New blog

Over here.

The Referee Calls It at 4:39 p.m., 7/14/05

I could blog this subject indefinitely. But the Vote for Judges subtitle is "Blog on a Mission." The mission was to incite a judicial riot: subject federal judges to retention elections.

That ain't gonna happen. Not this year, anyway. With Roberts & Alito on the bench, reformist ardor has cooled.

So it's time to shut this project down. If you wander in and have any interest in reviving the effort, here's a white-papery proposal.

I'm outta here.

Gonzales the Too-Moderate

Cringe-making moment on Denver's local NBC news this morning:

"Some conservatives oppose Gonzales, saying he's too moderate."

"Too moderate": a gaffe both grammatically nasty and politically illiterate. One can't be too moderate, can one? But let's put that aside; it's not like mangled a phrase ever have I.

My more serious beef is with the idea that there's such a thing as a "moderate" judge. I don't use the word "hate" too much, but one thing I hate is dumbed-down news reporting. You see it most often on local newscasts. Anchors tend to finish off reading a report with a conventional-wisdom zinger like, "Experts have found no link between Saddam Hussein and al-Qaida."

Would it be too much for these people to actually read what conservatives say about Gonzales? I'm a conservative and a non-expert on Gonzales, but it seems to me that Ed Whelan's made a disqualifying case against him at National Review's Bench Memos blog. He'd have to recuse himself from every national-security case, and there are several, that will wind up before the Supreme Court over the next few years.

As for the business about him being a moderate, this apparently stems from his ruling as a Texas Supreme Court justice that a teen-ager, petitioning under a law passed by the Legislature, satisfied the requirement for having an abortion without notifying her parents. On this matter he and Justice Priscilla Owen famously disagreed. If there's futher evidence of his moderateness I'm not aware of it.

Regarding moderation and judging, you're either faithful to the intentions of people who write laws, or you write your own. We use conservative and liberal, blunt instruments as they may be, as shorthand terms for those positions. I don't know where moderate comes in.

Really, these news folk should get out more.

Court Handicapping

Back before O'Connor resigned, Ted Olson was this site's leading judicial-candidate Google-hitter. Olson's fading, though, likely because of his age. Harvie Wilkinson seems to be coming up on the outside.

The Coming Disappointment, cont'd

I wrote yesterday that the next Supreme Court justice would be a disappointment, for two reasons: President Bush is more Republican than conservative, and any nominee is a pig in a poke.

Illustrating well the latter is an article in the New York Times today by Todd Purdum, "Presidents, Picking Justices, Can Have Backfires." He covers a string of presidents reflecting on their nominees. I love these quotes:

"The biggest damn fool mistake I ever made."

-- Dwight Eisenhower on Chief Justice Earl Warren

"It isn't so much that he's a bad man. It's just that he's such a dumb son of a bitch."

-- Harry Truman on Justice Tom Clark

And so on. Amusement factor aside, this is a hell of a way to run a railroad (see the cause of Theodore Roosevelt's exasperation with Oliver Wendell Holmes).

Americans last year spent more than $1 billion deciding who'd govern them over the next two, four and six years; who'd make decisions on more than $2 trillion in government expenses; who'd take us to war or pull us out. A record 120 million of us voted. Serious stuff.

And yet for all that, our fate is largely determined by nine people over whom we have zero control, and who'll be in office for 30 or 40 years. It's one of the smallest institutions in all of government, with the budget of a large school board. It's staffed by justices who are ciphers at appointment, giving no indication to those who nominate and consent whether they'll rule as Cossacks or Bolsheviks. Neither past nor party provides a clue.

The situation's absurd. It amazes me that to point this out gets you the same looks as putting on an E.T. suit.
*****ConfirmThem notes a Rovian slip ... The GOPbloggers are ruling out Gonzales. Like it matters! .... James Joyner senses the national GOP trying to temper the disapppointment ... At Alarming News, they're hoping against hope ...

What Lincoln Said

I'm posting this quote here so it won't be such a pain in the ass to find next time:

"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes."

Tone down that florid 19th-Century absolutism, hit the paragraph key a couple of times, and I think Lincoln had a point. This is from his first inaugural, referring I presume to Dred Scott. Interesting historical side note: Chief Justice Roger Taney, who wrote the Scott decision, administered the oath of office.

Next Justice: A Disappointment

I don't have any inside sources at the White House, the Justice Department, or anywhere else who'd know the name of Justice O'Connor's replacement.

Those who are in the know agree on one thing: They don't want Alberto Gonzales nominated. But they've all got lists of five or 10 justices who'll fit the conservative bill: conservative here meaning, generally, a justice who'd apply the law and leave his own moral compass in his pocket.

I do know this, though: Odds are we conservatives will be disappointed, maybe not today, maybe not tomorrow, but soon and for the rest of the judge's life. For two reasons:

1. President Bush doesn't wake up each day thinking of ways to make America more officially conservative. He does, on the other hand, wake up thinking of ways to make America more Republican. There's a difference, and "conservative" at times ascends at the expense of "Republican."

Bush is first and foremost a party-builder. He constructed today's Republican Party in Texas from little more than ashes. And he's defied both conventional wisdom and experience in increasing Republican majorities in the House and Senate, and holding his own in state legislatures and governorships. Bush is interested in numbers, not penumbras.

How does Bush increase those numbers? By sending a message to the Court and conservatives with a nominee whose chief credential is originalism? Or with a Hispanic or African-American woman who has a decently conservative history? My guess is that he goes with the latter inclination.

2. The judge (or lawyer or politician or hairdresser) who's appointed will not turn out to be the justice we hope for. Not in every case, anyway. I don't know what it is about Justice Thomas that steers him so consistently to the text of the Constitution, but we're not likely to get another Clarence Thomas. Even if, at the time of his nomination, we think the new justice actually is another Clarence Thomas, we'll be lucky to get another O'Connor, someone who's been unpredictable but who hasn't really drifted left. If we're less lucky we'll get another Anthony Kennedy, who drifts left. And if our stars are way out of alignment, we'll get another Souter, for whom no drifting was necessary.

Want to temper both your disappointment and judicial drift? Endorse a constitutional amendment to involve the public in the retention of federal judges. Just sign your name on the petition at right.
*****
Customers who read this post also read: ConfirmThem, Southern Appeal, Daily Pundit, Decision '08, Michelle Malkin, Outside the Beltway, a rather cynical Poliblogger guest blogger, InDCJournal, Professor Bainbridge, Protein Wisdom, and SCOTUSblog. You might also read National Review, but we and they apparently have a mutual non-linking policy.

You WILL Sign the Pledge!

This is very cool. Sign the pledge to stay a week at the hotel to be built after Justice Souter's home is seized.

Wish I'd known about this site when I started my petition, which, if you're in the mood to sign stuff, have at it.
*****Other blogs, which I presume are anti-activist on matters judicial, mentioning the pledge: The Happy Carpenter ... Within the Cranium ... Club for Growth ... The Agitator ... Marginal Revolution ... Tom Hanna ... Daily Pundit ... Aussiegirl ... Mises Economics Blog ... Say Uncle ...

It's Not a Popularity Contest, But ...

Noticed at dalythoughts:

The Supreme Court's poll ratings are way down in the latest CNN/USA Today/Gallup poll. Just 42 percent approve of the way the Court's doing its job, and 48 percent disapprove. I doubt the Court's ever been upside down like that. Gerry Daly says the 10 Commandments rulings might have something to do with it. Comments zero in on Kelo, the eminent domain decision.

I'd suggest something more dramatic is happening. The Court's ratings started to go south in the summer of 2003. Before then, high 50s, low 60s. After that, low 50s. And now, low 40s.

The break is pretty clear, and it happened in the wake of Lawrence v. Texas. The tumble from low 50s to low 40s, however, may be the cumulative result of several cases decided this year, and to something else: Alternative media coverage of the Court's rulings.

Cases first: Kelo obviously ignited a firestorm, with much more potential to spread than the 10 Commandments cases. I think Americans take the Court's hostility to faith these days with a shoulder shrug. Can't really take the takings case lightly. Private property's serious business in America.

But you'd have to have a short memory to pin everything on Kelo. That's the year's third major controversy. No. 1 was Roper v. Simmons, in which the Court tossed the death sentence of a man who, as a minor, killed a woman just for giggles. No. 2 was Terri Schiavo, for two reasons: 1) the federal judiciary's refusal to get involved; and 2) people blaming courts in general for the actions of Florida state judge George Greer.

These developments, as recently as five years ago, would've been covered this way: New York Times and Washington Post write fawning editorials; conservative columnists gnash teeth; cases get one-sentence mentions on evening news; and, hey, is it football season yet?

Not so today. Brit Hume, as I recall, spent the better part of two shows discussing Roper and Anthony Kennedy's evolving standards. Criticism of the judiciary has been much better covered, in part because of the personalities involved but also because blogs are able to keep the discussion going. This blog still receives Google hits from people wanting to impeach Greer and Kennedy. There's some intensity out there; it's reality-based, as they say over on the left side of the blogosphere; and it's showing up now in the polls.

One can only hope that, along with the election returns, the Court reads pollingreport.com.

What You Can Do About It

"It" being the federal judiciary, of course.

I'm writing this post for a simple reason: Traffic surge and petition signatures (petition's over there on the right) in response to the Supreme Court's eminent domain and 10 Commandments decisions. And the reason I'd like to see that is that I shopped this around on Capitol Hill last week, and would like a concrete demonstration of concern when I follow up.

If you've read any of the posts under "What's the Point?", also at right, you'll know how I feel about these decisions. I think that, over the course of 200 years, our courts have, bit by bit, replaced a lot of our Constitution. I'm not saying the result has been good or bad -- it's been some of each, I suppose -- but the practice of routinely twisting the plain language and meaning of a governing charter is just wrong. Your church council wouldn't do it, your Monday night bowling leage wouldn't do it. Yet this most important of nations accepts it as routine.

I believe retention elections would solve the problem, as they have in many states, most significantly in California. If our Constitution doesn't mean what it says, then we no longer have a Constitution. We're just winging it. In a nation supposedly of laws, that's a dangerous situation.

So, if you've landed here out of outrage, sign the petition. You won't get email, I won't sell your name. It's an impact thing.

On with the shameless linkfest, and my apologies to: the American Spectator ... John Hawkins ... Confirmthem ... Ace ... Decision '08 ... Michelle Malkin ... James Joyner ... Betsy Newmark ... the Commissar ... Jeff Goldstein ... Southern Appeal ... Vodka Pundit ...

Electing Justice(es)

This blog exists because its author is one of the apparently few who believe federal judges should be, in some fashion, elected.

Richard Davis, a political science professor at Brigham Young University, has now stepped onto the gangplank even if he hasn't come on board. His new book, "Electing Justice," suggests a couple of ways by which Supreme Court justices would be elected.

As with the Vote for Judges proposal, the details in Davis's plan aren't that important right now. Were the Constitution actually amended to provide for elections, Congress would have to work out the details (you probably wouldn't want the details in the amendment itself). His justification for doing so is more interesting.

Like many other people, Davis believes the process of putting a judge on the Court no longer works well; and that it has in practice become something very different than what's described in the Constitution. Court-staffing at the beginning was intended to be the duty of America's political elite, with justices nominated and confirmed by a President and Senate one step removed from the electorate. State electors picked the president, and state legislatures picked senators.

Today, senators are elected by popular vote. While electors still pick the president, they're usually bound by law to the popular vote. Beyond that are the interest groups that have insinuated themselves into the process since the Robert Bork nomination (Davis provides examples of group activity prior to that, but I don't think anyone would argue that the Bork nomination is the demarcation line between the ancient and modern eras.). And now we've got the internet, which lets people like me get more involved.

Looking at all that, Davis sees an election, and as "one possible reform" of the process says the Constitution could be changed to reflect that fact. He uses examples that combine presidential nomination, Senate advice to the public, an election, and term limits. He introduces these as "under one plan" and "another variation," but they aren't attributed in this heavily footnoted book, so I assume they're his own.

Davis believes these types of elections will fix the nomination process, which he sees as having broken down over time with the emergence of external groups and mass media, the flux in the balance of power between the President and the Senate, the change in nature of those offices, and also to the ever-enlarging policy-making role of the Supreme Court.

Obviously (obviously if you're a regular visitor, anyway) I ascribe the nomination breakdown to the court's decision to be a policy-maker in the first place, which led to the rise of modern external groups, and I'd apply a remedy that affects all Article III judges. But another voice for elections is another voice for elections, and I'm glad to hear it.
*****A post script: Davis wants to start a discussion, and he goes out of his way to be fair to both sides. I can respect that.

But I do take issue with the pox-on-both-houses treatment of judicial nominations in the general sense. As much as Davis tries to avoid it, you can't read his book and not realize who's at fault here. For example, he lists the Top 10 group mentions in news coverage of Supreme Court nominations between 1981 and 1993. Eight of the 10 are liberal, nine if you count the American Bar Association. He inexplicably leaves mentions from Justice Breyer's 1994 nomination off the list, although I don't think that would have changed its composition. Further, the lone conservative group on the list, National Right to Life, was most active on a single nomination, that of Justice O'Connor.

Point being, the Court's expansion of its power to enact liberal social objectives made judicial nominations more important than they ought to be. Liberal activist groups wage war against conservative nominees to maintain the Court's policy-making role. I've seen nothing on the conservative side that even remotely compares. All you have to do is look at the nomination of feminist activist and ACLU staffer Ruth Bader Ginsburg, and compare it to Bork's, to see the difference.

Anthony Kennedy, Whiner

Justice Kennedy won't likely be named Chief Justice, but he's already the Court's Chief Whiner. Here he goes again about being criticized. Now he wants lawyers to explain to us rubes what the rule of law is all about.

My principal objection to Justice Kennedy's decisions, and the judicial structure that makes it almost impossible to overcome them, is that when it comes to rule of law, he's all rule and no law.

I'm surprised he didn't dissent from Justice Stevens' opinion in Kelo for the simple reason that it pays such lavish deference to state legislatures. When it comes to a contest between state law and Kennedy's personal opinions, the law has no chance.

So put a sock in it, Tony. You own one-ninth of the Judicial Empire. What more could you possibly want?
*****
Here's a link to the Traffic Jam ...

But seriously, folks...

So with the Raich ruling from a couple of weeks ago, and now the Kelo decision, we have a federal government that can regulate any economic activity under the rubric of interstate commerce; and state and local governments that can seize private property for any economic purpose.

Doesn't sound much like the government set up in 1787.

I don't really have a big problem with the eminent-domain outcome, because there's a fairly easy way to fix it if there's a majoritarian impulse to do so. All the people have to do is pass a state law or local ordinance regulating it. At least that's what I gather from commentary on the case. Too bad other Supreme Court decisions aren't so easily addressed.

Outcome aside, though, Justice Thomas once again writes for the non-lawyers among us who don't believe in voodoo, penumbras and emanations (cites deleted):

Long ago, William Blackstone wrote that "the law of the land ... postpones even public necessity to the sacred and inviolable rights of private property." The Framers embodied that principle in the Constitution, allowing the government to take property not for "public necessity," but instead for "public use." Defying this understanding, the Court replaces the Public Use Clause with a "Public Purpose" Clause (or perhaps the "Diverse and Always Evolving Needs of Society" Clause). ... This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and inccreased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a "public use."

Let's see. According to my hypothetical Supreme Court retention election schedule, Justice Stevens is up for retention in 2006. Three weeks ago, I didn't see anything rageworty in Stevens' recent record that would endanger his retention. But I believe his reasoning in this case could be turned into a campaign issue. Writing for the majority, Stevens said:

[T]his is not a case in which the City is planning to open the condemned land -- at least not in its entirety -- to use by the general public. ... [But] this "Court long ago rejected any literal requirement that condemned property be put into use for the general public."

The quote is from Hawaii Housing Authority v. Midkiff, which blessed a scheme suspiciously similar to Zimbabwean land redistribution. I'm surprised Justice Kennedy didn't write a concurring opinion saying as much.

Yeah, eminent domain might make a retention election interesting. Who'da thunk it?
*****
For responsible commentary on Kelo of which Mr. Justice Kennedy would approve, you could do worse that this metablog ... One of the Captain's correspondents points out that judicial activism isn't a new worry. Well ... duh! ... Confirmthem goes off message ... At Coalition HQ, Mark sees a New York Times editorial on Kelo confirming a trend ... I wonder if there's any point in being Michelle Malkin's 31st trackback ... Steven Taylor's appalled ... I believe the justices have finally done something to rally the proletariat ... Jared's glad he lives in South Carolina. I just hope he lives on the coast, cause I've been to the rest of South Carolina, and I gotta tell ya ... Feddie, lawyer though he may be, is on the same wavelength re Thomas's dissent ...

Professor Bainbridge says Stevens' Kelo opinion demonstrates the need for President Bush to pick reliable conservatives for the court. Given that Stevens, Souter and Kennedy are all Republican picks, don't you think it also demonstrates the need for retention elections, Professor?

Howard Dean Bites Foot

Back from DC. Lots of news this week on my beat. So I guess I'll get started with something that's not: Howard Dean biting his foot. This is "news" in the same vein as "dog bites man":

In honor of the 2005 Pride month Celebration, Democratic National Committee (DNC) Chairman Howard Dean will attend an event on Thursday, June 23 in New York City with the LGBT community and issued the following statement:

“The Democratic Party has a long and proud history in the fight for civil rights. We are the party that has always believed in equal rights under the law for all people, and we will continue to fight until every American, including our family and friends in the LGBT community, is treated with the respect and equality they deserve.

“There’s no place in civil discourse for hate and discrimination."

Sometimes you get the feeling Howard Dean was born yesterday. Does he really have no clue about the history of the Democratic Party, a vestige of which represents West Virginia in the U.S. Senate?

And is the "no place for hate" Dean the same as the "I hate Republicans and everything they stand for" Dean?

Light blogging this week

I'm in DC through Tuesday, back to Denver Wednesday, and probably will be swamped when I get there. So don't expect much blogging here this week.

Defunding the Left

That was a battle cry of conservatives during the Reagan administration, if you're too young to remember. De-fund the Left. Point being, there are hundreds of U.S. government agencies sending grant money to thousands of left-wing organizations and individuals. The National Endowment for the Arts was the most prominent offender. A lot of its 1970s output you couldn't print in a newspaper or air on PBS, which was Prominent Offender No. 2. The Left should be left on its own dime.

Which brings us to today's Peggy Noonan column. I don't often find myself at odds with Noonan, but today, calling for the re-funding of PBS, she made me cringe:

Conservatives argue that in a 500-channel universe the programming of PBS could easily be duplicated or find a home at a free commercial network. The power of the marketplace will ensure that PBS's better offerings find a place to continue and flourish.

This I doubt. Actually I'm fairly certain it is not true. And I suspect most people on the Hill know it is not true.

We live in the age of Viacom and "Who Wants to Be a Celebrity," not the age of Omnibus and "Leonard Bernstein's Young People's Concerts." A lot of Democrats think that left to the marketplace, PBS will die. A lot of Republicans think so too, but don't mind.

At its best, at its most thoughtful and intellectually honest and curious, PBS does the kind of work that no other network in America does or will do. Sumner Redstone is never going to pay for an 11-hour miniseries called "The Civil War"; he's not going to invest money and years of effort into a reverent exhumation of the rich loam of American history. Les Moonves is not going to do "Nova." Bob Iger is not going to OK a three-part series on relativity theory. Jeff Zucker isn't going to schedule a calm, unhurried adult drama like "Masterpiece Theatre." They live in a competitive environment.

She goes on to suggest stuff like a production of Hamlet starring Brad Pitt, which pretty much disproves her whole argument. We don't need PBS to do Hamlet. Kenneth Branagh's making quite a good living at Shakespeare. Even Mel Gibson is making money off this 400-year-old play.

Sumner Redstone won't finance a Ken Burns epic? Viacom owns 13 TV channels, plus Paramount Studios and a radio network. No, CBS won't fork over two weeks of prime time for over-acting voiceovers reading letters to "My dearest darling Clementine." And maybe none of the other Viacom stations would. But I think Nickelodeon would be foolish not to snap up Sesame Street.

But Viacom owns maybe 5 percent of the stations in the TV universe. I've seen more good science and history shows on the Not-PBS stations than on it: the Discovery channels, the Science Channel, the History Network. Historical drama? Let's start with HBO and "Band of Brothers." If HBO did Ken Burns, it might be not just informative, but entertaining to boot!

She wants PBS to focus on art, science, history -- with no art younger than 50. My favorite PBS show, "Antiques Roadshow," combines all three at one point or other. It would easily land on any of a dozen other stations, from HGTV to We to A&E. There are even TV stations for the leftie stuff. Showtime seems uncommonly fond of left-wing projects like "Farenheit 9/11" and "Angels in America" (or maybe that was HBO, can't remember). Sundance runs Al Franken's Air America show (and again, either HBO or Showtime did a documentary on the search for Air America's pulse).

No, these aren't "free commercial networks." Two words: Don't care.

Sure, some of PBS's programming will find no home. I'd be saddest about classical music, which appears rarely enough on PBS and nowhere else that I can find. But I'd get over it. And if you want it, and it's not on TV, go to a live performance. Or listen to it on the stereo. It's not like you have to see classical music performed.

With the (temporary, I'm guessing) reform of the NEA and PBS mired in the Bill Moyers era (his face is gone but his strings remain attached), public TV has moved up to Prominent Offender No. 1.

PBS gets about 15 percent of its budget from government, the rest from corporations (how weird) and viewers. If the Left wants PBS, let them have it and pay for all of it. There's plenty else to watch on TV. I don't expect PBS to tailor its programming to my tastes. But I don't think I should pay for a station that tailors its programming to yours.
*****
To the Lifelike Pundits, PBS is just irrelevant. The Caretaker says "dump PBS, and do it now."

Begging for Change

I was a little surprised by this James Pinkerton column today, which rails against a federal judge releasing vagrants and limousine liberals' reaction to it.

The short story is that New York City police, prosecutors and courts have been locking up panhandlers using a law found unconstitutional in 1993. Pinkerton keys on this New York Times article, but the online version must be different from the print because there's nothing about the judge ordering anyone's release.

Regardless, the city's law 'n' order establishment was obviously off course here, so I'm not sure what else Pinkerton expected the judge to do.

The law at issue was tossed out in Loper v. New York City Police Department, which was decided by the 2nd Circuit and never heard by the Supreme Court. I can't seem to find the opinion anywhere, but if I do I'll link to it.

I'm surprised because I was under the impression the constitutionality of laws against begging, vagrancy and other public-nuisance-type behavior was pretty much settled in favor of vagrants and against the need to maintain public order. Apparently that's not the case in fact, although it's become the practice. It's just too much of a hassle, apparently, to write a law that conforms with Loper, because whether it does or not, some homeless or street-artist advocacy group will sue to have it overturned.

That's a shame. If you've been to Washington, D.C., lately, or Seattle or San Francisco or any other major city, you'll know why. Here in Denver, we've got a wonderful outdoor mall, about a mile long, that's heavily infested with panhandlers. Denver's such a left-wing community that this may be just fine and dandy with the populace. Ditto D.C. But uncertainty about the law is also partly to blame, along with the decision in the late 1970s to release thousands of people from institutionalized care if they were deemed marginally self-sufficient.

The irony here is that, had New York's courts and police not turned an inexplicably blind eye to the 2nd Circuit's ruling in Loper, it might have been impossible for Rudolph Giuliani to make the city liveable again. There's got to be a city council somewhere in America that prefers Giuliani's quality-of-life vision to the 2nd Circuit's -- and that's willing to go to court to defend it.

And then there's the question I ask often: How would the Loper judges fare if they were subject to retention elections? At that time in New York, not well, I'd think.
*****
GOP Bloggers pick up on the "Who appointed this judge?" angle of Pinkerton's piece. And here's a Traffic Jam trackback.

Will Blog for Green Fees

Blogging's been light the past couple of weeks because we're gearing up a referendum campaign here at the agency. Blogging was nonexistent yesterday because of a trip to Bear Dance golf course.

If you're ever in the Denver area and have a half-day to spare, you couldn't do better than spending it there. The course is great, and there are a couple of holes with views that have to be seen to be believed. I just can't ever remember to stuff a camera into my golf bag.

Chief Justice Audition

Clarence Thomas's dissent in Raich was, on one level, a job interview.

It doesn't have anything to do with the writing, clear as ever; the reasoning, formidable as always; or what would have been the result had he written for the majority.

(I mean, it's a helluva lot more trouble to grow marijuana than it is to find a dealer. Especially in California.)

(So I've heard.)

No, it has more to do with the timing. Rumor has it that Chief Justice Rehnquist has given President Bush his 30 days' notice. And on the heels of that, Thomas comes along with this devastating dissent:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.

You have to think that George Bush read that, and the rest of the opinion supporting it, and thought, "This is my kinda guy. Note to self: Ask Alberto why my administration argued otherwise."

We know Bush thinks highly of Thomas (and also of Scalia, who wimped out in Raich with a concurring opinion.) And we know that hardly any of the talk about who'll replace Rehnquist involves Thomas.

Why is that, you reckon? Thomas has administrative experience; he was chairman of the EEOC (whose budget is about 10 times that of the Supreme Court's) for eight years. He's far more likely to put the Constitution above precedent, which I think is why Bush mentions him favorably. The Chief Justice does have some ability to steer the court, as Rehnquist did, on and off, toward a federalist approach. That power would be enhanced if Bush also gets to replace, say, Justices Stevens and O'Connor.

But the Court's not just about the law. It's about politics, too, and Thomas for CJ would be a political donnybrook. He's reviled by all the leftie groups, especially the NAACP and the Congressional Black Caucus, and he'd probably be filibustered. All the nastiness from his confirmation hearing in 1991 might be dredged back up (hell, considering what he'd be up against, he might not even want the job).

And the reason the fight would be so intense is, of course, that Thomas is a black conservative. The storm that generates was amply on display in Janice Rogers Brown's confirmation battle.

But while the NAACP and the CBC might howl, how would the rest of the African-American population feel about it? Think they'd say, "Sure, we'd like to see a black Chief Justice, but not if George Bush gets to appoint him!"? Wouldn't that seem a little unnatural?

Do it, Mr. President. Clarence Thomas is the right judge for the job. He's right for the Constitution, right for conservatives, right for Republicans. This should not be a difficult decision.

Getting out of Gitmo

Because the Supreme Court has extended its jurisdiction to Guantanamo Bay, Cuba, I wrote here that we should get out and move the detainees beyond the Court's reach.

Just reading the headline on this story makes me change my mind.