Category ►►► Supreme Beings of Sleazure

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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