Commentary Magazine


Topic: constitutional law

ObamaCare, Religious Liberty, and a Crucial Supreme Court Showdown

The fact that the Supreme Court will hear a religious freedom-based challenge to the ObamaCare contraception mandate is the kind of story that possesses significance likely beyond any volume of coverage it will receive. Indeed, while liberal activists will repeatedly try to cast this in the mold of the fictional “war on women,” their own arguments reveal just how far-reaching a definitive ruling on this would be for American religious and political practice.

Thus it is instructive to listen to how the left frames the debate. To do this, it will be important to look beyond the “corporations aren’t people” argument that the left typically employs when asking the courts to remove First Amendment rights from individuals who coordinate their activities through an organized group. This argument is exceptionally weak; as Ilya Shapiro explained in the wake of the liberal hysterics over Citizens United, no one argues that companies don’t have, say, Fourth Amendment or Fifth Amendment rights.

So the left moves then from explicitly trying to revoke the constitutional rights of those with whom they disagree to the claim of protecting their own rights. This is when the left is at its most revealing, for liberals have a curious definition of rights. Last night, the Washington Examiner’s Tim Carney debated birth-control activist Sandra Fluke on MSNBC on the topic. Carney said that if the government wants to claim a compelling interest in the provision of free birth control, they also must argue there was no less intrusive way to provide it. There are obviously less intrusive ways than this ObamaCare contraception mandate.

Fluke responded that one less-intrusive way would be to have the government simply provide birth control directly, but complained that conservatives are cutting back on funding for such public programs. Then, as Ryan Moy pointed out after the broadcast, Fluke said this:

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The fact that the Supreme Court will hear a religious freedom-based challenge to the ObamaCare contraception mandate is the kind of story that possesses significance likely beyond any volume of coverage it will receive. Indeed, while liberal activists will repeatedly try to cast this in the mold of the fictional “war on women,” their own arguments reveal just how far-reaching a definitive ruling on this would be for American religious and political practice.

Thus it is instructive to listen to how the left frames the debate. To do this, it will be important to look beyond the “corporations aren’t people” argument that the left typically employs when asking the courts to remove First Amendment rights from individuals who coordinate their activities through an organized group. This argument is exceptionally weak; as Ilya Shapiro explained in the wake of the liberal hysterics over Citizens United, no one argues that companies don’t have, say, Fourth Amendment or Fifth Amendment rights.

So the left moves then from explicitly trying to revoke the constitutional rights of those with whom they disagree to the claim of protecting their own rights. This is when the left is at its most revealing, for liberals have a curious definition of rights. Last night, the Washington Examiner’s Tim Carney debated birth-control activist Sandra Fluke on MSNBC on the topic. Carney said that if the government wants to claim a compelling interest in the provision of free birth control, they also must argue there was no less intrusive way to provide it. There are obviously less intrusive ways than this ObamaCare contraception mandate.

Fluke responded that one less-intrusive way would be to have the government simply provide birth control directly, but complained that conservatives are cutting back on funding for such public programs. Then, as Ryan Moy pointed out after the broadcast, Fluke said this:

So there’s an attack on allowing employers to be required to provide this insurance coverage on insurance that employees pay for, at the same time that there’s an attack on public availability through clinics.

One more time: there’s an attack on allowing employers to be required to provide this insurance. To the left, there is no freedom without government coercion. This is either incoherent or Orwellian, or both. But that’s the argument the left is running with: they want you to be forced to provide the funding for even their most private activities; only then will you be truly free.

But Fluke isn’t the only one making this argument. Mediaite has the video of an MSNBC roundtable on the issue, in which the panelists are panicked at the thought of affording Americans full religious liberty because, essentially, it’s then a slippery slope to protecting all constitutional rights. And then–mayhem, or something:

“This is another reason why we should have moved toward a single payer system of health coverage, because we’re just going to end up with one challenge after another – whether it’s in the courts or outside of the courts – and I just don’t see an end to this,” Herbert submitted.

“We’re already on the slippery slope of corporate personhood,” he continued. “Where does it end?”

“Where does it end” is the attention-getter in that comment, but I think Herbert’s plea for single-payer health insurance is just as telling. Put the government in charge of the country’s health care, Herbert argues, because then it will be much more difficult for Americans to “challenge” the government’s infringement on their freedom. It’s not just legal challenges either. Herbert says those challenges can be brought “in the courts or outside of the courts,” the latter perhaps an allusion to the shady world of participatory democracy.

So this is much more than a fight over birth control, or even health insurance. It’s about two fundamentally different views on American constitutional freedoms. Conservatives want those freedoms to be expansive and protected, as the Founders did. Liberals want those freedoms to be curtailed lest the citizenry get greedy or the democratic process imperil the state’s coercive powers.

The Founders saw religious freedom as elemental to personal liberty in America. But they were not alone in thinking that unimpeded religious worship was a guard against an overly ambitious or arrogant national government. As Michael Burleigh writes about the role of religion in post-French Revolution European politics, with a supporting quote from Edmund Burke:

The political function of religion was not simply to keep the lower orders quiescent, as has been tiresomely argued by generations of Marxists, but also to impress upon those who had power that they were here today and gone tomorrow, and responsible to those below and Him above: ‘All persons possessing any portion of power ought to be strongly and awfully impressed with an idea that they act in trust, and that they are to account for their conduct in that trust to the one great Master, Author, and Founder of society.’

Religion was not the “opiate of the people,” intended to keep them in line. It was, rather, to keep the government in line. This was not a revolutionary idea; it predated the American Constitution, certainly. As Francis Fukuyama writes in The Origins of Political Order: “The existence of a separate religious authority accustomed rulers to the idea that they were not the ultimate source of the law. The assertion of Frederic Maitland that no English king ever believed that he was above the law could not be said of any Chinese emperor, who recognized no law other than those he himself made.”

A battle over the constitutional protection of religious liberty is not an abstraction nor, as in cases like the birth-control mandate, a minor social-issue front in the culture war. Such battles go to the heart of how we seek to govern ourselves and how we understand the fundamental documents that serve as the explication of our national political identity. Americans should watch this case closely and take its implications seriously.

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Richard Cohen on the Ground Zero Mosque

Of late it has become something of a hobby of mine to point out how the left is becoming increasingly unhinged and alienated from America. The event that seems to have triggered the latest outpouring of rage is the debate about the proposal to build a mosque and community center, led by Imam Rauf, near Ground Zero. It’s not simply the debate itself that is causing the venom; it is that defenders of building the mosque are losing the argument. The public — including those in New York City, that well-known epicenter of conservatism — overwhelmingly sides with those who oppose building the mosque. This is causing some liberals to spin out of control.

The latest liberal to do so, as Jen noted earlier, is Richard Cohen of the Washington Post, who writes:

Appearing on ABC’s “This Week with Christiane Amanpour,” Daisy Khan, a founder of the mosque (and the wife of the imam), rejected any compromise. She was right to do so because to compromise is to accede, even a bit, to the arguments of bigots, demagogues or the merely uninformed. This is no longer her fight. The fight is now all of ours.

It has become something of a cliche, I know, but no one ever put this sort of thing better than William Butler Yeats in his poem “The Second Coming.” “The best lack all conviction, while the worst are full of passionate intensity.”

Some passionate intensity from the best is past due.

Cohen is right about one thing; the Yeats quote is a cliché. But he’s wrong that those who are arguing for a compromise are bigots, demagogues, or merely uninformed. And his argument that what this debate is missing is “passionate intensity” is ludicrous. In fact, the debate has often been dominated by passion rather than by reason, as evidenced by the left’s eagerness to brand the mosque’s opponents as racists, bigots, and Islamophobes. (I have expressed concerns about what some on the right, such as Newt Gingrich, have said as well; see here and here.)

In addition, the deep, eternal meaning the left has tried to infuse this issue with — the effort to cast this debate as pitting the Children of Light against the Children of Darkness, between those who revere the Constitution and those who want to shred it — is both wrong and slightly amusing. One can imagine the lyrics of Peter, Paul, and Mary running through the minds of animated liberals everywhere. It’s Martin Luther King, Jr. v. Bull Connor all over again.

This is not a debate about high constitutional principle; if it were, presumably President Obama — the icon of so many liberals and a former professor of constitutional law — would have taken a stand on where the mosque belongs. Instead, he has refused to say what he thinks. The debate is about whether it is prudent and wise for Imam Rauf to build the mosque and community center within two blocks of Ground Zero. And on this, reasonable people can disagree.

On this particular matter one other point needs to be repeated: If the point of this enterprise was to deepen interfaith dialogue and understanding, it has failed miserably. And if those insisting the mosque be built at the original location persist in their efforts — if they heed Cohen’s advice and jettison compromise as morally treasonous — things will get a good deal worse. Contrary to what some liberals are arguing, no great constitutional principle will have been ratified. Instead, a debate that is harmful to our country, including to Muslim Americans, will be intensified.

This is potentially dangerous stuff we’re dealing with — and I can’t understand why those who insist that they are pining for reconciliation and comity are pushing an idea that is doing the opposite.

Of late it has become something of a hobby of mine to point out how the left is becoming increasingly unhinged and alienated from America. The event that seems to have triggered the latest outpouring of rage is the debate about the proposal to build a mosque and community center, led by Imam Rauf, near Ground Zero. It’s not simply the debate itself that is causing the venom; it is that defenders of building the mosque are losing the argument. The public — including those in New York City, that well-known epicenter of conservatism — overwhelmingly sides with those who oppose building the mosque. This is causing some liberals to spin out of control.

The latest liberal to do so, as Jen noted earlier, is Richard Cohen of the Washington Post, who writes:

Appearing on ABC’s “This Week with Christiane Amanpour,” Daisy Khan, a founder of the mosque (and the wife of the imam), rejected any compromise. She was right to do so because to compromise is to accede, even a bit, to the arguments of bigots, demagogues or the merely uninformed. This is no longer her fight. The fight is now all of ours.

It has become something of a cliche, I know, but no one ever put this sort of thing better than William Butler Yeats in his poem “The Second Coming.” “The best lack all conviction, while the worst are full of passionate intensity.”

Some passionate intensity from the best is past due.

Cohen is right about one thing; the Yeats quote is a cliché. But he’s wrong that those who are arguing for a compromise are bigots, demagogues, or merely uninformed. And his argument that what this debate is missing is “passionate intensity” is ludicrous. In fact, the debate has often been dominated by passion rather than by reason, as evidenced by the left’s eagerness to brand the mosque’s opponents as racists, bigots, and Islamophobes. (I have expressed concerns about what some on the right, such as Newt Gingrich, have said as well; see here and here.)

In addition, the deep, eternal meaning the left has tried to infuse this issue with — the effort to cast this debate as pitting the Children of Light against the Children of Darkness, between those who revere the Constitution and those who want to shred it — is both wrong and slightly amusing. One can imagine the lyrics of Peter, Paul, and Mary running through the minds of animated liberals everywhere. It’s Martin Luther King, Jr. v. Bull Connor all over again.

This is not a debate about high constitutional principle; if it were, presumably President Obama — the icon of so many liberals and a former professor of constitutional law — would have taken a stand on where the mosque belongs. Instead, he has refused to say what he thinks. The debate is about whether it is prudent and wise for Imam Rauf to build the mosque and community center within two blocks of Ground Zero. And on this, reasonable people can disagree.

On this particular matter one other point needs to be repeated: If the point of this enterprise was to deepen interfaith dialogue and understanding, it has failed miserably. And if those insisting the mosque be built at the original location persist in their efforts — if they heed Cohen’s advice and jettison compromise as morally treasonous — things will get a good deal worse. Contrary to what some liberals are arguing, no great constitutional principle will have been ratified. Instead, a debate that is harmful to our country, including to Muslim Americans, will be intensified.

This is potentially dangerous stuff we’re dealing with — and I can’t understand why those who insist that they are pining for reconciliation and comity are pushing an idea that is doing the opposite.

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What Objection to the Ground Zero Mosque Is Not

Liberals who two years ago abandoned their humdrum lives to become career alarmists about Sarah Palin’s Pentecostalism now wish to be taken seriously as misty-eyed champions of America’s tolerance of diverse faiths. Whatever the intent of the planned Cordoba House Mosque Community Center Bowling Alley Drive-in Imax Nail Salon and Day Spa actually is matters not at all. It is to be celebrated because it is Islamic and because America does not discriminate on the basis of religion. The New York Times’ Maureen Dowd laments that President Obama, in his muddled failure to partake in the festivities, has “allowed himself to be weakened by perfectly predictable Republican hysteria.” After all, says Dowd,“By now you have to be willfully blind not to know that the imam in charge of the project, Feisal Abdul Rauf, is the moderate Muslim we have allegedly been yearning for.”

Braille has come a long way. When I read that Rauf refused to call Hamas a terrorist organization and that he respects the doctrine of the late Ayatollah Ruhollah Khomeini I could swear I took it in with my eyes. Just as I seemed to do when in 2008 I read that Dowd, the declared enemy of predictable hysteria, asked of Sarah Palin, “When the phone rings at 3 a.m., will she call the Wasilla Assembly of God congregation and ask them to pray on a response, as she asked them to pray for a natural gas pipeline?”

Feisal Rauf is A-OK with Khomeini-ism and he’s a welcome voice of reason; Sarah Palin prays and that makes her an unhinged zealot.

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Liberals who two years ago abandoned their humdrum lives to become career alarmists about Sarah Palin’s Pentecostalism now wish to be taken seriously as misty-eyed champions of America’s tolerance of diverse faiths. Whatever the intent of the planned Cordoba House Mosque Community Center Bowling Alley Drive-in Imax Nail Salon and Day Spa actually is matters not at all. It is to be celebrated because it is Islamic and because America does not discriminate on the basis of religion. The New York Times’ Maureen Dowd laments that President Obama, in his muddled failure to partake in the festivities, has “allowed himself to be weakened by perfectly predictable Republican hysteria.” After all, says Dowd,“By now you have to be willfully blind not to know that the imam in charge of the project, Feisal Abdul Rauf, is the moderate Muslim we have allegedly been yearning for.”

Braille has come a long way. When I read that Rauf refused to call Hamas a terrorist organization and that he respects the doctrine of the late Ayatollah Ruhollah Khomeini I could swear I took it in with my eyes. Just as I seemed to do when in 2008 I read that Dowd, the declared enemy of predictable hysteria, asked of Sarah Palin, “When the phone rings at 3 a.m., will she call the Wasilla Assembly of God congregation and ask them to pray on a response, as she asked them to pray for a natural gas pipeline?”

Feisal Rauf is A-OK with Khomeini-ism and he’s a welcome voice of reason; Sarah Palin prays and that makes her an unhinged zealot.

Religion is  deserving of mockery at all turns—unless it is the Muslim strain to be practiced two blocks from Ground Zero. Of course, objections to the comparison are predictable. Palin was vying for the vice president’s office and Rauf is merely . . . the bridge-building embodiment of Muslim outreach that the post-9/11 world has been waiting for.

The Left’s shift from defamers of faith to champions of faith has come complete with the characterization of the Right as hateful bigots. That thousands of American liberals have in the past protested Papal visits, with some placards comparing Christianity to Nazism, is a testament to freedom of speech. That non-liberal Americans protest only the building of a specific mosque in a specific location is a testament both to prejudice and to indifference on religious freedom.  In the Daily Beast, Peter Beinart asks, in high dudgeon, “Remember when George W. Bush and his neoconservative allies used to say that the ‘war on terror; was a struggle on behalf of Muslims, decent folks who wanted nothing more than to live free like you and me?” No matter that neoconservatives like the Wall Street Journal’s Bret Stephens writes that the problem with celebrating Rauf as a moderate is that doing so steals support and recognition from “Muslims in the U.S. like Irshad [Manji] who are working, tirelessly but mainly out of view, toward the cause of reform.” And never mind that in the New Republic Reuel Gerecht, a neoconservative,  envisions a potential mosque built by a true moderate that “would honor us all.” Dowd, Beinart, and the like can only enjoy hero status if their opponents are depicted as convincing villains.

The myths about those opposed to the mosque don’t stop there. Conservatives, we are told, are eager to invent new instruments of government to block the mosque’s construction. While fewer than a handful of conservatives have made passing references to zoning laws, the overwhelming majority have gone out of their way to note that there is no legal argument against the mosque. As Peter Kirsanow pointed out at National Review’s Corner blog, “You don’t need to have been a lecturer in constitutional law like Obama to know that the mosque’s backers have a right to build at Ground Zero.”

Those uneasy about Rauf and the Cordoba House project are not hysterical, hateful, or statist. Their objections have to do with something less devious than prejudice and simpler than the law: common sense. Here is a thought experiment: If the mosque was slated to be built not two blocks away from Ground Zero, but actually on it, would those opposed still be exposing their contemptible hysteria by complaining? The site would still be private property, after all. And if the imam of that mosque openly preached a naked form of extremist Islam, should anyone who objects still be ashamed of themselves, as New York Mayor, Michael Bloomberg has suggested? Freedom of religion would still be a fundamental American tenet, would it not? In other words, there are points at which it is very clear that non-prejudiced objections to legal undertakings become common sense. For the mosque’s unflappable admirers, the current location and the current imam don’t court that tipping point. For most Americans, forever transformed by the deadly attack on our homeland, they eclipse it.

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A Profile in Cowardice

Roger Simon of Politico writes a column in which he says President Obama might well be a one-term president. Writing with intentional sarcasm, Simon is trying to make a serious point: Obama is brave, courageous, and not driven by polls. And the most recent, powerful evidence of this? Why, Obama’s statement on Friday, at an iftar dinner at the White House, when he said this: “As a citizen, and as president, I believe that Muslims have the same right to practice their religion as everyone else in this country. That includes the right to build a place of worship and a community center on private property in lower Manhattan in accordance with local laws and ordinances.”

According to Simon:

A recent CNN poll found that 68 percent of Americans do not want a mosque built close to ground zero. Which should mean: End of story. That’s all she wrote. Let’s move on to the next crisis. It appears, however, that at least on this occasion, Obama does not care what the polls say. … Maybe Obama is disconnected. After all, as a former professor of constitutional law, he actually knows what the Constitution says.

So Obama, because of his stand on Friday, is a Profile in Courage. But what Simon neglects to mention is what Obama said on Saturday, when he offered this “clarification”:

I was not commenting, and I will not comment, on the wisdom of making the decision to put a mosque there. I was commenting very specifically on the right people have that dates back to our founding.

It turns out Obama’s gutsy, brave, once-in-a-generation-act-of-political-courage lasted less than 24 hours. Having seen the criticism his comments on Friday elicited, Obama ran for the hills on Saturday. He’s now voting “present” on the mosque issue. Yet Mr. Simon takes none of that into account in his column. Did he not know about Obama’s backtracking? Or did it just not matter to him? Perhaps because it was so at odds with his heroic image of Obama, Simon simply could not process it.

For those who are enraptured by this president, these cannot be easy days. They are now at the point where, in order to praise him, they have to overlook reality. What we saw from Obama over the weekend was evidence of political weakness, of bowing to the polls, of jettisoning his position in the face of criticism.

It was, in fact, a profile in cowardice.

Roger Simon of Politico writes a column in which he says President Obama might well be a one-term president. Writing with intentional sarcasm, Simon is trying to make a serious point: Obama is brave, courageous, and not driven by polls. And the most recent, powerful evidence of this? Why, Obama’s statement on Friday, at an iftar dinner at the White House, when he said this: “As a citizen, and as president, I believe that Muslims have the same right to practice their religion as everyone else in this country. That includes the right to build a place of worship and a community center on private property in lower Manhattan in accordance with local laws and ordinances.”

According to Simon:

A recent CNN poll found that 68 percent of Americans do not want a mosque built close to ground zero. Which should mean: End of story. That’s all she wrote. Let’s move on to the next crisis. It appears, however, that at least on this occasion, Obama does not care what the polls say. … Maybe Obama is disconnected. After all, as a former professor of constitutional law, he actually knows what the Constitution says.

So Obama, because of his stand on Friday, is a Profile in Courage. But what Simon neglects to mention is what Obama said on Saturday, when he offered this “clarification”:

I was not commenting, and I will not comment, on the wisdom of making the decision to put a mosque there. I was commenting very specifically on the right people have that dates back to our founding.

It turns out Obama’s gutsy, brave, once-in-a-generation-act-of-political-courage lasted less than 24 hours. Having seen the criticism his comments on Friday elicited, Obama ran for the hills on Saturday. He’s now voting “present” on the mosque issue. Yet Mr. Simon takes none of that into account in his column. Did he not know about Obama’s backtracking? Or did it just not matter to him? Perhaps because it was so at odds with his heroic image of Obama, Simon simply could not process it.

For those who are enraptured by this president, these cannot be easy days. They are now at the point where, in order to praise him, they have to overlook reality. What we saw from Obama over the weekend was evidence of political weakness, of bowing to the polls, of jettisoning his position in the face of criticism.

It was, in fact, a profile in cowardice.

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The Supreme Court Isn’t the Harvard Law School Faculty

This report repeats the idea that Elena Kagan was nominated primarily to sway Justice Kennedy to the liberal side of those tricky 5-4 decisions. But if so, does this make any sense? That notion assumes that the Court operates like the Harvard Law School faculty, where nice words, dinner parties, back-slapping, and not revealing her own views served Kagan well. But that’s not how the Court operates:

Tom Goldstein, a Supreme Court lawyer at Akin Gump and author of the widely read SCOTUS Blog, says she has exhibited an “extraordinarily — almost artistically — careful” avoidance of public positions on any matters she might face as a Justice. “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade,” Goldstein wrote.

And even if she did have well-established positions, they’d be nothing compared to Kennedy’s. “Justice Kennedy has been on the bench for 40-some years now, including his time on the Ninth Circuit,” says the former clerk. “It’s particularly unlikely that he’s going to fall under the sway of a new judge who’s never been on the court.”

This convoluted argument suggests just how farcical the notion is that a pleasing personality is a satisfactory substitute for developed legal scholarship and brilliant writing (neither of which Kagan has yet demonstrated):

Kagan supporters point to the fact that she convinced some hard-line Republicans to vote for her when she was nominated to be Solicitor General, most notably Jon Kyl of Arizona, the behind-the-scenes GOP power on the Judiciary Committee. Though he’s unlikely to vote for her for the Supreme Court, her ability to win him over, which she did in the course of a lengthy conversation in his office during the nomination process, counts for something.

Huh? So getting Kyl to vote for her once — but not for the Supreme Court — shows she can lure Kennedy into the liberal camp on knotty issues of constitutional and statutory interpretation, and do so better than did Justice Stevens, a man who had been on the bench for decades? It’s a bit absurd. If the Obama team wanted a smart, accomplished jurist who has shown the ability to go toe-to-toe with and persuade conservative judges, Diane Wood might have been a more apt pick. But instead Obama went with someone much like himself, who, come to think of it, hasn’t really been able to persuade conservatives or moderates about the wisdom of his positions.

This report repeats the idea that Elena Kagan was nominated primarily to sway Justice Kennedy to the liberal side of those tricky 5-4 decisions. But if so, does this make any sense? That notion assumes that the Court operates like the Harvard Law School faculty, where nice words, dinner parties, back-slapping, and not revealing her own views served Kagan well. But that’s not how the Court operates:

Tom Goldstein, a Supreme Court lawyer at Akin Gump and author of the widely read SCOTUS Blog, says she has exhibited an “extraordinarily — almost artistically — careful” avoidance of public positions on any matters she might face as a Justice. “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade,” Goldstein wrote.

And even if she did have well-established positions, they’d be nothing compared to Kennedy’s. “Justice Kennedy has been on the bench for 40-some years now, including his time on the Ninth Circuit,” says the former clerk. “It’s particularly unlikely that he’s going to fall under the sway of a new judge who’s never been on the court.”

This convoluted argument suggests just how farcical the notion is that a pleasing personality is a satisfactory substitute for developed legal scholarship and brilliant writing (neither of which Kagan has yet demonstrated):

Kagan supporters point to the fact that she convinced some hard-line Republicans to vote for her when she was nominated to be Solicitor General, most notably Jon Kyl of Arizona, the behind-the-scenes GOP power on the Judiciary Committee. Though he’s unlikely to vote for her for the Supreme Court, her ability to win him over, which she did in the course of a lengthy conversation in his office during the nomination process, counts for something.

Huh? So getting Kyl to vote for her once — but not for the Supreme Court — shows she can lure Kennedy into the liberal camp on knotty issues of constitutional and statutory interpretation, and do so better than did Justice Stevens, a man who had been on the bench for decades? It’s a bit absurd. If the Obama team wanted a smart, accomplished jurist who has shown the ability to go toe-to-toe with and persuade conservative judges, Diane Wood might have been a more apt pick. But instead Obama went with someone much like himself, who, come to think of it, hasn’t really been able to persuade conservatives or moderates about the wisdom of his positions.

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Elena Kagan — Stealth Nominee?

Elena Kagan is the prohibitive favorite for the Supreme Court. She has made it through one confirmation hearing for her current post as solicitor general and possesses academic credentials, a reputation for collegiality with conservatives, and a limited paper trail. Moreover, she is the closest we have to a stealth candidate among the front-runners. As Tom Goldstein notes, “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.”

Casual observers assume that a dean of Harvard Law School and a domestic-policy aide in the Clinton administration must have a sizable body of work reflecting her legal views. But not so. Paul Campos has read all there is to read — and it’s not much:

Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago’s own faculty—and a short essay in the school’s law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)

Campos goes so far as to suggest that Kagan is a Harriet Miers type — minus the cronyism. He concludes:

Indeed, the most impressive thing about Kagan is that she seems to have a remarkable ability to ingratiate herself with influential people across the ideological spectrum. … As a private lawyer, Miers, after all, had a fairly good excuse for having no public views on the great legal issues of our day. For most of the past 20 years, Kagan’s job has been to both develop and publicize such views. That she has nevertheless managed to almost completely avoid doing so is rather extraordinary.

What to make of this? Well, if a Republican president were to select a person with such a skimpy written record, conservatives would be (and were with the Miers nomination) rightfully worried. But do the same concerns — ideological infidelity, intellectual mediocrity — really apply to Kagan? Let’s be honest, it works differently for liberals. Very few are tempted to moderate their views and slide rightward, while Republican-nominated jurists (David Souter, John Paul Stevens) have a history of “disappointing” their side. And while no one has claimed that Kagan has achieved greatness in legal scholarship, the assumption — rightly or not — is that the dean of one of the top law schools in the country must have some intellectual wattage. Nevertheless, liberal legal activists might have reason to be a bit nervous — after all, would a justice who lacks judicial chops be the best choice to sway Justice Kennedy on those all-important 5-to-4 decisions? Is she really the one who is going to go toe-to-toe with Justice Scalia? There is some risk there if Obama were to choose a lesser known quantity than an appellate judge such as Diane Wood.

Nevertheless, there are clues as to Kagan’s legal mindset. Indeed, one such clue is also her primary shortcoming. Stuart Taylor explains:

The one issue that could slow down Kagan’s confirmation is her impassioned effort as dean to bar military recruiting on campus to protest the law banning openly gay people from serving in the military, which she called “a moral injustice of the first order.”

Kagan carried this opposition to the point of joining a 2005 amicus brief whose strained interpretation of a law denying federal funding to institutions that discriminate against military recruiters would — the Supreme Court held in an 8-0 decision — have rendered the statute “largely meaningless.” This helps to explain the 31 Republican votes against confirming her as solicitor general.

Well, that might be enough to lose her a batch of GOP Senate votes, but would it derail her nomination? Probably not. And it might just give enough comfort to the left that Kagan is a “safe” pick for them.

Elena Kagan is the prohibitive favorite for the Supreme Court. She has made it through one confirmation hearing for her current post as solicitor general and possesses academic credentials, a reputation for collegiality with conservatives, and a limited paper trail. Moreover, she is the closest we have to a stealth candidate among the front-runners. As Tom Goldstein notes, “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.”

Casual observers assume that a dean of Harvard Law School and a domestic-policy aide in the Clinton administration must have a sizable body of work reflecting her legal views. But not so. Paul Campos has read all there is to read — and it’s not much:

Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago’s own faculty—and a short essay in the school’s law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)

Campos goes so far as to suggest that Kagan is a Harriet Miers type — minus the cronyism. He concludes:

Indeed, the most impressive thing about Kagan is that she seems to have a remarkable ability to ingratiate herself with influential people across the ideological spectrum. … As a private lawyer, Miers, after all, had a fairly good excuse for having no public views on the great legal issues of our day. For most of the past 20 years, Kagan’s job has been to both develop and publicize such views. That she has nevertheless managed to almost completely avoid doing so is rather extraordinary.

What to make of this? Well, if a Republican president were to select a person with such a skimpy written record, conservatives would be (and were with the Miers nomination) rightfully worried. But do the same concerns — ideological infidelity, intellectual mediocrity — really apply to Kagan? Let’s be honest, it works differently for liberals. Very few are tempted to moderate their views and slide rightward, while Republican-nominated jurists (David Souter, John Paul Stevens) have a history of “disappointing” their side. And while no one has claimed that Kagan has achieved greatness in legal scholarship, the assumption — rightly or not — is that the dean of one of the top law schools in the country must have some intellectual wattage. Nevertheless, liberal legal activists might have reason to be a bit nervous — after all, would a justice who lacks judicial chops be the best choice to sway Justice Kennedy on those all-important 5-to-4 decisions? Is she really the one who is going to go toe-to-toe with Justice Scalia? There is some risk there if Obama were to choose a lesser known quantity than an appellate judge such as Diane Wood.

Nevertheless, there are clues as to Kagan’s legal mindset. Indeed, one such clue is also her primary shortcoming. Stuart Taylor explains:

The one issue that could slow down Kagan’s confirmation is her impassioned effort as dean to bar military recruiting on campus to protest the law banning openly gay people from serving in the military, which she called “a moral injustice of the first order.”

Kagan carried this opposition to the point of joining a 2005 amicus brief whose strained interpretation of a law denying federal funding to institutions that discriminate against military recruiters would — the Supreme Court held in an 8-0 decision — have rendered the statute “largely meaningless.” This helps to explain the 31 Republican votes against confirming her as solicitor general.

Well, that might be enough to lose her a batch of GOP Senate votes, but would it derail her nomination? Probably not. And it might just give enough comfort to the left that Kagan is a “safe” pick for them.

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More on Yoo and Bybee

As I and others noted over the weekend, the final report by the Justice Department on John Yoo and Jay Bybee leaves one wondering how this kangaroo proceeding lasted as long as it did. How did the Office of Professional Responsibility get so far offtrack, and why was the advice of respected attorneys, including that of outgoing Attorney General Michael Mukasey, not heeded well over a year ago? Incompetence collided with bias, it seems.

As to the incompetence, Bill Burck and Dana Perino explain:

We don’t mean to be insulting, but the plain fact is that OPR is not, and has never been, equipped to second-guess OLC. The office’s role is a limited one focused on ethical violations; it is not staffed with experts on constitutional law or national security. It would be preposterous to rely on OPR’s judgment about hard questions of constitutional and statutory law over that of OLC or the Solicitor General’s Office. As Andy McCarthy has said, “having OPR grade the scholarship of OLC is like having the Double-A batting coach critique Derek Jeter’s swing.”

Quoting Yoo’s attorney Miguel Estrada, Burck and Perino get at the root of the problem: “It is probably a three-way tie between stupidity, rank incompetence, and partisan malignancy.” And given the malicious leaking of OPR’s work during the investigation, it is hard to escape the conclusion that is was only innocent incompetence at work.

The Wall Street Journal‘s editors name some names responsible for this travesty:

The rotten quality of the OPR efforts—and Mr. Margolis’s repudiation of them—raises real questions about the lawyers who produced this work. H. Marshall Jarrett, who supervised the first OPR draft, is a protégé of Mr. Holder who managed not to produce his draft report until the Bush Administration was preparing to leave office. After Mr. Mukasey “memorialized” his concerns, as his letter put it, the Jarrett draft was leaked without the Mukasey response. Mr. Holder reassigned Mr. Jarrett in April 2009 to lead the Executive Office for U.S. Attorneys, an arguably more powerful post. His OPR effort makes him unfit for such a job.

Mr. Holder replaced Mr. Jarrett at OPR with Mary Patrice Brown, who tried to salvage OPR’s original conclusions with a new but equally deficient argument. After abandoning OPR’s earlier specific allegations that Messrs. Yoo and Bybee had violated D.C. Rule of Professional Conduct 1.1 to provide competent representation and rule 2.1 to exercise independent legal judgment, Mr. Margolis writes, Ms. Brown’s final report “did not specify the rule or rules of professional conduct that were violated.”

Instead, she added consideration of a “best practices” memo and guiding principles. Mr. Margolis writes that these documents raise several concerns, not least that “neither of them existed at the time Yoo and Bybee worked at OLC.”

As the editors remind us, Brown is up for a federal judgeship. Or was, until this travesty of incompetence came to light.

The editors rightly note that Margolis seemed compelled at the very end of the report to throw in some gratuitous jabs at Yoo. (“This is a matter of opinion—akin to writing an op-ed piece—unrelated to the question of whether they behaved unethically, and it is precisely the kind of judgment that Mr. Margolis says earlier in the report that he will not render.”) But as inappropriate as those swipes may have been, let’s give some credit where credit is due. Margolis prevented a grave miscarriage of justice and in the process revealed how biased and incompetent his colleagues are. That is no easy task. The question remains as to what Eric Holder is going to do about those whose work has now been revealed to be so lacking in merit and so bereft of careful analysis. A bar referral? Well, at least a housecleaning seems to be in order.

As I and others noted over the weekend, the final report by the Justice Department on John Yoo and Jay Bybee leaves one wondering how this kangaroo proceeding lasted as long as it did. How did the Office of Professional Responsibility get so far offtrack, and why was the advice of respected attorneys, including that of outgoing Attorney General Michael Mukasey, not heeded well over a year ago? Incompetence collided with bias, it seems.

As to the incompetence, Bill Burck and Dana Perino explain:

We don’t mean to be insulting, but the plain fact is that OPR is not, and has never been, equipped to second-guess OLC. The office’s role is a limited one focused on ethical violations; it is not staffed with experts on constitutional law or national security. It would be preposterous to rely on OPR’s judgment about hard questions of constitutional and statutory law over that of OLC or the Solicitor General’s Office. As Andy McCarthy has said, “having OPR grade the scholarship of OLC is like having the Double-A batting coach critique Derek Jeter’s swing.”

Quoting Yoo’s attorney Miguel Estrada, Burck and Perino get at the root of the problem: “It is probably a three-way tie between stupidity, rank incompetence, and partisan malignancy.” And given the malicious leaking of OPR’s work during the investigation, it is hard to escape the conclusion that is was only innocent incompetence at work.

The Wall Street Journal‘s editors name some names responsible for this travesty:

The rotten quality of the OPR efforts—and Mr. Margolis’s repudiation of them—raises real questions about the lawyers who produced this work. H. Marshall Jarrett, who supervised the first OPR draft, is a protégé of Mr. Holder who managed not to produce his draft report until the Bush Administration was preparing to leave office. After Mr. Mukasey “memorialized” his concerns, as his letter put it, the Jarrett draft was leaked without the Mukasey response. Mr. Holder reassigned Mr. Jarrett in April 2009 to lead the Executive Office for U.S. Attorneys, an arguably more powerful post. His OPR effort makes him unfit for such a job.

Mr. Holder replaced Mr. Jarrett at OPR with Mary Patrice Brown, who tried to salvage OPR’s original conclusions with a new but equally deficient argument. After abandoning OPR’s earlier specific allegations that Messrs. Yoo and Bybee had violated D.C. Rule of Professional Conduct 1.1 to provide competent representation and rule 2.1 to exercise independent legal judgment, Mr. Margolis writes, Ms. Brown’s final report “did not specify the rule or rules of professional conduct that were violated.”

Instead, she added consideration of a “best practices” memo and guiding principles. Mr. Margolis writes that these documents raise several concerns, not least that “neither of them existed at the time Yoo and Bybee worked at OLC.”

As the editors remind us, Brown is up for a federal judgeship. Or was, until this travesty of incompetence came to light.

The editors rightly note that Margolis seemed compelled at the very end of the report to throw in some gratuitous jabs at Yoo. (“This is a matter of opinion—akin to writing an op-ed piece—unrelated to the question of whether they behaved unethically, and it is precisely the kind of judgment that Mr. Margolis says earlier in the report that he will not render.”) But as inappropriate as those swipes may have been, let’s give some credit where credit is due. Margolis prevented a grave miscarriage of justice and in the process revealed how biased and incompetent his colleagues are. That is no easy task. The question remains as to what Eric Holder is going to do about those whose work has now been revealed to be so lacking in merit and so bereft of careful analysis. A bar referral? Well, at least a housecleaning seems to be in order.

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Re: Yoo and Bybee Cleared

More reviews are coming in for the work of the OPR lawyers who doggedly pursued John Yoo and Jay Bybee for two years. A 14-page letter dated January 19, 2009  is available, authored by Former Attorney General Michael Mukasey and his deputy Mark Filip and setting forth many of the identical criticisms that caused David Margolis to reject, finally, OPR’s work.

I also heard from Professor Ron Rotunda, an expert in constitutional law and legal ethics, with whom the Justice Department consulted during the OPR investigation. He was blunt: “I saw the ethics charges that the OPR staff made.  The materials are now publicly available. I think it is the OPR staff who should be investigated, for their shoddy, leak-prone, result-oriented, and — dare we say it — incompetent investigation.”

This unmasking of OPR’s incompetence and bias is not only important in so far as it completely vindicates Yoo and Bybee, though it certainly does that. It is also important because OPR remains a critical entity within the Justice Department. It is this group — whose unprofessionalism and bias have now been amply demonstrated at Yoo and Bybee’s expense — which, for example, is charged with investigation of the New Black Panther Party scandal. Do we suppose they will perform any more credibly in that inquiry? And recall as well that the head of OPR, Mary Patrice Brown, is reportedly under consideration for appointment to the federal bench. Well, I, for one, would much enjoy that confirmation hearing.

But more seriously, Attorney General Eric Holder has an obligation now to clean house and deal with those who leaked during the investigation in violation of their professional obligations. OPR has been entirely discredited and the stench will not dissipate until Holder takes appropriate action to — what is the phrase? — ah, yes, depoliticize and restore the credibility of his Department.

More reviews are coming in for the work of the OPR lawyers who doggedly pursued John Yoo and Jay Bybee for two years. A 14-page letter dated January 19, 2009  is available, authored by Former Attorney General Michael Mukasey and his deputy Mark Filip and setting forth many of the identical criticisms that caused David Margolis to reject, finally, OPR’s work.

I also heard from Professor Ron Rotunda, an expert in constitutional law and legal ethics, with whom the Justice Department consulted during the OPR investigation. He was blunt: “I saw the ethics charges that the OPR staff made.  The materials are now publicly available. I think it is the OPR staff who should be investigated, for their shoddy, leak-prone, result-oriented, and — dare we say it — incompetent investigation.”

This unmasking of OPR’s incompetence and bias is not only important in so far as it completely vindicates Yoo and Bybee, though it certainly does that. It is also important because OPR remains a critical entity within the Justice Department. It is this group — whose unprofessionalism and bias have now been amply demonstrated at Yoo and Bybee’s expense — which, for example, is charged with investigation of the New Black Panther Party scandal. Do we suppose they will perform any more credibly in that inquiry? And recall as well that the head of OPR, Mary Patrice Brown, is reportedly under consideration for appointment to the federal bench. Well, I, for one, would much enjoy that confirmation hearing.

But more seriously, Attorney General Eric Holder has an obligation now to clean house and deal with those who leaked during the investigation in violation of their professional obligations. OPR has been entirely discredited and the stench will not dissipate until Holder takes appropriate action to — what is the phrase? — ah, yes, depoliticize and restore the credibility of his Department.

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And This Isn’t a Tribute to Our Legal System

One of the sillier arguments that the Obami have made in favor of a KSM civilian trial is that it will impress others (whom exactly it will impress is less than clear) with the wonders of our judicial system. There are plenty of reasons why this is a perfectly awful argument. For starters, our judicial system is a system of constitutional law and statute — both of which permit military tribunals for trying enemy combatants. So if anything, the Obami insistence on a civilian trial conveys the wrong message — namely, that for the sake of  political posturing the administration can make up rules as they go along.

But there is another important reason to doubt the “wonders of the judicial system” argument. Bill Burck and Dana Perino make the case that the Obami are bollixing up the KSM trial by their understandable but highly prejudicial statements:

Attorney General Holder, the nation’s top law-enforcement officer, has said KSM is guilty and should die. Check. The president has said more or less the same. Check. The entire political leadership of New York has announced that they cannot support trying him in New York City because of the disruption to the city and the sheer danger of holding KSM in downtown Manhattan. Check. The chair of the Senate Intelligence Committee, California Democrat Dianne Feinstein, has disclosed that the threat environment is such that trying KSM in New York City is just too dangerous. Check. The president’s chief spokesperson has said that no matter where KSM is tried, he “is going to meet his maker.” Check. It’s difficult to imagine anyplace in the United States that would not be prejudiced by these types of statements.

So it seems that the our system of criminal justice isn’t well suited and wasn’t designed to try enemy combatants. Turning terrorists over to the courts both harms our national security and sullies the court system, which is properly reserved for ordinary criminals, for whom the presumption of innocence is fundamental and respected by elected officials. In short, civilian trials of terrorists is a terrible idea, unworkable, politically untenable, and harmful to the legal system the Obami pretend to tout.

One of the sillier arguments that the Obami have made in favor of a KSM civilian trial is that it will impress others (whom exactly it will impress is less than clear) with the wonders of our judicial system. There are plenty of reasons why this is a perfectly awful argument. For starters, our judicial system is a system of constitutional law and statute — both of which permit military tribunals for trying enemy combatants. So if anything, the Obami insistence on a civilian trial conveys the wrong message — namely, that for the sake of  political posturing the administration can make up rules as they go along.

But there is another important reason to doubt the “wonders of the judicial system” argument. Bill Burck and Dana Perino make the case that the Obami are bollixing up the KSM trial by their understandable but highly prejudicial statements:

Attorney General Holder, the nation’s top law-enforcement officer, has said KSM is guilty and should die. Check. The president has said more or less the same. Check. The entire political leadership of New York has announced that they cannot support trying him in New York City because of the disruption to the city and the sheer danger of holding KSM in downtown Manhattan. Check. The chair of the Senate Intelligence Committee, California Democrat Dianne Feinstein, has disclosed that the threat environment is such that trying KSM in New York City is just too dangerous. Check. The president’s chief spokesperson has said that no matter where KSM is tried, he “is going to meet his maker.” Check. It’s difficult to imagine anyplace in the United States that would not be prejudiced by these types of statements.

So it seems that the our system of criminal justice isn’t well suited and wasn’t designed to try enemy combatants. Turning terrorists over to the courts both harms our national security and sullies the court system, which is properly reserved for ordinary criminals, for whom the presumption of innocence is fundamental and respected by elected officials. In short, civilian trials of terrorists is a terrible idea, unworkable, politically untenable, and harmful to the legal system the Obami pretend to tout.

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Obama Demagogues the Court’s Ruling

The president issued a written statement yesterday on the Supreme Court’s ruling striking down most of the McCain-Feingold campaign statute. It read:

With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington–while undermining the influence of average Americans who make small contributions to support their preferred candidates. That’s why I am instructing my Administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.

This is as noxious a statement concerning the Supreme Court that has, in my memory, ever been issued by the White House. Let’s count the ways. First, the president — who tells us he is a serious constitutional scholar — offers not a single word of substantive criticism about the Court’s analysis. He treats the Court — as most liberals do, frankly — as a policymaking body. In this case, he doesn’t like the outcome and blasts away at the result, transparently using the Court to regain his populist footing with the public.

Second, what in the world is a bipartisan response to a First Amendment ruling? He’s going to amend the Constitution? He’s going to pack the Court? The lack of acknowledgment that this is a principle of constitutional law, one at the foundation of our democracy, is jaw-dropping. You’ll notice what is not in the president’s statement — “First Amendment’ or “Constitution.” There isn’t a legislative “fix” to the First Amendment.

And finally, let’s just remember that liberals for years inveighed against any public figure who dared criticize a court ruling. They were doing damage to the political system, lessening respect for the rule of law and even encouraging violence against judges, they finger-wagged. Well, it seems the rules have changed. And from a law professor yet.

The president has many problems — a failing agenda, a public that has tuned him out, and a staff that serves him poorly. But at the root of much of what ails him is arrogance. He seems not to appreciate or frankly care what the public thinks. He deems criticism illegitimate and attributes bad motives to critics. His lawyers have invented new legal privileges and excuses to avoid scrutiny. He has populated his administration with unaccountable czars. And now he seems not to fully appreciate or respect a binding ruling of the Court. His politicization of a Court ruling for his own PR purposes and his utter lack of respect for the Court in its capacity as a check against, among other things, him is startling. And for those who hold dear notions of limited government and the protection of core political rights, this should be disturbing.

The president issued a written statement yesterday on the Supreme Court’s ruling striking down most of the McCain-Feingold campaign statute. It read:

With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington–while undermining the influence of average Americans who make small contributions to support their preferred candidates. That’s why I am instructing my Administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.

This is as noxious a statement concerning the Supreme Court that has, in my memory, ever been issued by the White House. Let’s count the ways. First, the president — who tells us he is a serious constitutional scholar — offers not a single word of substantive criticism about the Court’s analysis. He treats the Court — as most liberals do, frankly — as a policymaking body. In this case, he doesn’t like the outcome and blasts away at the result, transparently using the Court to regain his populist footing with the public.

Second, what in the world is a bipartisan response to a First Amendment ruling? He’s going to amend the Constitution? He’s going to pack the Court? The lack of acknowledgment that this is a principle of constitutional law, one at the foundation of our democracy, is jaw-dropping. You’ll notice what is not in the president’s statement — “First Amendment’ or “Constitution.” There isn’t a legislative “fix” to the First Amendment.

And finally, let’s just remember that liberals for years inveighed against any public figure who dared criticize a court ruling. They were doing damage to the political system, lessening respect for the rule of law and even encouraging violence against judges, they finger-wagged. Well, it seems the rules have changed. And from a law professor yet.

The president has many problems — a failing agenda, a public that has tuned him out, and a staff that serves him poorly. But at the root of much of what ails him is arrogance. He seems not to appreciate or frankly care what the public thinks. He deems criticism illegitimate and attributes bad motives to critics. His lawyers have invented new legal privileges and excuses to avoid scrutiny. He has populated his administration with unaccountable czars. And now he seems not to fully appreciate or respect a binding ruling of the Court. His politicization of a Court ruling for his own PR purposes and his utter lack of respect for the Court in its capacity as a check against, among other things, him is startling. And for those who hold dear notions of limited government and the protection of core political rights, this should be disturbing.

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D.C. Gun Ban

For the first time in 70 years, the U.S. Supreme Court heard oral argument in a case directly addressing the meaning of the Second Amendment. At issue in D.C v. Heller is the D.C. handgun ban struck down last year by the D.C. Circuit Court. Everyone will read the tea leaves from oral arguments in trying to gauge which way the Court will rule. For Second Amendment advocates this is the test case of a lifetime.

But, a larger point should not be lost. It is a measure of how far we have come in jurisprudential philosophy in the last generation that both sides and the Court itself is focused on a singular question: what do the words of the Second Amendment mean? Neither side is asking : what do the current standards of moral and ethical thinking tell us about the wisdom of gun ownership? The justices are not grilling the lawyers on the latest criminology studies to decide whether a gun ban is a “good idea.”  That is a tremendous victory in and of itself for judicial originalism, (the notion that judges determine the meaning of statutes and the Constitution, while elected officials decide policy.) Originalism has been derided and dismissed by liberal academics and practionners for years. Now in a high profile setting where a relatively unexplored area of constitutional law is at issue, originalism reigns supreme. For legal conservatives, that is what the last generation of legal scholarship and judicial nomination fights has been about. And if you ultimately believe in self-government- the proposition that citizens and elected officials decide public policy – this is a very good thing.

For the first time in 70 years, the U.S. Supreme Court heard oral argument in a case directly addressing the meaning of the Second Amendment. At issue in D.C v. Heller is the D.C. handgun ban struck down last year by the D.C. Circuit Court. Everyone will read the tea leaves from oral arguments in trying to gauge which way the Court will rule. For Second Amendment advocates this is the test case of a lifetime.

But, a larger point should not be lost. It is a measure of how far we have come in jurisprudential philosophy in the last generation that both sides and the Court itself is focused on a singular question: what do the words of the Second Amendment mean? Neither side is asking : what do the current standards of moral and ethical thinking tell us about the wisdom of gun ownership? The justices are not grilling the lawyers on the latest criminology studies to decide whether a gun ban is a “good idea.”  That is a tremendous victory in and of itself for judicial originalism, (the notion that judges determine the meaning of statutes and the Constitution, while elected officials decide policy.) Originalism has been derided and dismissed by liberal academics and practionners for years. Now in a high profile setting where a relatively unexplored area of constitutional law is at issue, originalism reigns supreme. For legal conservatives, that is what the last generation of legal scholarship and judicial nomination fights has been about. And if you ultimately believe in self-government- the proposition that citizens and elected officials decide public policy – this is a very good thing.

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In Defense of Samantha Power

I have no idea what Barack Obama thinks about Israel and the Middle East. I’m not sure he does either. It’s not something he would have given much thought to during the course of a career focused primarily on constitutional law and Chicago city politics. As Ralph Nader noted on “Meet the Press,” he seems to have been “pro-Palestinian” before he was pro-Israeli. But to label him anti-Israeli at heart based on the views of his foreign policy adviser Samantha Power is wrong.

My fellow CONTENTIONS blogger Noah Pollak claims Power “will advise” Obama to “repudiate America’s greatest ally in the Middle East” (i.e. Israel) while “appeasing its greatest enemy” (i.e. the Palestinians). I have read through all the evidence he has collected here, and I remain unconvinced.

Power can explain her views better than I can, but it seems to me that all Pollak has are some statements from her supporting an Israeli-Palestinian peace process and a dialogue with Iran. I am skeptical about the prospects of either initiative succeeding, but to be in favor of such policies hardly involves repudiating Israel.

Pollack also quotes her as somehow being in favor of imposing a settlement on the parties, presumably with an outside peacekeeping force. I think is a pipe dream because no outside nation will put its troops on the line to stop Palestinian terrorism, but again it’s hardly an anti-Israeli position. In fact ,many Israelis would favor the deployment of, say, a NATO force as part of a final settlement with the Palestinians.

I’ve known Power for six years and have never heard her say anything that I would construe as anti-Israel. In fact, at a December 2006 forum at Harvard’s Kennedy School at which we were both panelists, she rather forcefully dismissed a claim by a Jewish anti-Zionist in the audience who tried to equate Israeli policy with South African apartheid—a favorite trope of the hard left.

I don’t agree with Power on everything. In particular, I am astounded that someone who has campaigned so eloquently and rightly to stop genocide would advocate a troop pullout from Iraq that could very well result in a genocide. But I’ve also found Power to be one of the more reasonable, sane, and centrist foreign policy thinkers on the Democratic side. Her award-winning book A Problem from Hell: America in the Age of Genocide could have been written by a neocon.

I have no idea what Barack Obama thinks about Israel and the Middle East. I’m not sure he does either. It’s not something he would have given much thought to during the course of a career focused primarily on constitutional law and Chicago city politics. As Ralph Nader noted on “Meet the Press,” he seems to have been “pro-Palestinian” before he was pro-Israeli. But to label him anti-Israeli at heart based on the views of his foreign policy adviser Samantha Power is wrong.

My fellow CONTENTIONS blogger Noah Pollak claims Power “will advise” Obama to “repudiate America’s greatest ally in the Middle East” (i.e. Israel) while “appeasing its greatest enemy” (i.e. the Palestinians). I have read through all the evidence he has collected here, and I remain unconvinced.

Power can explain her views better than I can, but it seems to me that all Pollak has are some statements from her supporting an Israeli-Palestinian peace process and a dialogue with Iran. I am skeptical about the prospects of either initiative succeeding, but to be in favor of such policies hardly involves repudiating Israel.

Pollack also quotes her as somehow being in favor of imposing a settlement on the parties, presumably with an outside peacekeeping force. I think is a pipe dream because no outside nation will put its troops on the line to stop Palestinian terrorism, but again it’s hardly an anti-Israeli position. In fact ,many Israelis would favor the deployment of, say, a NATO force as part of a final settlement with the Palestinians.

I’ve known Power for six years and have never heard her say anything that I would construe as anti-Israel. In fact, at a December 2006 forum at Harvard’s Kennedy School at which we were both panelists, she rather forcefully dismissed a claim by a Jewish anti-Zionist in the audience who tried to equate Israeli policy with South African apartheid—a favorite trope of the hard left.

I don’t agree with Power on everything. In particular, I am astounded that someone who has campaigned so eloquently and rightly to stop genocide would advocate a troop pullout from Iraq that could very well result in a genocide. But I’ve also found Power to be one of the more reasonable, sane, and centrist foreign policy thinkers on the Democratic side. Her award-winning book A Problem from Hell: America in the Age of Genocide could have been written by a neocon.

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A Wolf in Wolf’s Clothing

Anti-Americanism is rife in the Middle East and in Europe, and even in the land of our mother tongue, Great Britain, it has grown remarkably intense. Why?

Undoubtedly, the Bush administration must get some of the blame; it has pursued policies that are unpopular among Middle Easterners and Europeans. But there are other sources, too, like Americans who go abroad to peddle the intoxicating—and toxic—elixir.

The latest entry in this import-export business is Naomi Wolf, not long ago an adviser to Vice President Al Gore. In the pages of the Guardian, she has published an essay under the title Fascist America, in 10 Easy Steps. Though lengthy, it is worth summarizing in a few words.

Wolf tries to show that our freedoms and the checks and balances that restrain our government are being “systematically dismantled.” Beneath our noses, she writes, “George Bush and his administration are using time-tested tactics to close down an open society.”

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Anti-Americanism is rife in the Middle East and in Europe, and even in the land of our mother tongue, Great Britain, it has grown remarkably intense. Why?

Undoubtedly, the Bush administration must get some of the blame; it has pursued policies that are unpopular among Middle Easterners and Europeans. But there are other sources, too, like Americans who go abroad to peddle the intoxicating—and toxic—elixir.

The latest entry in this import-export business is Naomi Wolf, not long ago an adviser to Vice President Al Gore. In the pages of the Guardian, she has published an essay under the title Fascist America, in 10 Easy Steps. Though lengthy, it is worth summarizing in a few words.

Wolf tries to show that our freedoms and the checks and balances that restrain our government are being “systematically dismantled.” Beneath our noses, she writes, “George Bush and his administration are using time-tested tactics to close down an open society.”

Their first action in this campaign was to use the attacks of September 11 to create an image of “a terrifying threat—hydra-like, secretive, [and] evil.” What the U.S. has done with al Qaeda, she says, is a time-tested technique, one that, “like Hitler’s invocation of a Communist threat to the nation’s security, [can] be based on actual events.” An instance of this is the way the Nazis used the “Reichstag fire of February 1933” to gain “passage of the Enabling Act, which replaced constitutional law with an open-ended state of emergency.”

Never mind that the Reichstag fire was set by the Nazis themselves. Wolf continues on in this vein, drawing comparisons between the U.S. government and the Nazis with abandon. A few juxtapositions of America to the Soviet Gulag are also tossed in. Concentration camps like Guantanamo, she says, “tend to metastasize,” starting small and growing uncontrollably large. Indeed, the procedures set up by the Pentagon to try terrorists are things that tend to crop up “early on in a fascist shift;” it is not an accident that both “Mussolini and Stalin set up such tribunals.”

Of course, all this is Wolf’s fantasy, and like any satisfying fantasy it has, along with its obvious villains, a set of heroes. In our dire situation, Wolf informs readers of the Guardian, “only a handful of patriots are trying to hold back the tide of tyranny for the rest of us.”

Along with herself, Wolf names the ACLU and other left-wing advocacy groups. These saviors need to be joined by decent Europeans to reverse America’s drift into fascism. If action does not come in time, we will all discover “what a U.S. unrestrained by real democracy at home can mean for the rest of the world.”

How many readers of the Guardian and other Europeans actually believe any of this drivel is hard to say, but some fraction must. Presumably the editors who published it regard it as meritorious. But should Americans accept such insults with equanimity? What choice do we have, except to point out that Naomi Wolf’s case demonstrates once again that the pursuit of writerly fame is a tough business and often requires one to say the most outlandish things? Even so, it would be difficult to imagine anything more reprehensible than Wolf’s latest foray. Her journey from The Beauty Myth to Promiscuities to The Porn Myth to Fascist America, in 10 Easy Steps has been a long way down, and it did not exactly begin in a high place.

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