The Dems and Hispanic Judicial Appointments

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Worth reading over at Powerline:

If you don't read anything else today, read Byron York's searing account of what happened last time a brilliant Hispanic jurist was nominated to a high-profile appellate post:

Born in Honduras, [Miguel] Estrada came to the United States at 17, not knowing a word of English. He learned the language almost instantly, and within a few years was graduating with honors from Columbia University and heading off to Harvard Law School. He clerked for Supreme Court Justice Anthony Kennedy, was a prosecutor in New York, and worked at the Justice Department in Washington before entering private practice.

Estrada's nomination for a federal judgeship set off alarm bells among Democrats. There is a group of left-leaning organizations -- People for the American Way, NARAL, the Alliance for Justice, the Leadership Conference on Civil Rights, the NAACP, and others -- that work closely with Senate Democrats to promote Democratic judicial nominations and kill Republican ones. They were particularly concerned about Estrada.
In November, 2001, representatives of those groups met with Democratic Senate staff. One of those staffers then wrote a memo to Democratic Sen. Richard Durbin, informing Durbin that the groups wanted to stall Bush nominees, particularly three they had identified as good targets. "They also identified Miguel Estrada as especially dangerous," the staffer added, "because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible."

It was precisely the fact that Estrada was Hispanic that made Democrats and their activist allies want to kill his nomination. They were determined to deny a Republican White House credit, political and otherwise, for putting a first-rate Hispanic nominee on the bench.

They succeeded, too. They filibustered Estrada for years and he never made it onto the bench. So, when you see Barack Obama--who voted to filibuster Sam Alito!--piously denouncing "the political posturing and ideological brinksmanship that has bogged down this process" in the past, remember Miguel Estrada. Somewhere on this earth, there is a worse hypocrite than Barack Obama. I just can't think who he is offhand....


Should Judicial Appointments Be Used As a Mechanism to Quell Racial Tensions?

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Bill Handel this week extolled Obama for picking a Latina for a high position of power, explaining how it was a carefully calculated move to help mend relations between blacks and Hispanics. Two problems with this. First, aren't distinctions based on race supposed to be bad? This is not the same argument against affirmative action as "reverse racism." Affirmative action involves the idea of "setting things right," of "leveling the playing field" to make up for years of abuse of legal and political rights and processes. That is, because whites enjoyed power and wealth off the backs of minority groups for a period of time, some degree of promotion of minority groups ought to be permitted. In this way, the argument goes, we might achieve a degree of parity that we might otherwise not achieve, and thus truly become color blind.

But the Sotomayor appointment is different. As Handel argues, there are petty grievances between two minority groups, and we have a chance to fix it by doling out positions of power to selected members of those groups. That is, the appointments are made not because one group has been disadvantaged, as is the case in the affirmative action model. They are made instead because, without the appointments, some irascible members of the groups will continue to feel slighted, and the clash between the two groups will continue. This is a different sort of racial realism. And I find it extremely disappointing. Even if such racially motivated appointments quell these conflicts (which seems highly dubious to begin with), do they deserve to be quelled? And what about the costs? Are we to sacrifice the integrity of our crucial governmental functions to placate injured egos, to balance the demands of thugs?

Decisions based on race are infuriating. There is no end to the complications that are created when we make decisions based on race in the hopes of ending the practice of making decisions based on race. The answer is much simpler than that: stop making decisions based on race.


The Case for Marriage As a Cultural Institution

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I found Sam Schulman’s article, The Worst Thing About Gay Marriage, very interesting. It seems to suggest that the modern concept of marriage is already a bit off its traditional rocker, and that gay marriage would go the rest of the distance towards making it utterly meaningless. That is, the historical aims of marriage included protecting women and children, promoting chastity, defining the moment of transition from life as a child to life as an adult, are less relevant today. But, as applied to gays, they have absolutely zero relevance. Instead, marriage for the gay movement is seen merely as the next stage of romantic progression. This is a dangerous truncation of marriage, which traditionally had much broader impact on culture and individual and social human development. Ultimately, Shulman believes, gays will bore of it, everyone else will forget what it means, and the entire institution will die. Hard to say if that’s exactly how it will happen, but it’s a compelling argument.

The entity known as "gay marriage" only aspires to replicate a very limited, very modern, and very culture-bound version of marriage. Gay advocates have chosen wisely in this. They are replicating what we might call the "romantic marriage," a kind of marriage that is chosen, determined, and defined by the couple that enters into it. Romantic marriage is now dominant in the West and is becoming slightly more frequent in other parts of the world. But it is a luxury and even here has only existed (except among a few elites) for a couple of centuries—and in only a few countries. The fact is that marriage is part of a much larger institution, which defines the particular shape and character of marriage: the kinship system.

The role that marriage plays in kinship encompasses far more than arranging a happy home in which two hearts may beat as one—in fact marriage is actually pretty indifferent to that particular aim. Nor has marriage historically concerned itself with compelling the particular male and female who have created a child to live together and care for that child. It is not the "right to marry" that creates an enduring relationship between heterosexual lovers or a stable home for a child, but the more far-reaching kinship system that assigns every one of the vast array of marriage rules a set of duties and obligations to enforce. These duties and obligations impinge even on romantic marriage, and not always to its advantage. The obligations of kinship imposed on traditional marriage have nothing to do with the romantic ideals expressed in gay marriage.

Consider four of the most profound effects of marriage within the kinship system.
The first is the most important: It is that marriage is concerned above all with female sexuality. The very existence of kinship depends on the protection of females from rape, degradation, and concubinage. This is why marriage between men and women has been necessary in virtually every society ever known. . . .

. . . .

Second, kinship modifies marriage by imposing a set of rules that determines not only whom one may marry (someone from the right clan or family, of the right age, with proper abilities, wealth, or an adjoining vineyard), but, more important, whom one may not marry. Incest prohibition and other kinship rules that dictate one's few permissible and many impermissible sweethearts are part of traditional marriage. Gay marriage is blissfully free of these constraints. There is no particular reason to ban sexual intercourse between brothers, a father and a son of consenting age, or mother and daughter. . . . [Incidentally, I have argued the same thing here, here, and here.]

Third, marriage changes the nature of sexual relations between a man and a woman. Sexual intercourse between a married couple is licit; sexual intercourse before marriage, or adulterous sex during marriage, is not. . . .

Now to live in such a system, in which sexual intercourse can be illicit, is a great nuisance. Many of us feel that licit sexuality loses, moreover, a bit of its oomph. Gay lovers live merrily free of this system. Can we imagine Frank's family and friends warning him that "If Joe were serious, he would put a ring on your finger"? Do we ask Vera to stop stringing Sally along? Gay sexual practice is not sortable into these categories—licit-if-married but illicit-if-not (children adopted by a gay man or hygienically conceived by a lesbian mom can never be regarded as illegitimate). Neither does gay copulation become in any way more permissible, more noble after marriage. It is a scandal that homosexual intercourse should ever have been illegal, but having become legal, there remains no extra sanction—the kind which fathers with shotguns enforce upon heterosexual lovers. I am not aware of any gay marriage activist who suggests that gay men and women should create a new category of disapproval for their own sexual relationships, after so recently having been freed from the onerous and bigoted legal blight on homosexual acts. But without social disapproval of unmarried sex—what kind of madman would seek marriage?

Fourth, marriage defines the end of childhood, sets a boundary between generations within the same family and between families, and establishes the rules in any given society for crossing those boundaries. Marriage usually takes place at the beginning of adulthood; it changes the status of bride and groom from child in the birth family to adult in a new family. . . .

These four aspects of marriage are not rights, but obligations. They are marriage's "a priori" because marriage is a part of the kinship system, and kinship depends on the protection, organization, and often the exploitation of female sexuality vis-à-vis males. [I will add that this is the reason we have witnesses at wedding ceremonies—they are not merely witnesses to a sweet, romantic event; they are witnesses to the new marital duties being created.] None of these facts apply at all to love between people of the same sex, however solemn and profound that love may be. In gay marriage there are no virgins (actual or honorary), no incest, no illicit or licit sex, no merging of families, no creation of a new lineage. There's just my honey and me, and (in a rapidly increasing number of U.S. states) baby makes three.

What's wrong with this? In one sense, nothing at all. . . . But without these obligations—why marry? Gay marriage is as good as no marriage at all.

Sooner rather than later, the substantial differences between marriage and gay marriage will cause gay marriage, as a meaningful and popular institution, to fail on its own terms. Since gay relationships exist perfectly well outside the kinship system, to assume the burdens of marriage—the legal formalities, the duty of fidelity (which is no easier for gays than it is for straights), the slavishly imitative wedding ritual—will come to seem a nuisance. People in gay marriages will discover that mimicking the cozy bits of romantic heterosexual marriage does not make relationships stronger; romantic partners more loving, faithful, or sexy; domestic life more serene or exciting. They will discover that it is not the wedding vow that maintains marriages, but the force of the kinship system. Kinship imposes duties, penalties, and retribution that champagne toasts, self-designed wedding rings, and thousands of dollars worth of flowers are powerless to effect.

. . . .

As kinship fails to be relevant to gays, it will become fashionable to discredit it for everyone. . . .
In other words, marriage used to be a part of enforcing cultural mores and perpetuating a way of life. Now, that enterprise is taboo. Interestingly, gay-marriage proponents are not content with merely toppling traditional mores, and instead want to force open the definitions to suggest that such traditions now include and embrace them. They don’t want to kill the chief, they want to wear his feathers and rule the same old village with their brave new rules. Schulman believes that it will never work. Either the natives will kill the new “chief” and preserve the old order, or they will all eventually agree that the headdress has no meaning, and collectively cast it away.

(Ironically, I was referred to Schulman’s article by Ed Brayton, who posted his own write-up of the piece, with his usual staggeringly high ratio of insults-to-analysis, under the title “The Dumbest Anti-Gay Marriage Argument Ever.”)


You May Need a Permit to Conduct Home Bible Studies

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Here's another frightening story. What is it with San Diego?

SAN DIEGO -- A local pastor and his wife claim they were interrogated by a San Diego County official, who then threatened them with escalating fines if they continued to hold Bible studies in their home, 10News reported.

Attorney Dean Broyles of The Western Center For Law & Policy was shocked with what happened to the pastor and his wife.

Broyles said, "The county asked, 'Do you have a regular meeting in your home?' She said, 'Yes.' 'Do you say amen?' 'Yes.' 'Do you pray?' 'Yes.' 'Do you say praise the Lord?' 'Yes.'"

The county employee notified the couple that the small Bible study, with an average of 15 people attending, was in violation of County regulations, according to Broyles.

Broyles said a few days later the couple received a written warning that listed "unlawful use of land" and told them to "stop religious assembly or apply for a major use permit" -- a process that could cost tens of thousands of dollars.

[Update: The county backs off.


Why Obama's Economic Policies Failed Even Before They Saw the Light of Day

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Mark Steyn gets this one right on the money:

But forget the money, the deficit, the debt, the big numbers with the 12 zeroes on the end of them. So-called fiscal conservatives often miss the point. The problem isn't the cost. These programs would still be wrong even if Bill Gates wrote a check to cover them each month. They're wrong because they deform the relationship between the citizen and the state. Even if there were no financial consequences, the moral and even spiritual consequences would still be fatal. That's the stage where Europe is.


The Effects of Obama's Cowboy Economics

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This is absolutely wild.

May 19, 2009
Letter from a Dodge dealer
letter to the editor
My name is George C. Joseph. I am the sole owner of Sunshine Dodge-Isuzu, a family owned and operated business in Melbourne, Florida. My family bought and paid for this automobile franchise 35 years ago in 1974. I am the second generation to manage this business.

We currently employ 50+ people and before the economic slowdown we employed over 70 local people. We are active in the community and the local chamber of commerce. We deal with several dozen local vendors on a day to day basis and many more during a month. All depend on our business for part of their livelihood. We are financially strong with great respect in the market place and community. We have strong local presence and stability.

I work every day the store is open, nine to ten hours a day. I know most of our customers and all our employees. Sunshine Dodge is my life.

On Thursday, May 14, 2009 I was notified that my Dodge franchise, that we purchased, will be taken away from my family on June 9, 2009 without compensation and given to another dealer at no cost to them. My new vehicle inventory consists of 125 vehicles with a financed balance of 3 million dollars. This inventory becomes impossible to sell with no factory incentives beyond June 9, 2009. Without the Dodge franchise we can no longer sell a new Dodge as "new," nor will we be able to do any warranty service work. Additionally, my Dodge parts inventory, (approximately $300,000.) is virtually worthless without the ability to perform warranty service. There is no offer from Chrysler to buy back the vehicles or parts inventory.

Our facility was recently totally renovated at Chrysler's insistence, incurring a multi-million dollar debt in the form of a mortgage at Sun Trust Bank.



This is beyond imagination! My business is being stolen from me through NO FAULT OF OUR OWN. We did NOTHING wrong.

This atrocity will most likely force my family into bankruptcy. This will also cause our 50+ employees to be unemployed. How will they provide for their families? This is a total economic disaster.


I beseech your help, and look forward to your reply. Thank you.


George C. Joseph
President & Owner
Sunshine Dodge-Isuzu


Empathy Means Going Under the Needle

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The NY Times on California Supreme Court Justice Carlos R. Moreno's empathy:

His opinions are measured in tone but show an eye for telling detail. A 2005 case involved a dispute over child support after the breakup of a lesbian couple. In reversing a lower-court decision that denied child support, Justice Moreno described the complex interplay of laws defining parenthood and signs of intent to form a lifelong commitment, but cut through the technicalities with a mention that “Elisa obtained a tattoo that read ‘Emily, por vida,’ which in Spanish means ‘Emily, for life.’ ”
Perhaps in the future lawyers will need to start asking clients whether they would consider having their requested relief tattooed across their backs. "Workers' Comp Por Vida."


Why Do Atheists Confuse God with Santa, the Easter Bunny, and the Slimy Custard Man?

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Tim Sandefur links to this story, in which Lydia McGrew explains "Why I don't teach my kids that Santa Claus is real." As Sandefur synopsizes, it's because "when kids realize there is no Santa Claus they might also start wondering about God." He complains that "McGrew gives no principled reason for believing in the existence of one but not the other; no explanation of why the arguments that apply to one would not also apply to the other--nothing but a bare assertion that God is 'different. He's real.'"

I am always befuddled that otherwise hyper-intelligent folks fail to grasp that God is a fundamentally different kind of being than Santa, or the Tooth Fairy, or aliens studying Hegel on Mars. When you talk about a claim, such as the existence of God, which, when rejected, undermines the possibility of making intelligible all other claims, that’s fundamentally different than rejecting the existence of the Stay-Puft marshmallow man. As Greg Bahnsen once put it, if I reject the idea that there are so many pounds of Cocoa Puffs in the world, that claim doesn’t have an effect on many other things. But when I reject the transcendental basis for causation, induction, and an objective morality, that's extraordinary.


"Empathy" Is For Quitters

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Many conservatives, myself included, have seized upon Obama's "empathy" litmus for determining his appointment for the next Justice of the Supreme Court. The argument is that "empathy" is a code word for judicial activism, and judicial activism is bad. The most natural counter to the argument, then, is to pick apart the term "judicial activism." The argument proceeds in two parts. First, "judicial activism" is a bastardized term thrown around to mean simply "any judicial decision one happens not to like." Second, judicial activism is inescapable anyway, so we should just embrace it.

As to the first point, it is true that judicial activism is often wrongfully confused with “judicial review,” which is simply what courts do when they conclude that two laws are irreconcilable, and strike down the lesser to preserve the integrity of the greater. Tim Sandefur has a good explication of this here. Judicial activism is best understood as a corollary of political activism. Where political activists petition and exploit the political system in order to advance a particular policy objective, judicial activism is the petitioning and exploitation of the judicial system to advance a particular policy objective. It can be troubling when certain activists do this, such as environmental groups, or class action tort lawyers. The courts have developed an elaborate doctrine of “standing” to prevent some of the more egregious abuses of this, in fact. That is, if you’re not someone who was actually harmed by a particular law, you have no business petitioning against it through the judicial process—and the court will tell you so.

The real problem with judicial activism is when judges exploit the judicial system to advance their personal policy objectives. This occurs, as Orin Kerr over at The Volokh Conspiracy describes, when all the legal arguments only get you to a little better than 50% chance of getting the thing right. What you’re left with, the argument goes, is nothing more than personal policy preference of the particular judge. Thus, there’s no escaping judicial activism, and all the conservatives should just put a cork in the objections to Obama’s “empathy” talk. After all, if a judge cannot escape using his or her personal preferences, we should hope for something friendly-sounding, like judges with empathy, rather than something nasty-sounding, like judges who like to hurt puppies and draw Hitler mustaches on people’s pictures.

But this resigned acceptance of “judicial activism” is disconcerting. Ed Brayton explains why he thinks judicial activism (in particular, infusing “empathy” into judicial decision-making) is no big deal.

Which makes me laugh because "activist judge" is sort of the ultimate judicial code word. All of this highlights the split between formalism and legal realism, which roughly (but only roughly) corresponds to the conservative/liberal divide. Conservatives generally believe that judicial decisionmaking is merely a question of process; apply the proper rules of interpretation and you reach an objective, non-ideological, non-political conclusion.
This is nonsense, of course; conservatives are no less likely to have their values and political views influence their judicial decisionmaking than liberals, they just pick the process that leads to the result they want (and ignore that process when it doesn't reach that result; yes, I'm looking at you, Justice Scalia in the Raich case).
But need we throw in the towel so soon? There is no shortage of theories of legal and constitutional interpretation. Sure, anyone could make the argument that what a judge was really doing was imposing a personal preference, and using originalism, anti-majoritarianism, democracy-maximization, egalitarianism, or what-have-you as a mere pretext to get there. So what? Let them. If it’s a pretext, dissect the judge’s reasoning and expose the flaws. That is what the western Enlightenment tradition is good for. I suspect that a good many judges hop around from one theory to another for lots of different reasons—perhaps because they are concerned more about outcome than process; perhaps because they believe different cases call for different judicial theories; or perhaps because, well, judging is just hard and judges don’t have it all figured out yet.

Whatever is happening below the surface, the judge has to give reasons. Strictly speaking, “the judicial power” that the Constitution vests in the Court does not permit judicial activism. A judge has to come up with a decision based on reasons, not just conclusions. Judges might not help having conclusions before they have reasons. But reasons must be given. And the hope is that, in the process of giving them, the knee-jerk conclusion would give way to one that follows naturally from legal premises.

But the one thing we should not do it tell judges to hang it up, forget about jurisprudence, about consistency, about exercising judicial power. Instead, when things get tough, ask the litigants to show you their bank accounts, and go with the one who could use a little boost.

Judges may use whatever process supported by reason they deem fit to decide a particular case. “Empathy,” however, is not such a process. It is, to repeat Kerr, “an invitation to replace law with politics.”


How Many "Sexual Orientations" Are There, Anyway?

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Ed Brayton thinks it’s silly to suggest that the definition of “sexual orientation” under a proposed federal hate crime law could be interpreted to mean more than just homosexuals. According to Rep. Steve King:

"The definition for sexual orientation was defined by one of the principal authors, Tammy Baldwin of Madison, Wisconsin, as being either heterosexual or homosexual. Well, so within that definition, though, of sexual orientation by the American Psychological Association you've got a whole list of proclivities -- they call them paraphilias -- and in that list, among them are pedophiles.

I’ll grant that this is not the tack I would take. But the review of these claims by PolitiFact is too quick to dismiss the kernel of truth to the argument. Black’s Law Dictionary, as cited by PolitiFact, defines “sexual orientation” as “A person's predisposition or inclination toward a particular type of sexual activity or behavior; heterosexuality, homosexuality or bisexuality.” Even PolitiFact concedes that “That first part seems to lend some weight to King's argument.” But that should be dismissed, PolitiFact says, because the “working definition” of the term, both by federal and state governments, has held to mean simply gays, lesbians, and heterosexuals. Therefore, the argument goes, “It's laughable,” that anyone would worry that the definition might be expanded at some indeterminate point in the future.

But is it really? Would it have been silly to wonder whether Title VII’s prohibition of “gender” discrimination extended to transvestites? The circuits currently split on the issue aren’t laughing. As the elastic cultural waistband continues to expand, more and more sorts of activities will start to seem less and less objectionable. Perhaps pedophilia is a bad example of a proclivity in queue for imminent embrace. But polygamy might not be. We’ve even got an HBO show about it. And incest practitioners have been lurking in the shadows, and I’m sure they would appreciate it if we all got less queasy about their particular “orientation.” As soon as these groups see their political opening, a friendly neighborhood ACLU lawyer will be ready to seize on loose-fitting terms like “sexual orientation,” and argue that the “working definitions” that stodgy, knuckle-dragging officials have clung to for so long have no place in the ever-expanding openness of our morally neutral society.

We commit ourselves to the objective meanings of the words and terms that we choose for our laws. I quite agree that we have no firm idea of what exactly we are committing ourselves to with a term like “sexual orientation.” If we just mean gay, lesbian, and heterosexual, let’s just say that. Who’s afraid of a few extra syllables?


Will Those Judges Who Look to International Law Consider Mexican States Defining a Fetus as a Person?

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Apparently, there are ten Mexican states that define a "person" something like the way Guanajuato decided to do last week: as "all human beings from conception to natural death." Left-leaning judges tend to be warm to the idea of looking to international precedent for human rights issues. It would be interesting to see if anything is made of the Mexican trend were the issue to come up.

H/T Religion Clause


Health Care Bill Drafting Plagued By Fiscally Conservative Dems

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The Times reports that fiscally moderate to conservative democrats are being excluded from the bill-drafting process:

The lawmakers, members of the fiscally conservative Blue Dog Coalition, said they were “increasingly troubled” by their exclusion from the bill-writing process.

. . . .

Centrist Democrats said they fully endorsed President Obama's goal of guaranteeing access to health insurance and health care for all. But, they said, they are concerned about the cost of the legislation, which could easily top $1 trillion over 10 years. And they want to be sure that the role of any new government-sponsored insurance program, expected to be a centerpiece of the bill, is carefully delineated.
Seems the war against conservatism knows no party lines.


Obama's Push For Credit Card Legislation Could Use Less Demagoguery

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I've noted elsewhere that, though I'm generally a supporter of free markets and freedom of contract, I think credit cards are something like an "attractive nuisance." The present upsides are too enticing, and the latent traps are too understated. The credit card is an unnatural, unholy beast to begin with, so I have little problem with regulating them.

So, if it's so easy to bash credit cards, why does Obama feel the need to conscript "rights" talk into his rhetorical campaign against them? Fox News reports that, just today, Obama said:

Americans . . . . have a right to not get ripped off by the sudden rate hikes, unfair penalties and hidden fees that have become all-too common."
Certainly, "ripped off" is a self-serving term. If credit card companies were really ripping people off--i.e., breaking their contracts--they would be liable for, well, breach of contract, and we wouldn't need new legislation. What he's really getting at is that credit card companies shouldn't be able to structure agreements that allow them to hike rates the way they do. And perhaps they shouldn't.

But there is no "right" that any of us have to be able to have credit cards with terms all to our liking. At least, not until Obama and his Congress give us one. It is this loose talk about "rights" that keeps us all inebriated with a sense of entitlements--to afford an unwieldy mortgage, to have broadband internet, to full-coverage healthcare, etc.


National Mock Trial Group Agrees To Accommodate Sabbath Needs

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From Religion Clause:

Under intense pressure, the National High School Mock Trial Competition yesterday, at the last minute, agreed to a compromise that will accommodate the Sabbath observance needs of the Jewish team members from Maimonides High School of Brookline, Massachusetts in this week end's tournament. (See prior posting.) JTA reported that the team will be permitted to start the competition Thursday afternoon and, if Maimonides reaches the finals, the start of the championship round will be delayed from 5 p.m. until 9:30 p.m., after sundown, on Saturday. Maimonides had originally wanted all of its rounds scheduled on Thursday and Friday-- a change that organizers said was unreasonable.
Does this deserve the collective "oh, jeez" it certainly would have received if were an Islamic accommodation?


U.S. to Condemn Land for Flight 93 Memorial

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The federal government will use eminent domain to assemble land to build a memorial to Flight 93 and its passengers who diverted terrorist hijackers. I can think of no better way to honor the heroes who gave their lives defending freedom than to forcibly confiscate other citizens' property.


States Now Rely On Federal Government More Than Themselves

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I find this just terrifying. If state revenue is now channeled through the federal government--who may attach what strings it likes--just what is the point of a federalist system of government in the first place? Will state lines soon be nothing more than a convenient way of describing one's geo-coordinates, a quaint historical quirk in a neo-nationalist megastate?

H/T Volokh


Community Organizers Turned Policy Makers

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In the bookstore flipping through Why I'm A Democrat, was struck by this quote from Maira Kalman: "I am a Democrat because I have a sense of humor! And a love of people! And democracy! And strawberry cheesecake! And a love of Spinoza!" Well, that about sums up the notion of too many folks who think that political parties are nothing more than aggrandized hobby clubs tired of having to influence everyone to their point of view, and who realized that, through politics, one need only convince 51% to secure hegemony of perspective.

This seems to be the big fight of our day--not the issues themselves (we will always lock horns on issues)--but instead the means we will restort to in advancing our respective points of view. It is a dangerous thing to use our sacred constitutional system to institutionalize some sort of lemonade-stand mojo.


Obama Will Replace Souter With Someone Who Cares About The Rule Of Law? Don't Count On It

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Faced with the unexpected delight of appointing his first Supreme Court justice, Obama has said that he will seek to fill Souter's seat with some one "dedicated to the rule of law." And yet then he went on to give these remarks, suggesting he will appoint someone who understands that "justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives." The NY Times reports:

[M]ore than anything else, he is a pragmatist who urged those around him to be more keenly attuned to the real-life impact of decisions.

. . . .

Though Mr. Obama rarely spoke of his own views, students say they sensed his disdain for formalism, the idea — often espoused by Justices Scalia and Clarence Thomas, but sometimes by liberals as well — that law can be decided independent of the political and social context in which it is applied.

. . . .

Former students say that Mr. Obama does not particularly prize consistency or broad principle. . . .

This all seems to be consistent with what he warned us of during his candidacy:
[I]n the overwhelming number of Supreme Court decisions, that’s enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsb[u]rg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And 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 criteria by which I’ll be selecting my judges. Alright?


No Legitimate Secular Purpose In Religion Bashing

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Religion Clause reports that the district court for the central district of California recently found that there was no legitimate secular purpose in a high school science teacher's characterization of Creationism as "superstitious nonsense."