The headliner? Jonah Goldberg’s work of revisionist polemic, “Liberal Fasicsm.” Don’t miss this excerpt from their discurso:
This is not to make an Obama=Hitler comparison. It is just to note that like most good demagogues, Hitler and Obama both know the public is more interested in the silver tongue and the Greco-Roman columns as a backdrop than they are in the substantive policy positions.
Apparently, RedState lacks the courage to even believe what they believe. It’s the hate that dare not speak its name.
A spectre is haunting upstate New York — the spectre of knee-jerk, reactionary, substance-less, Bush-style conservatism. There, in New York’s historically conservative 23rd congressional district, Republican Assemblymember Dede Scozzafava and Democrat Bill Owens are battling to succeed John McHugh, but now face an insurgent far-right candidate, Doug Hoffman, backed by out-of-state far-right interests like Fred Thompson and Sarah Palin. To date, the polling hasn’t looked good for Hoffman, but a new Club for Growth poll puts him ahead of both. If this huge swing is accurate — and there’s reason to doubt that it is (consider the source’s motivations) — it’s time for both Scozzafava and Owens to re-evaluate.
The best avenue of attack is this: Hoffman doesn’t know what he’s talking about. On a recent visit to a local newspaper, the candidate utterly failed to speak in simple, let alone intelligent terms, about local issues. The contest is therefore best seen as one between a veteran Assemblymember who’s well-versed in local politics and with a proven service record, a more liberal challenger who’s at least making an effort, and Doug Hoffman, a partisan firebrand more interested in the soapbox that a congressional seat allows than in actually helping his constituents. In a way, Palin’s support is altogether fitting: like Palin, Hoffman appears quite capable at lobbing partisan volleys, but remains utterly uninterested in the real work of governing.
In the race to succeed McHugh, upstate conservatives have the option of choosing either competence or ideological purity. Here’s hoping they take the road less traveled by.
It’s almost a truism that the resources of the federal judiciary are precious, and not to be squandered needlessy. In habeas review of state convictions, for example, we bend over backwards to keep potentially duplicative litigation out of the federal courts, in deference to cost, and notions of federalism. But what of those latest paradigms of judicial uselessness, the “birthers”? Despite nearly a dozen suits filed, no such suit questioning President Obama’s eligibility to serve has gone anywhere, but the birthers keep coming back, and the federal bench is rightly losing patience. Can we do anything to kick them out of court, all of them, once and for all?
Yes — we can. Although traditional notions of issue & claim preclusion (barring relitigation between equivalent parties) won’t stop new birther “attorneys” from taking up arms after their comrades fall, we could solve the issue by getting Congress to withdraw from the jurisdiction of the lower federal courts all claims arising out of the “natural born citizen” clause. U.S. Const., Art. II, § 1, cl. 5.
Recall that although the Constitution requires the creation of a Supreme Court, it does not require the creation of federal courts, at all. U.S. Const., Art. III, § 1:
The judicial power of the United States shall be vested in one Suprme Court, and in such inferior courts as the Congress may from time to time ordain and establish.
This was the Madisonian Compromise — a way to assuage antifederalists by postponing until a later date the question of the nature of the federal judiciary. As such, there’s an argument that the greater power (Congress need not have created, and may therefore eliminate, the lower courts) includes the lesser power (the power to limit the lower courts’ jurisdiction). See Martin v. Hunter’s Lessee, 14 U.S. 304 (1816). Therefore, subject to external limits, Congress could bar the lower federal courts from hearing claims questioning the president’s citizenship, a conclusion confirmed with additional supporting reasoning in Sheldon v. Sill, 49 U.S. 441 (1850).
We generally see arguments in favor of “jurisdiction stripping,” as the practice is known, from the right, when hard-line conservatives argue for Congress to bar the federal courts from hearing any lawsuit that would establish a right to an abortion, to gay marriage, or to be free from religious indoctrination in the public square. This type of legislation ought to be troubling. If judicial review is to have any meaning, courts must be able to determine the meaning or extent of fundamental freedoms. However, no such values are implicated when Congress simply puts an end to a particular breed of vexatious, duplicative, and expensive litigation. That’s just Congress looking out for a coordinate branch.
Stripping the lower federal courts of jurisdiction wouldn’t be a complete solution. State courts would remain open to birther insanity — in most cases, state courts either can or must hear federal claims, Taffin v. Levitt, 493 U.S. 455 (1990); Testa v. Katt, 33o U.S. 386 (1947) — and the Supreme Court could still take appellate review of any suits that eventually wound their way through the state system. While Congress can also, in theory, eliminate Supreme Court appellate jurisdiction — see U.S. Const., Art. III., § 2, cl. 2 — the doctrine here is more muddled, and rightly so. But cutting out the lower courts is a step in the right direction, and a powerful signal that, especially when government resources are sparse, the law is not a game.
Besides, based on Judge Land’s experience with Orly Taitz, the federal bench would probably welcome the loss of authority, such as it is.
Generally, I try to stack each day with two posts (at least), but this week, and a few other recent weeks, have broken that trend, for which I apologize. My only excuse is that working is hard. It is! Hopefully I’ll be back to a better schedule soon; in the meantime, consider this: New York’s state legislature is set to call a special session to address budgetary measures. God willing they’ll also include a vote on some election law matters — and on the question of gay marriage. For all of Manhattan’s liberalism, on some social matters, the upstate population makes New York a fairly moderate state. But even here, a consensus for gay marriage is emerging. If you’re a New York citizen, and live upstate, consider calling your state senator or state Assemblymember and asking them to vote for the measure.
For all its general uselessness, sometimes Politico lends its ill-gotten credibility to stories that actually matter, to produce stories that even comport with basic notions of journalistic integrity. It’s rare, but it does happen. Today, we finally hear, from a conservative source, this story, one that anyone without blinders would already know:
The Republican Party has a problem with its base.
Until now, the only support for this theory has been – ahem – “common sense.” And the observable fact that the party continues to use incompetent ideologues to squeeze out moderates for the benefit of other incompetent ideologues (NY-23), to its detriment.
But Politico’s inside-line into the Republican Party proves that conservatives are, in fact, actually worried about this — conservatives like Mitt Romney; Tim Pawlenty (“the party needs to be about addition, not subtraction”); Eric Cantor (“we need more voices… we need to attract the middle again”); Bob Michel (“without a good slice of the independents, we are doomed”); and John McCain, to name a few. The consequences of Republicans’ shattered brand, apparently, is beginning to dawn on these men. If for nothing more than their talent at deception, and the American public’s general gullibility, the GOP is entitled to modest gains in 2010 — but because of Beck and co., they may not get it. TV sensations rarely translate to governing coalitions.
Of course, this flirtation with reality didn’t last: Politico went on to undermine its conclusion by reporting as true the discredited idea that the 9/12 movement drew “millions.” Pity those kinds of unsubsubstantiated, impossible exaggerations don’t work on election day.
Why weren’t we doing this all along?
Setting aside the merits of Ms. Graham, framing the public option as an effort to improve competition is a winning argument, built to defuse immature allegations of “socialism,” and emphasizing poll numbers helps diffuse the idea that Obama is “losing” this argument. This is the kind of the thing we used to be good at, kind of, during the general election. It’s good to see some effort to reclaim that skill.
Ross Douthat, speaking at an event in New York, was asked whether he supports gay marriage. The results were enlightening:
At first Mr. Douthat seemed unable to get a sentence out without interrupting himself and starting over. Then he explained: “I am someone opposed to gay marriage who is deeply uncomfortable arguing the issue in public.”
Mr. Douthat indicated that he opposes gay marriage because of his religious beliefs, but that he does not like debating the issue in those terms. At one point he said that, sometimes, he feels like he should either change his mind, or simply resolve never to address the question in public.
He added that the conservative opposition to gay marriage is “a losing argument,” and asked rhetorically if committed homosexual relationships ought to be denied the legal recognition accorded without hesitation to the fleeting enthusiasms of Britney Spears and Newt Gingrich.
A theory: Ross Douthat, with his intermittent moments of intellectual honesty, may be a transitional form between the religious conservative who wishes to see his religion imposed on the world, and one who, finally, accepts that this result is neither possible nor desirable. God willing, the 2008 election will prove enough of an evolutionary bottleneck to effect that change, by finally ending the earlier political species.
In its grand tradition of creating news stories ranging from the useless to the misleading, Politico’s lead story today concerns Obama’s strategy of “marginaliz[ing] critics.” This headline — by reporting as extraordinary an event that defines American politics — has the rare virtue of occupying both extremes simultaneously. Good for Politico!
The article targets the Obama Administration’s new approach to Fox News — openly criticize biased coverage where it occurs — as an example of the administration (unfairly?) marginalizing its critics. This new policy has been widely publicized and critiqued, and really, that’s probably a sign that it’s not working as well as it could. But let’s not pretend for a minute that marginalizing one’s opponents is a practice unique to Obama, now or in previous administrations. The practice of rhetorical marginalization is neither original nor unique to Obama, and his opponents have made far, far worse careers of it:
All of the above tactics are far, far worse than the administration’s attempts to delegitimize Fox News. They’re examples of a few pundits playing on the most basic fears of the American people, to distort, mischaracterize, and destroy ideological opponents. Obama’s tactics have the virtue of being substantially more polite, civilized, and — well — accurate.
Really, then, the story isn’t that Obama is “marginaliz[ing his] most powerful critics.” It’s that the administration is finally through letting itself be marginalized, and viciously slandered.
Despite increasing liberal skepticism regarding Obama’s plan to close Guantanamo (the administration itself admits that they’ll be late), and Republican opposition to the same, the Obama Administration scored a serious victory on the matter yesterday, securing congressional authorization for the transferal of Guantanamo detainees to the U.S., for trial only (release is another issue).
Perhaps more significantly, even as overhyped polls* point to some daylight between Obama and the public, the Senate vote to allow trials in the U.S. — a whopping 71-19 — suggests that any real popularity gap is not translating to political defeat. Although the provision relating to detainees is hidden in the bill (find it here, Department of Homeland Security Appropriations Act of 2010, § 552), it was conspicuous, well-known, and drew the regular Republican opposition, but still passed easily. This, at least, is one goal Obama can accomplish with capital to spare.
* – Seriously, can anyone find the internals on that poll? It’d be worrying if I didn’t suspect that its results are inflated by Democrats concerned Obama’s not doing enough for our side. Until that conclusion is disproven, I’d say “chill.” – Ed.
A new Department of Justice memorandum — directing federal prosecutors to abstain from prosecuting violations of federal laws, where prospective defendants are in open compliance with state laws permitting possession of marijuana — threatens to show the widening gap between conservative ideals, and the conservative social agenda.
After all, the Obama administration’s new policy of abstention, as part of Justice’s responsibility to set priorities in law enforcement, is a model of federalism: while the federal government can retain an interest in the spillover effects of the drug trade, where there’s no evidence of spillover effects and thus no real federal issue, basic principles of “states’ rights” dictate that the federal government should leave well enough alone. It’s what Republicans like Pawlenty have been demanding in the health care debate, all along.
Apparently, though, the same principle doesn’t apply to the drug trade, according to at least some Congressmen (Lamar Smith, R-TX):
The Administration’s new guidelines directing federal prosecutors to ignore local medical marijuana dispensaries that allegedly operate in compliance with state laws fly in the face of Supreme Court precedent and undermine federal laws that prohibit the distribution and use of marijuana.
Setting aside Rep. Lamar’s obvious confusion between permissive and mandatory federal action — the government can, pursuant to Raich, regulate medical marijuana, but it need not — Republicans and serious conservatives should ask themselves why that is. If Republicans are to abandon even the appearance of advocating for limited government, they risk becoming a party defined entirely by social issues. And that’s not a winning agenda.
