A stunningly dishonest piece of advocacy writing about the Supreme Court

In an earlier post, I pointed out how much more informative talk radio is than its MSM counterparts (including NPR), because the former has a discursive, adversarial style that allows ideas to be developed and aired, while the latter works within a tight format aimed at pushing a specific (usually political) viewpoint. Occasionally, though, even the narrow MSM format is insufficient to repel an opposing viewpoint, and those situations see the media plunge into outright dishonesty.

The list of media propagated canards is a long one, but I’ll confine myself to Rathergate and the Fauxtography scam, and stop there. 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 in mind the Supreme Court 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 runs from the date the employer makes the decision to discriminate, not from the last paycheck written as a result of 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 has 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 either 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 the precedential cases and draw different conclusions or find entirely different cases to act as precedent. The dissent 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.


28 Responses

  1. Bill’s Nibbles, Open Post

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  3. Wow Toobin a lawyer and journalist ! There is still hope for Bookworm ! What next CNN ? Wow !

  4. Thank you, Book.

    After reading your analysis I popped over to NOW to see what they had to say. Once I sifted through all the invective and hyperbole I realized that they said exactly…nothing. Not that I expected much…but I’d think that with two issues (wages and wombs) so near and dear to the hearts of NOW…they’d provide something with substance. They apparently have a template…and just plug in court decisions and dates. Everything else remains the same.

  5. The problem is that most liberals, who haven’t actually read Roe v. Wade in years, have said it so many times that they have come to believe that Roe established “a woman’s [utterly unfettered] right to choose.” It didn’t, of course, but I’ll bet Toobin (as most liberals) honestly believes it did and would be shocked if he actually went back and re-read Roe.

  6. It’s definitely true that Roe allowed states to progressively limit the abortion license as a pregnancy progressed.

    But a decision issued the same day (Doe v. Bolton?) defined a mother’s “health” in such a broad way that virtually EVERY attempted limitation by states has been swept away. If a mother simply hints at being depressed about the pregnancy, then even in the third trimester, the SCOTUS has deemed that she cannot be denied, based on the “health” exception. In fact, a lot of the opposition to the ban on partial birth abortions has been predicated on exactly this health exception.

    Or do I have this wrong?

  7. I don’t know, Earl. You’re probably right, because the practical effect of Doe since it’s publication has been unlimited abortion. But even if that is correct, it’s entirely untrue to say that this is the first time a Court has ever placed the State’s rights over the fetus’ rights. Whatever the States have done, and however, the Court has defined a woman’s health, the Supreme Court has never backed away from Doe’s trimester analysis.

  8. I have said here before, and naturally will agree with DQ: 90% of the people (not just liberals) in this coiuntry have not the slightest idea what Roe actually says. It’s received wisdom, it’s one of those things everyone is quite sure they know, but damn few actually do.

    But it serves as a cautionary tale about the American people, too. Be careful what you wish for: once the door is open an inch, it might as well be open as wide as it goes, all restraint will be over, and we’re off into the high grass. Open is open, and whether an inch or a yard is apparently not relevant to us as a people.

  9. Hi JJ,

    That’s the problem with political discourse in this country. Pro-lifers are convinced that the slighest opening of the door (say, permitting abortions for victims of rape whose lives are threatened by the pregnancy) will ultimately lead to unfettered abortion on demand. Pro-choicers believe that the slightest restrictions on abortion will ultimately lead to a complete ban on abortions and coathangers in back alleys. No wonder it’s hard to find middle ground.

  10. I have problems with Don’s position, in so far as it is a short and general description of events. The problem is thus short and generally about the pro-lifers being convinced of the slightest door opening theory.

    First the deductive principle, which is short. In short, the pro-lifers may be convinced to care about other people on a humanitarian basis, given that their stance is based upon recognizing life and its dignity. It’s a principle, and using deduction, it is easy to see that this principle can be used to convince pro-lifers that other people may need humanitarian treatment as well, not just the fetus.

    For the Left, however, getting them to view other people as human is…. not exactly a likely thing to occur. Even if you tried very hard. The deductive analysis is simple, the Left doesn’t have any principles, at least not concerning choice or sanctity of life or prosperity or what not.

    So, let’s get on the personal experience side of my argument, which requires me to quote in complete, John Ross’s two articles.

    I have problems with Don’s position, in so far as it is a short and general description of events. The problem is thus short and generally about the pro-lifers being convinced of the slightest door opening theory.

    First the deductive principle, which is short. In short, the pro-lifers may be convinced to care about other people on a humanitarian basis, given that their stance is based upon recognizing life and its dignity. It’s a principle, and using deduction, it is easy to see that this principle can be used to convince pro-lifers that other people may need humanitarian treatment as well, not just the fetus.

    For the Left, however, getting them to view other people as human is…. not exactly a likely thing to occur. Even if you tried very hard. The deductive analysis is simple, the Left doesn’t have any principles, at least not concerning choice or sanctity of life or prosperity or what not.

    One down, one more to go.

    Last week I told you about my interview with the NARAL women when I was running for Congress in 1998. This week I’ll tell you about my meeting with the pro-life folks during the same time period.

    The pro-life representatives I met with at the VFW hall were just as adamant about their issue as the NARAL reps had been the day before. Abortion is murder, they told me more than once. Many wanted a federal law saying as much, and wanted doctors performing abortions to be tried for murder.

    “Let’s talk about murder,” I replied. “Remember Susan Smith, the mother who decided to get rid of her two young sons in 1994? She strapped them in their carseats in the back of her Mazda, rolled down the windows, put the car in gear, and let it drive itself into a South Carolina pond, drowning the two boys. She then reported the vehicle carjacked, with her two boys in it. The truth soon came out, and Smith was convicted of murder and sentenced to life in prison. Do any of you think that verdict was excessive?” None did, and several in the group said they felt Smith deserved the death penalty.

    “New question: Suppose Susan Smith had instead had an abortion when she first learned she was pregnant? And suppose she did it by obtaining on the black market the RU-486 “abortion pill,” so that no doctor performed the abortion procedure. Should she be serving life in prison then? Would you have me introduce a federal bill to make this a murder?” Silence from the group. “Keep in mind that the RU-486 pill induces a miscarriage. Given the fact that RU-486 is commonly available in many countries like France that Americans freely visit, it is available here on the black market, without a doctor’s supervision. If abortion becomes a federal crime, as my opponent proposes, what does that mean for women who want to get pregnant, do so, but then have natural miscarriages?” I waited to see if anyone would connect the dots. In a few moments, one did.

    “Probable cause,” a man said under his breath. “Federal agents investigating miscarriages.” Involuntary looks of distaste appeared on all faces.

    “Many of you might think that farfetched,” I told them. “But do you really think we should count on federal agents to avoid investigating clear probable cause, particularly when they can pump up their felony arrest records with non-violent ‘criminals’ who pose no physical risk to them? You all know my position on the Federal Government’s ever-increasing power over us.” I held out news clippings about asset forfeiture excesses and other cases where lives had been ruined by federal abuse of power.

    “Forget Susan Smith,” I said, wanting to really get their attention. “I just read a biography of Marilyn Monroe.* Do you know how many abortions her biographer says she had during her life?” The looks on their faces said they dreaded hearing the answer, but had to. “An even dozen.” Every person in the room winced, but I continued. “Would you have a woman like that executed for serial murder?” Heads shook around the room.

    “Look, law without punishment is merely advice,” I pointed out. “My opponent wants to make abortion a federal crime, but I won’t support a law if I’m not willing to have it enforced on someone who breaks it. I’m not willing to charge a woman who has an abortion with murder. Are you? What do you really want me to do on this abortion issue?” The answer surprised me, in that I thought it was very reasonable, which was something I had not expected from this group.

    “We think abortion is wrong,” one man finally said. “Not as wrong as drowning your toddler, maybe, but still wrong. And the worst part of it for us, is that we’re being forced to help make it happen. Our tax dollars pay for this evil.”

    “On your second point we’re in complete agreement,” I told the man. “The federal government should use no public money to pay for or subsidize abortions, and I’ll vote that way every chance I get.” For the first time since our meeting had started, a bunch of people actually smiled at me.

    I had gone in to that meeting prepared for real hostility. I came out with some new friends, and a surprising number of people asked for my business card. These folks told me they liked the way I analyzed things. They wanted me to work with them on their investments if I didn’t end up in Washington. Most of them probably wouldn’t vote for me, they admitted, because I wasn’t straight down the line on the pro-life issue, as my opponent was. But talk to my daughter, one of the men who had asked for my card told me. She’s just out of college and not as firm on the issue as me and my wife, you could probably get her vote.

    Overall, I thought that was about as good an endorsement as a candidate could want.

    Certainly it is hard to find a middle ground, but not for the reasons Don listed.


    Number 8 and 7 are the articles reproduced here.

  11. Incorrect copy and paste for the first article.

    In 1998, I was the Democratic candidate for U.S. Congress in Missouri’s 2nd District. (I ran as a pre-Roosevelt Democrat, which is what I am: a Democrat without the Socialism.) Like all candidates campaigning for office, I met with a variety of groups, each of which wanted to know where I stood (and therefore how I would vote) on their pet issue.

    Among single-issue voters, few concerns generate as much passion as the abortion debate. When the Missouri chapter of NARAL (National Abortion Rights Action League) wanted to meet me, I knew I was in for an interesting afternoon.

    The two women from the organization that met me were polite, if humorless. They seemed to see everything in all-or-nothing terms. For example, they were happy when I told them I felt the federal government should stay completely out of the abortion issue, until I told them that that included funding as well as prohibition. “Then poor women will suffer,” they proclaimed indignantly.

    “There are poor women who suffer in abusive marriages,” I pointed out. “Should the federal government pay for divorce lawyers for poor women also?” This question was met with uncomfortable silence. I reminded them that when the federal government subsidizes something, it earns the right to dictate terms, which you may not like.

    They were equally unhappy when they saw I was none too keen on allowing minors to have abortions without parental knowledge. “An abortion is a medical procedure,” I pointed out. “Is there any other medical procedure you think a minor should be allowed to have without her parents’ knowledge? Liposuction? Collagen injection? How about mole removal? Isn’t that a pretty low-risk and low-cost procedure? Do you honestly expect me to champion a minor’s right to get a fetus removed from her body without her parents’ knowledge, but not a mole?” The NARAL women had no good answer for that.

    At about this time, I had answered all the questions they’d been throwing at me, and I couldn’t help feeling that these people hadn’t thought their positions through. Unconsciously, I lapsed into teaching mode. “Help me understand something here,” I said. “If I’m elected, and I’m going to vote the way you want, I’m going to have to stand up and defend your position. What,” I asked, “is the underlying fundamental principle for your pro-choice viewpoint? Is abortion a “perk” you want women to have, like government-funded daycare, or is there a basic principle involved here?”

    One of the women gave me a look like I was an idiot child. “The basic principle is that the government has no business regulating a woman’s reproductive choices. In its simplest terms, ‘Keep your laws off my body.’” (This was exactly the answer I was waiting for.)

    “I see. So I assume you’ve joined forces with groups that want the government to keep its laws off of other parts of the body, besides the uterus?” This brought confused looks. “FORR, Freedom Of Road Riders, for example. They oppose mandatory helmet laws for motorcyclists. They feel the government should keep its laws off people’s skulls. I’ve met with that group, and being able to legally ride without a helmet is at least as important to them as being able to get a legal abortion locally is to you. Have you even talked to them?” They hadn’t.

    By this point, I realized our conversation was not typical for a candidate looking to receive an endorsement from a special interest group. I was sure they preferred me over my opponent, however, as he wanted to make abortion a federal crime (more about that in next week’s column.) Given that fact, I continued to talk about their philosophy. I asked if they opposed waiting periods for abortions. They did. A right delayed is a right denied, they reminded me. “So, have you talked to the gun rights groups, who also oppose arbitrary waiting periods for the same reasons you do, about joining forces?” They hadn’t done that, either. “Well, how about the cancer patients who want to use medicinal marijuana? That’s a ‘Keep your laws off my body’ issue. Have you talked to those people?” Again the answer was no.

    “You use the term ‘Pro-Choice,’” I said to the women from NARAL. “I realize that as an abortion-rights group, abortions are going to be your focus, but are you pro-choice on anything other than abortion? Of all the other rights that are under assault, are there any that you think are deserving of protection, or is legal abortion the only one?” They didn’t have an answer for that.

    When I left the two women, they had confused looks on their faces. I got NARAL’s lukewarm endorsement, which I expected, but I wonder if I got them to think about the idea of consistent principles.

    Keep your laws off my body, they said. I went easy on them. If I’d really wanted to see smoke come out of their ears, I’d have asked where they stood on prostitution.

  12. Thanks, Ymar, for the interesting accounts. They validate both of the points I’m made in comments recently. On the one hand, the conservatives were open to having their ideas challenged and engaged in honest debate. The liberals were simply confused by it. On the other hand, while the pro-lifers may have changed their position on the appropriate punishments for women who have abortions, they didn’t change their position on the basic principle at all. As Ross put it, “Most of them probably wouldn’t vote for me, they admitted, because I wasn’t straight down the line on the pro-life issue, as my opponent was.” They might not want to give MM the electric chair, but they were still “straight down the line” on the basic issue.

    If you want another example, look at gun control, where many conservatives oppose every registration or limitation for fear that it will be the first step toward taking their guns away from them. Conservatives are much more open to honest debate that liberals, but they are just as afraid of the slippery slope as liberals are.

  13. My position is that pro-lifers are not equivalent to pro-choicers, in the situational context that you setup, Don. You say the deadlock or lack of compromise is due to the resistance to change on both sides, but that is not true.

    I don’t see how you can redefine your two sentences and the conclusion in your original comment up above, to mean that conservatives are open but their opponents are not. You didn’t mention anything of that, and the format you chose wouldn’t have included any sort of special status for one side over the other.

    Conservatives are much more open to honest debate that liberals, but they are just as afraid of the slippery slope as liberals are.

    Well if that is your fundamental argument that ties every together in a consistent whole, then surely you must realize that the problem of deadlock is not due to the fear of the slippery slope. It is due to the unrealistic fear of a manufactured threat (slope).

    If you admit that conservatives are open to reasonable arguments, then what is there for the Left to fear concerning abortion? Nothing except manufactured lies and psychological manipulation, in order to craft ideologically pure legislation via some kind of religious dogma format.

    If both sides were reasonable, there would be no deadlock and lack of compromise, but you cannot really expect the reasonable folks (like Israel) to compromise with unreasonable folks (Palestinians). Not if you admit that conservatives are reasonable and humane, principled upon things that don’t shift with the political winds, while admitting that the Left isn’t based upon principle.

    The Left is going to take every gun away from law abiding citizens. That is a historical and analytical fact, Don. It is not some nebulous fear comparable to Jewish World Domination, American Imperialism, or irrational pro-life fanaticism.

    Because fears based upon threats that aren’t real cannot be resolved or dealt with, Don, you cannot compromise with such fears. Because those fears are not based upon any event in reality, and so there is nothing you can offer them in the real world that would alleviate this fear. That’s why I don’t think it matters concerning deadlock whether one side or the other believes in a threat of one shape or form. What matters is if that threat is real and how the group will deal with that threat.

  14. Hi Ymar,

    Actually I was referring both to the above comment and my previous comment, “Bookworm’s point, and it is an excellent one, is that liberals (as reflected in liberal talk radio) practice ‘partisan conformity’ and ‘identity politics’ while conservatives (as reflected in conservative talk radio) actually engage in the give and take of political debate and the exchange of ideas. She’s right.” Ross’s example illustrates both that and the above comment.

    In your comment, you merely justify conservative intrasigence. But that just proves my point further. Even the most reasonable Americans have lost the ability or willingness to compromise. Honest political dialogue is rare and issues fester, rather than being compromised. It’s hardly a wonder our society is breaking down. “United we stand and divided we fall” and right now we are deeply divided. And falling.

  15. It is not actually a justification, in that the conservatives, of whatever stripe, are right because they are rational. But rather that the conservatives can admit that they are wrong precisely because they are reasonable and they have a political position independent of their self-image and physical survival. They don’t often percieve an attack on their political positions as an attack on their person (self-image).

    Since you were speaking about compromise, compromise is about admitting that you might be wrong or that you might not get everything your political position demands. Thus compromise is only justified in the presence of reason, not fanatical self-defense of the self-image.

    If the Left cannot use reason then… they contribute to most of the deadlock in lack of compromises. Certainly Republicans may be unreasonable at times, but it is not a trait actively promoted by their party. Not like it is for Democrats.

    Even the most reasonable Americans have lost the ability or willingness to compromise.

    But whose fault is that? The fault of those who are reasonable or the fault of those who are unreasonable?

    You cannot stand united by trying to stiffen spit, Don. Even reason has its limits when faced against true adversity.

    We may be divided and falling, but the question of why (philosophical) and how to correct that (pragmatic based upon the philosophical premises) is just as important as recognizing that there is a problem. Because if you mischaracterize the problem, then how can you fix it? If you think the problem arises from a source that isn’t true, then much effort may be lost going down a dead end.

    Actually I was referring both to the above comment and my previous comment,

    I do remember that comment, even though it was in another thread in reply to Pastor.

    Fundamentally we agree on the same mix of foudations, Don, except your conclusions go down a different path. You believe we have to stand together or become divided and fall. Yet I think that standing with those without reason and too weak to recognize their own obsessions, will divide us even further. Because it is a zero sum equation, nobody benefits. The Left will never feel safe about Bush, regardless of how many times Bush sides with Kennedy and his co-sponsored bills. The Right will always be undermined and face Gordian Knots via their use of logic. This doesn’t seem like a potential path to a united future, but a more fragmented and dysfunctional social contract and government partnership.

    My solution is to either ignore the Left and try to educate a newer better generation of folks to replace them, or try to change the Left in order to extinct certain Leftist brainwashing and conditioning that the Left has suffered under for awhile.

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  19. […] members are as follows: As I noted, I’m honored to have received first place for my post A Stunningly Dishonest Piece of Advocacy Writing About the Supreme Court, in which I wrote scathingly of the way in which The New Yorker’s legal writer, Jeffrey […]

  20. […] its picks for the most outstanding posts of the preceding week. The winning Council post was Bookworm Room’s post, “A Stunningly Dishonest Piece of Advocacy Writing About the Supreme Court”. This is a […]

  21. 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. Exactly, BW. A point lost on many (most?) people- including legislatures. The left returns to the mistaken notion that it’s the Court’s job to right the legislative ‘wrong’- that is, to rewrite and improve the law- acting as a supreme editor. It’s a total misunderstanding of the Court’s historical function.

  22. I agree with kreiz. It is not the Court’s function to rewrite the law when the legislature has failed to address an issue or put some unintended ambiguity in the legislation as written. The left also likes activist judges because those judges award them the victories on issue they cannot achieve electorally. I quote Paul Starr 02/03/2005 from The American Prospect: “The great thing about legal victories like Roe v. Wade is that you don’t have to compromise with your opponents, or even win over majority opinion.” When the courts usurp the legislative functions and advance policy goals that skews the political process and IMHO diminishes not expands democracy and undermines representative government. Of course this is fine with the left: what they fail to achieve with votes or majority opinion they can win in court.

  23. […] one of my own posts for consideration in the upcoming nominations process. Here is the most recent winning council post, here is the most recent winning non-council post, here is the list of results for the latest vote, […]

  24. […] one of my own posts for consideration in the upcoming nominations process. Here is the most recent winning council post, here is the most recent winning non-council post, here is the list of results for the latest vote, […]

  25. […] editorial silence may be because, as I pointed out a couple of weeks ago, the opinions are in fact entirely consistent with existing law and existing Constitutional […]

  26. […] as may be. I tend to distrust Toobin ever since I caught him in numerous lies and misrepresentations about a series of Supreme Court decisions. Still, even assuming he’s correct, it turns out that voter fraud strikes very close to home […]

  27. Obama will change the face of the Supreme Court.
    Just look at the current cow he just appointed.
    She only thinks “wise Latina ladies” can make important and relevant decisions.

  28. […] At the Corner, you can read about the way in which Jeffrey Toobin misinforms New Yorker readers (as if the readers of that magazine need more misinformation in their lives).  That’s another thing that doesn’t surprise me, as I discovered years ago that the much admired Toobin (I used to admire him myself, because he’s a clear writer, although a less than clear or honest thinker) has been a font of misinformation before. […]

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