Judge not lest ye be judged

People who know me in person also know that nothing is more likely to send my blood pressure spiking than talk about judges.  (To any of my readers who are in fact judges, I’m sure you’re the exception to anything nasty I might be about to say about judges.)  I dislike judges, something that is almost certainly a product of having practiced law in the San Francisco Bay Ara for the entire length of my career.

In the Bay Area, the vast majority of judges act as if they consider their judicial robes the equivalent of a priest’s vestments.  This means that, rather than being constrained by the law, they believe that they have some sort of direct connection, not to God (whose laws exert moral control over the priest), but to some higher liberal morality located somewhere around each judge’s own navel.  The practical result of this is that rulings almost invariably favor politically correct parties over legally correct parties.

This lack of judicial temperament is on its most blatant display in the trial courts.  It’s been about 15 years, but I still haven’t recovered from the trial court judge (now an appellate court judge) who said to me “I don’t care what the law is; I think there’s something here.” Although few judges were as open about their reluctance to apply the law, the deceit that emanates from the bench to justify manifestly wrong decisions indicates that there are a lot of judges out there who “don’t care what the law is.”

The appellate courts are not immune — which is unsurprising, I guess, given that they’re made up of former trial court judges.  Several years ago, I worked on a case that saw the justices lie about the underlying facts in order to achieve their preferred outcome.  This was a particularly vicious little thing to do, since the case (which was published) looks perfect on its face, with stated facts inexorably driving towards an inevitable legal conclusion — except that the stated facts were false, and the underlying record proved their falsity.

The other day, an opinion came down that saw the judges being a little less clever.  They simply lied about the law itself.  Worse, it was a simple enough lie to track down, because they quoted from a case to justify their holding — except that the case from which they quoted said the exact opposite of the principle they claimed to derive from that earlier ruling.  Since they’re appellate judges, which is an office reserved for quality lawyers, I’m going to acquit them of carelessness and stupidity, which leaves only malice.

All of the above griping is a lead-in to an article Thomas Sowell wrote saying that, if judges are going to act like politicians, its time to treat them that way, and vote them out of office:

Arrogant politicians who do this [pass laws that directly contravene the Constitution] are dismantling the Constitution piecemeal — which is to say, they are dismantling America.

The voters struck back, as they had to, if we are to keep the freedoms that define this country. The Constitution cannot protect us unless we protect the Constitution by getting rid of those who circumvent it or disregard it.

The same thing applies to judges. The runaway arrogance that politicians get when they have huge majorities in Congress is more or less common among federal judges with lifetime tenure or state judges who are seldom defeated in elections to confirm their appointments to the bench.

The problem, of course, is that judges function under the radar. Even in elections, voters usually know nothing about them. When it comes time to mark the ballot, the voters either abstain or they pick a name at random. As often as not, the judges (at least in California) run unopposed, which means that votes are irrelevant.

If judges would act like judges — if they would be impartial arbiters ensuring that the Constitution controls overall and that constitutional laws are enforced as written — I would have no problem with lifetime tenure which, in theory, keeps the judges out of the political fray and, therefore, makes them less likely to engage in the type of favoritism that would ensure them reelection.  However, decades of liberal ideology in the court means that judges are not impartial arbiters.  They are, instead, political players who need to be called to account.

Cross-posted at Right Wing News

Random wonderful stuff

Just random stuff that’s so good you shouldn’t miss it:

Shirley Sherrod’s been on a roller coaster.  Thanks to a video snippet that Andrew Breitbart posted, she got pilloried as the face of Leftist/NAACP racial intolerance.  When it turned out the snippet was out of context, she got sanctified as the face of true racial harmony.  Now, though, that we know who this formerly anonymous government worker is, we’ve learned that she is indeed just another Leftist race-baiter, that she’s been complicit in government fraud, and that she has a long history of much badness.  Turns out that Breitbart managed to target precisely the right person to show what the Left is like.

May I recommend to you — no, may I urge upon you — Wolf Howling’s fabulous post regarding the judicial activism on display in Perry v. Schwarzenegger?  As a conservative, whether one agrees with gay marriage or not, the true issue is whether judges should be allowed to impose their values, wrapped in an ostensible cloak of legal reasoning, on citizens. Or, as Wolf Howling more eloquently says, “gay marriage is not an issue of Constitutional law for the Courts, but rather one of social policy for the people of the fifty states and their state legislatures to decide.”  A nice companion piece is James Taranto on the same subject.

And a simple economics video for you (h/t Danny Lemieux):

Another one to add to your reading list is Michael Totten’s article about the way in which the media, which never steps outside of its small Leftist bubble in Israel, grossly misrepresents that country.

I’ve never liked David Letterman, whom I’ve always found self-centered and mean-spirited.  His periodic forays into actual wit could never compensate in my mind for the essential ugliness of his character.  According to Ed Driscoll, he’s only gotten worse, attacking conservatives with “sclerotic” glee.  (Isn’t “sclerotic” a great word?  I fell in love with Ed’s post practically on the basis of that word alone.)

Everything you needed to know about the Dems, run through the Kagan filter

Kim Priestap, who blogs at Up North Mommy, got an impassioned email from the Democratic Party, raving about Elena Kagan.  Does it rave about her brains?  No (although it mentions as an aside that she’s “among the best legal minds this country has to offer,” which is a depressing comment about legal minds in America).  Her legal expertise?  No.  Her judicial experience?  No (because there is none, no matter how one puffs up her limited management experience and some government work).  Her looks?  No, no and no.

Instead, the email is very clear about Kagan’s single most important virtue, along with a little subsidiary fillip to add to the Progressive excitement:  She’s a woman and, even better, she’s almost black because she once worked for a black man.

Read the following and tell me if the whole point of the Democratic euphoria isn’t that, after being the first female Harvard Law School dean, and the first female Solicitor General, she’s poised to become the third female Supreme Court justice sitting on the court, and one who is black by association, thereby raising both the female and black liberal quota on the Supreme Court:

Have you been watching the hearings? The nomination of a Supreme Court justice is a special time in Washington, DC. The air tastes different — it buzzes with an electricity even the humidity can’t conquer — and even more so this time.

Elena Kagan’s nomination is special. It took us almost 200 years as a country to get the first woman on the Supreme Court, but now we’re on a roll! If Elena Kagan is confirmed, for the first time, we’ll have three women serving together. We’re still a far cry from parity, but we cannot allow the perfect to become the enemy of the good. We’re making progress, and Elena Kagan is great progress.

Over the past three days of hearings, she has conducted herself with poise, grace, rigor, and humor. She has won praise from liberals and conservatives — prior to her nomination and since. It’s no easy feat to become the first female dean of Harvard Law School and the first female to serve as solicitor general. Her illustrious resume also includes periods as associate White House counsel and deputy policy director under President Bill Clinton, as a teacher at the University of Chicago Law School, and as a law clerk for Justice Thurgood Marshall.

Lend your name to help us show that the American people back Elena Kagan’s nomination.

Let there be no doubt: She earned this nomination. It’s not simply because she’s a woman, or because she’s among the best legal minds this country has to offer. I know firsthand the strength of Elena’s character and am certain she is the best choice.

The Supreme Court nomination process, like almost any political contest, is like a food fight where the nominee does his or her best to stay clean and dry while everyone else in the room slings Sloppy Joes. I’ve watched this before (recently) and there’s nothing the Republicans won’t do to take down a nominee chosen by a president they’ve vowed to obstruct at all costs.

Republicans are attacking her credibility, her credentials, and her character. They’ve become particularly focused on her work as a clerk for Justice Marshall, seemingly maligning his long and respected service to our country. As chief counsel to the NAACP, Justice Marshall argued the case of Brown v Board of Education. Later he would become the first African American to serve as solicitor general and the first African American to serve as a justice of the Supreme Court. We would be better off with more justices like Marshall, and Kagan’s work for him should be a feather in her cap, not a thorn in her side right now.

The other side is grabbing at straws, with nothing to support their groundless accusations, but it doesn’t stop the attacks. The Democratic Party is pushing back to ensure that this incredible woman gets a fair hearing, but we must also show that public support for Kagan is overwhelming.

Elizabeth Cady Stanton and Susan B. Anthony are rolling in their graves.  I think Martin Luther King is also starting to wiggle around in there.  This is not what they envisioned when they campaigned for equal rights for women, or demanded that people be measured, not by the color of their skin or bra size, but by the content of their character.  These trailblazers wanted women and blacks to enjoy full inalienable, constitutional, and legal rights in America.  For women and minorities to be valued just as numbers on some quota list is heartbreaking and as dehumanizing in its own way as the ancient status quo.

I have nothing more to say.

Elena Kagan

You’ve probably noticed that I’ve had nothing to say about Kagan.  There is nothing to say.  She’s a bright, often charming, lady from the far Left who, entirely separate from her anti-Constitutional ideology, is grossly unqualified in terms of professional experience and intellectual heft to be a Supreme Court justice.  She is, in other words, the perfect Obama nominee.

Kagan does get kudos for her moral support for Israel (she’s open about supporting that nation and I applaud her for that), but even as to that, I’d wait before giving her a free pass.  After all, a lot of Leftie Jews think that the best way to support Israel is to yield completely to all Palestinian demands.  (Think Tacitus.)

A leftist guide to mis-defining terms when it comes to Kagan

The American Prospect has written a little guide for its readers explaining why Republican attacks will fall off Kagan like eggs off Teflon.  You and I know that they won’t matter because of the Democratic majority, and maybe the American Prospect knows that too, because its defense is lazy.  One aspect of the defense, however, caught my eye, and I wanted to share it with you:

She’s an activist.

Republicans have pointed to two things — Kagan’s clerkships for Thurgood Marshall and liberal judge Abner Mikva, and her admiration for Israeli Supreme Court Justice Aharon Barak, whom she praised as a “judicial hero” — as evidence that she is a judicial activist who tailors her reading of the law to whatever result she wants to achieve. Criticism of Marshall, though, isn’t likely to take Republicans very far. As the first African American on the court, he’s a largely unimpeachable figure. Democrats will also note that some conservatives have expressed admiration for Barak, including Justice Antonin Scalia, the current intellectual leader of the conservative wing of the court.

This kind of criticism would offer an opportune moment for Kagan to provide a liberal rebuttal to John Roberts’ hollow conceit about judges merely calling balls and strikes.

The Democratic response, though, will likely be a simple one. In terms of overturning precedent, this court is the most activist one ever produced. This may be effective, but it also reinforces the conservative canard that judges simply interpret the law as written rather than resolve the inherent and inevitable tensions between the principles and obligations outlined in the Constitution.

There are three arguments there.  The first argument is that, simply because Marshall was the first black Supreme Court Justice, nobody can criticize his approach to judicial interpretation.  It’s a closed subject. This is not an argument, of course.  It’s the absence of argument.

The second argument is that the mere fact that Barak may have admirable traits means that he is off limits for criticism when it comes to his approach to judicial interpretation.  Again, this is simply a way of preventing intellectual discourse, and shutting down argument ab initio.

The third and final argument is that, because Roberts’ court is the most activist ever, no one can criticize Kagan on the ground that she might be an “activist.”  It’s this argument that intrigues me, because it shows how differently Lefties and Righties view the notion of judicial activism.

When conservatives think of activist judges, they think of judges who, at their core, are unconcerned with the limits the United States Constitution places on both federal and state governments in their relationship to the individual citizen.  Their decisions are decided by references to natural law, and penumbras, and African tribal decisions, and Israeli Supreme Court decisions, and emanations and emotions.  The Constitution, if it makes an appearance at all, is folded, spindled and mutilated into meaninglessness (there are those penumbras and emanations).

To the conservative mind, the anti-Constitutional bent of decisions made by liberal, or activist, judges, means that, to the extent a prior judicial decision violates Constitutional restrictions, that decision is invalid, and should be overruled.  In other words, merely because a case exists, it is not automatically valid precedent.  If the case was void ab initio, overruling the decision isn’t activism; it is, instead, a corrective act to reinstate Constitutional limitations on government.

To the Left, however, “activism” means any decision that overturns liberal precedent — even if that precedent is, in and of itself, unconstitutional.  It’s therefore no wonder the Left is dismayed by the fact that the Roberts court is tidying up the record and reversing preexisting cases enacted by activist judges.

“If judges want to legislate, then they should run for the legislature” — Christie strikes again

h/t:  Mike Devx

Tony Blankley tells Republicans in the Senate that it’s time to stop playing by the old rules

Gentleman of the old school might confirm Kagan.  Americans who believe in the Constitution and its freedoms must not:

Those [traditional Senate] rules [for confirming Supreme Court Justices] might be summarized as follows: (1) The president is entitled to an appointee who generally shares his views (i.e., a liberal president is entitled to a liberal justice; a conservative president is entitled to a conservative justice). (2) A nominee should be confirmed if he or she is professionally qualified and of generally good character. (3) The only exception to Rule Two is if the nominee’s views are provably and dangerously outside the mainstream of respectable thought.

By those rules, most people would probably conclude that Ms. Kagan is entitled to confirmation — although I and others would argue that her restricted views on freedom of speech would disqualify her under Rule Three above.

But I want to make a different argument in this column: The current rules are obsolete, having come into being at a time when the federal courts had not yet been consciously politicized. Today, liberal presidents attempt to use their appointments with the intent to systematically undermine — not uphold — the Constitution. And they do so because their vision of an ever-more-statist America is inconsistent with the Constitution’s fundamental purpose: to limit the size and scope of government.

And note, this is not a case of “both sides do it,” although it is true that conservative presidents look for nominees who will support original intent, strict construction or other methods of trying to adhere to the Constitution.

But — and this is paramount — because liberal justices tend to seek to undermine the clear intent of the Constitution while conservative justices try to hold the line: The result is an inexorable march toward undermining the Constitution, with conservative appointments functioning as mere temporary holding actions.

As a conservative, I respect Republican senators who wish to venerate well-established traditions. But now, in the fateful spring of 2010, those senators need to consider which of conflicting traditions they intend to venerate. They can either venerate the traditional rules of confirmation or they can venerate the United States Constitution — but not both.

I introduce, as Exhibit A on behalf of this choice, the provision in Obamacare that requires every American citizen to buy a health insurance policy. When the case challenging the constitutionality of that provision reaches the Supreme Court (as about 20 state attorneys general are currently attempting to accomplish by litigation), the government will argue that it is permitted under the power of the federal government to regulate interstate commerce.

They will be forced to argue that the mere inaction of an individual American citizen is an act of interstate commerce worthy of regulation. If that proposition is upheld by the Supreme Court — then we no longer have a limited government. The government would then have the power to outlaw and punish (by fine or prison term) any American’s decision not to exercise, not to vote, not to eat four servings of vegetables a day — any human inaction would be sanctionable under the Interstate Commerce Clause — and then adios liberty.

Elena Kagan Open Thread *UPDATED*

To no one’s surprise, Obama nominated Elena Kagan to fill the opening on the Supreme Court.  Many have pointed to the fact that she’s never served as a judge before as one of the main reasons Obama did so — she has no paper trail.  Since I have a generally low estimation of judges at the best of times, I can’t see that it’s too disastrous that she hasn’t sat on the bench.  This is especially true considering that being on the Supreme Court is an entirely different experience from presiding over a trial.  The skill sets just aren’t the same.

My primary sense of Kagan is that she is, first and foremost, a leftist politician.  The perfect evidence of this fact is her decision to kick the military out of Harvard Law School.  That was knee-jerk Leftism pandering to a base.

Funnily enough, the one thing I don’t carry away when thinking of Kagan is intelligence or, rather, I should say I don’t have a sense of a well-stocked brain, strong analytical abilities, and a quick mind.  Instead, she strikes me as something of an Obama clone:  a feral intelligence, unhindered by real knowledge, that is most adept at using Leftist political trends for self-advancement.

I’m sure she will be confirmed — since she’s got no record of anything to support not being confirmed — and I’m hopeful that the intellectual heft that Roberts, Alito, Scalia and Thomas bring to the court will overwhelm her.

UPDATE: Jennifer Rubin on the main problem with Kagan’s activism:

Her entire career has been spent either as a law school administrator or as an advocate (e.g., in a political position in the Clinton administration or as solicitor general). The question she was used to asking herself was: what do I want the law to be? But the business of judging is determining what the law is. Liberals see no difference — the law is what five justices say it is. But most Americans and a majority of the Court think otherwise. So the questions for her now are: how does she decide what the law is, what method does she use for separating personal conviction and constitutional interpretation, and does she have a view of the Supreme Court that is something other than as an uber-legislature? We’ll find out this summer.

Cross-dressing jihadists, disillusioned Leftists, and judicial madness

Sadie sent me a great trio of stories today, and I want to pass them on to you:

The UN wants to make sure that the Western nation’s efforts to protect themselves against cross-dressing jihadists (you know, those guys who don burqas to hide bombs) don’t offend transgendered individuals (who may or may not be hiding bombs).   Here’s a quiz for you:  On a scale of one to five, with one being not serious at all and five being very serious, answer two questions.  First, how serious do you think the huge number of socialist and or Islamist tinpot dictatorships that hold sway in the UN are about protecting transgendered rights?  Second, how serious do you think the huge number of socialist and or Islamist tinpot dictatorships that hold sway in the UN are about ensuring that Western democracies are able to defend themselves against socialist and Islamist tinpot dictatorships?

In the too little too late category, one more sign that the bloom is wearing off the Leftist rose when it comes to Obama worship.  Leftist stalwart Richard Cohen, reviewing a hagiographic HBO “documentary” about Obama’s election, has this to say:  “What’s striking about this inside look at Obama is how being inside gets you nowhere. It is virtually the same as being outside. What’s also striking about this movie is its lack of arc.”  In other words, Cohen is starting to realize, as we have long known, that with Obama there’s no “there there,” a problem made worse by the habit his most rabid fans have of trying to prop this empty suit up high on a pedestal.

Have I mentioned how much I dislike judges?  In a long career, I can’t tell you the number of times I’ve dealt with judges who let utterly insane, unprovable, legally impossible cases go forward because the plaintiffs’ claims messed perfectly with the judges’ activist biases.  We now have another example of judicial activism, in which a judge gave a pass to a case against oil companies alleging that they caused Hurricane Katrina by increasing global warming.  What!?  No lawsuits against cows, India or China?  And how about a more logical suit against the unholy cabal of corrupt government officials and environmentalists who ensured that the levies would break?  Nah.  That last one is impossible as being logical and politically incorrect.

Roe v Wade a warning about Supreme Court involvement in gay marriage

Whether you are for or against gay marriage, Robert George issues a sound warning about the dangers that flow from letting the Supreme Court get its hands on the issue:

It would be disastrous for the justices to do so [rule against California’s Prop. 8 and, by extension, make gay marriage the law of the land]. They would repeat the error in Roe v. Wade: namely, trying to remove a morally charged policy issue from the forums of democratic deliberation and resolve it according to their personal lights.

Even many supporters of legal abortion now consider Roe a mistake. Lacking any basis in the text, logic or original understanding of the Constitution, the decision became a symbol of the judicial usurpation of authority vested in the people and their representatives. It sent the message that judges need not be impartial umpires—as both John Roberts and Sonia Sotomayor say they should be—but that judges can impose their policy preferences under the pretext of enforcing constitutional guarantees.

By short-circuiting the democratic process, Roe inflamed the culture war that has divided our nation and polarized our politics. Abortion, which the Court purported to settle in 1973, remains the most unsettled issue in American politics—and the most unsettling. Another Roe would deepen the culture war and prolong it indefinitely.

Do we dare vote against the first Hispanic justice? *UPDATE*

I keep seeing headlines all over the place to the effect that Republican Senators will be afraid to vote against the first proposed Hispanic justice.  This may certainly be true for Senators, who are a weaselly, unprincipled bunch, I suspect, though, that for many voters Obama himself is causing the bloom to depart the identity politics rose.

I believe that many voters rushed to the polls to vote for Obama because they were caught up in the rapture of a historic first:  “The first black President.”  These moments are exciting.  Heck, I desperately wanted Michael Phelps to be the first person to get 10 gold medals in one Olympics.  I’d never heard of Phelps a few months before and suddenly, there I was, screaming hysterically in front of my TV.

In the political arena, the November rapture is now over, and the first black President is proving to be something of a problem.  In national security ways, he’s following the path of the last white president (and, for that, I am grateful).  In other ways, he’s proving to be indecisive, ineffectual, and suspiciously corrupt.  In other words, not withstanding his exciting skin color, he’s just your usual unprepared, inexperienced, Leftist, Chicago-style political hack.

Obama, therefore, is an object lesson in the superficiality of identity politics.  The fact that someone is the right color for the job doesn’t mean that he’s the right person for the job.  Voters — including Hispanic voters who trend conservative on social issues — may finally be willing to look at the candidate and not the color.

UPDATEThe Anchoress has a good post on the reality of how that race/identity card works.

Abortion, politics and Obama’s agenda

Okay, I admit it.  I’m easy.  Call me “winsome” and write a thoughtful, well-informed, interesting article about the continuing resonance abortion has on the political process — even if it did not serve as the centerpiece of this last political campaign — and of course I’m going to link to the article.  In this case, “the article” is Patrick O’Hannigan’s rumination about the fact that a person’s views about abortion are themselves a litmus test of their morality and about their understanding of the limitations of government and the judiciary.  In other words, abortion is not going to go away in large part becauase it actually helps define the body politic.

Speaking of the judiciary, I had a thought this morning about both abortion and the unfairness doctrine.  As you know, Obama promised that the first thing he would do as president would be to enact laws promoting abortion to an absolute unfettered federal right, something that takes it even beyond the trimister-by-trimester limitations the Roe v. Wade court imposed.   And if you missed it, the FCC, looking forward to an Obama administration, has already made noises about a backdoor approach to the unfairness doctrine — namely, requiring all radio shows to be vetted by local panels, to ensure that the shows meet “community” interests.

With regard to these local reviewing committees, you already know from school books that, if you abandon the marketplace and hand content decisions over to government committees, you first get a voiding of any meaningful content, followed fast and hard by a creeping political correctness.  This, incidentally, occurs not just because liberals take over these committees.  It occurs because your average fairly conservative person on the committee is a nice person and doesn’t want to make waves.  He doesn’t see the Ailinsky incrementalism in front of him. Instead, he just sees a few nice people from his community who make all these heart-rending victim arguments about people’s feelings being hurt by myriad little facts.  Your average committee conservative therefore finds himself making one little concession after another so as not to get into a tussle with those other nice people on the panel.  The result, of course, is that the product under review (whether it’s a book or a radio show), becomes an information vacuum that is slowly and deliberately filled with Ailinsky-directed content.

But I’m digressing.  My point was that Obama, if he’s wily (note that I say wily, which he is, not smart, which I question) is not going to rush into making these changes.  Why not?  Because the Supreme Court is not yet a reliably liberal, activist engine of change.  Justice Kennedy, having taken over O’Connor’s swing position, will probably side with the liberal justices on expanding Roe v. Wade or putting a free speech imprimatur on the unfairness doctrine, but that’s not 100% certain.  He’s a bit of a loose cannon.  The wily Obama will wait to push these issues until he gets a solid majority on the court.  Once it’s a firmly activist court, he can do anything the heck he pleases when it comes to trampling on fundamental constitutional rights such as free speech, the right to bear arms, a true separation of church and state (which also means not making religion second class), etc.

So, my current bet is that, while Obama will do things that have dreadful repercussions, he’ll move slowly on the things that have dreadful constitutional repercussions.  He simply won’t take the risk that the Roberts’ Court will undo his efforts.

Those logical disconnects

I’m sorry blogging has been so light today, but it’s been a go-go-go kind of day that’s left little time for anything but, well, going.  I did have a thought today, which I’ll share with you.

Most lawyers I know have little that’s complimentary to say about the average trial court judge, a feeling that often extends to appellate courts (who are viewed as slightly brighter, although just as capable of intellectual dishonesty and bias).  Any conversation with lawyers eventually gets around to this or that judge and the terrible decisions emanating from that “honorable” member of the bar.

Given all that, I find it incredibly perplexing when lawyers announce to me that they have no problem with judicial activism.  Let’s just ignore entirely, for the moment, the anti-democratic nature of judicial activism — something the Founding Fathers devoutly hoped to avoid.  Even with that out of the way, I can’t grasp why someone who deals daily with the fact that judges are, on average, merely average, with a striking number (let’s say, about half) below average, would still want to place decisions of major national importance in the hands of these same judges.

This is the kind of cognitive dissonance that drove me away from the Left and into the Right.  There’s a lack of logic driving liberal thinking that I simply couldn’t handle any more.  My brain rebelled.  Considering that I spent more than a decade harping about bad judges, why would I increase their power?  I simply elevated learned real world over theory.

Do I see a “to hell with democracy” moment in California’s future? *UPDATED*

A few months ago, the California Supreme Court overruled the will of the California voters and announced that gay marriage was a fundamental right.  The voters responded by changing the California Constitution to state that, in California, marriage is between one man and one woman.  As you know, if it were up to me, I’d get the state out of the “marriage” business altogether, leaving it to religions, and limiting the state to civil unions.  Second best to that, though, is that marriage remain what it has been in Western culture for thousands of years:  a male/female thing.

What do you bet, though, that the California Supreme Court, smarting from the rebuff that the voters issued, will once again sweep aside the people’s will and announce that gay marriage is so fundamental a right that it cannot even be addressed through constitutional amendment:

California’s highest court has agreed to hear legal challenges to a new ban on gay marriage, but is refusing to allow gay couples to resume marrying until it rules.The California Supreme Court on Wednesday accepted three lawsuits seeking to overturn Proposition 8. The amendment passed this month with 52 percent of the vote. The court did not elaborate on its decision.

All three cases claim the ban abridges the civil rights of a vulnerable minority group. They argue that voters alone did not have the authority to enact such a significant constitutional change.

UPDATE: At Power Line, there’s a feeling that the anti-Prop. 8 party’s briefs are so awful that they don’t give the California Supreme Court a legal leg to stand on when it comes to declaring unconstitutional the California constitution.

Bang, bang! *UPDATED*

Just in time for July 4th, the Supreme Court confirmed that the Second Amendment says what it means and means what it says.

I personally am not now, nor have I ever been, a gun owner.  I keep meaning to go the local firing range and take lessons (operating on the principle that, since I’m surprisingly good at darts, I might be good at target shooting too), but the road to Hell is paved with good intentions.  Nevertheless, my personal laziness and history aside, I know a Constitutional right when I see one, and I’m always delighted to see those vindicated.

The opinion (including the dissent) is 157 pages long (which surprises me, since the Amendment’s language is one sentence long), so I haven’t plowed through the whole thing — and, barring the unlikely event that I find myself actually litigating a gun rights case — I probably never will. Still, I’m starting to read it now, and if I stick with it and anything particularly wonderful (from the opinion) or awful (from the dissent) leaps out at me, I’ll let you know.

The one thing that does immediately leap out is that Kennedy has fully and completely filled O’Connor’s shoes as the swing vote.  The case went the way it did only because he chose to side with the four strict constructionists on the court, rather than the four activists.

The decision is another reminder that an Obama presidency, which will give him the chance to appoint at least one, and possibly more, Supreme Court justices is an extremely dangerous thing.  I know that many people who are lukewarm about or dislike McCain are assuming that, even if Obama gets his hands on the court, he’ll be able to touch only the old liberals, such as Stevens or Ginsberg.  This thinking is a mistake.  Bad things happen and there is always the possibility (God forbid), that one of the strict constructionist seats may suddenly open up.  Do you really want to take the chance that something bad happens and Obama gets to fill the vacancy?

UPDATE: Another thing leaping out:  Scalia is a wonderful writer — lucid and simple.  He complete avoids the turgid, serpentine, incredibly boring prose that routinely characterizes opinions by O’Connor (Ret.), Ginsberg, and Stevens.  This opinion is actually written in English a lay person can understand.

Interestingly, thinking about it, the worst writers are always the activists:  Ginsberg, Stevens, O’Connor, etc.  I suspect that, since their arguments are so often not bounded by actual American law, they have to throw up huge, wordy, impenetrable smoke-screens to hide that fact.  The strict constructionists, who are writing within a sound framework, have no need to hide or dissemble.

UPDATE II:  On the subject of (God forbid), bad things happening to good judges, the moonbats are already talking judicial assassination.

The madness of the judiciary

The alternative title for this post would have been:  You’re in prison, not a hotel.  From Best of the Web Today:

He Wouldn’t Hurt a Fly
Henry Boateng is an inmate in a Massachusetts State prison. He went to court arguing that his rights were being violated. Yesterday, a federal judge agreed:

Boateng, who has changed his name to Daniel Yeboah-Sefah and identifies himself as a Buddhist, has won a significant legal victory: A federal judge found that the state prison system violated his civil rights by denying him a vegan diet.US Chief District Judge Mark L. Wolf concluded that the system violated a 2000 federal statute that protects religious freedom in prison. In a judgment entered Tuesday, Wolf ordered the head of the system, beginning Friday, to provide the inmate at the Old Colony Correctional Center at Bridgewater with a vegan diet that hews to his religious beliefs.Although the prison system had offered Yeboah-Sefah a standard vegetarian diet, he has spent nearly a decade unsuccessfully seeking a vegan diet that excludes all animal products, including eggs and milk products.

In 1992, Boateng fathered a son, Jameel Moore. Like his dad, Jameel does not eat animal products. That’s because Boateng beat him to death when he was five weeks old.

Why you shouldn’t cut off your nose to spite your face

I’ve been finding very disturbing the intense hostility that conservatives direct against John McCain. So much so that I wrote a very long rant on the subject, which American Thinker was kind enough to publish and which I reprint below:

Perhaps because I’m a neocon, and not a dyed-in-the-wool, native-born conservative, I look at John McCain, with all his flaws, and still think that he’s a pretty darn good candidate for our time. More importantly, I think that Obama is a very dangerous candidate precisely because of the time in which we live. I therefore find disturbing the number of conservative purists who insist that they’re going to teach John McCain — and everyone else, dammit! — a lesson, either by sitting out the election or by throwing their vote away on a third party candidate. This is a kind of political game that may be fun to play in uninteresting eras, but I think it’s suicidal given the pivotal existential issues we now face.

It’s easy to target John McCain’s flaws. Most recently, he’s managed to buy into the whole green machine just as it’s becoming clear that the greenies probably rushed their fences, and leapt into hysteria well in advance of their facts. Still, whether because you view the world through green colored glasses, or because you really hate funding totalitarian governments that are hostile to America, there is a lot to be said for exploring energy alternatives. McCain’s free market approach should help that effort. Also, by the time he becomes President, there should be a sufficient aggregation of rationally based information about the climate to allow McCain a graceful retreat from a foolish campaign promise.

McCain also seems to be unresponsive to the feeling ordinary Americans have that illegal immigration is a big problem. This feeling arises, not because we’re all xenophobic nutcases, but because we recognize a few fundamental truths: (a) American law starts at American borders, and it is deeply destructive to society’s fabric to have an immigrant’s first act in this country be an illegal one; (b) a country’s fundamental sovereign right is the ability to control its own borders; (c) unchecked immigration provides a perfect pathway, not merely for the field worker, but for the bomb-maker; and (d) immigrants who come here should be committed to this country and its values, and shouldn’t just by moseying over to grab some illegal bucks to send to the folks back home.

Nevertheless, while illegal immigrants are irritating, they’re not an existential threat that can bring America to its knees within the next four years. They are a problem, but not an imminent one.

McCain may also never be absolved of the sin he committed with the McCain-Feingold Act, a legislative bit of bungling that has George Soros singing daily Hosannas. However, that’s done. There is no doubt that it reflects badly on McCain’s judgment, but I think it’s a sin that needs to be ignored, if not forgiven, in light of the person facing McCain on the other side of the ballot box.

You see, from my point of view, this election isn’t really about John McCain at all. It’s about Barack Obama. Of course, it shouldn’t be about Barack Obama. During a time of war and economic insecurity, one of the two presidential candidates should not be a man who has no life history, beyond a remarkable ability at self-aggrandizement, and no legislative history, despite a few years paddling about in the Illinois State Legislature and three years (count ‘em, three) doing absolutely nothing in the United States Senate.

That Obama is a man of no accomplishments or experience, though, doesn’t mean that he hasn’t managed to acquire some bad friends and bad ideas. The friends are easy to identify: Comrade . . . I mean Rev. Wright; Michelle “the Termagant” Obama; the explosive Ayers and Dohrn duo; Samantha “Hillary is a Monster” Power; Robert “Hamas” Malley; Zbigniew “the Jews are out to get me” Brzezinski; etc. Over the years, he’s sought out, paid homage to, and been advised by a chilling collection of people who dislike America and are ready to give the benefit of the doubt to anyone who talks the Marxist talk and walks the Marxist walk.

Obama’s ideas are as unnerving as his friends. To my mind, the Jihad that Islamists have declared against us is the fundamental issue of our time. Thanks to the nature of modern asymmetrical warfare, the fact that these Jihadists number in the tens of thousands, rather than the millions, and that they’re often free operators, not formal armies, does nothing to lessen the serious threat they pose to American freedoms. We’ve seen with our own eyes the fact that, using our own instruments of civilization, 19 determined men can kill almost 3,000 people in a matter of hours.

Nor was 9/11 an aberration, committed by the only 19 Islamic zealots on planet Earth. Whether they’re using the hard sell of bloody deaths, or the soft sell of co-opting a nation’s institutions and preying on its well-meant deference to other cultures and its own self-loathing, the Jihadists have a clearly defined goal — an Islamic world – and they’re very committed to effectuating that goal. And while it’s true that, of the world’s one billion Muslims, most are not Jihadists, the fanatic minority can still constitute a critical mass when the passive majority either cheers on the proposed revolution from the sidelines or does nothing at all. As Norman Podhoretz has already explained, this is World War IV.

I understand this. You understand this. McCain understands this. Obama, however, does not understand this. He envisions cozy chit-chats with Ahmadinejad and loving hand-holding with Hamas. There’s every indication that, given his world view, he’ll take Clinton’s “Ah feel your pain” approach one step further, and engage in a self-abasing “I — or, rather, America — caused your pain.” That approach failed when Carter tried it, and it’s only going to fare worse the second time around.

Obama is also bound and determined to withdraw instantly from Iraq, even though the momentum has shifted completely to the American side. Even though another famous Illinois politician spoke scathingly of General McClellan for “snatching defeat from the jaws of victory” at Appomattox, Obama has not learned from that painful lesson. He is adamant that he will repeat McClellan’s errors and enshrine the snatching method as national policy. Every five year old understands that you don’t leave the fight when it’s going your way; Obama, however, does not. That is scary in and of itself.

There is one thing, though, that Obama understands with perfect clarity: the role of Supreme Court judges. He knows that they should apply compassion and empathy, without the restrictive hindrance of the outdated United States Constitution. I’m not making this up. He’s said so: “I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through.”

As someone unfortunate enough to litigate in a jurisdiction filled to overflowing with these empathic judicial actors, I can tell you that this approach is disastrous. First, it’s unfair within the confines of a single case when the judge can ignore the law and, instead, decide a case based on the color of his underpants on any given day. Second, and more importantly, judicial activism (for that is what Obama describes) also destroys the stability necessary for a safe, strong society. It becomes impossible for people and entities to make reasoned calculations about future behavior, since they cannot rely on cases or statutes as guides. They simply have to hope that, if things go wrong, the judge before whom they appear likes them better than he likes the other guy. This is no way to run a courtroom, let alone a country.

What should concern all of us is the power a President Obama will have to effect an almost permanent change on the Supreme Court, one that will last far beyond his presidency. Those with gambling instincts point to the fact that, if anyone leaves the Court during an Obama presidency, it will be the existing liberal justices. In other words, they say, Obama, by replacing the departing liberal justices with equally liberal incoming justices, will simply be maintaining the status quo. I’m not so sanguine.

Although I preface the thought with a “God forbid,” it is possible that conservative justices might leave the Court too, whether through death, illness, incapacity, or personal choice. If that’s the case, Obama, backed by a compliant Democratic Congress, will be able to appoint anyone he pleases to the Court. With a solid activist majority, you can bet that, in your lifetime (as well as your children’s and grandchildren’s lifetimes), the Supreme Court will become the second Legislative branch, with the sole difference being that it will be completely unhindered by having to woo or be answerable to any pesky voters back home.

It’s these last two points — the War and the judiciary — that make me feel very strongly that we have to accept John McCain as president, warts and all. While he is far from perfect, he is rock solid on the two issues that can’t just be massaged away in four years. He will continue to wage war, both on the field and in the realm of ideas, against the Jihadists, and he will appoint conservative Supreme Court justices.

He is, therefore, a much better bet than the scenario in which the gamblers among us have placed their faith; namely, a replay of 1976 and 1980. These risk-takers believe that, as happened before, we’ll elect a horrible, horrible ultra-liberal President who will expose to the world how hollow Democratic ideologies really are. Then, after a mere four years, a sadder but wiser American public will elect the next Ronald Reagan who will magically make everything right again.

I have my doubts. First, I think there’s a great deal of conservative hubris in believing that we can just wish for and get the Second Coming of Ronald Reagan. Not only was he a pretty unique man, he’d been kicking around the political arena for decades. Do you look out in that same arena right now and see anyone remotely like him who will be ready to serve and acceptable to the American public in the next four years? Second, Reagan came in facing two primary problems: a stagnant Cold War and a moribund economy. Both of these situations were remediable. Reenergizing a stagnant war game America the dominant position; and rejiggering a damaged, but fundamentally strong economy was difficult, but do-able.

Here, however, we have two situations that are not so easily repaired should Obama bungle them (as I confidently expect he will). We are not fighting a Cold War, we are fighting a hot war. To walk away now inevitably places the momentum in the hands of our enemies, enemies who have done what the Soviets never did: entered our borders and killed our people in the thousands. Further, unlike the Soviets who had replaced their revolution with a cold, calculating political machine, one that could yield to rational self-interest, we now find ourselves facing fanatics in the blind grip of an ideology completely antithetical to any rational negotiation. To lose the high ground now – and we certainly have that high ground in Iraq – may mean to lose it forever. Even the best case scenario would only echo the changes between the late 1930s and early 1940s, when the Allies, having lost the high ground, were eventually able to win it back at the cost of more than twenty million lives.

Likewise, the Supreme Court situation, if Obama is able to switch the balance from strict constructionist to activist, cannot magically be remedied. Even Reagan was unable to make that change. It’s been thirty-five years, and American is still riven by Roe v. Wade, the most famous activist decision of them all (and that is true whether you are pro-Choice or pro-Life). One can only imagine how many decades of damage an activist Obama Supreme Court can do.

It is very tempting to those who care deeply about their country and their politics to “punish” an ostensibly conservative politician who has, too often and too visibly, wandered from the fold. Sometimes, however, teaching someone a lesson can be infinitely more painful for the punisher than for the punishee. That’s what I fear will happen now, if conservative voters decide that McCain has failed to pass the purity test and then gamble that Obama can’t really be that bad. I’m here to tell you that Obama can be that bad, and that we owe it to ourselves and our fellow citizens to keep him out of office.

Marriage is not an individual right

Marriage is not, and never has been, a personal right.  In Western society, it operates at two levels.  First, it functions at a religious level.  This is a deeply personal level, because in every religion, marriage is, or is equivalent to, a sacrament.  In America, you have the Constitutional right to be married in the church of your choice — if the church doctrine allows your type of marriage to be performed.  A further Constitutional right is that the state cannot force a church to change its doctrine to accommodate your desires.

Second, marriage functions at a state level.  The state has an interest in encouraging marriage because a dynamic state needs a growing population, and the best way to assure that is to have men marry women and have babies.  (Even polygamy has that point behind it:  in ancient times and primitive cultures, with excessively high maternal and child mortality rates, you wanted to ensure that as many women as possible are breeding.  Polygamy advances that cause with a vengeance.)  Married men are also a more stable population:  they are more likely to defend, rather than attack, the home front, because they have acknowledged children to protect.  (You see, marriage means that a man knows who his children are.)

To advance the benefit it receives from married couples — increased children, and a stable male population invested in protecting the country — states create marriage incentives.  They embrace religions that advance marriage and they give financial incentives and status recognition.  These perks are not for the individual’s benefit or freedom; they are for the state’s benefit and strength.

The problem arises when people conflate the deeply personal nature of the religious marriage ritual with the highly political nature of the state’s interest in productive heterosexual marriage.  When this happens, they suddenly start babbling about personal rights in and from the state where none existed before.

The state can, of course, determine that its interest is served by any marriage and that encouraging gay couples to settle down will advance some state interest.  But when I say “the state can,” I really mean that, in a democratic society, “the voters of the state can” determine that it is in their collective interest to extend to all comers the right to a state sanctioned marriage.  The one thing that should never happen is that judges, to advance their own personal biases, create a personal right where none has ever existed before.

Two further points regarding this issue.  First, read Stuart Taylor’s excellent explanation of why the California Supreme Court decision was a strikingly dishonest piece of judicial activism.

Second, if this judicial activism offends you, vote for John McCain.  And don’t fall into the trap of thinking that, because only liberal justices are old enough to leave the Court, Obama won’t be able to harm the Supreme Court if he’s elected for four, or even eight years.  Bad things happen.  It is entirely possible, although God forbid it should be so, that right in the middle of the Obama presidency, Roberts, Scalia, Alito and Thomas could all drop dead from freak accidents or illnesses.  Even if that happens to only one of them (again, God forbid), Obama will have the ability to change the Court in ways that will certainly affect the Court into your grandchildren’s lifetimes, and possibly change the separation of powers forever.

A weird little potential backlash from the Calif. Sup. Ct. ruling

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

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

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

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

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

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

Links to good discussions of the Calif Supreme Court decision

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

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

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

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

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

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

Obama and the judges

Edward Whelan, after pointing out that a President Obama would have the potential to appoint up to six new Supreme Court justices, looks at Obama’s rhetoric about the Constitution and the law, and uses that information to explain clearly what type of justices Obama would appoint:

[I]n setting forth the sort of judges he would appoint, Obama has explicitly declared: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old–and that’s the criterion by which I’ll be selecting my judges.” So much for the judicial virtue of dispassion. So much for a craft of judging that is distinct from politics.

[snip]

Obama often cloaks such extreme positions in sweet-sounding rhetoric. His chapter on “Our Constitution” in his campaign manifesto, The Audacity of Hope, provides a useful case study. There, Obama characterizes his own understanding of the Constitution in positively unctuous terms: “I confess that there is a fundamental humility to this reading of the Constitution and our democratic process.” But there is nothing humble about the judicial role that Obama embraces.

Obama purports to be “not unsympathetic to Justice Antonin Scalia’s position” that the “original understanding [of the Constitution] must be followed,” but he won’t even present Scalia’s views accurately. Let’s set aside the fact, all too common among liberal critics, that Obama doesn’t keep straight the distinction between Scalia’s original-meaning species of originalism, which looks to the public meaning of a constitutional provision at the time that it was adopted, and the original-understanding species, which looks to the contemporaneous understanding of the ratifiers.

[snip]

Obama finds himself compelled “to side with Justice Breyer’s view of the Constitution–that it is not a static but rather a living document, and must be read in the context of an ever-changing world.” But no one disputes that the Constitution “must be read,” and applied, “in the context of an ever-changing world.” The central question of the last several decades is, rather, whether it is legitimate for judges to alter the Constitution’s meaning willy-nilly–in particular, whether judges have unconstrained authority to invent new constitutional rights to suit their views of what changing times require. The cliché invoked by Obama of a “living” Constitution disguises the fact that the entrenchment of leftist policy preferences as constitutional rights deprives the political processes of the very adaptability that Breyer and company pretend to favor. As Scalia has put it, “the reality of the matter is that, generally speaking, devotees of The Living Constitution do not seek to facilitate social change but to prevent it.”

And so on for all of Obama’s other deceptive rhetoric in his chapter on “Our Constitution” in The Audacity of Hope, including his galling claim to be “left then with Lincoln” in their supposed common understanding of the Constitution. On judicial nominations, Obama brazenly contends that “Democrats used the filibuster sparingly in George Bush’s first term: Of the President’s two-hundred-plus judicial nominees, only ten were prevented from getting to the floor for an up-or-down vote.” What Obama’s casting conveniently obscures from the trusting reader is that these filibusters were unprecedented in the history of the Senate. Obama even pretends that it’s obvious that Republicans would resort to the filibuster “if the situations were reversed.” But the best evidence refutes Obama: There were only four votes on cloture–on proceeding to a final vote on confirmation–on judicial nominations during the Clinton administration. All four were supported by Republican leadership, and none received more than 14 negative votes from Republican senators.

Given judges’ traditional longevity on the Court, it’s important to understand that his presidency could affect every aspect of American life — criminal law, civil law, trade agreements, college admissions, abortions, managed care, anything you can think of — for a good thirty or forty years. If that doesn’t scare you to make sure you vote, nothing will.

This is weird — the 9th Circuit issued a correct ruling

The Ninth Circuit, which is the laughing stock of the federal judiciary because it is overruled so often, did something bizarre yesterday: it issued a Constitutionally correct decision. Not only that, the decision meant that a citizens’ group will be able to engage in free speech that is contrary to the type of speech the 9th Circuit prefers. I’m impressed:

An Arizona anti-abortion group’s right of free speech was violated when the state refused to issue specialty license plates with the message “Choose Life,” a federal appeals court ruled Monday.

Reversing a judge’s decision, the Ninth U.S. Circuit Court of Appeals in San Francisco said Arizona’s License Plate Commission had approved less-controversial plates for other nonprofit organizations, such as associations of police and firefighters and the Wildlife Conservation Council, before turning down the Arizona Life Coalition.

The commission “clearly denied the application based on the nature of the message,” Judge Richard Tallman said in the 3-0 ruling. He rejected the commission’s argument that it was entitled to control the content of state-issued license plates and said Arizona was attempting to restrict free expression.

Opponents of abortion have been trying for years to get states to let them use license plates as mobile billboards for the “Choose Life” motto. Judges’ reaction has been mixed.

A South Carolina law expressly authorizing the plates was struck down in 2003 by a federal appeals court because the state did not allow similar plates for abortion-rights advocates, but another appeals court upheld a similar Tennessee law in 2006. The Supreme Court has not taken up the issue.

Courts have generally frowned, however, on a state’s singling out abortion-related messages for exclusion from license plates. Monday’s ruling comes five days after a federal judge ordered Missouri to issue “Choose Life” plates, saying state law gave officials too much leeway to reject license-plate messages because of their content.

California has allowed nonprofit groups to ask the Legislature to approve specialty license plates by submitting 7,500 paid applications. The fees, minus state expenses, are used by foundations that promote such causes as coastal protection, Lake Tahoe, Yosemite National Park and the victims of the Sept. 11, 2001, terrorist attacks.

Backers of a proposed “Choose Life” plate in California have failed several times to win legislative passage, but won a federal court ruling in 2004 that declared the entire program unconstitutional on the ground that it gave lawmakers unlimited authority to decide which messages to accept. The judge in that case allowed previously approved plates to remain, however, and the state has not established a new specialty-plate program.

Monday’s ruling set legal standards for federal courts in nine Western states, including California. It stemmed from a 2003 lawsuit by the Arizona Life Coalition, which had applied the previous year for a license plate that would display the “Choose Life” slogan with a picture of two children’s faces.

This is weird — the 9th Circuit issued a correct ruling

The Ninth Circuit, which is the laughing stock of the federal judiciary because it is overruled so often, did something bizarre yesterday: it issued a Constitutionally correct decision. Not only that, the decision meant that a citizens’ group will be able to engage in free speech that is contrary to the type of speech the 9th Circuit prefers. I’m impressed:

An Arizona anti-abortion group’s right of free speech was violated when the state refused to issue specialty license plates with the message “Choose Life,” a federal appeals court ruled Monday.

Reversing a judge’s decision, the Ninth U.S. Circuit Court of Appeals in San Francisco said Arizona’s License Plate Commission had approved less-controversial plates for other nonprofit organizations, such as associations of police and firefighters and the Wildlife Conservation Council, before turning down the Arizona Life Coalition.

The commission “clearly denied the application based on the nature of the message,” Judge Richard Tallman said in the 3-0 ruling. He rejected the commission’s argument that it was entitled to control the content of state-issued license plates and said Arizona was attempting to restrict free expression.

Opponents of abortion have been trying for years to get states to let them use license plates as mobile billboards for the “Choose Life” motto. Judges’ reaction has been mixed.

A South Carolina law expressly authorizing the plates was struck down in 2003 by a federal appeals court because the state did not allow similar plates for abortion-rights advocates, but another appeals court upheld a similar Tennessee law in 2006. The Supreme Court has not taken up the issue.

Courts have generally frowned, however, on a state’s singling out abortion-related messages for exclusion from license plates. Monday’s ruling comes five days after a federal judge ordered Missouri to issue “Choose Life” plates, saying state law gave officials too much leeway to reject license-plate messages because of their content.

California has allowed nonprofit groups to ask the Legislature to approve specialty license plates by submitting 7,500 paid applications. The fees, minus state expenses, are used by foundations that promote such causes as coastal protection, Lake Tahoe, Yosemite National Park and the victims of the Sept. 11, 2001, terrorist attacks.

Backers of a proposed “Choose Life” plate in California have failed several times to win legislative passage, but won a federal court ruling in 2004 that declared the entire program unconstitutional on the ground that it gave lawmakers unlimited authority to decide which messages to accept. The judge in that case allowed previously approved plates to remain, however, and the state has not established a new specialty-plate program.

Monday’s ruling set legal standards for federal courts in nine Western states, including California. It stemmed from a 2003 lawsuit by the Arizona Life Coalition, which had applied the previous year for a license plate that would display the “Choose Life” slogan with a picture of two children’s faces.

“Straw, meet camel’s back.”

History has its tipping points. I wonder if Britain or, rather, the ordinary British, have met another tipping point. A while ago, I blogged about the fact that, as Melanie Phillips points out in Londonistan, the rule of judges has gone insanely against ordinary Brits, with judges relying on the British Human Rights Act to elevate all rights over those of the indigenous Brits’ rights. Yesterday, I blogged about news in Britain that saw the Human Rights Act used to justify keeping in Britain an Italian man who brutally murdered a British headmaster. Today, news out of Britain has the British becoming increasingly upset about the fact that British judges are looking to continentally oriented law to justify squashing the rights of ordinary British people:

David Cameron last night called for the Human Rights Act to be scrapped outright for the first time amid mounting anger that the controversial law had allowed the killer of the head teacher Philip Lawrence to escape deportation.

The Conservative leader accused the Government of being “blind” to the Act’s failings as it emerged that Home Office officials still regarded Italian-born Learco Chindamo as a threat to the public.

Mr Cameron’s call came on a day of high emotion as Mr Lawrence’s widow, Frances, said the legislation, which was adopted by the Labour Government in 2000, was “rotten at the core”.

Concerns over the decision to allow Chindamo – who is due to be considered for parole early next year – to remain in Britain were heightened when official papers handed to the courts by the Home Office showed he posed a “genuine and present risk” to the public.

However, last night Downing Street said that Gordon Brown would not alter the legislation. A spokesman said: “The Government has made its position clear many times.”

The Human Rights Act has been widely criticised and has led to the Government suffering a number of high-profile setbacks, notably in its failed attempts to deport terrorism suspects.

You can read the rest of the story here, including a description of just how vile Chindamo’s conduct was, and how heroically Lawrence died at the hands of this mob leader.

Labour thinks it has a lock on things.  But I wonder if Labour without Tony Blair has the reputation and charisma to hang on to office if “little things” like this begin to irk the ordinary Brit (assuming ordinary Brits haven’t been wiped out by 40 years of multi-culti education).

“Straw, meet camel’s back.”

History has its tipping points. I wonder if Britain or, rather, the ordinary British, have met another tipping point. A while ago, I blogged about the fact that, as Melanie Phillips points out in Londonistan, the rule of judges has gone insanely against ordinary Brits, with judges relying on the British Human Rights Act to elevate all rights over those of the indigenous Brits’ rights. Yesterday, I blogged about news in Britain that saw the Human Rights Act used to justify keeping in Britain an Italian man who brutally murdered a British headmaster. Today, news out of Britain has the British becoming increasingly upset about the fact that British judges are looking to continentally oriented law to justify squashing the rights of ordinary British people:

David Cameron last night called for the Human Rights Act to be scrapped outright for the first time amid mounting anger that the controversial law had allowed the killer of the head teacher Philip Lawrence to escape deportation.

The Conservative leader accused the Government of being “blind” to the Act’s failings as it emerged that Home Office officials still regarded Italian-born Learco Chindamo as a threat to the public.

Mr Cameron’s call came on a day of high emotion as Mr Lawrence’s widow, Frances, said the legislation, which was adopted by the Labour Government in 2000, was “rotten at the core”.

Concerns over the decision to allow Chindamo – who is due to be considered for parole early next year – to remain in Britain were heightened when official papers handed to the courts by the Home Office showed he posed a “genuine and present risk” to the public.

However, last night Downing Street said that Gordon Brown would not alter the legislation. A spokesman said: “The Government has made its position clear many times.”

The Human Rights Act has been widely criticised and has led to the Government suffering a number of high-profile setbacks, notably in its failed attempts to deport terrorism suspects.

You can read the rest of the story here, including a description of just how vile Chindamo’s conduct was, and how heroically Lawrence died at the hands of this mob leader.

Labour thinks it has a lock on things.  But I wonder if Labour without Tony Blair has the reputation and charisma to hang on to office if “little things” like this begin to irk the ordinary Brit (assuming ordinary Brits haven’t been wiped out by 40 years of multi-culti education).

Judges versus people

I believe I mentioned already that one of Melanie Phillips’ big points in Londonistan is what happens when judges become highly activist, get invested in some EU/UNabstract notion of “human rights,” and steadily erode away the rights of their own citizens in the inanely confident belief that the only humans with rights are those who come from places other than the judges’ own home country. There’s a new story out of England that perfectly illustrates this unhealthy de-nationalism, a liberal elitism that will always elevate a refugee’s rights — no matter how bad the refugee, or how evil his acts or intentions — over the rights of the rapidly disappearing indigenous Europeans (those with roots in a country going back more than 40 years):

The widow of a headmaster stabbed to death outside his school bitterly attacked a decision to let his foreign killer stay in Britain when he is released from jail.

Frances Lawrence said she was ”unutterably depressed” that the human rights of her family had taken second place to those of her husband’s murderer.

Philip Lawrence, 48, was killed in December 1995 when he intervened in a gang fight outside his school in Maida Vale, west London.

His killer Learco Chindamo, who was 15 at the time, was born in Italy and came to Britain at the age of five.

The Home Office has been fighting a legal battle to deport him when he completes his prison sentence, possibly next year.

But the Asylum and Immigration Tribunal ruled today that such a move would breach Article 8 of the European Convention on Human Rights.

This guarantees the right to a ”family life”, and since Chindamo’s ties are in the UK and he speaks only English, the tribunal ruled that repatriating him to Italy would be unjust.

But Mrs Lawrence, 59, who was left to bring up four children on her own, was ”devastated and demoralised” by the ruling.

“I am unutterably depressed that the Human Rights Act has failed to encompass the rights of my family to live a safe and happy life,” she said.
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“I am deeply concerned for everything I have worked for, including the setting up of the Philip Lawrence Awards (which honour young people’s efforts in tackling social issues.)

She added: “I feel as if I can’t fight any more – I feel I can’t survive this.

“I feel that I have always been a staunch advocate of the Human Rights Act but there is a missing term in it. It must encompass some responsibility.

“This isn’t just about me and my family. I am not solely thinking of me. I may be a mother but I am a human being as well.”

Judicial activism on display

I canceled my American Bar Association long before I realized I was a conservative. It had gone so overboard in wacko policies that I simply couldn’t stomach sending it my money. This year, the organization gave Justice Kennedy its highest award, presumably so that he could give a speech — this is a judge’s speech, mind you — stating that the rule of law is simply not in the game when it comes to some higher, individual authority unrelated to legislation, precedent or religious morality:

Supreme Court Justice Anthony Kennedy was presented with the American Bar Association’s highest award in San Francisco on Monday and said establishing the rule of law around the world requires looking beyond formal legal systems and confronting injustice.

“We’ve learned that we cannot say to some foreign country, ‘Here’s a red-white-and-blue package, the rule of law.’ … The system cannot be easily replicated,” the 71-year-old Sacramento native said after receiving the ABA Medal at the annual meeting of the 413,000-member lawyers’ group.

“In the developing world, there are not enough lawyers, there are not enough paralegals, there are not enough college-educated persons to make such a system work,” Kennedy told delegates of an organization that sponsors thousands of volunteer lawyers working with their counterparts in foreign countries.

In some countries, he said, half to three-quarters of the population works in the “shadow sector,” with no licenses or legal regulation, and half the people have no official birth records. Lawyers can’t merely advise millions of young people in those nations to wait decades while the groundwork for a legal structure is established, Kennedy said.

But he said lawyers are well-suited to educate and recruit those young people to promote law by fighting lawlessness – families in Asia that sell their young daughters into the sex trade, an African nation that charges fees to women who want rape complaints investigated, nations that hold prisoners incommunicado and without charges for a decade, “the ongoing and looming greater disaster in Darfur.”

Lawyers should tell their listeners, “Here is a cause for your passion and your anger and your youth and your energy,” Kennedy said. And he said U.S. lawyers must also realize that “the rule of law cannot stand here unless you address those problems in other nations.”

I appreciate Justice’s Kennedy’s passion, and the keen sense for human suffering that he obviously feels. However, to advocate the overthrow of the rule of law as a way to achieve humane ends is really not what I want to hear coming out of the mouth of a Supreme Court Justice.

Incidentally, I might be less jaundiced and suspicious about Justice Kennedy’s speech were it not for the fact that he is a judge who has been very vocal about abandoning the strict precepts of our American constitution in favor of some international, loosey-goosey style of law, no doubt heavily influenced by the EU and the UN.

It’s “random thoughts” day

I’m on another vacation, sitting in a cyber cafe, working at a small computer with a microscopic keyboard, so it must be random thoughts day. Thank goodness DQ is doing the heavy lifting.

The first thing that caught my interest is what Mitt said at the debate, which I really liked:

But it was Romney forced on the defensive on the issue of abortion, when Kansas Sen. Sam Brownback defended automated phone calls his campaign had been making that highlight his rival’s one-time support for pro-choice policies.

“It’s truthful,” Brownback said.

Romney called it “desperate, maybe negative,” adding moments later, “I get tired of people that are holier than thou because they’ve been pro-life longer than I have.” (Emphasis mine.)

The fact is that many people who came of age in the 1960s have taken a long slow journey from one side to the other. As my own change in political convictions shows, the fact that I came late to the game doesn’t mean I’m not one of the biggest fans. In any event, as I keep reminding and reminding people, the best we can hope for is a chief executive who appoints strict constructionist judges, since it is they, not the President, who will change abortion policies.

Indeed, I’m reminded again and again that, probably, the most important thing the new President can do is change the Supreme Court — and we must really hope that the new President is a conservative. I think I’ve hammered hope the point that, if you haven’t already read Melanie Phillips’ Londonistan, you must. It points the finger of blame at activist judges who decided that the laws and traditions of their own country were irrelevant, because they were connected to a higher authority of human rights law, courtesy of the EU and the UN. (As you may recall, some of our more liberal and aged Supreme Court justices have been making tentative moves in the same direction.)

I’m now reading Bruce Bawer’s While Europe Slept: How Radical Islam is Destroying the West from Within, which describes in chilling detail what is happening, day-to-day, on the streets of Europe as a result of the multi-cultural, socialist, non-democratically judge ruled European nations that allowed unlimited Muslim immigration, with full funding no matter the fraud, and has proven unwilling because of  its doctrinal blinders to deal with the inevitable Islamist nihilism, violence and brutality.  Bawer is a liberal  gay man who is mad, frightened, and finally aware the America is the last, best hope for Western freedom  and democracy.

Continuing randomly, Confederate Yankee continues to eviscerate the once reputable TNR over the Scott Thomas propaganda piece.  It now turns out that when TNR did  it’s little “we were sort of wrong” mea culpa, it left out  a few pertinent facts.  Whoops!

TNR’s not  the only one covering up information to score political or ideological points (or just to cover up journalistic  malfeasance).  Turns out that, again, the Times is guilty of allowing the publication of an article attacking Orthodox Jews that used as its starting  point a known false anecdote.  Starting with Walter Duranty, journalistic integrity at the Times seemed to have morphed into, if we beieve the underlying ideology, we are acting with integrity when we lie about those  facts to support our ideological  beliefs.  Incidentally, that’s psychologically similar to the European Muslims who have no problems breaking European laws because, as far as they’re concerned, such laws don’t exist.

Incidentally, since I’m in Times bashing mode (it’s editorial policies make it an easy target), let me just  direct you to an American Thinker article exposing its decision to publish a piece by known  Israel  basher — and Canadian — Michael  Ignatieff as he explains  why he can’t support the war in Iraq. Surprise, surprise!  It’s all about the “Jooos.”  As Babu said to Jerry, finger rhythmically wagging, “You are a very bad man.”

And the last random thought, a surprising report today that more women are living with the fathers of their children!  We used to call that marriage, but they don’t because they aren’t (married, that is).   I  suppose this should be heartening, but I find it depressing, at least from the child’s  point of view.  Marriage says (even though it may not  mean) “we’re committed for the long haul.”  Living  together says (even though it may not  mean) “I can walk out at any time.”  I think the former is better for children’s sense of stability, rather than the latter.

It’s “random thoughts” day

I’m on another vacation, sitting in a cyber cafe, working at a small computer with a microscopic keyboard, so it must be random thoughts day. Thank goodness DQ is doing the heavy lifting.

The first thing that caught my interest is what Mitt said at the debate, which I really liked:

But it was Romney forced on the defensive on the issue of abortion, when Kansas Sen. Sam Brownback defended automated phone calls his campaign had been making that highlight his rival’s one-time support for pro-choice policies.

“It’s truthful,” Brownback said.

Romney called it “desperate, maybe negative,” adding moments later, “I get tired of people that are holier than thou because they’ve been pro-life longer than I have.” (Emphasis mine.)

The fact is that many people who came of age in the 1960s have taken a long slow journey from one side to the other. As my own change in political convictions shows, the fact that I came late to the game doesn’t mean I’m not one of the biggest fans. In any event, as I keep reminding and reminding people, the best we can hope for is a chief executive who appoints strict constructionist judges, since it is they, not the President, who will change abortion policies.

Indeed, I’m reminded again and again that, probably, the most important thing the new President can do is change the Supreme Court — and we must really hope that the new President is a conservative. I think I’ve hammered hope the point that, if you haven’t already read Melanie Phillips’ Londonistan, you must. It points the finger of blame at activist judges who decided that the laws and traditions of their own country were irrelevant, because they were connected to a higher authority of human rights law, courtesy of the EU and the UN. (As you may recall, some of our more liberal and aged Supreme Court justices have been making tentative moves in the same direction.)

I’m now reading Bruce Bawer’s While Europe Slept: How Radical Islam is Destroying the West from Within, which describes in chilling detail what is happening, day-to-day, on the streets of Europe as a result of the multi-cultural, socialist, non-democratically judge ruled European nations that allowed unlimited Muslim immigration, with full funding no matter the fraud, and has proven unwilling because of  its doctrinal blinders to deal with the inevitable Islamist nihilism, violence and brutality.  Bawer is a liberal  gay man who is mad, frightened, and finally aware the America is the last, best hope for Western freedom  and democracy.

Continuing randomly, Confederate Yankee continues to eviscerate the once reputable TNR over the Scott Thomas propaganda piece.  It now turns out that when TNR did  it’s little “we were sort of wrong” mea culpa, it left out  a few pertinent facts.  Whoops!

TNR’s not  the only one covering up information to score political or ideological points (or just to cover up journalistic  malfeasance).  Turns out that, again, the Times is guilty of allowing the publication of an article attacking Orthodox Jews that used as its starting  point a known false anecdote.  Starting with Walter Duranty, journalistic integrity at the Times seemed to have morphed into, if we beieve the underlying ideology, we are acting with integrity when we lie about those  facts to support our ideological  beliefs.  Incidentally, that’s psychologically similar to the European Muslims who have no problems breaking European laws because, as far as they’re concerned, such laws don’t exist.

Incidentally, since I’m in Times bashing mode (it’s editorial policies make it an easy target), let me just  direct you to an American Thinker article exposing its decision to publish a piece by known  Israel  basher — and Canadian — Michael  Ignatieff as he explains  why he can’t support the war in Iraq. Surprise, surprise!  It’s all about the “Jooos.”  As Babu said to Jerry, finger rhythmically wagging, “You are a very bad man.”

And the last random thought, a surprising report today that more women are living with the fathers of their children!  We used to call that marriage, but they don’t because they aren’t (married, that is).   I  suppose this should be heartening, but I find it depressing, at least from the child’s  point of view.  Marriage says (even though it may not  mean) “we’re committed for the long haul.”  Living  together says (even though it may not  mean) “I can walk out at any time.”  I think the former is better for children’s sense of stability, rather than the latter.

Nasty, nasty, mean old court

The New York Times has written one of the most intemperate editorials it’s been my pleasure to see in a long time, attacking the decisions emanating from the more conservative Supreme Court.  The opening will give you an idea:

In the 1960s, Chief Justice Earl Warren presided over a Supreme Court that interpreted the Constitution in ways that protected the powerless — racial and religious minorities, consumers, students and criminal defendants. At the end of its first full term, Chief Justice John Roberts’s court is emerging as the Warren court’s mirror image. Time and again the court has ruled, almost always 5-4, in favor of corporations and powerful interests while slamming the courthouse door on individuals and ideals that truly need the court’s shelter.

President Bush created this radical new court with two appointments in quick succession: Mr. Roberts to replace Chief Justice William Rehnquist and Samuel Alito to replace the far less conservative Sandra Day O’Connor.

The editorial then goes on a mad dash through some of the more famous rulings of the last judicial term, describing them in terms, not of the actual ruling, but of the ruling’s effect.  For example:

The Roberts court’s resulting sharp shift to the right began to be strongly felt in this term. It was on display, most prominently, in the school desegregation ruling last week. The Warren court, and even the Rehnquist court of two years ago, would have upheld the integration plans that Seattle and Louisville, Ky., voluntarily adopted. But the Roberts court, on a 5-4 vote, struck them down, choosing to see the 14th Amendment’s equal-protection clause — which was adopted for the express purpose of integrating blacks more fully into society — as a tool for protecting white students from integration.

On campaign finance, the court handed a major victory to corporations and wealthy individuals — again by a 5-4 vote — striking down portions of the law that reined in the use of phony issue ads. The ruling will make it easier for corporations and lobbyists to buy the policies they want from Congress.

Corporations also won repeatedly over consumers and small stockholders. The court overturned a jury’s award of $79.5 million in punitive damages against Philip Morris. The Oregon Supreme Court had upheld the award, calling Philip Morris’s 40 years of denying the connection between smoking and cancer “extraordinarily reprehensible.”

In a ruling that will enrich companies at the expense of consumers, the court overturned — again by a 5-4 vote — a 96-year-old rule that manufacturers cannot impose minimum prices on retailers.

The Times‘ horror is interesting, because it so clearly demonstrates what its editors think the Supreme Court should do:  put it’s imprimatur on liberal policies.  There’s really no other way to read the editorial, because there’s nothing in it that challenges the Court’s opinions on Constitutional or other legal grounds.  They’re savaged only on possible practical effect.

This 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 interpretations.  What’s wrong with them, then, at least if you’re on the Times editorial board, is not that they were decided wrongly on legal grounds — which they weren’t — but that they were decided wrongly at a social and political level.

The Times’ position stands up to scrutiny only if you’re a judicial activist who believes that it is the Supreme Court’s job to legislate away social ills when a stubborn or foolish Legislature refuses to do so.  Those of us who are not judicial activists believe it is the Court’s responsibility to interpret the Constitution, and the legislation flowing from that Constitution, and to let the chips fall with they may.  If Americans dislike the chip falls, it is up to them nudge the existing federal representatives in Congress, or to elect an entirely new batch of federal legislators, so that Congress either changes the laws or amends the Constitution, whichever is necessary.  That is the essence of the separation of powers doctrine.

The Supreme Court’s decision about race based school policies

I don’t have a lot to say about the Supreme Court’s recent decision about racial shell games in public schools beyond this: I agree with the decision. However, to the extend I do agree, I found very graceful the way the National Review Online summed up the decision’s meaning and impact:

Over the last 40 years, liberal civil-rights groups have gone from advocating colorblind policies to rejecting them. They may try to describe the new ruling, perversely, as a partial repeal of Brown v. Board of Education. Justice Stephen Breyer says as much in his dissent. Yet the decision resembles Brown in a crucial respect: Starting now in Louisville and Seattle, students won’t be blocked from certain schools simply because they lack the proper melanin content.

We are sure to hear that the Court has just encouraged the “resegregation” of the schools, but that is mostly left-wing bluster. Brown and other legislative and judicial measures — to say nothing of evolving social attitudes — put an end to Jim Crow-style de jure segregation long ago. What we have today is de facto segregation, which is better described as racial imbalance. Such imbalance need not be worrisome. As Justice Clarence Thomas noted in Missouri v. Jenkins more than a decade ago, “It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior.”

Voting for the Supremes

In my post about the field of front-running Republican candidates, I got a comment from someone who said that s/he could not possibly vote for Giuliani, because Giuliani is personally pro-choice. Further, the comment writer said (or implied) that this would hold true even if it boiled down to a race between Giuliani and a pro-choice Democrat. Enough voters with this viewpoint, and you’ve got 1992 all over again, with a Democrat in the Whit House.

I’ve been thinking about this attitude a lot and, with all due respect, I think that it is wrong. What matters is voting for the candidate who will be both most effective in achieving your goals and most likely to win. A throwaway vote for a pro-Life candidate who can’t possibly win is a wasted vote.

This attitude also ignores the fact that it doesn’t matter what Giuliani’s personal beliefs are if he is willing to do the Constitutionally right thing — which, in this case, is to nominate strict constructionists to fill inevitable vacancies on the Supreme Court. You see, a President can’t do anything about abortion anyway. It’s not within the range of his executive powers. What is within the range of his powers is to ensure that the Supreme Court is staffed with people who understand that their mandate is to interpret, not to rewrite, the Constitution.

To the extent that all honest people, whether pro-life or pro-choice, acknowledge that Roe v. Wade is poorly decided and doesn’t have a Constitutional leg to stand on, it is the strict constructionists who are going to reverse it and remand the matter of abortion back to the states, where it belongs. (Or into the realm of Constitutional amendments, another Constitutionally appropriate venue for the issue.) I can assure you this wonder happen if Hillary or Obama or Edwards or any of the others in that party win. You’ll just see more liberal constructionists on the Court, looking to the EU for Constitutional guidance.

To fully appreciate how an honorable person can put aside his personal beliefs to do the right thing, think of Harry Truman. He was a racist who integrated the American armed forces, and he was an anti-Semite who knew that recognizing Israel was morally the right thing to do. He was a man who was able to look outside his prejudices and see the greater principles at stake.

To sideline a potential winner such as Giuliani, a man who can appoint to the Supreme Court jurists who will abide by the Constitution, merely because you dislike his personal beliefs is to take the risk of jettisoning the Supreme Court for the next twenty years. If you are a pro-lifer who by sulking, splits the Republican vote and if your conduct, multiplied by a few hundred thousand voters, results in Hillary or Obama taking the White House, you will have the blood of hundreds of thousands of abortions on your hands for the foreseeable future.

UPDATEDeroy Murdock gives some actual numbers about Giuliani’s conservative impact on New York.  As for the comment that the judges Giuliani “appointed” during his tenure as mayor were liberal, I have heard that the New York mayor has almost no (or absolutely no) authority regarding which candidates are selected for the bench.  Unfortunately, I can’t remember where I read that.  Does anyone know where I can find authority for Giuliani’s inability to appoint more conservative judges, whether or not he wanted to?

Incidentally, despite the fact that Giuliani was undoubtedly conservative in his approach to mayoral politics, he still appealed strongly to sane liberal voters.  I’ll never forgot the gay, ultra-liberal New Yorker I met in the 1990s.  While he had voted for Dinkins against Giuliani when the latter first ran for office, he confessed that he would vote for Giuliani in the upcoming mayoral elections, because Giuliani was the best thing ever to happen to New York.  Now that’s a leader.

UPDATE IICity Journal also has an homage to Giuliani’s really astounding ability to push through conservative programs in place of deeply entrenched (and manifestly failing) liberal programs.  That he has the ability to turn things around is impressive.  It’s great to have conservative principles; less great if you can’t do anything about them.

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A perfect bootstrap argument

The New York Times has come up with an editorial that contains a perfect bootstrapping argument, one that works off the premise it is supposed to prove.  It's an almost impressive piece of dishonest rhetoric, whether or not one agrees with the sentiment expressed. 

The context for this amazing piece of rhetorical sleight-of-hand is the Times' editorial chastizing the President for supporting the anti-gay marriage amendment.  I should say here that I agree with the amendment.  As I've noted before, I don't have a big problem with extending legal rights to committed gay couples via civil partnership laws.  I've known many extremely committed gay couples who have ended up in heinous end-of-life situations because of the absence of such protections. 

However, to me, marriage is also a religious issue, and male/female marriages, with their commitment to children, cannot be tossed lightly aside because in the last 25 years there's been agitation to change dramatically an institution that is as old as recorded human history — that is, the joining of a man and woman.  And while I would never liken homosexual relationships to such things as bestiality and pedophilia, I don't have any doubt but that a door opens when homosexual marriages become the law.  To the extent a society contemplates a fundamental change like this, it should do so after a bit more very, very, very serious thinking.

But I'm digressing wildly here, aren't I?  (A not uncommon thing for me to do.)  Let's get back to the Times.  First, it takes the President to task for actually thinking the gay marriage issue is important.  How dare he get his knickers in a twist about an amendment aimed at preserving traditional mores and, in many people's minds, saving the whole fabric of society?  But the real kicker for me lurks in the editorial's second paragraph: 

Mr. Bush's central point was that the nation is under siege from "activist judges" who are striking down anti-gay-marriage laws that conflict with their own state constitutions. That's their job, just as it is the job of state legislators to either fix the laws or change their constitutions.

Please note the unproven assumption in the above paragraph that these various state judges are correct when they decide that their respective state constitutions support gay marriage.  That's a pretty big leap of faith.  I say that with special emphasis because I've known so many judges who are, if you'll pardon the expression, drooling idiots who can barely read the Constitution with their fingers tracking slowly under the words and their lips moving.  (And my humble apologies to any judges reading this who are brilliant legal thinkers and who truly possess that rarity, a judicial temperament.  Further, if one of you is reading this, I bet you have some colleagues who fit my description perfectly.)

Just to itself look even more stupid than those judges I described, the Times goes on to say this:

If there's anything the country should have learned over the past five years, it is that Mr. Bush and his supporters have no problem with judicial decisions, no matter how cutting edge, that endorse their political positions. They trot out the "activist judge" threat only when they're worried about getting out their base on Election Day.

This is the same Times, of course, that got itself into an apocalyptic frenzy over the spectre of a Scalia, Roberts or an Alito, all of whom were going to send this country back into the Stone Age.  I don't even want to touch the Times' behavior with regard to Clarence Thomas, in part because, in those days, I have to admit I was cheering the Times on when it mounted its loathsome attacks against him.

Anyway, does anyone take these Times editorials seriously any more, or are they just a more polite version of the usual Left of center rhetoric, aimed at overawing with emotion to hide the lack of any intellectual core?