Commentary Magazine


Topic: Chief Justice

John Roberts, Chief Sophist

In his Washington Post column, Michael Gerson writes this:

Even in a short time, Roberts’ decision has not worn well. What initially seemed wise now smacks of mere cleverness—less a judge’s prudence than a lawyer’s trick. To find the health care law constitutional, Roberts reimagined it. It was outcome-based jurisprudence, even if the intended outcome was institutional harmony. It was an act of judicial arrogance, even in the cause of judicial deference. And it raises deeper concerns. Unmoored from a reasonable interpretation of the law, institutionalism easily becomes the creed of the philosopher-king—hovering above the balance of powers, tinkering benevolently here and there, instead of living within the constraints of the system.

Mike is right on every particular. What Chief Justice Roberts did was supremely arrogant and unwise. Whatever motivated Roberts—he would undoubtedly insist it was his high-minded concern for the legitimacy of the Court; his critics would say it was his concern for winning the favor of the New York Times—he embraced a role that simply was not his to assume.

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In his Washington Post column, Michael Gerson writes this:

Even in a short time, Roberts’ decision has not worn well. What initially seemed wise now smacks of mere cleverness—less a judge’s prudence than a lawyer’s trick. To find the health care law constitutional, Roberts reimagined it. It was outcome-based jurisprudence, even if the intended outcome was institutional harmony. It was an act of judicial arrogance, even in the cause of judicial deference. And it raises deeper concerns. Unmoored from a reasonable interpretation of the law, institutionalism easily becomes the creed of the philosopher-king—hovering above the balance of powers, tinkering benevolently here and there, instead of living within the constraints of the system.

Mike is right on every particular. What Chief Justice Roberts did was supremely arrogant and unwise. Whatever motivated Roberts—he would undoubtedly insist it was his high-minded concern for the legitimacy of the Court; his critics would say it was his concern for winning the favor of the New York Times—he embraced a role that simply was not his to assume.

If Roberts wants to be a political philosopher, a law professor, or a politician, he is free to pursue those vocations. But if he wants to be a Supreme Court justice, he should take those duties seriously. In mixing and matching his responsibilities—in embracing the title of one thing and acting like another—John Roberts ended up as a sophist.

To be a sophist is no crime—but neither does one belong on the Supreme Court, and certainly not as chief justice.

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Senator John McCain’s U-Turn on Immigration

According to Politico, Senator John McCain has added his voice to GOP calls for congressional hearings into altering the Constitution’s 14th Amendment, which grants citizenship to U.S.-born children of illegal immigrants. This just about completes a stunning turnabout by McCain (and by his friend and colleague Lindsey Graham) on immigration. As Politico reports, McCain was a champion in 2007 of a comprehensive immigration bill which would have provided a pathway to citizenship to illegal immigrants. But he has taken an increasingly hard-line position on the issue as he faces a conservative primary challenger, J.D. Hayworth, in a state that has become the epicenter for the nation’s battle over immigration reform.

On the merits of McCain’s position: As a general matter, the conservative starting point should be opposition to Constitutional amendments, especially as regards the 14th amendment (the so-called “citizenship clause” refers to the first sentence of Section 1 in the 14th amendment, which reversed the part of Chief Justice Taney’s decision in Dred Scott v. Sandford that declared that even free blacks like Dred Scott were not citizens of the United States and could never become so). Opposition to Constitutional amendments shouldn’t be absolute by any means; but it is, I think, a prudent predisposition.

Beyond that, though, McCain’s stand strikes me as political posturing — something that has no chance of passage and which may end up being distracting from the real problems we face and that we can far more easily address, including the reduction of the large number of illegal immigrants crossing our borders.

There is an argument according to which, if we were starting from scratch, children of illegal immigrants should not be granted automatic citizenship; after all, this was clearly not the use of the 14th amendment intended by its architects. But we’re not beginning from scratch — and revoking birthright citizenship now would, as Michael Gerson has written, “turn hundreds of thousands of infants into ‘criminals’ — arriving, not across a border, but crying in a hospital.”

Senator McCain’s U-turn is certainly not without precedent in American politics. But it is nevertheless fairly dramatic — and for a man who has long fancied himself a person of unusual political courage and independence, it is discouraging.

According to Politico, Senator John McCain has added his voice to GOP calls for congressional hearings into altering the Constitution’s 14th Amendment, which grants citizenship to U.S.-born children of illegal immigrants. This just about completes a stunning turnabout by McCain (and by his friend and colleague Lindsey Graham) on immigration. As Politico reports, McCain was a champion in 2007 of a comprehensive immigration bill which would have provided a pathway to citizenship to illegal immigrants. But he has taken an increasingly hard-line position on the issue as he faces a conservative primary challenger, J.D. Hayworth, in a state that has become the epicenter for the nation’s battle over immigration reform.

On the merits of McCain’s position: As a general matter, the conservative starting point should be opposition to Constitutional amendments, especially as regards the 14th amendment (the so-called “citizenship clause” refers to the first sentence of Section 1 in the 14th amendment, which reversed the part of Chief Justice Taney’s decision in Dred Scott v. Sandford that declared that even free blacks like Dred Scott were not citizens of the United States and could never become so). Opposition to Constitutional amendments shouldn’t be absolute by any means; but it is, I think, a prudent predisposition.

Beyond that, though, McCain’s stand strikes me as political posturing — something that has no chance of passage and which may end up being distracting from the real problems we face and that we can far more easily address, including the reduction of the large number of illegal immigrants crossing our borders.

There is an argument according to which, if we were starting from scratch, children of illegal immigrants should not be granted automatic citizenship; after all, this was clearly not the use of the 14th amendment intended by its architects. But we’re not beginning from scratch — and revoking birthright citizenship now would, as Michael Gerson has written, “turn hundreds of thousands of infants into ‘criminals’ — arriving, not across a border, but crying in a hospital.”

Senator McCain’s U-turn is certainly not without precedent in American politics. But it is nevertheless fairly dramatic — and for a man who has long fancied himself a person of unusual political courage and independence, it is discouraging.

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Does Obama Know that Elena Kagan Is Pro-Israel?

A little embarrassing for The One, wouldn’t you say?

U.S. Supreme Court nominee Elena Kagan said her admiration for a former Israeli chief justice was rooted in her Jewishness and admiration for Israel. …

“[Aharon Barak] is very often called the John Marshall of the State of Israel because he was central in creating an independent judiciary for Israel and in ensuring that Israel — a young nation, a nation threatened from its very beginning in existential ways and a nation without a written constitution — he was central in ensuring that Israel, with all those kinds of liabilities would become a very strong rule of law nation,” she said.

She also admired Barak for personal reasons.

“As you know, I don’t think it’s a secret I am Jewish,” she said. “The State of Israel has meant a lot to me and my family.”

This actually puts Zionist conservatives in a tough spot. On the one hand, we have a rare defense of Israel from someone in the Obama camp that is genuine, well-informed, and morally sensible. On the other, we have an endorsement of an Israeli jurist whose exegetical views would elevate judges into a position not indistinguishable from the philosopher-kings of Plato’s Republic. Obviously, she should be voted down. But still.

A little embarrassing for The One, wouldn’t you say?

U.S. Supreme Court nominee Elena Kagan said her admiration for a former Israeli chief justice was rooted in her Jewishness and admiration for Israel. …

“[Aharon Barak] is very often called the John Marshall of the State of Israel because he was central in creating an independent judiciary for Israel and in ensuring that Israel — a young nation, a nation threatened from its very beginning in existential ways and a nation without a written constitution — he was central in ensuring that Israel, with all those kinds of liabilities would become a very strong rule of law nation,” she said.

She also admired Barak for personal reasons.

“As you know, I don’t think it’s a secret I am Jewish,” she said. “The State of Israel has meant a lot to me and my family.”

This actually puts Zionist conservatives in a tough spot. On the one hand, we have a rare defense of Israel from someone in the Obama camp that is genuine, well-informed, and morally sensible. On the other, we have an endorsement of an Israeli jurist whose exegetical views would elevate judges into a position not indistinguishable from the philosopher-kings of Plato’s Republic. Obviously, she should be voted down. But still.

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Why Liberals Should Be Worried About Kagan

As I noted yesterday, Justice Samuel Alito’s dissent in Christian Legal Society v. Martinez is a brilliant take-down of the majority’s reasoning. His concurring opinion in McDonald v. Chicago is equally noteworthy.

As Justice Scalia did in Heller (which held that the Second Amendment’s right to bear arms is a personal right), Alito takes us on a journey through constitutional history and court precedent, leaving little doubt that the ruling is correct — and that the dissenters’ view is not only wrong but also radical. At the conclusion of his analysis, he dispenses with the arguments of the city of Chicago (Municipal respondents), which the dissenters would accept. I have omitted the numerous citations for ease of reading: 

Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era. Municipal respondents submit that the Due Process Clause protects only those rights “‘recognized by all temperate and civilized governments, from a deep and universal sense of [their] justice.’” According to municipal respondents, if it is possible to imagine any civilized legal system that does not recognize a particular right, then the Due Process Clause Opinion of the Court does not make that right binding on the States. Brief for Municipal Respondents 9. Therefore, the municipal respondents continue, because such countries as England,Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand either ban or severely limit handgun ownership, it must follow that no right to possess such weapons is protected by the Fourteenth Amendment.

Alito then dismantles Justice Stevens’s dissent:

Justice Stevens would “‘ground the prohibitions against state action squarely on due process, without intermediate reliance on any of the first eight Amendments.’” The question presented in this case, in his view, “is whether the particular right asserted by petitioners applies to the States because of the Fourteenth Amendment itself, standing on its own bottom.” He would hold that “[t]he rights protected against state infringement by the Fourteenth Amendment’s Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights.”

As we have explained, the Court, for the past half century, has moved away from the two-track approach. If we were now to accept Justice Stevens’ theory across the board, decades of decisions would be undermined. We assume that this is not what is proposed. What is urged instead, it appears, is that this theory be revived solely for the individual right that Heller recognized, over vigorous dissents. The relationship between the Bill of Rights’ guarantees and the States must be governed by a single, neutral principle. It is far too late to exhume what Justice Brennan, writing for the Court 46 years ago, derided as “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights.”

Justice Scalia dissents separately, purely to make mincemeat of Stevens’s dissent. He picks up where Alito leaves off and makes it clear that Justice Stevens is doing no more than making up rules as he goes along. Scalia takes issue with the notion that Stevens and other justices can decide which fundamental rights are binding on the states and which are not. A sample (the dissent is brief and should be read entirely to enjoy the full flavor), again with citations omitted:

Exactly what is covered is not clear. But whatever else is in, he knows that the right to keep and bear arms is out, despite its being as “deeply rooted in this Nation’s history and tradition,” I can find no other explanation for such certitude except that Justice Stevens, despite his forswearing of “personal and private notions,” deeply believes it should be out. The subjective nature of Justice Stevens’ standard is also apparent from his claim that it is the courts’ prerogative—indeed their duty — to update the Due Process Clause so that it encompasses new freedoms the Framers were too narrow-minded to imagine. …

Justice Stevens resists this description, insisting that his approach provides plenty of “guideposts” and “constraints” to keep courts from “injecting excessive subjectivity” into the process.Plenty indeed — and that alone is a problem. The ability of omni directional guideposts to constrain is inversely proportional to their number. But even individually, each lodestar or limitation he lists either is incapable of restraining judicial whimsy or cannot be squared with the precedents he seeks to preserve. …

Justice Stevens also argues that requiring courts to show “respect for the democratic process” should serve as a constraint. That is true, but Justice Stevens would have them show respect in an extraordinary manner. In his view, if a right “is already being given careful consideration in, and subjected to ongoing calibration by, the States, judicial enforcement may not be appropriate.” In other words, a right, such as the right to keep and bear arms, that has long been recognized but on which the States are considering restrictions, apparently deserves less protection, while a privilege the political branches (instruments of the democratic process) have withheld entirely and continue to withhold, deserves more. That topsy-turvy approach conveniently accomplishes the objective of ensuring that the rights this Court held protected in [ abortion and gay rights cases], and other such cases fit the theory — but at the cost of insulting rather than respecting the democratic process.

You see the intellectual fire power — and the dilemma for liberals. Who really thinks that Elena Kagan can go toe to toe with these jurists? What solace can opponents of original jurisprudence take from her “life” — which, she says, provides the basis for confirmation? It’s hardly evident that she has the skill to compile a historical narrative and deconstruct her ideological opponents as effectively as these two, or as well as Chief Justice Roberts and Justice Thomas.

Now great logic does not always persuade Justice Kennedy, but if the aim here was to come up with a counterweight to the “conservative” justices, then perhaps Obama should have gone with someone with demonstrated legal prowess, who can opine on, not merely repeat, the Court’s past holdings. It is for this very reason that conservatives might prefer Kagan to potential alternatives — and save the filibuster for a truly dangerous liberal zealot.

As I noted yesterday, Justice Samuel Alito’s dissent in Christian Legal Society v. Martinez is a brilliant take-down of the majority’s reasoning. His concurring opinion in McDonald v. Chicago is equally noteworthy.

As Justice Scalia did in Heller (which held that the Second Amendment’s right to bear arms is a personal right), Alito takes us on a journey through constitutional history and court precedent, leaving little doubt that the ruling is correct — and that the dissenters’ view is not only wrong but also radical. At the conclusion of his analysis, he dispenses with the arguments of the city of Chicago (Municipal respondents), which the dissenters would accept. I have omitted the numerous citations for ease of reading: 

Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era. Municipal respondents submit that the Due Process Clause protects only those rights “‘recognized by all temperate and civilized governments, from a deep and universal sense of [their] justice.’” According to municipal respondents, if it is possible to imagine any civilized legal system that does not recognize a particular right, then the Due Process Clause Opinion of the Court does not make that right binding on the States. Brief for Municipal Respondents 9. Therefore, the municipal respondents continue, because such countries as England,Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand either ban or severely limit handgun ownership, it must follow that no right to possess such weapons is protected by the Fourteenth Amendment.

Alito then dismantles Justice Stevens’s dissent:

Justice Stevens would “‘ground the prohibitions against state action squarely on due process, without intermediate reliance on any of the first eight Amendments.’” The question presented in this case, in his view, “is whether the particular right asserted by petitioners applies to the States because of the Fourteenth Amendment itself, standing on its own bottom.” He would hold that “[t]he rights protected against state infringement by the Fourteenth Amendment’s Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights.”

As we have explained, the Court, for the past half century, has moved away from the two-track approach. If we were now to accept Justice Stevens’ theory across the board, decades of decisions would be undermined. We assume that this is not what is proposed. What is urged instead, it appears, is that this theory be revived solely for the individual right that Heller recognized, over vigorous dissents. The relationship between the Bill of Rights’ guarantees and the States must be governed by a single, neutral principle. It is far too late to exhume what Justice Brennan, writing for the Court 46 years ago, derided as “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights.”

Justice Scalia dissents separately, purely to make mincemeat of Stevens’s dissent. He picks up where Alito leaves off and makes it clear that Justice Stevens is doing no more than making up rules as he goes along. Scalia takes issue with the notion that Stevens and other justices can decide which fundamental rights are binding on the states and which are not. A sample (the dissent is brief and should be read entirely to enjoy the full flavor), again with citations omitted:

Exactly what is covered is not clear. But whatever else is in, he knows that the right to keep and bear arms is out, despite its being as “deeply rooted in this Nation’s history and tradition,” I can find no other explanation for such certitude except that Justice Stevens, despite his forswearing of “personal and private notions,” deeply believes it should be out. The subjective nature of Justice Stevens’ standard is also apparent from his claim that it is the courts’ prerogative—indeed their duty — to update the Due Process Clause so that it encompasses new freedoms the Framers were too narrow-minded to imagine. …

Justice Stevens resists this description, insisting that his approach provides plenty of “guideposts” and “constraints” to keep courts from “injecting excessive subjectivity” into the process.Plenty indeed — and that alone is a problem. The ability of omni directional guideposts to constrain is inversely proportional to their number. But even individually, each lodestar or limitation he lists either is incapable of restraining judicial whimsy or cannot be squared with the precedents he seeks to preserve. …

Justice Stevens also argues that requiring courts to show “respect for the democratic process” should serve as a constraint. That is true, but Justice Stevens would have them show respect in an extraordinary manner. In his view, if a right “is already being given careful consideration in, and subjected to ongoing calibration by, the States, judicial enforcement may not be appropriate.” In other words, a right, such as the right to keep and bear arms, that has long been recognized but on which the States are considering restrictions, apparently deserves less protection, while a privilege the political branches (instruments of the democratic process) have withheld entirely and continue to withhold, deserves more. That topsy-turvy approach conveniently accomplishes the objective of ensuring that the rights this Court held protected in [ abortion and gay rights cases], and other such cases fit the theory — but at the cost of insulting rather than respecting the democratic process.

You see the intellectual fire power — and the dilemma for liberals. Who really thinks that Elena Kagan can go toe to toe with these jurists? What solace can opponents of original jurisprudence take from her “life” — which, she says, provides the basis for confirmation? It’s hardly evident that she has the skill to compile a historical narrative and deconstruct her ideological opponents as effectively as these two, or as well as Chief Justice Roberts and Justice Thomas.

Now great logic does not always persuade Justice Kennedy, but if the aim here was to come up with a counterweight to the “conservative” justices, then perhaps Obama should have gone with someone with demonstrated legal prowess, who can opine on, not merely repeat, the Court’s past holdings. It is for this very reason that conservatives might prefer Kagan to potential alternatives — and save the filibuster for a truly dangerous liberal zealot.

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Flotsam and Jetsam

We all benefit when Obama goes golfing, says the White House spokesman. But not when Tony Hayward goes sailing.

The U.S. government can certainly crack down on “humanitarian” aid to terrorist groups, says the Supreme Court. But Israel is not permitted the same latitude, points out Elliott Abrams: “As Chief Justice Roberts explained, such support [for training and advice for humanitarian, non-terrorist activities] ‘also importantly helps lend legitimacy to foreign terrorist groups—legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds—all of which facilitate more terrorist attacks.’ Americans inclined to think Israel has gone overboard in stopping flotillas from landing in Gaza might think again.”

Democrats have had enough of Obama’s career-killing agenda and John Kerry’s pestering them about a climate-control bill. But Jonathan Chait mocks politicians’ desire for self-preservation, “Why can’t [Kerry] let us worry about something that really matters, like the midterm election?” It’s curious whom Chait thinks will stand in the way of the conservative resurgence if all these horribly self-absorbed Democrats commit political suicide.

Obama promised that all that stimulus money would create/save millions of jobs. But this handy chart suggests we might have gotten equal or better results with no stimulus at all.

The lefty protesters in San Francisco intended to block the unloading of an Israeli ship. But they got the timing wrong and wound up protesting a Chinese ship. As Jay Nordlinger put it: “But listen, who cares about protesting the PRC — which is merely a one-party dictatorship with a gulag — when you can protest and harass Israel, that nasty Jewish state whose inhabitants (Jewish inhabitants — the Arab ones are cool) can go back to you-know-where! (Of course, when the Jews were in Europe, in great numbers, they were told to go back … to Israel, ancient and eternal land of the Jews.)”

The military and sympathetic observers keep sounding the alarm over Obama’s Afghanistan timeline. But the White House keeps reinforcing it. At some point, we should take the administration at its word.

Obama says he’s doing everything possible to deal with the Gulf oil spill. But he’s refused to waive the Jones Act to allow easier passage of foreign ships between U.S. ports. So Republicans are introducing legislation. Hard to say — as it always is with Obama — whether he’s incompetent in riding herd on the federal bureaucracy or he’s ingratiating himself (again) with Big Labor. Maybe it’s both.

We can be grateful that Peter Beinart has taken a break from Israel-bashing. But his quotient of loopiness to facts is no better when he is writing about Hillary Clinton. He seems intent on debunking  “rampant” speculation (which consists of some bloggers at one website and some Peggy Noonan and Dick Morris musings) that Hillary will run for president in 2012. Well, given the inanity of the topic, he’s not likely to be embarrassed on Fareed Zakaria’s show over it.

We all benefit when Obama goes golfing, says the White House spokesman. But not when Tony Hayward goes sailing.

The U.S. government can certainly crack down on “humanitarian” aid to terrorist groups, says the Supreme Court. But Israel is not permitted the same latitude, points out Elliott Abrams: “As Chief Justice Roberts explained, such support [for training and advice for humanitarian, non-terrorist activities] ‘also importantly helps lend legitimacy to foreign terrorist groups—legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds—all of which facilitate more terrorist attacks.’ Americans inclined to think Israel has gone overboard in stopping flotillas from landing in Gaza might think again.”

Democrats have had enough of Obama’s career-killing agenda and John Kerry’s pestering them about a climate-control bill. But Jonathan Chait mocks politicians’ desire for self-preservation, “Why can’t [Kerry] let us worry about something that really matters, like the midterm election?” It’s curious whom Chait thinks will stand in the way of the conservative resurgence if all these horribly self-absorbed Democrats commit political suicide.

Obama promised that all that stimulus money would create/save millions of jobs. But this handy chart suggests we might have gotten equal or better results with no stimulus at all.

The lefty protesters in San Francisco intended to block the unloading of an Israeli ship. But they got the timing wrong and wound up protesting a Chinese ship. As Jay Nordlinger put it: “But listen, who cares about protesting the PRC — which is merely a one-party dictatorship with a gulag — when you can protest and harass Israel, that nasty Jewish state whose inhabitants (Jewish inhabitants — the Arab ones are cool) can go back to you-know-where! (Of course, when the Jews were in Europe, in great numbers, they were told to go back … to Israel, ancient and eternal land of the Jews.)”

The military and sympathetic observers keep sounding the alarm over Obama’s Afghanistan timeline. But the White House keeps reinforcing it. At some point, we should take the administration at its word.

Obama says he’s doing everything possible to deal with the Gulf oil spill. But he’s refused to waive the Jones Act to allow easier passage of foreign ships between U.S. ports. So Republicans are introducing legislation. Hard to say — as it always is with Obama — whether he’s incompetent in riding herd on the federal bureaucracy or he’s ingratiating himself (again) with Big Labor. Maybe it’s both.

We can be grateful that Peter Beinart has taken a break from Israel-bashing. But his quotient of loopiness to facts is no better when he is writing about Hillary Clinton. He seems intent on debunking  “rampant” speculation (which consists of some bloggers at one website and some Peggy Noonan and Dick Morris musings) that Hillary will run for president in 2012. Well, given the inanity of the topic, he’s not likely to be embarrassed on Fareed Zakaria’s show over it.

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Refuse to Vote Until Kagan Shows Her Cards

On Fox News Sunday, Juan Williams underscored the buyer’s remorse that some on the left are experiencing over Elena Kagan’s nomination:

I think they are worried. I think they’re — they feel, in part because she doesn’t have a record as a judge, that there’s no way to say that she’s predictable and that she will be a stalwart in terms of liberal positions and values and a counterweight to Chief Justice Roberts, Justice Scalia, Justice Thomas, which is what the left really wants. They want somebody who’s going to make the case for that liberal position.

So if you look at issues ranging from death penalty, to the Citizens United case on campaign finance, the sense is, “You know, are we sure where Elena Kagan stands?”

There are a few possibilities here. One is that Obama “knows” her better than the rest of the left and is convinced she’s a dependable vote (i.e., the left is in a tizzy for nothing). Another is that Obama doesn’t know any more than his base and assumed that her moderate demeanor — like his own — was a cover for radical views (i.e., the left is in a tizzy for good reason). A third is that Obama and the left are in some choreographed dance to make her seem moderate but have no real qualms about her (i.e., the left’s tizzy is fake). The latter is a bit hard to buy given the blogospheric semi-meltdown over her non-record.

What we do have is a joint interest by the right and the left in forcing Kagan to be candid — and in voting no, or delaying her nomination, if she is not. Listing the litany of hot-button issues now in the purview of the Supreme Court, Ezra Klein writes:

So where does Elena Kagan fit into all this? You’ll have to ask her. Or, more to the point, the Senate will have to ask her. And hope she’ll answer. John Roberts’s famous “umpire speech” showed the appeal of a nonphilosophical judicial philosophy, but his unexpected activist streak on the bench has shown how little we actually learned from his confirmation process. In reality, the world is made of players, not umpires, and we deserve to know whom we’re drafting.

The only way to force her to live up to her own self-proclaimed standard for candor (she previously wrote that it “is an embarrassment that Senators do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues”) is to refrain from confirming her until she puts her cards on the table. Otherwise, both the left and the right are guessing blind on a critical, lifetime appointment.

On Fox News Sunday, Juan Williams underscored the buyer’s remorse that some on the left are experiencing over Elena Kagan’s nomination:

I think they are worried. I think they’re — they feel, in part because she doesn’t have a record as a judge, that there’s no way to say that she’s predictable and that she will be a stalwart in terms of liberal positions and values and a counterweight to Chief Justice Roberts, Justice Scalia, Justice Thomas, which is what the left really wants. They want somebody who’s going to make the case for that liberal position.

So if you look at issues ranging from death penalty, to the Citizens United case on campaign finance, the sense is, “You know, are we sure where Elena Kagan stands?”

There are a few possibilities here. One is that Obama “knows” her better than the rest of the left and is convinced she’s a dependable vote (i.e., the left is in a tizzy for nothing). Another is that Obama doesn’t know any more than his base and assumed that her moderate demeanor — like his own — was a cover for radical views (i.e., the left is in a tizzy for good reason). A third is that Obama and the left are in some choreographed dance to make her seem moderate but have no real qualms about her (i.e., the left’s tizzy is fake). The latter is a bit hard to buy given the blogospheric semi-meltdown over her non-record.

What we do have is a joint interest by the right and the left in forcing Kagan to be candid — and in voting no, or delaying her nomination, if she is not. Listing the litany of hot-button issues now in the purview of the Supreme Court, Ezra Klein writes:

So where does Elena Kagan fit into all this? You’ll have to ask her. Or, more to the point, the Senate will have to ask her. And hope she’ll answer. John Roberts’s famous “umpire speech” showed the appeal of a nonphilosophical judicial philosophy, but his unexpected activist streak on the bench has shown how little we actually learned from his confirmation process. In reality, the world is made of players, not umpires, and we deserve to know whom we’re drafting.

The only way to force her to live up to her own self-proclaimed standard for candor (she previously wrote that it “is an embarrassment that Senators do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues”) is to refrain from confirming her until she puts her cards on the table. Otherwise, both the left and the right are guessing blind on a critical, lifetime appointment.

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The Problem with Law Schools

Ed Whelan dismantles bit by bit the argument by former Harvard Law School dean Robert Clark in support of current Harvard Law School dean Elena Kagan’s barring of military recruiters and signing on to an amicus brief contesting the Solomon Amendment. This raises a larger issue — yes, even larger than a single Supreme Court nomination — what’s the matter with law schools? After all, lots and lots of their deans and professors hadn’t a clue what the law was in the case challenging the Solomon Amendment. George Mason University Law School was the proud exception and at the time reminded us:

The amicus brief filed by the dean and two professors at George Mason’s law school was the only one submitted by a law school that took the side of the armed services. Many amicus briefs were filed on the losing side (including briefs in behalf of Yale University, Harvard University, Columbia University, New York University, the University of Chicago, Cornell University and the University of Pennsylvania), arguing that the Solomon Amendment’s requirement of equal access for military recruiters was unconstitutional under the First Amendment. In addition, professors at Columbia and Harvard law schools submitted briefs arguing that as a matter of statutory construction the law schools had in fact complied with the Solomon Amendment. The constitutional and statutory arguments were all rejected by the Court.

There is a reason why the Chief Justice, among other justices over the years, has said that he doesn’t pay too much attention to law-review articles. Why? Law professors don’t really have a great grasp of what the law is or a decent track record in predicting where it will evolve. They operate in a largely isolated academic setting in which, in their minds, there are nine Justice Stevenses on the bench. And in this case, they didn’t even get Stevens’s position right.

As Ronald Reagan said of liberals, it’s not that they are ignorant. It’s that they know so much that isn’t true. So I can see the argument for looking outside the appellate bench for justices. But I think law professors are the last place you’d want to look for unbiased, accomplished legal analysts. Let’s hope Kagan picked up some actual law, not law-school law, in her last year at the solicitor general’s office.

Ed Whelan dismantles bit by bit the argument by former Harvard Law School dean Robert Clark in support of current Harvard Law School dean Elena Kagan’s barring of military recruiters and signing on to an amicus brief contesting the Solomon Amendment. This raises a larger issue — yes, even larger than a single Supreme Court nomination — what’s the matter with law schools? After all, lots and lots of their deans and professors hadn’t a clue what the law was in the case challenging the Solomon Amendment. George Mason University Law School was the proud exception and at the time reminded us:

The amicus brief filed by the dean and two professors at George Mason’s law school was the only one submitted by a law school that took the side of the armed services. Many amicus briefs were filed on the losing side (including briefs in behalf of Yale University, Harvard University, Columbia University, New York University, the University of Chicago, Cornell University and the University of Pennsylvania), arguing that the Solomon Amendment’s requirement of equal access for military recruiters was unconstitutional under the First Amendment. In addition, professors at Columbia and Harvard law schools submitted briefs arguing that as a matter of statutory construction the law schools had in fact complied with the Solomon Amendment. The constitutional and statutory arguments were all rejected by the Court.

There is a reason why the Chief Justice, among other justices over the years, has said that he doesn’t pay too much attention to law-review articles. Why? Law professors don’t really have a great grasp of what the law is or a decent track record in predicting where it will evolve. They operate in a largely isolated academic setting in which, in their minds, there are nine Justice Stevenses on the bench. And in this case, they didn’t even get Stevens’s position right.

As Ronald Reagan said of liberals, it’s not that they are ignorant. It’s that they know so much that isn’t true. So I can see the argument for looking outside the appellate bench for justices. But I think law professors are the last place you’d want to look for unbiased, accomplished legal analysts. Let’s hope Kagan picked up some actual law, not law-school law, in her last year at the solicitor general’s office.

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Views on the Supreme Court

The American people are not a model of consistency when it comes to their take on the Supreme Court. The latest Quinnipiac polls tells us:

“A total of 53 percent of American voters are “very confident” or “somewhat confident” President Obama will make the right decision in nominating a U.S. Supreme Court justice, while 46 percent are “not too confident” or “not confident at all” …

Voters trust the President rather than Senate Republicans 46 – 43 percent to make the right choice for the Supreme Court, but say 48 – 41 percent that Senators who do not agree with the nominee on key issues should filibuster the choice.

American voters approve 49 – 21 percent of the job John Roberts is doing as Chief Justice of the Supreme Court and approve 52 – 32 percent of Obama’s nomination of Justice Sonia Sotomayor to the Court.

The court is too liberal, 29 percent say, while 19 percent say it is too conservative and 40 percent say it is about right. Saying “about right” are 36 percent of self-described liberals, 44 percent of moderates, 38 percent of conservatives and 30 percent of those who consider themselves part of the Tea Party. Voters say 78 – 16 percent that Supreme Court justices allow political views to enter into their decisions.

Huh? They trust the president, but a filibuster is fine to block Obama’s choice. They trust the president but think the current Court (the majority of whose members Obama would never nominate) is just fine. They approve of Roberts, the conservative, textualist scholar, but are delighted with the newest justice, who is neither of those things. Well, suffice it to say there’s something in there for everyone, and the public has become exceptionally cynical about the politicization of the Court.

The American people are not a model of consistency when it comes to their take on the Supreme Court. The latest Quinnipiac polls tells us:

“A total of 53 percent of American voters are “very confident” or “somewhat confident” President Obama will make the right decision in nominating a U.S. Supreme Court justice, while 46 percent are “not too confident” or “not confident at all” …

Voters trust the President rather than Senate Republicans 46 – 43 percent to make the right choice for the Supreme Court, but say 48 – 41 percent that Senators who do not agree with the nominee on key issues should filibuster the choice.

American voters approve 49 – 21 percent of the job John Roberts is doing as Chief Justice of the Supreme Court and approve 52 – 32 percent of Obama’s nomination of Justice Sonia Sotomayor to the Court.

The court is too liberal, 29 percent say, while 19 percent say it is too conservative and 40 percent say it is about right. Saying “about right” are 36 percent of self-described liberals, 44 percent of moderates, 38 percent of conservatives and 30 percent of those who consider themselves part of the Tea Party. Voters say 78 – 16 percent that Supreme Court justices allow political views to enter into their decisions.

Huh? They trust the president, but a filibuster is fine to block Obama’s choice. They trust the president but think the current Court (the majority of whose members Obama would never nominate) is just fine. They approve of Roberts, the conservative, textualist scholar, but are delighted with the newest justice, who is neither of those things. Well, suffice it to say there’s something in there for everyone, and the public has become exceptionally cynical about the politicization of the Court.

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It Gets Worse

The White House is, as this report suggests, upping the ante with continued criticism of Israel. Taking to the morning talk shows, David Axelrod — a political operative who now seems at the center of foreign-policy formulation (more on this later) — went on the Fox, ABC, and NBC Sunday talk shows to repeat how insulted the Obami were over Israeli building in Jerusalem and what an affront this was to them. And what is the affront? Well, for some context, this report is enlightening:

The Likud Party’s Danny Dadon, deputy speaker of the Knesset, called Clinton’s “meddling in internal Israeli decisions regarding the development” of Jerusalem “uninvited and unhelpful. In fact it is sheer chutzpah.”

“I cannot remember another time that a senior American official deemed it ‘insulting’ when a sovereign nation announced urban zoning decisions regarding its primary city,” Dadon said.

In the past, U.S. administrations have tended to more gently chide Israel on construction in Jerusalem that is over the “Green Line” boundary from the 1967 war, in areas where the Palestinians hope to build a capital as part of a future peace deal. More often, U.S. officials would call such construction “unhelpful,” and note that the future of Jerusalem is an issue to be decided in final status negotiations between the parties.

The reaction of the Obami is even more startling considering the location and strategic importance of Ramat Shlomo. But this administration doesn’t make such fine distinctions and is not like past ones, we are learning. It might have something to do with the fact that Axelrod and the Chicago pols are running foreign policy. It’s attack, attack, attack — just as they do any domestic critic (even the Supreme Court Chief Justice). It’s about bullying and discrediting, trying to force the opponent into a corner. And in this case, their opponent is plainly the Israeli government. For that is the party the Obami is now demanding make further concessions to… well, to what end is not clear. Perhaps we are back to regime change — an effort to topple the duly elected government of Israel to obtain a negotiating partner more willing to yield to American bullying.

The language the Obami employ – “personal,” “insulting,” and “affront” – suggests an unusual degree of personal peevishness and hostility toward an ally. That, I suppose, is the mentality of Chicago pols and of those who regard Israel not as a valued friend but as an irritant. And it is the language not of negotiators but of intimidators.

Illinois Rep. Mark Kirk, now a Senate candidate, issued this statement as the mess unfolded last week:

This year marks the 15th anniversary of the Jerusalem Embassy Act, making it official United States policy that Jerusalem should remain the undivided capital of Israel,” Congressman Kirk said.  “As a staff member, I helped draft this historic legislation; as a Congressman I continue to urge its enforcement.  History teaches us that a divided Jerusalem leads to conflict while a unified Jerusalem protects the rights of all faiths.  I urge the Administration to spend more time working to stop Iran from building nuclear bombs and less time concerned with zoning issues in Jerusalem.  As Iran accelerates its uranium enrichment, we should not be condemning one of America’s strongest democratic allies in the Middle East.

And that really sums it up: what end is served by this conflagration with an ally, and what does it say about the administration’s priorities? The Obami seem to have a strange notion about what motivates our foes and what the key threats to American security are. This exchange with Jake Tapper is telling — both for how extraordinarily irrational and how ill-formulated the administration’s rhetoric has become:

TAPPER:  All right, last question.  Vice President Biden went to Israel this week and he was greeted by a slap in the face, the announcement by the Israeli government of the approval of new housing units in an Arab section of Jerusalem.  President Obama was said to be very upset about it.  Vice President Biden and Secretary of State Clinton made very strong comments about it.  Will there be any consequences, tangible consequences beyond the tough talk?  And does Israel’s intransigence on the housing issue put the lives of U.S. troops at risk?

AXELROD:  Well, look, what happened there was an affront.  It was an insult, but that’s not the most important thing.  What it did was it made more difficult a very difficult process.  We’ve just gotten proximity, so-called proximity talks going between the Palestinians and the Israelis, and this seemed calculated to undermine that, and that was — that was distressing to everyone who is promoting the idea of peace — and security in the region.

Israel is a strong and special ally.  The bonds run deep.  But for just that very reason, this was not the right way to behave.  That was expressed by the secretary of state, as well as the vice president.  I am not going to discuss what diplomatic talks we’ve had underneath that, but I think the Israelis understand clearly why we were upset and what, you know, what we want moving forward.

TAPPER:  I hate to say this, but yes or no, David, does the intransigence of the Israeli government on the housing issue, yes or no, does it put U.S. troops lives at risk?

AXELROD:  I believe that that region and that issue is a flare point throughout the region, and so I’m not going to put it in those terms.  But I do believe that it is absolutely imperative, not just for the security of Israel and the Palestinian people, who were, remember, at war just a year ago, but it is important for our own security that we move forward and resolve this very difficult issue.

A squirrely response at the end, revealing that much of what the administration says is irrational and, upon any reflection, ridiculous. It is disturbing indeed to hear an American administration adopt the Arab rhetorical line — Israel’s settlements endanger Americans. Which president has ever given voice to such rubbish? There is, regrettably, a first for everything.

The White House is, as this report suggests, upping the ante with continued criticism of Israel. Taking to the morning talk shows, David Axelrod — a political operative who now seems at the center of foreign-policy formulation (more on this later) — went on the Fox, ABC, and NBC Sunday talk shows to repeat how insulted the Obami were over Israeli building in Jerusalem and what an affront this was to them. And what is the affront? Well, for some context, this report is enlightening:

The Likud Party’s Danny Dadon, deputy speaker of the Knesset, called Clinton’s “meddling in internal Israeli decisions regarding the development” of Jerusalem “uninvited and unhelpful. In fact it is sheer chutzpah.”

“I cannot remember another time that a senior American official deemed it ‘insulting’ when a sovereign nation announced urban zoning decisions regarding its primary city,” Dadon said.

In the past, U.S. administrations have tended to more gently chide Israel on construction in Jerusalem that is over the “Green Line” boundary from the 1967 war, in areas where the Palestinians hope to build a capital as part of a future peace deal. More often, U.S. officials would call such construction “unhelpful,” and note that the future of Jerusalem is an issue to be decided in final status negotiations between the parties.

The reaction of the Obami is even more startling considering the location and strategic importance of Ramat Shlomo. But this administration doesn’t make such fine distinctions and is not like past ones, we are learning. It might have something to do with the fact that Axelrod and the Chicago pols are running foreign policy. It’s attack, attack, attack — just as they do any domestic critic (even the Supreme Court Chief Justice). It’s about bullying and discrediting, trying to force the opponent into a corner. And in this case, their opponent is plainly the Israeli government. For that is the party the Obami is now demanding make further concessions to… well, to what end is not clear. Perhaps we are back to regime change — an effort to topple the duly elected government of Israel to obtain a negotiating partner more willing to yield to American bullying.

The language the Obami employ – “personal,” “insulting,” and “affront” – suggests an unusual degree of personal peevishness and hostility toward an ally. That, I suppose, is the mentality of Chicago pols and of those who regard Israel not as a valued friend but as an irritant. And it is the language not of negotiators but of intimidators.

Illinois Rep. Mark Kirk, now a Senate candidate, issued this statement as the mess unfolded last week:

This year marks the 15th anniversary of the Jerusalem Embassy Act, making it official United States policy that Jerusalem should remain the undivided capital of Israel,” Congressman Kirk said.  “As a staff member, I helped draft this historic legislation; as a Congressman I continue to urge its enforcement.  History teaches us that a divided Jerusalem leads to conflict while a unified Jerusalem protects the rights of all faiths.  I urge the Administration to spend more time working to stop Iran from building nuclear bombs and less time concerned with zoning issues in Jerusalem.  As Iran accelerates its uranium enrichment, we should not be condemning one of America’s strongest democratic allies in the Middle East.

And that really sums it up: what end is served by this conflagration with an ally, and what does it say about the administration’s priorities? The Obami seem to have a strange notion about what motivates our foes and what the key threats to American security are. This exchange with Jake Tapper is telling — both for how extraordinarily irrational and how ill-formulated the administration’s rhetoric has become:

TAPPER:  All right, last question.  Vice President Biden went to Israel this week and he was greeted by a slap in the face, the announcement by the Israeli government of the approval of new housing units in an Arab section of Jerusalem.  President Obama was said to be very upset about it.  Vice President Biden and Secretary of State Clinton made very strong comments about it.  Will there be any consequences, tangible consequences beyond the tough talk?  And does Israel’s intransigence on the housing issue put the lives of U.S. troops at risk?

AXELROD:  Well, look, what happened there was an affront.  It was an insult, but that’s not the most important thing.  What it did was it made more difficult a very difficult process.  We’ve just gotten proximity, so-called proximity talks going between the Palestinians and the Israelis, and this seemed calculated to undermine that, and that was — that was distressing to everyone who is promoting the idea of peace — and security in the region.

Israel is a strong and special ally.  The bonds run deep.  But for just that very reason, this was not the right way to behave.  That was expressed by the secretary of state, as well as the vice president.  I am not going to discuss what diplomatic talks we’ve had underneath that, but I think the Israelis understand clearly why we were upset and what, you know, what we want moving forward.

TAPPER:  I hate to say this, but yes or no, David, does the intransigence of the Israeli government on the housing issue, yes or no, does it put U.S. troops lives at risk?

AXELROD:  I believe that that region and that issue is a flare point throughout the region, and so I’m not going to put it in those terms.  But I do believe that it is absolutely imperative, not just for the security of Israel and the Palestinian people, who were, remember, at war just a year ago, but it is important for our own security that we move forward and resolve this very difficult issue.

A squirrely response at the end, revealing that much of what the administration says is irrational and, upon any reflection, ridiculous. It is disturbing indeed to hear an American administration adopt the Arab rhetorical line — Israel’s settlements endanger Americans. Which president has ever given voice to such rubbish? There is, regrettably, a first for everything.

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RE: Lawyers Should Cheer

Jan Crawford (h/t Glenn Reynolds), among the best of the mainstream media Supreme Court reporters, socks it to the White House for its juvenile insistence on getting the last word on its running spat with the Court. After Chief Justice John Roberts made the fine suggestion that the Court should abstain from the State of the Union, Robert Gibbs seemed to make Roberts’ point for him by replaying the president’s slap at the Court. (“What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections – drowning out the voices of average Americans.”) Crawford thinks this is ridiculous:

But after Chief Justice John Roberts made some entirely reasonable remarks yesterday — and White House Press Secretary Robert Gibbs just had to respond — it’s now getting ridiculous. Whether the White House has a short-term or long-term strategy or no strategy at all, it’s flat-out absurd and ill-advised for the administration to think it should always have the last word. It’s like my 6-year-old: “I don’t LIKE your idea. I like MY idea.”

She continues:

This administration is going to have to be dealing with this Supreme Court for at least three more years, if not more. Its lawyers are going to have to appear before these justices to defend presidential initiatives or federal laws in case after case, big and small.

I’m not suggesting they won’t get a fair shake simply because the White House is trying to stick it to the conservative justices. George Bush repeatedly got slapped down by this Court, even though he never lashed out at the justices.

But at some point — and I’d say that point is now — the Obama Administration is working against its interests.

They’d do well to remember that on a lot of the issues they care about, the Supreme Court gets to decide. No matter how much they stomp their feet and shout, “I don’t LIKE your idea; I like MY idea,” the Supreme Court is going to get the last word.

This is par for the course at this White House. It’s the perpetual rat-tat-tat, the quintessential campaign quick-response mode. There is no respect for the Chief Justice or the Court as an institution, nor for the point the Chief Justice was making: that it’s unseemly for the Court to appear and to get dragged into partisan brawls. In their partisan vitriol, the Obami, of course, proved the Chief Justice’s case. But then, self-awareness was never the White House’s strong suit.

Jan Crawford (h/t Glenn Reynolds), among the best of the mainstream media Supreme Court reporters, socks it to the White House for its juvenile insistence on getting the last word on its running spat with the Court. After Chief Justice John Roberts made the fine suggestion that the Court should abstain from the State of the Union, Robert Gibbs seemed to make Roberts’ point for him by replaying the president’s slap at the Court. (“What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections – drowning out the voices of average Americans.”) Crawford thinks this is ridiculous:

But after Chief Justice John Roberts made some entirely reasonable remarks yesterday — and White House Press Secretary Robert Gibbs just had to respond — it’s now getting ridiculous. Whether the White House has a short-term or long-term strategy or no strategy at all, it’s flat-out absurd and ill-advised for the administration to think it should always have the last word. It’s like my 6-year-old: “I don’t LIKE your idea. I like MY idea.”

She continues:

This administration is going to have to be dealing with this Supreme Court for at least three more years, if not more. Its lawyers are going to have to appear before these justices to defend presidential initiatives or federal laws in case after case, big and small.

I’m not suggesting they won’t get a fair shake simply because the White House is trying to stick it to the conservative justices. George Bush repeatedly got slapped down by this Court, even though he never lashed out at the justices.

But at some point — and I’d say that point is now — the Obama Administration is working against its interests.

They’d do well to remember that on a lot of the issues they care about, the Supreme Court gets to decide. No matter how much they stomp their feet and shout, “I don’t LIKE your idea; I like MY idea,” the Supreme Court is going to get the last word.

This is par for the course at this White House. It’s the perpetual rat-tat-tat, the quintessential campaign quick-response mode. There is no respect for the Chief Justice or the Court as an institution, nor for the point the Chief Justice was making: that it’s unseemly for the Court to appear and to get dragged into partisan brawls. In their partisan vitriol, the Obami, of course, proved the Chief Justice’s case. But then, self-awareness was never the White House’s strong suit.

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Lawyers Should Cheer

Following the flap over Obama’s State of the Union attack on the Supreme Court’s decision striking down a portion of the McCain-Feingold campaign-finance law, I wrote that it would be a good idea for the justices to skip the event in the future, since it has become a partisan affair that needlessly embroils them in political matters. I am delighted to see that I am on the same wavelength as the chief justice:

Chief Justice John Roberts told students at the University of Alabama Tuesday that President Obama’s State of the Union address, in which he singled out a recent Supreme Court decision on campaign finance law for criticism, was “very troubling” and said the annual event has “degenerated into a political pep rally,” the A.P. reports.

Taking a question from a law school student, Roberts said anyone is welcome to criticize the court. “I have no problems with that,” he said. “On the other hand, there is the issue of the setting, the circumstances and the decorum. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court – according the requirements of protocol – has to sit there expressionless, I think is very troubling. . . I’m not sure why we’re there,” he said.

This is precisely the question raised by the president’s use of the justices as props for his showboating. Shouldn’t there be universal agreement that the Court should remove itself from partisan affairs? Let’s see how the media and legal elite greet this one. At least one thing is clear: this supposedly post-partisan president, who ran for office decrying old-style politics, has hyper-charged with partisanship nearly everything with which he comes in contact — the census, the Court, and the Justice Department, for starters. It’s good to see that not everyone is playing along. And it’s better still to see Chief Justice Roberts defend the dignity and apolitical nature of the Court. Obama may lose his props, but we should all benefit from the reminder that the justices are not in the business of cheerleading the president nor duty bound to perform the role of mute extras in his political drama.

Following the flap over Obama’s State of the Union attack on the Supreme Court’s decision striking down a portion of the McCain-Feingold campaign-finance law, I wrote that it would be a good idea for the justices to skip the event in the future, since it has become a partisan affair that needlessly embroils them in political matters. I am delighted to see that I am on the same wavelength as the chief justice:

Chief Justice John Roberts told students at the University of Alabama Tuesday that President Obama’s State of the Union address, in which he singled out a recent Supreme Court decision on campaign finance law for criticism, was “very troubling” and said the annual event has “degenerated into a political pep rally,” the A.P. reports.

Taking a question from a law school student, Roberts said anyone is welcome to criticize the court. “I have no problems with that,” he said. “On the other hand, there is the issue of the setting, the circumstances and the decorum. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court – according the requirements of protocol – has to sit there expressionless, I think is very troubling. . . I’m not sure why we’re there,” he said.

This is precisely the question raised by the president’s use of the justices as props for his showboating. Shouldn’t there be universal agreement that the Court should remove itself from partisan affairs? Let’s see how the media and legal elite greet this one. At least one thing is clear: this supposedly post-partisan president, who ran for office decrying old-style politics, has hyper-charged with partisanship nearly everything with which he comes in contact — the census, the Court, and the Justice Department, for starters. It’s good to see that not everyone is playing along. And it’s better still to see Chief Justice Roberts defend the dignity and apolitical nature of the Court. Obama may lose his props, but we should all benefit from the reminder that the justices are not in the business of cheerleading the president nor duty bound to perform the role of mute extras in his political drama.

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Speaking of Retirements . . .

With more and more senators and congressmen heading for the exits, it’s a good question how this will affect two other possible retirements from the Washington stage: those of Justices John Paul Stevens and Ruth Bader Ginsburg. Stevens will soon be 90 and has not hired his usual quota of clerks for next year — traditionally a sign of impending retirement. Justice Ginsburg (who will be 77 next month) has not been in good health in recent years, having had two bouts with cancer.

But if they retire at the close of the current term, in late June, will President Obama be able to get his nominees to replace them through the Senate before the election in November? If present trends continue (they usually don’t, of course), that’s unlikely.  The more probable a Republican landslide in  November comes to seem, the more probable is a Republican filibuster to prevent liberal replacements for these liberal justices.

In 1968, lame duck Lyndon Johnson tried to get his buddy Justice Abe Fortas raised to the chief justiceship upon Earl Warren’s retirement. Although Republicans were in the minority, they and their Dixiecrat allies were able to block Fortas. And Warren stayed on as chief justice, as it appeared that, with a likely impending Republican victory in November, no Johnson nominee could be confirmed. The following year, President Nixon nominated the lackluster Warren Burger to replace Warren as chief justice and, when Fortas had to resign in a scandal, ended up nominating Harold Blackmun (author of Roe v. Wade) as his replacement after two failed attempts to nominate Southerners.

If there is a Republican Senate majority next year, President Obama would have no choice but to nominate moderates in order to get them confirmed. Wouldn’t it be a delicious irony if President Obama’s picks had the effect of moving the Court to the right, however incrementally?

With more and more senators and congressmen heading for the exits, it’s a good question how this will affect two other possible retirements from the Washington stage: those of Justices John Paul Stevens and Ruth Bader Ginsburg. Stevens will soon be 90 and has not hired his usual quota of clerks for next year — traditionally a sign of impending retirement. Justice Ginsburg (who will be 77 next month) has not been in good health in recent years, having had two bouts with cancer.

But if they retire at the close of the current term, in late June, will President Obama be able to get his nominees to replace them through the Senate before the election in November? If present trends continue (they usually don’t, of course), that’s unlikely.  The more probable a Republican landslide in  November comes to seem, the more probable is a Republican filibuster to prevent liberal replacements for these liberal justices.

In 1968, lame duck Lyndon Johnson tried to get his buddy Justice Abe Fortas raised to the chief justiceship upon Earl Warren’s retirement. Although Republicans were in the minority, they and their Dixiecrat allies were able to block Fortas. And Warren stayed on as chief justice, as it appeared that, with a likely impending Republican victory in November, no Johnson nominee could be confirmed. The following year, President Nixon nominated the lackluster Warren Burger to replace Warren as chief justice and, when Fortas had to resign in a scandal, ended up nominating Harold Blackmun (author of Roe v. Wade) as his replacement after two failed attempts to nominate Southerners.

If there is a Republican Senate majority next year, President Obama would have no choice but to nominate moderates in order to get them confirmed. Wouldn’t it be a delicious irony if President Obama’s picks had the effect of moving the Court to the right, however incrementally?

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The Harvard Law Review Must Be Aghast

In the ongoing debate over Obama’s attack on the Supreme Court, the president seems not to be faring all that well. Politico’s forum on the subject contains a range of criticisms. They fall into several categories.

First, it was arrogant and careless of Obama to call out the Supreme Court – and not get his facts right. Dan Perino observes: “Misrepresenting a complicated legal opinion is dicey — but doing so in a prime-time address to a nation where the authors of that opinion are in the front row leaves you rightly exposed to criticism.” The president and his minions have gotten used to their sheltered existence and being immune to criticism. You can almost hear them reassuring themselves, “It’s not like one of the justices is going to object!” Well, he did, and that’s what comes from assuming the president can be cavalier with the truth.

Second, it was rude to berate the Court in public, treating the justices as errant political functionaries rather than interpreters of the Constitution. Larry J. Sabato, hardly a fire-breathing conservative, makes some unfavorable comparisons:

Mr. Obama’s blunt attack on the Court’s ruling, with the members sitting in front of him, was no doubt stunning and unsettling to some, and it contradicted his frequent calls for bipartisanship and civility. It also reminded me of President Andrew Jackson’s remark that, “Chief Justice Marshall has made his decision. Now let him enforce it.” Others may have remembered Massive Resistance and the disrespect shown to earlier Courts when they made unpopular rulings about race.

And third, Obama is playing with fire — and talking nonsense when he dares Congress to “respond” to a First Amendment ruling with legislation. This was not a statutory interpretation — as was the Equal Pay Act, which begat the Lilly Ledbetter legislation — that is amenable to a legislative fix. In such a case, the Court says, “We think the statute says X.” The Congress is then free to say, “No, we really meant Y, and here’s the amended law to make that explicit.” What sort of legislative response would there be to “The First Amendment does not permit limits on corporations and unions exercising core political speech”? Boston College law professor Richard Albert explains:

By emphatically urging Congress to pass a bill reversing what he views as the Supreme Court’s misguided judgment–”a bill that helps to right this wrong,” in the President’s own words–the President undermined two sacred institutions in American constitutional government: the separation of powers and judicial independence.

A University of Virginia Law School professor asks whether Obama is seriously entertaining the view that Congress should “challenge the Supreme Court’s ruling and its constitutional interpretive supremacy.” We don’t know, because Obama, one suspects, doesn’t take what he’s saying seriously. He’s simply inciting the mob.

In all this, one thing is rather clear: Obama has harmed himself. In playing fast and loose with the facts and the law, he has diminished not the Court but himself. He seems to prefer Huey Long to Lawrence Tribe as his role model. His elite university pals and media sycophants who marveled at his Harvard-honed intellect and supposed temperamental superiority must be shuddering.

In the ongoing debate over Obama’s attack on the Supreme Court, the president seems not to be faring all that well. Politico’s forum on the subject contains a range of criticisms. They fall into several categories.

First, it was arrogant and careless of Obama to call out the Supreme Court – and not get his facts right. Dan Perino observes: “Misrepresenting a complicated legal opinion is dicey — but doing so in a prime-time address to a nation where the authors of that opinion are in the front row leaves you rightly exposed to criticism.” The president and his minions have gotten used to their sheltered existence and being immune to criticism. You can almost hear them reassuring themselves, “It’s not like one of the justices is going to object!” Well, he did, and that’s what comes from assuming the president can be cavalier with the truth.

Second, it was rude to berate the Court in public, treating the justices as errant political functionaries rather than interpreters of the Constitution. Larry J. Sabato, hardly a fire-breathing conservative, makes some unfavorable comparisons:

Mr. Obama’s blunt attack on the Court’s ruling, with the members sitting in front of him, was no doubt stunning and unsettling to some, and it contradicted his frequent calls for bipartisanship and civility. It also reminded me of President Andrew Jackson’s remark that, “Chief Justice Marshall has made his decision. Now let him enforce it.” Others may have remembered Massive Resistance and the disrespect shown to earlier Courts when they made unpopular rulings about race.

And third, Obama is playing with fire — and talking nonsense when he dares Congress to “respond” to a First Amendment ruling with legislation. This was not a statutory interpretation — as was the Equal Pay Act, which begat the Lilly Ledbetter legislation — that is amenable to a legislative fix. In such a case, the Court says, “We think the statute says X.” The Congress is then free to say, “No, we really meant Y, and here’s the amended law to make that explicit.” What sort of legislative response would there be to “The First Amendment does not permit limits on corporations and unions exercising core political speech”? Boston College law professor Richard Albert explains:

By emphatically urging Congress to pass a bill reversing what he views as the Supreme Court’s misguided judgment–”a bill that helps to right this wrong,” in the President’s own words–the President undermined two sacred institutions in American constitutional government: the separation of powers and judicial independence.

A University of Virginia Law School professor asks whether Obama is seriously entertaining the view that Congress should “challenge the Supreme Court’s ruling and its constitutional interpretive supremacy.” We don’t know, because Obama, one suspects, doesn’t take what he’s saying seriously. He’s simply inciting the mob.

In all this, one thing is rather clear: Obama has harmed himself. In playing fast and loose with the facts and the law, he has diminished not the Court but himself. He seems to prefer Huey Long to Lawrence Tribe as his role model. His elite university pals and media sycophants who marveled at his Harvard-honed intellect and supposed temperamental superiority must be shuddering.

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The (Moderately) Rich Get Richer

Harvard’s financial aid “reforms,” announced Monday, are great news for anyone who thinks that what Harvard needs is not a revived core curriculum, but more students from the upper class. Under Harvard’s new policy, families with incomes between $60,000 and $180,000 will have to pay no more than 10 percent of their incomes in tuition. Since the 2006 median income in the U.S. was about $48,000, the benefits of these “reforms” will go to the rich.

Yes, $180,000 isn’t as much as it seems if you live in New York City. But Harvard already has lots of kids from New York City: that’s not the kind of diversity it’s lacking. And yes, Harvard is “need-blind,” and it gives generous support to students from families below the median. But there are only so many spots to go around. Making it easier for the rich to accept an offer from Harvard will increase their matriculation rate. To compensate, Harvard will have to make fewer offers to the poor.

By coincidence, Harvard’s announcement came less than three months after the Senate Finance Committee expressed interest in forcing large university endowments to pay out 5 percent per year. But then the entire question of financial aid at Harvard (and Yale) is a farce: it would cost only $238 million—about 1 percent of an endowment that gained $5 billion in fiscal 2007—to pay tuition, room, and board for all Yale College students this year. Financial aid is about increasing the size of the applicant pool so you can turn more of them down, and win the prestige that comes with enhanced selectivity.

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Harvard’s financial aid “reforms,” announced Monday, are great news for anyone who thinks that what Harvard needs is not a revived core curriculum, but more students from the upper class. Under Harvard’s new policy, families with incomes between $60,000 and $180,000 will have to pay no more than 10 percent of their incomes in tuition. Since the 2006 median income in the U.S. was about $48,000, the benefits of these “reforms” will go to the rich.

Yes, $180,000 isn’t as much as it seems if you live in New York City. But Harvard already has lots of kids from New York City: that’s not the kind of diversity it’s lacking. And yes, Harvard is “need-blind,” and it gives generous support to students from families below the median. But there are only so many spots to go around. Making it easier for the rich to accept an offer from Harvard will increase their matriculation rate. To compensate, Harvard will have to make fewer offers to the poor.

By coincidence, Harvard’s announcement came less than three months after the Senate Finance Committee expressed interest in forcing large university endowments to pay out 5 percent per year. But then the entire question of financial aid at Harvard (and Yale) is a farce: it would cost only $238 million—about 1 percent of an endowment that gained $5 billion in fiscal 2007—to pay tuition, room, and board for all Yale College students this year. Financial aid is about increasing the size of the applicant pool so you can turn more of them down, and win the prestige that comes with enhanced selectivity.

By design, what stops students from attending Harvard isn’t the cost: it’s Harvard’s Admissions Office, which, like Yale’s, turns down nine out of ten applicants. And here those on the fringes of the system—which is not quite the same thing as being poor—are at a serious disadvantage, because simply being smart is not enough to get in. You need to demonstrate your social conscience, and to develop as many weird interests as possible. The latest fad, Alex Williams reported in the New York Times over the weekend, is squash, which, as one parent put it, “just helps your admissions chances.”

The last thing the Senate should do is to try to fix Harvard: the unintended consequences are bound to be catastrophic. But Harvard’s “reforms,” and its admissions policies, are of a piece with our national obsession: helping the well-off. From preserving Social Security, which transfers wealth from the young to the old; to expanding SCHIP into the upper-middle class by raising taxes on tobacco, a vice of the poor; to providing relief for homeowners who sought out the loans that got them into the subprime mortgage “crisis,” the Left (and all too frequently the Right) panders to the rich while arguing that what it seeks is social justice for the poor.

There are lots of good arguments for small government. But the best one is that the bigger government gets, the more favors it does for the elite, and the more harm it does to the American promise of opportunity and equal treatment under law. In a recent opinion, Chief Justice Roberts wrote that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Like the rest of us, Harvard needs to remember that the best way to help the poor is to stop helping the rich.

The Wrong Rebuttal

A major sticking point has arisen in the run-up to the not-much-anticipated Annapolis conference: as a precondition, Israeli Prime Minister Ehud Olmert is insisting that the Palestinians recognize Israel as a Jewish state. On Monday, chief Palestinian negotiator Saeb Erekat created a stir when he announced that the Palestinians would do no such thing, arguing that, “no state in the world connects its national identity to a religious identity.”

Naturally, Erekat is wrong. As my contentions colleague Noah Pollak intimated, every country with a cross, crescent, or religious phrase on its national flag, to varying extremes, traces its national identity to religious/cultural roots. Moreover, Israel’s use of the term “Jewish state” hardly connotes theocracy, as Erekat deceptively implies, but rather the state’s ethno-cultural identity. In this vein, former Israeli Supreme Court Chief Justice Meir Shamgar once compared Israel’s being Jewish to France’s being French.

Yet these rebuttals all seem a little too neat. After all, we don’t find France demanding recognition of its French identity—least of all from its adversaries—as Israel continues to do. Indeed, nobody contests that France is French by virtue of a population that is overwhelmingly French.

Olmert should operate with similar confidence regarding Israel’s ethno-cultural character, which is Jewish by virtue of a population that is mostly Jewish. Of course, in this context, Palestinian recognition of Israel as a “Jewish state” is code for renouncing the “right of return,” by which four million Palestinians would be permitted to repatriate to Israel. But if Olmert wishes to prevent this outcome, he’d be better served dealing in terms that affirm Israel’s sovereignty, rather than subjecting its pre-existent character to Palestinian acquiescence. Sovereignty encompasses the right of a state to secure its borders—and determine who can and cannot enter. When Palestinians are asked to recognize Israel as a “Jewish state,” they are granted an undue voice in affirming Israel’s internal character—a strike against Israeli sovereignty that Israel bizarrely invites. Israel is a Jewish state, whether or not Erekat admits it.

So long as any Israeli-Palestinian peace process aims to create two sovereign states, Israel’s “Jewish character” must be seen as a matter for Israelis alone to define and determine. For this reason, Olmert would be best served arriving at the Annapolis conference ready to talk about security arrangements and final borders—ones that guarantee total sovereignty for Israelis and Palestinians over their own affairs.

A major sticking point has arisen in the run-up to the not-much-anticipated Annapolis conference: as a precondition, Israeli Prime Minister Ehud Olmert is insisting that the Palestinians recognize Israel as a Jewish state. On Monday, chief Palestinian negotiator Saeb Erekat created a stir when he announced that the Palestinians would do no such thing, arguing that, “no state in the world connects its national identity to a religious identity.”

Naturally, Erekat is wrong. As my contentions colleague Noah Pollak intimated, every country with a cross, crescent, or religious phrase on its national flag, to varying extremes, traces its national identity to religious/cultural roots. Moreover, Israel’s use of the term “Jewish state” hardly connotes theocracy, as Erekat deceptively implies, but rather the state’s ethno-cultural identity. In this vein, former Israeli Supreme Court Chief Justice Meir Shamgar once compared Israel’s being Jewish to France’s being French.

Yet these rebuttals all seem a little too neat. After all, we don’t find France demanding recognition of its French identity—least of all from its adversaries—as Israel continues to do. Indeed, nobody contests that France is French by virtue of a population that is overwhelmingly French.

Olmert should operate with similar confidence regarding Israel’s ethno-cultural character, which is Jewish by virtue of a population that is mostly Jewish. Of course, in this context, Palestinian recognition of Israel as a “Jewish state” is code for renouncing the “right of return,” by which four million Palestinians would be permitted to repatriate to Israel. But if Olmert wishes to prevent this outcome, he’d be better served dealing in terms that affirm Israel’s sovereignty, rather than subjecting its pre-existent character to Palestinian acquiescence. Sovereignty encompasses the right of a state to secure its borders—and determine who can and cannot enter. When Palestinians are asked to recognize Israel as a “Jewish state,” they are granted an undue voice in affirming Israel’s internal character—a strike against Israeli sovereignty that Israel bizarrely invites. Israel is a Jewish state, whether or not Erekat admits it.

So long as any Israeli-Palestinian peace process aims to create two sovereign states, Israel’s “Jewish character” must be seen as a matter for Israelis alone to define and determine. For this reason, Olmert would be best served arriving at the Annapolis conference ready to talk about security arrangements and final borders—ones that guarantee total sovereignty for Israelis and Palestinians over their own affairs.

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