Category ►►► Supreme Beings of Sleazure

December 7, 2012

Consummatum Non Est

With the very welcome news that the Supreme Court has agreed to decide the validity of California's state-constitutional ban on same-sex marriage (SSM), I am optimistic that we will finally get a ruling that states can indeed ban the practice -- that nothing in the United States Constitution explicitly states, or even implies, that so-called "gay marriage" be mandated. (Perhaps not the best word choice, but let it go.)

But I rise to object to a tendentious "summary" iterated in many news articles, varying slightly but always boiling down to this: "The Supreme Court will decide whether homosexuals are allowed to marry in California."

No, that's not what they will decide; it's already legal in California and in every other state in the nation for gays to marry... so long as they marry members of the opposite sex (except for D.C. and the handful of states that do allow SSM).

The point is neither fatuous nor trivial: Marriage is not primarily a sexual distinction, else all the unmarried would be celebate, and all the never-married virgins. Anybody believe that's generally true in any state anywhere?

Marriage is a legal and a social distinction; sex and procreation are usually implied but are not mandatory: No law requires married couples to have sex with each other, and the idea that a marriage is not valid unless and until it is "consumated" hasn't been true under the law for many decades, at least not in California. (It was even debunked in an early episode of Perry Mason, back in the 1950s.)

There are many good reasons for a gay man and a lesbian to marry; for the most obvious, they might both want natural children, conceived by the husband and borne and birthed by the wife. Or the couple might want the legal tax and estate advantages conferred by marriage.

Being married implies a commitment; a gay man and a lesbian might well want to commit to each other for life-long goals, such as buying a house or raising children. Or a gay man and lesbian might prefer the traditional division of one person working outside the house for income, the other keeping house, even though they're sexually attracted to members of the same sex. It's even possible that they might both be religious, might want to marry, but don't want to defy the teachings of their faith.

For a more notorious purpose, they might be partners in crime who want to prevent each from testifying against the other. Oh well.

Similarly, two heterosexual men or women are likewise banned from marriage. There are reasons why straights might want to marry, all the same reasons above for those who don't want to be anchored (shackled?) to someone of the opposite sex. Two old biddies might want to marry for tax, medical, insurance, estate, or other socioeconomic benefits or advantages, but not want the stress of being around men. However, California currently bans non-sexual same-sex marriage exactly the same as it bans sex-based SSM. (In fact, Proposition 8 does not even mention the words "homosexual" or "heterosexual," or any variation; the meat of it reads, "Only marriage between a man and a woman is valid or recognized in California.")

What the Court will decide (we hope!) in this part of its eventual decision is whether California, or any other state, can bar men from marrying men and women from marrying women -- nothing more. Not whether gays can marry, but whether states can restrict marriage to opposite-sex couples.

(Although it's conceivable, it's extraordinarily unlikely the Court would rule that SSM is ipso facto unconstitutional; it will only decide whether states can ban SSM... I'm confident it will not rule that states must ban SSM. If it did, I would likely oppose it on grounds of Federalism.)

For that reason, I believe California's Proposition 8, the law in question, does not discriminate on the basis of sexual orientation: Homosexuals and heterosexuals currently have the same marital rights here, the right of an unmarried person to marry a person of the opposite sex, who is not too closely related to the spouse, is not already married, and is of legal age. Rather, Proposition 8 properly discriminates on the basis of gender: Men are essentially different from women, and states certainly have a rational basis -- even a compelling governmental interest -- to maintain that distinction anent legal marriage.

Just setting the record straight. (There's that pesky word-choice thingie again. Dang!)

Hatched by Dafydd on this day, December 7, 2012, at the time of 4:12 PM | Comments (0)

July 1, 2012

Kudos to CBS... and How Often Do You See that on Big Lizards? Updated, see bottom

In an startling and heartening burst of sanity, the CBS News Chief Political and Legal Correspondent, Jan Crawford, pens a piece reporting that, as many suspected, Chief Justice John Roberts originally voted with conservative justices to strike down the individual mandate.

Then some time later, he changed his vote to align himself with the liberal justices... after he had suffered the slings and arrows of outrageous importuning, bullying, and lightly veiled threats from Left-leaning news readers, from congressional Democrats, and from la Casa Blanca itself:

Chief Justice John Roberts initially sided with the Supreme Court's four conservative justices to strike down the heart of President Obama's health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy - believed by many conservatives to be the justice most likely to defect and vote for the law - led the effort to try to bring Roberts back to the fold....

Over the next six weeks, as Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it....

There were countless news articles in May warning of damage to the Court - and to Roberts' reputation - if the Court were to strike down the mandate. Leading politicians, including the President himself, had expressed confidence the mandate would be upheld.

Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.

It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, "wobbly," the sources said.

The three conservatives (Justices Antonin Scalia, Clarence Thomas, and Samuel Alito) and the more libertarian Justice Anthony Kennedy, are evidently furious with Roberts for his betrayal of his first vote and throwing away the chance to put an emphatic exclamation point to the slap-back against the creeping cancer of the Commerce-Clause. So irate that the quartet utterly refused to join in any portion of Roberts' opinion, even the parts with which they (separately) concur:

The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress' power under the Commerce Clause, the sources said.

Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate.

This is an amazing (and developing) story. I am not a lawyer, nor do I play one on the internets; I am certainly unable to pronounce on the accuracy or truthfulness of Crawford's analysis. But surprising congratulations are in order to her and to her employer, CBS News, for having the courage to grab the Big Stick by the tail and look the facts in the face.

Cross-posted on Hot Air's rogues' gallery...

Korso adds: If the CBS story is even remotely true, it's almost too terrifying to contemplate. Roberts' actions don't even comport with the standards established for jurors at a trial, who are explicity instructed not to allow any outside influences to taint their objectivity in weighing evidence. For the Chief Justice of the Supreme Court to render a decision based on how it "looks" to the media establishment and a bunch of left-wing rabble rousers would be an utter betrayal of his oath to uphold the Consitution. You might as well have mob rule.

Hatched by Dafydd on this day, July 1, 2012, at the time of 4:41 PM | Comments (0)

June 29, 2012

An Equal and Opposite Distraction

Yesterday, the Democrats threw themselves a pretty good party. There were the usual suspects dancing with lampshades on their heads (the DNC's Patrick Gaspard: "It's consitutional. Bitches.") and streaking through the front yard (Obama himself: "Still a BFD."); but in the cold light of day, it appears as though a bit of a hangover has set in. Quoth Bill Nelson, the erstwhile Senator from my home state of Florida:

A lot of us feel the health-care law wasn’t perfect. But it was needed. Our system was broken and we had to do something. Insurance companies were refusing to cover people or dropping those who got sick. So, we passed legislation to prevent insurers from running roughshod over people. And today, the Supreme Court upheld most of these reforms. Now, I think it’s time we finish the job of fixing our economy and creating more jobs.

Move along, folks, nothing to see here.

I've actually heard a few Dems using that same talking point, about how we needed to "do something" about health care, as if this in and of itself is a noble act. Lost in translation is whether or not ObamaCare is the right thing to do, a question that Nelson never answers.

It's not surprising, though. Nelson is in a tight re-election race; and while he has to justify his original vote in favor of ObamaCare, he also has to face a lot of voters who are outraged over yesterday's Supreme Court ruling. Simply put, he wants to get on both sides of the issue.

I imagine you'll see a lot of Dems parroting this same talking point in the coming months. Personally, I'm thrilled. Charlie Crist tried it in 2010, and now he's doing late-night TV ads for an ambulance-chasing law firm.

If enough voters catch on, perhaps we can consign the rest of the Dem Senate majority to a similar fate.

Hatched by Korso on this day, June 29, 2012, at the time of 1:38 PM | Comments (2)

June 28, 2012

Attack of the Robes - Updated, see bottom

Sigh. If only this set of Supremes had taken a cue from their Motown counterparts: "Set me free, why don't you, babe? Get out my life, why don't you babe?"

That's certainly the message the majority of the American public sent to Congress in 2010, when Republicans made historic gains and Democrats scratched their heads wondering how they could tailor their message to make Joe Sixpack understand that the dog turd of health care "reform" they had passed was really a chocolate truffle.

Alas, the Supreme Court -- Justice Roberts in particular -- seems to have missed the memo, if the legal calisthenics they just went through to uphold ObamaCare are any indication.

So a mandate to buy health insurance that isn't permitted under the Constitution's Commerce Clause is permitted under the tax code? That's a distinction without a difference -- or, as we say out here in the real world, bullcrap.

This should be an object lesson to any politician out there who lets bad legislation skate with the thought that the Supreme Court will straighten the mess out later. It didn't work with George W. Bush and campaign finance reform, and it didn't work this time with ObamaCare.

This should also be a lesson to everyone else who waited with bated breath for the court to make the right decision: never, ever count on the people in black robes to save the day. When you get right down to it, the Supreme Court just isn't that into you.

So what's left for us to do? Being a happy warrior, I don't believe that all is lost. However, we're gonna have to go all street on the Dems this fall if we want to kick enough of them out of Washington to repeal this beast of the realm known as ObamaCare. Mitt Romney, especially, will have to pound on the mandate really being a tax -- and making damned sure that people know that it's a regressive tax, one that will hit young voters and lower-income folks (in other words, Obama's base) the hardest.

Stay on target, everyone. Stay on target.

 

Dafydd adds: John Eastman, who holds the Donald P. Kennedy Chair in Law and is the former Dean at Chapman University School of Law, made a very interesting point on Huge Hewgitt today. The Chief Justice held that the ObamaCare mandate was constitutional because it really is just a tax, that is, a bill to raise revenue.

Now article 1, § 7, ¶ 1 of the United States Constitution reads:

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Given that the Patient Protection and Affordable Care Act of 2010 originated in the Senate, not the House, doesn't that mean that the individual mandate -- which Roberts held was a tax to raise revenue -- is still unconstitutional?

Should we have another round of courtyardery?

UPDATE 29 June: Commenter Baggi suggests that, while the bill appeared to have originated in the Senate, that body actually hijacked, removed, and replaced a House bill with the entire 2,700 pages of ObamaCare; if true, then technically the bill originated in the House of Representatives, as required.

This is not an issue into which I will delve deeply; the real problem is that Roberts engaged in what I have long called the fallacy of tendentious redefinition, taking something that is clearly a penalty (labeled as such throughout the act) and bizarrely redubbing it a tax, for no purpose other than to find a way to uphold the act by any means necessary.

This is what I expect from Justice Elena Kagen or Sonia Sotomayor -- not Chief Justice John Roberts. I'm beginning to squirm, wondering if this really is, at core, the early stages of Roberts "growing in office."

Hatched by Korso on this day, June 28, 2012, at the time of 5:15 PM | Comments (7)

November 17, 2011

Big Lizards Mini-Scoop: Major Court Ruling on Same-Sex Marriage Case

Big Lizards is the first -- among the teeny, tiny circle of blogs we read, I mean -- to break this major story. (Or rather, we would have been the first, if we hadn't bothered to edit this post; as it happened, while editing, another blogger in my tiny circle beat me to the punch, the dirty vole. I was momentarily tempted to just change the timestamp; but I'm pathologically honest, so my hands are tied.)

Background: Back in early 2000, during a primary election, California voters enacted Proposition 22 by a whopping 61% to 39%; the law defined marriage in the Golden State to be between one man and one woman, both for purposes of getting married here and also for recognizing marriages contracted in other states or countries. The wording basically mimicked that of the federal Defense of Marriage Act (DOMA).

But eight years later, the California State Supreme Court ruled, by the narrowest of margins (4 to 3), that Prop. 22 was unconstitutional under the state constitution. Then, in a fit of partisanship and pique, the court even refused to stay their ruling -- despite the fact that a new citizen initiative constitutional amendment, Prop. 8, was on the ballot for November of that year and seemed likely to pass.

Between that decision and the November vote, thousands of same-sex couples legally married in California; those marriages were never invalidated.

Despite the attempt to ram same-sex marriage down our throats, the citizens of this state fought back; even in the midst of the Obama landslide in California (he carried the state by more than 24%) -- and despite the state Attorney General (former and now current Gov. Jerry Brown), in a blatant attempt to bias voters, changing the title of the initiative to read, "Eliminates Rights of Same-Sex Couples to Marry" -- Californios nevertheless enacted Proposition 8, effectively writing Prop. 22 word for word into the state constitution... and neatly overturning the state Supreme Court's decision to spit in the voters' faces.

The vote this time was a narrower 52.24% to 47.76%... but that probably does not represent a drop in statewide support for traditional marriage; rather, it reflects the difference between a primary and a general election (more Democrats vote in the latter), and the Obamic surge that brought more liberals and Progressivists to the ballot box.

I'm sure you can guess the next step: Same-sex marriage fans filed lawsuits in both state and federal court, seeking to overturn the new constitutional amendment. The state Supreme Court upheld the amendment (what else could they do?); but U.S. District Chief Judge Vaughn R. Walker, who heard the federal case, Perry v. Schwarzenegger, ruled the constitutional amendment unconstitutional on August 4th, 2010 -- on the grounds that the United States Constitution mandates same-sex marriage throughout the entire country. Who knew?

(We knew during the trial that Walker was gay; but what we did not know until after his ruling was that he was in a long-term, committed relationship with his same-sex partner, thus in exactly the same class as the plaintiffs in the suit. If his ruling is upheld, he will have cleared the decks for his own same-sex marriage. Quite frankly, Judge Walker sat in judgment on his own case; but the current Chief Judge of that district court shrugs off the obvious conflict of interest. Nothing to see here, folks, just move along!)

Walker tried the same trick the state Supreme Court had used: He announced that he was going to lift the stay of execution on his ruling almost immediately, despite the fact that the ruling had been appealed to the Ninth Circuit Court of Appeals. The plan -- as in 2008 -- was to allow a huge surge of same-sex partners to marry in California, hoping that a future court would simply roll over and find a new ground to hold the marriage amendment unconstitutional: Because we would now be in a situation where many tens of thousands of people were in valid same-sex marriages, but the remaining tens of thousands were barred from marrying.

That is, first the state Supreme Court and then Judge Walker wanted to (a) set up a clearly unequal situation for same-sex couples, where many were married but the rest were prohibited from marrying, and then (b) use the very situation they themselves had concocted to argue that the law violated equal protection under the law! So it goes on the great Progressivist merry-go-round.

Fortunately, the Ninth Circuit itself stayed the ruling indefinitely, until the case could be finally decided, thus thwarting Walker's end run.

The case now sits at the Ninth Circus -- but a new wrinkle has arisen... and that is the subject of this post. (Yes, the preceding 500,000 words were just preamble and prolog.)

By law, the state Attorney General is required to defend citizen initiatives against lawsuits; but since he was Jerry Brown, a huge fan of same-sex marriage, he refused to perform his constitutional duty.

By law, if the Attorney General cannot or will not defend a law, then the governor is required to do it; but since the governor at the time was RINO Arnold Schwarzenegger, and since he too is a big supporter of same-sex marriage, he likewise refused to defend the law.

Whereupon, Judge Walker declared that nobody else had standing to defend the amendment; only the plaintiffs' side would be heard by the Ninth, and proponents of same-sex marriage would get to win their case by default.

(Again we return to the traditional Progressivist playbook: Rather than allow both sides to present their cases -- or, God forbid, allow the citizens of the state to decide what shall constitute marriage -- the Left always wants to stack the deck by banning all argument but its own. Don't look now, but Progressivists seem to be allergic to democracy and freedom of speech.)

The "defendant intervenors" -- that is, the original sponsors of Proposition 8, who undertook to defend their initiative themselves when Brown and Schwarzenegger gave voters the finger -- filed an appeal with the Ninth Circuit panel; but the Ninth punted, kicking the vital question of standing back to the state Supreme Court (which still supports same-sex marriage). And we have been waiting with bated breath their decision.

Until today. The ruling was just issued... and in an astonishing act of (heavens) following precedent, the State Supreme Court held that the defendant intervenors do have standing to defend the amendment!

Even more remarkably, the vote was unanimous, 7 to zip:

In a unanimous ruling, the justices sided with Proposition 8 sponsors, who've argued they should be able to appeal a federal judge's decision last year striking down the same-sex marriage ban because the governor and attorney general have refused to defend the voter-approved law. The state Supreme Court overwhelmingly agreed that Proposition 8 backers can go it alone in trying to preserve the gay marriage ban.

Here is the court's reasoning:

The Supreme Court was emphatic that it would "undermine" the California ballot initiative process if the governor and attorney general can trump the voters by declining to defend such laws in the courts.

"The inability of the official proponents of an initiative measure to appeal a trial court judgment invalidating the measure, when the public officials who ordinarily would file such an appeal decline to do so, would significantly undermine the initiative power," Chief Justice Tani Cantil-Sakauye wrote for the court.

So now we finally get to a decision on the actual merits: Does the U.S. Constituition mandate that every state must allow same-sex marriage? If so, then how about polygamy, group marriage, line marriage? Does the Constitution demand that every conceivable relationship between two or more persons must be considered a marriage, on the well-accepted legal argument that "love is all you need?"

Or do the people themselves -- even those who aren't lawyers! -- get to speak on this seemingly important societal issue? I know at least one famous blogger who supports same-sex marriage and voted against Prop 8 and Prop 22, but who vigorously opposes any and all attempts to legally overturn the voters' decision in court.

The Ninth-Circuit panel comprises ultra-liberal Judge Stephen Reinhardt (appointed by Jimmy Carter), Michael Daly Hawkins (Bill Clinton), and N. Randy Smith (George W. Bush); so my cynical guess is that they uphold Walker's ruling by 2-1. But no matter how the Ninth Circus decides, the case will surely be appealed to the U.S. Supreme Court -- where I believe the people will prevail by a 5-4 decision. And that should finally give closure to the issue of same-sex marriage: Each state will be allowed to decide for itself whether it will allow same-sex couples to marry and whether it will recognize such unions when licensed by other states.

So in the end, the people, as they should, will have the last word.

Hatched by Dafydd on this day, November 17, 2011, at the time of 12:59 PM | Comments (2)

November 14, 2011

ObamaCare: Double-Edged Scalpel

Now that the U.S. Supreme Court has opted to rule on at least some of the issues anent the Patient Protection and Affordable Care Act of 2010 (a.k.a., ObamaCare), a rather sticky wicket arises. The decision will likely be announced in mid-2012, a few months before the election; most believe that any decision will affect Barack H. Obama's reelection chances... but the question is, which way?

The naïve analysis is that a decision overturning the individual mandate and perhaps other provisions (the expantion of Medicare, for example) would hurt Obama's chances at the voting booth because it makes him look feckless, foolish, and incompetent. But on the other hand, if the Supremes strike down ObamaCare in whole or in part, that might take some electoral pressure off of Obama, since ObamaCare would no longer loom over Americans' heads.

But on the next hand, many conservatives and independents might already believe absolutely that the Court is going to strike the law down. In this scenario, a decision upholding the law might drive more Americans to vote against Democrats, as that would become the only remaining path to undoing ObamaCare.

But on the fourth hand (in case you lost track), a decision more robustly overturning the law (6-3 or 7-2) would probably fuel the perception that the Obama administration is a lawless regime, thus mainstreaming the arguments of conservative activists. Contrariwise, a decision decisively upholding it would do the opposite, making conservatives who argue that it's unconstitutional seem more extremist and hysterical.

On yet another hand -- in politics, there's always one more hand! -- a 5-4 decision overturning could look nakedly political, since it would almost certainly split exactly along the lines of the president who appointed the justices: Chief Justice John Roberts and Justice Sam Alito, appointed by George W. Bush, would join Justice Clarence Thomas (George H.W. Bush) and Justices Antonin Scalia and Anthony Kennedy (Ronald Reagan) in the majority vs. Justices Sonia Sotomayor and Elena Kagan (Barack Obama) and Justices Ruth Bader Ginsburg and Stephen Breyer (Bill Clinton).

(The fact that Justice Kagan was Obama's Soliciter General before being elevated to the Court, and that she and may or may not have actually helped prepare the defense of ObamaCare in the District Court hearings, would certainly not help to dispel the notion of politicization.)

In that case, Democrats -- already dancing on the knife-edge of sanity merely by dint of being Democrats -- might be so enraged that they riot across the country (à la the Rodney King police-beating verdict in 1992, which sparked the L.A. riots); such "unrest" (violence and vandalism) would probably help the GOP. But such a verdict would also motivate more Democrats to the polls on November 6th, which would hurt the GOP's chances.

On the sixth hand, a 5-4 decision upholding ObamaCare, which would result from Justice Kennedy crossing over to the dark side, would likely enrage Republicans, who would see Kennedy as yet another RINO seizing his best opportunity to stab his supposed allies in the back. In this case, it would be the Republicans who would rise up en masse to throw the bums out, probably more determinedly than they would if the verdict upholding the law was more lopsided, with "real Republicans" joining the Democratic appointees.

Sadly, I really cannot predict which of these scenarios would play out, and I've run out of hands in any event. The case surely has to be heard; we must have clarity about such an urgent question: Can the federales demand Americans buy a government approved but privately offered commercial product, such as health insurance?

If so, then the list of what Congress can regulate under the "commerce clause" of the Constitution is virtually limitless... meaning we no longer have even the veneer of limited government; we will have become a de-facto parliamentary democracy, just like those in Europe.

Ergo, the Court must rule; but how such clarity will play out on the battlefield of the 2012 presidential and congressional elections is the flip of a coin or the turn of a card, thus fraught with peril for both sides.

Hatched by Dafydd on this day, November 14, 2011, at the time of 5:35 PM | Comments (3)

July 28, 2011

Right-Wing Folly, Another Reason Why I Am Not a Conservative

Two epigrams bubble up in my cerebrum at the moment. The first is just a statement of principle that seems to encapsulate the essence of Americanism; too bad so few on the side of goodness affirm it:

• For society's sake, it's best the consensus of the people sticks to the traditional values of monogamy, loyalty, decency, and faithfulness; but for liberty's sake, it's best that the people's government sticks to encouraging, not enforcing, such tradition.

And the other is more flip but equally true in my opinion:

• Extremism in defense of conservatism is -- still extremism.

A momentous civil-liberties lawsuit in Utah pits two opposing forces against each other, forever locked in battle unto the end of time (like that old Star Trek episode). Both sides spin their arguments around the Supreme Court case Lawrence v. Texas, like planets orbiting the same sun. On its face, the Court simply struck down all federal and state laws against "sodomy," however defined; it did not make any findings anent marriage.

But each side accepts the same central folly, spinning the consequences of of that supposition in opposite but equally extreme directions. Side A, which we generally call the Dark Side, abuses and twists that case pretzel-like in order to argue that laws banning polygamy are unconstitutional (as the same partisans also argue that laws banning same-sex marriage are unconstitutional); by extension, Side A argues that every state in the United States of America must immediately allow "plural" marriages.

The flip side -- which conservatives ironically call Righteousness -- uses the same argument used by polygamists: Some radical marital "reformers" make paralogical arguments, twisting the principle of simple liberty and "the right to be let alone" into a paeon to perversity; therefore, conservatives argue that liberty itself is suspect and must be curtailed. Side B ripostes that citizens must be legally prevented from doing icky things that might nauseate decent folk and frighten the horses.

But let's get less airy-fairy and more specific:

The suer is Kody Brown, who stars in a TLC "reality" show called Sister Wives, which I've never seen; the dissenter is Power Line's own Scott Johnson. And yes, on this subject, both are equally extreme and impervious to reason.

Brown argues from Lawrence that if a man has the right to cohabitate -- to live with -- more than one woman, then clearly he has the right to marry them all. That is a complete non-sequitur, of course; the principle of liberty means we can do as we please, so long as we're not harming others. In Lawrence, the Supreme Court found (albeit via flawed reasoning from the noisome Griswold v. Connectucut) a principle of liberty that it nevertheless true; it ought to be considered "self evident"... that there is a fundamental right to a zone of independence around each individual, inside of which government cannot intervene save to protect another and non-consenting individual.

That us, under liberty, if two adult men want to have intimate relations with each other, privately and without coercion, then government cannot arrest them for it. Likewise if one man and three women want to have intimate relations, or two men and one woman, so long as all are consenting adults. Prior to Lawrence, trysts of this sort were lumped under the label "sodomy" and were criminal acts under the laws of a number of states. For that matter, the same statutes often criminalized certain types of sex between husband and wife -- fellatio and cunnilingus, for example. It was an extraordinary, pre-modern burst of authoritarianism, now defended only by some movement-conservatives.

I assert that a government with the legal power to dictate what sexual positions a husband and wife, or any other group of consenting adults, can legally perform is a tyranny of the most grotesque and unAmerican sort, where citizens are owned by the State.

Yes, I know full well that the Founding Fathers, to a man, supported such laws against sodomy; they were wrong. They were misled by the emotional and religious baggage of their society and upbringing, which prevented them from seeing that the logic of their own arguments for liberty belied their emotional inconsistency, just as it belied acceptance of slavery and of state-established churches. Either one believes in freedom of conscience; or one believes that ultimately, the State can condemn you for dissent, thoughtcrime, or nonconformity. There really is no middle ground.

But granting the fundamental right to do something perverse does not obligate society to applaud the perversity: The same freedom of conscience that says I cannot stop Brown from living with three "sister wives" in addition to his legal spouse likewise prevents him from forcing me to sanctify such a relationship by calling it "marriage." But that is exactly what Kody Brown demands:

Reality-TV star Kody Brown and his “sister wives” may not intend to be an example of the “slippery slope” in the gay-marriage debate, but their new lawsuit against Utah’s anti-polygamy laws bolsters the argument that legalizing marriage for same-sex couples could open the door to recognition of other kinds of marriages.

Mr. Brown; his legal wife, Meri Brown; and “sister wives” Janelle Brown, Christine Brown and Robyn Sullivan, who appear with their 16 children on “Sister Wives” on TLC, want Utah’s anti-polygamy laws declared unconstitutional and unenforceable on their “plural family.” [Emphasis added -- DaH]

I readily admit there is a serious problem with the Utah statute, if it's being accurately and honestly reported by the Washington Times (and I have no reason to believe otherwise): The law evidently bans not only polygamy itself, the marrying of more than one wife, but something more sinister:

In the Brown lawsuit, Mr. Turley and Mr. Alba said the Brown family, members of the Apostolic United Brethren faith, has committed no crime except to live together, “motivated by their sincere religious beliefs and love for one another.”

States cannot “criminalize consensual intimate relationships, including homosexual relationships, between unmarried adults,” the lawyers wrote, citing the 2003 U.S. Supreme Court decision in Lawrence v. Texas.

And yet Utah has a law that forbids a legally married person from “purport[ing] to marry another person or cohabit[ing] with another person,” the lawyers wrote. [Emphasis added -- DaH.]

With this and other anti-polygamy laws, Utah “criminalizes not just polygamous marriages, but also an array of plural intimate relationships and associations of consenting adults,” Mr. Turley and Mr. Alba wrote.

In other words, the Utah law bans not only plural marriage, it appears also to ban plural living arrangements, even those not legally blessed as "marriage." Only one of the women with whom Brown lives is his legal wife; to the eyes of the law, the rest are just honeys.

The Brown family’s “basic liberties and equal protection” are being violated, they added, asking the court to “preliminarily and permanently” block enforcement of Utah’s laws that ban and criminalize polygamy.

I absolutely agree that the "basic liberties" of Brown and the individual women are violated by the Utah anti-polygamy statute, but only to the extent that it criminalizes living together. But I reject the "equal protection" argument, the ground used in most cases that seek to overturn the traditional definition of marriage; and in any event, the solution to the unconstitutionality of one part of a law is not to toss the entire law out, but to make the smallest possible change consonant with the demands of liberty, as enunciated by the Court.

In this case, toss out the part that bans "cohabit[ation] with another person," but keep the part that bans declaring such relationships legal "marriage." That is, ban polygamy but not shacking up.

This is where the logic of the Left flies to flinders: Under liberty, you can do a great many bizarre, outre, unconventional, kooky, or perverse things; but one thing you cannot demand is that society embrace and ratify your perversities and eccentricities, a democratic State's imprimatur and nihil obstat. You have the right to give yourself a high colonic with Liquid Draino, but it's a stupid idea; and don't expect me to shout "mazel tov" when you finish.

I would have thought it obvious: I am allowed to write what I please; but the State isn't required to support my writing or even give me a prize. In the immortal words of Thomas Jefferson, "duh!" But it appears that Brown believes that anything he has a right to do, he also has a right to demand official praise for doing.

In a freakish twist of fate, contemporary conservatives appear to have locked themselves into supporting the same paralogia, albeit to prove the opposite conclusion.

It seems monstrous to me to argue that any government, even at the state or local level, can put you in prison for using an unapproved sexual position in the privacy of your own home. But when movement conservatives argue that Lawrence v. Texas should be overturned -- as nearly all of them do -- that is precisely the position they stake out: They're all in favor of "individual liberty" -- but not when that means engaging in sex that conservatives don't like. Casual day has gone too far; there oughta be a law!

If it was simple prejudice, t'would a simple task to point out the hypocrisy; more than likely, a fair-minded person would admit being led astray by thinking with his heart, when the proper organ for such cogitation is further north. But our movement-conservatives (with whom I typically ally) buttress their glandular rejection of homosexuality and polyamory with specious, backwards reasoning: They argue that Lawrence must be wrong because it leads to overturning traditional marriage. Or as a pal of mine says, "It can't be true, because it would be so dreadful if it were true!"

In other words, conservatives typically argue that the liberal argument is right: If you have a right to cohabitate with anybody, that necessarily implies a right to marry anybody.

Therefore, you have no right to cohabitate. (Supposed "reductio ad absurdum.")

But the absurdity is not Lawrence v. Texas; the absurdity is inventing a nonexistent and inconsistent rule of inference, that allowing an action means approval of that action... the invalidity of which we surely have proven by now (ad nauseum).

But here is Scott Johnson making that exact argument in the Power Line post:

Now comes Professor Jonathan Turley to the defense of polygamy. Professot Turley represents one Kody Brown, a man, and his four wives and 16 children -- who, he notes in a New York Times op-ed column, are the focus of a reality program on the cable channel TLC called “Sister Wives.” One of the marriages is legal and the others are what the family calls “spiritual.” Professor Turley is lead counsel in the recently filed lawsuit challenging the constitutionality of the Utah law criminalizing polygamy....

Professor Turley relies for his argument on the logic of the Supreme Court’s 2003 decision overturning state sodomy laws in Lawrence v. Texas. Professor Turley has a point -- indeed, some of us criticized the Lawrence decision on precisely that ground -- though Justice Kennedy’s opinion waltzed away from the question of polygamy. And it didn’t even mention laws against bestiality and incest. Perhaps Professor Turley will undertake the glorious cause of extending Lawrence to them in another case.

The link, supplied by Scott himself, points to a Power Line post of his from 2003, just after the Court decided Lawrence. Here is the smoking gun:

In one sense the Supreme Court’s opinion today in Lawrence v. Texas, asserting the existence of a constitutional right to homosexual sodomy, was utterly predictable. Thirty years ago the liberal constitutional scholar John Hart Ely wrote a classic law review article (“The Wages of Crying Wolf”) condemning the jurisprudence of Roe v. Wade, and Lawrence is in a sense only a few steps further down the jurisprudential arc that will end, as Justice Scalia notes in dissent, in the constitutional right to homosexual marriage, prostitution, bigamy, and adult incest.

There is a trivial sense in which Scalia could be right; lawless judges can seize upon and twist the language of Lawrence to argue something radically different from the actual findings. However, the true source of Scott's position would seem not to be reason and logic but something more atavistic: a visceral loathing of certain icky kinds of sex (as opposed to other, more privileged positions and partners). He continues in lurid prose:

Among the founders, sodomy was universally condemned as a crime against nature. It was illegal in each of the thirteen states existing at the time the Constitution was ratified and the Bill of Rights was adopted. In Thomas Jefferson’s Virginia, it was a crime punishable by death. When Jefferson wrote an amendment to the criminal code lessening the penalty for sodomy, he nevertheless classed it as a crime with rape, polygamy, and incest.

Today the Supreme Court declares that homosexual sodomy constitutes “a form of liberty of the person in both its spatial and more transcendent dimensions.” Justice Kennedy, the author of this nauseating palaver, is obviously so in love with what he thinks is his own eloquent rhetoric that he fails to notice his laughable double entendre. What is not funny, however, is the destruction of the recognition of the laws of nature and nature’s God on which our true rights depend. The Supreme Court’s opinion today is an act of political destruction that should be recognized as such.

All that -- for holding that private sex between consenting adults is none of the State's damn business! It's a marvel Scott didn't toss in heresy, treason, crimes against humanity and the future, and the ritualistic summoning of the Elder Gods as further indictments. (I can only infer he was so hopping mad, he didn't think of them.)

So what do we have? The same conservatives who are outraged that the government dares tell them what to wear, how much to eat, where to recreate, who to choose as their doctors, how to finance and invest, and whether companies can fly corporate jets, now welcome (with gusto!) government control of sexual relations.

What's wrong with this picture?

The only distinction between the activities above is that the last is the most personal, the most intimate, and lies most thoroughly within the "zone of independence" of them all. Is the conservative argument that the more private and emotionally intimate the activity, the greater the authority of the State to control and regulate it?

Where else does that priority hold? What parents teach their children about right and wrong is surely more intimate and private than what they teach them about fashion and hairstyle; should the former therefore be subject to rigid governmental review and control, with only the latter trivia left to the discretion of individual parents? The argument is risible.

I wish I could call it a straw-man construction, but I can think of no other reason why conservatives argue that the State can tell us who to make love to -- but for God's sake, don't monkey with our Happy Meals!

But lose not sight of the point: Scott Johnson embraces the cri de coeur from fellow movement-conservative, Supreme Court Justice Antonin Scalia, that the freedom to be intimate with whom you want (rather than with whom the government allows) is logically equivalent to license to legally marry persons of the same sex, close relatives, and persons already married, and license to commit the inhumane crime of bestiality and even the horrific, violent crime of forcible rape! Yes, I can certainly see that those acts are all of a feather.

And where is Scott's argument why this should be so? It doesn't seem facially obvious to me. Would he likewise argue that if government allows nude beaches, we'll be constitutionally required to legalize public orgies in middle school? The route between point A and point B on the "slippery slope" seems no less preposterous than the connection between decriminalizing "sodomy" (in private, among consenting adults) and legalizing bigamy, same-sex marriage, consanguineous marriage, bestiality, and rape.

I don't know about Scott himself, but I speculate that for most conservatives, they have no real syllogism; their "thoughts" on this issue are actually feelings, emotional responses that have no, and need no rational explanation.

Where does this leave us? It's not the only issue on which conservatives can be as mulish and irrational as liberals. Immigration and drug policy are two others, but the worst is modern biological evolutionary theory. The last is the most similar example to conservative allergy to sexual liberty:

1. Many dyed in the wool atheists -- including Richard Dawkins, Chris Hitchens, Philip Pullman (of the wretched His Dark Materials books) -- insist that accepting the idea of evolution by natural selection requires one to reject God and faith and embrace atheism.
2. A large number of conservatives with inadequate scientific schooling -- including Ann Coulter, Glenn Beck, Michael Medved, Ben Stein -- completely swallow the liberal argument.
3. Therefore, being unwilling to reject God, they instead reject modern evolutionary biology, casting overboard more than a century of brilliant and apolitical science.

In fact, there is no logical or rational connection between allowing sexual freedom and requiring the definition of marriage to include any old relationship somebody might want; just as there is no reasoned conflict at all between biological evolution and faith in a theistic God, as Francis S. Collins conclusively proves in the Language of God; but there you are: Conservatives reject both as unthinkingly and reflexively as liberals denounce the Koch brothers, and for eerily similar reasons.

So I say again: Extremism in defense of conservatism is certainly less annoying than the liberal strain... but it's no less extremist -- and no more rational.

Cross-posted on Hot Air's rogues' gallery...

Hatched by Dafydd on this day, July 28, 2011, at the time of 7:25 PM | Comments (5)

July 1, 2010

Dial It Down from 11, Already

Not only is "resistance" to Elena Kagan's nomination to the Supreme Court futile, it's pointless: The retiring Justice she will replace, John Paul Stevens, is every bit as liberal as she... which is to say vastly more liberal than the conservative wing of the court (Justices Roberts, Alito, Thomas, and Scalia); rather more liberal than the swingin' justice, Anthony Kennedy; and significantly less liberal than the extreme left edge of the Court, Justices Ginsburg and Breyer. Probably around where Sonia Sotomayor sits.

I grant that Kagan is a political creature, and that she will rule politically during her time on the bench. I grant that she monkeyed with the report from the American Congress of Obstetricians and Gynecologists on the unnecessary nature of "partial birth" infanticide. I grant that she is anti-gun. I grant that she would be a shill for Barack H. Obama, or any future radical president. But none of that makes her worse enough than Stevens to sound the panic button.

So if Republicans go ape on the Kagan nomination, if we do anything radical to delay or obstruct her confirmation vote (i.e., a filibuster), it only damages our credibility for a future, more urgent fight for a conservative seat.

Suppose Scalia or Thomas takes ill in the next year -- or worse, the next few months -- and he has to resign from the Court. If we Republicans have already made hysterical claims about Elena Kagan replacing John Paul Stevens, who will believe us when we make even more hysterical claims about (for example) Cass Sunstein or Erwin Chemerinsky replacing Antonin Scalia?

While it's true that we go to war with the Army we have, not the Army we wish we had (Rumsfeld) -- and against the enemies we have, not the enemies we wish we had (Big Lizards) -- nevertheless, we still have the option of picking the battles we want. We don't have to fight uphill in the fog, inadequately armed, against an impregnible enemy position; we can hold our fire until we have a better chance and a more meaningful goal, either hanging on to the four conservative justices (and one swinger) we have until the administration changes... or mayhap something even more positive.

Suppose it's 2013, and we have a Republican president again. If either Ruth Bader Ginsburg (who will turn 80 in 2013) or Stephen Breyer (who will turn 74) is forced to retire, we have the chance to replace a liberal with a conservative, making a solidly conservative Court. (Or if Anthony Kennedy, who will turn 76 in 2013, retires, we can replace a justice who votes "conservative" half the time with one who votes "conservative" perhaps 85% of the time.)

Those are the fights worth having, the chance to change the Supreme Court in an originalist direction for a generation. Those are the fights for which we should pull out all the stops, including the "nuclear option" to cut off a purely political Democratic filibuster of a Supreme Court nominee. But we cannot sell such dug-in trench warfare to the American people unless we've kept our hands relatively clean in earlier fights, where less was at stake. Otherwise, we look like the pols who cried wolf.

Republican senators on the J-Com will make as much of a case against Kagan as reasonable. Then they will vote more or less along party lines to throw it to the full Senate. At that point, we need to sit down, take a stress pill, and just let the vote proceed in an orderly fashion. She'll be confirmed; we'll keep our powder dry and live to fight another day -- when we have real reason to fight, and when we have better chance than an iceman in a volcano.

Hatched by Dafydd on this day, July 1, 2010, at the time of 2:04 PM | Comments (8) | TrackBack

June 29, 2010

Micky-D's Legacies

Yesterday's Supreme Court ruling in McDonald v. Chicago incorporated the individual-rights interpretation of the Second Amendment (from D.C. v. Heller) to the states under the "equal protection" clause of the Fourteenth Amendment. (By and large; actually, I understand that Justice Clarence Thomas' concurring opinion cited the "privileges and immunities" clause of the same amendment, instead.)

So now we know that the right to keep and bear arms is an individual right, inhering in every citizen, not solely in National Guard units, as anti-gun radicals have proclaimed for decades. And we also know that our right to keep and bear is not only enforced in federal jurisdiction but is a universal right, protected in all fifty states as well. (It may not be protected in President Barack H. Obama's seven fantasy campaign states.) But one vital question remains unanswered: What level of scrutiny should be applied to gun-control laws?

Pore standards

Several standards are available, from the tightest -- strict scrutiny -- to the weakest, the rational-basis standard. If the Court decides that the proper level is strict scrutiny, then few gun restrictions will stand; most would be struck down when they fail to meet the standard usually reserved for racial-preference laws and Facebook posts by Sarah Palin.

On the other hand, if the Court settles on the rational-basis standard, then every gun-control law short of outright confiscation or prohibition of owning or carrying a firearm would pass constitutional muster -- waiting periods, proficiency tests, restrictions on purchasing more than one gun in a given period, and so forth. So long as the state could muster some argument beyond raw emotion, and the restriction did not result in a de facto banning, it would likely be allowed.

But most probable in my mind -- remember, I'm not a lawyer, and I don't even play one online -- Is that the Court enunciates a scrutiny standard somewhere between the poles... if for no other reason as a lure to attract Anthony Kennedy, the swingin' justice.

Last night I had the strangest dream...

1. Some bright-eyed intern at the Second Amendment Foundation notices that the constitutional clause in question protects not only the right to keep arms, but also to bear them.
2. Foundation lawyers look for a person with clean hands, who can be a test case. He applies for a concealed-carry license but is rejected, clearly out of animus against guns (and against Supreme Court justices who believe self-defense is desirable).
3. When the case finally works its way through the system, Kennedy (or his swingin' replacement) sides with the good guys; the Court rules that all states must have some system in place to allow sober, responsible, adult citizens to carry "arms," including firearms.
4. The Court lays down the rules this time: States can be constitutionally compliant in one of two ways: either by creating a legitimate CCW permit process, or else by removing the necessity for any kind of permit at all to carry concealed.

If the state wants to control who carries concealed at all, it must offer permits on a "shall issue" basis... meaning any adult who applies automatically receives a CCW permit unless the state can show a clear and convincing reason to reject a specific applicant -- he is a minor, a convicted felon, insane, drug addicted or alcoholic, or is currently under a restraining order.

Beyond optimism

But wait -- I believe there is an excellent chance that courts will, in fact, require concealed carry be available to all Americans, with a small number of exceptions. Even the weakest level of scrutiny for gun-control laws, "rational basis," still requires that the basis for the gun restriction be, well, rational. Irrational fear of guns, or "hoplophobia," as some call it, will no longer be sufficient reason for a gun restriction, even the restriction on concealed carry; every law and regulation will have to prove it's at least rational... in other words, that there is some good evidence somewhere that such a regulation will make society safer.

Even the rational-basis standard opens all laws prohibiting concealed carry without a permit, where permits are virtually never granted, to rational, scientific evidence, presented in federal court, showing that widespread concealed carry doesn't increase crime or violence -- it reduces it significantly, even substantially. The evidence is overwhelming among criminologists; and even if some jurisdictions will stubbornly refuse even to look at the evidence, other judges elsewhere will, however reluctantly, follow where the evidence leads.

Already 40 states (including the second- and fourth-largest), comprising well over half the American population, have either shall-issue CCW permit laws or else don't require a permit to carry a concealed weapon. As more and more currently anti-gun jurisdictions are forced by federal judges to join the crowd; as we amass a Mount Everest of evidence all pointing in the same direction, it will become virtually impossible for a state attorney general in, say, California, to argue that the state should continue denying CCW permits to its citizens. The argument would have to take the form of asserting that, while the rest of the country may be capable of handling firearms responsibly, citizens of the Golden State are uniquely irresponsible, violent, and inept.

Even Hollywood liberals may take umbrage at such a claim.

When you're on a roll

Of course, in the much more likely case that the standard of scrutiny for gun-control laws lands somewhere in between rational basis and strict scrutiny, the push towards a nationwide right to carry a concealed weapon would be even stronger, and the scientific evidence even more determinative. I predict that within five or six years, every law-abiding, sane, responsible adult in the country will be entitled as a matter of law to obtain a concealed-carry permit... and that crime will plummet as a result.

Think about it -- it's not that big a stretch from where we are today to where I hope we'll be then, and the road is clear of most of the obstructions of the last two decades; even most liberals have more or less surrendered on this issue, leaving Sen. Charles Schumer (D-NY, 95%) as perhaps the last, lonely defender of disarming Americans. It's hardly even a challenge anymore.

Even so, it would still be worth the price of admission just to see Schumer's head spin like Linda Blair's in the Exorcist!

Hatched by Dafydd on this day, June 29, 2010, at the time of 1:06 PM | Comments (0) | TrackBack

May 11, 2010

Believe It - or Not

Does it matter that, if Elena Kagen is confirmed, the U.S. Supreme Court would, for the first time in history, have not a single Protestant justice? Were she confirmed, the Court would comprise six Roman Catholics and three Jews. Does this make a difference?

Honestly, I don't think it does. Sectarian doctrinal and theological differences remain strong, but they no longer translate into policy or judicial differences, in my opinion. There are pro-choice and pro-life self-described Catholics, just as there are pro-choice and pro-life Protestants; the same is true for most other issues, even moral ones like public prayer and same-sex marriage: You can find self-described religious adherents on both sides of every policy issue.

Where we find a stark policy difference, however, is between the religious and the irreligious, the believer and the strict materialist: Those who firmly believe in God and have a strong religiosity tend to think, act, and vote very differently from those who are secular, humanist, and atheist. There appears to be a very big distinction between those who see their religion primarily in terms of identity politics, as if it were a tribe or race, and those who see belief as a religious obligation with behavioral rules they must obey and a "catechism" they must profess.

(I ignore agnostics in this taxonomy. Although there are a few actual agnostics, such as myself, in practice, 99% of "agnostics" are actually practicing atheists: That is, they act as if there is no God, not as if they don't know whether there's a God.)

A religious Jew on the Court, even a liberal, would issue profoundly different rulings than would a very secular Jew; a religious Catholic would rule very differently than a secular Catholic, and so forth. Contrast the jurisprudence of Justices Antonin Scalia and Clarence Thomas, both of whom are devout, practicing Catholics, with Justice Sonia Sotomayor, who was raised Catholic but seems to have converted to Feminism and Wise Latina-ism in the intervening decades. I don't know for sure, but I strongly suspect that Chief Justice John Roberts and Justice Samuel Alito are also strongly and traditionally religious; I don't know about Justice Anthony Kennedy.

Similarly, though I haven't made an exhaustive survey, my sense is that the two Jews currently on the court, both very liberal and judicial activists -- Justices Ruth Bader Ginsburg and Stephen Breyer -- are not particularly religious. I cannot find a biography for either that mentions attending synogogue nowadays, for instance.

(Note that "being a Jew" is very different from being a religous Jew; myself, for example... I'm unquestionably a Jew, but I'm not at all religious. Judaism is a religion, but Jewishness is an identity.)

The same appears to be true of Elena Kagan:

A similar murkiness haunts how Kagan handles her Jewishness -- she has alluded to it, but has not explicitly stated it since her nomination.

Her interlocutors in the Jewish community say Kagan is Jewish savvy, but they are hard pressed to come up with her own beliefs.

"Jewish savvy?" I think it safe to say that if she was a traditionally religious Jew, many people who know her would be speaking up and saying so, both those who support and those who oppose her. She appears to be a typical, secular, New York liberal who happens to be of Jewish ancestory.

Though I myself am irreligious, I think it supremely important that society be religious. I really don't care what religion a person practices, so long as it's based upon the Dennis Prager formulation of "ethical monotheism," an omnipotent, omniscient God whose most important commandment is that we humans treat each other with both justice and decency. I would prefer a religious Moslem justice over a totally secular Protestant-background justice, so long as the former practiced a form of Islam that was ethical monotheism (if such an Islamic sect exists).

It makes no nevermind to me whether we have a practicing Catholic, a practicing Protestant, or a practicing Jew; secular humanists and atheists, however, are just too prone to follow the siren song of the Left.

Hatched by Dafydd on this day, May 11, 2010, at the time of 3:23 PM | Comments (1) | TrackBack

May 10, 2010

Preeners vs. Winners: Time to Throw Off the Gloves

Over on my favorite blog, Paul Mirengoff comes down strongly against Republicans mounting a filibuster of the nomination of Elena Kagen, barring the discovery of what Paul calls "extraordinary circumstances." On this here blog here, brilliant trial lawyer and all-around miscreant and gadfly Beldar made the same point a couple of days ago. (I would suggest that Paul must have cribbed from Beldar, except that would necessarily imply that Paul Mirengoff reads Big Lizards... which assertion would further my reputation of delusional disorder.)

In our previous post linked above, I suggested that the GOP might try to delay President Barack H. Obama's Supreme Court nomination until the next Congress is seated, eight months from now. The air will surely be much thinner then for judicial activists, while constitutionalists will have more congressional firepower; perhaps the Obamacle could be induced to moderate his radicalism somewhat... but only if the president's forray into "Chicago Rules" stops working and begins backfiring.

Here's how Beldar put his rejection of the plan:

I argued very insistently during the Bush-43 Administration that judicial filibusters (as opposed to filibusters in general) are contrary to the clearly implied constitutional duty of senators to give the president an up or down vote on his nominees. That duty was honored and satisfied for the most part throughout most of the history of the Republic; filibustering is a long tradition, but not one that historically has included judicial nominees.

I could be flip and simply respond, "tick tock, Beldar; care to join us in the twenty-first century?" But I'll resist the temptation to make that my only argument...

We currently inhabit a political epoch in which two rival claimants to the throne, Republicans and Democrats, are engaged in a titanic battle for the future of the realm. In that twilight struggle, Democrats routinely fail to "honor and satisfy" the principles of comity, civility, and fair play that used to bind our country together stronger than Gorilla Glue. Yet Paul's and Beldar's thesis essentially argues that, the GOP should nevertheless adhere to those traditions, regardless of Democratic contarianism.

In the first years of the new millennium, we fought to preserve Senate comity... and we lost. Big time. Now we must ask the question: Is our purpose now merely to prove that we are morally superior to the Left?

Or is our purpose to force the cheaters and revisionists to retreat to the status quo ante and begin honoring the old commitments again? If the former, then we are merely preeners; but if the latter, we must ask (as in any conflict) what tactics should we employ to achieve victory?

If all we're interested in doing is puffing out our chests and strutting around like roosters, playing the self-righteousness card as if it were wild, then there's no point to this discussion: Democrats will be happy to let us act superior, so long as we allow them to continue winning. So let's suppose, for sake of continued argument, that we're really interested in changing the rules back to where they were before. How best can we do that?

Here is the key to this post: Democrats will never return to the old rules so long as the new rules give them an edge. And the new rules will give them an edge so long as Republicans quaintly adhere to the old: We'll get gobsmacked over and over, with each dirty Democratic victory reinforcing, in their minds, the benefits of playing by the new.

The worst possible tactic for us to use -- if our goal is to restore the system back to the way it used to work -- would be to enable a double standard, where Democrats can filibuster judicial appointments to their heart's desire, while Republicans stand stiff on principle and refuse to take advantage of the parliamentary maneuver.

This isn't just moral posturing, it's unilateral surrender: The Democrats' incentive is to keep doing what's successful; there's no reason in the world for them to back away from their aggressive, hyper-partisan strategy. It's working!

But if we were to begin playing by Chicago Rules ourselves, that would eliminate the advantage the Left has long enjoyed by its monopoly on ruthlessness. If both sides, not just one, were fighting under the new rules, then the Democrats would have an incentive to cut a deal with the GOP, both sides agreeing to scale back the divisiveness.

Simply put, we need to show the Democrats that two can play this game. If we bloody the Left's nose, then and only then might they be willing to agree to a truce, or at least a temporary ceasefire.

I'm tired of Democrats offering to hold the football while Republicans run up and kick it. Next time, Charlie Brown should haul off and kick Lucy, not the empty space where the ball was before she yanked it away. Then maybe she -- or should I say Senate Majority Leader Harry "Pinky" Reid (D-Caesar's Palace, 95%) -- might contemplate his sore backside and become more willing to negotiate in good faith, knowing that bad faith will finally carry some unpleasant consequences.

Hatched by Dafydd on this day, May 10, 2010, at the time of 6:40 PM | Comments (7) | TrackBack

May 5, 2010

Just a Dream Away...

With doddering, 162 year old Justice John Paul Stevens shuffling off into the sunset at the end of this Court term, striking about him with his cane and raving about the "good old days" of President Johnson (Andrew, not Lyndon), President Barack H. Obama will get to nominate his second radical, New Left socialist to the Supreme Court. Yet I have a clever but dirty scheme in mind that could blunt the damage caused by such an appointee.

Let's assume that Obama decides not to let a retirement go to waste, thus nominates Diane Wood, Woodrow Harrelson, Hillary Clinton, or others of their ilk. In that circumstance, I think the Republicans would have casus belli to spend an absurdly long time "scrutinizing" the pick... and then filibuster it, on grounds that a leftist Alinskyite is not going to judge cases fairly -- which we should already have known by looking at the imprudent jurisprudence of Ruth Bader Ginsberg, Stephen Breyer, the dearly departed (from the Court, not this coil of tears) David Souter, and of course, from Stevens himself.

This will take time... months, if we really work at it. Then when it's clear Justice Andy Stern won't hunt, Obama will be forced to nominate a new prospective justice -- also a radical, also requiring scrutiny, also subject to filibuster.

Wash, rinse, repeat.

So is it possible that, if we try really hard, we can push the confirmation of a new justice to sometime after the 112th Senate is seated on January 3rd?

There's no law or article in the Constitution requiring all nine Court seats be filled at all times. In fact, with Stevens gone and only eight justices left, the net result would be that the absolute best the Rive Gauche of the Supreme Court could muster for their radical agenda would be a 4-4 tie, if Justice Anthony Kennedy votes with them.

I believe in a tie vote, the Circus Court ruling stands, whatever it may be; so Supreme Court radicalism could only occur in those cases where the appellate decision itself was an activist piece of judicial legislation, and Kennedy sides with the activists.

Pushing confirmation to the next Congress would be an incredible coup: The 112th will contain far more Republicans, making it much more difficult for the president to jam his nominee through; this may force Obama to make a more reasonable appointment, one that can actually get through a more balanced Senate J-Com and Senate floor.

So what do you think? Does the rump GOP conference, including newly elected gadfly Scott Brown, have the huevos to make a filibuster stick? Do they have the will?

Comments welcome, as always; but this time, you are encouraged to be as nasty and mean as you want; so long as none of the the targets of your snidery is online at Big Lizards, either as host or commenter.

Hatched by Dafydd on this day, May 5, 2010, at the time of 5:37 PM | Comments (4) | TrackBack

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