Category Archives: The Courts

Update IV: ‘Elena Kagan As Scholar’ (‘Racist!’)

Affirmative Action, Bush, Law, Left-Liberalism And Progressivisim, Military, Race, The Courts

Eugene Volokh thoroughly and soberly assesses the scholarly record of BHO’s SCOTUS nominee, Elena Kagan, and concludes:

“Kagan, it seems to me, is a successful scholar whose interests have extended beyond scholarship, to government service and to educational institution-building. As a result, she hasn’t written as much as she would have had she only been interested in scholarship (though I suspect that her time in the Clinton Administration helped her produce her administrative law articles). But that reflects the breadth of her interests, and not any intellectual limitations.

… On then to my own evaluation of the First Amendment articles: I think they’re excellent. I disagree with them in significant ways (this article, for instance, reaches results that differ quite a bit from those suggested by Kagan’s Private Speech, Public Purpose article, see, e.g., PDF pp. 8–9). But I like them a lot.

The articles attack difficult and important problems (Private Speech, Public Purpose, for instance, tries to come up with a broad theory to explain much of free speech law). They seriously but calmly criticize the arguments on both sides, and give both sides credit where credit is due. For instance, I particularly liked Kagan’s treatment of both the Scalia R.A.V. v. City of St. Paul majority and the Stevens concurrence, in her Changing Faces of First Amendment Neutrality article.

As importantly, the articles go behind glib generalizations and formalistic distinctions and deal with the actual reality on the ground, such as the actual likely effects of speech restrictions, and of First Amendment doctrine. …

Kagan’s First Amendment work suggests a general acceptance of current free speech law, and an attempt to better understand it and make it more internally consistent rather than to radically change it. I can’t tell for sure whether this flows from a judgment about what’s more useful scholarship, from a largely precedent-respecting temperament, or from agreement with the underlying free speech caselaw. But my guess is that it at least in part reflects a general comfort with the current precedents, and a lack of desire to shift them much.

…On so-called ‘hate speech’ and pornography, the two First Amendment topics on which Kagan has most explicitly written, I likewise see little interest in moving the law much”

[SNIP]

Read the complete post.

“The enemy of my enemy may not be my friend,” writes Stephen Bainbridge, “but she’s probably acceptable”: “I don’t know very much about Elena Kagan other than that a couple of Harvard folks for whom I have a lot of respect think highly of her. When I look at some of the lefties who are opposing her and their reasons for doing so, however, I’m tempted to conclude that she’s the most acceptable–from my perspective–candidate Obama is likely to put forward for the SCOTUS. You can tell a lot about a person from who their enemies are.”

Yes, Old Olby doesn’t much like Kagan.

Update (May 11): The issue of Kagan’s scholarship, although narrow, is relevant as it goes to her intellect. I am pretty sure that if Volokh is impressed—if not necessarily in agreement—with some of her journal papers, that she is intellectually well-equipped. This is more than we can say about SotoSetAsides Mayor.

Kagan’s statism is, on the other hand, guaranteed too. I believe this is a prerequisite for a SCOTUS nomination.

Update II: I’m sorry that Kagan, “as dean of Harvard Law School, … aggressively restricted the U.S. military’s ability to recruit some of the brightest law students in the country” only “because Dean Kagan opposed President Clinton’s ‘Don’t Ask, Don’t Tell’ policy.”

She should have kicked the military bloodsuckers off campus as a matter of principle.

The lawful reach of army recruiters notwithstanding, I’d want to keep those body snatchers away from gullible university kids. The excellent series—it’s non-political but patriotic—“Army Wives” depicts the ugliness of recruitment. Granted, in “Army Wives,” the job of picking up vulnerable poor kids, pumping them up, and shipping them off to serve as cannon fodder in our wars is depicted as a noble one.

Update III (May 12): She’s a racist; the good kind—which is that she is more likely to privilege merit than skin color. And how do we know that she probably sins by trending toward meritocratic hiring? From the fact that as Dean and solicitor for BHO, she has hired few “blacks and browns,” as her detractors refer to themselves.

So that our hopelessly Republicanized and Palinized readers know, the hue and cry over Kagan’s “racism” is coming from the Stupid Party:

“31 of Kagan’s 32 Hires at Harvard Were White,” write the screeches at “RedState.com.” These people have few principles, but worse; they’re bereft of brains.

Besides which, if you are going to be a stickler for quotas, Kagan is probably in the color-coded clear, since her hiring practices no doubt comport, at the very least, with the proportional representation in the general population of the groups she has affronted.

“Wingnuts Furious About …. Kagan Not Hiring Enough Black People/Women,” notes Wonkette. It doesn’t take much—one feeble-minded fem—to recognize Republican frailties.

I quite like that she’s failing the wise Latina test.

Update IV (May 13): What I observed tongue-in-cheek about Bush and the left actually applies to all the actors in the farce of our politics:

“Left-liberals … believe a judicial activist is someone who reverses precedent. George Bush thinks a judicial activist is someone who disobeys the President.”

Bush, BHO and their respective political gangs and judicial picks don’t go by the Constitution; they go by judicial precedent. That’s the thing that is revered. To reverse precedent is considered a heretical.

Updated: America's Founding Philosophy

Barack Obama, Constitution, Founding Fathers, Glenn Beck, Individual Rights, Media, Natural Law, Political Philosophy, Rights, The Courts

Glenn Beck is invaluable in highlighting the constitutional underpinnings of the republic violated by almost every law enacted by both parties. However Beck’s discussion is generally incomplete (along the lines highlighted in the article “Life, Liberty, and PROPERTY,” where I also readily conceded that “The man exudes goodness and has a visceral feel for freedom”).

Again and again Glenn has alerted his viewers to Obama’s disdain for the Constitution as a “charter of negative liberties.” Said the president: (Transcript here)

If you look at the victories and failures of the civil rights movement and its litigation strategy in the court. I think where it succeeded was to invest formal rights in previously dispossessed people, so that now I would have the right to vote. I would now be able to sit at the lunch counter and order as long as I could pay for it I’d be o.k. But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as its been interpreted and Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the Federal government can’t do to you, but doesn’t say what the Federal government or State government must do on your behalf, and that hasn’t shifted and one of the, I think, tragedies of the civil rights movement was, um, because the civil rights movement became so court focused I think there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalition of powers through which you bring about redistributive change. In some ways we still suffer from that.
I’m not optimistic about bringing about major redistributive change through the courts. You know, the institution just isn’t structured that way.

To the president’s telling complaint vis-a-vis the Constitution being deficient in its articulation of negative liberties only, Glenn has retorted as follows: “That’s the way the founders designed it, because they saw what governments do when they are allowed to do stuff for you.”

I’m afraid that’s not quite it. Articulated by the Founders, in the philosophy of classical liberalism and natural law, negative liberties are the only authentic rights. Glenn must articulate more than a utilitarian perspective, which doesn’t do justice to the profundity of America’s Founding Fathers. Glenn is welcome to use the following explanation from “CRADLE OF CORRUPTION,” in my book (buy it), with attribution, of course:

“The only rights of man are the rights to life, liberty, and property. These rights exist irrespective of governments. Rights always give rise to binding obligations. In the case of natural rights, the duty is merely a duty to refrain from doing. My right to life means you must refrain from killing me. My right to liberty means you cannot enslave me. My right to property means you should not take what is mine, or stop me from taking the necessary action for my survival, so long as I, in turn, heed the same strictures.”

“If to exercise a right a person must violate someone’s life, liberty and property, then the exercised right is not a right, but a violation thereof. Because my right to acquire property doesn’t diminish your right to the same liberty, this right is known as a negative right. Negative rights are real or natural rights because they don’t conscript me in the fulfillment of your needs and desires, and vise versa. They merely impel both of us to keep our mitts to ourselves.” [“CRADLE OF CORRUPTION”]

[SNIP]

You see, positive liberties are rejected outright in natural law, unless undertaken voluntarily. So, dear Mr. Beck, the reason the Constitution is by-and-large a charter of negative liberties, as the president put it, is because positive, state-minted rights violate the individual’s negative (real) rights.

The Great Glenn in action:

Update (Dec. 18): Sitting in for Glenn, Judge Andrew Napolitano delivers a superb explication of the natural-rights doctrine, joined by Joe Salerno, whose lectures at the Mises Institute I greatly enjoyed, and John Tamny of RealClearMarkets.com. What a shame the Wall Street Journal’s statist extraordinaire, Stuart Varney, now tenured at Fox Business, gets to TALK over the Three Wise Men. I’ve had enough of the Stephen Moores and Stuart Varneys of the world, wrong for decades, yet able to keep lucrative careers going, as they pepper their verbiage with the occasional, non-committal, crudely stated truths (“government needs to be throttled”).

Allow freedom and reality to be heard for a change. Expunge the snake-oil merchants from forums friendly to freedom.

Readers, please send me the YouTube clip of this round table, which should be up very shortly (after all, YouTube is not yet run by the state).

Updated: America’s Founding Philosophy

Barack Obama, Constitution, Economy, Founding Fathers, Glenn Beck, Individual Rights, Media, Natural Law, Political Philosophy, Rights, The Courts

Again and again Glenn has alerted his viewers to Obama’s disdain for the Constitution as a “charter of negative liberties.” Said the president: (Transcript here)

If you look at the victories and failures of the civil rights movement and its litigation strategy in the court. I think where it succeeded was to invest formal rights in previously dispossessed people, so that now I would have the right to vote. I would now be able to sit at the lunch counter and order as long as I could pay for it I’d be o.k. But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as its been interpreted and Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the Federal government can’t do to you, but doesn’t say what the Federal government or State government must do on your behalf, and that hasn’t shifted and one of the, I think, tragedies of the civil rights movement was, um, because the civil rights movement became so court focused I think there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalition of powers through which you bring about redistributive change. In some ways we still suffer from that.
I’m not optimistic about bringing about major redistributive change through the courts. You know, the institution just isn’t structured that way.

[SNIP]

The Great Glenn in action:

Allow freedom and reality to be heard for a change. Expunge the snake-oil merchants from forums friendly to freedom.

Readers, please send me the YouTube clip of this round table, which should be up very shortly (after all, YouTube is not yet run by the state).

Update III: Cass Sunstein: Most Dangerous Czar By Far

Barack Obama, Bush, Constitution, Environmentalism & Animal Rights, Free Speech, Ilana Mercer, IlanaMercer.com, Law, Natural Law, Pseudoscience, Reason, Regulation, Religion, Science, The Courts

And very possibly, a future Supreme-Court justice. Sunstein, bosom buddy and intellectual soul mate to Barack, was confirmed the other day by the Senate. Cusses all around. The tenacious Glenn Beck, who forewarned about Van Jones, has been on the case. But WND’s Ellis Washington makes the clearer case (although he fails to appreciate that America IS already regulated to death):

Cass Sunstein: Regulating America to Death
By Ellis Washington

Animals should be allowed to sue their owners.

~ Cass Sunstein

Because people ascribe a degree of respectability to academics, intellectuals, philosophers and scholars, they can disregard the rights of the people much easier than a naked tyrant. In fact, Rousseau, Darwin and Nietzsche can go places Hitler, Stalin, Chavez and Obama could never dream.

As I have written many times, the Obama administration are the masters of misdirection and chaos theory; therefore, while the America people last week were transfixed on the resignation of “Green Czar” Van Jones, another even more dangerous fascist from the academy quietly slipped through the portals of power.

Last Thursday Cass Sunstein, a former colleague and mentor of Obama’s at the University of Chicago Law School, was confirmed by a Senate vote of 57-40 as the new director of regulatory affairs and information, an obscure but powerful agency within the Office of Management and Budget. Here is what the “regulatory czar” does: He regulates laws – past, present and future.

Sunstein is a friendly fascist who only “nudges” people to bow to his will. TV host Glenn Beck says of Cass Sunstein that he is “the most powerful invisible man you’ll ever see.”

Are we headed for a Nazi-style totalitarian abyss? Find out in “Defeating the Totalitarian Lie: A Former Hitler Youth Warns America” Judge Richard A. Posner, an intellectual mentor of mine and former colleague with Sunstein and Obama at the University of Chicago Law School, said the following about Peter Singer, a Princeton professor and a leading scholar on animal rights with whom Sunstein is often associated:

Since the publication of “Animal Liberation” [1975], Singer has received a wide range of philosophical challenges to his formulation of animal rights. … Richard Posner challenged that Singer failed to see the “radicalism of the ethical vision that powers [his] view on animals, an ethical vision that finds greater value in a healthy pig than in a profoundly retarded child, that commands inflicting a lesser pain on a human being to avert a greater pain to a dog, and that, provided only that a chimpanzee has 1 percent of the mental ability of a normal human being, would require the sacrifice of the human being to save 101 chimpanzees.

While Sunstein spent his entire career inventing rights for rats, dogs and pigs that would make the Constitution’s framers spin in their graves, he is even more despicable in casting aspersions against constitutional rights plainly delineated in the Bill of Rights. For example, here is Sunstein views on the Second Amendment right to bear arms:

“My coming view is that the individual right to bear arms reflects the success of an extremely aggressive and resourceful social movement and has much less to do with good standard legal arguments than [it] appears.”

In 2008 Sunstein co-authored “Nudge: Improving Decisions about Health, Wealth, and Happiness” with economist Richard Thaler of the University of Chicago. “Nudge” discusses how public and private organizations can “help people” to make better choices in their daily lives since apparently Sunstein and his busybody socialist colleagues of the academy think that We the People are too stupid to live our own lives our own way and accept the consequences. Thaler and Sunstein argue that: People often make poor choices – and look back at them with bafflement! We do this because as human beings, we all are susceptible to a wide array of routine biases that can lead to an equally wide array of embarrassing blunders in education, personal finance, health care, mortgages and credit cards, happiness, and even the planet itself. Space will not allow me to adequately detail the utter tyranny and naked assault on our constitutional rights Sunstein plans to launch against American capitalism in his new role as regulatory czar.

Here is a summary of the autocracy Americans can expect from Czar Sunstein: * Sunstein advocates a “Second Bill of Rights” even more totalizing and all-consuming than initially proposed by Franklin D. Roosevelt’s “New Deal” in the 1930s. Among these rights are a right to an education, a right to a home, a right to health care and a right to protection against monopolies. * Sunstein notes that personhood need not be conferred upon an animal in order to grant it legal standing for suit. * Sunstein has argued that “we should celebrate tax day.” * Rumor has it that Obama is grooming Sunstein as a future Supreme Court justice.

Last week Fox News legal analyst Judge Andrew Napolitano said, “[Sunstein] is to the left of Justice Ruth Bader Ginsburg.” The leitmotiv of Sunstein’s entire legal philosophy and worldview is encapsulated in two very evil and failed philosophies of the past: 1) Social Darwinism [evolution], and 2) Moral Relativism – a theory, especially in ethics or aesthetics, that conceptions of truth and moral values are not absolute but are relative to the persons or groups holding them.

In other words, nothing has more intrinsic value than anything else. Sunstein’s ideas on judicial minimalism and behavioral economics belie the fact that for almost 30 years he has assaulted the Judeo-Christian traditions of Natural Law so venerated by the Constitution’s framers to preserve America’s republic.

To Sunstein ideas like “liberty,” “freedom” and “Natural Law” are irrelevant and counterproductive to his grand, socialist view of law rooted in moral relativism and social Darwinism. That’s how Sunstein can have a scholarship named after his dead dog while concurrently mandating environmental policies that will put tens of thousands of American farmers out of business by fostering ever expanding environmental, land and water regulations that will de facto make farming too cost-prohibitive.

What Mussolini, Stalin and Mao did in the light to harm their citizens and deny them their fundamental human rights, Cass Sunstein, as Obama’s regulatory czar, will do in the night by slowly, irrevocably regulating America to death. Sunstein reminds me of Shakespeare’s “Othello” when the sinister Iago repeatedly whispered his verbal venom into the receptive ear of Othello (Obama), which lead to his demise. Indeed, Sunstein said it best: “There is no liberty without dependency.”

Update I (Sept. 12): I’m not mad about the cheapened Argument From Hitler (in the Comments Section). So far, Barack is continuing the “work” Bush and others before him began. Few Republicans fussed about the breakneck speed at which the Bush Administration concentrated power in the executive, to give but one example. Or the way it expanded the warfare state, to give another. So far, I don’t see a qualitative difference between Bush and Obama; they exist on the same continuum of accreting statism.

Update II: I wonder if crazy Cass would come for me if he read my defense of Michael Vick: In Defense Of Michael Vick I & In Defense of Michael Vick, Part 2.

Update III (Sept. 13): To the imperious reader who is unhappy with my disinterest in the futile, immaterial evolution debate: We are not about to go off-topic and veer into evolution. Take it behind the scenes with Myron. As for the “not good enough” complaint: More so than most columnists and writers, I have applied libertarian thinking to a wide-ranging array of topics, from intellectual property to antitrust, to Just War, to economy, Hollywood, Islam—you name it, I’ve written about it. Far more important than the idiotic evolution debate has been my defense of the unique, privileged, preeminent nature of humanity in the universe. The articulation of that philosophical position is far more significant than the idiotic debates about evolution, engaged in by the Godless neocons/Republicans and their adversaries. Now, if the bitching reader were a major donor toward my generally thankless efforts at shedding light where darkness is the rule—then I might indulge him. But, alas, he isn’t.

Addendum: Here’s fodder for another fit over my unorthodox positions: Even more disinterested am I in whether God exists or not. I conduct my life with morality and ethics. Some would say that’s godly enough. Others would demand communal worship. Frankly, I don’t care. It makes no sense to assert or fight over the irrational and the supernatural; that which cannot be proven. I respect believers and defend the Western, Judeo-Christian tradition–this is the sum of my work. That’s all that matters. To me, at least. (At that’s what counts.)