SCOTUS Panel on Civil Rights

The ACS and the ACLU are hosting a panel with Professors Junker and Lombardi tomorrow (Thursday) at 12:30 in room 133. I'll be there trying my hand at simul-blogging. Prof. Lombardi clerked for Judge Alito, and will unquestionably have some interesting insight. See you all there!

Senator Lieberman...

...gets it. As soon as the Dems start getting it, too, they'll start winning elections.

On "Judicial Activism"

I hate this phrase. I really do. Use of the phrase usually constitutes some act of faith, meaning that it means whatever the person saying it thinks it does. For many conservatives - especially those without a lot of legal background - it generally means "judges who sit on cases that don't turn out the way we think they should not having looked at the actual case, like when criminals get off on 'technicalities'." For many liberals, it means "judges who strike down laws", or "make decisions", whereby they giddily point out that conservative judges are just as "activist". I think both of them are wrong in their understanding.

To me, a "judicial activist" is one who first makes a policy decision based on what they think the law SHOULD be, and then only after their mind has been made up, justifies it with some case law, statutes, or most egregiously, Constitutional Amendments that may or may not actually apply. This definition encompasses those who make decisions that fall outside the realm of justiciabilty, are manifestly political questions, or are not even within that court's jurisdiction.

Striking down laws is NOT, in my view, judicial activism. Sometimes they need and deserve to be struck down - but only under existing rules of law, not because the judge thinks they're bad policy. Making a decision based on analogy when there simply isn't case law, a statute, or some other source of law directly on point is likewise not offensive - so long as the decision rests within the logical scope of the law as it exists, and doesn't unilaterally expand some conception of rights, then such a decision is exactly WHY we have judges at all.

Every so often someone thinks they've "got me" advocating judicial activism. A few weeks ago, in my smoking thread, I was accused of it when I said I hoped small business owners would use the well developed doctrine of regulatory takings to seek compensation for the wrong that the Seattle City Council did to the owners of those businesses who will suffer for their actions. That's not activism in my mind because the legal doctrine is already well developed. Last week in one of my classes, I was accused of advocating it because I thought a judge who determined that a man who had sex with his ex-wife's minor adoptive daughter didn't need to prove with a Harvard study that his actions were bad for the other kids of the marriage. Again, I think that's within a judges power to decide, because it falls well within the logic and common sense of the existing statutory scheme even if that particular case's facts weren't specifically contemplated.

There is no question that under such a definition, there certainly ARE "conservative activist judges." I happen to think Justice O'Connor was such a justice (and to a lesser extent Kennedy), and that Harriet Miers would have been one as well. And that's why I'm not sorry to see J. O'Connor go, and why I was opposed to Ms. Miers' nomination. Where I see them, I oppose them. Even Justice Scalia, who so vocally opposes such an approach, can fall prey to the problem (the only plausible explanation for his concurrence in the Raich medical marijuana case decided last year). When he does it, I have no problem pointing out my disappointment.

But I think it's clear that liberals are MORE prone to this kind of "decision first, justification after" kind of "reasoning." I say that because most liberals espouse a "living Constitution," kept alive by judicial decision rather than the amendment process. This concept cannot exist without the ability of judges to make policy changes to text unchanged by the people's elected political representatives.

I know I can trust a judge when I occasionally see this in an opinion: "I personally think this law is ridiculous, and even potentially damaging. I would vote against it if I were a legislator. But this is not within my purview to decide, and therefore I decline to address the merits." You will never, ever see that in a Ginsberg or Souter opinion. You WILL see it from those most often attacked as "conservative judicial activists" - Thomas and Scalia. You see it in Alito opinions as well.

Judges - and Supreme Court Justices in particular - have grown far more powerful than the founders envisioned. Their decisions are unreviewable in many cases, and nearly impossible to get "undone". As such, they have the responsibility to ask themselves in every instance, "Just because I have an opinion on this topic, is it for me to make this decision?" When they refuse to do it, the balance of power among the three branches of government is upset, and we're faced with ridiculous efforts to counter it like gay marriage Constitutional amendments, further eroding the power of the document and the foundation of our country.

Class Warfare and Social Mobility

This interesting piece today summed up very well the class warfare arguments of the left. Basically:

• We admit grudgingly that the poor are better off now than they ever have been,
• But the gap between rich and poor matters, no matter how well the poor are doing.
• When you die, your wealth should be given to someone else. It's immoral to want to spend your money on your own children - you should spend it on someone else's instead with the government as the executor.
• The gap and inter-generational wealth = lack of social mobility, making the American Dream that used to exist a joke.
• Government should DO something to lessen the gap (i.e., wealth transfer).
• Other industrialized countries don't have the gap, and we should follow their lead.

These are all interesting thoughts unburdened by fact or experience. We don't need to guess what more governmental interference and regulation with personal wealth will do - we have dozens of examples all over the world. Our economy is growing faster than any other industrialized nation (not counting China and India), our unemployment rate is about 2.5 times lower than that of Western Europe (the heart of socialism), and our policies don't have the effect of preventing social mobility through over-regulation, creating a permanent underclass the likes of which is now rioting in France.

I hate the "gap" argument. I personally don't care if someone else is twice as rich as me, 50 times richer, or a million times richer. Because I hope to someday be in their shoes, why should I advocate a policy that would take away my opportunity to get there? The left has switched to that argument because they can no longer say that the poor are getting poorer with any accuracy. When I see someone who's really rich in this country, all that tells me is that I can get there, too.

The author states that social mobility is also on the decline. I would argue that this might have something to do with the fact that our middle class has grown dramatically over the last few decades, and people often stay middle class. I personally don't see that as a crisis.

In this country, the poor people are fat. Plumbers can go on Caribbean Cruises. According to US census figures, 46% of people officially bellow the poverty line own their own homes. Some 75% own a car. And how many do you think have color TV's, DVD players, stereos, etc., not to mention clean, potable running water, reliable sewage and sanitation services, and can afford cigarettes (still)? And even better, most of those people are young, and are in a state of transition. Think how many college students are "below the poverty line" - does anyone seriously think that's permanent? The left responds to these stats with eye-rolling hyperbole and non-statistical anecdotes.

In this country, you have two options. You can whine about other people getting stuff, or you can go out and get it yourself. Leftist economic policies, as evidenced in Europe, make it harder to go out and get it yourself, leaving you with the single option of whining about other people. Well, that and burning Peugots.

When I graduated from high school, I lived in a small trailer house in South Dakota. It was a particularly crappy one, and some "activist" trying to "help me out" would probably have considered my poverty "abject." But I was lucky enough to live in a place where such "activists" aren't given a lot of credibility, and where personal responsibility is still expected, and now, quite obviously, I no longer live in the trailer. Thank God I live in this country, where the government isn't "doing" anything about the "wealth gap," so that unlike poor Western Europeans, I had (and continue to have) the opportunity to close that gap all on my own.

If you aren't free to fail, you simply aren't free.

"Bosh, blatherskite, and flapdoodle"

Stuart Taylor of the National Journal addresses the arguments of the Alito critics who say he's outside the mainstream.

W on the offensive

The President has finally started defending his decision to go to war in Iraq, and more importantly, attempting to correct the record (here and here) on his and others' use of pre-war intelligence. The Democrats current "Bush lied us into war" meme is irresponsible and more than a little dishonest. It is important, for the sake of his administration's credibility, the validity of the war effort, and the continued effectiveness of US foreign policy that the President squelch this attempt on the part of the Democrats to rewrite history:

• The intelligence services of every major country on the planet (France, Germany, the UK, Italy, Israel among others) believed Saddam had WMDs.
• President Clinton and Secretary Albright repeatedly made the case, in 1998, that Saddam had refused to disarm and that he continued to develop his WMD capability. There was no evidence that he had abandoned his attempts or dismantled his capabilities between 1998 and 2oo2.
  
• The Democrats in the Senate (Jay Rockefeller, John Kerry, John Edwards et al) who are now denouncing the president for having misled us into war, had access to substantially the same intelligence as the President. Their remarks in support of the war resolution were anything but ambiguous.
• The vote authorizing war in 2002 was plainly a vote contemplating, and approving of, military action in Iraq. It was not, as some Democrats now claim, merely a vote to strengthen the President's diplomatic hand by raising the possibility of war.

Lying About Alito

This impassioned little piece of hyperbole from the former NARAL Pro-Choice America president is the latest broadside against the nomination of Samuel Alito. The trouble is that it's a bald faced lie.

Notice how she interchangeably uses the words "notification" and "permission." She never, ever, as she claims, had to get the father's "permission" to get an abortion. If the nurse indeed told her that, then her beef is with that nurse, not the law or Alito. The two are quite different, obviously.
Here's what the "burden" ACTUALLY was:

Section 3209 of Pennsylvania's abortion law provides, except in cases of medical emergency, that no physician shall perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an abortion.

The woman has the option of providing an alternative signed statement certifying that her husband is not the man who impregnated her; that her husband could not be located; that the pregnancy is the result of a spousal sexual assault which she has reported; or that the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her.

Planned Parenthood v. Casey, 505 U.S. 833 (1993). Note that she didn't need her husband to sign anything. All she needed to do was call him and then tell the doctor she called him. If she had merely the belief that he would hurt her, she didn't have to do that. I agree with Judge Alito that this doesn't constitute an "undue burden," especially if we think fathers have both duties and rights as parents in this country. If NARAL disagrees that fathers matter, I expect to see them oppose child support laws as well.

NARAL wants you to believe that with Alito on the court, burquas and the repeal of the 19th Amendment are inevitable. The trouble is, they're lying to you. Don't believe it. And if you're part of these organizations, ask yourself why they feel the need to play so fast and loose with the truth in order to sell their agenda to the public.

NOTE: My personal views on abortion are still pretty unformed. I don't like it, but I am persuaded that making it illegal wholesale (a) could be more harmful, and (b) have a lot of religious overtones that make me a little uncomfortable. If I were a legislator, I might very well vote to keep legal a scheme not unlike the Roe v. Wade court's recommendation. But the jurisprudence behind that decision is an embarrassment, and allows constitutional protections to shift out from underneath us based solely on the policy predilections of 5 unelected people. Just a preemptive note for the inevitable "obviously you want women impaled with coat hangers!" commentors.

UPDATE: A commenter correctly pointed out that Ms. Michelson was not talking about the PA statute as it was decided in Casey. Mea culpa - I jumped to exactly the conclusion that she wanted me to, that Alito's decision would have had a direct and negative effect on her. In fact, they had nothing to do with each other. Because she implied that it did, I stand by my belief that this is deliberate dishonesty about Judge Alito perpetrated by those who think (a) judges should decide policy by fiat, and (b) this judge doesn't share their policy views and will act accordingly.

Making Orrin-Criticizing Easier

We've changed the settings of the blog to make it easier to post comments - you don't have to set up your own blog any more!

Please keep in mind that this subjects us not only to wild anonymous postings of all kinds, but also leaves us open to spam comments as well. If the moderation duties get to difficult, we may revert back to the old way.

We welcome all comments, especially thoughtful ones which disagree with us. Part of our goal is to refine our own ideas, after all, through rigorous debate. However, personal attacks, obscene language, and other posts we as the Executive Board deem to be inappropriate will be deleted. Thoughtful debate makes us all smarter. Angry, obscene rants make us all more partisan and consign us to our own comfortable echo chambers.

Above all, remember - this is a grown-up forum.

Veterans Day and Local Heros

Here's an inspiring story about a Tumwater man who was the youngest Navy recipient of the Medal of Honor in WWII who recently passed away. I, for one, am proud and humbled to be part of his tradition in a small way.

Don't forget to thank a vet for this day off!

Thanks for a Great TGIT!

I just wanted to thank all the members of the FedSoc E-board for setting up and executing a fantastic TGIT, and for everyone who came to drink, debate, and have a good time.

Special nod to Jon Keith, who had the idea to pull out the political quiz. Whatever the deficiencies and over-simplicities of the "labels" the answers created, it provided a great launching pad for lots of great conversations.

Freedom Up In Smoke

I'm incredibly disappointed that I-901, the state anti-smoking initiative, passed by such a wide margin. (Unlike California or NYC, you can't even smoke on the sidewalk in front of the bar within 25 feet.) This is another blow to concepts like personal property rights and individual responsibility, and a win for the nanny state. I'm not a smoker. I've never smoked a cigarette in my life. I don't like the way my clothes smell after a night in a dive bar. But then, no one has ever held a gun to my head to make me go to a dive bar.

I don't buy that employees have no choice, either. I would bet any amount of money that if you only let vote bar employees and waiters/waitresses who work at the few restaurants left that allow you to smoke, the ban would fail miserably. This would be especially true if people actually knew the facts - that no study has ever shown any significant causal connection between ill health effects and second hand smoke.

The worst, though, are these latest TV spots - the ones with the scary puppet kids who eat dead, maggot-ridden roadkill and then try to make out with another scary puppet. "Kissing a smoker is just as gross." I've kissed smokers before. And while I've never shoved a dead crow in my cake-hole, I can tell you which I think is more disgusting by a factor of a bajillion.

When you lie to 11-14 year olds about this kind of thing (their target audience) they won't believe ANYTHING adults tell them about drugs, alcohol, or any other thing that really can harm them. And who's paying for it? We are, of course, from the unconscionable billions extorted from the tobacco companies by our current Governor that was supposed to go to offset the harm already caused to our health care system caused by RJ Reynolds' lies. It's ironic (but not surprising) that the people most self righteous about the tobacco companies' lies are so willing to do it themselves - and at our expense.

Smoking is a choice. Anyone who started after about 1950 and still didn't know it was bad for you is so stupid that they probably would have won a Darwin Award anyway. For the rest of 'em, they're exercising their right to control their own bodies and own risks as a free adult should, and any attempt to control that should be met with universal scorn in a free society.

Debate Federalists! Drink Beer!

Our TGIT is scheduled for this Thursday, and we pride ourselves on having good beer. Mmmmm... Schlitz... Anyway, please come out and enjoy.

But even better, we'll be hosting our first pub debate of the year. Meet us in the back room of Big Time Brewery at 6 PM or so on Thursday night, after we're done cleaning up the TGIT. We'll buy the first two pitchers, and supply friendly, spirited debate for free all night long. The topic will be "Washington Election 2005 Postmortem - Strippers, Smoking, and the Role of Government."

From there, it may go to karaoke - and you won't want to miss publius rex's haunting rendition of "18 and Life"...

The BLS Alternative

I've talked to a lot of people who feel frustrated and aren't getting what they need from the texts in BLS. I didn't either. If you're one of them, I highly recommend The Legal Writing Handbook by Oates, Enquist, and Kunst. If you're one of the people I've talked to, this is the book I've been talking about. It's the text they use at Seattle U (Prof. Oates is the head of their legal writing program), which has one of the top ranked legal writing programs in the country. This book taught me legal writing. Enjoy.

Please Don't Vote...

...if you aren't informed.

Even better, get informed, and don't forget to vote tomorrow. And if you live in King County, I don't suggest putting those rockin' Ronald Reagan stamps on your mail in ballot...

Guns, "the people," & the ACLU's Shifting Legal Philosophy

I recently made a point a friend of mine associated with the ACLU that his organization picks and chooses the "rights" it wishes to protect, and ignores some parts of the Constitution altogether while imagining parts that it wishes were there but weren't. Specifically, I mentioned that they completely ignored the 2nd Amendment.

He responded with the ACLU's 2nd Amendment information page, and quoted their official philosophy on it:

"The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment [as set forth in the 1939 case, U.S. v. Miller] that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms." --Policy #47

Here's the actual text of the Amendment:

"A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." (emphasis added)

The page goes on to explain that because hand guns and hunting rifles could never be used to challenge the government with tanks and bazookas, the people should have no weapons at all. A strange stance coming from a group that no doubt imagines that a few thousand insurgents in Iraq with IEDs have already beaten the US Army there.

The thing that kills me is that this is one of the few Amendments to the Constitution the ACLU wants to restrict. (Unmentioned abortion is an absolute right that should never be taken away, but specifically mentioned gun ownership isn't? What what what?!?!)

I understand that it could be read in a more limited way. And I don't think that owning full military grade hardware up to and including nuclear weapons is protected, just as certain kinds of speech aren't protected. But the phrase "the people," along with the specifically enumerated authority elsewhere in the Constitution to raise armies and enforce the law, means that it meant (and means) something more than a provision enabling the government to do something it was already empowered to do.

The reason you bother to write out a Constitution is so that there is an unchanging (or at least difficult to change) baseline of inviolable rights that are secured for ourselves and "our Posterity." If the founders envisioned such rights to be subject to a veto by judicial fiat any time 5 justices thought "times had changed," then it would be called the Bill of Suggestions instead.

Temper Tantrum in the Senate

Sigh. This is just ridiculous in every way. Note that this happened a day after Senator Reid was informed that the Intelligence Committee was a week away from wrapping up their lengthy investigation of the very issues Reid claims were being ignored. To me, that speaks pretty loudly that Reid knew there wasn't going to be anything incriminating in the report, but wanted there to be. So he pulled this stunt instead to blow smoke, hoping people would (a) think a report had never been in the works, and (b) confuse his manufactured smoke for actual fire.

If Harry Reid actually knew something, he would reveal it. If any of the Democrats on the Intelligence Committe had dirt on lies, coverups, Hitler's brain in a jar, etc. and yawn, they'd spill it. And I for one would be glad that they did. But they don't, 'cause there ain't, and so the hysteria continues.

Does a kid throwing a temper tantrum in public focus one's attention on the kid, and away from whatever else is going on? You bet. But it doesn't exactly endear anyone to the kid throwing the tantrum.

The Republicans have done a lot of stupid, non-conservative things in the last few years. They'll continue to do it so long as the opposition party insists on being even stupider, and represents no threat. One party systems - no matter what the party - are never friendly to limited government. Frustrating.