May 2009 Archives

Dishonesty on Sotomayor

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President Obama and other Democrats have been saying that when Judge Sotomayor said a wise Latina would more often than not reach a "better conclusion" than a white male, she "simply" meant that she would bring her own experiences to the court.

That is a lie. She was making a specific point. She referenced a quote that a wise man and wise woman will reach the same conclusion; she stated her disagreement with that view; and then she said a wise Latina will reach a better conclusion.

This was not a misstatement, or a slip of the tongue, it was an intentional and explicit point she was making.

However, this does not bother me nearly as much as her opinion in Hayden v. Pataki. Briefly, a New York state law that restricted the voting rights of felons was being challenged because, in the view of the challengers, blacks and Latinos were disproportionately affected and therefore the law violated the Voting Rights Act's prohibition of any voting qualification or standard that "results" in the denial of the right to vote "on account of" race.

Now, realize this decision is not about whether such prohibition "on account of" race actually occurred, but whether a case can go forward to make that determination. The majority claims that the Voting Rights Act does not apply to such statutes; this allows Sotomayor in her dissent to claim the textualist high ground, saying, the "plain terms" of the law say that the Voting Rights Act applies to such statutes.

But to me, this is all dancing around the plain fact that there is no evidence of any kind that the denial of rights is in any way "on account of" race.

But that all ignores the plain fact that the law in question does not deny rights "on account of" race. So I find myself much more drawn to Judge Raggi's concurring opinion than chief Judge Walker's opinion. Raggi notes:

While acknowledging the presumptive validity of felon disenfranchisement laws ... plaintiffs ... submit that New York's practice of prisoner disenfranchisement violates the VRA because there is a gross racial disparity in the state prison population. If permitted to pursue their claim, they seek to show that this disparity is a product of pervasive racism infecting every part of the New York criminal justice system, from stop and frisk determinations by police officers on the street, to charging decisions by prosecutors, to detention and sentencing rulings by state court judges. In short, plaintiffs propose to use the VRA to indict the New York criminal justice system for racism.

So employed, the VRA would not only significantly intrude on, but also seriously disrupt, the orderly administration of criminal justice in New York, obviously a matter of legitimate state interest. Plaintiffs' suit would effectively impugn the constitutionality of countless state convictions without necessarily proving that any one prosecution or sentence was, in fact, discriminatory.

The suit does not even attempt demonstrate, in any serious way, that the system is actually discriminatory. For that reason alone, the majority judgment is the correct one, and in my view Sotomayor -- while perhaps correct in her dissent, that the VRA can apply to such disfranchisement laws -- is implicitly buying into the argument that New York's system is discriminatory, or could be adjudged such without serious proof.

I am watching Fox News and they are talking about Judge Sotomayor, and anchor Gregg Jarrett says that Sotomayor ruled this year that the Second Amendment doesn't apply to the states. Then he says, "as a lawyer, I find incredibly puzzling ... I don't understand where she was coming from."

Perhaps he can read my primer on incorporation or my prediction that selective incorporation is going to be officially killed soon. (And not for nothing, but I don't make predictions often.)

Granted, he's a laywer and I am not, but maybe he can learn something from little ol' me.

This concept is important to understand in regards to the Second Amendment, and I'll explain it briefly: the Fourteenth Amendment says that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The Supreme Court, however, decided last century that which "privileges or immunities" the state cannot abridge are to be decided selectively by the Supreme Court. And the Supreme Court has never "incorporated" the Second Amendment.

Now, I am not saying that Sotomayor was correct; another court this year in Nordyke v. King came to a different conclusion (that the "test" for selective incorporation also means the Second Amendment should be incorporated). But it's all guesswork: the Supreme Court does the incorporation in the end. It's a ridiculous way of making law (and contrary to the clear language and intent of the Fourteenth Amendment), but it's what we've got, and Sotomayor's legal reasoning in this case is sensible, according to precedent.

And I hope she gets overturned.

It's also worth noting that selective incorporation is despised by many on the left and the right. Many on the left want to require states to recognize all sorts of "privileges and immunities." If a federal court recognizes a right to gay marriage, for example, then this could be binding on the states through the 14th Amendment, but with selective incorporation, it's not. So you'll see some liberal lawyers helping to kill selective incorporation, even joining forces with the NRA.

Axelrod on Sotomayor

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On PBS NewsHour yesterday:

DAVID AXELROD: Judge Sotomayor has just a spectacular story. You know, I think no one in our memory has had the credentials that she brings to the court. ... [she] has a great personal story. Raised in the South Bronx, her father died when she was young. Her mother was a nurse, raised her.

No offense to Judge Sotomayor, but her personal story is no greater than mine or anyone else's. I know America has a long history of giving extra credit to people who were poor or "disadvantaged" in some way, but it's utter nonsense, and certainly no serious qualification for the Supreme Court of the United States. But Axelrod was just getting started with the crazy (I help him out with the words in brackets, because he apparently has trouble remembering what Sotomayor actually said):

JUDY WOODRUFF: Some conservatives ... are citing a statement she made in, I guess, 2005 where she said Federal Circuit Courts of Appeal are, quote, "where policy is made." How is that going to be explained?

DAVID AXELROD: Well, I think it doesn't need to be explained if anybody reads her broader comments from that event at Duke. ... she was explaining the difference between the District Court and the Appeals Court. And what she said was the Appeals Court is where [ed: policy is made] uh, where where [ed: policy is made] legal theory, essentially, where [ed: policy is made] these uh these [ed: policies are made] more um [ed: policy is made] involved constitutional issues go, whereas the trial court, where she also served, was [ed: not where policy is made] ...

And continuing:

JUDY WOODRUFF: There was another comment that I'm already reading conservatives pointing to. Quote, she said, I guess, in 2002, "A wise Latina woman with a richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life when each is acting as a judge."

DAVID AXELROD: Well, I think what she's saying is that you are [ed: more likely to reach a better conclusion if you're a wise Latina than a white male] -- that you bring to the court not just your legal experience, which in her case is vast, but your personal experience and your life experience.

Just as Obama's favorite Supreme Court justices, like Stephen Breyer, explicitly ignore the Constitution for some "broader" purpose, Axelrod ignores what Sotomayor actually said to look at her "broader" meaning.

Let's be clear: President Obama gives us only one single reason why the detention facility at Guatanamo Bay needs to be closed: because it makes us look bad. Because it is a negative symbol.

That's it. There's literally no other reason that he gives us. You might think that's reason enough, but we've never really had that debate, and Obama throws in sufficient fallacious arguments around it to ensure we won't.

He spent a significant amount of time talking about how Gitmo is bad because torture is bad, but by all accounts we have not tortured (by either his, or Vice President Cheney's, definition) there for years. This was perhaps the most dishonest part of his speech: taking credit for banning techniques that had been banned and were not in use.

Obama also spent a significant amount of time showing that we can put these detainees into a legal framework without Gitmo, but that's no reason why we need to do so. Why incur the costs of shutting down Gitmo if there's no need? He doesn't say, of course.

Insofar as his arguments that a Gitmo-less system can work, Obama did a fair job. I accept that we can deal with these prisoners through our federal system if necessary. But he did not give us any reason beyond symbolism why it's necessary. He never has, and I suspect he never will.

He sought to defend his positions using red herrings, straw men, and dissembling. He continued to attack Bush (often falsely, such as the entirely unproven and partisan line about covering up facts to fit the agenda) to distract from his own policies, just like he did during his campaign: he sets up the false dichotomy that if you disagree with Bush, then Obama's way is the only alternative. Bush is to blame for bad things, so therefore, you must agree with Obama. Nevermind that Obama cannot connect the dots, or explain his own positions (Obama to this day has never told us just how Bush's policies caused the recession; but nevermind that, Bush is to blame, so we must do the opposite of Bush to fix the problems!). All you need to remember is that Bush is Bad, so Obama is Good.

Obama claimed to be all about transparency, despite the huge number of fallacies he threw into this speech in order to cover up true examination of his actual arguments, which are, at root, extremely weak.

Activist Liberty

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There's been a concerted effort over the last few years by liberals to define "judicial activism" such that it has no real meaning: it is only defined by your interpretive perspective, or worse, simply by the difference between your own opinion and another.

"Judicial activism" means, to me and most people I run into, to ignore the law and substitute your view of what the law should be. It is to engage in the legislative function, not only in striking down constitutional laws or upholding unconstitutional ones, but in crafting the law to reach particular extra-constitutional outcomes. It has nothing to do with the relationship of one opinion to my own, but the relationship of the case to the law and the purpose of the court to determine not what the law should be, but what it is.

I am going through Justice Stephen Breyer's book Active Liberty. This book is astonishing in that Breyer actually and unabashedly makes the argument for why he sets aside what the Constitution says, in both text and intent, to serve what is to him a greater good. His basic premise is that the purpose of the Constitution is to promote certain ideals, and that rulings of constitutionality should heavily weigh that purpose against what the Constitution actually says.

He really does this. I am not yanking your chain here.

For example, Breyer defends his support of campaign finance reform that restricts the freedom of speech by saying that in doing so, he is supporting the "purpose" of the First Amendment to encourage a national discussion; that by limiting the speech of wealthy people who normally dominate the discussion, he promotes active participation in that discussion by those who might not have the means to purchase such opportunities to speak.

There can be no doubt that Breyer is explicitly pushing for the restriction of political speech, which violates both the letter and the clear intent of the Constitution. He does not really question this; he simply says the restriction is in line with the Constitution's purpose.

He contends that restricting speech in this way is justified because it increases equality of speech for everyone else. Nevermind that such "equality" was not an obvious purpose of the First Amendment or the Constitution. Nevermind that there's no serious reason to believe that equality is enhanced, or discussion encouraged, by these restrictions. He believes that will be the outcome, and so that is how our justice-legislator rules.

The oddest part about Breyer's book is that he actually believes he is following a course of "judicial modesty." He thinks that by refusing to follow the law, by substituting for the law his own enlightened views of how well a case fits in with the purpose of the law in reaching particular outcomes, he is being ... modest. I find it to be precisely the opposite.

Breyer sets aside the text and intent of the Constitution in order to push his vision of its purpose, trying to produce a particular outcome he favors, that he believes is more in line with that purpose.

Call this what you want. I call it judicial activism. I call it ignoring the Constitution. I call it injustice. I call it hatred of the rule of law.

President Obama calls it empathy.

Save Performance Audits

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One of the best ways to save money in a downturn is to identify where the government is wasting money. You do this through performance audits. We have a state auditor whose job it is -- as defined by the people recently -- to do just that.

So our legislature, facing a deficit of nine billion dollars, should encourage the auditor to do his job, right?

The legislature apparently doesn't see it that way, and have cut $29 million from the performance audit funds, 3/4ths of the total fund, preventing State Auditor Brian Sonntag from identifying hundreds of millions in waste.

The Evergreen Freedom Foundation has been all over this, and now The Olympian has weighed in.

Will Governor Gregoire veto it? We'll see ...

Snohomish County Councilman, and current Chairman, Democrat Mike Cooper -- himself a former firefighter -- believes that increasing the initial cost of homes by thousands of dollars, and the cost of maintenance of those homes by hundreds or thousands more over their lifetimes, is an acceptable thing to force on homeowners in the county. (Ultimately, the proposal was not acted on.)

I am not sure why anyone would be in favor of this; anyone who wants the sprinklers and can afford them, can get them. Why force it?

Regardless, it's one thing to believe that the government has a right, or obligation, to force their views of cost vs. safety onto consumers. It's another thing to be a complete jerk about it.

KING5 had better video than this on May 6, the date of the public hearing, but I can't find it on their web site. So I pulled this off the Council's video web site. Here's the lovely transcript of an exchange (starting at about 46:20) between Cooper (on the far left of the council table) and David Toyer, a representative of the Master Builders Association (just off the screen to the left, at the podium).

This clip is just a small portion of the entire discussion.

Cooper: "So, my question for you and your organization is: what is the acceptable kill rate? Because for me and the people that are sitting out here who do the job [of firefighting] every day, it's zero. For the Master Builders, what is the acceptable kill rate? Before you would put a price on a human life?"

Toyer: "I think you're looking at this in the wrong way, Mr. Cooper. I think you're looking at an issue which is: what is the consumer choice on this? We all have when we, anything we choose, whether it be life insurance, car insurance, house insurance, we have options that we can choose. Now there are things at the state level, they're like, put mandates on medical insurance, that certain coverage be provided.

"But it's at what cost and what level of safety does the individual want for themselves? And I think you need to leave it to the choice of the individual, and it shouldn't be mandated by this county council."

Cooper: "So the Master Builders' position is, it's acceptable for people to die in fires."

I hope Council District 3 is proud of their representative.

Despite news reports, Maine has continued its policy of maintaining discrimination against marriages by consensual adults. The state has continued the false assertion that marriage is primarily about procreation. It has sustained this discrimination for only one reason: cultural and societal bias.

I am, of course, talking about incestuous marriage. Most news reports have falsely stated that Maine's newly signed law allows marriage between "any two persons." But there's a big exception (other than minor and mentally disabled persons): "A person may not marry that person's parent, grandparent, child, grandchild, sibling, nephew, niece, aunt, uncle or first cousin."

If the intent of this were only to prevent procreation, then it would add, "... if there is any chance of the couple procreating." So same-sex incestuous marriage, or incestuous marriage where the female has reached menopause, should be allowed. So clearly, the intent is not about preventing such procreation.

So the bill itself, in maintaining discrimination against incestuous marriage, undermines the claim of the gay marriage proponents that social stigma is an insufficient reason to maintain discrimination.

This is not about the principle of equal rights. People who do things for the sake of principles are consistent in the application of those principles whenever possible, and there can be no doubt that the principles apply here to incestuous marriages just as much as gay marriages, as long as procreation is taken out of the equation.

Abigail Adams, in the late 1700s, pointed out to her husband John the hypocrisy of claiming all people inherently have liberty, while maintaining the enslavement of a race of people, and subjugating the rights of women. Of course, to the extent her husband agreed, the Union hung in the balance. No such danger faces us today: so where are the gay marriage proponents speaking up for the rights of same-sex siblings to marry?

I Won a Steering Wheel

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I like to play Gran Turismo 5 Prologue on my PS3, and so I got a steering wheel for it: a Logitech Driving Force GT, designed for use with the game. Well several weeks ago, Logitech held an online contest and the fastest times got free steering wheels.

I didn't get one of the fastest times, but I won one of the weekly random drawings.

Hooray! A random (or pseudorandom) number generator picked me!

But I won the steering wheel I already own. Craigslist awaits ...

On This Week this week, Senator Leahy said the Senate of course should not filibuster Supreme Court nominees. That's just something they don't do! So George Stephanopolous asked, "You filibustered Justice Alito, didn't you?" Leahy said they didn't. George pressed him on it, and he explained, well, we had a cursory vote we knew was going to fail.

No, the Democrats actually had a filibuster. There was a cloture vote to end the filibuster, and everything. And worse, Leahy voted against cloture (for continuing the filibuster), but now he says "we never filibuster justices of the Supreme Court."

Except when they are Republican nominees, apparently.


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It seems like the respective political parties have their opinions about Arlen Specter totally backwards.

The Republicans are saying Specter left for his own self-interest in winning the primary in 2010. The Democrats are saying Specter left because the party has shifted too much to the right.

They're both right, of course, but they are both emphasizing the wrong thing: it helps the Republican Party to point out that Specter left because the party is shifting to the right.

In 2004, Pew says that 30 percent Americans self-identified with the GOP, while 33 with the Democrats. In 2008, the Democrats were up to 36 percent, and the Republicans down to 25 percent. So far in 2009, it's 35 and 23: the Republicans have lost 7 percent, while the Democrats have gained two percent.

Of course, it's only a poll. But it is in line what I see every day: far more conservatives who refuse to identify as Republicans, than liberals who refuse to identify as Democrats. And these conservatives refuse to so identify themselves almost entirely because they see the GOP as too far to the left, mostly on issues of spending and federal power (hence, the Tea Parties).

The problem the Republicans have is not that the country is shifting to the left, but that the party itself is perceived to have shifted to the left. The way to regain that is to move back to the right on spending, on personal liberty, on personal responsiblity, on property rights, and so on.

The Democrats don't seem to understand this, because they case they are making for Specter is only helping the Republican Party. Most non-Republicans on the right hear Specter say the Republican Party is too far to the right for him, and it only makes the GOP more appealing.

In 2010, these non-Republicans are going to vote for the candidate who supports the aims of the Tea Parties -- which are essentially Republican platform planks, that the GOP has disregarded in recent years -- and many of these candidates will win, in no small part thanks to Specter and the Democrats who think it hurts the Republicans to push the party to the right in the collective mind of the public.

<pudge/*> (pronounced "PudgeGlob") is thousands of posts over many years by Pudge.

"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."

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