Category Archives: The Courts

The Bushies New Judicial Pick

Bush, Constitution, Justice, Law, Republicans, The Courts

Bush’s new Supreme Court nomination may turn out to be the cathartic event to push his loyalists over the edge. Yes, some still imagine Bush is a conservative rather than a radical, faithless to tradition, constitutional or other. After taking a handbagging from Laura Bush, the president appointed Harriet E. Miers to replace Justice Sandra Day O’Connor. The woman is a veteran administrator, and the president’s personal lawyer and confidante (cronyism? You don’t say!) As ominous: Senate Democratic leader Harry Reid is also hot for Harriet. To say she hasn’t a discernible judicial philosophy is an understatement. But why would Bush care whether she can tell Blackstone from Bentham when he can’t? The president simply wants to ensure his appointees vote as he expects them to. Left-liberals, like Catharine Crier of Court TV, believe a judicial activist is someone who reverses precedent. George Bush thinks a judicial activist is someone who disobeys the President.
P.S. Striking down unconstitutional laws is not judicial activism. Judicial activism means 1) minting new rights not in the Constitution 2) striking down laws to comport with these freshly minted unconstitutional rights.

Update: A must read today in The Walls Street Journal is Cronyism: Alexander Hamilton wouldn’t approve of Justice Harriet Miers by Randy Barnett. Smart-alecky comments about Hamilton being a centralizer are not germane to Randy’s argument, of course. I’m only preempting the perennial libertarian red-herring harangues.

Judge Roberts: Smooth Operator?

America, Bush, Justice, Law, Republicans, The Courts

It’s hard not to warm to Judge John G. Roberts Jr. His poised and humble demeanor accentuates the lack thereof in Charles Schumer and Joe Biden. He doesn’t display the two Democrats’ detestable uppityness. He’s also easy on the eye. (So he pancaked his face a bit. That’s nothing compared to Botox Babe, House Democratic Leader Nancy Pelosi.) I like that he never gets defensive.

Ditto for what he had to say about the case of Kelo v. the City of New London. As if the public-use clause was not bad enough, The Court, as I understood it (perhaps I didn’t), affirmed the transfer of private property from one invariably reluctant owner to another eager and well-connected one. All for the Common Good. In no way can this decision be framed as deference to Connecticut’s sovereignty. This might have been the case had The Court declined to consider the case. Kelo, to all intents and purposes, has nationalized such unjust takings. In any event, Roberts retorted by reminding Congress of its duty to step in and uphold rights. Not bad.

I liked the way he responded to Republican Arlen Specter’s petulant demand that Congress be coddled. The chairman of the Judiciary Committee asked that Roberts not consider his method of reasoning superior to that of Congress. (From where did that come? Specter’s Inner Child? Maybe it’s an inside joke.) Roberts reverted masterfully to the Constitution, and spoke about “institutional competence,” as opposed intellectual competence (neither of which the Congressional clowns possess).

The overweening Biden was knocked out nicely. He ventured that Roberts owed the electorate more than he was giving up. Roberts reminded blowhard Joe that he was not standing for an election. Rather, if confirmed, he’d be going on the bench to adhere to a judicial process—an impartial one, not predicated on promises made to special interests.
When asked about free speech, he quoted jurist Louis Brandeis’ “sunlight is the best disinfectant.” Again, good move.
But, here’s the thing that unsettles: Roberts seems to be all about the moves. Is that good?
Some Senator, whose name I can’t recall, posed The Mother of All Questions (in my decidedly unmainstream opinion). This good fellow asked Roberts whether the Administrative State under which we strain comports with the Constitution and the Founders’ vision. The Managerial State—its endless rules and regulations—whence does it derive its legitimacy? It wasn’t that Roberts was flummoxed by this First-Principles quandary; it just seemed alien to him. It swooshed right by. He answered what was a philosophical question with a legalistic ramble about administrative law. I find it hard to believe such a gifted man would misconstrue so simple a question. So I worry.
William Rehnquist did not believe the procedures governing bureaucracy-stiffened administrative agencies encapsulated the Constitution’s original scheme. In a superb (and stylish) piece in The Wall Street Journal, Randy Barnett elaborated on the late Chief Justice’s “New Federalism.” Case by case Rehnquist had begun to resurrect the eternal verities of limited and delegated federal power and States’ Rights. Lo and behold: in attempting, piecemeal, to revive the notion of a constitutionally limited government, Rehnquist even deferred increasingly to the 10th Amendment, which has been mocked out of meaning. He also did a great deal to reverse “interstate commerce” judicial abominations.

As affable as he is, Roberts, regrettably, is no Janice Rogers Brown. Their devotion (and dotage) prevents President Bush’s lickspittles from realizing that he too considers Rogers Brown “outside the mainstream,” to use the Democrats’ demotic line. Let’s hope, at the very least, that Roberts is a Rehnquist.

On Flakes And Fetuses

Bush, Constitution, Ethics, Federalism, Founding Fathers, Morality, The Courts

It’s on the White House’s website for the world to witness: “The President Discusses Embryo Adoption at a gathering (or coven, rather) that honored representatives of the “Snowflakes Embryo Adoption Agency.
But let the POTUS explain: “I have just met with 21 remarkable families … The families here today have either adopted or given up for adoption frozen embryos that remained after fertility treatments. Rather than discard these embryos created during in vitro fertilization, or turn them over for research that destroys them, these families have chosen a life-affirming alternative. Twenty-one children here today found a chance for life with loving parents.”
The Adopt an Embryo spectacle was the White House’s display of displeasure at a vote in the House to ease restrictions on federal financing for embryonic stem cell research. These undifferentiated embryonic cells can grow into any kind of cell —heart, brain, etc., —hence their therapeutic potential. The proposed bill would allow under federal auspices the use of stem cells derived from “unadopted” embryos. Explained the president: “Research on stem cells derived from human embryos may offer great promise, but the way those cells are derived today destroys the embryo.”
Would that the ferment over fetuses —and “the culture of life’ —extended to the many, fully formed, innocent human beings dying daily in Iraq. (I can’t imagine why the land of chaos and carnage comes to mind as a synonym for the administration’s contempt for life.)
The bill is historic, if only because it’ll occasion the president’s first ever veto. Finally a spending bill he can’t get behind. But don’t rejoice; it’s premature. The president is pushing a similar, $79-million bill, one that’ll be spent on harvesting the less versatile umbilical cord stem cells.
As is the case with a Congress and Executive that operate outside the Constitution (the judiciary is a partner in this knavish confederacy), the debate is framed deceptively. Over to the hysterical Carolyn B. Maloney, a New-York Democrat: “How many more lives must be ended or ravaged? How much more unimaginable suffering must be endured until government gives researchers the wherewithal to simply do their jobs?”
Silly me, I guess government-giving-researchers-the-wherewithal-to-do-their-jobs was what the Founders had in mind when they bequeathed a central government of delegated and enumerated powers. Intellectual property laws are the only constitutional means at Congress’s disposal with which to “promote the Progress of Science. (About their merit Thomas Jefferson, himself an inventor, was unconvinced). Research and development (R&D) spending is nowhere among Congress’s constitutional legislative powers.
(A word about the Constitution is in order here, considering the tendentious criticism it receives from libertarians: to the extent the Constitution is compatible with the natural law, it’s good; to the extent it isn’t, it’s not good. Murray Rothbard’s preference for the Articles of Confederation, usurped in favor of the Constitution at the Philadelphia convention, is well taken. Still, the case for liberty is better made with reference to the American Revolutionaries, the followers of John Locke, than with reference to tribal Africans (who’ve always existed in a murderous state of nature), or Medieval, Viking-Age, Icelandic people. Why adopt a stark, un-American —and in that sense, ahistoric —philosophical framework? I thought that was the neoconservatives’ bailiwick.)
In any case, there is no warrant in the Constitution for most of what the Federal Frankenstein does. Social Security, (“Today’s senior citizens blithely cannibalize their grandchildren because they have a right to get as much “free stuff as the political system will permit them to extract, said Justice Janice Rogers Brown), civil rights, predicated as they are on grotesque violations of property rights, Medicare, Medicaid, elaborate public works sprung from the general welfare and Interstate Commerce Clauses —you name it, it’s likely unconstitutional.
Implied, moreover, in Maloney’s petit mal is that if the House didn’t mulct taxpayers of R&D money, there’d be no R&D. Not according to the United States Department of Health & Human Services:
“Based on 2002 data, one study reports that private sector research and development in stem cells was being conducted by approximately 1000 scientists in over 30 firms. Aggregate spending was estimated at $208 million. Geron Corporation alone reported that it spent more than $70 million on stem cell research by September 2003. In the Stem Cell Business News Guide to Stem Cell Companies (Feb 2003), 61 U.S. and international companies are listed as pursuing some form of research or therapeutic product development involving stem cells.
What do you know? The private sector has already been beavering away, for some time now, exploring the promise —or lack thereof —of stem cells.