Bork Quote

The Bork quote got me thinking.

Specifically, it seems the quote belies the radical agenda of the religious right because if there is nothing "the people" can do about a supreme court ruling, beyond amendment of the constitution, then it seems as if Bork is admitting that his beliefs don't have the political support for amendment. In a 50 percent plus 1 democracy, where ideas must be widely held to gain the necessary support, failing to get such support means the idea isn't widely held.

The only conclusion? That Bork and his friends are all in a minority of people who want such interferences with liberty like criminalizing homosexuality.

Food for thought.

Also, where is that cross blogged items we discussed.

Here comes the Idiot Train! Woot, Woot!

Justice Sunday the Second took place this past weekend. Choice quotes from the Washington Post's coverage:

Rejected Supreme Court nominee Robert H. Bork warned that the high court has defined homosexuality as "a constitutional right . . . and once homosexuality is defined as a constitutional right, there is nothing the states can do about it, nothing the people can do about it."

Good thing this guy didn't get on the Supreme Court. He apparently has forgotten about the amendment process.

Speakers compared the civil rights movement of the 1960s to demands now by Christian groups for restoration of traditional morality. "It's time we move to the front of the bus and that we take command of the wheel," said William A. Donohue, president of the Catholic League

I'm sure Rosa Parks would appreciate this allusion.

Harry R. Jackson Jr., senior pastor at Hope Christian Church in College Park, Md., said the "Christian community is experiencing a new unity around the moral values that we share because of common faith." Jackson, who is black, said that appointing judges who will strictly interpret the Constitution is advantageous to blacks. "If justice matters to anybody in America, it matters to minorities and to people who have historically been at the bottom of the barrel" who will not have "to deal with a maverick judge changing the law at the last minute."

He has apparently never heard of Dred Scott. Dred Scott is one of the most beautiful pieces of strict constructionism ever written. In that decision, the Court went out of its way to determine the original meaning of the term "citizen" as it is used in the Constitution and found that the framers never intended "citizen" to ever mean "black person," even if that person was not a slave. Whoops!

--Reece

(Sorry for the pseudonym below, but I am now writing for a second blog here at blogspot and wanted to keep this one on the down low.)

The long plateau

Part of the problem is that the idea that the United States would explicitly use military force for natural resource gain goes against the grain of American history (outside of the conquering and colonization of the american west) and the international legal regime that we put into place at the end of the Second World War. The influence of the United States in ending colonialism cannot be ignored. Our actions in the Suez Crisis in 1956 forcing the British to withdraw from trying to forcibly protect the Suez Canal is an example (i recognize the lack of subject/verb agreemen in this sentence, plural subject to singular verb) of the type of actions we took against our own allies to prevent continued colonialism. Fighting a war for oil would require overcoming such a tradition.

Secondly, the free-market ideology that pervades this country would have to be overcome. Talk about a major governmental intervention in economic life, nothing really could be bigger than conquering a country for the sake of forcing its oil sales to the United States. That type of mercantilist monopoly would have to be sold over the prevailing free market ideology. The simple rhetorical response to arguments for such a policy is we should let the market decide, and find ways to work within the marketplace.

I realize that is somewhat incomplete of answers, but I am busy with something else at the moment and will return to the topic later.

Also,

Dionne's piece was basically a rundown of what the Administration is doing wrong, and why Bush's poll numbers might remain low regardless of whatever he does to try to boost them.
It was interesting, but didn't contribute much overall.

Quick review

The article about torture is right on:

On the floor of the Senate, before everyone left on vacation, Sen. Jeff Sessions, R-Ala., sounded the administration line: There is no need for this legislation because we are not dealing with prisoners of war but "terrorists."

John McCain stood up and responded that the debate was not "about who they are. It's about who we are." We are Americans, the senator said, and we hold ourselves to a higher standard than those who slaughter the innocent in Iraq or Afghanistan, or in London or on 9/11 here at home.

I think you got the oil article for the most part. I would ask you to respond to one issue: He is in part talking about a long plateau and slow decline in the availability of oil. It is possible that under those conditions, the cost of military action to secure more oil would not have the same costs you envision. Any response to that?

Religious Right ruining the country. I think she does a good job of describing the problem, but doesn't suggest any method of making it better. We still have to beat them to get them out of office.

I didn't read the Dionne piece either. So, I'll wait for your reaction to that.

Several problems with the Oil article

First, i generally like the article, but here is one glaring problem (I am sure I will have others):

The author contends that we will see more violent conflict for oil as supplies dwindle, and that WW2 and the Gulf War were both significantly about the "pursuit of foreign oil."

I will deal with these points in succession, first the likelihood of future conflict, then the point about WW2, and finally the Gulf War.

The first point is most important, because it underlies other points the author makes about potential future conflicts in the Middle East regarding oil, or more explicitly predictions of conflicts between the U.S. and Saudi Arabia. It needs to be stated very loudly and very clearly for all the anti-petroleum types who are given to wild fantasy about the evilness of oil companies.

NOTHING about the end of a natural resource INHERENTLY leads to conflict.

As I do all too often, I look to history. What great wars for forests did England fight when most of the forests were cut down early in English industrialization? Oh, wait, they didn't, they just started using coal.
What about the great wars that the United States fought as the Whaling industry went under? Oh wait, we were in the Civil War at the time, and we just started using petroleum. Dang.

The supposition that military conflict inherently will result from the end of the oil based economies is faulty because the supposition fails to account for the costliness of military action in light of alternatives. The entire post World War 2 international legal regime is designed to reduce cross border conflict, especially amongst the great powers of the world, by providing a set of norms to which countries can aspire and by providing legitimating language and standards for those instances in which war is necessary. This international legal regime is supported by too many stakeholders in the international system for the regime to be flaunted because of a decline in natural resources. The point: there is one cost not accounted for by "end of oil conflict" types.
Another cost is the simple opportunity costs of spending money on military action versus investing that money in renewable and nuclear sources of energy. Policy makers are smart enough, or at least we must trust them to be smart enough, and help them to be smart enough by organizing and lobbying, to realize that a 100 billion for a military adventure in the Mid-East to secure oil supplies (I don't believe this to be occurring right now, I am using this as an example) forgoes spending that 100 billion on development of bio-diesel hybrid automobiles, and the return on investment of a bio-diesel hybrid automobiles is much higher than another war.
So far we have costs of conflict for oil as 1) damage to an international legal regime we basically founded after the First world war, and actively supported since the end of the second; 2) the lost opportunity, and associated costs thereof, of investing in war instead of other sources of power; 3) The lack of return on investment posed by investing in war instead of renewables.

These costs greatly outweigh the benefits of simply securing more oil, especially in light of the fact that it is possible to transition to a post-oil economy instead of simply trying to prolong the oil economy at greater and greater costs. So the argument right now should be that we begin preparing ourselves for the transition to the post oil economy, which will be cheaper than attempting to prolong the oil economy. Its economics, its capitalism, it works (mostly).

Authors second point: WW2 was primarily driven by the pursuit of foreign oil.
Well, this point is just asinine. If you are after foreign oil, you don't invade Poland, then Denmark, Norway, and France. Now you might be saying to yourself, but WMD Norway has oil, hah! you are wrong!. Yes Norway has some oil, but that oil in Norway wasn't the main goal of the Nazi invasion there. (I could be wrong about that sweet sweet Norwegian crude, I just figured they had some off the North Sea) Furthermore, the Russian invasion didn't turn into an oil grab until after the rest of the offensives failed to knock the Russians out of the war. Basically, Hitler wasn't after the oil of the world.

Finally the Gulf War point:
I should have done this throughout the whole post, but whatever. Occam's Razor folks. "one should not increase, beyond what is necessary, the number of entities required to explain anything" Was the Gulf war about pursuit of foreign oil or about protecting the legal regime I already discussed? It is possible for the answer to be both, but the langauge of the policy makers at the time indicate that the legal regime point had a little more weight. The response that "Of course they wouldn't say we were fighting for oil" is silly. At some point, for politics to function, you have to take seriously what people are saying. It is untenable to claim that politicians always lie because we as the people and ultimate holders of power in this country would be unable to decide how to allocate political power if there was a complete dearth of truth in the policy making process. Was protecting Saudi Oil Fields a significant component of the deployment of the Rapid Deployment Force to Saudi Arabia in August 1990? Yes, but that does not require that therefore the whole operation was about oil. Other factors played a role at least as significant as the oil factor, and the oil factor alone would not have been enough to push this country to war.

That is all I got on that.

Here are a bunch of interesting articles and op-eds

One on anti-torture legislation: LINK

The Twilight of Petroleum or the next 30 to 40 years of our lives

One about how the Religious right is ruining this country: LINK

Finally, some tripe from E.J. Dionne: LINK

I haven't read the last one by Dionne, so it might be good, but my general East-coast/washington bias prevents me from praising it outright.

So, what's going on?

Man, slow news summer.

What did we talk about on the phone?

Was that our discussion regarding a constitutional amendment outlawing the property tax?

I thought I put that up here, but I couldn't find it.

Either way, we should propose such an amendment.

Don't got much else on that, but we should find away to discuss other elements of liberal proposals for taxes, and what they might be.

Nothing wrong with tax reform

We've talked about this on the phone a bit, but in principle, there is nothing wrong with tax reform . . . if it is done right. I don't have any grand ideas on how to do it right, but tax laws could use some simplification or other improvement.

Of course, any change has to be revenue neutral or revenue positive--closing loopholes, getting rid of unnecessary deductions, etc.

I actually think this is a liberal idea, and not one the conservatives should control. Once again, however, the Democrats have to think of something other than oppose-Bush-at-all-costs. That's their challenge. We'll see if they can do it.

Whether there is an appetite for it in the general public is another matter. On one hand I want to say that all the Repubs need to do is to convince people that their taxes are too high and they'll get their tax cuts. On the other hand, I kind of think that tax reform won't get any traction unless there is an obvious need like restructuring around (new) govermental programs.

Back Door Defeat of Roberts?

It is stories like this one here: LINK
(Pulled from Huffington Post, I wonder if Arianna needs a man, 'cause I ain't busy.....)

that make me think that some parts of the Democrats and the Left are hoping to defeat Roberts by making conservatives think that Roberts is another Souter. While the prospect of the president having to fight off a Conservative challenge to his Authoritah would be hilarious, especially in light of the damage it would do to his reputation in the sense that internal GOP fights are always nasty and not good for their party, do WE as leftists really want the president to withdraw this guy and nominate someone more like what the far right really wants?

I don't think we do, so I don't know if this is a good strategy, inasmuch as it is a strategy at all. It is possible that Conservatives are so worried about this nominee, that they are 1) more worried that the Left and Democrats, and 2) they are already gearing up to fight the president on this one.

If that is true, we may be in for a more interesting fall than I expected. While I am convinced that Tax Reform is going to be the next big White House push, it is possible that its roll out will be delayed until after the nomination fight. The reasoning behind such a delay is that I am almost positive that the Tax Reform push is going to be timed for the elections next year. It is also possible that the rumored troop withdrawls from Iraq could be used in both election capacity and to sell tax reform, in the sense that the GOP might claim, "the war is over so we don't need as many taxes anymore", as if we somehow collectively sacrificed for this war. Push come to shove though I don't think there is any appetite for tax reform in this country, and despite Bush's best efforts, I don't see any major bill getting passed. Of course, it all depends on whether or not the national Democrats stand up to Bush on the Tax reform bill when it comes up.

Haven't updated in awhile, got a lot on the plate

But, I still wanted to drop a post regarding some ideas bouncing around in my head.

In no particular order, and remember now, these are mostly one line ideas that more than likely lack any validity at all.

- Is "school bashing", and by that I mean the consevative jeremiad regarding the continual decline of our public schools, just an attempt by conservatives to shift the blame for the stagnation in social mobility in this country since the rapid expansion of the gap between the wealthiest americans and the rest of us?

-this space reserved

-what was that thing we had a long conversation about the other day? Do you remember it? It was something about conservatives and what is wrong with this country.

-There is another review of Noah Feldman's book, this time up at Slate.com, but the reviewer really tiptoes around the points made therein.

-I really would like to get started researching more about the history of the United States Congress and the effects on representativeness and deliberative democracy by the artificial limitations on the number of representatives. I am not sure how though for the next two months. Sometime after Oct. 1, hopefully I will be able to hit that and hit it hard.

-Just as I predicted awhile back, Tax reform is going to be the next big thing. Neal Boortz already has a book out about it that is on amazon's best seller list, and I guarantee the republicans will push it when they get back. I realize congress is on recess, but what ever happened to Social Security Reform?


I am sure I have other thoughts, but that is what is going on right now.

Slow news summer.

To clarify

Start with a couple quotes from Casey:

It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.

[W]hen this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proven to be intolerable simply in defying practical workability, whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.

This second one is O'Connor's statement of stare decisis. This is the 'precedent bias' I meant in my last post: there is a bias in favor of established precedent. If the composition of the court changes, this will be a large conceptual hurdle that will have to be overcome if a majority intends to overturn Roe and Casey.

So, I think they would have to find problems and rewrite the issue a few different times in order to show that the holding in Roe lacks practical workability, etc.

Maybe you're right though. Maybe it is more binary than that.

How?

How can a right wing court undermine the "precedent bias" (You learn that at your Top 20 law school?) that underpins Roe? I was under the impression that Roe followed out of Griswold and the cases regarding sending your kids to whatever school you wanted. Without overruling that line of cases, how can Roe be undermined (By the way, I love that over/under construction of that sentence.)?

Walk me through the manner in which cases could be decided that would undermine abortion as a fundamental right. I realize you think you have already done this, but how is simply changing the circumstances in which the central holding of Roe could be undermined. You seem to say pin prick after pin prick will eventually mean the holding won't hold up, but my question is how and why is that to be the case? What about the holding of Roe could be weakened over time? I don't understand how saying that women's liberty is a more compelling state interest than protection of the fetus up to the point of viability could be undermined because liberty is very explicit within the Constitution, and it is a generally held supposition that women have equal rights in this country, especially in light of the fact that the 5th and 14th amendments say "person" not "men".

I just don't see how that holding can be washed out, unless of course one attempts to define "fundamental right" into a point in which the words mean nothing.

a little bit

Casey changed the calculus in Roe a little bit. There still is a fundamental right to an abortion. That's the 'central holding.'

But casey rejected the trimester system set up in Roe. Roe said that you could have all the abortions you wanted up until the 2nd trimester, at which point the state could put more restrictions.

Casey says viability instead of 2nd trimester. So, it's a little more flexible, but it's also under attack. That's why you see billboards with things like, "I got my GENES at conception," or "A baby's heart start's beating at 8 weeks." (or whatever). The entire point of those billboards is to push forward the idea of when a fetus becomes viable.

The second thing Casey did was say that the state couldn't 'unduly burden' the right to an abortion before viability. So, in Casey, the spousal notification requirement was thrown out because it effectively gave a veto to the husband/father of the child that would have been impermissible if the state had exercised that same power.

I think Roe/Casey could be refined, but that's not what I'm talking about. My point is that a right wing Court will create the conditions necessary to undermine the precedent bias that sustains Roe and Casey.

Isn't that the situation we are in anyway?

I mean didn't Casey change the calculus of Roe anyway? I don't know for sure, but that was my understanding. It also begs the question of what would be wrong with Roe being refined by a series of future court decisions.

The only problem I have with such a situation is the inherent undemocratic nature of the process, that being the creation of laws from the bench. However, unlike my conservative bretheren, I recognize that our common law system almost explicitly allows for such "legislating from the bench". I would just rather we as a nation argue this point rather than somehow arriving at it from judicial decision because of the potentiality for reading Spencer's SocialStatics into the the Constitution.

On a side note, you mentioned a while back how we need to fetishizing the Constitution. I think that is definitely correct especially in regards to using the amendment process to overturn Supreme Court decisions that are patently unpopular, or wrongly decided. For an unpopular one, I don't have an example, but for a wrongly decided example, look at Buckley v. Valeo, at least from a lefty point of view.

yah

Simply, I was just agreeing with your last post and suggesting the form of the question that I would use to get at the same point.

Yes, it would tell us something about his judicial philosophy. It would let us know if he is an originalist or some variation thereof, or if he thought the Constitution was alive.

Originalism is silly for a lot of reasons. Interestingly, Justice Thomas has suggested that he would kill substantive due process but revive the Privileges and Immunities Clause in its place. I'm sure, of course, he would inform it with different content though. I just mean to say that the original intent of the 14th Amendment has been lost through early misinterpretations, but it's still not something the right wing wants to revive for the most part.

My predictions:

1. Everyone will wring their hands about Roe.
2. The Court won't overturn Roe--at least not in the first few years.

Here's what will happen to Roe: There will be increasing limitations on the liberty interest at stake. That liberty will be slowly eroded over several years. Parential Notification? You bet. Spousal Notification? Absolutely. Spousal Consent? Just a little extension here and there. No exception for the health of the mother? Life beats health. And so on. Then, several years from now, in a case that doesn't directly implicate the central issue in Roe, the court will find that Roe has not held up over time, that it's central holding is too complex to administer well, that it is too controversial and much disputed, and that for those reasons, stare decisis aside, the court is justified in washing its hands of subject. The decision will be that the Court is not the proper governmental institution to make the decision about abortion. End of Roe.

I know what you're thinking: That's too far in the future. But I'm sticking with it. John Paul Stevens is 85 years old. He's not going to make it through Bush's term. Bush will be able to appoint another judge to break the pro-liberty coalition on the Court.

But you're right, this guy will be confirmed, and there won't be a filibuster.

Senator Jeff Sessions (R-Ala-fucking-bama)

I shouldn't be shocked, and I shouldn't have cursed in the title, but this is just ridiculous.

I was a listenin' to the NPR there. To this bit: http://www.npr.org/templates/story/story.php?storyId=4763112

If you listen along, you will find that Jeff Sessions must have failed 3rd grade.
Why 3rd grade? I don't know but it seems just about right.

Why do I think he failed? at one point in this discussion, the dear Senator Sessions says that asking certain types of questions of judicial nominees interfers with the independence of the judiciary. What does this have to do with the 3rd grade? Well, I am pretty sure that is about the time we all learned, (except Jeff Sessions) that our government has CHECKS AND BALANCES.

What is a check and a balance on the Judiciary? The fact that the Senate must confirm the judges of the judiciary! But not in modern Republican land, that is interferance with the judiciary.

What a moron.

What's the response going to be?

Is it going to be something about originalism? or textualism? or one of the other main approaches to constitutional interpretation?

What is that answer going to say about Roberts as a candidate for the Court?

What about the fact that originalism is pretty silly when talking about the 14th amendment and the 5th amendment as they were enacted 80 years apart?

What is mostly important to me in this instance, from a legal point of view, is that the Senators ask pertinent legal questions about this judge's judicial philosophy. At this point in the process, specifically the confirmation point, we the people (I hate that phrase) through our elected representatives in washington, get the opportunity to decide how the constitution will be interpreted in the future. Such a moment extends well beyond simply whether one case, specifically Roe will be overturned or not. The questions should not necessarily be about Roberts political philosophy as much as his legal philosophy. The reality is though, we are going to get a media circus in which no reasoned discussion about the legal philosophy of the country will occur.

That said, the reason I see this as a moment in which we can redefine the abortion debate within a legalistic framework of constitutional liberties is because 1) we need to do something to break the prochoice/prolife deadlock, and 2) when discussing constitutional liberties it is important to stay within the framework of the constitution, which above all else is a legal document.

Moving further to predictions:
1) There will be no filibuster
2) Very likely this guy will be confirmed.
3) The left will ring its hands over whether or not the court will overturn Roe.
4) If the court does overturn Roe, nothing could be better for us going into the midterm elections.(this last one is iffy)

My question

would be, "Can you describe the method by which you would interpret the term 'liberty' as it appears in the 5th and 14th amendments?"

This question isn't about abortion. It isn't about gay sex. It's about judicial philosophy. It's about how one approaches judicial problems.

So, yes, I think you are completely right.

Everyone needs to stop talking about privacy. It's only about privacy in the way that welfare benefits are property. Substance due process is about quasi-privacy to make decisions without governmental interference. It's about limited government. And it's about liberty.

Well

First, let me say congratulations on getting banned from Blogs for Bush.

Remember when you wrote this clap-trap

And the article suggests that it would be more impressive to study how often liberals post comments on conservative blogs.

I find that an interesting challenge. I often just read 'liberal' sources like TPM, New Donkey, the NY Times, etc. And I often don't spend time on conservative sources like Foxnews, etc.

All I can say is "wow"

Alright, moving on, here is what I am thinking today.
After my John Stewart "Whaaaaa?" regarding who Bush nominated. I got to thinking about what the Democrats and the left can do during the coming nomination fight.
First, we need to stop saying that we lost this fight back in November. That isn't what the constitution says regarding advice and consent. Secondly, Bush didn't run a presidential campaign on: "I am going to nominate right wing nutcases to the court, Vote for me!" Bush's campaign was: "I am better at defending this nation" (to put it positively), or "John Kerry is a lying liberal pussy who will sell your daughters into white slavery to our new Al-Qaeda overlords" (maybe not that extreme, but close). So in such a situation, we didn't lose this fight at the election because the american people weren't voting on this fight during the election. Sure sure, the argument can be made that people knew what kind of judges Bush would nominate for the court, but frankly I doubt if that entered anyone's thoughts and voting calculations (assuming rational actors voting, which I guess is exactly my point: folks aren't rational) when they voted. Point being if you believed that Bush was better at defending the nation, but you like all the great things that liberal activist judges have done for america, how would you vote? For your liberal activist judges or for not getting blown up?
A broader point here is that we can turn the whole nomination fight, because I guarantee the republicans will use the "you should have won the election" meme, into a debate about Bush and his campaign. Given the way everyone seems to love Karl Rove right now, we can refocus the debate right back on how sleazy the Bush administration is. Only problems, such a strategy takes time, discipline, and guts, all of which are in short supply in the national Democratic party.

So what else can we do about this nomination fight? We have an opportunity here to refocus the abortion debate. Your turn for a John Stewart "Whaaaaa?"
Put it this way, the Senators on the Judiciary Committee shouldn't ask question like "lets talk about abortion, for or against?" Such a question will get the standard right winger lie: "I will support the law as it stands" Instead the Senators should ask questions about how Roberts feels about a woman's right to liberty/privacy. I would choose liberty because that is the words in the document, and we have had this discussion before. If every Democratic Senator, and then the rest of the Democratic Party, gets a game plan together to talk about liberty and equality, and really discuss the bolts of the Nuts' legal and policy position regarding abortion, I think we can do more damage to any nominee than just talking about abortion. This may sound like reductio ad absurdum of their loony arguments, but that is what it takes sometimes.

Abortion isn't an issue about the right to choose. It is an issue about whether or not the liberty enshrined in the constitution is applied equally to all members of American society, including women.