Commentary Magazine


Topic: Antonin Scalia

Partisan Media is a Bipartisan Problem

I agree with liberal political strategist and talking head James Carville that listening and reading only to those who agree with you is a colossal bore. My reaction to such a prospect is the same as his. Rather than suffer such a fate, “just shoot me.” But Carville’s analysis of the polarization in the media illustrates the same fallacy that is at the heart of the trend he laments. Writing in The Hill yesterday, Carville says that what’s wrong is that:

Conservatives never seem to tire of one another. They love to reinforce their beliefs, day after day.

In other words, liberals are open to all points of view and read, listen and watch conservative outlets while it is only conservatives who insulate themselves from opposing points of view. Perhaps that is true on some other planet in the universe, but here on Earth, liberals are just as guilty of this fault as anyone on the right, as evidence by the loyalty to a wide array of liberal newspapers, radio and TV outlets while shunning conservative publications, Fox News and conservative radio talkers as if they had the plague. If anything, they are worse since they think those who tell them what they want to hear are objective while those who disagree are not. Nothing better illustrates the dialogue of the deaf on this issue than attitudes such as those illustrated by Carville.

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I agree with liberal political strategist and talking head James Carville that listening and reading only to those who agree with you is a colossal bore. My reaction to such a prospect is the same as his. Rather than suffer such a fate, “just shoot me.” But Carville’s analysis of the polarization in the media illustrates the same fallacy that is at the heart of the trend he laments. Writing in The Hill yesterday, Carville says that what’s wrong is that:

Conservatives never seem to tire of one another. They love to reinforce their beliefs, day after day.

In other words, liberals are open to all points of view and read, listen and watch conservative outlets while it is only conservatives who insulate themselves from opposing points of view. Perhaps that is true on some other planet in the universe, but here on Earth, liberals are just as guilty of this fault as anyone on the right, as evidence by the loyalty to a wide array of liberal newspapers, radio and TV outlets while shunning conservative publications, Fox News and conservative radio talkers as if they had the plague. If anything, they are worse since they think those who tell them what they want to hear are objective while those who disagree are not. Nothing better illustrates the dialogue of the deaf on this issue than attitudes such as those illustrated by Carville.

Carville’s motivation for writing was the same as that of David Carr, the New York Times media columnist whose column on the issue was discussed here on Sunday. Both were flabbergasted to learn that Supreme Court Justice Antonin Scalia avoided liberal newspapers like the Times and the Washington Post as well as NPR Radio, choosing instead to read the Wall Street Journal, the Washington Times and to listen to talk radio with special mention to William Bennett’s morning show.

I wrote then that the problem with Carr’s article was that he failed to note his own newspaper’s well-known liberal bias or to acknowledge that prior to the advent of Fox News and conservative talk radio, liberals had a virtual monopoly on the mainstream media in terms of major daily newspapers and television networks.

But Carville’s failing here is even worse than Carr’s omissions. He seems to actually believe that liberals are willing to expose themselves to different viewpoints but that it is only conservatives that don’t.

Is he serious?

Does he think liberals check conservative publications like editorial page of the Wall Street Journal, National Review, the Weekly Standard or even Commentary to get a different perspective from that of the Times? Or those who watch MSNBC are frequently clicking over to Fox to find out what the other side is saying? That NPR listeners tune in even once in a blue moon to Rush Limbaugh or anyone with a conservative frame of reference? Not a chance.

The liberal problem with the proliferation of media outlets that has provided both sides of the political divide with a diverse set of choices that enable them to avoid opinions that upset them is primarily based in their dismay that there is a choice nowadays other than the ones they endorse.

As Carville’s piece indicates, what liberals want is to force conservatives to listen to them. Fair enough. We sometimes learn a lot more from our opponents than our friends. I know I do. But that is not matched by a liberal commitment to listen to conservatives. Media partisanship is a problem. But, contrary to Carville’s spin, it is a bipartisan problem.

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Cries of Racism Cloud Real Issues in Court

Liberals are jumping all over Supreme Court Justice Antonin Scalia’s comment yesterday during an oral hearing in which he asked whether continuing the special enforcement provisions of the Voting Rights Act in some states was a “perpetuation of racial entitlement.” Many, including his court colleague Justice Sonia Sotomayor, seemed to interpret it as questioning whether the right to vote is itself a “racial entitlement.” For his pains, Scalia was branded a racist. What is left of the aging remnants of the once-vital civil rights movement are hoping that outrage about that remark can galvanize public pressure not just for the continuation of the Voting Rights Act as it currently stands, but against both voter integrity laws and the system of racial majority districts.

The problem with the critique of Scalia is pretty much the same as that with the defense of the legal status quo. What is at stake in this debate and the legal case in question–Shelby County, Alabama v. Holder–is not the right to vote, which Scalia supports as much as any liberal. There is no evidence that anyone in Shelby County is trying to reinstate Jim Crow laws or prevent African Americans or other minorities from exercising their constitutionally protected right to cast a ballot. Nor is there any evidence that this is true anywhere else in the states and counties that remain under direct federal supervision as a result of the 1965 law. The entitlement in question is rather the ability of the Justice Department to act as a national elections commission in certain areas that were once strongholds of racial hatred, even though the country has changed markedly in the last half century. Instead of promoting the false charge that Scalia is a segregationist, the focus should be on who benefits from the continuation of Section Five of the Act. The answer is: a class of political elites that benefit from the creation of racial majority districts.

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Liberals are jumping all over Supreme Court Justice Antonin Scalia’s comment yesterday during an oral hearing in which he asked whether continuing the special enforcement provisions of the Voting Rights Act in some states was a “perpetuation of racial entitlement.” Many, including his court colleague Justice Sonia Sotomayor, seemed to interpret it as questioning whether the right to vote is itself a “racial entitlement.” For his pains, Scalia was branded a racist. What is left of the aging remnants of the once-vital civil rights movement are hoping that outrage about that remark can galvanize public pressure not just for the continuation of the Voting Rights Act as it currently stands, but against both voter integrity laws and the system of racial majority districts.

The problem with the critique of Scalia is pretty much the same as that with the defense of the legal status quo. What is at stake in this debate and the legal case in question–Shelby County, Alabama v. Holder–is not the right to vote, which Scalia supports as much as any liberal. There is no evidence that anyone in Shelby County is trying to reinstate Jim Crow laws or prevent African Americans or other minorities from exercising their constitutionally protected right to cast a ballot. Nor is there any evidence that this is true anywhere else in the states and counties that remain under direct federal supervision as a result of the 1965 law. The entitlement in question is rather the ability of the Justice Department to act as a national elections commission in certain areas that were once strongholds of racial hatred, even though the country has changed markedly in the last half century. Instead of promoting the false charge that Scalia is a segregationist, the focus should be on who benefits from the continuation of Section Five of the Act. The answer is: a class of political elites that benefit from the creation of racial majority districts.

As both the plaintiffs and some of the justices pointed out yesterday, the problem that that provision of the law was designed to address has been solved. Voter turnout of blacks is actually higher in the nine states covered by the Act than in the rest of the country. The continuation of Section Five–in which certain areas must prove they are not discriminating against minorities rather than forcing the government to prove that they are–does, however, hamper the ability of legislatures to redraw districts or to pass voter integrity laws that liberals falsely allege are directed against minorities.

It must be understood that once the detritus of segregation and other laws intended to prevent blacks from voting were swept away, the main point of the law has been to create a system that enshrined racial gerrymandering as the norm. Since it was assumed that whites would never vote for an African American, the courts mandated that congressional and legislative districts be drawn so as to ensure that blacks and in some cases Hispanics would be able to elect one of their own.

This led to a vast expansion of the number of blacks in Congress and in state legislatures, but ironically also hurt the party that most of them supported. The districts created by this racial gerrymander were often bizarrely drawn and had little to do with geography or history. But the main point is that they drained black Democratic voters from other districts that ensured the engineering of a few safe Democratic seats. Yet they also made the remaining districts much whiter and, ironically, far more likely to be Republican.

That was good for the few black politicians who were in possession of these safe Democratic and racially homogeneous seats, and for the Republican Party that cleaned up everywhere else. Whether that is actually good for the country or for African American voters, who have little influence on the composition of Congress and whose representatives are the products of petty one-party autocracies, is another matter entirely.

Just as crucial to understanding the impact of this case is the way the Civil Rights Act has become a weapon to use against voter integrity laws. What is left of the civil rights movement has embraced the cause of stopping voter ID laws as a way of reviving their influence. Minorities are no less capable of getting the same photo ID that is needed to conduct just about any transaction in the modern commercial world or to interact with government than anyone else. But the left attempts to argue that opposition to them is indistinguishable from that of racial justice. This is absurd, and it is opposed by what polls have consistently showed to be the vast majority of Americans—including minorities—who think laws that seek to prevent electoral cheating are inherently reasonable.

The current interpretation of the Voting Rights Act gives Attorney General Eric Holder the right to oppose these laws and to brand them as racist. As the president’s mention of the issue in his State of the Union showed, this is an attempt to play the racial card for partisan purposes. It also gives aging rights groups who have outlived their usefulness a new lease on life. But all this also undermines any notion that what is at stake in the Shelby case is anything remotely connected to the original intent of the 1965 law.

The South has transcended its tragic past and is no more nor less racist than any other part of the country. But given the inability of so many in Congress on both sides of the aisle to rise above their own self-interest on this issue, the court is the only venue that can talk sense and end a practice that now does more mischief than good. Protecting the right to vote is a sacred cause that deserves the support of all Americans. But the preservation of this outmoded system, or wrongly branding Scalia a racist, has nothing to with that.

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Justice Scalia’s Place in Judicial History

Fox News’ Chris Wallace conducted a fascinating interview with the longest-serving member of the Supreme Court, Antonin Scalia. Justice Scalia is on a media tour promoting a book he has co-authored (with Bryan Garner), Reading Law: The Interpretation of Legal Texts. It offers what the authors consider to be 57 valid canons of construction and dispels 13 false notions about legal interpretation.

The time has come, Justice Scalia told the Wall Street Journal, “to sum up the things I care most about with respect to the law.” The main controversy among judges, he said, “is not conservative vs. liberal. The main controversy is how to approach the application of legal text.”

The book’s preface and introduction beautifully frame the competing judicial philosophies in the modern era. On the one side are textualists like Scalia and Garner, who “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.”

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Fox News’ Chris Wallace conducted a fascinating interview with the longest-serving member of the Supreme Court, Antonin Scalia. Justice Scalia is on a media tour promoting a book he has co-authored (with Bryan Garner), Reading Law: The Interpretation of Legal Texts. It offers what the authors consider to be 57 valid canons of construction and dispels 13 false notions about legal interpretation.

The time has come, Justice Scalia told the Wall Street Journal, “to sum up the things I care most about with respect to the law.” The main controversy among judges, he said, “is not conservative vs. liberal. The main controversy is how to approach the application of legal text.”

The book’s preface and introduction beautifully frame the competing judicial philosophies in the modern era. On the one side are textualists like Scalia and Garner, who “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.”

On the other side is purposivism (where the author’s purpose, not text, is king), consequentialism (which argues that statues should be construed to produce desirable results regardless of what the text may say), and those who argue that a text has no independent meaning apart from authorial intention, which means interpretation is wholly subjective and left completely up to the interpreter.

What connects all these theories is the effort to, in the words of Scalia and Garner, “avoid the constraints of a controlling text.” The appeal of this approach is obvious: it allows judges to effectively write legislation rather than merely interpret it. They can encode into law their own political views. There is something tempting, even intoxicating, in “letting the intangible, protean spirit overtake the tangible, fixed words of authoritative texts.”

There are, however, several problems with this improvisational approach to judicial philosophy. For one thing, it is contrary to the views of the founders and our charter of government (see the United States Constitution, Article One/Section One, Article Three/Section One, as well as Federalist Number 78 for more).

In addition, as Reading Law points out, a philosophy of judicial hegemony and anti-textualism – of turning judges into “statesmen” and even quasi-kings — has led to the politicizing of judges, greater social rancor, less certainty in the law, and less faith in judicial institutions. Nor does it allow for any guiding principle for constitutional interpretation. The Constitution might be interpreted to align with the philosophy of James Madison — or the philosophy of Friedrich Nietzsche. Non-textualists simply make it up as they go along. Which is why the constitutional scholar Gary McDowell has said, “[I]t is not too much to say that the preferences for the rule of law over the rule of men depends upon the intellectual integrity of interpretation.”

Antonin Scalia has spent the last four decades of his life seeking to restore intellectual integrity to the interpretation of the law. Borrowing from an observation by Frank Easterbrook, no one since Justice Joseph Story has done it quite as well.

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Money, Speech and Morgan Freeman

Politico reported this morning that Morgan Freeman donated $1 million to the pro-Obama super PAC Priorities USA last month. The organization has reportedly been struggling to drum up donors, which isn’t surprising as Democrats have spent the past two years demonizing super PACs. Clearly, they hope Freeman’s donation will signal to wealthy liberals that it’s okay to support these groups.

But note Freeman’s statement out this morning:

“Pres. Obama has done a remarkable job in historically difficult circumstances. … I am proud to lend my voice … to those who defend him. Priorities USA Action is doing a great job of protecting the values I believe in. I am happy to help them and I hope others will join me.”

He wasn’t defending his donation as a necessary evil. Instead, he said he was “proud to lend [his] voice.” That’s an interesting choice in wording, considering Democrats have been mocking the idea that political spending is protected speech for the last two years.

But Freeman is right, and the Supreme Court has affirmed it. Political spending is a form of free expression. As Justice Antonin Scalia explained eloquently to CNN’s Piers Morgan last night, “You can’t separate speech from the money that facilitates the speech.”

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Politico reported this morning that Morgan Freeman donated $1 million to the pro-Obama super PAC Priorities USA last month. The organization has reportedly been struggling to drum up donors, which isn’t surprising as Democrats have spent the past two years demonizing super PACs. Clearly, they hope Freeman’s donation will signal to wealthy liberals that it’s okay to support these groups.

But note Freeman’s statement out this morning:

“Pres. Obama has done a remarkable job in historically difficult circumstances. … I am proud to lend my voice … to those who defend him. Priorities USA Action is doing a great job of protecting the values I believe in. I am happy to help them and I hope others will join me.”

He wasn’t defending his donation as a necessary evil. Instead, he said he was “proud to lend [his] voice.” That’s an interesting choice in wording, considering Democrats have been mocking the idea that political spending is protected speech for the last two years.

But Freeman is right, and the Supreme Court has affirmed it. Political spending is a form of free expression. As Justice Antonin Scalia explained eloquently to CNN’s Piers Morgan last night, “You can’t separate speech from the money that facilitates the speech.”

Scalia: You can’t separate speech from the money that facilitates the speech.

Morgan: Can’t you?

Scalia: It’s utterly impossible. Could you tell newspaper publishers you can only spend so much money in the publication of your newspaper?

Exactly. If you limit the amount of money that can be spent on speech, you are consequently limiting the speech. It’s true that some people have more to spend on this than others. But there are all kinds of inequalities when it comes to speech. Some people run newspapers. Some people have radio shows. Some people have prominent jobs that provide them with platforms to reach large audiences.

And then there are those who choose to spend their own money to express their voices on politics. Freeman apparently gets it. When will Senate Democrats figure it out?

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Reading Tea Leaves on ObamaCare

We’ll probably have to wait at least another week to hear the Supreme Court’s ruling on ObamaCare and the individual mandate, but there’s always more room for speculation. At Forbes, the Manhattan Institute’s Avik Roy has a Talmudic reading on some recent comments from Justice Ginsburg and Justice Scalia. On Justice Ginsburg, who actually addressed the case last week at a liberal legal conference, Roy writes:

Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

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We’ll probably have to wait at least another week to hear the Supreme Court’s ruling on ObamaCare and the individual mandate, but there’s always more room for speculation. At Forbes, the Manhattan Institute’s Avik Roy has a Talmudic reading on some recent comments from Justice Ginsburg and Justice Scalia. On Justice Ginsburg, who actually addressed the case last week at a liberal legal conference, Roy writes:

Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

That’s pretty interesting, if Roy’s third-hand sources are correct. If the Court hasn’t decided how to rule on this question, we could be waiting longer than just another week or two. The consensus among journalists and others closely following this seems to be that the ruling will come next Monday, or possibly later next week if the Court needs additional time. But there’s no deadline, and the Court can pretty much do what it wants when it comes to timing.

Roy also notes an interesting development from Justice Scalia, who released a book this week clarifying his position on a decision related to the Commerce Clause:

Wickard, [Scalia] writes, “expanded the Commerce Clause beyond all reason” by opining that “a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.” …

The bottom line is that if Scalia thinks Wickard was wrongly decided, he’s almost certain to vote to overturn the mandate. This isn’t a surprise based on his commentary at oral argument, but it may shed light into the thinking of Justices Alito and Roberts, who are thought to share Scalia’s precedent-oriented approach to dealing with the Commerce Clause.

After Scalia’s tough questioning during the health care arguments, it seemed highly likely that he would side against the individual mandate. But Obama administration attorneys were reportedly speculating prior to that that Scalia could be a swing vote to uphold the mandate based on his previous opinions related to the Commerce Clause. Scalia may be attempting to reconcile this in his latest book.

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Another Liberal Libel of the Court

John wrote yesterday in the New York Post about the “unerring liberal inability to accept the substance and merit of opposing arguments,” a phenomenon that has produced preemptive attacks on the integrity of the Supreme Court after the ObamaCare oral argument.

The distinguished law professor, Ronald Dworkin, is the latest liberal to libel the Court. At the New York Review of Books blog, he asserts the legal issues in ObamaCare “are not really controversial;” that “basic constitutional principle” and Court precedents “obviously” support it; that conservative justices are ignoring “text, precedent and principle;” and that the distinction between regulating commerce and making everyone buy a product is “pointless.” Perhaps he missed the point in the colloquy between Justice Breyer and Michael Carvin; or skipped the Eleventh Circuit’s 207-page opinion (jointly written by Democratic and Republican appointees); or perhaps he lacks the ability to accept the substance and merit of opposing arguments.

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John wrote yesterday in the New York Post about the “unerring liberal inability to accept the substance and merit of opposing arguments,” a phenomenon that has produced preemptive attacks on the integrity of the Supreme Court after the ObamaCare oral argument.

The distinguished law professor, Ronald Dworkin, is the latest liberal to libel the Court. At the New York Review of Books blog, he asserts the legal issues in ObamaCare “are not really controversial;” that “basic constitutional principle” and Court precedents “obviously” support it; that conservative justices are ignoring “text, precedent and principle;” and that the distinction between regulating commerce and making everyone buy a product is “pointless.” Perhaps he missed the point in the colloquy between Justice Breyer and Michael Carvin; or skipped the Eleventh Circuit’s 207-page opinion (jointly written by Democratic and Republican appointees); or perhaps he lacks the ability to accept the substance and merit of opposing arguments.

His post is not even internally consistent. He asserts conservative justices are relying on “the strict and arbitrary language of an antique Constitution,” which seems to cut against his argument that they are preparing to rule “in spite of text.” His real problem is the text itself, not justices who think they must stay within it. Stripped of his tendentious adjectives (“strict,” “arbitrary,” “antique”), Prof. Dworkin is criticizing judicial reliance on the “language of [the] Constitution.”

That reliance was inherent in Justice Kennedy’s first question to the Solicitor General: “Can you create commerce in order to regulate it?” The answer is not obvious, nor non-controversial, nor addressed by any prior Court precedent.

Which suggests that the place to start the analysis is the text of the constitutional provision. In A Matter of Interpretation: Federal Courts and the Law: Federal Courts and the Law (Princeton University Press: 1998), Justice Scalia writes:

If you … read a brief filed in a constitutional law case, you will rarely find the discussion addressed to the text of the constitutional provision that is at issue, or to the question of what was the originally understood or even the originally intended meaning of that text. The starting point of the analysis will be Supreme Court cases, and the new issue will presumptively be decided according to the logic that those cases expressed, with no regard for how far that logic, thus extended, has distanced us from the original text and understanding.

In the case of Obamacare, the prior precedents do not “obviously” support the law, which accounts for the fact that the plaintiffs are not asking the Court to overrule any prior case. The argument instead is that the Commerce Clause, by its terms, gives Congress the power to regulate commerce, but not to force every individual into it — to regulate those engaged in commerce, not to require every person to buy whatever Congress wants them to buy. Prior case law allows Congress to regulate farmers engaged in producing wheat, not to require every person in the country to buy Wheaties.

The Court can decide this case either way precisely because the issue has not previously been addressed. But the text and original understanding of the Commerce Clause suggest the answer to Justice Kennedy’s question is “no,” and Dworkin’s citation of “basic constitutional principle” (he neither cites nor discusses any actual Court precedents) suggest he is appealing to some uber-concept outside the text of the law.

Perhaps he shares the view that Senator Barack Obama expressed at the time of Justice Roberts’ confirmation hearing: that in important cases justices should rely not on the language of the law, but on what is in their wise hearts. We can see the problem with this approach in Prof. Dworkin’s post, which impugns the integrity of the justices who might disagree with his heartfelt position. Rather than demonstrate that the problem is the Court (it is not), he has provided an extraordinary example of the trait John noted.

 

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Ruth Bader Ginsburg and Barack Obama v. the Founders

Two recent interviews with two prominent liberal figures help cast some revealing light on modern liberalism’s attitude toward the Constitution.

Let’s start with Supreme Court Justice Ruth Bader Ginsburg, who said in an interview earlier this month with Al Hayat television, “I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, have an independent judiciary. It really is, I think, a great piece of work that was done.” She went on to praise Canada’s Charter of Rights and Freedoms and the European Convention on Human Rights as much more recent, and better, models. “Why not take advantage of what there is elsewhere in the world?” Justice Ginsburg asked. “I’m a very strong believer in listening and learning from others.”

Then there was President Obama’s interview with NBC’s Matt Lauer, in which Lauer said, “I have talked to so many people over the last couple of years, President Obama, who were huge supporters of yours back in 2008. And today they are not sure. I hear more and more that they’re disappointed in you. That you aren’t the transformational political figure they hoped you would be. How does that make you feel when you hear that?”

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Two recent interviews with two prominent liberal figures help cast some revealing light on modern liberalism’s attitude toward the Constitution.

Let’s start with Supreme Court Justice Ruth Bader Ginsburg, who said in an interview earlier this month with Al Hayat television, “I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, have an independent judiciary. It really is, I think, a great piece of work that was done.” She went on to praise Canada’s Charter of Rights and Freedoms and the European Convention on Human Rights as much more recent, and better, models. “Why not take advantage of what there is elsewhere in the world?” Justice Ginsburg asked. “I’m a very strong believer in listening and learning from others.”

Then there was President Obama’s interview with NBC’s Matt Lauer, in which Lauer said, “I have talked to so many people over the last couple of years, President Obama, who were huge supporters of yours back in 2008. And today they are not sure. I hear more and more that they’re disappointed in you. That you aren’t the transformational political figure they hoped you would be. How does that make you feel when you hear that?”

To which Obama said, “I think this is the nature of being president. What’s frustrated people is that I have not been able to force Congress to implement every aspect of what I said in 2008. Well, it turns out our Founders designed a system that makes it more difficult to bring about change than I would like sometimes.” [emphasis added.]

These two comments highlight one of the characteristics of 20th and 21st century liberalism, which is the belief (as Charles Kesler, editor of the Claremont Review of Books, points out so well in this 2009 essay) the Constitution is “time bound,” out-of-step with modernity, a clumsy checks-and-balances, separation-of-powers charter that impedes progressive change. Hence the need to think about the Constitution as a “living Constitution” – a tendency to read the work of the founders as (in the words of Kesler) “a Darwinian document, whose meaning must evolve with the times, and under whose precepts the national government must be allowed and encouraged to outgrow its old limits and blend its powers in novel ways.”

Justice Ginsburg’s colleague Antonin Scalia has offered the best counter-argument to those championing a Living Constitution. “Perhaps the most glaring defect of Living Constitutionalism, next to its incompatibility with the whole anti-evolutionary purpose of a constitution, is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution,” according to Justice Scalia. “Panta rei [“all things are in flux”] is not a sufficiently informative principle of constitutional interpretation.”

When determining when and in what direction the evolution should occur, Scalia asks:

Is it the will of the majority, discerned from newspapers, radio talk shows, public opinion polls, and chats at the country club? Is it the philosophy of Hume, or of John Rawls, or of John Stuart Mill, or of Aristotle? As soon as the discussion goes beyond the issue of whether the Constitution is static, the evolutionists divide into as many camps as there are individual views of the good, the true, and the beautiful. I think that is inevitably so, which means that evolutionism is simply not a practicable constitutional philosophy.

There are key differences that separate, at the political and philosophical level, modern-day liberals and modern-day conservatives. One is where they stand on equality of opportunity v. equality of outcome. Another is the centralization of power (collectivism v. subsidiarity). And yet another is the American Constitution. Between Ruth Bader Ginsburg and Barack Obama on the one side and the founders on the other, count me as standing on the side of the latter. The Federalist Papers still beat any opinion by Justice Ginsburg or any speech by President Obama. By a country mile.

 

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The Unraveling of the New York Times‘s ‘Citizens United Scandal’ Story

Liberal advocacy group Common Cause has filed a DOJ petition against Justice Antonin Scalia and Justice Clarence Thomas, claiming that the justices’ attendance at a Koch Industry event represented a conflict of interest in last year’s Citizens United v. Federal Election Commission Supreme Court case. The organization wants the justices to retroactively recuse themselves from the case and for the Court to vacate its decision.

But while the New York Times tried to portray Common Cause’s petition as a serious legal challenge this morning, the holes in the group’s allegations have continued to grow as the day has progressed.

Common Cause argues that the Koch brothers “were among the main beneficiaries of the Supreme Court’s decision in the Citizens United case,” and by attending Koch-sponsored events, Scalia and Thomas could have had their votes influenced:

Common Cause said in its petition to the Justice Department that if either of the justices appeared before Mr. Koch’s group between 2008 and 2010, when the court was considering aspects of the Citizens United case, “it would certainly raise serious issues of the appearance of impropriety and bias.”

But according to Politico’s Ben Smith, Scalia and Thomas appear to have attended only one Koch event each — and both events took place long before the Supreme Court even knew about the Citizens United case:

But Eugene Meyer, the president of the conservative legal group the Federalist Society, told me today that Scalia spoke to the Palm Springs conference in January of 2007. Citizens United was only filed on December 17 of that year. Thomas spoke to the conference in January 2008, after the case had been filed in federal district court, but months before the Supreme Court took the case in August.

And legal experts I’ve spoken to have also dismissed the basis of Common Cause’s petition.

“I’ve never heard of somebody filing a motion saying we’d like you to disqualify yourself from a case you decided last year because three years before that you gave a speech on a different subject [at an event],” said Ronald Rotunda, the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence at Chapman University School of Law. “If it was an oral argument, it would be hard to say without snickering.”

Rotunda said that it’s common, and even encouraged, for judges to attend and speak at events, as long as they don’t discuss pending cases. “If the judges have to be disqualified because somebody within earshot talks about legal issues, it would mean judges couldn’t read the newspaper.”

Common Cause’s case seems so flimsy, in fact, that some have guessed it must be a publicity stunt. Which makes sense — the organization is currently gearing up for its anti-Koch rally with Van Jones, which the Times somehow neglected to add to its report.

Multiple attorneys I’ve spoken to have said that this case just isn’t going anywhere. Or, as Rotunda put it, “There’ll be some people laughing about it, and then it’ll disappear.”

I think that’s a safe bet. Maybe someone should let the New York Times in on the joke.

Liberal advocacy group Common Cause has filed a DOJ petition against Justice Antonin Scalia and Justice Clarence Thomas, claiming that the justices’ attendance at a Koch Industry event represented a conflict of interest in last year’s Citizens United v. Federal Election Commission Supreme Court case. The organization wants the justices to retroactively recuse themselves from the case and for the Court to vacate its decision.

But while the New York Times tried to portray Common Cause’s petition as a serious legal challenge this morning, the holes in the group’s allegations have continued to grow as the day has progressed.

Common Cause argues that the Koch brothers “were among the main beneficiaries of the Supreme Court’s decision in the Citizens United case,” and by attending Koch-sponsored events, Scalia and Thomas could have had their votes influenced:

Common Cause said in its petition to the Justice Department that if either of the justices appeared before Mr. Koch’s group between 2008 and 2010, when the court was considering aspects of the Citizens United case, “it would certainly raise serious issues of the appearance of impropriety and bias.”

But according to Politico’s Ben Smith, Scalia and Thomas appear to have attended only one Koch event each — and both events took place long before the Supreme Court even knew about the Citizens United case:

But Eugene Meyer, the president of the conservative legal group the Federalist Society, told me today that Scalia spoke to the Palm Springs conference in January of 2007. Citizens United was only filed on December 17 of that year. Thomas spoke to the conference in January 2008, after the case had been filed in federal district court, but months before the Supreme Court took the case in August.

And legal experts I’ve spoken to have also dismissed the basis of Common Cause’s petition.

“I’ve never heard of somebody filing a motion saying we’d like you to disqualify yourself from a case you decided last year because three years before that you gave a speech on a different subject [at an event],” said Ronald Rotunda, the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence at Chapman University School of Law. “If it was an oral argument, it would be hard to say without snickering.”

Rotunda said that it’s common, and even encouraged, for judges to attend and speak at events, as long as they don’t discuss pending cases. “If the judges have to be disqualified because somebody within earshot talks about legal issues, it would mean judges couldn’t read the newspaper.”

Common Cause’s case seems so flimsy, in fact, that some have guessed it must be a publicity stunt. Which makes sense — the organization is currently gearing up for its anti-Koch rally with Van Jones, which the Times somehow neglected to add to its report.

Multiple attorneys I’ve spoken to have said that this case just isn’t going anywhere. Or, as Rotunda put it, “There’ll be some people laughing about it, and then it’ll disappear.”

I think that’s a safe bet. Maybe someone should let the New York Times in on the joke.

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Why the Constitution — and What It Means — Matters

Having taken control of the House of Representatives, Republicans plan to begin their political journey by today reading the American Constitution word-for-word. This is simply too much for those on the left.

According to the Washington Post’s Ezra Klein, it’s a “gimmick.” The Constitution, you see, was written “more than 100 years ago” and is very, very hard to understand.

Mr. Klein’s Post colleague E.J. Dionne Jr. wrote: “My first response was to scoff at this obvious sop to the tea party movement. One can imagine that the rule’s primary practical result will be the creation of a small new House bureaucracy responsible for churning out constitutional justifications for whatever gets introduced.” (On reconsideration, Dionne says that we “badly need a full-scale debate over what the Constitution is, means and allows” — so long as we view it as “something other than the books of Genesis or Leviticus.”)

Over at Vanity Fair, the mocking continues. “House Republicans will kick-start the 112th Congress tomorrow with a spirited recitation of the Constitution, a document whose recent relevance is due largely to the ideological and sartorial interests of the Tea Party,” writes Juli Weiner.

About these responses, I have several thoughts. The first is that yesterday, the new Speaker of the House, John Boehner, swore in members of the 112th Congress. And this is the oath he administered:

I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

With members of Congress having just sworn to support and defend the Constitution, it’s not at all clear why reading its text should give rise to such ridicule. Except, of course, if you don’t take the Constitution all that seriously; and especially if you consider it to be an obstacle to your ambitions. In that case, the game is to mock and sneer at those who attempt to reconnect American government to its founding charter. Read More

Having taken control of the House of Representatives, Republicans plan to begin their political journey by today reading the American Constitution word-for-word. This is simply too much for those on the left.

According to the Washington Post’s Ezra Klein, it’s a “gimmick.” The Constitution, you see, was written “more than 100 years ago” and is very, very hard to understand.

Mr. Klein’s Post colleague E.J. Dionne Jr. wrote: “My first response was to scoff at this obvious sop to the tea party movement. One can imagine that the rule’s primary practical result will be the creation of a small new House bureaucracy responsible for churning out constitutional justifications for whatever gets introduced.” (On reconsideration, Dionne says that we “badly need a full-scale debate over what the Constitution is, means and allows” — so long as we view it as “something other than the books of Genesis or Leviticus.”)

Over at Vanity Fair, the mocking continues. “House Republicans will kick-start the 112th Congress tomorrow with a spirited recitation of the Constitution, a document whose recent relevance is due largely to the ideological and sartorial interests of the Tea Party,” writes Juli Weiner.

About these responses, I have several thoughts. The first is that yesterday, the new Speaker of the House, John Boehner, swore in members of the 112th Congress. And this is the oath he administered:

I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

With members of Congress having just sworn to support and defend the Constitution, it’s not at all clear why reading its text should give rise to such ridicule. Except, of course, if you don’t take the Constitution all that seriously; and especially if you consider it to be an obstacle to your ambitions. In that case, the game is to mock and sneer at those who attempt to reconnect American government to its founding charter.

For many modern-day liberals, the Constitution is, at best, a piece of quaint, even irrelevant, parchment. As Jonah Goldberg reminds us in his excellent column:

“Are you serious?” was Nancy Pelosi’s response to a question over the constitutionality of health care reform. Third-ranking House Democrat Rep. James Clyburn of South Carolina famously declared that “there’s nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do.” Rep. Phil Hare of Illinois, before he was defeated by a Tea Party–backed candidate, told a town hall meeting, “I don’t worry about the Constitution” on health care reform.

At the core of the differences between contemporary liberals and conservatives, then, is the power of the federal government in our lives. The Constitution was designed as a check on the power of government, done in order to protect individual liberties. The Founders designed a federal government with limited, delegated, and enumerated powers, a theory of government that conservatives embrace and consider paradigmatic. (How that theory works itself out in practice is, of course, not always clear.)

The progressive/liberal disposition, on the other hand, believes that this view of the Constitution is obsolete and unwise; it is constantly, even relentlessly, looking for ways to increase the powers of the federal government (witness the Patient Protection and Affordable Care Act of 2010). In order to achieve this, the Constitution needs to be ignored or, better yet, re-invented as a Living Constitution, constantly evolving, morphing from age to age, interpreted in light of the “evolving standards of decency that mark the progress of a maturing society.”

But as Justice Antonin Scalia has written, “Perhaps the most glaring defect of Living Constitutionalism, next to its incompatibility with the whole antievolutionary purpose of a constitution, is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution. Panta rei [“all things are in flux”] is not a sufficiently informative principle of constitutional interpretation.”

When determining when and in what direction the evolution should occur, Scalia asks:

Is it the will of the majority, discerned from newspapers, radio talk shows, public opinion polls, and chats at the country club? Is it the philosophy of Hume, or of John Rawls, or of John Stuart Mill, or of Aristotle? As soon as the discussion goes beyond the issue of whether the Constitution is static, the evolutionists divide into as many camps as there are individual views of the good, the true, and the beautiful. I think that is inevitably so, which means that evolutionism is simply not a practicable constitutional philosophy.

For those on the left, the answer to Scalia’s question is: The Constitution means whatever we say it means. And in order for this subjective, ad hoc interpretation to prevail, the left must control the levers of political and judicial power.

There is an effort today to reassert the primacy of the traditional, rather than the Living, Constitution. Liberals understand this, which explains why they are reacting in the manner they are.

The controversy about members of the 112th Congress reading the Constitution is not really about that; it is about something much deeper and more significant. It has to do with how we understand and interpret our charter of government, the product of what John Adams called “the greatest single effort of national deliberations that the world has ever seen.” I suspect that this debate, which conservatives should welcome, will only intensify.

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The Underwelming Kagan

Joshua Green examines why liberals are nervous about Elena Kagan. He explains:

The same thing that makes her confirmation so likely — the lack of a paper trail for opponents to parse and attack — has also become a prime source of concern for her own side. There’s little hard evidence to reassure liberals that she’ll adjudicate in the way they would prefer. Kagan’s lack of a judicial record and scant legal writing during a career spent mostly in politics and the deanship of Harvard Law School leave open the possibility she’ll turn out to be more conservative than advertised. … The liberal complaint against Kagan is threefold: that she wasn’t sufficiently aggressive in hiring women and minorities to the Harvard faculty; that she took worrisome positions on executive power, the war on terrorism, and corporate campaign spending; and that she isn’t the counterpart to Antonin Scalia that the left has long desired.

Green makes a comparison to David Souter, the quintessential stealth candidate who turned out to be not at all what the president who nominated him expected.

Most interesting is that the left — despite the silly Obama spin — recognizes that “she isn’t the counterpart to Antonin Scalia that the left has long desired.” Perhaps they are worried her intellect is not all that dazzling? Well, we can say she’s not demonstrated the sort of brilliance and scholarship or fine writing that the left understands is a prerequisite to do battle on the Court.

She has had a total of six Supreme Court arguments in her short tenure as solicitor general. It took a full six months before she gave her first argument in Citizens United, bypassing key cases, including Ricci (the New Haven firefighter case) and a high-profile challenge to the Voting Rights Act. Sources within the Justice Department report that Kagan was preparing to argue the Voting Rights Act case but ultimately gave way to her deputy.

Does this sound like a proficient, accomplished “lawyer’s lawyer”? Not even Kagan is high on her own advocacy abilities. Her outing in Citizens United was rocky at best, getting the worst of questioning from both Justices Scalia and Kennedy (whom she is tasked by the left with persuading once she is confirmed). At an awards ceremony at Georgetown Law School honoring Kennedy earlier this month, Kagan spoke, and her comments are revealing — and should be bracing to the left:

At one point, Kagan raised audience eyebrows when she said she would remember an exchange she had with Kennedy “for the rest of my career as an advocate.” …

That memorable exchange with Kennedy that Kagan was recalling, by the way, offered a glimpse into how Kagan handled her first oral argument before the high court — or any court — last September in Citizens United v. Federal Election Commission. That’s the landmark campaign finance case that Kagan lost 5-4, with Kennedy writing the majority.

In spite of her earlier praise for Kennedy, Kagan told the Georgetown audience that the justice had “a bit of a bad habit,” namely that he asks advocates about cases that are not mentioned anywhere in the briefs for the case. Kennedy did just that in Citizens United when he asked Kagan whether something she had just said was “inconsistent with the whole line of cases that began with Thornhill v. Alabama and Coates v. Cincinnati.” … Perhaps many advocates know those cases, Kagan said, but “I at any rate did not.” She added, “There was a look of panic on my face.”

Without knowing for sure, Kagan said she believes that Kennedy “saw in the flash of an instant that … I really had no clue” about the cases he was asking her about. Instead of waiting for her painful reply, Kennedy quickly went on to explain the Thornhill line of cases — which relate to facial challenges to statutes under the First Amendment — with enough detail that Kagan was able to recover and answer the question.

The left has good reason to worry. Kagan will need to elicit respect, not pity, from Kennedy once she is confirmed if she is to fulfill the left’s fondest hopes. Maybe she will grow into the job, but if it took six months to get prepared for her first argument before the Court, how long will it take before she is an influential force on the Court? Will she ever be?

Joshua Green examines why liberals are nervous about Elena Kagan. He explains:

The same thing that makes her confirmation so likely — the lack of a paper trail for opponents to parse and attack — has also become a prime source of concern for her own side. There’s little hard evidence to reassure liberals that she’ll adjudicate in the way they would prefer. Kagan’s lack of a judicial record and scant legal writing during a career spent mostly in politics and the deanship of Harvard Law School leave open the possibility she’ll turn out to be more conservative than advertised. … The liberal complaint against Kagan is threefold: that she wasn’t sufficiently aggressive in hiring women and minorities to the Harvard faculty; that she took worrisome positions on executive power, the war on terrorism, and corporate campaign spending; and that she isn’t the counterpart to Antonin Scalia that the left has long desired.

Green makes a comparison to David Souter, the quintessential stealth candidate who turned out to be not at all what the president who nominated him expected.

Most interesting is that the left — despite the silly Obama spin — recognizes that “she isn’t the counterpart to Antonin Scalia that the left has long desired.” Perhaps they are worried her intellect is not all that dazzling? Well, we can say she’s not demonstrated the sort of brilliance and scholarship or fine writing that the left understands is a prerequisite to do battle on the Court.

She has had a total of six Supreme Court arguments in her short tenure as solicitor general. It took a full six months before she gave her first argument in Citizens United, bypassing key cases, including Ricci (the New Haven firefighter case) and a high-profile challenge to the Voting Rights Act. Sources within the Justice Department report that Kagan was preparing to argue the Voting Rights Act case but ultimately gave way to her deputy.

Does this sound like a proficient, accomplished “lawyer’s lawyer”? Not even Kagan is high on her own advocacy abilities. Her outing in Citizens United was rocky at best, getting the worst of questioning from both Justices Scalia and Kennedy (whom she is tasked by the left with persuading once she is confirmed). At an awards ceremony at Georgetown Law School honoring Kennedy earlier this month, Kagan spoke, and her comments are revealing — and should be bracing to the left:

At one point, Kagan raised audience eyebrows when she said she would remember an exchange she had with Kennedy “for the rest of my career as an advocate.” …

That memorable exchange with Kennedy that Kagan was recalling, by the way, offered a glimpse into how Kagan handled her first oral argument before the high court — or any court — last September in Citizens United v. Federal Election Commission. That’s the landmark campaign finance case that Kagan lost 5-4, with Kennedy writing the majority.

In spite of her earlier praise for Kennedy, Kagan told the Georgetown audience that the justice had “a bit of a bad habit,” namely that he asks advocates about cases that are not mentioned anywhere in the briefs for the case. Kennedy did just that in Citizens United when he asked Kagan whether something she had just said was “inconsistent with the whole line of cases that began with Thornhill v. Alabama and Coates v. Cincinnati.” … Perhaps many advocates know those cases, Kagan said, but “I at any rate did not.” She added, “There was a look of panic on my face.”

Without knowing for sure, Kagan said she believes that Kennedy “saw in the flash of an instant that … I really had no clue” about the cases he was asking her about. Instead of waiting for her painful reply, Kennedy quickly went on to explain the Thornhill line of cases — which relate to facial challenges to statutes under the First Amendment — with enough detail that Kagan was able to recover and answer the question.

The left has good reason to worry. Kagan will need to elicit respect, not pity, from Kennedy once she is confirmed if she is to fulfill the left’s fondest hopes. Maybe she will grow into the job, but if it took six months to get prepared for her first argument before the Court, how long will it take before she is an influential force on the Court? Will she ever be?

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Liberals Hope to Do Better than Sotomayor

The quiet buzz of anticipation is bubbling up into news accounts: one or more Supreme Court justices may step down this year. Justice Ruth Bader Ginsburg has not been in good health, and Justice John Paul Stevens will be 90 in June. With a wave election anticipated and more Republicans on the way to the Senate, now may be the time for “liberal” judges to step down in hopes of having their spots filled by equally “liberal” justices.

What is interesting in all the buzz is the candor with which the Left now admits that Sonia Sotomayor was a dud. This report is typical:

Some liberals lamented that she lacked the provocative philosophical profile that Republican administrations have sought in some of their most important judicial nominees, such as Justice Antonin Scalia, a Reagan appointee who has popularized a conservative approach to legal interpretation.

Some liberals complain that she isn’t liberal enough. Others delicately put it that she is not a “trailblazer” or a “Scalia of the Left.” Translation: she lacks the intellectual firepower to go toe-to-toe with justices who rely on judicial originalism and to sway Justice Anthony Kennedy to their side. She was Latina but not very wise, they now concede.

So the battle is on between Democrats who want a liberal firebrand and those who’d like someone easily confirmable who won’t set off a titanic fight over abortion, guns, and other losing issues for Democrats in an election year. Conservatives would do well to stay mum at this point. It’s never a good idea to get in the middle of the opposition’s  internal spat.

The quiet buzz of anticipation is bubbling up into news accounts: one or more Supreme Court justices may step down this year. Justice Ruth Bader Ginsburg has not been in good health, and Justice John Paul Stevens will be 90 in June. With a wave election anticipated and more Republicans on the way to the Senate, now may be the time for “liberal” judges to step down in hopes of having their spots filled by equally “liberal” justices.

What is interesting in all the buzz is the candor with which the Left now admits that Sonia Sotomayor was a dud. This report is typical:

Some liberals lamented that she lacked the provocative philosophical profile that Republican administrations have sought in some of their most important judicial nominees, such as Justice Antonin Scalia, a Reagan appointee who has popularized a conservative approach to legal interpretation.

Some liberals complain that she isn’t liberal enough. Others delicately put it that she is not a “trailblazer” or a “Scalia of the Left.” Translation: she lacks the intellectual firepower to go toe-to-toe with justices who rely on judicial originalism and to sway Justice Anthony Kennedy to their side. She was Latina but not very wise, they now concede.

So the battle is on between Democrats who want a liberal firebrand and those who’d like someone easily confirmable who won’t set off a titanic fight over abortion, guns, and other losing issues for Democrats in an election year. Conservatives would do well to stay mum at this point. It’s never a good idea to get in the middle of the opposition’s  internal spat.

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Why All This Fuss Over Sarah Palin?

For someone who is closely involved in politics, I guess I am a rarity: I don’t find Sarah Palin to be particularly interesting. I will be surprised if she runs for the GOP nomination in 2012; I would be more surprised if she wins it; and I would be shocked if she won the presidency. I have written before about why I don’t think she is the future of the GOP, including the fact that rebuilding its reputation depends on emerging public figures who are conservative and principled, who radiate intellectual depth and calmness of purpose. Representative Paul Ryan, Governor Mitch Daniels, and former Governor Jeb Bush are the kinds of figures we need, and the campaign by Governor-elect Bob McDonnell are the kind Republicans should run.

With that said, the degree to which Palin evokes fury, contempt, and anger among her critics is nothing short of amazing. It is visceral and almost clinical. And it cannot be based on what she has done (which as governor of Alaska is fairly limited and not terribly controversial), on the views she holds (which are mainstream conservative), or on her relative lack of experience when McCain picked her as his vice-presidential choice (Palin’s experience was comparable to Barack Obama’s, who after all was running for president). What explains the fierce reaction to her is, in part, I think, her affect, the way she talks (and winks), the background she has emerged from, the populism she seems to embody. Palinism, as I understand it, is less a coherent philosophy or set of ideas and more an attitude and spirit. In that sense, she is a cultural figure much more than a political one.

If you believe, as I do, that the GOP once again needs to become the “party of ideas” — as it did under Ronald Reagan — then Palin is not the solution to what ails it. At this stage, based on the interviews I have seen with her, she doesn’t seem able to articulate the case for conservatism in a manner that is compelling or even particularly persuasive. She is nothing like, to take three individuals I would hold up as public models, Margaret Thatcher, William Bennett, and Antonin Scalia — people brimming with ideas, knowledgeable and formidable, intellectually well-grounded, and impossible to dismiss. That, of course, doesn’t mean that Palin doesn’t have a role to play in the Republican party or contributions to make to it. And what Palin has revealed about some of her critics is, in the words of my Ethics and Public Policy Center colleague Yuval Levin, “the unfortunate and unattractive propensity of the American cultural elite to treat those who are not deemed part of the elect with condescension and contumely.”

The intensity of feelings Sarah Palin evokes from almost all sides is remarkable — and for me, a bit puzzling. I don’t think she has earned either adoration or contempt. But as we’re seeing, she elicits plenty of both.

For someone who is closely involved in politics, I guess I am a rarity: I don’t find Sarah Palin to be particularly interesting. I will be surprised if she runs for the GOP nomination in 2012; I would be more surprised if she wins it; and I would be shocked if she won the presidency. I have written before about why I don’t think she is the future of the GOP, including the fact that rebuilding its reputation depends on emerging public figures who are conservative and principled, who radiate intellectual depth and calmness of purpose. Representative Paul Ryan, Governor Mitch Daniels, and former Governor Jeb Bush are the kinds of figures we need, and the campaign by Governor-elect Bob McDonnell are the kind Republicans should run.

With that said, the degree to which Palin evokes fury, contempt, and anger among her critics is nothing short of amazing. It is visceral and almost clinical. And it cannot be based on what she has done (which as governor of Alaska is fairly limited and not terribly controversial), on the views she holds (which are mainstream conservative), or on her relative lack of experience when McCain picked her as his vice-presidential choice (Palin’s experience was comparable to Barack Obama’s, who after all was running for president). What explains the fierce reaction to her is, in part, I think, her affect, the way she talks (and winks), the background she has emerged from, the populism she seems to embody. Palinism, as I understand it, is less a coherent philosophy or set of ideas and more an attitude and spirit. In that sense, she is a cultural figure much more than a political one.

If you believe, as I do, that the GOP once again needs to become the “party of ideas” — as it did under Ronald Reagan — then Palin is not the solution to what ails it. At this stage, based on the interviews I have seen with her, she doesn’t seem able to articulate the case for conservatism in a manner that is compelling or even particularly persuasive. She is nothing like, to take three individuals I would hold up as public models, Margaret Thatcher, William Bennett, and Antonin Scalia — people brimming with ideas, knowledgeable and formidable, intellectually well-grounded, and impossible to dismiss. That, of course, doesn’t mean that Palin doesn’t have a role to play in the Republican party or contributions to make to it. And what Palin has revealed about some of her critics is, in the words of my Ethics and Public Policy Center colleague Yuval Levin, “the unfortunate and unattractive propensity of the American cultural elite to treat those who are not deemed part of the elect with condescension and contumely.”

The intensity of feelings Sarah Palin evokes from almost all sides is remarkable — and for me, a bit puzzling. I don’t think she has earned either adoration or contempt. But as we’re seeing, she elicits plenty of both.

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