Commentary Magazine


Topic: Ruth Bader Ginsburg

Reading Tea Leaves on ObamaCare

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

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

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

Read More

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

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

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

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

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

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

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

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

Read Less

Ruth Bader Ginsburg and Barack Obama v. the Founders

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

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

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

Read More

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

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

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

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

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

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

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

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

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

 

Read Less

RE: Why Pollard’s Release Is Unlikely Right Now

Alana, one of the reasons you suggest for the improbability of Jonathan Pollard’s release is the public nature of the campaign to free him, since such a prisoner release would typically be done with arguments behind closed doors.

But arguably, a public debate is the only way in which a Pollard release would become proper, because public discussion is necessary before such a step occurs. The whole world is watching, so to speak.

In an editorial today entitled “Netanyahu’s Plea for Pollard, the New York Sun provides a useful addition to the public debate, focusing on a “magnificent dissent” by Judge Stephen Williams in the 1992 case in which the Court of Appeals rejected Pollard’s plea for a new sentencing hearing:

It happens that we don’t think a life sentence is too long a punishment for conviction of secretly passing classified information to a foreign government, even, in serious cases, if conviction is for only one count, as it was in the case of Pollard. … But it also happens that the sentence meted out to Pollard was vastly disproportionate to sentences handed down against other spies, including some who spied not for a friend of America, which is what Pollard did, but for countries that could be expected to use the fruits of spying in actions against us, like the Soviet Union or communist China.

… [Judge Williams] was one of three judges who heard Pollard’s plea for a new sentencing hearing. The two other judges on the circuit panel, Laurence Silberman and Ruth Bader Ginsburg, sided against Pollard in a highly technical opinion. Judge Williams’s dissent accused the government of having broken both the spirit and, in one respect, even the letter of the binding agreement under which it had obtained Pollard’s guilty plea.

The Sun covers the arguments made by both sides in that case, and concludes that there was a miscarriage in the sentencing proceeding whose correction is long overdue after Pollard has served nearly 25 years. For those still seeking to make up their minds, the Sun’s review is worth reading.

Alana, one of the reasons you suggest for the improbability of Jonathan Pollard’s release is the public nature of the campaign to free him, since such a prisoner release would typically be done with arguments behind closed doors.

But arguably, a public debate is the only way in which a Pollard release would become proper, because public discussion is necessary before such a step occurs. The whole world is watching, so to speak.

In an editorial today entitled “Netanyahu’s Plea for Pollard, the New York Sun provides a useful addition to the public debate, focusing on a “magnificent dissent” by Judge Stephen Williams in the 1992 case in which the Court of Appeals rejected Pollard’s plea for a new sentencing hearing:

It happens that we don’t think a life sentence is too long a punishment for conviction of secretly passing classified information to a foreign government, even, in serious cases, if conviction is for only one count, as it was in the case of Pollard. … But it also happens that the sentence meted out to Pollard was vastly disproportionate to sentences handed down against other spies, including some who spied not for a friend of America, which is what Pollard did, but for countries that could be expected to use the fruits of spying in actions against us, like the Soviet Union or communist China.

… [Judge Williams] was one of three judges who heard Pollard’s plea for a new sentencing hearing. The two other judges on the circuit panel, Laurence Silberman and Ruth Bader Ginsburg, sided against Pollard in a highly technical opinion. Judge Williams’s dissent accused the government of having broken both the spirit and, in one respect, even the letter of the binding agreement under which it had obtained Pollard’s guilty plea.

The Sun covers the arguments made by both sides in that case, and concludes that there was a miscarriage in the sentencing proceeding whose correction is long overdue after Pollard has served nearly 25 years. For those still seeking to make up their minds, the Sun’s review is worth reading.

Read Less

Wanted: Female Justice with Small Children (Pets a Plus)

Another Supreme Court nomination is in the works, so it’s time for another round of inanity on court appointments. The latest dose of condescension comes from Peter Beinart, who thinks it’s time for not just a woman but “a mom with kids.” (Is three better than two? What about a single mom? A divorced dad with sole custody?) Why does this matter — so they can decide cases in favor of women? No, really: he wants a woman justice “because female justices, on average, will be more sensitive to the problems women face. Since they will have likely encountered gender bias themselves, they will be more likely to support government action to remedy it.” In other words, they will violate their oath of office and give the gals a break. And then there is the old standby: we need more tokenism:

It’s not just that they may alleviate gender injustice through their rulings; they may alleviate it through their example as well. Just as Barack Obama empowers African-American kids to believe that there are no limits to what they can achieve, female Supreme Court justices send the same message to young women. As anyone who has ever watched their daughter eye a Barbie Doll can attest, role models matter.

Not Sarah Palin as VP, mind you. And Madeleine Albright, Condi Rice, and Hillary Clinton don’t suffice. Neither do the two women currently on the Court. More role models! But what’s with the kids? Beinart explains it’s the role models (again):

It’s important because otherwise, the message you’re sending young women is that they can achieve professionally, or they can have a family, but they can’t do both. And without quite realizing it, that is the message our government has been sending. According to the Census Bureau, 80 percent of American women over the age of 40 have children. But look at the women who have held Cabinet posts in the last three presidential administrations. Only two of the Clinton administration’s five female Cabinet secretaries had kids. (Attorney General Janet Reno got her job only after two women with children, Zoë Baird and Kimba Wood, were dinged for hiring illegal immigrants as nannies). In the Bush administration, the figure was two of seven. In the Obama administration, so far, it is two of four. And if Obama chooses Elena Kagan for the High Court, the figure there will be one of three.

There’s nothing wrong, of course, with appointing childless women (or men, for that matter) to high office. But our government is actually doing a pretty good job of providing role models for the 20 percent of American women who don’t want kids. Where it’s failing is in providing role models for the 80 percent that do.

But Sandra Day O’Connor had three children. Ruth Bader Ginsburg has two children. Don’t they count? Well, maybe they have to be young. So what we need is  a woman justice with at least two children under the age of 10 so that other women with children under the age of 10 will know that they too can be on the Supreme Court. Thunk.

Beinart is a smart fellow. So maybe this is a sly parody of the rampant racial and gender preferences that have overtaken Supreme Court selections. They have turned these into embarrassing “diversity” rackets in which the White House searches for the person most likely to tip the scales for this or that interest group or to bolster the self-esteem of some key demographic. So if Beinart meant to show up all that and urge us to get back to the old-fashioned notion of merit, then bravo! If not, he should be embarrassed.

Another Supreme Court nomination is in the works, so it’s time for another round of inanity on court appointments. The latest dose of condescension comes from Peter Beinart, who thinks it’s time for not just a woman but “a mom with kids.” (Is three better than two? What about a single mom? A divorced dad with sole custody?) Why does this matter — so they can decide cases in favor of women? No, really: he wants a woman justice “because female justices, on average, will be more sensitive to the problems women face. Since they will have likely encountered gender bias themselves, they will be more likely to support government action to remedy it.” In other words, they will violate their oath of office and give the gals a break. And then there is the old standby: we need more tokenism:

It’s not just that they may alleviate gender injustice through their rulings; they may alleviate it through their example as well. Just as Barack Obama empowers African-American kids to believe that there are no limits to what they can achieve, female Supreme Court justices send the same message to young women. As anyone who has ever watched their daughter eye a Barbie Doll can attest, role models matter.

Not Sarah Palin as VP, mind you. And Madeleine Albright, Condi Rice, and Hillary Clinton don’t suffice. Neither do the two women currently on the Court. More role models! But what’s with the kids? Beinart explains it’s the role models (again):

It’s important because otherwise, the message you’re sending young women is that they can achieve professionally, or they can have a family, but they can’t do both. And without quite realizing it, that is the message our government has been sending. According to the Census Bureau, 80 percent of American women over the age of 40 have children. But look at the women who have held Cabinet posts in the last three presidential administrations. Only two of the Clinton administration’s five female Cabinet secretaries had kids. (Attorney General Janet Reno got her job only after two women with children, Zoë Baird and Kimba Wood, were dinged for hiring illegal immigrants as nannies). In the Bush administration, the figure was two of seven. In the Obama administration, so far, it is two of four. And if Obama chooses Elena Kagan for the High Court, the figure there will be one of three.

There’s nothing wrong, of course, with appointing childless women (or men, for that matter) to high office. But our government is actually doing a pretty good job of providing role models for the 20 percent of American women who don’t want kids. Where it’s failing is in providing role models for the 80 percent that do.

But Sandra Day O’Connor had three children. Ruth Bader Ginsburg has two children. Don’t they count? Well, maybe they have to be young. So what we need is  a woman justice with at least two children under the age of 10 so that other women with children under the age of 10 will know that they too can be on the Supreme Court. Thunk.

Beinart is a smart fellow. So maybe this is a sly parody of the rampant racial and gender preferences that have overtaken Supreme Court selections. They have turned these into embarrassing “diversity” rackets in which the White House searches for the person most likely to tip the scales for this or that interest group or to bolster the self-esteem of some key demographic. So if Beinart meant to show up all that and urge us to get back to the old-fashioned notion of merit, then bravo! If not, he should be embarrassed.

Read Less

Litmus Tests for Supreme Court Nominees

One wonders how politicians are able to say, with conviction and solemnity, the most absurd things, which no one listening takes seriously. Obama has let loose with some doozies. He told us he didn’t want to take over the car companies. And he told us he didn’t like spending so much money on government. But when he says there is “no litmus test” for abortion when selecting his Supreme Court nominee, one is tempted to holler, “Enough!” Puhleez.

There is no issue more dearly embraced by the Democratic party than legalized abortion on demand and no greater fear — contrived or sincere — than of losing the judicial monopoly on the issue and — heavens! — be left to the mercy of voters to decide this issue of public policy. There is no Democratic president who won’t make absolutely certain that his nominee will doggedly defend the current abortion jurisprudence. Indeed, Obama couldn’t help but give away the game:

Obama said his nominee would be someone who interprets “our Constitution in a way that takes into account individual rights, and that includes women’s rights.”

“And that’s going to be something that’s very important to me,” Obama said. …

On abortion, Obama said that he is “somebody who believes that women should have the ability to make often very difficult decisions about their own bodies and issues of reproduction.”

But no “litmus test,” he hastened to add. We are not supposed to ask judges to predetermine matters. Judge Ruth Bader Ginsburg took this to absurd lengths and set a tradition of saying nothing much of interest during her confirmation hearings (“no hints, no forecasts, no previews”). So no president will ask and no judge should answer whether she’d uphold Roe v. Wade. The president doesn’t need to. The era of stealth Supreme Court candidates is over, and each potential Obama nominee certainly will be one inclined to roam through the constitutional terrain spotting rights and finding penumbras that neatly fit the political agenda of the Left. It is “living Constitution” time once again. There’s not a single judge with that jurisprudential inclination who isn’t going to find a constitutional right to abortion and consider the matter “settled.”

So feel free to laugh when the president says “no litmus test.” When the cameras leave, I am sure he does too.

One wonders how politicians are able to say, with conviction and solemnity, the most absurd things, which no one listening takes seriously. Obama has let loose with some doozies. He told us he didn’t want to take over the car companies. And he told us he didn’t like spending so much money on government. But when he says there is “no litmus test” for abortion when selecting his Supreme Court nominee, one is tempted to holler, “Enough!” Puhleez.

There is no issue more dearly embraced by the Democratic party than legalized abortion on demand and no greater fear — contrived or sincere — than of losing the judicial monopoly on the issue and — heavens! — be left to the mercy of voters to decide this issue of public policy. There is no Democratic president who won’t make absolutely certain that his nominee will doggedly defend the current abortion jurisprudence. Indeed, Obama couldn’t help but give away the game:

Obama said his nominee would be someone who interprets “our Constitution in a way that takes into account individual rights, and that includes women’s rights.”

“And that’s going to be something that’s very important to me,” Obama said. …

On abortion, Obama said that he is “somebody who believes that women should have the ability to make often very difficult decisions about their own bodies and issues of reproduction.”

But no “litmus test,” he hastened to add. We are not supposed to ask judges to predetermine matters. Judge Ruth Bader Ginsburg took this to absurd lengths and set a tradition of saying nothing much of interest during her confirmation hearings (“no hints, no forecasts, no previews”). So no president will ask and no judge should answer whether she’d uphold Roe v. Wade. The president doesn’t need to. The era of stealth Supreme Court candidates is over, and each potential Obama nominee certainly will be one inclined to roam through the constitutional terrain spotting rights and finding penumbras that neatly fit the political agenda of the Left. It is “living Constitution” time once again. There’s not a single judge with that jurisprudential inclination who isn’t going to find a constitutional right to abortion and consider the matter “settled.”

So feel free to laugh when the president says “no litmus test.” When the cameras leave, I am sure he does too.

Read Less

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?

Read Less

Liberals Hope to Do Better than Sotomayor

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

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

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

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

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

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

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

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

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

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

Read Less

Obama on Roberts

During his interview with Chris Wallace yesterday, Barack Obama came across as he did in the early part of this campaign: thoughtful, reasonable, and likeable. But as we have come to expect with Obama, there is a need to unpack his answers carefully. For example, we got a glimpse into what Obama considers to be his capacity to transcend partisanship:

During the . . .  John Roberts nomination, although I voted against him, I strongly defended some of my colleagues who had voted for him on the Daily Kos, and was fiercely attacked as somebody who is, you know, caving in to Republicans on these fights.

It’s worth bearing in mind that John Roberts is one of the most distinguished people ever appointed to the Supreme Court. He is not only intellectually brilliant, but widely respected by virtually everyone he has ever worked with for his judicious temperament and his integrity. And, during the confirmation hearings, Roberts’ mastery of the law allowed him to match and overmatch even his most indefatigable critics. There were, in short, no real grounds on which to oppose the Roberts nomination.

Nevertheless, Obama voted against Roberts. (It’s worth recalling that when President Clinton nominated Ruth Bader Ginsburg to the Supreme Court, she was confirmed by a vote of 96 to 3–and Roberts was, if anything, more qualified than Ginsburg to sit on the high court.) For Obama to vote against Judge Roberts was an irresponsible, partisan decision, the kind of “old politics” that Obama has promised to rescue us from. And his citation of that vote as an example of post-partisan credentials shows just how desperate Obama is to present himself as a unifying figure. His record demonstrates nothing of the sort–and yesterday’s interview is one more example of why the portrait Obama is presenting is in many respects deeply at odds with his record.

During his interview with Chris Wallace yesterday, Barack Obama came across as he did in the early part of this campaign: thoughtful, reasonable, and likeable. But as we have come to expect with Obama, there is a need to unpack his answers carefully. For example, we got a glimpse into what Obama considers to be his capacity to transcend partisanship:

During the . . .  John Roberts nomination, although I voted against him, I strongly defended some of my colleagues who had voted for him on the Daily Kos, and was fiercely attacked as somebody who is, you know, caving in to Republicans on these fights.

It’s worth bearing in mind that John Roberts is one of the most distinguished people ever appointed to the Supreme Court. He is not only intellectually brilliant, but widely respected by virtually everyone he has ever worked with for his judicious temperament and his integrity. And, during the confirmation hearings, Roberts’ mastery of the law allowed him to match and overmatch even his most indefatigable critics. There were, in short, no real grounds on which to oppose the Roberts nomination.

Nevertheless, Obama voted against Roberts. (It’s worth recalling that when President Clinton nominated Ruth Bader Ginsburg to the Supreme Court, she was confirmed by a vote of 96 to 3–and Roberts was, if anything, more qualified than Ginsburg to sit on the high court.) For Obama to vote against Judge Roberts was an irresponsible, partisan decision, the kind of “old politics” that Obama has promised to rescue us from. And his citation of that vote as an example of post-partisan credentials shows just how desperate Obama is to present himself as a unifying figure. His record demonstrates nothing of the sort–and yesterday’s interview is one more example of why the portrait Obama is presenting is in many respects deeply at odds with his record.

Read Less

He Said What?

Barack Obama came riding in on his heroic steed to defend his wife Michelle from monsters in the media who dared take words out of her mouth and…and…quote them.

“For the first time in my adult life, I am proud of my country,” Mrs. Obama said on Monday in Milwaukee, and clearly it was not an unplanned outburst, because she repeated it later that same day in Madison with a softening qualification: “For the first time in my adult lifetime, I’m really proud of my country.”

Here is Barack Obama’s response to the criticism of her words:

Statements like this are made and people try to take it out of context and make a great big deal out of it, and that isn’t at all what she meant. What she meant was, this is the first time that she’s been proud of the politics of America. Because she’s pretty cynical about the political process, and with good reason, and she’s not alone. But she has seen large numbers of people get involved in the process, and she’s encouraged.

Let’s review. Michelle Obama reached her majority in 1982. Has nothing happened in American politics of which she could be proud before her husband began causing teenagers to faint dead away and sing ditties to him on YouTube? Nothing? Not even the dollar coin with Sacajawea on it? She is a liberal, so it would be folly to expect her to consider, say, the passage of landmark welfare-reform legislation in 1996 anything to be proud of. So let’s just keep it to matters that gladden a heart that leans to the starboard port side.

The Civil Rights Act of 1991. The elevation of Ruth Bader Ginsburg to the Supreme Court. The Brady Bill. The Oslo Accords. Bill Clinton’s 1997 balanced-budget deal. Not to mention the rise of gay partnership rights at the local and state level. The lifting of sodomy laws. How about the suspension of the death penalty in Illinois?

“She has seen large numbers of people get involved in the process,” Obama says by way of explanation for Michelle’s new pride. Hmm. Between 1996 and 2004, voter turnout rose from 49 percent of the electorate to 61 percent. Perhaps she didn’t vote? Well, I guess she did. In 2004. For Barack Obama in his winning bid for the Senate. Even that, apparently, wasn’t enough to make her feel pride in American politics, at least according to her own husband.

Barack Obama came riding in on his heroic steed to defend his wife Michelle from monsters in the media who dared take words out of her mouth and…and…quote them.

“For the first time in my adult life, I am proud of my country,” Mrs. Obama said on Monday in Milwaukee, and clearly it was not an unplanned outburst, because she repeated it later that same day in Madison with a softening qualification: “For the first time in my adult lifetime, I’m really proud of my country.”

Here is Barack Obama’s response to the criticism of her words:

Statements like this are made and people try to take it out of context and make a great big deal out of it, and that isn’t at all what she meant. What she meant was, this is the first time that she’s been proud of the politics of America. Because she’s pretty cynical about the political process, and with good reason, and she’s not alone. But she has seen large numbers of people get involved in the process, and she’s encouraged.

Let’s review. Michelle Obama reached her majority in 1982. Has nothing happened in American politics of which she could be proud before her husband began causing teenagers to faint dead away and sing ditties to him on YouTube? Nothing? Not even the dollar coin with Sacajawea on it? She is a liberal, so it would be folly to expect her to consider, say, the passage of landmark welfare-reform legislation in 1996 anything to be proud of. So let’s just keep it to matters that gladden a heart that leans to the starboard port side.

The Civil Rights Act of 1991. The elevation of Ruth Bader Ginsburg to the Supreme Court. The Brady Bill. The Oslo Accords. Bill Clinton’s 1997 balanced-budget deal. Not to mention the rise of gay partnership rights at the local and state level. The lifting of sodomy laws. How about the suspension of the death penalty in Illinois?

“She has seen large numbers of people get involved in the process,” Obama says by way of explanation for Michelle’s new pride. Hmm. Between 1996 and 2004, voter turnout rose from 49 percent of the electorate to 61 percent. Perhaps she didn’t vote? Well, I guess she did. In 2004. For Barack Obama in his winning bid for the Senate. Even that, apparently, wasn’t enough to make her feel pride in American politics, at least according to her own husband.

Read Less

She Said What?

Michelle Obama today said that “for the first time in my adult lifetime, I am really proud of my country. And not just because Barack has done well, but because I think people are hungry for change. I have been desperate to see our country moving in that direction.”

Really proud of her country for the first time? Michelle Obama is 44 years old. She has been an adult since 1982. Can it really be there has not been a moment during that time when she felt proud of her country? Forget matters like the victory in the Cold War; how about only things that have made liberals proud — all the accomplishments of inclusion? How about the passage of the Civil Rights Act of 1991? Or Ruth Bader Ginsburg’s elevation to the Supreme Court? Or Carol Moseley Braun’s election to the Senate in 1998? How about the merely humanitarian, like this country’s startling generosity to the victims of the tsunami? I’m sure commenters can think of hundreds more landmarks of this sort. Didn’t she even get a twinge from, say, the Olympics?

Mrs. Obama was speaking at a campaign rally, so it is easy to assume she was merely indulging in hyperbole. Even so, it is very revealing.

It suggests, first, that the pseudo-messianic nature of the Obama candidacy is very much a part of the way the Obamas themselves are feeling about it these days. If they don’t get a hold of themselves, the family vanity is going to swell up to the size of Phileas Fogg’s hot-air balloon and send the two of them soaring to heights of self-congratulatory solipsism that we’ve never seen before.

Second, it suggests the Obama campaign really does have its roots in New Class leftism, according to which patriotism is not only the last refuge of a scoundrel, but the first refuge as well — that America is not fundamentally good but flawed, but rather fundamentally flawed and only occasionally good. There’s something for John McCain to work with here.

And third, that Michelle Obama — from the middle-class South Shore neighborhood of Chicago, Princeton 85, Harvard Law 88, associate at Sidley and Austin, and eventually a high-ranking official at the University of Chicago — may not be proud of her country, but her life, like her husband’s, gives me every reason to be even prouder of the United States.

Michelle Obama today said that “for the first time in my adult lifetime, I am really proud of my country. And not just because Barack has done well, but because I think people are hungry for change. I have been desperate to see our country moving in that direction.”

Really proud of her country for the first time? Michelle Obama is 44 years old. She has been an adult since 1982. Can it really be there has not been a moment during that time when she felt proud of her country? Forget matters like the victory in the Cold War; how about only things that have made liberals proud — all the accomplishments of inclusion? How about the passage of the Civil Rights Act of 1991? Or Ruth Bader Ginsburg’s elevation to the Supreme Court? Or Carol Moseley Braun’s election to the Senate in 1998? How about the merely humanitarian, like this country’s startling generosity to the victims of the tsunami? I’m sure commenters can think of hundreds more landmarks of this sort. Didn’t she even get a twinge from, say, the Olympics?

Mrs. Obama was speaking at a campaign rally, so it is easy to assume she was merely indulging in hyperbole. Even so, it is very revealing.

It suggests, first, that the pseudo-messianic nature of the Obama candidacy is very much a part of the way the Obamas themselves are feeling about it these days. If they don’t get a hold of themselves, the family vanity is going to swell up to the size of Phileas Fogg’s hot-air balloon and send the two of them soaring to heights of self-congratulatory solipsism that we’ve never seen before.

Second, it suggests the Obama campaign really does have its roots in New Class leftism, according to which patriotism is not only the last refuge of a scoundrel, but the first refuge as well — that America is not fundamentally good but flawed, but rather fundamentally flawed and only occasionally good. There’s something for John McCain to work with here.

And third, that Michelle Obama — from the middle-class South Shore neighborhood of Chicago, Princeton 85, Harvard Law 88, associate at Sidley and Austin, and eventually a high-ranking official at the University of Chicago — may not be proud of her country, but her life, like her husband’s, gives me every reason to be even prouder of the United States.

Read Less




Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
YOU HAVE READ 8 OF 8
FREE ARTICLES THIS MONTH.
for full access to
CommentaryMagazine.com
INCLUDES FULL ACCESS TO:
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
CommentaryMagazine.com.
LOG IN WITH YOUR
COMMENTARY MAGAZINE ID
Don't have a CommentaryMagazine.com log in?
CREATE A COMMENTARY
LOG IN ID
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.