Commentary Magazine


Topic: Samuel Alito

Forget Mixed Seating. How About the President Just Mailing It In?

In the wake of President Obama’s call for more civility in the wake of the tragedy in Arizona, some in his party are seeking a symbolic effort to play down partisanship during one of the Capitol’s annual displays of partisanship: the State of the Union speech. Democratic Senator Mark Udall of Colorado has called for mixed seating during the event. The Democratic leaders like it, and Republicans, who are leery of being portrayed as insufficiently sensitive or overly partisan, are not opposing the plan.

Is there anything wrong with the idea? Not really. The tradition of having Democrats sit on one side of the Chamber and Republicans on the other is based on the way Congress operates when it is in a normal session. Congressional seating patterns, not to mention the existence of organized political parties, are nowhere to be found in the Constitution.

However, it is not clear that mixed seating will achieve the avowed purpose of those advocating this measure, which is to avoid the sophomoric displays of partisanship that have become a regular feature of State of the Union speeches. While representatives and senators from both parties stand and applaud, as they should, during the president’s entrance, once the speech starts, the two sides morph into a congressional version of a college football game, where the supporters of the two teams divide the stadium and engage in organized cheers. It doesn’t matter which party holds the White House or Congress. Every year, the president can count on raucous cheers and standing ovations from his fellow party members in the chamber while members of the other party ostentatiously stay seated and silent.

Will mixed seating prevent a recurrence of this nonsense? The answer here is probably not. When the president speaks a line that is designed to appeal to the sensibilities of his own party — for example, one urging Congress not to repeal his health-care program — most Democrats are likely to stand and cheer while Republicans will remain seated (and need to restrain themselves from muttering their disapproval, which would lead to accusations of bad manners, such as those aimed at Justice Samuel Alito, who silently voiced his disapproval at a presidential barb aimed at the Supreme Court last year). The odds are, Democrats will get up and applaud and Republicans will not at certain points in the speech. And they will do so even if they have not clumped together by party. Read More

In the wake of President Obama’s call for more civility in the wake of the tragedy in Arizona, some in his party are seeking a symbolic effort to play down partisanship during one of the Capitol’s annual displays of partisanship: the State of the Union speech. Democratic Senator Mark Udall of Colorado has called for mixed seating during the event. The Democratic leaders like it, and Republicans, who are leery of being portrayed as insufficiently sensitive or overly partisan, are not opposing the plan.

Is there anything wrong with the idea? Not really. The tradition of having Democrats sit on one side of the Chamber and Republicans on the other is based on the way Congress operates when it is in a normal session. Congressional seating patterns, not to mention the existence of organized political parties, are nowhere to be found in the Constitution.

However, it is not clear that mixed seating will achieve the avowed purpose of those advocating this measure, which is to avoid the sophomoric displays of partisanship that have become a regular feature of State of the Union speeches. While representatives and senators from both parties stand and applaud, as they should, during the president’s entrance, once the speech starts, the two sides morph into a congressional version of a college football game, where the supporters of the two teams divide the stadium and engage in organized cheers. It doesn’t matter which party holds the White House or Congress. Every year, the president can count on raucous cheers and standing ovations from his fellow party members in the chamber while members of the other party ostentatiously stay seated and silent.

Will mixed seating prevent a recurrence of this nonsense? The answer here is probably not. When the president speaks a line that is designed to appeal to the sensibilities of his own party — for example, one urging Congress not to repeal his health-care program — most Democrats are likely to stand and cheer while Republicans will remain seated (and need to restrain themselves from muttering their disapproval, which would lead to accusations of bad manners, such as those aimed at Justice Samuel Alito, who silently voiced his disapproval at a presidential barb aimed at the Supreme Court last year). The odds are, Democrats will get up and applaud and Republicans will not at certain points in the speech. And they will do so even if they have not clumped together by party.

An even better suggestion than mixed seating would be to do away with this televised extravaganza altogether. While the Constitution does mandate that the president report to the Congress annually on the state of the union, it does not say he needs to go there and speak to them in person on national TV. Until the 20th century, the practice (initiated by Thomas Jefferson, who thought the speech that his two predecessors had delivered was too reminiscent of the British monarch’s annual speech from the throne) was for the president to write his report and then have it delivered via messenger to the Congress, where the Clerk of the House publicly read it. Woodrow Wilson revived the practice of delivering it in person; and as first radio and then television entered into the question, it became a highly choreographed ritual that served as a valuable PR tool for every president.

The point is, if ending the obnoxious partisanship and pointless rituals of the occasion is the goal, the president can write and then deliver his speech from the Oval Office, something that would satisfy his constitutional obligation without forcing the nation to endure a pointless spectacle. While I am sure that no president will take up this suggestion, doing so will not only end the partisanship that nobody likes but might also encourage presidents to stick to serious policy points and avoid the smarmy feel-good touches (such as singling out praiseworthy citizens who have been invited to sit in the gallery) that have made the speech an even lengthier and more boring ordeal that it needs to be.

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Alan Wolfe’s Silly Essay

Sometimes, well-educated people can write the silliest essays. Take Boston College professor Alan Wolfe, who has written an article — “Why Conservatives Won’t Govern” — in the Winter 2011 issue of Democracy: A Journal of Ideas.

According to Wolfe:

There is much to be learned from the way Republicans behaved during the first two years of the Obama Administration. If that history is any indication, the problem will no longer be that conservatives cannot govern. We are instead in for an era in which conservatives will not govern. [emphasis in the original]

The problem with the GOP, you see, isn’t that it is cynical, because even a cynic cares. “What we witness instead is nihilism,” Wolfe writes, “and in the most literal sense of the term.”

Nihilism, we are told,

is as dangerous a political stance as one can find. Unlike polarization, it guarantees that words become divorced from any underlying reality they are meant to describe, that those watching the spectacle turn away in disgust, that tactical maneuvering replaces all discussion of substantive policy issues, and that political opponents are to be treated as enemies to be conquered. Lacking regenerative qualities of its own, nihilism can never produce new sources of political energy.

In case the point isn’t clear enough, Wolfe goes on to write:

[C]onservative nihilism poisons the soil that allows any set of ideas, liberal or conservative, to grow … a party that will not govern does not wish to replace strong government with weak and decentralized government in order to show how often the public sector fails. It instead much prefers to make it impossible for government to carry out its functions in the first place. If its political strategy is nihilistic, its ultimate outcome is anarchistic … when it comes to government, [conservatives] are as nihilistic as Abbie Hoffman. … No 1960s radical ever went as far as so many twenty-first century conservatives are going now.

All told, Wolfe used some version of the word “nihilism” more than 30 times in describing Republicans and conservatives.

The editor who allowed this essay to be published did Professor Wolfe no favors. His arguments are not only foolish; they are delusional. Read More

Sometimes, well-educated people can write the silliest essays. Take Boston College professor Alan Wolfe, who has written an article — “Why Conservatives Won’t Govern” — in the Winter 2011 issue of Democracy: A Journal of Ideas.

According to Wolfe:

There is much to be learned from the way Republicans behaved during the first two years of the Obama Administration. If that history is any indication, the problem will no longer be that conservatives cannot govern. We are instead in for an era in which conservatives will not govern. [emphasis in the original]

The problem with the GOP, you see, isn’t that it is cynical, because even a cynic cares. “What we witness instead is nihilism,” Wolfe writes, “and in the most literal sense of the term.”

Nihilism, we are told,

is as dangerous a political stance as one can find. Unlike polarization, it guarantees that words become divorced from any underlying reality they are meant to describe, that those watching the spectacle turn away in disgust, that tactical maneuvering replaces all discussion of substantive policy issues, and that political opponents are to be treated as enemies to be conquered. Lacking regenerative qualities of its own, nihilism can never produce new sources of political energy.

In case the point isn’t clear enough, Wolfe goes on to write:

[C]onservative nihilism poisons the soil that allows any set of ideas, liberal or conservative, to grow … a party that will not govern does not wish to replace strong government with weak and decentralized government in order to show how often the public sector fails. It instead much prefers to make it impossible for government to carry out its functions in the first place. If its political strategy is nihilistic, its ultimate outcome is anarchistic … when it comes to government, [conservatives] are as nihilistic as Abbie Hoffman. … No 1960s radical ever went as far as so many twenty-first century conservatives are going now.

All told, Wolfe used some version of the word “nihilism” more than 30 times in describing Republicans and conservatives.

The editor who allowed this essay to be published did Professor Wolfe no favors. His arguments are not only foolish; they are delusional.

According to Wolfe, “the shift from polarization to nihilism is well illustrated by the pre-election fate of Wisconsin Congressman Paul Ryan’s ‘A Roadmap for America’s Future.’” During the campaign, Wolfe writes, “conservatives shunned Ryan’s plan like a virus.”

“Will Ryan become a conservative hero in the new House? Don’t bet on it,” Wolfe writes. “Once your purpose is to say no to everything the other side proposes, you do not want to put yourself in the position of saying yes to anything else, lest you actually have to spend your energy defending a position.”

In fact, many conservatives not only don’t shun Ryan’s plan; they enthusiastically embrace it. Sarah Palin did so as recently as a week ago. And while it’s true that the GOP leadership in the House hasn’t fully embraced the Roadmap, it is open to key elements of it. Any hesitancy in fully blessing Ryan’s roadmap doesn’t have to do with nihilism; it has to do with fear that reforming entitlements will be politically catastrophic.

More important, Ryan, the incoming chairman of the House Budget Committee, is going to present the GOP’s budget — in effect, its governing blueprint — in the spring. His plan will be far-reaching, bold, intellectually coherent — and it will have the support of the Republican caucus. Ryan will, in fact, be among the most important Republicans in America next year.

On the matter of judges, Professor Wolfe is terribly upset by the fact that fewer than half of Obama’s nominations for judgeships have been approved. “There can be little doubt that conservatives will now feel emboldened to continue and even ratchet-up their policy of judicial refusal in the next two years,” Wolfe writes. “It is, after all, a near-perfect expression of their nihilism; the best way to stop judges from interpreting the law, as conservatives like to call decisions they happen to disfavor, is to have fewer judges.” He goes on to say:

All this suggests that Elena Kagan will be the last judge Obama gets to place on the high court. This is not because openings are unlikely to occur. It is instead because Republicans, confident that Democrats will never come close to the 60 votes necessary to stop them, will use their veto power to block any Supreme Court nominee they dislike, which amounts to anyone Obama selects. On the court, if not in Congress, conservatives believe in an active government; they need judges who will say no to every piece of legislation they want to block.

It’s probably worth pointing out that it was Democrats, not Republicans, who did the most to politicize the appointment of judges and Supreme Court nominations, with their ferocious opposition to Robert Bork and Clarence Thomas. No recent liberal nominee has been treated as disgracefully as were Bork and Thomas. It’s worth asking, too: was Senator Obama a nihilist for not only opposing the confirmation of Samuel Alito but also for supporting the filibuster of his nomination?

Beyond that, assume that Obama nominates centrist-to-conservative judges. Republicans would support them in the blink of an eye. The problem Obama would face would be with his liberal base, not with conservatives. This explodes the theory that Republicans are nihilists; if they were, they would oppose for the sake of opposition, as a means to achieving anarchy. But, of course, Republicans have no interest in such a thing.

And note well: the tax bill that was just agreed to was the product of a compromise between President Obama and the GOP leadership — precisely the kind of compromise that Wolfe says Republicans and conservatives oppose in principle and in every instance.

Professor Wolfe’s essay is instructive in this respect: it shows the kind of paranoia and diseased thinking that afflicts some liberals and progressives. He acts as if no conservative policy world exists and exerts any influence on lawmakers. This is flatly untrue. Professor Wolfe might, for starters, consider visiting the website of National Affairs in order to become acquainted with arguments and ideas he is now blind to.

Moreover, progressives like Wolfe seem to genuinely believe the cartoonish image they have created of Republicans and conservatives, portraying them as if they were characters out of Turgenev’s Fathers and Sons. They cannot seem to fathom that the differences between conservatives and liberals, between the incoming GOP Congress and Barack Obama, are rooted in different governing philosophies, not nihilism vs. non-nihilism. They do not even entertain the possibility that opposition to ObamaCare is based on the belief that a more sustainable, market-based, and patient-centered version of health reform is better for our nation. Conservatives may be wrong about this; but to hold this view does not mean they are pining for anarchy.

The Alan Wolfe approach, of course, makes governing in America much more difficult. If you view your opponents not simply as wrong but as a disciple of Nietzsche, eager to burn down the village, it changes almost everything about politics. It would be all to the good, I think, if people on both sides resisted the temptation — unless the evidence is overwhelming and to the contrary — to refer to one’s political opponents as Nazis, as terrorists, as nihilists, and so forth. This is almost always a sign of the weakness, not the strength, of one’s arguments.

In Fathers and Sons, the protagonist, Bazarov, says to the woman he loves, and hated himself for loving, “Breathe on the dying flame and let it go out. Enough!”

The same can be said about Professor Wolfe’s essay.

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Flotsam and Jetsam

I’m with Ben Chandler on this one. “Kentucky Rep. Ben Chandler is blaming President Barack Obama and House Speaker Nancy Pelosi for the Democrats’ poor showing nationally in the Nov. 2 elections. … ‘If not there, where else does the responsibility lie? … You’re talking about the loss of 60 or something seats held by capable public servants. There had to be something going on at a level above them. If that isn’t the lesson, I don’t know what is.’”

I’m with Jeffrey Rosen on this one. “In a 2006 opinion for the U.S. Court of Appeals for the 3rd Circuit, then-Judge Samuel Alito stressed that screening procedures must be both ‘minimally intrusive’ and “effective” — in other words, they must be ‘well-tailored to protect personal privacy,’ and they must deliver on their promise of discovering serious threats. … As currently used in U.S. airports, the new full-body scanners fail all of Alito’s tests.” Read the whole thing — it’s quite persuasive.

I’m with Norm Coleman on this one. “Former Minnesota Sen. Norm Coleman had some unsolicited advice for fellow Republican Joe Miller: It’s time to quit. ‘I think that race is over. I think the counting’s been done. I’m not sure there’s anything that would change that,’ Coleman told C-SPAN in an interview set to air on Sunday. Coleman himself fought until the bitter end of his 2008 Senate race against Democrat Al Franken, which dragged on for seven months because of a recount and legal challenges.”

I’m with John McCain on this one: “Sen. John McCain (R-Ariz.) argued in an interview Sunday that the U.S. has not exacted enough pressure on North Korea and that the current tensions in the region may present an opportunity for regime change. ‘I think it’s time we talked about regime change in North Korea,’ he said, quickly adding that he did not mean ‘military action.’”

I’m with King Abdullah of Saudi Arabia on this one. In regards to Iran, apparently he’d been warning the administration to “‘cut off the head of the snake’ while there was still time.” But the Obami are too busy obsessing over non-direct, non-peace talks that are going nowhere.

I’m with Josh Block on this one. “One of the most interesting overall themes is the restraint seen to typify the Israelis on Iran, in contrast to the typical Brzezinski, Scowcroft, Walt/Mearsheimer, Glenn Greenwald-Neo-progressive, netroots claims Israel is trying to prod us to fight and bomb Iran for them. In the end, one of the most obvious take-aways from these WikiLeaks documents is devastating to the whole Left/Realist narrative about Israeli manipulation. The Israelis come off as cool customers, while the Arabs are the ones freaking out, justifiably many would argue, and literally demanding the U.S. bomb the Iranian nuclear program.”

I’m with Lindsey Graham on this one. “I think it is a big mistake to criminalize the war, to take someone you’ve held under the law of war as an enemy combatant for six or seven years, then put them in civilian court. It is a disaster waiting to happen. I believe I got the votes to block it. I don’t think Khalid Sheikh Mohammed will ever get congressional approval to see a civilian court. He should be tried at Guantanamo Bay. He should be tried now. He was ready to plead guilty before the Obama administration stopped the trial. We should have him in a military commission trial beginning Monday and get this case behind us.”

I’m with Ben Chandler on this one. “Kentucky Rep. Ben Chandler is blaming President Barack Obama and House Speaker Nancy Pelosi for the Democrats’ poor showing nationally in the Nov. 2 elections. … ‘If not there, where else does the responsibility lie? … You’re talking about the loss of 60 or something seats held by capable public servants. There had to be something going on at a level above them. If that isn’t the lesson, I don’t know what is.’”

I’m with Jeffrey Rosen on this one. “In a 2006 opinion for the U.S. Court of Appeals for the 3rd Circuit, then-Judge Samuel Alito stressed that screening procedures must be both ‘minimally intrusive’ and “effective” — in other words, they must be ‘well-tailored to protect personal privacy,’ and they must deliver on their promise of discovering serious threats. … As currently used in U.S. airports, the new full-body scanners fail all of Alito’s tests.” Read the whole thing — it’s quite persuasive.

I’m with Norm Coleman on this one. “Former Minnesota Sen. Norm Coleman had some unsolicited advice for fellow Republican Joe Miller: It’s time to quit. ‘I think that race is over. I think the counting’s been done. I’m not sure there’s anything that would change that,’ Coleman told C-SPAN in an interview set to air on Sunday. Coleman himself fought until the bitter end of his 2008 Senate race against Democrat Al Franken, which dragged on for seven months because of a recount and legal challenges.”

I’m with John McCain on this one: “Sen. John McCain (R-Ariz.) argued in an interview Sunday that the U.S. has not exacted enough pressure on North Korea and that the current tensions in the region may present an opportunity for regime change. ‘I think it’s time we talked about regime change in North Korea,’ he said, quickly adding that he did not mean ‘military action.’”

I’m with King Abdullah of Saudi Arabia on this one. In regards to Iran, apparently he’d been warning the administration to “‘cut off the head of the snake’ while there was still time.” But the Obami are too busy obsessing over non-direct, non-peace talks that are going nowhere.

I’m with Josh Block on this one. “One of the most interesting overall themes is the restraint seen to typify the Israelis on Iran, in contrast to the typical Brzezinski, Scowcroft, Walt/Mearsheimer, Glenn Greenwald-Neo-progressive, netroots claims Israel is trying to prod us to fight and bomb Iran for them. In the end, one of the most obvious take-aways from these WikiLeaks documents is devastating to the whole Left/Realist narrative about Israeli manipulation. The Israelis come off as cool customers, while the Arabs are the ones freaking out, justifiably many would argue, and literally demanding the U.S. bomb the Iranian nuclear program.”

I’m with Lindsey Graham on this one. “I think it is a big mistake to criminalize the war, to take someone you’ve held under the law of war as an enemy combatant for six or seven years, then put them in civilian court. It is a disaster waiting to happen. I believe I got the votes to block it. I don’t think Khalid Sheikh Mohammed will ever get congressional approval to see a civilian court. He should be tried at Guantanamo Bay. He should be tried now. He was ready to plead guilty before the Obama administration stopped the trial. We should have him in a military commission trial beginning Monday and get this case behind us.”

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Why Liberals Should Be Worried About Kagan

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

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

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

Alito then dismantles Justice Stevens’s dissent:

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

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

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

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

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

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

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

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

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

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

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

Alito then dismantles Justice Stevens’s dissent:

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

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

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

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

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

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

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

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

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Specter’s Lesson: Sharper Than a Serpent’s Tooth Is an Ungrateful Abortion Lobby

Consistency on the issues has never been one of Arlen Specter’s character traits as a politician. Yet for all of his flips and flops on just about everything, not to mention his two changes in party affiliation, there is one issue on which the ultra-cynical senator has been fairly consistent: abortion. Indeed, if there is any one point of contention that defined him in his Senate career as a “liberal” Republican, it was his “pro-choice” beliefs. But despite three decades of such a stance and the fact that he has now joined the party that generally treats the backing for abortion as a litmus test, NARAL Pro-Choice America, the premiere pro-abortion lobby, is throwing Specter under the bus in the midst of his life-and-death struggle to hold on to his Senate seat.

NARAL endorsed Specter’s opponent Rep. Joe Sestak yesterday in a statement that dismissed the senator’s decades of work without so much as a backward glance. Indeed, far from treating the question of which pro-choice Democrat to back in the primary as a dilemma, NARAL Pro-Choice America’s president Nancy Keenan stuck the proverbial knife in the back of her group’s erstwhile loyalist by saying: “Many Pennsylvanians are under the impression that Arlen Specter might be a reliable pro-choice voice, but his record says otherwise. Pennsylvanians deserve a senator who considers being pro-choice a position of conviction, rather than a position of convenience.”

Ouch! Reading that, you have to sympathize a bit with Snarlin’ Arlen. You might well say that such a swipe at his character would be justified if you were talking about anything else, but it’s hard to argue that his stand on just about the only issue on which he has been consistent was merely a matter of convenience.

What’s NARAL’s motive? Is it belated payback for Specter’s roughing up of Anita Hill? Maybe. But according to its release, it’s the fact that Specter voted for Republican court nominees John Roberts and Samuel Alito and at one point voted, along with many Democrats, in favor of a ban on partial-birth abortion. But Specter’s record on court nominations has been anything but consistent, given his participation in the vicious attacks on Robert Bork in the 1980s, which pleased NARAL, and his vote in favor of the confirmation of Sonia Sotomayor last year.

But the real answer may be elsewhere in the statement, where Keenan claims, “Joe Sestak is the candidate who is best positioned to defeat an anti-choice opponent in the November general election.” Which is to say that she has read the polls, which show that Specter’s lead over his opponent has evaporated and that Sestak may be a tougher opponent for likely Republican nominee Pat Toomey. Now that he really needs them, Specter is finding that NARAL, like every other political entity, prefers backing likely winners to helping out old friends.

But just to show that ingratitude and extremism aren’t confined to the pro-choicers, the Philadelphia Inquirer reports that the long-shot challenge to Toomey in the Republican primary next week is also motivated by abortion. Activist Peg Luksik thinks that the former congressman isn’t sufficiently fanatic on the issue because despite his consistent pro-life record, he believes there should be exceptions to any potential ban on abortion in cases of rape or incest or to save the life of the mother. Luksik’s claim to fame is that 20 years ago, she won 46 percent of the vote in a failed attempt to deny a GOP gubernatorial nomination to Barbara Hafer, a pro-choice Republican. Since then, she twice ran as a third-party candidate for governor against Tom Ridge.

Toomey is a prohibitive favorite and doesn’t have much to worry about in the primary. But looking ahead to November, he does seem to have a firm grasp on the difference between running against Specter and running against Sestak. While claiming that either would energize the Republican base, the Inquirer quotes Toomey as summing up the contrast between the two in this way:

“If Joe Sestak wins the nomination, I do think it will be a much more substantive discussion about policy, whereas if it was Arlen Specter, it would be a series of personal, negative ads trying to smear character. That’s the way he’s always operated.”

Consistency on the issues has never been one of Arlen Specter’s character traits as a politician. Yet for all of his flips and flops on just about everything, not to mention his two changes in party affiliation, there is one issue on which the ultra-cynical senator has been fairly consistent: abortion. Indeed, if there is any one point of contention that defined him in his Senate career as a “liberal” Republican, it was his “pro-choice” beliefs. But despite three decades of such a stance and the fact that he has now joined the party that generally treats the backing for abortion as a litmus test, NARAL Pro-Choice America, the premiere pro-abortion lobby, is throwing Specter under the bus in the midst of his life-and-death struggle to hold on to his Senate seat.

NARAL endorsed Specter’s opponent Rep. Joe Sestak yesterday in a statement that dismissed the senator’s decades of work without so much as a backward glance. Indeed, far from treating the question of which pro-choice Democrat to back in the primary as a dilemma, NARAL Pro-Choice America’s president Nancy Keenan stuck the proverbial knife in the back of her group’s erstwhile loyalist by saying: “Many Pennsylvanians are under the impression that Arlen Specter might be a reliable pro-choice voice, but his record says otherwise. Pennsylvanians deserve a senator who considers being pro-choice a position of conviction, rather than a position of convenience.”

Ouch! Reading that, you have to sympathize a bit with Snarlin’ Arlen. You might well say that such a swipe at his character would be justified if you were talking about anything else, but it’s hard to argue that his stand on just about the only issue on which he has been consistent was merely a matter of convenience.

What’s NARAL’s motive? Is it belated payback for Specter’s roughing up of Anita Hill? Maybe. But according to its release, it’s the fact that Specter voted for Republican court nominees John Roberts and Samuel Alito and at one point voted, along with many Democrats, in favor of a ban on partial-birth abortion. But Specter’s record on court nominations has been anything but consistent, given his participation in the vicious attacks on Robert Bork in the 1980s, which pleased NARAL, and his vote in favor of the confirmation of Sonia Sotomayor last year.

But the real answer may be elsewhere in the statement, where Keenan claims, “Joe Sestak is the candidate who is best positioned to defeat an anti-choice opponent in the November general election.” Which is to say that she has read the polls, which show that Specter’s lead over his opponent has evaporated and that Sestak may be a tougher opponent for likely Republican nominee Pat Toomey. Now that he really needs them, Specter is finding that NARAL, like every other political entity, prefers backing likely winners to helping out old friends.

But just to show that ingratitude and extremism aren’t confined to the pro-choicers, the Philadelphia Inquirer reports that the long-shot challenge to Toomey in the Republican primary next week is also motivated by abortion. Activist Peg Luksik thinks that the former congressman isn’t sufficiently fanatic on the issue because despite his consistent pro-life record, he believes there should be exceptions to any potential ban on abortion in cases of rape or incest or to save the life of the mother. Luksik’s claim to fame is that 20 years ago, she won 46 percent of the vote in a failed attempt to deny a GOP gubernatorial nomination to Barbara Hafer, a pro-choice Republican. Since then, she twice ran as a third-party candidate for governor against Tom Ridge.

Toomey is a prohibitive favorite and doesn’t have much to worry about in the primary. But looking ahead to November, he does seem to have a firm grasp on the difference between running against Specter and running against Sestak. While claiming that either would energize the Republican base, the Inquirer quotes Toomey as summing up the contrast between the two in this way:

“If Joe Sestak wins the nomination, I do think it will be a much more substantive discussion about policy, whereas if it was Arlen Specter, it would be a series of personal, negative ads trying to smear character. That’s the way he’s always operated.”

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Flotsam and Jetsam

CATO points out: “When you run down this list of elements in the Obama plan and the Romney plan, they are all identical… Both the Romney plan and the Obama plan are essentially a government takeover of the health care sector of the economy.”

A new poll points to Harry Reid’s vulnerability: “U.S. Sen. Harry Reid must pick up far more support from crossover Republicans and independents to win re-election, according to a new poll that shows him losing to the GOP front-runner in a full-ballot election with eight contenders and a ‘none of these candidates’ option. The survey of Nevada voters commissioned by the Review-Journal shows Reid getting 37 percent of the vote compared with 47 percent for Republican Sue Lowden, who would win if the election were today, while the slate of third-party and nonpartisan candidates would get slim to no backing.”

Another poll points to an electoral thumping in November for the Democrats: “Republicans have slightly increased their advantage over Democrats in the generic Congressional ballot, from 46-43 last month to 47-42 now.”

Chris Christie points out: “We are, I think, the failed experiment in America—the best example of a failed experiment in America—on taxes and bigger government. Over the last eight years, New Jersey increased taxes and fees 115 times.” He seems serious about waging a war on spending, bloated pensions, public unions and regulatory excess.

Rep. Pete King points to Obama’s Israel animus: “No American ally is more trusted or reliable than Israel. Throughout the darkest days of the Cold War, and now in the war against Islamic terrorism, Israel has stood with the United States every step of the way. Israel shares our democratic principles and always has the courage to do what has to be done. The value of this unique alliance has been shared by all our Presidents — Democrats and Republicans alike. This is why I strongly believe it has been so wrong for President Obama to continually escalate and publicize his differences with Israeli Prime Minister Benjamin Netanyahu. This is no way to treat such a long-time ally.”

A Senate Republican points out an Obama nominee’s non-judicial temperament: “A top Senate Republican hammered liberal law professor Goodwin Liu’s writings as ‘vicious, emotionally and racially charged’ at his confirmation hearing Friday – igniting the first real test of whether Republicans will be able to block the most controversial of President Barack Obama’s lower court judicial nominees. Sen. Jon Kyl (R-Ariz.) slammed Liu’s testimony against Samuel Alito during his confirmation hearings for the Supreme Court.” This same nominee “forgot” to submit over a hundred documents.

A new survey points to an uneven economy recovery: “U.S. consumer sentiment took a surprise negative turn in early April due to a persistently grim outlook on income and jobs, a private survey released on Friday showed. A slip in economic expectations to its lowest in a year likely stemmed from consumers hearing negative information on government programs and a perception that the recovery is too slow, according to Thomson Reuters/University of Michigan’s Surveys of Consumers. … The surveys’ overall index on consumer sentiments slipped to 69.5 in early April — the lowest in five months. This was below the 73.6 reading seen at the end of March and the 75.0 median forecast of analysts polled by Reuters.”

Ben Smith points to inconvenient facts for New York Democrats: “A few weeks before playing a central role in fraud charges against Goldman Sachs, hedge fund titan John Paulson invited colleagues to a fundraiser for Senator Chuck Schumer — ‘one of the few members of Congress that has consistently supported the hedge fund industry’ — according to a copy of the invitation… Schumer is credited by some with helping to kill a Democratic push to tax carried interest, which would have put a dent in the massive earnings of a small number of ultra-wealthy money managers. With Goldman, and perhaps Paulson, in the SEC’s sights, some of the taint may rub off on their allies — and both of New York’s senators are among them. Schumer’s junior colleague, Kirsten Gillibrand, is the single top recipient of contributions from Goldman Sachs employees.”

The Wall Street Journal editors point out there’s no meeting of the minds on the START deal: “Signed with some pomp last week in Prague, the pact with Russia makes modest reductions to the number of strategic warheads and delivery systems. Though those cuts are worth a close look, we’re much more concerned with the impact that new START will have on America’s ability to develop and deploy the best missile defenses available. Starting with the Reagan-era Strategic Defense Initiative, the Kremlin has sought to tie America’s hands on missile defense. The Kremlin says that this is precisely what it has negotiated with START. The Administration says it didn’t. They can’t both be right.”

CATO points out: “When you run down this list of elements in the Obama plan and the Romney plan, they are all identical… Both the Romney plan and the Obama plan are essentially a government takeover of the health care sector of the economy.”

A new poll points to Harry Reid’s vulnerability: “U.S. Sen. Harry Reid must pick up far more support from crossover Republicans and independents to win re-election, according to a new poll that shows him losing to the GOP front-runner in a full-ballot election with eight contenders and a ‘none of these candidates’ option. The survey of Nevada voters commissioned by the Review-Journal shows Reid getting 37 percent of the vote compared with 47 percent for Republican Sue Lowden, who would win if the election were today, while the slate of third-party and nonpartisan candidates would get slim to no backing.”

Another poll points to an electoral thumping in November for the Democrats: “Republicans have slightly increased their advantage over Democrats in the generic Congressional ballot, from 46-43 last month to 47-42 now.”

Chris Christie points out: “We are, I think, the failed experiment in America—the best example of a failed experiment in America—on taxes and bigger government. Over the last eight years, New Jersey increased taxes and fees 115 times.” He seems serious about waging a war on spending, bloated pensions, public unions and regulatory excess.

Rep. Pete King points to Obama’s Israel animus: “No American ally is more trusted or reliable than Israel. Throughout the darkest days of the Cold War, and now in the war against Islamic terrorism, Israel has stood with the United States every step of the way. Israel shares our democratic principles and always has the courage to do what has to be done. The value of this unique alliance has been shared by all our Presidents — Democrats and Republicans alike. This is why I strongly believe it has been so wrong for President Obama to continually escalate and publicize his differences with Israeli Prime Minister Benjamin Netanyahu. This is no way to treat such a long-time ally.”

A Senate Republican points out an Obama nominee’s non-judicial temperament: “A top Senate Republican hammered liberal law professor Goodwin Liu’s writings as ‘vicious, emotionally and racially charged’ at his confirmation hearing Friday – igniting the first real test of whether Republicans will be able to block the most controversial of President Barack Obama’s lower court judicial nominees. Sen. Jon Kyl (R-Ariz.) slammed Liu’s testimony against Samuel Alito during his confirmation hearings for the Supreme Court.” This same nominee “forgot” to submit over a hundred documents.

A new survey points to an uneven economy recovery: “U.S. consumer sentiment took a surprise negative turn in early April due to a persistently grim outlook on income and jobs, a private survey released on Friday showed. A slip in economic expectations to its lowest in a year likely stemmed from consumers hearing negative information on government programs and a perception that the recovery is too slow, according to Thomson Reuters/University of Michigan’s Surveys of Consumers. … The surveys’ overall index on consumer sentiments slipped to 69.5 in early April — the lowest in five months. This was below the 73.6 reading seen at the end of March and the 75.0 median forecast of analysts polled by Reuters.”

Ben Smith points to inconvenient facts for New York Democrats: “A few weeks before playing a central role in fraud charges against Goldman Sachs, hedge fund titan John Paulson invited colleagues to a fundraiser for Senator Chuck Schumer — ‘one of the few members of Congress that has consistently supported the hedge fund industry’ — according to a copy of the invitation… Schumer is credited by some with helping to kill a Democratic push to tax carried interest, which would have put a dent in the massive earnings of a small number of ultra-wealthy money managers. With Goldman, and perhaps Paulson, in the SEC’s sights, some of the taint may rub off on their allies — and both of New York’s senators are among them. Schumer’s junior colleague, Kirsten Gillibrand, is the single top recipient of contributions from Goldman Sachs employees.”

The Wall Street Journal editors point out there’s no meeting of the minds on the START deal: “Signed with some pomp last week in Prague, the pact with Russia makes modest reductions to the number of strategic warheads and delivery systems. Though those cuts are worth a close look, we’re much more concerned with the impact that new START will have on America’s ability to develop and deploy the best missile defenses available. Starting with the Reagan-era Strategic Defense Initiative, the Kremlin has sought to tie America’s hands on missile defense. The Kremlin says that this is precisely what it has negotiated with START. The Administration says it didn’t. They can’t both be right.”

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Obama at Odds with Reality

Matt Welch writes:

The president, who promised in both word and style to usher in a “new era” of Washington “responsibility,” routinely says things that aren’t true and supports initiatives that break campaign promises. When called on it, he mostly keeps digging. And when obliged to explain why American voters are turning so sharply away from his party and his policies, Obama pins the blame not on his own deviations from verity but on his failure to “explain” things “more clearly to the American people.”

This is not an occasional phenomenon. It has become an ingrained habit. As Welch details, Obama has insisted that he’s excluded lobbyists from government. (There are more than 40.) His repeated misstatements on his own health-care bill seem to assume no one is paying attention or is audacious enough to point out he is making stuff up. “It will cut the deficit.” Well, not with the Doc Fix or with any reasonable accounting method. “Special interests are against it.” Except for AARP, AMA,  and Big Insurance. As Supreme Court Justice Samuel Alito pointed out, Obama got the Supreme Court’s decision in Citizens United wrong, too.

And then there are the misdirections and twisted explanations on national security. He routinely says he “banned torture,” which, of course, was illegal long before he assumed office. (He should know this because John Yoo and Jay Bybee were hounded by a kangaroo Justice Department investigation for allegedly facilitating violation of torture prohibitions.) He pulls the rug out from the Czech Republic and Poland, denying the obvious — that it was meant as a sop to the Russians. In pursuing his Israel policy, he offers fractured history and denies the existence of past agreements by the U.S. on settlements.

Even when recounting his own actions, he strays from the truth. No, he really didn’t condemn Palestinian violence, as he claimed. No, he really hasn’t gone to bat for human rights, as he asserted in Oslo. And on it goes.

This was the president who was supposedly freed from ideology and who would operate on facts and evidence. The reality is that the Obami operate as if the president has no obligation to fact check and to adhere to a standard of accuracy worthy of the office. It’s just campaign time 24/7 — and the operating standard is whatever will fly. In a very real sense, Obama has never had his facts or his premises rebutted. He was treated with kid gloves during the campaign, where his garbled history was never questioned and his assumptions were rarely challenged by the mainstream media. And well into his first-year term, a probing interview taking on his facts is the exception, not the rule. He has grown accustomed to parroting liberal dogma with nary a concern that anyone might call him on it. And when someone does — at the health-care summit — he is peeved, condescending, and impatient.

The ultra-liberal president is at odds with the Center-Right country he is trying to lead. But more important, he is at odds with reality — with cold, hard facts. Neither is sustainable for very long. The voters and reality have a way of catching up with presidents who try to ignore both.

Matt Welch writes:

The president, who promised in both word and style to usher in a “new era” of Washington “responsibility,” routinely says things that aren’t true and supports initiatives that break campaign promises. When called on it, he mostly keeps digging. And when obliged to explain why American voters are turning so sharply away from his party and his policies, Obama pins the blame not on his own deviations from verity but on his failure to “explain” things “more clearly to the American people.”

This is not an occasional phenomenon. It has become an ingrained habit. As Welch details, Obama has insisted that he’s excluded lobbyists from government. (There are more than 40.) His repeated misstatements on his own health-care bill seem to assume no one is paying attention or is audacious enough to point out he is making stuff up. “It will cut the deficit.” Well, not with the Doc Fix or with any reasonable accounting method. “Special interests are against it.” Except for AARP, AMA,  and Big Insurance. As Supreme Court Justice Samuel Alito pointed out, Obama got the Supreme Court’s decision in Citizens United wrong, too.

And then there are the misdirections and twisted explanations on national security. He routinely says he “banned torture,” which, of course, was illegal long before he assumed office. (He should know this because John Yoo and Jay Bybee were hounded by a kangaroo Justice Department investigation for allegedly facilitating violation of torture prohibitions.) He pulls the rug out from the Czech Republic and Poland, denying the obvious — that it was meant as a sop to the Russians. In pursuing his Israel policy, he offers fractured history and denies the existence of past agreements by the U.S. on settlements.

Even when recounting his own actions, he strays from the truth. No, he really didn’t condemn Palestinian violence, as he claimed. No, he really hasn’t gone to bat for human rights, as he asserted in Oslo. And on it goes.

This was the president who was supposedly freed from ideology and who would operate on facts and evidence. The reality is that the Obami operate as if the president has no obligation to fact check and to adhere to a standard of accuracy worthy of the office. It’s just campaign time 24/7 — and the operating standard is whatever will fly. In a very real sense, Obama has never had his facts or his premises rebutted. He was treated with kid gloves during the campaign, where his garbled history was never questioned and his assumptions were rarely challenged by the mainstream media. And well into his first-year term, a probing interview taking on his facts is the exception, not the rule. He has grown accustomed to parroting liberal dogma with nary a concern that anyone might call him on it. And when someone does — at the health-care summit — he is peeved, condescending, and impatient.

The ultra-liberal president is at odds with the Center-Right country he is trying to lead. But more important, he is at odds with reality — with cold, hard facts. Neither is sustainable for very long. The voters and reality have a way of catching up with presidents who try to ignore both.

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McCain (Finally) Joins The Battle

To the consternation of many conservatives, John McCain has seemed reluctant to go after his potential Democratic adversaries with great force. That will change a bit today in a speech on judges at Wake Forrest University. Yes, his remarks contain the expected, impassioned plea for judicial restraint and words of praise for Justices Alito, Roberts, and Rehnquist. And he also puts in a brief defense of his role in the Gang of 14, which, he contends, helped get through two Supreme Court and several appeal court judges but has nonetheless been a sore spot with some conservatives.

But it is his sharp words about his Democratic opponents (on a day when they wait for election returns without making much news until tonight) that may catch the most attention. McCain explains:

Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. And just where did John Roberts fall short, by the Senator’s measure? Well, a justice of the court, as Senator Obama explained it – and I quote – should share “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

These vague words attempt to justify judicial activism – come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama’s standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama’s standard, even Judge Roberts didn’t measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it – and they see it only in each other.

It is a measure of how tame the debate has been that these are some of the most ideologically pointed lines to be spoken by McCain so far. Clearly, he and his campaign must believe this issue is a winner against both Democratic opponents, a chance to paint them as outside the mainstream. McCain–who is understandably hesitant to take any step that might turn off independents–may have found one of the rare issues he thinks can both please conservatives and keep independents on his side. Unfortunately for him, it’s a rare voter who casts his or her ballot for President solely on the basis of judicial philosophy and potential Supreme Court picks.

To the consternation of many conservatives, John McCain has seemed reluctant to go after his potential Democratic adversaries with great force. That will change a bit today in a speech on judges at Wake Forrest University. Yes, his remarks contain the expected, impassioned plea for judicial restraint and words of praise for Justices Alito, Roberts, and Rehnquist. And he also puts in a brief defense of his role in the Gang of 14, which, he contends, helped get through two Supreme Court and several appeal court judges but has nonetheless been a sore spot with some conservatives.

But it is his sharp words about his Democratic opponents (on a day when they wait for election returns without making much news until tonight) that may catch the most attention. McCain explains:

Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. And just where did John Roberts fall short, by the Senator’s measure? Well, a justice of the court, as Senator Obama explained it – and I quote – should share “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

These vague words attempt to justify judicial activism – come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama’s standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama’s standard, even Judge Roberts didn’t measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it – and they see it only in each other.

It is a measure of how tame the debate has been that these are some of the most ideologically pointed lines to be spoken by McCain so far. Clearly, he and his campaign must believe this issue is a winner against both Democratic opponents, a chance to paint them as outside the mainstream. McCain–who is understandably hesitant to take any step that might turn off independents–may have found one of the rare issues he thinks can both please conservatives and keep independents on his side. Unfortunately for him, it’s a rare voter who casts his or her ballot for President solely on the basis of judicial philosophy and potential Supreme Court picks.

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Game Day

A couple of final Florida polls indicate a very small advantage for John McCain, with Rudy sliding further behind. However, neither side seems entirely confident.

In the final hours last night before zero day the final jabs were taken. Mitt Romney says he would not be McCain’s Vice President. Well, given the recent expressions of disdain from McCain, I don’t think Romney need worry about being asked. On the issue of the surge, I would agree with Stephen Hayes, and find it remarkable not more has been made of Romney’s prior evasions on the surge policy.

Although Romney last night on an appearance on Fox News said that the Massachusetts Taxpayers Foundation would vouch for his fiscal record as Governor of Massachusetts, this group, the McCain folks are happy to remind us, actually attacked Romney for a calculated $700M in increased fees and “loophole” closings. Finally, Professor Stephen Bainbridge offers up some helpful research on McCain’s prior support for Supreme Court Justice Samuel Alito.

At this point, all that matters is who turns out to vote and how many of those half a million early voters each side banked.

A couple of final Florida polls indicate a very small advantage for John McCain, with Rudy sliding further behind. However, neither side seems entirely confident.

In the final hours last night before zero day the final jabs were taken. Mitt Romney says he would not be McCain’s Vice President. Well, given the recent expressions of disdain from McCain, I don’t think Romney need worry about being asked. On the issue of the surge, I would agree with Stephen Hayes, and find it remarkable not more has been made of Romney’s prior evasions on the surge policy.

Although Romney last night on an appearance on Fox News said that the Massachusetts Taxpayers Foundation would vouch for his fiscal record as Governor of Massachusetts, this group, the McCain folks are happy to remind us, actually attacked Romney for a calculated $700M in increased fees and “loophole” closings. Finally, Professor Stephen Bainbridge offers up some helpful research on McCain’s prior support for Supreme Court Justice Samuel Alito.

At this point, all that matters is who turns out to vote and how many of those half a million early voters each side banked.

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On McCain’s Sleeve

In a hastily arranged call with bloggers, John McCain began by touting his travels with Florida Gov. Charlie Crist, whose endorsement he termed a “coup.” However, he clearly had something on his mind: the accusation circulating in conservative circles that he disapproved of Justice Samuel Alito because he wore his conservatism “on his sleeve.”

He spoke with the energy and verve he usually reserved for discussions of fiscal discipline, saying that he supported and worked for Alito’s confirmation and frequently had said on the campaign trail that he would appoint justices in the mold of Justices Alito and Roberts. In follow-up questions McCain said that he did not recall ever having such a conversation of the type John Fund of the Wall Street Journal ascribed to him, but that he has been clear that he will search for justices devoted to originalist  interpretation. He added that the “beauty” of the Alito and Roberts nominations was that they had a clear record and “we could rely on them to strictly interpret the Constitution.”

Later in the call he was asked about appointing justices who might strike down McCain-Feingold campaign-finance reform. He gave an interesting answer  I had not heard previously. He said that he could not let his biases (i.e. his policy preferences) affect his decision to appoint strict constructionist judges who might not agree with him on part of his agenda. In short, he said that the decisions rendered by these judges might “far exceed my agenda.”

In response to my question as to whether Florida was a “must win” state, he would only say that it was “very important.” He acknowledged that the tone had gotten sharper in the last day or so and there was always a danger of turning off voters, but said that he was just responding to Mitt Romney’s attacks as he had in Iowa and New Hampshire. Not surprisingly, he said that his responses were accurate and Romney’s were “desperate.”

He also used the opportunity to toss some red meat to the base. First, he repeated a litany of issues on which he would be “eager” to debate the Democrats and said that the election would highlight “fundamental differences” between the parties. Second, in the context of a question about why he was no longer friends with Pat Buchanan, he was careful to say only nice things about Buchanan and then went out of his way to declare that it would be critical if he got the nomination to “really unite the party.” He stressed that the GOP “has a lot of work to do” and that ” we need everyone pulling in the same direction.”

Unfortunately, technical difficulties ended the call as he was explaining why he did not mind getting liberal newspaper endorsements (saying in effect that he was glad they support his agenda, even if he doesn’t support theirs) — including the Boston Globe, which along with the conservative Boston Herald favored him over near-favorite son Romney.

Bottom line: This was a “reassure the base” call. For those who don’t want to be reassured, it likely would not suffice. For those who needed a bit more assurance, his advocacy of strict judicial interpretation and his eagerness to take on the Democrats was likely welcome news.

In a hastily arranged call with bloggers, John McCain began by touting his travels with Florida Gov. Charlie Crist, whose endorsement he termed a “coup.” However, he clearly had something on his mind: the accusation circulating in conservative circles that he disapproved of Justice Samuel Alito because he wore his conservatism “on his sleeve.”

He spoke with the energy and verve he usually reserved for discussions of fiscal discipline, saying that he supported and worked for Alito’s confirmation and frequently had said on the campaign trail that he would appoint justices in the mold of Justices Alito and Roberts. In follow-up questions McCain said that he did not recall ever having such a conversation of the type John Fund of the Wall Street Journal ascribed to him, but that he has been clear that he will search for justices devoted to originalist  interpretation. He added that the “beauty” of the Alito and Roberts nominations was that they had a clear record and “we could rely on them to strictly interpret the Constitution.”

Later in the call he was asked about appointing justices who might strike down McCain-Feingold campaign-finance reform. He gave an interesting answer  I had not heard previously. He said that he could not let his biases (i.e. his policy preferences) affect his decision to appoint strict constructionist judges who might not agree with him on part of his agenda. In short, he said that the decisions rendered by these judges might “far exceed my agenda.”

In response to my question as to whether Florida was a “must win” state, he would only say that it was “very important.” He acknowledged that the tone had gotten sharper in the last day or so and there was always a danger of turning off voters, but said that he was just responding to Mitt Romney’s attacks as he had in Iowa and New Hampshire. Not surprisingly, he said that his responses were accurate and Romney’s were “desperate.”

He also used the opportunity to toss some red meat to the base. First, he repeated a litany of issues on which he would be “eager” to debate the Democrats and said that the election would highlight “fundamental differences” between the parties. Second, in the context of a question about why he was no longer friends with Pat Buchanan, he was careful to say only nice things about Buchanan and then went out of his way to declare that it would be critical if he got the nomination to “really unite the party.” He stressed that the GOP “has a lot of work to do” and that ” we need everyone pulling in the same direction.”

Unfortunately, technical difficulties ended the call as he was explaining why he did not mind getting liberal newspaper endorsements (saying in effect that he was glad they support his agenda, even if he doesn’t support theirs) — including the Boston Globe, which along with the conservative Boston Herald favored him over near-favorite son Romney.

Bottom line: This was a “reassure the base” call. For those who don’t want to be reassured, it likely would not suffice. For those who needed a bit more assurance, his advocacy of strict judicial interpretation and his eagerness to take on the Democrats was likely welcome news.

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Final Shots

John McCain and Mitt Romney are getting in their final shots. McCain puts out a radio ad going after Romney on his Massachusetts record and his electability. (On the latter point, McCain holds a substantial advantage, which is something many conservatives are mulling over.) Romney supporters are circulating a John Fund report that certain (unidentified) conservatives said that McCain said in a private meeting he would not favor a Supreme Court Justice like Samuel Alito. McCain advisor Steve Schmidt denies McCain said it. It would seem odd for McCain, even if he believed such a thing, to have made the comment. He did, as Schmidt points out, strongly support Alito in his confirmation fight. Does any of this matter? I think back-and-forth spitballs the day before an election don’t matter very much. Crist-mentum may.

UPDATE: McCain has responded in clear terms to the “He doesn’t like Alito” attack here and here. Of all the accusations his conservative opponents could have made on the final day of the Florida campaign, this seemed to be one of the weakest and least credible.

John McCain and Mitt Romney are getting in their final shots. McCain puts out a radio ad going after Romney on his Massachusetts record and his electability. (On the latter point, McCain holds a substantial advantage, which is something many conservatives are mulling over.) Romney supporters are circulating a John Fund report that certain (unidentified) conservatives said that McCain said in a private meeting he would not favor a Supreme Court Justice like Samuel Alito. McCain advisor Steve Schmidt denies McCain said it. It would seem odd for McCain, even if he believed such a thing, to have made the comment. He did, as Schmidt points out, strongly support Alito in his confirmation fight. Does any of this matter? I think back-and-forth spitballs the day before an election don’t matter very much. Crist-mentum may.

UPDATE: McCain has responded in clear terms to the “He doesn’t like Alito” attack here and here. Of all the accusations his conservative opponents could have made on the final day of the Florida campaign, this seemed to be one of the weakest and least credible.

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