Archive for May 2009

(UPDATED) Some Pro-Lifers Have a Curious Definition of “Life”

Read what RedState and Twitter have to say. RedState: grow a pair and ban TankerTodd and JadedByPolitics. They’re entitled to their opinion, and an opportunity to express it, but you don’t have to give them your forum.

Sorry for iPhone screenshots only… And the inevitable errors that accompany a mobile publish…

(ED: errors corrected, photos below the line)

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Doctor Killed by Pro-Life Terrorist

Sad day: Dr. George Tiller, 67, was shot and killed as he entered his church. This was Dr. Tiller’s second (and final) brush with hate: he was shot twice in 1993, for his support of a woman’s right to choose.

And just a reminder – during the election, Sarah Palin said she “didn’t know” if the targeted murder of abortion clinic doctors is terrorism. What, then, do you call an attempt to use violence to send a political message?

Gay Rights: What We on the Left Should Want to Know About Judge Sotomayor

To date, progressive concerns about Judge Sotomayor’s nomination to the Supreme Court have centered on the question of whether, in fact, she will support the legality of a woman’s right to choose. Although her published opinions are not very helpful, and President Obama has not asked her in so many words, White House statements over the past week are attempting to tell us in code what he won’t tell us flat-out, for fear of igniting all-out war with the remnant of the Republican Party. I’ll interpret.

There are a million legal ways to say “abortion,” all of which Obama has in his vocabulary. Off the top of my head, there’s “unenumerated rights,” “settled law post-Casey,” “substantive due process,” “fundamental rights,” “Griswold and its progeny,” “societal reliance interests,” and even – in the right context – simply “stare decisis.” Obama’s public statements on Sotomayor and abortion indicate her support for the first two code phrases, front & center. I think we’re safe, but hopefully congressional Democrats will make sure.

Trusting that the right to choose will wax rather than wane, we should look ahead to the next issue. With Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court moved pointedly towards treating homosexuality as a “suspect classification,” and the strong protection of gay rights that move would entail. However, they’re not there yet, not by any means. In fact, Justice Kennedy in Lawrence refused to even invoke the Equal Protection Clause, for fear of setting the Court unavoidably on that path. We should hope that Sotomayor has the moxie that Kennedy so plainly lacks.

Here, again, her jurisprudence offers few clues. True, her only discussion of sexuality and equal protection, in Holmes v. Artuz, 1995 U.S. Dist. LEXIS 15926 (S.D.N.Y. Oct. 26, 1995), at *5, favors a right for gay men and women to be free from workplace discrimination (in prison, in this case). That it predates both Romer and Lawrence, and reaches this outcome by applying the “rational basis” test – the lowest form of constitutional protection available – may make its outcome all the more remarkably progressive. But its antiquity and status as a district court opinion make it a poor indicator of her thoughts on what the law should be. Let’s call this another question for the hearings.

Legally, strong judicial protection of gay rights is a slam-dunk. Because sexual orientation is either immutable, or at least deeply tied to personality, it tracks other protected traits (race, gender). But it will take a few years, and the right group of Justices, to close the syllogism. Let’s hope Obama is building that group.

Trying to Figure Out What the Heck Is Happening in Health-Care Reform

Click to link to Physicians for a National Health Program

It ain’t easy trying to keep track of all of the committee hearings that have taken place over the last 1-1/2 months in both the Senate and the House and all of the articles that have followed the maneuverings of this special interest versus that in the health-care debate, but here are some broad strokes.

First let’s understand the big issues at play. One is the cost of health care. The second is coverage for all Americans. Both consistently poll as very important to the general public. A few weeks ago, Obama met with a bunch of pharmaceutical- hospital- and insurance-industry leaders who promised over the next decade to cut two trillion dollars (!!!) from anticipated increased health-care costs. What does this mean? Essentially it means that these industries know they can make some nebulous promise to cut $200 billion per year over the next 10 years and prove it by some weird bookkeeping OR they actually can cut that money and still make a respectably gratuitous profit for their shareholders, an implicit admission of how they deliberately fleece the American public. In any instance, the promise is hollow. I suppose the more important take-home point is how effectively Obama is bringing the public and private sectors to the table, yadda, yadda. Though, I don’t want to totally dismiss the importance of the event, considering what a miserable massacre health-care reform suffered in the early ’90s.

So setting aside the cost of health care for a moment, let’s move on to coverage. I am a proponent of universal health care, but after seeing what happened in 1994 and the short shrift single payer historically gets in the MSM, I was willing to go along with candidate Obama’s compromise plan to have a public-option system in place. I wanted a Democrat in the White House, and I didn’t want the presidential race devolving into hysteria over Hillary Clinton’s fanatical, unAmerican, socialist takeover of health care. I preferred Hillary’s honesty and big thinking about our disasterous health-care system, but she couldn’t beat a Romney or a McCain (health care, only one reason).

This stuff is maddening, but we can get through it together … after the jump.

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Always File Court Documents with a Court: Birther “Attorney” Defeated by Her Own Ignorance

For some time now we’ve been criticizing the abject stupidity of the “birthers,” those attorneys and hangers-on determined to prove that President Obama is, somehow, a “half-breed Muslin,” ineligible for the office he legally holds. Some of you – I’m looking at you, deranged single-issue commenters – didn’t believe me. Well, the verdict’s in.

Last month, birther “attorney” Orly Taitz was sued by both a former comrade, and her ideological fellow-traveler, 9/11 “truther” Phil Berg. The merits of the complaint aren’t important. What is important, though, is that Taitz missed the deadline to file a reply — because she sent her response to the wrong address. No, she didn’t mistype the envelope. It’s far, far better than that. She sent her response to Berg, completely neglecting to file it in court. Apparently, Taitz’s correspondence law school didn’t cover lesson #1: “court documents should be filed with a court.” What’s this mean? Easy: she’s defaulted on her case, and will likely lose.

The more astute among you will recall that Taitz’s law degree doesn’t entitle her to practice in Pennsylvania federal court (where this case is filed), or indeed anywhere outside of California, and so will wonder whether her failure to file may not be a fortuitous mistake. After all, had she signed her pleadings herself, and represented herself as an attorney, she would have engaged in the unauthorized practice of law, and could be disbarred. Since the response was never submitted to court, though, she would have failed to accomplish the intended fraud.

Good catch! But Taitz signed her pleadings as a pro se litigant, which allows a party to represent themselves, regardless of bar admission. Even if it had been properly filed, she would’ve been okay.

Too bad. While it’s great to see Taitz reap the rewards of her own ignorance, I’d much prefer to see her kicked out of the legal profession, once and for all. Maybe next time.

Constitutional Democracy Compels Judicial Activism

Constitutional protections exist for the explicit protection of unpopular minorities from the caprice of the majority. Sadly, this surprises some people. But it doesn’t surprise California Supreme Court Justice Moreno, dissenting from the Court’s decision (pdf) to uphold Proposition 8:

The equal protection clause is therefore, by its nature, inherently countermajoritarian.  As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect.

This is as true of the federal equal protection clause as it is of California’s special variant. When courts stop the majority from taking advantage of the minority – say, by limiting their right to avail themselves of certain social benefits, just because it grosses the majority out – it is the court’s duty to step in. That’s “activist,” in the sense that it’s countermajoritarian. But it’s also the rule of law, and what separates us from a theocracy.

Responsibly Debating the Supreme Court: the Top Ten “Activist” Decisions in Supreme Court History

Too often, social conservatives use the terms “activist judge,” “activist court,” etc., to describe jurists and decisions they simply don’t like. We forget that phrase used to have real meaning. The phrase “activist judge” should only attach to those jurists and decisions that either embrace the use of law as an agent of social change, or break surprisingly with established law.
Properly understood, “judicial activism” is neither liberal nor conservative, nor is it always bad, or at odds with the ideals of the American Constitution. Granted, sometimes it is. Allow me to demonstrate, with this list of the top ten “activist” decisions in Supreme Court history, color-coded for your ease (blue for good, red for bad, purple for problematic).

1. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803): could Marbury, the defining case of American constitutional law, be anything but #1? In Marbury, the Court claimed for itself the power to both interpret the Constitution, and invalidate those acts of Congress at odds with the document. It invented “judicial review,” a power envisioned for the Court by the Founders, but not explicitly granted in the Constitution. You don’t get more “activist” – or more vital to our liberty – than that.
2. Brown v. Board of Education, 347 U.S. 483 (1954), and its progeny: in 1953, segregation was the political issue. So when a vacancy opened on the Court that year, just as the Court was considering a segregation case, President Eisenhower made the cowardly-but-prudent decision to appoint a replacement Justice who emphatically would not push the issue! So he picked Earl Warren….Oops. When Warren ascended to the Court, convinced of the unconstitutionality of segregation, he rushed to assemble a unanimous coalition, willing to strike down segregation once and for all. He got it, they handed down the case, and the country flipped out. The Justices received death threats, and the federal government faced organized resistance to the rule of law, both violent and political, from Southern leaders. But the Justices stuck to their guns, handing down case after case supporting desegregation, determined to secure for African Americans that which was rightfully theirs: the equal protection of the laws. It was a brave thing to do. Knowing full well the controversy into which they were stepping, it was an “activist” thing to do. But it was the right thing to do.
3. Loving v. Virginia, 388 U.S. 1 (1967): fourteen years after Brown, the Court resolved the next great question of racial equality – the right to marry whomever one chooses, regardless of race – and, once more, risked its legitimacy to resolve a vital societal issue. And, in deciding the case, the Court embraced a super-strong definition of equality. Dare we say it – GASP! – made policy?
4. Scott v. Sanford (“Dred Scott”), 60 U.S. (19 How.) 393 (1857): 100 years prior, we had a very different Supreme Court. When a slave sued his “master,” demanding his freedom, Chief Justice Taney’s Supreme Court waded directly into another social controversy, but this time picked the wrong side, with disastrous consequences for enslaved men and women nationwide. And, to top it off, the Court sua sponte (of its own volition) struck down the Missouri Compromise, nearly igniting the Civil War three years early! This case was so wrong, it took a war and three constitutional amendments (XIII-XV) to fix it. Epoch fail.
   
5. Roe v. Wade, 410 U.S. 113 (1973): yes, yes, Rove et al, we agree on something. Roe, while legally right (it’s a natural extension of Griswold), was probably a few years too early. For federal judges, there’s an art to wading into social controversies, even when the law’s on your side. You don’t want to do it too late, but for God’s sake, you don’t want to do it too early. The Justices just miscalculated here because – this is true – they honestly didn’t think it would be controversial.
6. Gonzales v. Carhart, 550 U.S. 124 (2007): look – I don’t like partial birth abortion either. But as a Supreme Court Justice, you can’t let the government ban the procedure, less than a decade after you told them they can’t! That’s just bad judging, compounded in this case by a horrifically bad, logically inconsistent, and outright deceptive opinion.
7. Lochner v. New York, 198 U.S. 45 (1905): coming in the middle of the Progressive Era, the Lochner decision was the Court’s desperate attempt to use the Fourteenth Amendment’s Due Process Clause to block legitimate, democratically-implemented legislation aimed at protecting workers from truly heinous working conditions. Who knew that the Constitution recognized a due process right to expose your employees to toxins, regardless of congressional enactments to the contrary?
   
8. Bush v. Gore, 531 U.S. 98 (2000): this case was bad. But not why you think. No matter what you think of the result, the Court’s jurisdiction over this case was more than legally suspect, and its equal protection holding was outright wrong. Don’t take my word for it: the Court agrees! Time after time, they’ve declined to cite or acknowledge the principles of Bush v. Gore as good law. This was not law: it was politics. And yet, the decision does at least, positively embrace the Supreme Court’s role as the broker of democracy. Call it a victory for the rule of law, but a defeat for justice.
9. D.C. v. Heller, 554 U.S. ___ (2008): I’ve said it once, and I’ll say it again: Heller, in which the Supreme Court “found” an individual right to bear arms, subject to reasonable regulation, is a well-balanced and politically neutral opinion. But it’s also consciously political, in selecting which version of American history to credit, and it goes directly against nearly 200 years of American law, all of which rejected an individual right to bear arms. It’s a great compromise opinion, and an excellent brokering of competing political interests, but it is not an example of judicial modesty.
10. Griswold v. Connecticut, 381 U.S. 479 (1965): do you see the word “privacy” in the Constitution, anywhere? Neither do I. But what do the Third, Fourth, and Fifth Amendments all have in common? They  acknowledge and protect a privacy that the Founders didn’t imagine could be threatened in ways other than those prohibited by the Third, Fourth, and Fifth Amendments. Griswold is the first case to recognize, and “find” in the “penumbras” of other constitutional freedoms, a strong right to privacy. This conclusion is as unsurprising as it is inoffensive: even Sarah Palin recognizes that the Constitution clearly must protect some right to privacy. But this type of creative thinking, as in, reading structure and ideals in the Constitution, rather than just the words on the page, is exactly what (selectively) outrages the right. It’s judicial activism – and we wouldn’t want it any other way.

The next time you hear the phrase “judicial activism,” ask the speaker to define her terms, and remember your history. Don’t let the right hijack Justice Sotomayor’s confirmation hearings and turn them into a denial of constitutional values. This can be a chance to educate the loyal opposition on how constitutional democracy really works. Don’t squander it.

Today’s Afternoon Post … Delayed Until Tomorrow

I got side-tracked responding to some great commentary by reader, Arabesque, who, responding to my post yesterday on Nebraska senator, Ben Nelson, raises some terrific points about health-care reform.

Please check out the conversation. At the very least, I hope it gets the grey-matter juices flowing, if not the outrage. The U.S. health-care system is one big, nasty hydra. The big question, of course, is whether the Obama Administration and the 111th Congress have the cajones to cut off the heads and then the brains to seal the wounds so the damn things don’t grow back.

Today’s post will be here tomorrow. Please do check out the comment thread. Arabesque is just one more example of how awesome so many of our readers are. Thanks!

The Coming Battle on Judicial Review: Understanding Article III

Judge Sotomayor’s remarks on policy-making at the appellate level – which the learned and agenda-free among us know to be entirely correct and uncontroversial – are likely to ignite whatever firestorm the far-right can muster in this, the proverbial winter of their discontent. We suggest you brace yourselves — starting here. Consider this article the first in a series designed to immunize you from the more mundane right-wing talking points that we all expect to come up in the next few weeks (“durn act’vist judges!”). We’ll start with a basic question: can a federal judge ever permissibly “make policy,” as Judge Sotomayor said, that fateful day?

First, let’s define our terms. No judge claims, and no partisan defends, a judicial right to promulgate substantive policy, as in, full-fledged statutes setting out rights along with remedies.* Not would this idea be patently absurd, and shake the separation of powers to its core, but there’s simply no vehicle for it. Only Congress gets to write in the U.S. Code books. So when people talk about “judge-made law,” and judges making “policy,” they must mean something else. What, then, do they mean?

In resolving discrete “cases” and “controversies,” per their constitutional powers,*  judges will often have to draw specific rules from vague congressional enactments that will often admit of multiple meanings. This is the task of judging, and it’s not always controversial, in the political sense of the word. For example, few will begrudge a federal judge the right to decide whether a particular form of insider trading counts as a “manipulative or deceptive device or contrivance,” within the meaning of the Exchange Act.* Federal judges, and especially appellate judges,* must be able to perform this sort of task if the law is to function: they can’t punt every question of statutory interpretation to Congress.

Just so, judges must be able to perform the more difficult and controversial task of constitutional interpretation. Contrary to popular myth, the Constitution is not self-interpreting: phrases like “equal protection of the laws” admit of multiple meanings,* and while history and the document itself both often leave hints, there are no clear or easy answers.* These are the types of questions, again, that the federal bench was undoubtedly meant to answer.*

Thus, before a judge can apply the law to the facts, she must know what the law is, and state it clearly. Because the legal principles expounded in the process of resolving a case will often matter more than the simple result of the case,* the bystander’s eye is drawn to the law, and one forgets that the enunciating of law is necessary, but wholly incidental to the process of resolving individual cases. If we don’t know what we’re watching, or aren’t aware of the limits that govern the process,* we may be tricked into thinking a judge has just “made policy,” when she’s simply done what was necessary to resolve a case.

And so we return to Judge Sotomayor, to see that she was quite right: appellate courts do sometimes make policy, and there’s nothing either novel or scary about that. To be sure, some judges may overstep their bounds, by stating the law over-expansively, improperly, or “without invitation.” Perhaps we should worry about that. But the proper question for her confirmation hearing, then, isn’t whether Judge Sotomayor “makes policy” – which is to say, “does her job as an appellate judge” – but whether she does it well.

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Meet Blue Cross/Blue Shield’s Avatar: Senator Ben Nelson!

You'd smile like this, too, if you could work it like ol' Ben does

In late April, Ben Nelson, the conservative Democratic senator from Nebraska, was kind enough to throw down the gauntlet in the health-care-reform debate by saying legislation creating a public plan that Americans can choose over private insurance would be a “deal breaker” for him. Democrats might as well kiss his vote goodbye. Nevermind the fact that two-thirds of Americans support the idea of a public health-coverage plan. Specifically, Consumer Reports released their recent survey research about the public-option plan:

Respondents were read a detailed description of the public plan currently under consideration by Congress. … “Congress is discussing several ideas to address healthcare reform. One proposal provides everyone, whether insured or uninsured, an additional choice: the option of a public health plan that people can count on to cover what they need at more affordable rates. This option would allow people with good insurance that they like to keep it. Those without good insurance can gain access to reliable healthcare, regardless of preexisting medical conditions, and obtain a consistent menu of benefits. This public plan would be paid for by enrollees. Those that cannot afford to pay the full premiums would be subsidized based on their income.”

Overall 66% of Americans supported this proposal for healthcare reform and a third voiced strong support.

Further,

• Nearly two-thirds (64%) expressed major or moderate concern about the ability to afford doctor visits in the future, and nearly as many said they were concerned about bankruptcy triggered by the cost of a medical catastrophe, or about losing healthcare coverage because of becoming unemployed.
  
• Overall, 71% of respondents said they supported reforms that would guarantee access to affordable, quality healthcare for all uninsured Americans and nearly half (47%) strongly supported reform. Support was strong across age, income, and gender.
  
• Though only 1 in 7 adults currently is uninsured, the health insurance crisis is personally relevant for many more. Half of interviewed consumers said they have been without health coverage at some time, and half also reported having family members or friends who are uninsured at the moment.

Let’s not forget, too, the data we saw last week indicating long-term trends for Americans to favor government involvement in health care, including providing universal coverage. Why might Nelson be so seemingly out of touch with the entire country?

Shall we follow the money?

Once again, the Center for Responsive Politics delivers the goods. I took a look at four Democratic senators: Ben Nelson, Max Baucus (MT), Chuck Schumer (NY), and Evan Bayh (IN). Max Baucus is the chair of the finance committee, on which Schumer also sits, and is (along with the health committee) the major player in health-care reform. Bayh sits on the banking committee and has built a reputation for having very close ties with lobbyists even while he is clamoring for fiscal responsibility and tranparency. (Schumer also sits on banking, and banking and finance are closely linked committees, with similar special interests.) One of these kids is not like the other. Ben Nelson is not on the finance or health committees. Rather, Nelson sits on the appropriations, agriculture, armed services, and rules committees.

Yet, Nelson over his present senate term (2003-2008) has taken in more money from the insurance industry as campaign and PAC contributions than any of the other three senators. In fact, the insurance industry is Nelson’s largest contributor. The pharmaceutical industry and health-professionals are Nelson’s third and sixth largest contributors, respectively.

Insurance contributions (2003-2008)

• Ben Nelson: $803,209 (top industry donor)
  
• Max Baucus: $784,185 (5th largest industry donor)
  
• Chuck Schumer: $334,500 (5th largest industry donor)
  
• Evan Bayh: $318,748 (6th largest industry donor)

Donations from health-sector industries made up 16% of all contributions to Nelson’s campaign and PAC funds. By comparison, the health-sector comprises 23% of Baucus’s campaign and PAC contributions and 6% and 4%, respectively, of Bayh’s and Schumer’s contributions. Remember, Baucus chairs the finance committee. Schumer sits on the finance committee. Bayh sits on the banking committee. All Nelson does is vote down legislation his insurance-industry patrons disapprove, and, apparently, he is rewarded handsomely for it.

Blue Cross/Blue Shield is a huge health-insurance player in the Washington money game, and Ben Nelson has collected almost as much money (approx. $61K) from the company as has Baucus (approx. $62K). BC/BS has contributed more than three times as much money to Nelson’s campaign and PAC as they have to Schumer’s and over 25% more than they have to Bayh’s. Remember, Nelson represents a state with 9% the population size of New York, Schumer’s constituency. In fact, Empire Blue Cross Blue Shield (in New York) covers 5 million individuals, almost three times the population of Nebraska.

Quite interesting. BC/BS has put their eggs in the conservative-Democrat basket, ain’t no doubt about it.

Next installment: The public-option plan, single-payer, and thinking that maybe, just maybe the American public might not get screwed over this time.