No Such Thing as "Warrantless Distrust" When It Comes to Government

Ezra Klein laments his fellow citizens' lack of faith in the beneficence represented by the federal government's efforts to provide universal health care, going so far as to diagnose our democracy as "sick" for its faith-deficiency:

What we're seeing here is not merely distrust in the House health-care reform bill. It's distrust in the political system. A healthy relationship does not require an explicit detailing of the "institutional checks" that will prevent one partner from beating or killing the other. In a healthy relationship, such madness is simply unthinkable. If it was not unthinkable, then no number of institutional checks could repair that relationship. Similarly, the relationship between the protesters and the government is not healthy. The protesters believe the government capable of madness. There is no evidence for that claim, which means that there is no answer for it, either. That claim is not about what is in this bill, or what government has done in Medicare and Medicaid and the VA. It is about what a certain slice of Americans think their government -- and by extension, their fellow citizens -- capable of.

Other liberals are also concerned that our messy political process is woefully ill-suited to provide people the programs and services they need--for heaven's sake, we can't let a little thing like people not wanting something prevent them from getting it.

Will Wilkinson does a fine job reminding Ezra why our distrust is justified. But it's important to add that, even were our distrust not so well-earned, red-faced tirades against "the man" are a healthy thing in any event. It should be a badge of honor in a limited republic for legislators to have such a terrible time passing programs and regulations. So-called sick and mindless mobs, in conjunction with the cryptic machinations of our governmental and political processes, help to limit the access by factions to the enormous power vested in the federal government.

Modern progressives have hoped to join forces with the populists, who were also enraged at the system in which they struggle while others enjoy stratospheric success. But, just as the first progressives a century ago, modern progressives are dismayed to find that the populists aren't interested in uprooting capitalism--they just want a shot at being its beneficiaries themselves. The economic bubble-bursting talk went a long way to temporarily drive populists into the progressives' tent, but the highfalutin talk about Keynesian economic theory and egalitarian redistribution of wealth will not resonate with the common "ignorant" American for long. As the town halls are showing, the honeymoon is already over.

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Universal Health Care: Right Idea, Wrong Species

After reading E.D. Kain’s eminently reasonable post today, it occurred to me there is one, and perhaps only one, reason why we all don’t just drop whatever political orientation we happen to have and subscribe to the centrists’ newsletter. That reason is misanthropy; the abiding belief that, being human, we’re bound to screw it all up one way or another. Rightist wingnuts, on the one hand, would likely blow up the whole system sooner than let the other guys get their way. But on the other hand, they'll likely blow the whole system up sooner than let the other guys get their way. It’s irrational, it’s childish, but dammit, it’s honest, and holds no aspirations of erecting a system that's not as clumsy and doltish as we are. And while the leftist nutters would really like to build a better mousetrap, they're too excited and impatient to work with the buzzkill rightists to ever make it happen.

Centrists, on the other hand, threaten to ruin this balanced regime and actually provide a way for these crazy people to accomplish things—and this is not a good thing. Centrists come in and pat everyone on the head and tell us all our feelings are justified, but how swell would it be if we could compromise, and maybe you both have a point, and you can appreciate that if you don’t at least agree on x the debate is going to leave you behind, and on the other hand of course the free market and personal responsibility are good things, and look, here are some charts and graphs and a neat PowerPoint. It’s all very enlightened, and I sometimes find myself wondering why I don’t just warm up to it.

But what ever happened to that idea that man is basically evil, or at least silly and stubborn out of proportion with his meager rational faculty, and that left to his devices he will destroy himself? Or, the secular variation of same—that government is basically evil, or too silly and stubborn, and that left to its own devices, it will destroy us all? We can all appreciate pie charts and calculators, but for heaven’s sake, the housing bubble carcass is still warm—have we already forgotten that that beast was cobbled together with equations so fancy it took a pocket protector and half a dozen letters after your name to understand them? And even those guys were kind of amazed that it worked as long as it did. Numbers are not our salvation. They just give us new and horrifying ways to make us say “I wish I’d not have done that.”

And so it will inevitably go with universal health care. Again, you won’t get any wonkish predictions from me as to how precisely the thing will blow up in our faces—perhaps a smoking disaster like California’s energy “deregulation”; or perhaps a long, slow suffocation like our entitlement programs. One way or another, it’s going to go south on us.

So, although I won’t throw my hat in with the blathering, insipid wingnuts who do little other than heap unhelpful insults on the issues, they’re doing God’s work. Who else is going to take those determined little imagineers with a bloated sense of duty to “humanity” down a notch?

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What Biden Hath Wrought

What Joe Biden began when, as chairman of the Senate Judiciary Committee, he borked Judge Robert Bork, has, as Kevin Drum puts it, been taken to its reductio ad absurdum by Sotomayor's perplexing responses during the confirmation hearings:

And everybody learned their lesson from this: nominate candidates whose views are clear (no more Souters!) and then make sure they say absolutely nothing about those views (no more Borks!). Ginsburg and Breyer invented the technique, Roberts and Alito honed it, and as near as I can tell, Sotomayor has taken it to its reductio ad absurdum apex. If it's something that might come before the court in the future (and everything comes before the Supreme Court eventually), tell 'em it would be inappropriate to answer. If someone asks a more general question, say that you can't really answer in the abstract. If more details are provided, switch gears and say that you can't engage in hypotheticals. As near as I can tell, Sotomayor was barely willing to admit that she had a law degree, let alone that she had any opinions whatsoever regarding the law.

He's not exaggerating. Randy Barnett at Volokh has a mini-compilation of befuddling exchanges with Sotomayor, but here is the run-away favorite:

FEINGOLD: But what would be the general test for incorporation?

SOTOMAYOR: Well...

FEINGOLD: I mean, what is the general principle?

SOTOMAYOR: One must remember that the Supreme Court's analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. Those are newer cases.

And so the framework established in those cases may well inform -- as I said, I've hesitant of prejudging and saying they will or won't because that will be what the parties are going to be arguing in the litigation. But it is...

FEINGOLD: Well...

SOTOMAYOR: I'm sorry.

FEINGOLD: No, no. Go ahead.

SOTOMAYOR: No, I was just suggesting that I do recognize that the court's more recent jurisprudence in incorporation with respect to other amendments has taken -- has been more recent. And those cases as well as stare decisis and a lot of other things will inform the Court's decision how it looks at a new challenge to a state regulation.

Impenetrable indeed.

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Health Care Funding Not Exactly a Controlled Experiment

From WaPo:

House Democrats agreed yesterday to raise taxes on the wealthy to pay for a sweeping expansion of the nation's health-care system, proposing a surtax on the highest earners that could send the top federal tax rate toward 45 percent.

Beginning in 2011, the plan would target all income over $350,000 a year for families and $280,000 a year for individuals, Democratic sources said. The surtax would start at 1 percent, rise to around 1.5 percent for families earning more than $500,000, then step up again, to around 3 percent, for families earning more than $1 million, Democrats said.

The genius of Obama's and the Dems' plan to ram such tax hikes through now, in the midst of our economic woes, is that whatever further and heightened economic woes that are sure to follow cannot possibly be traced back to such policies. You're pretty safe setting fire to houses when a wildfire is already going on.

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Victory Against the Agran Political Machine

A recent California Court of Appeal decision, briefed in large part by yours truly, gave Larry Agran and his cronies a good lashing and ordered them to pay my attorneys' fees. OC Register article on the case here.


UPDATE: Here is Frank Mickadeit's article on the case, including some choice language from the opinion. Here is a synopsis of the case by Ben Pugh, the lead attorney on the case.

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The Booming (Public) Service Industry

John Derbyshire shares the details of a few of New York's 1,325 six-figure pension recipients:

• James Hunderfund, an employee of Commack school district, will retire September 1 with a monthly pension of $26,353.75. (Nothing hunderfunded about his pension plan, ho ho.)

• Richard Brande of Brookhaven-Comsewogue will also be heading for the golf course September 1 with a monthly pension of $24,222.43.

• William Brosnan cleans out his desk at Northport-East Northport July 1, and for the rest of his life will trouser a monthly pension of $19,058.80.

No offense to these guys — well, not much offense — but they are small-town education bureaucrats. Not only will they be getting annual pensions in the quarter-million-dollar range for the rest of their naturals, they are getting these numbers by law. If New York State's pension-fund managers goof on the investments, or the market craters, we taxpayers have to make up the difference.

It's not just edbiz either, though of course edbiz exhibits the greatest outrages. (Can't we please just GET RID OF PUBLIC EDUCATION?) Local-gummint seat-warmers are on the same gravy train.

• Dvorah Balsam of Nassau [County] Health Care Corp., annual pension $191,380.32

• Stanley Klimberg of Long Island Power Authority: $191,380.32.

• Gerald Shaftan, Nassau Health Care Corp. again, $181,457.76.

These folk are all, as no doubt they would be proud to tell you, "public servants." The idea behind that phrase is that they are like butlers or housemaids, placing themselves willingly at the beck and call of us, the sovereign public. So how come we, the sov. pub., spend our twilight years clipping coupons in rusting trailers in the Ozarks while our servants enjoy the beach condo in Maui?

From the looks of it, CEO's and public servants might soon be passing each other in their government-controlled compensation elevator ride.

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Yes, Mr. President, Some People Really Do Still Think Big Government Is A Bad Thing

In pushing his health care agenda, Obama responded to Republican opposition as follows:

“Right now a number of my Republican friends have said, ‘We can’t support anything with a public option,’ ” he said. “It’s not clear that it’s based on any evidence as much as it is their thinking, their fear, that somehow once you have a public plan that government will take over the entire health care system.”

Two thoughts: First, perhaps folks wouldn't be so worried about Obama's government "tak[ing] over the entire health care system" if he wasn't already taking over everything else.

Second, Obama is right to note that the question is not whether the government can provide a viable, universal health care solution. We already seem oddly comfortable after having jumped from one paper trap (mortgage-backed securities, credit default swaps, Gaussian copula functions, etc.) into another (massive federal borrowing leading to impending hyper-inflation). So I doubt we will have have trouble finding the stomach to print the money it will take to make Obama's government health care utopia happen. At least until the bottom falls out.

But the critical objection is not that we are losing sight of economics principles, but of first principles--of self-determination, hardiness, individualism. I quoted this bit from Mark Steyn a few weeks ago, but it is worth the repetition:

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.

Health care is indeed a problem. And unchecked human greed is at the root of much of it. Greedy people are the source of a lot of the world's problems (and a lot of the world's successes). Of course, government is nothing more than the legitimized exercise of will by a small group of people. And while we at least know that CEOs are in it for the money, we can never be quite sure what in the world a politician has his eye on. In that way, while greedy, unscrupulous individuals are bad, we can be certain that politicians are much, much worse.

Thus, why do we believe so easily that the solutions to our problems lie in government? Of course we should "fear" your creeping government, Mr. President. That is the natural order of things.

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Empathy Is Best Served by Adhering to the Law

John Hasnas his this wonderful op-ed at the Wall Street Journal:

As important as compassion and empathy are, one can have these feelings only for people that exist and that one knows about -- that is, for those who are "seen."

One can have compassion for workers who lose their jobs when a plant closes. They can be seen. One cannot have compassion for unknown persons in other industries who do not receive job offers when a compassionate government subsidizes an unprofitable plant. The potential employees not hired are unseen.

One can empathize with innocent children born with birth defects. Such children and the adversity they face can be seen. One cannot empathize with as-yet-unborn children in rural communities who may not have access to pediatricians if a judicial decision based on compassion raises the cost of medical malpractice insurance. These children are unseen.

One can feel for unfortunate homeowners about to lose their homes through foreclosure. One cannot feel for unknown individuals who may not be able to afford a home in the future if the compassionate and empathetic protection of current homeowners increases the cost of a mortgage.

In general, one can feel compassion for and empathize with individual plaintiffs in a lawsuit who are facing hardship. They are visible. One cannot feel compassion for or empathize with impersonal corporate defendants, who, should they incur liability, will pass the costs on to consumers, reduce their output, or cut employment. Those who must pay more for products, or are unable to obtain needed goods or services, or cannot find a job are invisible.

The law consists of abstract rules because we know that, as human beings, judges are unable to foresee all of the long-term consequences of their decisions and may be unduly influenced by the immediate, visible effects of these decisions. The rules of law are designed in part to strike the proper balance between the interests of those who are seen and those who are not seen. The purpose of the rules is to enable judges to resist the emotionally engaging temptation to relieve the plight of those they can see and empathize with, even when doing so would be unfair to those they cannot see.

H/T Stephen Bainbridge

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The Dems and Hispanic Judicial Appointments

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....

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

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.

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

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.

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"Empathy" Is For Quitters

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.”

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How Many "Sexual Orientations" Are There, Anyway?

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?

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Health Care Bill Drafting Plagued By Fiscally Conservative Dems

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.

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

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.

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Community Organizers Turned Policy Makers

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.

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

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?

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If The President Doesn't Make Decisions On Prosecutions, Who Does?

Robert Gibbs made this curious statement on Meet the Press, according to Fox News:

"The president doesn't open or close the door on criminal prosecutions of anybody in this country, because the legal determination of who knowingly breaks the law in any instance is one not made by the president of the United States," he said on NBC's "Meet the Press."

What could this statement mean? Taken at face value, it is true that "the legal determination of who knowingly breaks the law" is made by the trier of fact--either a judge or jury. But this is true of any prosecution. It would be nonsensical to say that a district attorney does not make decision on who to prosecute, since he or she does not make the ultimate determination of guilt.

Instead, it seems like Gibbs is doing some buck-passing on behalf of his boss. That is, whatever happens, it's going to be either because Congress, or Holder, or the slimy custard man made the call. But the Constitution does not vest the authority to execute the law in a congressional sub-committee or an appointed executive official. It vests in the president.

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Meaningless Jobs Are Not Worth Saving or Creating

I stumbled upon this February 2007 article by Thomas Sowell describing how taxpayer money was used to pay for golf courses. Not because of rich old white guys in plaid pants. If there were more of them, no subsidies would have been needed. No, it was because the lower class workers at the courses needed to keep their jobs.

If you put San Francisco's golf courses on the open market, in a city with a serious housing shortage and sky high housing prices, chances are good that the land occupied by golf courses would quickly be bid away by those who would build some much-needed housing.

Of course, this would make the city's municipal golf course workers unhappy. And unhappy municipal workers can be a big problem for a politician, especially if these are union workers.

How have San Francisco's golf courses been kept going when they cost more to maintain than they are receiving in fees from the golfers who use them? Recent renovations alone cost more than $23 million.

According to the San Francisco Chronicle, "the city closed the gap with $16.6 million from state bond funds meant for recreation and park projects in underserved and economically disadvantaged areas." In other words, the poor have once again been used as human shields, this time to protect golfers.

From the sounds of things, instead of moving away from this absurd model, we've turned directly at it and stepped on the accelerator. No one seems to care if all the jobs the government is creating or saving are worth anything to anyone beyond the folks who will get a paycheck and something to keep them occupied on the weekdays.

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Some Thoughts On Yesterday's Debate On The "Torture Memos"

Chapman Law School (my alma mater) yesterday hosted a debate on the so-called "torture memos" between John Yoo and Chapman Dean John Eastman, on the one hand, and Chapman Professors Rosenthal and Darmer, on the other. (See OC Register story here, video here. I won't rehash all of the arguments made, as many of them were repetitive -- liberty versus security, the definition and application of "torture," etc. But one point stood out, as observed by a colleague of mine. There was a fair amount of talk about the first principles of our constitutional republic, and how those are resolved in the face of the "Take Care" clause of Article II section 2 (the president "shall take Care that the Laws be faithfully executed"). The question was answered by both Yoo and Eastman, and can be briefly summarized in that the U.S. Constitution does not create a parliamentary system in which a statute of Congress can abrogate the executive authority conferred by the Constitution, but instead that the Constitution is above statutory law. Thus, the question is not whether the President's actions were unlawful, but whether Congress's statutes were unlawful. But Professor Rosenthal doggedly repeated the "Take Care" clause from his pocket Constitution, to the crowd's delight.

Why would he do this? my colleague asked. Sure he understands the problem, the nature of Yoo's and Eastman's position? Why would he incessantly repeat the argument without at least seeking to advance it beyond the already covered ground?

As I took two courses from Rosenthal, I will note that I was also disappointed in his presentation, but that this is not indicative of the way he ran his classes, at least when I was there. I took Criminal Procedure and First Amendment from Rosenthal, and he is a tough, persistent oralist. I think the emotional component of the issue got the better of him yesterday, something that never happened in his classrooms.

As for the arguments themselves, Rosenthal has a somewhat narrow view of what qualifies for constitutional/legal discussion, and for that reason is extremely unreceptive to natural law or background principles. His view seems to be, if it does not lend to a result that can be demonstrably justified with current data to a contemporary “we the people,” it doesn’t qualify for legal debate. He loves to remark that many historians are puzzled when jurists cite examples from history, since those historians themselves cannot agree on history’s meaning and lessons. Instead, he prefers to cite social science data to come up with pragmatic justifications of what a “reasonable” search and seizure might be. He does not seem to be troubled that such data can come up against the very same argument as history – it can be used to prove anything. Perhaps social scientists are less willing to admit the limits of their craft than historians are.

Given all that, certainly Rosenthal understands the point that we are not a parliamentary system of government. As he is a participant in a debate, of course, it is in his best interests to just ignore the point – most folks will respond more favorably to the “plain,” unscrutinized meaning of the Take Care clause. The argument from constitutional first principles is even an uphill one in the academic community at large, so, if you’re Rosenthal, better to just leave it alone than to give the other side the opportunity to advertise and explicate the position.

Is it honest? No. If he were a lawyer, there would be no problem with ignoring, as long as possible, a legitimate view that, if accepted, would demolish his own. [Come to think of it, there are problems with that.] As a professor in a debate about the law (i.e., rather than over a particular outcome), however, it was improper and a disappointment.

[Find the full debate podcast here.]

[See Stephen F. Hayes's article, "The CIA interrogation debate is joined," at The Weekly Standard, on the Obama administration's double-talk on the interrogation issues.]

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