Sanity Injection

Injecting a dose of sanity into your day’s news and current events.

Posts Tagged ‘Supreme Court’

New Jersey Democrats: The law is whatever we want

Posted by sanityinjection on April 6, 2010

One might be pardoned for thinking that in the current anti-incumbent climate, with voters uneasy about the health care reform law, elected officials and political parties would be at pains to avoid anything that seemed like arrogance or disregard for the will of the people.

Unless, of course, you live in New Jersey, where the Democratic Party has made it clear on multiple occasions that the laws and Constitution are only important to the extent that they benefit New Jersey Democrats. The most recent example relates to an effort begun by New Jersey voters to hold an election to recall Democrat Senator Robert Menendez. Like a number of states, New Jersey law allows for a process by which an elected official can be recalled before their term expires (as happened with former California Governor Gray Davis.) The process is fairly involved and requires a large number of signatures and steps to make sure that it is not something that can be easily done.

Naturally, Menendez isn’t too happy about this development. But instead of vigorously making the case to the people of New Jersey why the recall effort should be opposed, Menendez wants to make sure they never get to have an opinion at all. He is asking the New Jersey Supreme Court to rule the recall effort unconstitutional  because there is no language in the US Constitution that specifically authorizes the recall of US Senators.

This should be a slam dunk from a constitutional perspective. The Constitution reserves all powers not expressly given to the federal government to the several states, and New Jersey’s recall law has never been challenged under that state’s own constitution. So Menendez should be wasting his time, right?

Wrong. Because this is New Jersey, where the state Supreme Court sees the law as something to be casually hacked to pieces whenever it suits the Democratic party. It was just eight years ago that this same New Jersey Supreme Court unanimously upheld the Democrats’ illegal last-minute substitution of Frank Lautenberg for incumbent Bob Torricelli as their Senate candidate – after Torricelli had been chosen by the voters in the Democratic primary – simply because the party wanted to dump Torricelli after he was the target of federal corruption charges. The Court held that the law had never envisioned a situation like Torricelli’s (really? a crooked politician is an unheard of concept?) and that keeping Torricelli on the ballot would constitute an unfair advantage for the Republicans (who held a gun to NJ Democrats’ heads and forced them to nominate a crook?) Lautenberg’s name went on the ballot, he won and remains the other Senator from New Jersey to this day.

So given that shameful history, why shouldn’t Menendez think the corrupt New Jersey Supreme Court might well rule in his favor? After all, he and the Democrats have a second argument: Because Menendez is Hispanic, the recall effort *must* be racially motivated and therefore shouldn’t be allowed no matter what the Constitution says.

Next time they screw up my order at the local Burger King, which is staffed almost exclusively by racial minorities, I am going to claim that the deficiency was racially motivated. How far do you think I’ll get with that one?

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Posted in Politics | Tagged: , , , , , , , , , | 1 Comment »

Two steps forward, one step back

Posted by sanityinjection on January 21, 2010

Sometimes it seems like every time some progress is made in American politics, there is an inevitable setback. So it was this week. The positive development of Scott Brown’s Senate victory in Massachusetts and its ramifications for our political system, has been followed only two days later by a Supreme Court ruling that will have a very negative effect on the election process.

In a 5-4 decision, the Court struck down a law  that prohibited unions and corporations from funding campaign advertisements for or against a candidate, or issue-oriented ads within the few days immediately prior to an election. The decision did not change the long-standing limitation on direct contributions to candidates by these organizations. 

It’s worth noting that the law the Court struck down has been in place for 63 years. While that in itself is no reason to uphold it, it does suggest that it has served a purpose.

The Court’s majority found that the prohibitions amounted to an unconstitutional restriction on freedom of speech. I disagree. First of all, it’s questionable whether a corporation or a union must have free speech rights to the same degree that a citizen does. Second, it’s well established that government can limit free speech when there is a compelling public need served by doing so (the famous “yelling “Fire!” in a crowded theater” provision.) No one doubts that the result of this decision will be an exponential growth of attack ads funded by these wealthy organizations. Any candidate who doesn’t jump into bed with either a union or a major corporation will be drowned out by an unlimited sea of propaganda. The Court has dealt a serious blow to the independence of our political system. By vastly increasing the power of the special interests, it will be much rarer to see a candidate like Scott Brown who listens to the voice of the people. That will no longer be required in order to win election in America.

Posted in Politics | Tagged: , , , , , , , , | 5 Comments »

LA Times gets it right on Second Amendment

Posted by sanityinjection on October 6, 2009

It’s always nice when a media outlet exceeds your expectations. So I was very pleased to read the Los Angeles Times’ editorial today on the Second Amendment case that the Supreme Court has decided to hear.

Briefly, the case focuses on the city of Chicago’s ban on private owenership of handguns. You may recall the Court recently struck down Washington D.C.’s gun ban, ruling that the Second Amendment definitively applies to individuals. In this case, the legal question is whether the state of Illinois (and by extension Chicago) must be bound by the federal Second Amendment in passing its laws. Technically, the amendments in the Bill of Rights only constrain the federal government; however, the Fourteenth Amendment has been taken to extend the protections of the Bill of Rights to state law in other cases.

I applaud the LA Times for recognizing the clear legal argument, and the potential danger to our freedoms if the court were to rule that the states need not be bound by the Bill of Rights. In doing so, the paper’s editors explicitly state that the goal (which they support) of controlling gun violence through legal restrictions on gun ownership and use cannot justify violating the logical interpretation of the Constitution. Or to put it much more simply: The end does not justify the means.

Newspaper editorial boards tend to be practical types unsympathetic to moral, legal, or technical arguments. The Times’ e-board in this case has displayed a wisdom and prudence unusual among its peers.

Posted in Politics | Tagged: , , , , , , , , , , | 11 Comments »

Thoughts on the Constitution and why it works

Posted by sanityinjection on September 9, 2009

As every schoolchild knows, the Constitution is the principal document on which the government of the United States is based. For over 200 years it has reigned supreme over every political question our nation has faced. Advocates and opponents of every measure have sought to interpret the Constitution to favor their position. There is a broad acceptance that because of the Constitution, America is a government of “laws and not of men”.

The question I found myself pondering is why constitutional government has worked so well in the United States as opposed to other countries. Some readers may not be aware that many other countries have constitutions which like our own, guarantee the rights and freedoms of the people. And yet, despite the legal validity of these documents, in many of these countries the constititution is merely a piece of paper, wilfully and routinely ignored by the government. Look up the constitution of the former Soviet Union and you’ll be suprised by the many democratic institutions and freedoms it contains – none of which were implemented in the real world. Or witness a country like Sudan, where the constitution promises Western-style freedoms but women can be flogged for wearing trousers. Why, then, is the US Constitution revered and obeyed here with almost religious authority while other countries ignore theirs?

I think I’ve identified some of the reasons. One of the most important is the process by which the US Constitution was created. Unlike the Declaration of Independence, it was not a revolutionary document. Nor was it quickly promulgated by a new regime seeking to legitimize itself after ousting a former government. Rather, it grew out of fears of instability and weakness and a desire to have a uniform set of laws governing the several states. It took years of negotiations, in which representatives of every state participated, before the final version of the Constitution was agreed on, and it had to be ratified by a supermajority of the states before it became law. As a result, Americans felt that their Constitution was not only “for the people”, but also “of the people” and “by the people”. This gave it a fundamental legitimacy that other nation’s constitutions, imposed by a particular regime or even drafted by foreign “experts” in many cases, simply do not have.

Another critical element is the presence of an independent judiciary – the Supreme Court – whose task is to defend the Constitituion by ruling on whether laws conform to its guidelines. Supreme Court justices, while appointed by the President and confirmed by the Senate, are the only government office in the US that serves for life. As such, they need not be swayed by the vicissitudes of public opinion or out of concern of losing their posts. The defeat of FDR’s court-packing attempts in the 1930s confirmed the independence of the judiciary from executive or legislative control. Again, this differs from other countries in which the head of the judiciary can be dismissed by the executive branch if they make a ruling that angers the regime.

Finally, there is the longstanding American principle of civilian authority over the military. Unlike in other countries, where the head of the military has a powerful influence over all areas of government, America was born with an aversion to military power being used internally against the citizenry which became enshrined in law. (One of the initial complaints that led to the American Revolution was the forced quartering of British soldiers in colonists’ homes.) America has never had a military coup in its history. Soldiers take an oath to obey the Commander-in-Chief who is a civilian and are taught to uphold the Constitution.

I have not done any kind of comprehensive study, but I bet that if you did you would find that countries with constitutions that are respected probably have at least two of these three features in common with the US – a homegrown, democratically produced constitution, an independent judiciary, and a military subject to civilian control. It’s not just enough to have a high-sounding document – the practical ingredients also have to be in place to ensure a government of “laws and not of men”.

Posted in Politics | Tagged: , , , , | 1 Comment »

Supreme Court considering major campaign finance overhaul

Posted by sanityinjection on September 8, 2009

Politico reports that the Supreme Court will be hearing arguments this week in a case that could have major ramifications for US campaign finance law. Specifically, the court is considering weakening existing restrictions on political advertising by corporations, unions, and non-profit groups.

Under current law, these groups are allowed to fund advertising on specific issues such as health care reform or climate change, but they are not allowed to fund ads for or against a particular candidate for office. Although many changes have been made to campaign finance law over the years, this particular aspect has been with us for over 100 years, as concerns about the power of corporations to influence the federal government were already being raised in Teddy Roosevelt’s time.

Opponents of campaign finance restrictions have consistently argued that spending money on political advocacy is the equivalent of free speech, and that such restrictions are a violation of the First Amendment. In the past, the Court has been skeptical of this argument, but recently the Court seems to be more open to loosening restrictions.

One point that I have not heard discussed much in relation to this issue is the question of foreign influence. Foreign citizens are prohibited by law from contributing to US political campaigns. But suppose you have a corporation, based in the US, but whose Board of Directors are all citizens of some other country – China, for example. Wouldn’t allowing such a corporation to spend freely on ads backing or opposing candidates essentially allow rich foreigners – or worse, foreign governments – to evade the law and exert unwanted influence on US elections?

I’ve gone back and forth on this issue. As a general rule I support fewer government restrictions on how individuals and groups are allowed to spend their money. But I have seen the potential corrupting influence of special interest groups in action, and I believe there is a compelling public interest  in combating that. On the other hand, I do think that corporations, unions, and other groups have the right to be heard on issues that are important to them – which they can be under current law. I am not convinced that current campaign finance restrictions are serving to muzzle free speech in practice. Witness the controversial op-ed piece by the CEO of Whole Foods opposing the House health care reform bill.

There is also an argument to be made that the Court is engaging in “judicial activism” and going beyond its mandate in expanding this case to rule on the broad scope of campaign finance restrictions. I haven’t reviewed the facts of the case closely enough to say whether I agree with this charge, but I do think those of us who oppose judicial activisim have an obligation not to dismiss it out of hand.

What do you think?

Posted in Politics | Tagged: , , , , , , , , | 8 Comments »

Sotomayor: Judge or trial lawyer?

Posted by sanityinjection on July 9, 2009

I return to the question of confiormation of President Obama’s Supreme Court nominee, Sonia Sotomayor. As readers may recall, I generally start from the position that the President has a right to nominate someone who shares his general political philosophy, provided he or she is well qualified.

With this in mind, I found this study by Washington Post writer Jerry Markon instructive. Markon and his colleagues looked at 46 different cases Sotomayor participated in where there was a split decision to try to get a sense of her philosophy and judicial approach. They concluded that Sotomayor seems to fit the label of a moderate liberal, well within what you would expect from a Democrat nominee.

As mentioned, that does not concern me. Nor do I question whether Sotomayor has sufficient legal and judicial experience to be properly considered for the Supreme Court. But there is something else that emerges from Markon’s story that I do find to be of concern. While there is no question that she studies the details of each case carefully and thoughtfully, what emerges is a picture of someone whose approach more closely resembles a trial lawyer advocating for a client than an appellate judge weighing the propriety of the actions of a lower court.  The suggestion is that Sotomayor has a tendency to want to retry the initial case rather than focus on whether the lower court acted properly. In doing so, she supports her arguments by pulling in a wealth of outside data that may or may not be directly relevant to the case at hand.

In short, I am left to wonder whether Sotomayor, in many of her opinions, is advocating rather than judging. Clearly that is not the role that Supreme Court Justices are supposed to play. I would hope that Sotomayor will be asked about this directly during her hearings. It will be interesting to hear what her response will be.

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Sotomayor: The Ricci case

Posted by sanityinjection on June 10, 2009

One of the aspects of Judge Sotomayor’s record that has drawn a great deal of scrutiny is her ruling in the Ricci v. DeStefano case. In that case, Sotomayor and two colleagues rejected the appeal of white firefighter Frank Ricci, who sued the city of New Haven for denying him a promotion after he scored well on the city’s promotion test for firefighters. The city refused to grant promotions to Ricci and other white firefighters who scored well upon realizing that black firefighters had scored disproportionately poorly on the test, claiming they feared they would be sued by the black firefighters for discrimination if they did.

Sotomayor has been criticized both for the subtance of her ruling against Ricci (which was upheld by the full appeals court in a 7-6 split and is now headed for the Supreme Court) and for the terse, one-paragraph opinion with which it was given.

I commend to your attention this excellent analysis of the legal issues involved by the WashPost’s Ruth Marcus. While differing somewhat with Sotomayor’s ruling, Marcus points out that under the law New Haven found itself in a position where it could reasonably expect to be sued by one side or the other no matter what it did. The “disparate impact” precedent holds that the city can be found guilty of discrimination even if no intent to discriminate can be shown, if its test results in a disparate impact on a minority group (in this case, blacks) which it clearly seems to.

The Supreme Court may choose to reverse its own previous ruling on “disparate impact”, but arguably Sotomayor’s panel lacked that authority. Still, Judge Sotomayor should be asked to explain why she thought a case this important didn’t deserve an opinion that delved more thoroughly into the legal issues involved.

Posted in Politics | Tagged: , , , , , , , , | 2 Comments »

Second Amendment faces most serious threat in American history

Posted by sanityinjection on June 3, 2009

Ah, the ironies of politics. It was just last year that the Supreme Court struck down the District of Columbia’s handgun ban in District of Coulmbia v. Heller. In doing so the court ruled definitively that the right to bear arms is an individual right, putting an end to the pernicious left-wing argument that the Amendment’s “militia” clause was intended to limit gun ownership to military reserve purposes. The decision was hailed as a strong victory for Second Amendment rights, which it was.

Then, just a week ago, Congress passed a bill that included an explicit protection of the right to carry a concealed weapon in a federal park (for persons authorized to do so under state law.) There was no serious attempt to kill the provision. High times for gun rights, yes?

Well, no. In fact, the Second Amendment remains under serious threat. I alluded to the problem in my post commenting on Judge Sotomayor’s nomination. There have been conflicting rulings from various appellate courts on whether the Second Amendment applies to states and municipalities. For example, the 7th Circuit Court of Appeals has just upheld Chiacgo’s municipal handgun ban on these grounds, while the 9th Circuit, in upholding a California municipal gun ordinance, held that the Second Amendment can be read as applying to states and counties. It is expected that the Supreme Court wille ventually have to resolve the confusion.

I am frankly dumbfounded by all this. The idea that any of the Amendments in the Bill of Rights can be held as not applying to states and local authorities is so dangerous that it borders on lunacy. Under such a philosophy, you could have no freedom of assembly in Pennsylvania, no freedom of religion and an established state church in Utah, and no freedom of the press in Florida. (In practice, state constitutions often explicitly guarantee these kinds of freedoms, so these are random examples.) There would be nothing to stop every single state from banning handguns, with the result that the only place you could legally own a gun would be the District of Columbia.

Even liberals do not want to destroy the Bill of Rights. Rather, their intention is to sidestep it only when necessary in order to advance their radical statist agenda. But their long-standing callous disregard for the letter and process of the law, in favor of a focus solely on outcomes, will come back to haunt them if this precedent is allowed to take hold.

Posted in Politics | Tagged: , , , , , , , | 3 Comments »

Obama nominates Sotomayor for Supreme Court: First thoughts

Posted by sanityinjection on May 26, 2009

It is tempting to rush to judgment concerning President Obama’s first Supreme Court nominee, Sonia Sotomayor. Judge Sotomayor has a fairly extensive judicial record which is already being mined by the media for juicy tidbits.

However, there is a reason that the Senate holds confirmation hearings. Judge Sotomayor should be afforded the opportunity to participate, through her statements,  in the public re-definition of herself as a jurist that accompanies every Supreme Court nomination. So, like the Senate GOP, I am going to refrain from taking a position until I’ve heard more from the judge herself.

I will make a few comments, though. The first is that as a general rule, I think the President should be entitled to the benefit of the doubt when it comes to his nominees – for the Court, the Cabinet, or any position. A difference in political ideology should not be sufficient grounds to oppose a Presidential nominee. Sotomayor is unquestionably a liberal. Well, duh. Did you think Obama was going to appoint a conservative? If he were to withdraw Sotomayor’s nomination for any reason, his second choice is not going to resemble Antonin Scalia. So it would be silly for the GOP to oppose Sotomayor simply because she’s a liberal. Nor does Sotomayor’s record suggest that she votes in a knee-jerk or thoughtless fashion. In fact, she’s rather known for aggressive questioning of appellants.

Of course, the judicial record I mentioned above contains a number of controversial items that I would argue are legitimate areas of concern. For example, Sotomayor is on record as stating that the Second Amendment only applies to the federal government and not to the several states. That argument, generalized to cover the other Amendments in the Bill of Rights, would allow states to abrogate rights such as free speech and freedom of religion if their state constitutions allow it. Thus, I will be eager to hear how Sotomayor chooses to put this portion of her record in context when it comes up during the hearings, as it surely will.

However, one must keep in mind the political context of this nomination. Assuming no major bombshells arise to derail the nomination, Obama can count on the votes of most Democratic Senators and one or two Republicans, who do not care to vote against her because she is (pick one) liberal, female, or Hispanic. This means that no matter how long the blustering goes on, Sotomayor is likely to be confirmed. Conservatives will have to gauge whether it is worth making a stink over Sotomayor’s record and risk being painted as racist or sexist for opposing her.  The GOP may choose to save its ammo for a later fight when Obama nominates John Paul Stevens’ successor. Also, the hearings will probably take place over the summer when fewer Americans are paying attention to politics. So there’s less to be gained by grandstanding by either side.

At the end of the day, I believe that unless a Presidential nominee proves to be seriously flawed in qualifications or character, we should defer to the President’s preferences, whether that President is a Republican or a Democrat. (I have not forgotten the political assassination of Judge Robert Bork, one of the most qualified individuals ever nominated to the Court, by Democrats on purely ideological grounds.) The question is whether Sotomayor’s confirmation hearings will magnify today’s concerns to prove to be such flaws, or not. Like political junkies everywhere, I will eagerly await the answer.

But the outcome of this should be important to all Americans. Not because Sotomayor is female (not the first or even second woman on the Court) or Hispanic (a first, but there’s always going to be another first – first Albanian-American, first disabled person, etc. – when does it stop being the primary method of viewing people?), but because the nine members of the Supreme Court are among the most powerful people on earth – as powerful as the President in their collective ability to make decisions that affect the lives of ordinary Americans – think Dred Scott, Brown v. Board of Education, and Roe v. Wade, just for starters. What that means is that we should all hope for a nominee who takes the responsibility of being a Supreme Court Justice with the greatest of seriousness, and who will use her or his legal experience and understanding of the Constitution to make decisions based on the body of American law, not to advance a particular political agenda, but rather to hold any and all political agendas subject to the same scrutiny and standards. Liberals dissatisfied with the Court up until now have felt that the majority of the Justices have not done so; if that is the case (and I don’t agree that it is), replacing a partisan activist Court with another one swinging in the opposite direction is not a victory for the rule of law, only an Orwellian swap between the oppressors and the oppressed (Read 1984!)

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What is the line-item veto and should President Obama have it?

Posted by sanityinjection on March 4, 2009

It is a truism in Washington that the same issues tend to come up year after year. In that vein, it’s not surprising that there is a new attempt brewing in Congress to give the President the line-item veto.

Most readers know that the President has the ability to veto bills passed by Congress. However, this power becomes almost useless when it comes to the budget. No President wants to veto an entire huge budget bill, much of which he may agree with, over a number of things in it that he disagrees with. This gave rise to the idea of the “line-item veto”, which would give the President the ability to strike out individual items in the budget instead of having to veto the whole bill. As with a regular veto, Congress could still attempt to restore those items  individually or collectively with a vote or votes to override the President’s veto.

Although a number of state governors have this power with regard to their own state budgets, the idea of applying it on the federal level has been controversial. Congress has usually been opposed to the idea on the grounds that it violates the separation of powers which vests the budgetary power with the legislature, while Presidents, unsurprisingly, have generally been in favor of it. Fiscal conservatives have backed the idea because they feel it will allow a President to cut out some of the waste and pork that Congress pads the budget with.

Finally, after the Republicans took over Congress in 1994, they succeeded in passing a law to give the President (Democrat Bill Clinton at the time) the line-item veto in 1996. Clinton was able to use this power for two years, and it is not a coincidence that the combination of a Republican Congress and a President with a line-item veto resulted in significant deficit reductions. Unfortunately, in 1998 the Supreme Court found the line-item veto law to be unconstitutional, agreeing that it violates the separation of powers.

To get around this problem, the new line-item veto proposal, sponsored by Congressman Paul Ryan (R) and Senators John McCain (R) and Russ Feingold (D), limits the line-item veto power so that the President can only strip out earmarks, not entire budget appropriations.

Passage of this legislation would put pressure on President Obama to live up to his rhetoric on fiscal discipline. But it would also give him a powerful tool to cut out waste and pork such as some of the nonsense in the current budget bill.

The fact that this is a bipartisan effort, and that Republicans want to give this power to a Democrat President, are clues that this is a real attempt at reform and not political game-playing.  I completely support this legislation and hope it passes. It is clear that Congress, regardless of which party is in charge, cannot hold the line on spending. Thus if we are going to have any fiscal responsibility we are going to have to empower our President to implement it.

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