary Progressive news report about businesses in America?

And finally, if you’re a veteran and you can’t get a gun, Dom Raso has some helpful practical advice.

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

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

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

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

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

California Progressives commit one of the best inadvertent puns I’ve ever seen

The one thing you can count on with Progressives is that anything that happens in Washington, D.C. — any legislation, any election, and any legal decision — is a reason to go out and beg for money.  Within hours of the Supreme Court decision that effectively strikes down Prop. 8, making gay marriage legal in California, a group called “Courage Campaign” sent out an email begging for money and, in the process, created one of the funniest inadvertent puns I’ve seen in a long time:

VICTORY! Now let's leave no gay behind

If you haven’t caught what makes it so funny, here’s a hint: read the very first line aloud:

VICTORY! Now let's leave no gay behind2

Hat tip: Sadie

Gay Marriage Open Thread

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

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

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

Please chime in here with your feelings on the subject.

 

The Watcher’s Council forum examines the ObamaCare opinion

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

Conservatives will have to take many small steps to reclaim America

One of my favorite blogfriends sent me a link to John Yoo’s article excoriating Justice Robert’s decision in the harshest terms.  Yoo states plainly that the decision spells the end of individualism in America, since it expands the government’s taxing power to encompass everything.  Those who seek a silver lining (or ponies or lemonade) are deluding themselves, Yoo argues:

All this is a hollow hope. The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy and is undermined by its ruling on the tax power (discussed below). The limits on congressional coercion in the case of Medicaid may apply only because the amount of federal funds at risk in that program’s expansion—more than 20% of most state budgets—was so great. If Congress threatens to cut off 5%-10% to force states to obey future federal mandates, will the court strike that down too? Doubtful.

Worse still, Justice Roberts’s opinion provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts’s tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress’s power to tax.

[snip]

Given the advancing age of several of the justices, an Obama second term may see the appointment of up to three new Supreme Court members. A new, solidified liberal majority will easily discard Sebelius’s limits on the Commerce Clause and expand the taxing power even further. After the Hughes court switch, FDR replaced retiring Justices with a pro-New Deal majority, and the court upheld any and all expansions of federal power over the economy and society. The court did not overturn a piece of legislation under the Commerce Clause for 60 years.

Yoo is correct about the decision’s effect, and new evidence showing that Roberts was motivated more by politics than constitutionalism.  Nevertheless, this war is not over as long as we don’t surrender.

Rightly or wrongly, the bottom line is that the Supreme Court will not pull conservative’s political chestnuts out of the fire.  America is stuck with the government the majority elects.  Conservatives sat on their collective backsides for 40 years as liberals took over one institution after another.  They sowed, they reap.  We weep.

John Will is a Brazilian Jujitsu martial artist who makes an interesting point when he teaches, one that sank into my brain and that still surfaces periodically when I get overwhelmed by things:  we tend to get into trouble because we’re unaware that we’re heading into trouble.  Few of us race to disaster.  Instead, we head that way step by unwitting step.  We can pull back at any time, but we don’t.  If we were at the water’s edge, you would see that few of us jump into the deep end.  Instead, we just keep walking, unaware that the water is rising, right up until it hits our mouth.  That’s bad.  What’s really bad, though, is that we think we can take a giant leap and suddenly be on dry land.  That’s not what happens.  Sadly, too many who assume that a giant leap is all there is, end up panicking when the leap fails — and there they are, stranded and helpless.

Will’s point is that, whether in jujitsu or life, one cannot instantly and completely pivot away from a slowly developing disaster.  If it took 48 steps to get you in up to your nose, it might take 49 to get you back to dry land.  In jujitsu, that means a victory might be freeing your elbow or your knee, so that you can go on to liberate the next body part from your opponent’s grip.  In politics, a start might be holding the House and taking the White House.  Not as good as all three political branches, but better than just one.

Here’s the deal:  We’ve had decades to get ourselves into this fix.  We — that is, we conservatives — will not reclaim the country in November.  Nevertheless, this election, and the next election, and the election after that, each represents one of the small steps we must take so that the Supreme Court ruling is a tocsin and not a death knell.

Is there a rehearing in ObamaCare’s future?

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

We have to be Churchillian about this Supreme Court decision — that is, we now fight to win

I’m going back and forth whether Roberts was a typical judge (i.e., stupid and unworthy of respect), a brilliant thinker, a chess player, a pawn, etc.  Each of you who has commented here has made an excellent point.  I agree with all of you, even when you disagree with each other.  In other words, I’m having a lovely intellectual wallow-fest.

The problem is that wallow-fests are for water-coolers and sodden drinking orgies at dank bars.  We don’t have time for that.  We have to get energized and quickly.  The breast beating will not win us the next battle.  Although no blood has actually been shed, I suddenly understand just how Winston Churchill felt as he worked to rally a shaken Britain following the Dunkirk evacuation.  Sure, the evacuation lives in history, as every boat in Britain rallied to rescue stranded British soldiers, but the fact is, that heroic moment came about because of a staggering military defeat.  Churchill’s words to the House of Commons in the aftermath of that disaster are worth remembering.

Churchill’s June 4, 1940 speech begins by describing, in blunt terms, the scope of the military disaster (although that disaster was somewhat allayed by the fact that the evacuation rescued more than 330,000 men, not the 45,000 predicted).  Then, he gets to the nub of the matter, which is that Britain must look not only on what it lost (and Churchill spoke in unvarnished terms about those losses), but also about what Britain still had, in terms of weapons, men and, most importantly, morale (emphasis mine):

Turning once again, and this time more generally, to the question of invasion, I would observe that there has never been a period in all these long centuries of which we boast when an absolute guarantee against invasion, still less against serious raids, could have been given to our people. In the days of Napoleon the same wind which would have carried his transports across the Channel might have driven away the blockading fleet. There was always the chance, and it is that chance which has excited and befooled the imaginations of many Continental tyrants. Many are the tales that are told. We are assured that novel methods will be adopted, and when we see the originality of malice, the ingenuity of aggression, which our enemy displays, we may certainly prepare ourselves for every kind of novel stratagem and every kind of brutal and treacherous maneuver. I think that no idea is so outlandish that it should not be considered and viewed with a searching, but at the same time, I hope, with a steady eye. We must never forget the solid assurances of sea power and those which belong to air power if it can be locally exercised.

I have, myself, full confidence that if all do their duty, if nothing is neglected, and if the best arrangements are made, as they are being made, we shall prove ourselves once again able to defend our Island home, to ride out the storm of war, and to outlive the menace of tyranny, if necessary for years, if necessary alone. At any rate, that is what we are going to try to do. That is the resolve of His Majesty’s Government-every man of them. That is the will of Parliament and the nation. The British Empire and the French Republic, linked together in their cause and in their need, will defend to the death their native soil, aiding each other like good comrades to the utmost of their strength. Even though large tracts of Europe and many old and famous States have fallen or may fall into the grip of the Gestapo and all the odious apparatus of Nazi rule, we shall not flag or fail. We shall go on to the end, we shall fight in France, we shall fight on the seas and oceans, we shall fight with growing confidence and growing strength in the air, we shall defend our Island, whatever the cost may be, we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender, and even if, which I do not for a moment believe, this Island or a large part of it were subjugated and starving, then our Empire beyond the seas, armed and guarded by the British Fleet, would carry on the struggle, until, in God’s good time, the New World, with all its power and might, steps forth to the rescue and the liberation of the old.

Or, as another famous English person once said, this is not the time for us to go all wobbly.

Enough breast beating.  It’s time to start the drums beating.  Remember, politics is a form of war, albeit (quite thankfully) a bloodless form.  We don’t win by pissing and moaning.  We win by making the 2010 Tea Party look like a mere trial run.  For those who are worried about Romney (and they are right because, while he hews conservative, he’s not a “principled conservative”) had better tether the man with a strongly conservative House, not to mention that all important conservative Senate.  Give money, send letters, carry signs, reason (not yell at, reason) with friends and family, be cheerful but determined.  Fight and win.

My friends and I refuse to give in to despair regarding the Supreme Court ruling

Many people are asserting that, in the wake of the Supreme Court ruling, the end is near.  I see that in op-eds, in blog posts, and in my email box.  America’s constitutional experiment is over, they say.  They might be right.  Or not.

But here’s the deal:  if we give in to despair now, they not only might be right, they will be right.  Our political will is currently the only thing standing between a constitutional America and another failed socialist state.  If we collapse now, we’ve lost.  Or, more simply, winners never quit, and quitters never win.

My last two posts about the Supreme Court ruling might be Pollyanna-ish, as I struggle to find a justification for Judge Roberts’ decision (or more accurately, a justification that doesn’t involve drugs, insanity, and blackmail), but they’re necessary.  They’re necessary for my mental health, but they’re also necessary for the conservative movement in America.  Frankly, if we give up now, we don’t deserve a voice in our country’s future.  We’re wusses, who whine and then do nothing.

I’m not the only one who feels this way.  My friend Lulu send me an email that says much the same, and she said I could reprint it here:

Last night I was feeling down about Roberts’ dismaying, incomprehensible betrayal. I felt angry that the fate of our country could ride on the shoulders of one man’s bad decision. Conservatives had enjoyed months of seeing an increasingly unhinged Obama getting closer and closer to a public meltdown. Now we got to again see him strutting and puffing, full of himself and his own grandiosity.

Then I had these comforting thoughts. Obama’s personal victory comes at the price of a law that the majority of Americans don’t want, which diminishes our freedom, and is expensive for the middle class. Romney is a clever man who has run a clever campaign. He will hammer relentlessly on, not only the economy, but on the massive tax we are about to be loaded with to have forced on us something we don’t want. Conservatives are energized and livid.

The victory is Wisconsin hasn’t gone away. The Unions are challenged as never before. We need to be relentless there, and courageous, and continue to point out how the Wisconsin economy revived. We were riding elated after Wisconsin, now they are, but behind Wisconsin was a proven successful economy. Behind ObamaCare is a hugely unpopular and expensive albatross. Defend that.

Here’s what we need to do. Every Conservative should donate to the Romney campaign and to at least one candidate for Senate and the House. Get involved on the grass-roots level in the campaigns. Volunteer.

Do what we can to infiltrate the media. Imagine what an attractive, intelligent black Conservative woman, like Star Parker, could do with a daytime talk show, educating and promoting articulately her ideas on patriotism and self-sufficiency to stay-at-homes and fellow African-Americans. Breitbart always said that Sarah Palin would be the Conservative Oprah. Why not a campaign to get her on TV?

Conservatives, encourage your kids to go into education, to run for the school board, to become administrators. Fight back with numbers.

And expose, expose, expose their lie of being tolerant every time they give the finger to Reagan in the Whitehouse or mock Mormons in a Broadway play, and etc. Inundate the networks with protests

Arise folks, and fight like your country depends on it.

Blogs can  lead the way by helping let us know what we can do, numbers we can call, and by giving us a forum to expose.

A sleeping giant woke with the tea party. Now it is furious. We must Educate, educate, educate.

Giving up is the easy way out.  We need to work harder than ever now.  If nothing else, hard work will keep us from feeling sorry for ourselves.

Please pardon me if I seem like a scold here, but the conservative counter-revolution to the 60s’ counter-culture revolution needs to start somewhere.  We’re at the starting line for the race of our lives, the gun has sounded, and we have to run.  Run hard, run fast.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

That’s Roberts, philosophical conservative. But he lives in uneasy coexistence with Roberts, custodian of the Court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger Courts, most egregiously with Roe v. Wade, which willfully struck down the duly passed abortion laws of 46 states. The result has been four decades of popular protest and resistance to an act of judicial arrogance that, as Justice Ruth Bader Ginsburg once said, “deferred stable settlement of the issue” by the normal electoral/legislative process.

More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5–4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.

Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the Court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5–4 decision split along ideological lines that might be perceived as partisan and political.

National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’s concern was that the Court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.

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

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

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

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

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

 

A careful analysis of the ObamaCare ruling (NOT)

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.

Congress not only can tax anything that moves, it can tax anything that doesn’t move

The Supreme Court opinion on ObamaCare runs to 193 pages.  It is the size of a book, only more boring than any book anyone would ever want to read — and that is true despite the fact that Ruth Bader Ginsburg, the worst writer on the court, didn’t write it.  I’ve been making a valiant effort to read it, but because I have other things to do with my life, I abandoned the darn thing about one-third of the way through.  For now, bottom line is sufficient.  Per the Supreme Court, ObamaCare imposes a tax on people who refuse to buy a product from a third-party. An example of that includes the Affordable Care Act which forces a penalty on those who do not take part in the newly-appointed health insurance marketplaces. That imposition is consistent with Congress’s power to impose taxes.

Ed Morrissey managed to encapsulate my immediate reaction to this, frankly, bizarre outcome:

It’s an interesting argument, but one that should have Americans worried.  Basically, this is a tax that you have to pay to private companies.  For all of the screaming the Right did over single-payer — and for good, outcome-based reasons — at least the money paid by taxpayers would go directly to government [see update II].  The Supreme Court has signed off on what is, in very practical terms, a tax levied by the insurance industry on Americans simply for existing.  It’s an amazing, and fearsome, decision that really should have both Right and Left horrified.

Nevertheless, this is the law of the land.  We can now look forward to taxes levied by the auto industry for not having bought a new car in the last seven years, the liquor industry for buying too few bottles of wine to maintain your health, and by the agricultural industry for not buying that damned broccoli after all. We might even have Obama attempt to impose a tax for not buying enough contraception; we can call that the Trojan tax.

Taxes have traditionally been levied to enable the government to buy and build things.  This is the first time in history, so far as I know, that a tax is being levied as a penalty against citizens who refuse to buy products from private vendors.  Taxes normally tax activity.  Sure, you pay taxes on a product when you buy a product but those are (a) state taxes, which are a different animal from federal taxes; and (b) taxes on a voluntary transaction.  That’s the important thing.  The transaction is voluntary.  You can opt to sit it out and the government cannot reach you.  Here, though, we are being told that the government can exact an onerous tax for inactivity.

The decision constitutes a radical redefinition of what constitutes a tax.  It is exactly what opponents said it was:  the biggest tax in history and one, moreover, that Americans cannot alter their behavior to avoid.  I am therefore at a loss to figure out why Roberts signed on to this decision, let alone authored it.  It is a staggering constriction on individual freedom.  The closest analogy to this tax is the poll tax of 1380, a tax that saw one of the biggest revolts in medieval British history and one that almost toppled the monarchy.  Poll taxes are flat taxes but, more importantly, they tax someone just for being.

Okay, that’s the bad news and it’s very bad in the long-term.  There are some potential short-term benefits, although they’re only possible, not probable:

Because ObamaCare is a tax, it’s easy to repeal the tax aspects, which leaves the whole thing unfunded.  Still, unfunded doesn’t mean vanished.  All the bits and pieces, the obligations, impositions, panels, etc., live on, unless Congress can gather itself together and formally repeal the whole darn thing.

The other short-term benefit is that it might galvanize those Americans who hate ObamaCare, leading them to vote for Romney.  That’s so not a sure thing, though.  It’s a great victory for Obama, and might finally put the wind at his back.  His signature legislation is a good thing, said the United States Supreme Court.  For many Americans, that might fall into the category of “that’s all she wrote.”  The fat lady has sung.  The opera is over.  It’s time to go back home and get on with your life.  If Roberts had some strange idea that he’d help a Romney election, he was taking a mighty big gamble with the American people, their freedom, and their money.  (Speaking of money, it’s no coincidence that the market plummeted once it received word that Congress not only can tax anything that moves, it can tax anything that doesn’t move.)

I am disheartened, but disheartened is not the same as defeated.  It is now imperative that Republicans take back Congress in its entirety and win the White House.  Jim Carville and others may proclaim the Tea Party dead, but I suspect they’ll see a Zombie Tea Party taking to the streets this summer.

Others blogging:

Kim Priestap

Maggie’s Farm/Bruce Kesler

American Power

The Anchoress and The Anchoress again

The Volokh Conspiracy (was Roberts somehow forced to uphold the law?)

Jay Cost (this may harm Obama more than he thinks in the long run)

Slate (Obama wins battle; Roberts wins war)

Noisy Room

 

What do you bet that, if this is true, the source is Elena Kagan?

The White House and the lapdog media have an unusually depressed, belligerent tone when it comes to the upcoming opinion on Obama Care.  They’re even more depressed than they should be given the pathetic showing their case (not their lawyer, but their case) made during oral argument.  Put another way, it’s hard to believe that, after two years of intellectual denial, they can’t also deny away a single day of bad argument.  Their malaise is due to something greater than one bad day.

This bizarre black cloud leads at least one Supreme Court observe to suspect that the unthinkable happened — the formerly leak-proof Supreme Court leaked (emphasis mine):

It doesn’t take a Washington insider to suspect that the White House has a back channel to the Supreme Court, knows how the justices have come down in the Obamacare case and has learned, from the Obama point of view, the news isn’t good.

The president’s defiance and what appeared to be his campaign of intimidation targeting the justices has morphed into barely concealed resignation over the last seven days.

That widely noted New York Times story of the weekend is a case in point.  It detailed how the smartest crowd (hasn’t the MSM assured us of it) that has ever inhabited the nation’s Executive Mansion failed ever seriously to consider that seizing control over one-seventh of the American economy and forcing every American to buy a commercial product might, just might, run afoul of our constitution of liberty.

At Power Line, where I first stumbled across this leak theory, Steven Hayward points out that, in the past, a combination of judicial discipline and law clerk career fear kept the Court silent:

Why is the Supreme Court better than the intelligence community at keeping secrets?  The nine justices are disciplined enough, but what about their clerks, who surely have night lives, close friends, etc.?  Possibly the problem of ruining their promising subsequent legal careers (and the not insubstantial ethics clearance they might blow by leaking) explains it, but it is still a marvel that the Court’s decorum has held for this extraordinary case.

I’ve known former Supreme Court clerks and, yes, their eye is on their future career.  They are not the type of people who would carelessly jettison that future.  But there is someone on the Supreme Court whose future is already assured, who has proven herself to be a shill to the monied powers, who once worked hand-in-glove with this White House, and who is a total Progressive ideologue, who has regular placed politics against principle.  She’s also a newbie, which would explain why I’m not talking about Justice Ginsburg, who has kept mum during her tenure.  Yes, Elena Kagan, I’m talking about you.

This is pure speculation.  I’ll never be able to prove it.  Nevertheless, if there is a leak, which is a guess, I’m further guessing that Kagan is the leaker.

It isn’t the Supreme Court’s job to re-write a Congressional bill that’s had its unconstitutional heart cut out

In one of his more delightful articles, Jonah Goldberg tackles Justice Ginsburg’s disingenuous claim that the most “conservative” thing the Supreme Court can do is to pick its way through all 2,700 pages of the ObamaCare bill and save all the good bits.  After politely decimating Ginsburg’s word choice, Goldberg has this to say:

The conservative thing to do — and I don’t mean politically conservative — is to send the whole thing back to Congress and have it done right. Leaving aside the fact that Obamacare largely falls apart if you remove the mandate, it’s not the Supreme Court’s job to design our health-care system from the scraps Congress dumps in its lap. What Ginsburg proposes is akin to a student handing in a sloppy, error-filled term paper, and the professor rewriting it so as to give the student an A.

Goldberg’s charming analogy reminded me of something a friend told me.  Although a conservative, she’s a strong, brave woman, and still listens to NPR.  (I don’t, because I find myself screaming at the radio too much, especially with NPR’s Israel coverage.)  During a call-in show, she said that several of the callers were deeply offended that the conservative justices used analogies, such as questions about broccoli and cell phones, to discuss ObamaCare’s provisions.  The tone seemed to be “How dare those evil conservatives dumb down a sophisticated act to appeal to the rubes in America in order to justify destroying the best legislation ever.”

I was actually reminded of someone who used analogies with incredible grace to simplify (not destroy, but make accessible) challenging ideas:

Behold, a certain lawyer stood up and tested him, saying, “Teacher, what shall I do to inherit eternal life?”

He said to him, “What is written in the law? How do you read it?”

He answered, “You shall love the Lord your God with all your heart, with all your soul, with all your strength, and with all your mind [Deuteronomy 6:5]; and your neighbour as yourself [Leviticus 19:18].”

He said to him, “You have answered correctly. Do this, and you will live.”

But he, desiring to justify himself, asked Jesus, “Who is my neighbour?”

Jesus answered, “A certain man was going down from Jerusalem to Jericho, and he fell among robbers, who both stripped him and beat him, and departed, leaving him half dead. By chance a certain priest was going down that way. When he saw him, he passed by on the other side. In the same way a Levite also, when he came to the place, and saw him, passed by on the other side. But a certain Samaritan, as he traveled, came where he was. When he saw him, he was moved with compassion, came to him, and bound up his wounds, pouring on oil and wine. He set him on his own animal, and brought him to an inn, and took care of him. On the next day, when he departed, he took out two denarii, and gave them to the host, and said to him, ‘Take care of him. Whatever you spend beyond that, I will repay you when I return.’ Now which of these three do you think seemed to be a neighbour to him who fell among the robbers?”

He said, “He who showed mercy on him.”

Then Jesus said to him, “Go and do likewise.” — Luke 10:25–37, World English Bible

****

He told them this parable. “Which of you men, if you had one hundred sheep, and lost one of them, wouldn’t leave the ninety-nine in the wilderness, and go after the one that was lost, until he found it? When he has found it, he carries it on his shoulders, rejoicing. When he comes home, he calls together his friends and his neighbors, saying to them, ‘Rejoice with me, for I have found my sheep which was lost!’ I tell you that even so there will be more joy in heaven over one sinner who repents, than over ninety-nine righteous people who need no repentance.” — Luke 15:3-7, World English Bible

I don’t call this dumbing things down.  I call it the wisdom to drill down into something’s essential element and the skill then to communicate those core principles (whether they are good, as with the parables, or bad, as with ObamaCare) to others.

P.S.  I am not likening the conservative Supreme Court justices to Jesus Christ.  I’m just saying that smart analogies are a staple of intelligent communication, and should be admired, not denigrated.

 

Second guesses and theories about the Supreme Court decision and its aftermath

In the days and weeks preceding oral argument before the Supreme Court on ObamaCare, all Democrat (politicians and pundits) and a surprising number of conservatives were convinced that the Supreme Court would sustain ObamaCare.  After two and a half days of argument, the conventional wisdom has suddenly shifted.  Democrats are sure they’ll lose, and conservatives are cautiously optimistic.

With this radical shift, something else has happened:  Democrats are boasting, and conservatives are worrying, that a Supreme Court loss is the best thing that could happen to the Democrats.  Both claim that if the mandate alone goes, the remainder of ObamaCare will survive and be better than ever; and both also claim that if the entire bill goes down, ObamaCare’s loss will reinvigorate the base in November, while possible ensuing chaos in the health care world will so frighten ordinary Americans that they’ll demand a big government solution.

The Democrats’ spin make sense.  It’s all they can do.  The conservatives’ spin is less easy to understand.  Are conservatives guarding against hubris?  Is this a case of “hope for the worst, but plan for the best”?  Our we overestimating the Obama-ite’s tactical brilliance?  The last is intriguing, actually.  The theory goes that Obama and Co. decided that they could make more hay out of a loss than a victory, so they actually encouraged the Solicitor General to humiliate himself and basically appear like an articulate idiot.  They want to lose, because it sets them up for some even more nefarious plan.

There is such a thing as over-thinking things.  Under the above world view, it is impossible for conservatives to win.  If we lose before the Supreme Court, we lose.  If we win before the Supreme Court, we lose.  This is an unsustainable mindset.  You have to fight your battles as they come.  It is possible to win most of the battles and lose the war, but it’s more likely that the party with the greatest number of victories in separate battles also wins the war.  The one thing that’s certain is that, if you lose all the battles, you also lose the war.

I have been over-thinking something myself.  As jj noted in his comment to an earlier post, it is unconscionable that Elena Kagan is one of the sitting justices for this ObamaCare decision.  She was an important part of its passage, not to mention an ardent cheerleader.  Each of these facts creates an overwhelming appearance of bias and impropriety that, with nothing more, should force a judge’s recusal.  Yet Kagan didn’t recuse herself and, it seems, Chief Justice Roberts didn’t push the issue.

I’m wondering if they struck a deal….

Roberts must have realized that Obama’s base would become something close to insane, and probably violently so, if Kagan was knocked off this panel.  Perhaps he said to her something along the lines of, “You can stay, and you can help them out in oral argument, but you vote with me when the time comes.”  His role as Chief Justice means that he has considerable power to make Kagan’s Supreme Court tenure pleasant or unpleasant.  I can imagine him using a little polite blackmail.

Speaking Roberts, in my humble estimation, he has been the best Chief Justice in my remembered lifetime.  I have a great deal of faith in his management skills and, if he believes ObamaCare should be struck down in its entirety, I can see him making it happen — especially when it comes to encouraging Justice Kennedy to make the right decision.  (And jj, you’re right about that too, which is that it’s unconscionable that a man of very weak principles, although he does seem to side with individual liberties, is the one who seems to bear the whole burden of upholding the Constitution’s integrity.)

Is the Obama Administration trying for a clean healthcare slate?

Back in the 40s or 50s, Esquire Magazine, when it was still a magazine for gentleman, published some quite funny, if very risque cartoons.*  One of them showed a gorgeous, voluptuous, obviously purely decorative woman talking on the phone in her apartment.  Behind her is a kitchen piled to the ceiling with dirty dishes.  It is quite obvious that she is on the phone with her milquetoast husband:  “All is forgiven, Dear.  Come home.  I miss you terribly.”

That cartoon, which I haven’t thought about in decades, popped fully formed into my head when I read that the Obama Administration is doing what it can to hasten a Supreme Court hearing about ObamaCare.  Alana Goodman posits that this rush has a purpose:  “Maybe they reasoned that Obama would have more time to recover from a SCOTUS decision the June before his election, rather than risking a potential September or October surprise?”

Goodman shares the same assumption I do, which is that the currently constituted Supreme Court will reverse ObamaCare, probably in its entirety.  If that happens in June, Obama has the perfect campaign strategy:  We tried, our first effort was flawed, we now have a clean slate, so let us try again.  You know we’ll get it right the second time.  And all I can think about is that old Esquire cartoon.

________________________________

*I hasten to add here that I was not around when Esquire first published these cartoon.  My Dad loved books that gathered together magazine cartoons, and one of the gems he found at Goodwill or St. Vincent de Paul’s was a collection of Esquire cartoons.  I also inherited from him a lovely book that put together the best cartoons from the old British magazine, Punch.

Letting others take down E.J. Dionne, so we don’t have to

I read E.J. Dionne’s fatuous defense of Kagan in The New Republic, and started formulating a response to his superficial argument comparing Kagan to Roberts.  (It was so superficial it almost, but not quite, devolved into “and they’re both homo sapiens.”)  Fortunately, I was spared that effort when I read both Paul Mirengoff’s and Ed Whelan’s posts today, both of which say precisely what I would have said if I wrote as well and had as much information at my fingertips as these guys do.

Bottom line: Kagan’s legal reasoning has proven to be less than sophisticated, and is frequently (too frequently) wrong.  Further, any professional comparisons between her and Roberts really do stop at the “they’re both homo sapiens” level.

Your quote for the day

J.C. Arenas on the laundry list of qualifications for Obama’s Supreme Court picks:

Obama’s first Supreme Court appointment was Sonia Sotomayor, the Bronx-bred daughter of Puerto Rican parents, who supposedly was a valedictorian student with a deficiency in English and become an Ivy-League educated jurist credited with saving Major League Baseball.

Now we have Elena Kagan, the granddaughter of immigrants, who as Dean of Harvard Law, introduced the concepts of civil debate, a faculty lounge, free coffee and tampons.

If this woman has some legitimate qualifications to serve as a Supreme Court Justice, I hope they are presented soon; otherwise I’m going to have a win a year supply of Laffy Taffy to find a bigger joke.

The word “mediocrity” springs to mind.  So does the story Harrison Bergeron.

Why Elena Kagan’s sexual orientation is irrelevant

I know that much is being said amongst both Progressives and Conservatives about Kagan’s possible lesbianism.  Progressives are mad at her for being in the closet; Conservatives are worried about her orientation affecting her rulings as a Supreme Court judge.  Both are completely wrong.

Regarding the Progressive’s disdain for Kagan’s decision to keep her private life private, I say get out of people’s bedrooms.  This is Kagan’s private life we’re talking about.  She gets to decide how she wants to handle it.  It’s not for political activists to decide what is best for her, her family, and her significant others and friends.

As for Conservatives, even if Kagan is lesbian, it’s irrelevant.  What matters is her unabashed Progressivism.  That will control her thinking on whatever issue comes before her, whether it’s corporate taxes, the death penalty, abortion or gay marriage.  Her decisions will be completely consistent with any other Progressive’s, regardless of hetero- or homosexuality.  Her bedroom behavior is no one’s business because her political decisions are affected by her political orientation, not her sexual orientation.

You and I may have cause to decry the fact that gays and lesbians, as part of identity politics, gravitate almost unthinkingly to Progressive positions, but that’s not the issue with Kagan.  That is, we’re not arguing whether her sexuality decided her politics.  The fact is that she is now, for whatever reason, a Progressive, and it’s her politics, not her sex life, that should be under scrutiny.

Harvard law professor’s defense of Kagan doesn’t hide her anti-military animus

I’d like to analyze a Harvard’s law prof’s defense of a Harvard law dean.  The Prof (and ex-dean himself) is Robert Clark, who wrote an op-ed in the WSJ defending Supreme Court nominee Elena Kagan’s approach to the military during her tenure as dean of Harvard Law.  He spells out the facts, which I’ll accept as true (although with significant omissions), that he contends proves that Kagan loves the military.  If his opinion piece passes for legal analysis at HLS . . . well, they’re all Obamas there, I guess.

Clark begins by explaining that, when Kagan came on board as dean of Harvard Law, Harvard already had a long-standing policy barring any recruiting by employers who hadn’t signed onto a statement that they didn’t discriminate:

As dean, Ms. Kagan basically followed a strategy toward military recruiting that was already in place. Here, some background may be helpful: Since 1979, the law school has had a policy requiring all employers who wish to use the assistance of the School’s Office of Career Services (OCS) to schedule interviews and recruit students to sign a statement that they do not discriminate on the basis of race, gender, sexual orientation, and so on.

(Just FYI, I have a big problem with forcing employers to sign that kind of stuff as a precondition for recruiting.  I don’t think Harvard should be narrowing the pool of prospective employers for their students who are, after all, adults.  Even more than being mere adults, since they’re graduates of Hah-vahd Law, one would think they’d learned a little about analyzing their own needs and the type of employer they wanted.  Had I been in charge, I would simply have required that all comers inform prospective employees what their non-discrimination policies are.  But then again, unlike a liberal, I prefer more information, not less.  But back to Clark’s Kagan narrative. . . .)

In the early years after Harvard started censoring prospective employers, the military circumvented its inability to sign this statement (a Congressionally imposed inability, I might add), by appearing on campus as the guest of a school organization:

For years, the U.S. military, because of its “don’t ask, don’t tell” policy, was not able to sign such a statement and so did not use OCS. It did, however, regularly recruit on campus because it was invited to do so by an official student organization, the Harvard Law School Veterans Association.

Eventually, the Air Force, fed up by its second class treatment, challenged Harvard for violating the 1996 Solomon Amendment (which, like “don’t ask, don’t tell,” passed during a Democratic administration).  That Amendment says that a school can’t take federal money and than ban the American military from its campus. (Or as we used to say in Texas, you dance with them what brung ya’.)

The symbolic effect of this special treatment of military recruiters was important, but the practical effect on recruiting logistics was minimal. In 2002, however, the Air Force took a hard line with Harvard and argued that this pattern did not provide strictly equal access for military recruiters and thus violated the 1996 Solomon Amendment, which denies certain federal funds to an education institution that “prohibits or in effect prevent” military recruiting. It credibly threatened to bring an end to federal funding of all research at the university.

The Law School is so damn rich, Clark says, it could survive without federal money, but other colleges at Harvard might have been hurt by losing your and my taxpayer dollars.  Although it violated every liberal principle in the faculty’s collective body, Harvard Law bowed to Mammon and gave the military a pass on its (Democratically mandated) inability to sign the school’s (Nanny state) non-discrimination pledge. The liberals, of course, made their usual “we love the military” speech, even as they sought to undercut its efficiency.

This penalty would not have hurt the law school, which has virtually no such funding. But it would have hurt other schools at Harvard, principally the medical school and the school of public health. It would have eliminated about 15% of the university’s operating budget.

After much deliberation with the president of Harvard and other university officials, we decided to make an exception for the military to the school’s nondiscrimination policy. At the same time, I, along with many faculty and students, publicly stated our opposition to the military’s policy, which we considered both unwise and unjust, even as we explicitly affirmed our profound gratitude to the military. Virtually all law schools affiliated with large universities did the same.

Kagan rolled with this new policy favoring the military, but complained about it vociferously. That is, at the beginning of each recruiting season, she went out of her way to pay lip service to the military, and then to attack it for following a “don’t ask, don’t tell” policy — a policy, I might add, enacted by a Democratic Congress and signed by Bill Clinton, her former employer:

When Ms. Kagan became dean in July of 2003, she upheld this newer policy. Military recruiters used OCS services, but at the beginning of each interviewing season she wrote a public memorandum explaining the exception to the school’s nondiscrimination policy, stating her objection to “don’t ask, don’t tell,” and expressing her strong view that military service is a noble and socially valuable career path that should be encouraged and open to all of our graduates.

Kagan was not happy with the Solomon Amendment’s dictates, something made clear the moment the opportunity arose for her to block the military from Harvard Law.  When the Third Circuit said that the Solomon Amendment was unconstitutional, Kagan immediately kicked the military off campus again, depriving it off access to some of America’s best and brightest during time of war:

In November 2004, however, the Third Circuit Court of Appeals found that the Solomon Amendment infringed improperly on law schools’ First Amendment freedoms. So Ms. Kagan returned the school to its pre-2002 practice of not allowing the military to use OCS, but allowing them to recruit via the student group.

Unfortunately for Kagan, the U.S. Supreme Court ultimately concluded that the Solomon Amendment was constitutionally sound and held that, unless schools taking federal money give access to the U.S. military, they can kiss their dollars good-bye. Despite the largest endowment in America, Harvard chose free money over principles, and once again opened its doors (complaining bitterly all the while):

Yet this reversion only lasted a semester because the Department of Defense again threatened to cut off federal funding to all of Harvard, and because the U.S. Supreme Court reversed the Third Circuit’s decision. Once again, military recruiters were allowed to use OCS, even as the dean and most of the faculty and student body voiced opposition to “don’t ask, don’t tell.”

From this story, Clark reaches what is, to me, a bizarre conclusion (emphasis mine):

Outside observers may disagree with the moral and policy judgments made by those at Harvard Law School. But it would be very wrong to portray Elena Kagan as hostile to the U.S. military. Quite the opposite is true.

Do you think Clark’s conclusion makes sense.  As I read his own words, he is describing a woman who, at every opportunity, tried to block the military — a military at war — from having access to people who are presumably the nation’s top law students.  She did so because she doesn’t agree with a federal policy put into place by her own own political party and signed by her former boss, Bill Clinton. Not only that, when she was forced to give the military access to these students, she repeatedly voiced her hostility to the military’s program, ignoring the fact that the military was constrained by a political compromise enacted under the aegis of her Democratic party.  Would you remind me where this falls into the “not hostile to the U.S. military” category?

And while I’m at it, let me add a few salient facts that Clark conveniently forgot to mention in his little narrative.

First, as Clark’s narrative tells, every year when Kagan reluctantly allowed military recruiters onto campus, she sent out a formal announcement bemoaning the fact that she was forced to do so.  These were no dry statements.  They were emotionally charged, and the emotions hit the wrong target:

Consider these words in particular from her letters to “All Members of the Harvard Law School Community”: On Oct. 6, 2003, Kagan explained that she abhorred “the military’s discriminatory recruitment policy….The military’s policy deprives many men and women of courage and character from having the opportunity to serve their country in the greatest way possible. This is a profound wrong — a moral injustice of the first order.” On Sep. 28, 2004: “…the military’s recruitment policy is both unjust and unwise. The military’s policy deprives…” etc. And on March 7, 2006: “I hope that many members of the Harvard Law School community will accept the Court’s invitation to express their views clearly and forcefully regarding the military’s discriminatory employment policy. As I have said before, I believe that policy is profoundly wrong — both unwise and unjust…,” etc.

Notice, time and again: “the military’s discriminatory recruitment policy,” “the military’s policy,” “the military’s recruitment policy,” “the military’s discriminatory employment policy.”

But it is not the military’s policy. It is the policy of the U.S. Government, based on legislation passed in 1993 by (a Democratic) Congress, signed into law and implemented by the Clinton administration, legislation and implementation that are currently continued by a Democratic administration and a Democratic Congress. It is intellectually wrong and morally cowardly to call this the “military’s policy.” Wrong for obvious reasons. Cowardly because it allowed Kagan to go ahead and serve in the Clinton administration that enforced this policy she so detests, and to welcome to Harvard as Dean former members of that administration, as well as Senators and Congressmen who actually voted for the law–which is more than the military recruiters whom Kagan sought to ban did.

Even liberal commentators, most notably Peter Beinart, who deeply disapproves of “don’t ask, don’t tell,” have recognized that Kagan loaded, aimed, and then shot the wrong target:

The military, like Congress, the courts and the presidency, is one of our defining public institutions. To question its moral legitimacy is not like questioning the moral legitimacy of General Electric. And that’s exactly what banning the military from campus does. It suggests that Harvard thinks not just that the military’s anti-gay policy is immoral (which it emphatically is) but that the institution itself is immoral. It’s like refusing to sing the national anthem because you’re upset at the Bush administration’s torture policies or refusing to salute the flag because of the way Washington responded to Hurricane Katrina. It’s a statement of profound alienation from your country, and will be received by other Americans as such.

Beinart’s absolutely right.  He recommends that Kagan apologize, but I don’t think an apology will cut the mustard with Americans who recognize in her a profound disdain for the military, one that can’t be swept away with a muttered, “I’m sorry I said that.”

Second, Clark’s narrative also misses the fact that Kagan didn’t just complain about the Solomon Amendment — she acted upon her complaint.  By doing so, as Scott Johnson explains, she proved herself to be in a clear minority as a legal thinker (although comfortably in lockstep with America’s Ivory Tower elites):

When the Supreme Court accepted the Department of Defense’s appeal from the Third Circuit decision, Kagan got on board. She was one of 40 Harvard Law School professors who signed a friend-of-the-court brief written by Walter Dellinger supporting the FAIR plaintiffs.

In the brief Dellinger argued that the Solomon Amendment applied only to schools that specifically prohibited military access on campus, not to schools’ whose policies simply had the (allegedly) incidental effect of doing so. Dellinger distinguished the law schools’ contemporary anti-discrimination policies from Vietnam-era academic anti-military policies.

Dellinger’s argument based on the language of the Solomon Amendment was, to say the least, strained, and the Supreme Court gave it the back of its hand in the Court’s 8-0 opinion upholding the Solomon Amendment. Even Justice Stevens rejected it.

Here we have Kagan herself, as Dean of the Harvard Law School, signing off on a brief making an argument so far out that not a single member of the Supreme Court found it worthy of adherence. This would seem to provide some evidence for the proposition that Kagan’s views lie somewhere outside the mainstream of Supreme Court jurisprudence.

Perhaps the institutional imperatives to which she gave voice as dean of the Harvard Law School overrode her common sense. For other reasons, Kagan has noted she didn’t write the brief; she merely signed it.

Kagan’s side decisively lost the FAIR case in the Supreme Court. I wrote while the case was pending in the Supreme Court that some lawsuits deserve a fate worse than failure. While decent military recruiters suffered the rudeness of their purported betters at Yale Law School and elsewhere in silence, the armed services of the United States were (and are) actively defending the freedom of those schools from peril. The rank ingratitude of those who should know better is a disgrace that deserves to be widely recognized as such.

So, not only does Clark’s conclusion that Kagan is a proud supporter of the American military fail to mesh with his own facts, it also fails to mesh with the facts he excluded from his summary of her approach to the military.

Kagan is certainly not a rabid anti-military person.  As far as we know, she never took to the streets, and she never said anything intemperate.  Nevertheless, during her war-time tenure as Harvard Law’s dean, she actively worked against the military, in violation of rather explicit federal law.  In addition, when the opportunity came along, she signed her name to a brief so contrary to constitutional law that even the liberal jurists on the Supreme Court could not support her position.  (This might not be surprising.  She seems to be careless and unprepared when it comes to acting like a lawyer, something worth considering in light of her Supreme Court nomination.)

Although this post touches heavily upon “don’t ask, don’t tell,” it is not about the merits of that government policy.  It is, instead, about the fact that Kagan’s defenders will obfuscate the record to hide the fact that, as Michael Gerson has said, “many Americans will find her acts offensive”:

During a pastel career, Kagan made one neon decision — to ban military recruiters from the Office of Career Services when she was dean of Harvard Law School, based on her strong opposition to the “don’t ask, don’t tell” policy. Legal experts understand that this is a controversy at many law schools. Kagan will explain that she followed the law and the ruling of the courts, even while arguing to overturn the policy.

I suspect, however, that many Americans will find her actions offensive — with far more intensity than the White House expects. Kagan not only took this controversial action, she publicly attacked the policy as “deeply wrong,” “unwise and unjust” and “a moral injustice of the first order.” It will be hard to downplay an issue on which Kagan has a history of grandstanding. Blocking military recruiters may seem normal in academic circles, but it will seem radical in much of the country — like banning the American flag from campus to protest some policy disagreement with the government. This controversy will add to a broader narrative that “Manhattan’s liberal, intellectual Upper West Side” is disconnected from the views and values of Middle America.