The Dew on the Roses

A relative newcomer to the adult world where consequences really matter, I nevertheless feel justifiably frustrated with the current state of politics.

It’s hardly partisan to describe our president as fearless, even reckless. Although the latter quality carries with it a negative connotation — and, thus, many liberals will reject it outright as a fit description of their leader — it’s a natural consequence of humanity let loose. At times, it’s an apt description of each of us.

Consider our president’s warning to Congress regarding healthcare: “Now or never!” People, that’s a battle cry, something Mel Gibson would scream in Braveheart. It is not a judicious approach to reform. Are we ready — can we even get ready in just a few months — for massive healthcare reform? I haven’t kept up with the news as well as I’ve wanted to these last few months, so I could be way off, but isn’t something else keeping Congress busy? Like, the economy?

Granted, healthcare may need to be reformed, but why now — smack dab in the middle of an economic crisis? Surely healthcare isn’t to blame for our economic woes. And yet, as Obama buys up GM, he’s screaming bloody healthcare.

The guy doesn’t make any sense, but maybe that’s because Congress doesn’t either. If we’re satisfied as a body politic with a bailout bill, thousands of pages long, that not a single member of Congress has read in its entirety, then maybe throwing together a healthcare reform bill isn’t such a difficult thing to do. It just seems as though we’d reforming for the sake of . . . reform.

Still, I can’t get past the third grade threat. The inflamed rhetoric of “Now or never!” is much more befitting a lexicon of last-second sports lingo than politics. It’s what you tell your players with 5 seconds left on the clock down 1 in game 7. It’s what you tell your troops before you attack the Germans at Normandy. It’s not what you say when healthcare’s nowhere close to flatlining.

Urgency aside, the threat’s downright deceptive. When Obama says “Now or never!”, what he means is “Now or never for my administration!”

At the moment, Obama is popular. After all, it hasn’t been that long since the election, and Obama rode to popularity on the wave of our former president’s unpopularity. SNL still mocks the former administration. As the months pass, however, the jokes lambasting Bush and Cheney will grow more and more stale. After all, the White House has a new tenant.

The wave is crashing, the sea, calming, and Obama’s smart enough to realize that it won’t be too long until the honeymoon with the media is over. By year’s end, the dew will be off the roses. Hence, his urgent appeal for healthcare reform. Seriously: now or (probably) never.

And so I arrive at the inspiration for this article: Sonia Sotomayor. Like healthcare reform, Sotomayor’s nomination is a “Now or never!” issue. A few years from now, she’d be eaten alive. Confirmed? Perhaps, but reputationally obliterated in the process. Today’s a different story. Republicans are on edge. Dare they oppose the first Hispanic nominee to the Court appointed by the first black president? I’m suffocating in diversity. Although the left had the gall to oppose Miguel Estrada, the right probably will not. And that’s unfortunate, but elections have consequences.

In the course of the Senate debates, we federalists may get in a lesson or two about the blasphemy of a judicial philosophy founded on “empathy” (whatever that means), but at this point, I doubt many will care to listen. If they do, they will likely not listen seriously. I suppose they’ll listen in the same way our mothers listened to us when we, as children, begged to stay up late.

We’ll get that condescending smile that says it all: Good try. And there will be nothing we can do about it. We’ll be ushered away, up to our rooms as it were, while the adults stay up late and cast their votes to confirm Sotomayor to the Court.

Tragically, Sotomayor’s confirmation is not a choice of “Now or never!” for federalists. In November of ’08, the choice was made for them. By electing Obama, our country resoundingly chose “Now!”

Sigh.

Sizing Up Sotomayor

I’ve been laid up with a mean cold the last several days, so I’m a bit late in adding my thoughts to President Obama’s nomination of Judge Sotomayor. No worries though, as my talented and capable colleagues here at Ex Deserto have articulately addressed the major issues. A few additional thoughts, though:

(1) The Supreme Court is not a representative institution, so let’s stop treating it like one. There are only nine slots, so we can’t afford to nominate anyone other than the most intelligent and qualified individuals to fill those slots. In the past, Supreme Court appointments have been political chips or paybacks, but for the most part over the last 30 years, our presidents have made efforts to nominate well-qualified and intelligent individuals. Conservatives may disagree with their ideologies, but Justices Ginsburg and Breyer are intelligent and articulate judges and were among the most-qualified of possible (liberal) nominees in the mid-1990s. Likewise (though you’ll probably never find a lib to agree), Chief Justice Roberts and Justice Alito merited their nominations by President Bush.

Judge Sotomayor may very well prove herself to be up to the task if she is confirmed, but I don’t think an objective list of the top 20 or so candidates for an Obama SCOTUS appointment would include her based on capability alone. And much of the criticism, at least prior to the announcement, came from the left.

Thomas Sowell, as usual, brilliantly articulates this point in his column today. When choosing a heart surgeon, he asks, is there any criteria other than skill? Why should it be different when choosing a Supreme Court justice?

(2) There is no such thing as reverse discrimination. Much of the debate surrounding Sotomayor has centered upon her statements on race and her race-driven decision in the Ricci case out of New Haven, CT. Liberal talking heads and Obama’s spinsters have made a conscious effort to use the term “reverse discrimination” at times, which is patently disingenuous. Discrimination is discrimination is discrimination. Discrimination by a minority against white person based on race is still discrimination. Discrimination by a white person against another white person based on race is still discrimination. Discrimination by a minority against another minority based on race is discrimination. And, of course, discrimination by a white person against a minority based on race is still discrimination. They’re all discrimination–and they’re all wrong. Fortunes should rise and fall based upon ability, not upon the luck/lack thereof of being born in a particular place or with a particular color of skin. The Supreme Court has said as much. See, e.g., Adarand Constructors, Inc. v. Pena; Parents Involved in Community Schools v. Seattle School District No. 1; Shelley v. Kraemer; and Brown v. Board of Education; .

(3) The president indicated that he wanted a nominee who uses “empathy” when making decisions. Sotomayor has indicated in the past that that is what she has done and will continue to do. Not only is that practice foreign to a nation built upon the rule of law and a violation of the Supreme Court’s oath of office, it is probably a violation of the 14th Amendment’s promise of equal protection under the laws (again, borrowing from Sowell).

Perhaps, however, a Justice Sotomayor will “grow” in office over the next few years under Justice Scalia’s tutelage by learning what the Constitution really means and how it should be applied. As was stated before in this space, we’re due one.

Liberal, Latina, and the Law in Limbo

Let’s be honest with ourselves: the nomination of Sonia Sotomayor does not come as a complete surprise. At the very least, we expected a woman – and minority representation fit the bill quite nicely. Enter Sonia Sotomayor.

I won’t take a scathing position toward her nomination quite yet. Do I think there are better qualified candidates for the position? Absolutely. Was this motivated by politics? Of course. Will this tilt the court further to the left? Maybe. At the very least, she will be a consistent liberal vote. At the worst, she’ll be far more left than the other justices. Given that Obama could have opted to nominate a far more liberal judge to the bench, I breathe a slight sigh of relief for the moment. In the grand scheme of politics, he just replaced one liberal for another.

But this was to be expected. Elect a liberal president, expect liberal judicial appointments.

Right now, I am reserving some judgment toward Sotomayor – she is somewhat of a question mark on beliefs toward life, marriage, and the like. Much of this will probably come out during the confirmation process. I’d like to think that the “Catholic” label might hold a modicum of meaning, but given Kennedy’s vote on social issues (or Stevens’ “protestant” designation) the religious label is not dispositive of actual beliefs.

That being said, do we really think that Obama would nominate a pro-life, pro-family justice to the bench? No. Still, George H. Bush appointed Souter who later became a decidedly liberal vote. Reagan appointed Kennedy who opted not to overturn Roe v. Wade when given the opportunity. Another major disappointment. Maybe it’s not unreasonable to hope that Sotomayor will be Obama’s unexpected gift to conservatives. But the unknown about Sotomayor cuts both ways. She may be far more liberal (or empathetic) than everyone realizes. She already views the appellate position as a pulpit to promulgate policy. To what extent will that color her opinions? Liberals may yet have a reason to be more enthusiastic in years to come.

But regardless of what happens with her, Obama is still looking looking at making history with the probable opportunity to nominate two more justices before his term is complete: Stevens and Ginsberg. Stevens just turned 89 last month, and Ginsberg was recently diagnosed with pancreatic cancer. These two will be replaced with younger justices that will carry forth Obama’s legacy for another 20 years or more. The next conservative that is due up for replacement is probably Scalia, but he could probably wait eight or more years, health permitting.

And at this point, there is really not too much conservatives can do. Seven of the Republican senators who voted for Sotomayor’s appointment to the appellate bench are still around. Unless Republicans can manage to vote cohesively (and know when to pick a fight), this confirmation will proceed relatively smoothly.

For the time being though, we are left in a mildly uncertain limbo.

Sotomayor: A major disappointment

Scalia was right. Well, he got two out of three correct.


Justice Scalia has maintained since Justice Alito came on the bench that the next nominee to the SCOTUS would be female, Hispanic, and Protestant. Sotomayor is Catholic, so Scalia just missed the triple play.


But Scalia was mainly in the right and had his finger on the pulse of a necessary political step by the Obama administration. There was a need to nominate a woman, for sure. A Latina nominee allows Obama to nominate an unrepresented minority to the Court. And Obama also had to nominate someone who had an actual chance of getting confirmed by the Senate. The Harriet Myers debacle showed that women will not be confirmed on their gender alone.


Sotomayor’s nomination to the district bench by George H.W. Bush (another of his questionable appointments), and to the Second Circuit by Bill Clinton, all speaks to some vague notion of bi-partisanship that Obama likely wants to showcase. The reality, however, is that Sotomayor is a consistent liberal, with some questionable tendencies.


The end result to a Soto-Souter switch will be a different face inhabiting his chair. Sotomayor will remain the firm liberal vote that Souter was, with occasional forays into the more conservative camp. The only question that remains with Sotomayor is just how liberal will she be? Some accuse her of being a racist. We have all seen or heard of her predilection for legislating from the bench.


And, yes, she is full of empathy–we get it. It remains to be seen, however, just how far her empathy will take her from the issues, from being the blind eye of the law. By the time cases reach the SCOTUS, they are all about pure legal issues far removed from any notion that real people are the parties involved. To acknowledge that decisions have consequences and people will be affected by a decision is one thing. To base your decision on the empathy you feel for a particular litigant is not justice.


Sotomayor is perhaps, like Souter, a sleeper choice. By that I mean that like many of the Republican appointees of recent memory–Souter, O’Connor, Kennedy–she may too morph into something that the President did not foresee when he nominated her. In this case, I think Sotomayor may prove to be much more liberal than we think if she is confirmed to the Court. It would be for her the Supreme Legislative Bench and a comfortable position for her for the next twenty or more years. Her confirmation would also be a sad testament to how far we have strayed as a nation from our founding principles and our love for a nation of laws, not of men.

File Under “Elections Have Consequences”

One of the reasons I continue to see the eight years of the Bush presidency as a net positive is his appointment of two exceptional Supreme Court justices in Chief Justice John Roberts and Associate Justice Samuel Alito. Both represent a fidelity to strict construction and the rule of law that has far too often been in the minority on the Court, and I think they reflect well on Bush’s judgment (Harriet Myers notwithstanding.)

For better or worse, a President’s Supreme Court nominations will likely be his most lasting mark on the nation.

Now, less than six months into his first term, President Obama has made his first appointment to the Court. Circuit Court Judge Sonia Sotomayor will likely become the first Hispanic justice in the Court’s history.

Needless to say, the meme that Sotomayor is in any way a “moderate” because she was appointed to the district court by President George H.W. Bush is ridiculous. Sotomayor’s “empathy” from the bench represents the very “rule of man,” as opposed to “rule of law,” that should be totally out of place in our justice system.

The chances of even filibustering Sotomayor are slim, and will be fraught with peril for anyone brave enough to try; defeating her will most likely be impossible. This is unfortunate because all indications are that Sonia Sotomayor is the kind of bullying ideologue who shouldn’t occupy the bench. And at only 54 years old, she will be occupying it for some time.

Update: David Frum makes two good points, here and here.

Court Upholds Prop 8, Sets Stage for Another Ballot Initiative

My pessimistic feelings toward the court’s outcome were ultimately unwarranted as the California Supreme Court upheld Proposition 8. In a 6-1 decision, the Court held that the constitutional amendment was valid, but it opted not to invalidate the 18,000 prior same-sex marriages.

This does not mean the fight to press the homosexual agenda in California has ended – far from it. Sexual orientation will still be held to be a protected class (such as race and gender) and this decision does not affect the rights of other same-sex marriages, but it does end the practice of recognizing new marriages.

I’ll offer a longer post detailing the implications of the decision and marriage in general, so be on the look out for that in the near future.

The Legal Framework Behind the California Prop. 8 Controversy


All around the United States, LGBT supporters are bracing themselves for D-Day – the Day of Decision. Tomorrow the California Supreme Court will announce whether Proposition 8 will be upheld. Proposition 8 was a constitutional amendment overturning the California Supreme Court’s decision to recognize same-sex marriages. Although the majority of Californians supported this initiative, the vocal minority sought recourse again in the court system.

For many, clarification is warranted to understand the situation. Courts hold a duty to follow the Constitution. When citizens amend the constitution, it is expected that the courts uphold such amendments. After all if there is to be “government of the people, by the people, for the people” (Abraham Lincoln, Gettysburg Address, 1863) then effect must be given to the will of the people – otherwise, the result is tyranny by the minority.

Revision vs. Amendment
California’s constitution, however, distinguishes between a constitutional amendment and a constitutional revision. Both require majority approval by the voters, but the latter requires two thirds approval of both the house and the senate in the California legislature.

Now, the million dollar question is: what constitutes a constitutional revision? Unfortunately, there is not much case law on this topic and ultimately it will depend on the definition of “revision”. The California constitution defines it as a “substantial alteration of the entire constitution rather than to a less extensive change in one or more of its provisions.”

Can an initiative take away a “fundamental” right?
Obviously, the first issue is whether Proposition 8 constitutes a revision. The core issue strikes at the heart of the constitution and democracy. The California Supreme Court recognized same-sex marriage as a fundamental right. In other words, same-sex marriage receives judicial deference on the same level as religion, press, and speech. So, proponents argue, an amendment abrogating a basic fundamental right constitutes a revision since it deals with the foundation of the constitution.

The obviously counter to this is that same-sex marriage is not a fundamental right and spontaneously recognizing it as such does not automatically spring it to an higher category of a “revision”; it is merely an amendment codifying what has been recognized as natural for thousands of years – marriage is only between a man and woman.

A subsidiary issue is whether the 18,000 same-sex marriages already recognized by the court will be invalidated. Obviously, if Prop 8 is struck down, the issue is moot. However, if it is upheld, then the court will decide whether the marriages stand or will be completely undone.

Predictions
No one knows completely how this will result, there is little case law and trying to predict the outcome can be like flipping a coin, even with a liberal court. If Prop 8 is struck down, conservatives and evangelicals – the main forces behind this initiative – will have a beast of a time reaching a two thirds majority in the legislature. Currently, this wouldn’t be possible. Thus, to push the initiative through, its citizens much choose to elect representatives consistent with traditional marriage positions. Of course, this would mean California transitioning from a blue state to a red one. Changes like these take time.

If Prop 8 is upheld, and the marriages are invalidated, leftists and LGBT groups will likely redouble their efforts to pass though another amendment repealing Prop 8.

I’m not too sure what the verdict will be, but I’m guessing the court will see this as a revision. Remember, this is the same court that recognized same-sex marriage as a fundamental right in mid-2008. Either way, someone will be going home disappointed, whether that will be the vocal LGBT community or the majority of California citizens remains to be decided.

Breaking News: Governor Mark Sanford to File Lawsuit Over Stimulus Funds

South Carolina Governor Mark Sanford will file a lawsuit against the state General Assembly in the continued debate over a portion of South Carolina’s stimulus money. Despite several sound legal opinions to the contrary, the General Assembly believes that it has the power to force the governor to accept $750 million in stimulus funds over two years. The governor has offered to request the funds if a corresponding amount of taxpayer funds will be used to pay down state debt. The General Assembly did not comply and the state will now have to undergo a lengthy federal lawsuit. Governor Sanford released a statement late this evening:

We’ve long said that spending the stimulus money in this fashion is incredibly irresponsible for the way it ignores the impact on future generations, and for the way it puts our state on shaky financial footing with a nearly $1 billion budget hole two years from now,” Gov. Sanford said. “To that end, we’re incredibly disappointed that the House and Senate would choose to run roughshod over today’s and tomorrow’s taxpayers by overriding our budget vetoes tied to the stimulus. While we’re pleased that a handful of other vetoes have been sustained, what they represent pales in comparison to this larger issue of the stimulus.

We know that a suit will be filed against us on this issue, and as such we’ve filed a suit tonight in response. We believe the legislature’s end-around move on the stimulus won’t pass constitutional muster, and if it were allowed to stand it would have far reaching implications for future governors of this state and for governors of other states as well.

Jonathan Adler at Volokh Conspiracy offered some thoughts on the constitutional debate a few months ago.

UPDATE: Governor Sanford’s lawsuit here.