Monday, January 09, 2006

Professor Justice: Dubya Not So Dumbya

Previously by Prof. Justice: Holiday Correctness, Terminate Tookie, Fire & Hire, Democrats' Investment in Defeat.

Note from Prof. Justice:

Since posting my previous piece, “Democrats' Investment in Defeat,” I have received some critical comments from people on and off the blog. While some of the criticism is aimed, as usual, at specific statements and arguments, most of the comments are directed at its sharp sarcastic mode. In response, I would like to clarify a few points. First, it was intended to be an emotional diatribe, not a scholarly or analytical thesis. Second, for those of you who have read my previous posts, you have undoubtedly recognized that my typical writing style employs a weighty dose of sarcasm. Such a style is not uncommon among writers, particularly in political commentaries and its purpose is to entertain readers while simultaneously illustrating a point. Having said that, I readily acknowledge that my use of sarcasm in “Democrats Investment in Defeat” was, as we say, “over the top.” There is a significant distinction between using language to label individuals and/ or groups in order to characterize and articulate a point, and mere ad hominem attacks. Unfortunately, I blurred that distinction. Don’t misunderstand me. Some of my posts will be more emotional, some will be more analytical and others will merely advance some speculative interpretation of a series of events, such as the following piece on the appointment and confirmation proceedings of Judge Samuel Alito. Regardless, I am humbled that you are reading and grateful for all your comments, regardless of whether they are intended to praise, disagree or criticize.


(All quotes attributed herein are intended to convey the sum and substance of the speaker’s statement and is not necessarily the speaker’s exact words. In all instances, however, the meaning of such statements will be unchanged.)

Something that has not attracted the same level of attention from the press, but is perhaps more intriguing than his successful navigation through Iraq, is President Bush’s brilliant orchestration of the recent Supreme Court nominees. The judiciary, more than any other entity in our system of government, exists specifically to pass judgement on the delineation right and wrong. This is why achieving a liberal majority, or at least preserving a divided Court with a fifth justice as a “moderate” (read: liberal activist who will legislate from the bench), is of paramount importance to the left. But their hope of accomplishing their objective is all but extinguished and will soon vanish for decades to come. And they know it.

Now more than ever before in our history do we need the Supreme Court to adhere to the authority granted to it in the Constitution: To serve as the supreme and final arbiter of the law. In the 1803 landmark case of Marbury vs. Madison, the Supreme Court defined the judiciary’s review power by stating that “the province and duty of the judicial department is to say what the law is. . . . If two laws conflict with each other, the courts must decide on the operation of each.” Nowhere does it even imply that they are permitted to make their own rule if they don’t like the ones before them. The President must choose justices who will not misuse their power by manipulating the law according to their ideology. Given what’s at stake, one has to wonder whether the Democrats would attempt to block any judge the President would nominate.

Knowing, however, that breaking a filibuster would be impossible (thanks to the “gang of fourteen,” the President skillfully selected John Roberts to replace the retiring Sandra Day O’Conner. Before the President’s press conference announcing Robert’s appointment was even finished, the left began their evaluation of Roberts. The left was furious that President Bush selected a conservative white male to replace a “moderate.” But I don’t believe that the President originally intended to appoint Roberts to fill O’Conner’s seat. The President undoubtedly expected Chief Justice Rhenquist to leave the Court first and wanted Roberts to succeed him as Chief Justice. An old fashioned conservative at the tender young age of fifty, Roberts would be appointed to steer the direction of the court for years. And best of all, Bush averted a certain bloodbath confirmation hearing had he nominated Scalia or Thomas as Chief Justice. Of course, in the end, O’Conner stepped down first, but the President didn’t change course. There was no need. If Roberts survived the confirmation hearing, then as soon as Rhenquist stepped down (or passed away as it turned out), the President would elevate him to Chief Justice. That would be impossible for the liberals to block, for a block would require a vote against Roberts. Being that they just voted for him, a vote against Roberts would seem very hypocritical (and besides, not everybody enjoys voting against things after they vote for them). This would be too difficult to justify, especially since the balance of the court would not have changed. Remember, O’Conner agreed to remain until a replacement was confirmed. There would still be only four conservatives, at most, on the Court. This is precisely what made Roberts such an attractive choice to replace Rhenquist from the very beginning. Essentially, he was Bork-proof. Plus, there was no reason to think that he wouldn’t sail though the confirmation hearing seeing as though he is clearly far brighter, sharper and more articulate than any senator.

When the president nominated Harriet Miers, it raised eyebrows on both sides. For the liberals, the chance that she would turn out to be an O’Conner was better than someone who was clearly a Scalia or Thomas. Of course, they were hardly lauding O’Conner’s “moderation” in the 2000 election aftermath initiated by Gore and the Democrats by refusing to comply with Florida Election Law (which required a recount of the entire state rather than the three counties they figured on winning). The Court decided that case with O’Conner being the swing vote as she often was. Nevertheless, with the advent of a possible “moderate” in Miers, O’Conner served their purposes and was held up as the weathervane of moderation that all other justices should aspire to. For the conservatives though, the Miers appointment burst the Bush support bubble. Conventional thought was that after all the years they had suffered and waited in agony to elect a conservative president who would appoint original intent justices and achieve a conservative majority on the Supreme court, this was the moment they had longed for. Through all the “stealth” appointments who were billed as conservative, believed to be originalists and who were easily confirmed by liberals, most ended up otherwise, e.g., Souter, Stephens, Berger, Blackmun and even O’Conner. And now, they were once again sold out by an incompetent President seemingly determined to placate the Democrats. He had already got his man in as the new Chief, so why not compromise a little. Take the path of least resistance rather than engage in a fight. Though as hard as he appeared to sell Miers to the right, the President was never able to convince the conservative faithful that she would get the job done simply because he said so.

Though Bush did make a serious tactical error by reducing Miers’ appointment to one of religious conviction, he had little choice. The seven senators, a/k/a/ “Gang of Fourteen” (seven Republicans and seven Democrats) had clearly communicated their unwillingness to do battle for the President’s nominees. He was left with no option but to resort to a compromise candidate who would pass through the left. How else do you explain the contrast between his appointment of Roberts, who was arguably the best possible person for Chief Justice, and his appointment of Miers, who has never been a judge (although throughout history, many have not)? Because the seven republican senators from the Gang of Fourteen left him without any other choice. However, the conservative base, both inside and outside the Senate, roared in opposition and begged the President not to squander their golden opportunity to return the Court to its rightful role. The president responded with Samuel Alito, another conservative white male.

Confident that his base is now behind him, the only way for the Democrats to rally a filibuster to prevent Alito from receiving a floor vote is with all seven of their maverick senators, plus a few conservatives. That is highly unlikely to happen because the principle part of the Gang of Fourteen’s compromise was that absent “extraordinary circumstances,” they will not participate in any filibuster of judicial nominees. Many of those senators have already gone on record stating that merely disagreeing with the political philosophy of a candidate does not constitute “extraordinary circumstances.” Nevertheless, many Democrat senators have been and will continue to desperately vilify and demonize Judge Alito. This is because after having gradually lost their power since 1994, when the Republicans first took control of the House of Representatives, they presently control nothing. They lost both the executive and legislative branches of government at the ballot box. Their last hope of accomplishing through the judiciary what they can’t at the ballot box is to gain control of the judiciary by blocking the confirmation of any Bush appointee. How else do you explain the hypocrisy and hysterics of their recent rhetoric?

Since Alito’s appointment, the Democrats and other leftist organizations have repeatedly attempted to paint him as a racist, bigot and sexist. Ted Kennedy implied that Alito is a racist because there are “troubling aspects of Alito’s record in regards to civil rights and his commitment to ‘equal justice under the law,’ that he “couldn’t find anything in his writings that showed he is opposed to discrimination” and that “average Americans don’t get a fair shake in his courtroom.” Evidence of this, senator? Only his job application submitted to the Reagan Administration in which he acknowledged membership in a ideological conservative organization and belonging to a club that allegedly restricted membership to females and minorities. Ted, have you forgotten that you party’s majority leader, Robert Byrd, for more than a decade was a former grand wizard of the Ku Klux Klan? Are you aware that the modern Democrat’s patriarch, FDR, appointed former Ku Klux Klan member Hugo Black to the Supreme Court? This from the same person who, during Chief Justice Roberts’ hearings, attempted to cross-examine Roberts by quoting from one of his opinions. The quote, however, was actually Roberts quoting the trial testimony of a witness. Pat Leahy wants to know whether he will “allow the government to intrude on our constitutional rights by authorizing illegal wiretapping.” That’s like asking, “If confirmed, do you intend to stop beating your wife? Chuck Schumer is demanding that Judge Alito provide his personal opinions on political issues such as abortion and civil rights and how he intends to rule on them in the future so that, “he won’t swing ‘the fulcrum of the court’ to the right by replacing Justice Sandra Day O’Connor and that he is more than just a darling of the conservatives.” Schumer justified his demand by stating that it is critical for Alito to “fully” answer all such questions because he has written extensively on these issues as a judge over the last decade and a half. But a few months ago, Schumer demanded the same from Roberts precisely because he had not written on these issues during his eighteen months as a judge. Sorry Charlie, the real reason you make this demand is because, as you said, “I have serious concerns about that record. . . . You give the impression of being a meticulous legal navigator, but, in the end, you always seem to chart a rightward course.” And you can’t stand that. Understand that no judge of even modest competence would dare issue an opinion on a case without having first established the facts. It is therefore patently incomprehensible to expect Judge Alito to state how he would rule on a case that does not exist and in the absence of any specific facts.

It is interesting that during Ruth Bader Ginsberg’s confirmation hearings, the Republicans, though completely opposed to her far left political and social views, including her openly embracing the idea that there was a constitutional right to an abortion, did not hold that position against her. Instead, they questioned her only with regard to her legal acumen and judicial temperament to serve as a Supreme Court Justice. Schumer, when confronted with this stated, “that was different.” Yeah, because a Democrat appointed her (President Clinton) and they agreed with her views. Perhaps the most honest indication of the Democrat’s motivation to block Judge Alito was House minority leader Nancy Pelosi’s statement that these confirmation hearings were of utmost significance is when she said that it wasn’t good for the country to have one party to be in control of all three branches of government.

So, does Judge Alito have the intellect necessary to bring honor and respect to the Court? Does he possess the judicial temperament necessary to make sure that the court is a body that interprets the law and doesn’t try to write the law? Listening to those he know him, the answer is most definitely. He is probably smarter than most, if not all, the senators and appears to have an unflappable demeanor. His prior judicial conduct indicates that he carefully scrutinizes all the facts and arguments before fairly rendering the best decision based on the law, not his ideology. He has received the highest rating possible as a judicial nominee from the American Bar Association.

As his confirmation seems inevitable, President Bush will have the distinction of not only appointing two new justices to the Supreme Court, one of whom serves as Chief Justice, but will have successfully solidified it as a court that will limit its power to the original intent of the Constitution and the Marbury standard for the next several generations.
Professor Justice practices Criminal Law in New York, teaches trial advocacy, and is a Professor of Business Law.
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  1. Regarding Prof. Justice's first note, I don't think sarcasm and bitterness are necessary in order to make ones point. And there are more than enough emotional diatribes on the internet as it is.

    Regarding the new essay, first, there are typos in that the late Chief Justice's last name is spelled Rehnquist.

    Second, a few fact checks: Robert Byrd was a member of the Ku Klux Klan in his 20s, but not for nine years and he never had more than a local leadership position. He definitely was not a "Grand Dragon". (I don't think the Klan even has a position by that name.) He has publicly regretted his involvement. Hugo Black had also been a member of the Klan in the 1920s, but according to the Wikipedia article on his career, apparently resigned before running for the Senate. (It is worth noting that during the 1920s, when Black was a member, the Klan controlled many local governments and possibly a few states. By the time Byrd joined, it had been reduced to a shadow of its former self -- thank God!)

    Prof. Justice brings up original intent and Senator/Justice Black in the same essay. Justice Black was very influential in developing the doctrine that the 14th Amendment forced the limits of the Bill of Rights onto the states. Thus, despite his one time membership in the Klan, he was most definitely not an originalist but an innovator -- effectively on the side of minorites. Prof. Justice may disagree with that, but there is now a pretty strong body of constitutional law with that as its basis. The original intent of the Constitution did not apply the Bill of Rights to the staes, which were thus permitted to have official religions, restrict civil rights of those who belonged to the wrong religion, force defendents to testify against themselves, and to take private property without fair compensation. I certainly would not support a return to any of these!

    Now, most if not all state constitutions today have similar if not stronger provisions. For example, there is an establishment of religion clause in most state constitutions that explicitly prohibits any governmental support of any religious institution. So one can argue that I don't have anything to worry about. The problem I worry about here is the lack of independence of state judiciaries. The best recent example of that was in Texas for the DeLay trial when it took quite a bit of shopping to find a judge who wasn't completely entangled with either the Democrats or the Republicans, because judges there are elected in partisan elections!

    Prof. Justice certainly knows the history of corrupt local law enforcement in this country. While I doubt any states will accept the originalist permission to re-establish an official church, the Bill of Rights protections against governmental abuses are more needed against the strong arm of the local council and state legislature than against the US Congress and President.

    If I were one of the senators on the committee I would ask Judge Alito if he really believes we should return to this original intent. I hope that he does not.

  2. ProfJustice emailed me this...

    I believe my note was explicitly clear regarding the use of sarcasm. No where did I say or imply that it was necessary. All I said was that it is a commonly accepted style. If a reader does not find it worthy of reading, they need not do so. As for the surreptitious insertion of "bitterness" with sarcasm, they need not necessarily go hand in hand. For a textbook illustration of bitterness, however, all one needs to do is look to the leftist Democrats since the election of George W. Bush in 2000. They have incessantly expressed their "bitterness" ad nauseam, to the point where it has turned off many "moderate" voters. Of course, that depends on which poll you look at and they can always be manipulated, but I'm curious whether Mr. Hall would find the left's (which includes politicians, liberal media outlets and Hollywood)indiscriminate name calling of our president, vice president and anyone else associated with him just as inappropriate. I mean, if there is already enough of it on the internet, then there certainly is enough of it emanating from the Democrats in Congress and other leftists. And I agree that there is enough "bitterness" on the internet. Just go to

    As I noted in today's piece, Teddy Kennedy strongly insinuated that Judge Alito is a racist. Why? Because he asserts that the Judge won't rule in favor of minorities or females? First of all, he is dead wrong. I could point to several cases in which Judge Alito decided with the majority in favor minorities. Though I cannot recall the name, there was another case where he ruled in favor of a police officer that had suffered religious discrimination because of his belief that required him to retain his beard. It is patently clear that he is anything but a racist, sexist and other xxxxists.

    As for Mr. Byrd (and the source I checked did indicate that he had served in a significant leadership position not limited to local involvement) and Mr. Black, the point was not when they were members and when they publicly regretted their involvement, not that I would be persuaded by their ostensible sincerity. I'm sure they did regret that their involvement would not fare well in the public eye. Nor am I persuaded by the argument that they worked to enact the 14th Amendment. Political patronage demands that they as did the Democrat party line of federal government intrusion of a state’s right to decide for itself. I'm certainly not criticizing its passage. I emphatically agree that basic human rights are guaranteed by the Constitution and that the states should be obligated to adhere to them as well. Prior to the passage of the 14th amendment, many states had an attitude that they could treat their citizens any way they choose, but others, the federal government in particular, could not. I would go a step further and argue that not just historically, but today as well, we worry about local government corruption. Frankly, I worry about it federally as well and across the entire political spectrum. However, it is a far leap to conclude that having original intent Justices will either result in the resurrection of the extreme civil rights violations to which Mr. Hall points or lead to a lack of an independent judiciary. In addition, I don't believe that the judiciary was really ever that independent to begin with.

    Moreover, Mr. Hall's characterization is somewhat disingenuous. He implies that an originalist or original intent ideology necessarily prohibits any reasonable inference of any citizen’s rights and governmental powers beyond the actual language of the constitution. That is hardly the case. Such a philosophy is generally referred to as a strict textualist and as far as I can tell, only Justice Thomas qualifies as one. Over the years of reading Supreme Court opinions, I did not see the late Chief Justice Rehnquist or Justice Scalia as strict textualists. Certainly, there is to be some reasonable inferences logically drawn from the language in the constitution. And the framers presumably intended it that way when they described the constitution as a living and breathing document. However, from many their individual writings and from the tenor of the document itself, it is evident that they were terrified of a large, overbearing and powerful federal government. Besides, if that were true, then even the Marbury decision would violate the constitution since that decision interpreted what the judiciary's role is. The constitution didn't specify that. They only provided for the Supreme Court's creation and designation as the final arbiter.

    There is an enormous difference between independence and legislating from the bench. Independence merely requires that our judges feel free to interpret the law, not create new law), consistent with the parameters set forth in Marbury, i.e., to decide between laws that conflict and determine their application. Judicial activism, however, is not merely the establishing of a new or modified precedent by applying existing rules of law. It is when they go beyond those laws and create new ones that will effect social change, or to accomplish through the judiciary what they cannot through the ballot box. When one looks, as objectively as is humanly possible, it is readily apparent that the federal government's power far exceeds that which was intended by the framers of the constitution. That is something which needs to stop and in some cases reversed. It does not mean that Roe will be overturned, even by justices who disagree with it. Original intent justices are not foreclosed from respecting long standing judicial precedence. Nor does it mean, as the Democrats would have us believe, that "the clock will be turned back on civil rights and freedoms." Those are merely scare tactics. And it certainly does not mean that justices who believe in such a philosophy are racists, bigots, sexists, etc . . . any more than politicians who conveniently renounce their overtly racist behavior to get elected. It merely means that justices should return to their proper role, which is to say what the law is by interpreting the constitutionality of that which the legislative and executive branches do. Incidentally, in addition to the American Bar Association giving Judge Alito the highest rating possible, they did so unanimously. If Alito was a racist and as dangerous to civil rights as Mr. Hall suggests, I am certain they would have withheld such a rating. The ABA is not exactly a right wing association. If anything, they would likely be in the Democrats’ back pocket.

    I could, in this as well as other posts, spend considerable time listing example after example and proof after proof. Such is not the aim. Rather, it is to provide a perspective on various issues.
    With all due respect to Mr. Hall, his opinion of whether there is already enough of it on the internet, while he is obviously entitled to it, is not relevant. I very much enjoy blogging and with Ezzie's permission, I intend to continue. However, because I am already constrained by time and pre existing obligations, contributing to this blog is challenging enough. Compelling myself to regularly respond in detail to each critical comment is impracticable. I have my political and social ideology and I write from that perspective. Those who have differing ideologies will inevitably disagree. And while I enjoy this forum and style of debate, I simply cannot respond in kind each time. Accordingly, please do not interpret my silence as a concession or as arrogant.

  3. Quick note from myself: Malkin has a good post detailing cases where Alito has supported minorities' rights.

    Supporting minority rights should be done when it makes sense and is fair; not when it is reverse discrimination or stupid.

  4. Byrd was a Kleagle and Exalted Cyclops in the KKK, and was told by a Grand Dragon he would make a great leader (which made him proud) - however, it doesn't appear he hit Grand Dragon himself. He also, after he'd switched to politics, send advice to Grand Dragons. Clearly he had some power and weight.

  5. I did not defend either, nor any other namecalling against President Bush, nor did I defend Sen. Kennedy's statements. I also never called President Clinton "Bubba" as did Prof. Justice.
    There is no reason for that. Prof. Justice of course has a right to engage in name-calling and sarcasm, but such does no credit to someone who clearly has good arguments to make, as he does.

    Regarding some specific points:

    Of course I would never imply that Mr. Byrd or Mr. Black authored the 14th Amendment -- it was enacted in the 1860s! Prof. Justice is
    also incorrect in saying Mr. Byrd followed a "Democrat party line of federal government intrusion". First, it is the "Democratic" party. Second, Mr. Byrd opposed most of the important civil rights legislation of the 50s and 60s. To show one important example, he spoke for 14 hours against the 1964 Civil Rights Act, a particularly intrusive document (which was supported by a larger percentage of Republicans than Democrats). His main legacy of his long tenure in the Senate is mainly the amount of federal money he has channelled into his state rather than any ideological tack or substantive legislative achievement.

    As a Senator, Mr. Black did indeed support the intrusions of the New Deal (many of which were tossed out by the 1930s Supreme Court before he became a member and helped turn the court around). I would be interested in Prof. Justice's opinion of some of Mr. Black's court decisions if he has time to post such.

    I am somewhat reassured by the distinction Prof. Justice makes between "textualist" and "originalist" interpretations. I did not suggest that Judge Alito was racist and I do not characterize him as dangerous to civil rights. Judge Alito has been an appeals court judge for a very long time and as a result there are many decisions that can be used to evaluate his record in real, as opposed to a hypothetical cases. The Washington Post made a systematic analysis of his decisions:

    In a perfect world, this should reduce the level of hyperbole on this one, but we don't live in such a world.

    My concerns are partly a result of my background: I grew up in an area that had segregated housing and schools and have personally seen redneck racist police in action as recently as the 1980s. And the stories I've heard about race, sex, and religious discrimination in the workplace just in the past few years are chilling to anyone who idealizes a color-blind society. These kinds of experiences make me very happy that local governments have to be concerned about federal oversight and both the textualist and originalist interpretations would appear to limit that oversight. It is easy to delude ourselves into thinking that the problems of the past are completely behind us.

  6. Charlie, I'm a bit young to know most of this stuff, but how does that reflect on Alito? His decisions, at least from the ones Malkin had, seem to be color-blind in their logic.

    I'm also not sure why textualist and originalist interpretations limit that oversight. If anything, when one gets away from those, it seems that the rules become shaped primarily by the biases of the people on the court - which is far more dangerous, as it is unpredictable and may overcompensate one group over another.