Topic: law

Justice Scalia’s Place in Judicial History

Peter Wehner 07.30.2012 - 10:25 AM

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

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

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

The Law as a Moral Teacher

Peter Wehner 07.18.2012 - 5:01 PM

Earlier this week, I spoke to a group of young professionals, most of whom are conservative. And one of the conversations I had was with a person who was asking me about the link between culture and politics, arguing—as others I know have—that culture is “upstream,” and therefore in many respects more important, than politics.

This question reminded me of a passage from the late Alexander Bickel’s book The Morality of Consent, which deals in part with the competing traditions of Locke-Rousseau and Edmund Burke in Western thought and in American constitutionalism and political process:

The unexamined life, said Socrates, is not worth living. Nor is it bearable. To acknowledge no values at all is to deny a difference between ourselves and other particles that tumble in space. The irreducible value, though not the exclusive one, is the idea of law. Law is more than just another opinion; not because it embodies all right values, or because the values it does embody tend from time to time to reflect those of a majority or plurality, but because it is the value of values. Law is the principal institution through which a society can assert its values.

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Hillary in SC

Peter Wehner 01.22.2008 - 11:22 AM

Most of the conversation about last night’s Democratic debate in South Carolina is about how strikingly personal and heated the exchanges were between Senators Clinton and Obama. It appears as if having to deal with the flood of false charges made by Bill Clinton is starting to agitate the young Senator from Illinois. Bill Clinton is an icon among many Democrats; he is also a promiscuous liar. Barack Obama is having to deal with both things.

But last night there were also two important moments on substantive issues. The first came when Joe Johns of CNN prefaced a question to Hillary Clinton this way: “Last week, U.S. military commanders on the ground in Iraq said that Baghdad is now 75 percent secured. There’s also important signs of political progress, including de-Baathification, which was basically long awaited. That, of course, was a big benchmark. Last week, you said the next president will, quote, ‘have a war to end in Iraq.’ In light of the new military and political progress on the ground there in Iraq, are you looking to end this war or win it?

Senator Clinton responded this way: “I’m looking to bring our troops home, starting within 60 days of my becoming president…”

This is about as clear as things can get. Hillary Clinton, when asked if she is looking to win the war, answered that she is looking to bring the troops home. She obviously believes victory is impossible and that her role as commander-in-chief would be to navigate an American loss in Iraq as quickly as possible. Given the security and political progress we’ve seen there in the last year and the consequences of losing in Iraq, her position is not only unwise; it is reckless. What is it that would drive Mrs. Clinton to delude herself into believing the United States has irredeemably lost a war in which we’re making remarkable and empirically demonstrable progress? And what additional evidence does the nation need that leading Democrats are invested in a narrative of defeat in Iraq – and they will stick with it regardless of the progress we make? This, in turn, gives rise to a third question: Will the American people elect a person for President who has an ideological stake in seeing America lose this war, which is itself part of an epic struggle against militant Islam?

Huckabee’s Further Flip-Flopping

Peter Wehner 01.16.2008 - 1:07 PM

According to The Hill,

Republican presidential candidate Mike Huckabee has reversed his position on a federal ban aimed at workplace smoking and now believes the issue should be addressed by state and local governments. The about-face is apparent in a Huckabee campaign statement, sent to The Hill Tuesday evening in response to questions about the smoking ban proposal. It clashes with the stance Huckabee has taken during his race for the White House and with his record as governor of Arkansas, when he signed into law a measure prohibiting smoking in most indoor public places. At an August 2007 forum on cancer hosted by cyclist and activist Lance Armstrong and moderated by MSNBC host Chris Matthews, Huckabee said he supported a federal smoking ban. “If you are president in 2009 and Congress brings you a bill to outlaw smoking nationwide in public places, would you sign it?” Matthews asked. “I would, certainly would. In fact, I would, just like I did as governor of Arkansas, I think there should be no smoking in any indoor area where people have to work,” Huckabee responded, triggering applause from the crowd.

This comes in the aftermath of Huckabee’s head-snapping change on immigration. Only a few weeks after he lectured the other candidates about the virtues of providing student loans to children of illegal immigrants, he proudly accepted the endorsement of Jim Gilchrist, the founder of the Minuteman Project, a group fiercely critical of illegal immigrants. Huckabee then adapted an immigration plan that is very much at odds with his past position.

It also comes in the wake of Huckabee’s declaration that his conscience would not allow him to run advertisements critical of Mitt Romney in Iowa—a declaration, it’s worth pointing out, he made at a press conference in which he revealed to reporters the ad he refused to run, thereby ensuring it would get widespread attention. But Huckabee’s conscience seems to have gone on sabbatical the other day, when he responded to Fred Thompson’s substantive criticisms of his record this way: “Fred Thompson talks about putting America first, and yet he’s the one who is a registered foreign agent, lobbied for foreign countries, was in a law firm that did lobbying work for Libya. I certainly wouldn’t put my name on something like that.”

Such things might be dismissed as par for the political course, except that Huckabee, who once favored quarantining AIDS patients but now denies it, has made a virtue out of his supposed steadfastness. “You are not going to find moments on YouTube of me saying something different about the sanctity of life today than I said ten years ago, ten minutes ago, or fifty years ago,” Huckabee has said, referring to footage of Governor Romney declaring his support for abortion rights, a position he later changed. “You are not going to find something in YouTube where I said something completely different about gun ownership and the second amendment than I did last week, ten weeks ago, ten years go.”

Those words seem far less compelling than they once did. What we are finding is that Huckabee, who has long believed in religious conversions, appears to have a new-found affinity for political ones.

Bookshelf

Terry Teachout 08.22.2007 - 1:31 PM

• I spent the past month staying in a string of New England country inns, most of which were of the sort that have libraries—of a sort. These moldering collections typically consist of Reader’s Digest Condensed Books (remember them?) and the best sellers of yesteryear, lightly sprinkled with the odd novelty. On occasion the novelties can be quite odd indeed. I passed a pleasant evening reading the memoirs of Lowell Thomas (remember him?) as I sat by the Atlantic Ocean a couple of weeks ago, and the very next night I stumbled across a copy of Karl Marx’s ‘Capital’ in Lithographs, a 1934 volume abridged and illustrated by Hugo Gellert, a long-forgotten artist whose earnest prose breathes the air of other spheres:

But out of the East rises a new Prometheus. And all the Gods in the World cannot chain him! The great disciple of Karl Marx, Lenin, led the Russian workers and peasants who created the Union of Socialist Soviet Republics. And these workers and peasants became the Masters of their own destiny. The Young Giant with his mighty hands builds the future of mankind and bright lights flare up in his wake . . . .

More often, though, I contented myself with mysteries and thrillers of varying vintages, the oldest of which was John le Carré’s The Spy Who Came In from the Cold, published in 1963, mere months before the assassination of John F. Kennedy robbed a generation of Americans of their dewy-eyed innocence, blah blah blah. Not that the pseudonymous author of The Spy Who Came In from the Cold had much innocence of which to be robbed, judging by the book’s denouement, which hinges on the complete and final disillusion of its grubby, self-pitying anti-hero:

What do you think spies are: priests, saints and martyrs? They’re a squalid procession of vain fools, traitors too, yes; pansies, sadists and drunkards, people who play cowboys and Indians to brighten their rotten lives.

As it happens, I’d never read a word of le Carré, and I was fascinated to find that he appears to be the man who introduced moral equivalence to modern espionage fiction. (Actually, Somerset Maugham beat him to the punch four decades earlier with Ashenden, but that book’s eponymous secret agent is not so much disillusioned as indifferent.) In The Spy Who Came In from the Cold, the Brits and Russians are interchangeably unscrupulous and cynical, and it is taken for granted that neither side deserves to prevail in the “long twilight struggle” proclaimed a scant two years earlier by the idealistic speechwriters of the soon-to-be-martyred architect of the New Frontier. It says something noteworthy about the emerging ethos of the Sixties that such a book was soon to become one of its emblematic literary successes.

Our Unshakeable September 10th Mentality

Gabriel Schoenfeld 05.21.2007 - 10:16 AM

Suppose a CIA officer stationed in Madrid identifies an al-Qaeda operative by the name, let’s say, of Jihad Jihadi, and observes him talking on a cellphone. Using tradecraft taught on the Farm—the agency training camp back in Virginia—the CIA officer skillfully manages to find out the cellphone’s number and then puts in a request to the National Security Agency, the U.S. government’s signals-intelligence arm, to scoop up all conversations from the phone and have them translated. Can it be lawfully done?

Even if it turns out that the number Mr. Jihadi is telephoning belongs to a man named, say, Osama Fatwa, who is a pupil in a flight school in Florida where he is studying how to fly 747′s but not to land them, and even though Mr. Jihadi is located on foreign soil, the NSA might nonetheless be compelled to decline the CIA request.

Michael McConnell, the Director of National Intelligence, explains in an op-ed in today’s Washington Post:

Many Americans would be surprised at just what the current law requires. To state the facts plainly: In a significant number of cases, our intelligence agencies must obtain a court order to monitor the communications of foreigners suspected of terrorist activity who are physically located in foreign countries.

Hillary’s Time Tunnel, Episode 3

Gabriel Schoenfeld 05.15.2007 - 11:33 AM

Can one go back into the past and alter the course of history? The Hillary Clinton for President Exploratory Committee has released its own remake of Hillary’s favorite show, The Time Tunnel. Starring Bill Clinton, it is now available here on YouTube.

In this latest episode—click here for episode one, and here for episode two—Bill Clinton enters the Time Tunnel and alters key happenings in Hillary’s life and career, long before she became a United States Senator and long before he became President.

The drama opens with Bill journeying across his own memories to the moment he met Hillary thirty-five years ago. We see her progress from law school to a career in public service—working for the Children’s Defense Fund and then the House Judiciary Committee. Foreshadowing events that would occur decades later, we then see Hillary following Bill to Arkansas as he became a devoted “public servant” while she taught in the local law school and set up a legal-aid clinic for poor people.

Suspense builds as history takes an astonishing turn in a direction starkly different from the way things happened the first time around. Thanks to the Time Tunnel, Hillary’s years working within the Rose law firm in Little Rock are erased. In an unexpected turn of events, her close friend and law partner Vincent Foster will never come to take his own life; her other close friend and law partner Webster Hubbell will never become a ranking official in the Justice Department and then a convicted felon. Hillary does not join them both in litigating against low-income consumers in a utility-rate case. Hubbell does not later recall, as he would in his memoirs, that “instead of defending poor people and righting wrongs, we found ourselves squarely on the side of corporate greed against the little people.” Read More

Al Gore’s Hypothetical Candidacy

Daniel Casse 02.26.2007 - 4:07 PM

Al Gore’s Oscar was as predictable as the thunderous ovations he received at the Academy Awards last night. But it was also a reminder that there is nothing Democrats love more than a politician who isn’t actually running for President. Ever since liberals began mythologizing JFK, the party’s nominees invariably fail to measure up. It’s as if any politician who has the guts to enter the arena and dirty his hands immediately loses “purity,” and faces a cynical column from Joe Klein. As a result, come primary season, the Democratic chattering class always falls in love with a hypothetical candidate: Mario Cuomo, John F. Kennedy, Jr., Colin Powell, The West Wing’s Josiah Bartlett.
This is the real meaning behind last week’s Hillary-Obama feud. Hillary is the most successful fundraiser in the party’s history. Her name is known to 100 percent of voters—something that no Democrat has ever achieved this early in a presidential campaign. Yet no one should be surprised, now that she is in reach of becoming the party’s nominee, that the same political and financial backers who cheered her during her White House days are racing to tear her down.

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