Perhaps I’m overreacting (I’m told it wouldn’t be the first time), but I’m bothered by several items in staff writer Charles Babington’s article in the Washington Post this morning. This article is not labeled “analysis,” so it is presumably intended to be straight news. I’m not sure, however, how straight it is.
Writing about Senate Majority Leader Bill Frist’s decision to take part in an anti-filibuster telecast sponsored by “prominent Christian conservatives,” Babington refers in passing to the “Senate Democrats’ use of delaying tactics that have blocked confirmation votes for 10 of President Bush’s most conservative appellate court nominees.”
Is it an established and widely agreed upon fact that the 10 appellate nominees blocked by the Senate Democrats are “President Bush’s most conservative appellate court nominees”? Has staff writer Babington himself investigated these nominees, compared them to other appellate nominees, and concluded on the basis of his own analysis that they are the “most conservative”? If so, it would be helpful if he revealed his evaluative criteria. Or has he simply accepted the Democrats’ evaluation of these nominees? But if that is the case, as appears most likely, shouldn’t he have inserted some “according to Democrats” language rather than simply incorporating their views in his report?
Even though Babington appears to look at the filibuster from the same point of view as the Democrats, however, he doesn’t present them in a very favorable light, either.
Frist (R-Tenn.) is threatening to change the Senate’s long-standing rules in order to ban judicial filibusters, a move that Democrats and their allies virulently oppose.
Virulently? As Dr. Frist might be the first to observe, “virulent” generally means “extremely infectious, malignant, or poisonous.” Republicans would probably describe the Democrats’ objections to this Senate rules change as malignant and poisonous, but I’m surprised a WaPo reporter would use that characterization in a news story.
On second thought, however, maybe Babington knew exactly what he was saying, for the Democrats do seem to be infected by some toxic mind-altering poisons on this issue. The “prominent Christian conservatives” believe — with good reason, it would appear — that the Democrats have targeted nominees who in all likelihood oppose abortion and same-sex marriage, views that both the Christian conservatives and the Secular Liberals agree are rooted in religious values. The CCs then claim, not irrationally, that the nominees are being targeted because of their religious views, and the SLs fear that the wall of separation between church and state is about to be torn down. Same old story….
“I am disappointed that in an attempt to hide what the debate is really about, Senator Frist would exploit religion like this,” Senate Minority Leader Harry M. Reid (D-Nev.) said. “Participating in something designed to incite divisiveness and encourage contention is unacceptable. I would hope that Senator Frist will rise above something so beyond the pale.”
Sen. Edward M. Kennedy (D-Mass.) said he hopes Frist “will decide not to participate in this blatant assault on the fundamental principle of separation of church and state.” Sen. Charles E. Schumer (D-N.Y.) urged Frist “to remove himself from an extremist teleconference . . . to bash judges.”
If Sens. Reid, Schumer, and Kennedy really believe Sen. Frist’s merely appearing in a television ad sponsored by Christian conservatives is an “extremist” act that is a “blatant assault on the fundamental principle of separation of church and state,” then surely they believe that the judicial nominees whom they regard as slavish followers of those same Christian conservatives present an even graver threat. And of course they do believe that, and say so. But what, then, is their basis for objecting to the Christian conservatives’ claims that the judicial nominees are being opposed because of their religious views? It is the Democrats, after all, who for all practical purposes have made “religious right” one word.
Finally, however, I must say that I find the standard proposed by Sen. Reid — that we avoid policies that “invite divisiveness and encourage contention” — to be not without its appeal. Thus I look forward (after looking backwards at his record, in vain) to his future opposition to all policies and programs that promote racial and ethnic divisiveness and contention through the use of preferences, benefits, or burdens based on race or ethnicity.
I’m still looking….
UPDATE [18 April]
Now comes the Washington Post echoing Democratic Senate Leader Harry Reid in an editorial claiming that Sen. Frist is “Beyond The Pale” in associating with conservatives who claim that certain judges “are being blocked because they are people of faith and moral conviction.”
WaPo’s editors claims that Democratic filibustering judicial nominees, which it says it does not support, “simply is not motivated by anti-religious sentiment. There are people of faith and goodwill on both sides of the issue.”
Well, as I suggested above, yes and no. In any event, this matter “simply” is not as simple as the WaPo would have us believe.
The Democrats certainly not motivated by “anti-religious sentiment” if that means they oppose all religion, would block any nominee who attended church or even was a believing Christian. Or would they? What about a believing Catholic who not only agreed with the Church’s position on abortion and whose record suggests he or she would probably uphold restrictive anti-abortion legislation, even if that meant voting to overturn Roe v. Wade?
As I understand the Democrats’ argument, the very essence of their belief that the judges they oppose are ultra-conservative, certainly too conservative to be approved, is precisely their fear that these nominees will be guided by their particular religious beliefs and moral convictions. Thus I don’t see what is “beyond the pale” when the conservatives claim that the nominees are being blocked because of their faith and moral convictions.
The conservatives, however, have a problem of their own, although in my view it does not make their stance as inconsistent, or incoherent, as that of the Democrats. They argue — and I believe they are right — that people of faith should not be barred from participating in public life, nor should they be required to pledge that they will not act on the basis of beliefs that are grounded, for them, in morality and religion.
I can, of course, imagine exceptions to my own rule. If a controversial position was so closely associated with a particular church, sect, or doctrine that no one favored it who was not a member or acolyte, then it would be the case that for a judge to impose a policy based on the sectarian view would certainly suggest a violation of the separation of church and state. But that is not the case with the hot button issues of our culture wars: you do not have to be a believer in any church or sect to oppose abortion, gay marriage, etc.
Returning to the conservative problem, then, people of faith and moral convictions should not be barred from participating in public life, even as judges, but neither should they cry fowl — or, in today’s parlance, say it is beyond the pale — when people oppose them because of their views.
File this under Do what I say, not what I do!
the standard proposed by Sen. Reid — that we avoid policies that “invite divisiveness and encourage contention”
When asked to comment on Thomas as a possible replacement for Chief Justice William Rehnquist, Reid told NBC’s “Meet the Press”: “I think that he has been an embarrassment to the Supreme Court.
“If Sens. Reid, Schumer, and Kennedy really believe Sen. Frist’s merely appearing in a television ad sponsored by Christian conservatives ”
he’s not merely appearsing in a tv ad sponsored by christian conservatives. He’s appearing in a telethon that claims the democrats are attacking “people of faith.”
The only thing wrong with filibusters is that the conservatives are afraid to use them. Notice that after Robert Bork was rejected by the Senate, and Clarence Thomas barely was confirmed (52-48), Republicans almost unanimously voted for 2 liberal judges, Gisberg (a former ACLU attorney!)and Bryer. The only recent GOP-appointed Supreme COurt judge that the Democrats mostly voted for was the liberal David Souter.
The Democrats efectively use issus where most voters are liberal (abortion, specifically Roe v. Wade) as a litmus test for Supreme Court candidates, so why don’t Republicans say they will fillibuster any candidate who does not pass a litmus test on issues where most voters are conservative (e.g., RACIAL PREFERENCES )???
Why not indeed? Easy answer. There’s no organized voting block or wealthy campaign sources that want to end racial preferences. Also, the GOP (especially Bush), imitating the futile Don Quixote, is pandering to the black & Hispanic vote and supports the O’Connor decision supporting racial preferences.
Just wait for the next Bush-appointed Supreme Court justice, current Attorney General Alberto Gonzales, who wrote Bush’s amicus curaie brief that was basically regurgitated verbatim by O’Connor in the Grutter ruling (“diversity” as an excuse to discriminate). Bush has promised he will nominate a Hispanic to the top court, so Gonzalez seems to be a lock.
” Notice that after Robert Bork was rejected by the Senate”
I thought he withdrew.
I guess technically Bork withdrew, but he withdrew because the Senate was in the proccess of rejecting him. Either way, my main point about the impotence of the anti-racial-preference people within the Republican party still stands.
“Either way, my main point about the impotence of the anti-racial-preference people within the Republican party still stands.”
Bork was more than just “anti-racial-preference.”
Actus, please explain your comment:
“Bork was more than just “anti-racial-preference.””
Anyway my point was that Democrats fought against Bork, and the GOP did not fight against Breyer & Ginsberg. Although if there were non-ideological reasons why Bork deserved to be not confirmed, I’d like to hear them.
Will, I am surprised that you don
“Bork was more than just “anti-racial-preference.””
He was also the shill who did Nixon’s bidding in getting rid of investigators after what 2-3 other AG’s refused.
“It
If Leftists worried about Islamic fundamentalists 1/10 the amount they worry about Christian fundamentalists the US would be much safer.
“If Leftists worried about Islamic fundamentalists 1/10 the amount they worry about Christian fundamentalists the US would be much safer.”
I think the left would be very worried if islamic fundamentalists owned all 3 branches of government. The worry is proportional to (1) the threat and (2) our ability to do something about the threat with that worry.
I wonder if anyone has ever considered a Constitutional challenge to the Senate voting rules for cases involving judicial appointments (or foreign treaty ratification, since the language is the same).
That is, the filibuster has no authority derived from the Constitution, only authority derived from internal rules adopted by the Senate. The internal rules of the Senate may have some legitimacy when the Senate is not conducting specific Constitutionally proscribed business (that is non-treaty, non-nominee legislation), but it seems to me that in places where the filibuster is explicitly inconsistent with a Constitutional duty, it may be unconstitutional.
See this piece: http://www.chronwatch.com/content/contentDisplay.asp?aid=12214
The author advocates that the Vice President (head of the Senate) declare the filibuster unconstitutional (in toto). Apparently, a Senate rule (or Constitutional one) gives the VP such declaratory power. The Senate would then have to vote on the VP’s ruling (straight majority). This may lead to litigation, of course, on the Constitutionality of the Senate rule, going no doubt to the US SC (which could overturn the VP/majority of Congress’s declaration of the fitness of its own rules). Of course, an “in toto” elimination of filibuster might be perceived as unwise for the Republicans in the long-term, preventing this option from succeeding or being initiated. I propose though two lesser alternatives – the VP declare that the filibuster is unconstitutional only when it affects specifically proscribed duties of the Senate (something I think courts may be more inclined to do, since they’d prefer to interfere with internal powers as little as possible through Separation of Power doctrine) – e.g. nominations and a few other processes, such as impeachment and conviction (imagine a filibuster in such a proceeding, although the Senate may have special rules to preclude that, given that they were designed in 1869 before the advent of the filibuster rule). A second alternative would be for the President and Vice-President to assert that an appointment is effective immediately, and “consent” presumed, unless a vote occurs otherwise (many States follow such a procedure). It would of course be dangerous to appoint Supreme Court nominee in this way, since the person may take office, but then years later a change in both President and Senate make-up might yield a vote allowing the replacement of the appointee.
actus,
I think the left would be very worried if islamic fundamentalists owned all 3 branches of government. The worry is proportional to (1) the threat and (2) our ability to do something about the threat with that worry.
You know, just this morning on “This Week” I heard Bill Frist being chewed out for associating himself with a guy who made an opposition between “people of faith” and “Democrats.” But you’re saying, if I understand you correctly, that “Christian fundamentalists” “own” all three branches of government, which can only mean that “Christian fundamentalists” = “people who aren’t Democrats.” I think you and Sen. Frist (or, rather, whatever the group in question was) are very nearly on the same page here. Odd, isn’t it?
I think the current republican party represents its fundamentalist wing. And I don’t equate “people of faith” with “christian fundamentalist.” Thats actually the problem with what Frist has done. He has equated faith with a particular type of faith.
But, actus, surely you don’t think every Republican in the House or the Senate is a “Christian fundamentalist.” The “Christian fundamentalist” component of Congress is obviously a minority. And I’d challenge you to identify the “Christian fundamentalists” on the Supreme Court. (Who’d you have in mind? Scalia, maybe? You do realize that “fundamentalists” of the Bob Jones stripe dislike “papists” almost as much as they dislike Jews?)
Meanwhile, GWB is a Methodist — i.e., a “mainline” Christian. I think the last prominent person in this administration who could be called a “Christian fundamentalist” was Ashcroft (a Pentecostal), and he’s not there any more. So I really don’t know what you’re talking about.
Especially wrt the Supreme Court. The “current Republican Party” really didn’t appoint any of it, you know. And if your point is only that Republican Presidents appointed most of the sitting Justices, I expect your complaints about the fundamentalist right-wing tyranny of Earl Warren’s Court next.
I think the congressional leadership is fundie enough to worry about. Ditto for the president, and his ‘jury is still out’ view of evolution. I don’t think I need to get into sectarian specifics. Its enough to know about the wishes of these people to intrude into private lives and remake our personal moral decisions in their mold, with the force of law.
actus,
I am beginning to suspect that your working definition of “fundamentalist” is something like “anti-abortion” AND/OR anti-gay-marriage AND/OR anti-embryonic-stem-cell-research AND/OR considers it possible that life was somehow “designed.” Forgive me for not find that particular bundle especially terrifying.
Its enough to know about the wishes of these people to intrude into private lives and remake our personal moral decisions in their mold, with the force of law.
Gosh, were they doing that? I presume you’re talking about the FDA hearings about breast implants, right? No? You don’t object to the FDA deciding what women may or may not do with their bodies? No, I didn’t think you did. All a silly misunderstanding.
With respect, if you really want Federal powers’ noses out of people’s business, you ought to want less Federal power. Which means that you probably want the Judges that the Democrats have been industriously filibustering for the last couple years.
“With respect, if you really want Federal powers’ noses out of people’s business, you ought to want less Federal power.”
Its not just federal power. For exmaple, thomas doesn’t like the idea of incorporating the bill of rights against the states. That incorporation keeps a lot of government, state and federal, out of our private lives. And its not quite peoples business.
Its people’s families and their choices of partners, living situations, contraception, etc…
As far as actus is concerned 9/11 never happened. He rants about Christian fundamentalists as if it were they who flew planes into the World Trade center. He dismisses a real threat, fundamentalist Islam, but worries about an imaginary threat, fundamentalist Christianity. They are coming to get him. They are in his private life. They are under his bed. They are in his closest. Terrible things are going to happen. The country is going to become a theocracy. The fact that Bush has been in office for over four years and nothing like this has occurred (or could occur) does not alleviate his irrational fears one iota. His fear and hatred of fundamentalist Christians seems to be getting worse. Thus, for actus, it is Jerry Falwell, not Osama bin Laden, who is the ultimate evil.
” He dismisses a real threat, fundamentalist Islam, but worries about an imaginary threat, fundamentalist Christianity.”
I don’t see why they can’t both be real, different threats. One of them I can vote against. One of them I can vote for leader who I think will protect me from terror. Different strategies and different concerns lead me to different ways for seeking protection from both. I’m not of a totalist mindset that thinks there is only 1 thing out there to worry about.
I’m on the east coast In some sense the battlefield between the wingers who would tell me who to marry and who to live with (as well as who to protect me from terror) and the terrorists who want to strike at my cities.
“What about a believing Catholic who not only agreed with the Church’s position on abortion and whose record suggests he or she would probably uphold restrictive anti-abortion legislation, even if that meant voting to overturn Roe v. Wade?”
Think what they would do to the death penalty and labor rights, and usurious credit card card companies. I don’t think anyone is interested in throwing this sort of a wooden shoe into the works.
This discussion misses a major point about the line between church and state. The problem is NOT as the politicians say that a theocracy is taking place, the problem is that statism is taking over our religions.
actus,
It’s not just federal power. For example, Thomas doesn’t like the idea of incorporating the bill of rights against the states. That incorporation keeps a lot of government, state and federal, out of our private lives.
Hmmm. Actually, incorporation doesn’t keep the Federal government out of anything; what it does is hold most (not all) of the Bill of Rights to bind state governments as well as the Federal government. If you read the Constitution as though it were an ordinary document written in the English language, the Bill of Rights doesn’t apply to state governments, only to the Federal government. The “incorporation” idea is that the 14th Amendment by implication made (most of) the Bill of Rights apply to the States.
If Justice Thomas thinks that was a bad idea, I agree with him — there are State Constitutions, after all, and they generally do contain Bills of Rights of their own, sometimes more extensive than the Federal one (California’s, for example, explicitly contains a “right to privacy,” right there in the text as opposed to knit out of a bunch of unrelated cases like the Constitutional one invoked in Griswold). I don’t like documents being read contrary to their plain meaning in order to do something expedient, and I also don’t like the assumption that citizens of individual states aren’t capable of safeguarding their own rights on the state level. But all that is beside the point, because incorporation ain’t goin’ nowhere. It’s a fact on the ground. Not gonna be undone, actus.
I am curious, though, how you imagine that incorporation keeps the Federal government out of anything at all. If you really want to keep the Feds out of your hair, you might want to think about appointing judges who don’t take the Commerce Clause as an excuse to regulate absolutely everything, on the grounds that absolutely everything can be connected somehow with interstate commerce.
And it’s not quite people’s business. It’s people’s families and their choices of partners, living situations, contraception, etc . . .
Oh, my. actus, you can live with whomever you choose; and you can buy whatever contraception you want. No one is going to stop you, least of all the Federal government. I suppose the nasty theocrats in Washington might make use of that expansive Commerce Clause interpretation to ban contraception across the entire country, but, you know, I kind of doubt they’d do that. Don’t you?
” Actually, incorporation doesn’t keep the Federal government out of anything; what it does is hold most (not all) of the Bill of Rights to bind state governments as well as the Federal government.”
I know. It puts the federal government in enforcing constitutional rights agaisnt states. Thanks big government!
“I don’t like documents being read contrary to their plain meaning in order to do something expedient, and I also don’t like the assumption that citizens of individual states aren’t capable of safeguarding their own rights on the state level.”
The plain meaning of the words “privileges and immunities” and “liberty” being ?
“Oh, my. actus, you can live with whomever you choose; and you can buy whatever contraception you want.”
Thanks to substantive due process. The latter, thanks to the right of privacy in Griswold, not found by some “plain meaning” types. The former also thanks to substantive due process that says (forgetting the case) that i can’t be zoned out of my neighborhood because I’m a grandparent living with two grandkids who are cousins but don’t share a parent.
Thanks 14th!
But its also a question of having the ability to structure my family how I want, and to be able to access thinkgs like civil unions and unmarried partner benefits (gay and straight), which the federal marriage amendment, and other state amendments, threaten. They threaten private contracts that set these up and they threaten state action that set these up as well.
actus,
Yep, “substantive due process,” which made its debut in Dredd Scott, had a merry run in the 30s beginning with Lochner, and now is Gospel on the legal left. Why? The very concept is bizarre. “Due process” on its face means, er, a process that’s due; i.e., that any case be handled through the existing legal channels, and any plaintiff have a hearing. “Substantive due process” apparently means that a judge may enforce whatever s/he feels like enforcing. If that doesn’t worry you, you’ve a better temperament than I do.
You seem to think that you owe the fact that you can now walk into any grocery store in the country and pick up condoms to the Supremes’ actions 40 years ago. All the Court did was invalidate Connecticut’s law; it certainly didn’t by itself make contraceptives popular or profitable. In my experience, states generally don’t long ban popular and profitable things. (Though the Feds do ban marijuana — am I supposed to throw in an “all hail Big Government” here?)
I’m for domestic-partner benefits for gay couples. (Hell, I’m for gay marriage.) I’m not for such benefits for straight couples. People who can marry and don’t choose to ought not to ask for benefits designed to support families. I think the idea of outlawing gay marriage nationwide is incredibly stupid, a waste of time and effort; but I don’t think making people forgo what wouldn’t have been so much as a possibility 20 years ago is the equivalent of jihad.
People of faith whose faith will compel them to ignore the rule of law certainly should not be appointed to the bench. It’s not their faith that’s at issue, or even the fact that their faith will guide their beliefs on policy. Rather, it’s the fact that their faith will lead them to ignore the principle of state decisis and reverse Roe v. Wade, established law. That way lies anarchy.
The rule of law is more important than coddling the “faith” of judicial appointees.
Moreover, it’s perfectly legitimate to oppose someone based on the political applications of their faith. If George W. Bush appointed a member of the World Church of the Creator, a religion that believes that white people are superior to everyone else, such a nominee is rightly opposed on the basis of their “faith,” even if their faith is sincerely held.
While mainstrwam Christianity certainly isn’t comparable to those racist freaks, the fact remains that one can not insulate one’s political or legal views from scrutiny, as a judicial nominee, merely by picking them up from your religion.
If Bill Clinton had nominated a Rastafarian to the bench with an avowed religious opposition to enforcement of drug prohibition, do you think the Republicans would have let it through?
Paul Gowder,
People of faith whose faith will compel them to ignore the rule of law certainly should not be appointed to the bench. It’s not their faith that’s at issue, or even the fact that their faith will guide their beliefs on policy. Rather, it’s the fact that their faith will lead them to ignore the principle of state decisis and reverse Roe v. Wade, established law. That way lies anarchy.
Yeah, like the “anarchy” that ensued when stare decisis was ignored and Plessy v. Ferguson (“established law”) was overruled. Yes?
You want to argue that Supreme Court decisions should never be overturned, go for it. I don’t think you’ll find many takers.
How about the argument that very few Supreme Court decisions should be overturned, and only when those decisions are, as Plessy was, manifestly incorrect?
Whatever else conservatives can say about Roe, only the most abject extremists would compare it to Plessy.
And it’s not just Roe. How about the Lemon test, the bedrock of establishment clause jurisprudence for decades? How long will that last with a few more Scalias? Is Lemon of a kind with Plessy? I think not.
“”Substantive due process” apparently means that a judge may enforce whatever s/he feels like enforcing. If that doesn’t worry you, you’ve a better temperament than I do.”
what worries me is that people will read the word ‘liberty’ and not understand it.
“You seem to think that you owe the fact that you can now walk into any grocery store in the country and pick up condoms to the Supremes’ actions 40 years ago”
in many parts of this country, that is true. yes. its what keeps people like tom delay out of my family life.
“but I don’t think making people forgo what wouldn’t have been so much as a possibility 20 years ago is the equivalent of jihad.”
if it were, I’d be advocating bombings campaigns and wars.
Paul,
Whatever else conservatives can say about Roe, only the most abject extremists would compare it to Plessy.
What is an “abject extremist,” please? Really, if your going to argue that overturning “established law” will result in “anarchy,” and not allow for the possibility that the “established law” was wrong, then you can hardly turn round on me when I mention the overturning of “established law” that did, in fact, result in something like “anarchy,” and say, “well, but that decision was wrong.” If you’re going to use stare decisis only to defend decisions you don’t want overturned anyway, it’s not much of a principle, is it?
I don’t suppose it will surprise you that I think Jim Crow was wrong. I am not sure that it was obvious at the time of Plessy that segregation was unconstitutional, and frankly I don’t think Brown made the case well. But it made a better case than Roe did, and it continues to amaze me that people are attached to that remarkable mess of an opinion.
Really, if your going to argue that [ . . .]
“you’re,” obviously. God, that’s embarrassing.
Paul,
Anyone who would use the canard that the World Church of the Creator is a religion so that that can attack religious people is beneath contempt.
While mainstrwam Christianity certainly isn’t comparable to those racist freaks, the fact remains that one can not insulate one’s political or legal views from scrutiny, as a judicial nominee, merely by picking them up from your religion.
Then why would you bring it up unless you were trying to smear religious people with guilt by association?
actus,
what worries me is that people will read the word ‘liberty’ and not understand it.
What worries me is that they’ll read it and put whatever they want in there, not excluding a lot of non-liberty for people who disagree with them. I mentioned Nat Hentoff yesterday; show me other champions of “liberty” that object to racketeering statutes being used against peaceful protesters. The ACLU certainly hasn’t.
“What worries me is that they’ll read it and put whatever they want in there, not excluding a lot of non-liberty for people who disagree with them.”
I don’t see anyone reading liberty as non-liberty.
I don’t know anything about how RICO statutes violate due process.
actus, Hentoff detailed cases of protest organizers being prosecuted as “racketeers” for, well, organizing protests. Or, in some cases, merely putting out newsletters telling where and when protests were going to be held.
Did I say that this “violates due process”? Of course not. I do say that it violates common sense and (as I may say since you hold it dear), the spirit of the First Amendment. I would guess that if there were RICO prosecutions of antiwar protesters you’d be slightly less blasé, and so would the ACLU.
From what I understand racketeering, its organizing illegal activity in furthereance of an enterprise. What illegal activity was he charged with organizing, and what was his enterprise?
actus, as I recall the case Hentoff detailed, the allegation was that protesters were engaging in “extortion” in the sense that they were trying to shut down abortion clinics via their protests. “Stop doing abortions, and we stop protesting” = extortion. Extortion falls under RICO. Two or more people colluding in extortion are a “racketeering organization” so far as the statute is concerned. So there you are.
If you really think the ACLU wouldn’t leap to the defense of protesters of unfair labor practices, or censorship, or indeed just about anything else faced with a RICO suit for protesting, I think you have too trusting a nature. What’s happened is that the ACLU, forced to choose between protest as a civil right and abortion as a civil right, went for the latter.
You know, I once admired the ACLU, but that was before Walter Polovchak’s case. You want an instance of people reading “liberty” as “non-liberty”? There’s one. (If you don’t know the case, you damn well ought to; Google it.)
“If you really think the ACLU wouldn’t leap to the defense of protesters of unfair labor practices, or censorship, or indeed just about anything else faced with a RICO suit for protesting, I think you have too trusting a nature”
I think the ACLU knows that there are legal ways of fighting abortion that don’t threaten actual abortion rights. They’ve defended nazi’s. But not when they’re extortionist. Not when they’re organizing violence.
” You want an instance of people reading “liberty” as “non-liberty”? There’s one.”
I see the liberty interest of a parent to make decisions about their child in the first page I saw.
actus,
The protests Hentoff was talking about were peaceful. They were “extortionist” in the same way that a labor union picketing a business it thinks is acting unfairly is “extortionist.” “Change what you do, or we keep protesting.” You have a problem with that?
I like the “they defend Nazis, but not extortionist Nazis” line, btw. Nice. They should pay you to use that.
Re Polovchak, the “child” was 12, and he was pretty clear about why he didn’t want to go back to Ukraine. I can see arguments in his parents’ favor, but I can’t see any that involve “civil liberties.”
As for “the liberty interest of a parent to make decisions about their child,” next time I see the ACLU invoking that on behalf of Christian Scientists, cultists, whatever, I’ll believe you. Never seen it yet.
“:The protests Hentoff was talking about were peaceful. They were “extortionist” in the same way that a labor union picketing a business it thinks is acting unfairly is “extortionist.” “Change what you do, or we keep protesting.” You have a problem with that?”
Weren’t they blocking access to clinics?
“Re Polovchak, the “child” was 12, and he was pretty clear about why he didn’t want to go back to Ukraine. I can see arguments in his parents’ favor, but I can’t see any that involve “civil liberties.””
I think its a “civil liberty” that we not tear apart a family.
“As for “the liberty interest of a parent to make decisions about their child,” next time I see the ACLU invoking that on behalf of Christian Scientists, cultists, whatever, I’ll believe you.”
I don’t think a parent’s liberty interest in their child rises to the level where an unfit parent can make teh decison to deny their child needed medical treatement. And I don’t think living in the Ukraine makes one an unfit parent.
Why am I not surprised that actus would support RICO/conspiracy prosecutions of abortion protesters but not of labor unions organizing strikes? Maybe because I’ve read so many of his comments.
And then there’s Paul Gowder, who wants no Supreme Court opinion ever reversed (unless it’s wrong, of course). Anyone who doubts that liberalism has a tendency to reduce itself to unbridled instrumentalism need look no farther than comments here.
But now that Paul has introduced Plessy …
Whatever else conservatives can say about Roe, only the most abject extremists would compare it to Plessy.
… I get another opportunity to remind everyone that the holding of that case was that racial discrimination need only be reasonable to be constitutional, and that if blacks chose to indulge themselves in the delusion of regarding “separate but equal” segregation as invidious that was there problem. Thus today’s defense of racial preferences rests on the same view of the 14th Amendment as the majority opinion in Plessy. It is those of us who criticiize racial preference who endorse the Harlan’s magnificent dissent in Plessy, articulating the view that the “Constitution is colorbllind.” If Paul agrees with racial preferences, as I assume he does, he better be careful about claiming that Plessy was wrong.
And while I’m at it, let me conclude for Paul’s benefit that there are indeed many scholars who think Roe was a worse opinion than Plessy, even many who abhor segregation and support abortion. The majority opinion in Plessy was at least well-grounded in the 14th Amendment — better grounded there, in fact, than Harlan’s dissent — while Roe was grounded in, well, in Justice Douglas’s emanations from penumbra that he discovered in Griswold.
“Why am I not surprised that actus would support RICO/conspiracy prosecutions of abortion protesters but not of labor unions organizing strikes?”
strikes are legal. the wingers haven’t gotten to that yet. blocking clinics isn’t legal.
The Religious Right isn’t suggesting that the Democrats are opposing these nominees because their religious beliefs have led them to particular political positions (e.g., against legal abortion and gay sex). They’re making a stronger and more audacious and divisive claim: that the Democrats are anti-religious. Looko at the ad showing a student “deciding” between public service and “Christ”! In their view, your faith is fake unless you subscribe to their official positions, and anyone who is interfering with Bush’s nominees is against the One Truth.
By all accounts, Osama bin Laden is a person of faith. Why this qualifies him for public office escapes me.
So, actus, when a “striker” blocks access to “scabs” using physical force, the threat of it, or physical techniques to obstruct movement, you’d agree that is illegal? If a group of two or more strikers agreed beforehand to use such techniques, you agree that they have engaged in RICO racketeering violations (the seriousness of this is that they could go to jail for life under this statute)? And labor movements have a greater nexus to “enterprise” (“wages”) than abortion protestors, so a labor protest resulting in RICO violations would make slightly more sense?
Or how about this? Many BAMN members should be put in jail for life because their mission overtly advocates organized violence (any means necessary), because they’ve engaged in such activity, and because they obstruct access to events and area.
Although I do believe that protesters that physically obstruct people are committing assualt (and battery if there is contact) and should be prosecuted individually under those local statutes, I think it would be absurd to apply RICO to BAMN, just as it is abortion protestors.
actus,
[me, way the heck up-thread:]
If you’re going to use stare decisis only to defend decisions you don’t want overturned anyway, it’s not much of a principle, is it?
I’m serious about that. I don’t take people’s claims to believe in stare decisis seriously unless they’re willing to apply it to a case they earnestly think was wrongly decided. Since anyone interested in Constitutional law has at least one pet case that s/he thinks was wrongly decided, I’m curious what you’d let sit, as “established law,” that you think is wrong. Anything will do; I’m just curious if there is anything.
My understanding is that abortion clinics have special statutory protection.
“Since anyone interested in Constitutional law has at least one pet case that s/he thinks was wrongly decided, I’m curious what you’d let sit, as “established law,” that you think is wrong”
I’d say Hamdi was wrong. I’d say the correct answer was the scalia/stevens dissent. But i’ll let it sit, if limit it.
Trying to get a straight answer from actus is like pushing a wet noodle. You get nowhere and it is extremely frustrating.
Andrew,
They’re making a stronger and more audacious and divisive claim: that the Democrats are anti-religious.
If the shoe fits …
By all accounts, Osama bin Laden is a person of faith.
Does a comment like this qualify as a corollary to Godwin
Michelle: do you disagree that stare decisis should only be ignored in the most extreme cases, that, in fact, the members of the Court should not overrule every decision that they happen to disagree with?
If not, I return to anarchy.
If so, do you agree that Plessy was worse, both in terms of justice and in terms of constitutional fidelity, than Roe?
If not, then we can enter into that discussion on a serious level.
If so, we can conclude that a nominee who openly plans to reverse Roe is at least suspect, unless the bar for really-bad-decisions-that-should-be-reversed is somewhere above both Plessy AND Roe.
Richard: I specifically said that the World Church of the Creator “freaks” were not comparable to mainstream Christianity, so your attack is utterly baseless. The only point of the reference was to demonstrate that bad ideas can’t be protected by cloaking them in religion. How about the other example? Rastafarianism is a perfectly peaceful and decent religion that just happens to incorporate the use of ganja. If you were on the Senate Judiciary Committee, and you were questioning a nominee who was a Rastafarian, wouldn’t you ask about their position on the constitutionality of the drug laws? And if they said they planned to vote to strike down the drug laws, wouldn’t you vote against them? (Assuming for demonstrative purposes here that you support the drug laws.)
John: Why does the penumbral emanations thing always get so much grief? When you think about it, the Bill of Rights DOES have penumbral emanations. Rights imply other rights to make them effective. The First Amendment says Congress can’t pass a law restricting speech, but it also means that the executive branch can’t fire its low-level employees for speaking out in disfavored ways on public issues. That’s not in the text of the Constitution (which only speaks to Congress making laws), it’s a logical extension of the function of the right set forth there: to freely participate in the political sphere without government retaliation. It’s a penumbral emanation.
Douglas (I’ve been looking for a portrait of him for my office wall) just gave it a name. Admittedly, a funny name. But the idea that enumerated rights imply other rights necessary to make them effective hardly came from him. Indeed, one of the original objections to a bill of rights was that it would imply that the list was exclusive, and it’s well-known that this is exactly why the 9th amendment was added.
In the context of the 9th amendment and the frequent practice of implying rights necessary to make enumerated rights effective, the right of privacy as articulated in Griswold makes perfect sense. Without it, neither speech/association (cross-reference NAACP v. Alabama) nor the third and fourth amendments plain intent to carve out a home sphere safe from government intrusion would be meaningful.
actus,
I’d say Hamdi was wrong. I’d say the correct answer was the Scalia/Stevens dissent. But I’ll let it sit, if limit it.
Wow, good choice! An illuminating case too. (For those who don’t know it, Hamdi was about an American captured while fighting for the Taliban in Afghanistan. The question was whether an American citizen could be held as an “enemy combatant” indefinitely without trial. The Court splintered wildly, with Rehnquist, Kennedy, and Breyer joining O’Connor’s opinion in favor of keeping the guy locked up, Stevens joining Scalia’s dissent, Thomas dissenting separately, and Souter and Ginsburg “concurring in part, dissenting in part. ”
(NB: here, as far more often than you’d imagine from press accounts, the “conservative bloc” of the Court was split. The popular version of the Court has Rehnquist, Scalia, and Thomas off in their own little corner, joining with Kennedy in 5/4 dissents and throwing in O’Connor for their 5/4 wins. The reality’s rather different, as you can see: here’s a case in which Stevens joined Scalia, and Rehnquist was on the other side, and Thomas filed separately. Interesting, yes?)
Paul Gowder,
Michelle: do you disagree that stare decisis should only be ignored in the most extreme cases, that, in fact, the members of the Court should not overrule every decision that they happen to disagree with?
I don’t think that’s how the Court itself views it. In fact, it’s constantly overruling its precedents in small matters; it’s in big ones that it gets cautious.
If not, I return to anarchy.
Tell it hello from me;-)
If so, do you agree that Plessy was worse, both in terms of justice and in terms of constitutional fidelity, than Roe?
Well, I can’t do that, because I think Plessy was a reasonable decision and I think Roe was an unreasonable one.
If not, then we can enter into that discussion on a serious level.
I suppose we can’t, then.
If so, we can conclude that a nominee who openly plans to reverse Roe is at least suspect, unless the bar for really-bad-decisions-that-should-be-reversed is somewhere above both Plessy AND Roe.
A single justice who “openly plans to reverse Roe” must have some serious martial arts moves. Four other justices will have to be roped in here.
Michelle: why do you think Roe was unreasonable (and more unreasonable than Plessy, no less!)? Do you think the underlying right established was unreasonable, or do you think the method of implementation was unreasonable?
If you just think the way it was structured — all of the weird stuff with trimesters and such — was unreasonable, we might agree. I think there’s general agreement that Blackmun overdid it there.
On the other hand, if you think the basic right to have the medical procedure of abortion done on onesself can’t be found in the constitution, I think we’re talking about totally different bill of rights.
My bill of rights isn’t a creature of discrete legal requirements to be narrowly interpreted to the limits of the text, but is instead a broad statement of principles setting forth the relationship between the people and their government and describing certain aspects of a citizen’s life as being beyond the government’s power.
The first amendment says the politics, faith, conscience, and relationships of the citizen are beyond the government’s power. The second — well, that’s another discussion. The third, fourth, and fifth, say that the citizen’s person and property are beyond the government’s power absent various protections. The seventh and eighth say that the citizen’s freedom is beyond the government’s power without those protections. The ninth expresses the principle that I’m relying on here: that the rights of the people are to be interpreted in a broad and principled fashion, rather than, as Madison said, “disparag[ing] those rights which were not placed in that enumeration[.]” The tenth says that the right of the people to handle the general affairs of governance through the states is beyond the federal government’s power absent specific language to the contrary.
Each of those is not, as Madison made clear, an exacting and limiting establishment of the limit of the rights of the citizenry against their government. Each instead is a statement of principles that the government may not violate. That’s exactly why the ninth amendment is there — to make that utterly clear.
If you accept this view of the Constitution, which I think is pretty clearly the view of at least some of the Framers (reference again that Madison stuff) it’s hard to call Roe (or Grisworld) unreasonable. The guarantee of freedom from bodily intrusion by the government is written all over the place in the bill of rights, and if the ninth amendment means anything, it means that the government can’t “deny or disparage” the right of the people to the control of their own bodies.
So how is Roe unreasonable?
If you don’t accept my broad bill of rights, note, then you have to provide some alternate explanation for what the 9th amendment means if not to codify just that broad interpretation.
Paul,
Richard: I specifically said that the World Church of the Creator “freaks” were not comparable to mainstream Christianity,
Yes you did after you first said that “If George W. Bush appointed a member of the World Church of the Creator, a religion that believes that white people are superior to everyone else” when you know full well that they are not a religion, but a hate group. In other words you deliberately smeared religious people by identifying World Church of the Creator as a religion.
To put it in a way that you would understand, if I said that Communism is a Leftist political party that killed 100 million people during the 20th century, but of course Leftists in the US are not comparable to those murders, you might believe that I was making an ad hominem attack and you would be right. In other words, if they are not comparable then don
Richard: World Church of the Creator IS a religion! So is Scientology, and so is Aum Shinrikyo and so were the Branch Davidians and so were the organizations within the Catholic Church that sponsored the Inquisition. The mere fact that all of these people are evil and spout things like killing and hate doesn’t make them not religions. It just makes them religions that espouse evil ideas.
That was my point. Not an attack on religious people, but an attack on the idea that the religious origin of one’s ideas permits one to shelter them from scrutiny and to cry “you’re against religion” when what the object of such crying really is against is the judicial application of the ideas espoused by that religion.
Even a sixth-grade level of reading comprehension could have realized that illustration wasn’t an attack on religion when it was surrounded by countless qualified statements making it clear that the objection was to the ideas not their religious nature (both before AND after) (e.g. “it’s perfectly legitimate to oppose someone based on the political applications of their faith.”), as well as the generally positive nature of the descriptions of religion and religious people (e.g. describing religious people as “people of faith” rather than “Jesus freaks.”)
“Four other justices will have to be roped in here.”
there’s already 3.
Paul Gowder:
Why does the penumbral emanations thing always get so much grief? When you think about it, the Bill of Rights DOES have penumbral emanations.
If you say so. Maybe you’ve got a pair of penumbral emanation glasses that allows you to spot them, hovering as they are in the ether.
Rights imply other rights to make them effective. The First Amendment says Congress can’t pass a law restricting speech, but it also means that the executive branch can’t fire its low-level employees for speaking out in disfavored ways on public issues.
I’m not a lawyer, but I suspect you’re flatly wrong about this. Insofar as an executive branch employee has any right publicly to oppose executive branch policy, it will be because of civil service protections, not the First Amendment.
“If you say so. Maybe you’ve got a pair of penumbral emanation glasses that allows you to spot them, hovering as they are in the ether.”
you should read scalia’s 11th amendment jurisprudence.
John: I’m actually flatly right about the first amendment/public employee thing. The right isn’t absolute: it depends on the public interest being spoken about and the nature of the job. So obviously, the secretary of state can be sacked if she criticizes the president’s foreign policy. But a low level worker in the Social Security Administration can not be sacked for the same statement.
It also applies to state/local gov’t employees, even those not protected under civil service regs.
The basic legal background is explained here. There’s a number of Supreme Court cases overturning the discharge of public employees based on First Amendment protected speech.
(I have the unfair advantage in constitutional law arguments of being not only a lawyer, but a civil rights lawyer who deals with this constitutional stuff daily. So I can cheat. :-) )
Paul,
You may well be right about First Amendment protections extending to executive branch employees, and I will defer
to your greater knowledge of this area.
I did look at the discussion of this issue that you linked, and there is evidence there that the protection can be so attentuated that it may be more misleading than instructive to say that executive branch employees have First Amendment protection for their public speech. A couple of examples (this being law, I’m sure there are examples on the other side. I cite these not to prove you’re wrong but to reinforce my point about the limitations that can be put on public speech of exec. branch employees):
the Court found that a public employee’s statements on a matter of public concern could not be the basis for discharge unless the statement contained knowing or reckless falsehoods, or the statements were of the sort to cause a substantial interference with the ability of the employee to continue to do his job.
In Connick, a 5 to 4 majority of the court concluded that speech about the internal operation of a district attorney’s office is generally not of “public concern.” Moreover, the Court held, distribution of a questionaire by the discharged employee raising questions about management of the office could be reasonably seen as sufficiently damaging to close working relationships to justify discharge.
Another case held that a deputy constable could not be fired for stating that he hoped Hinkley got Reagan if he tried again, but recall that my point was not about the ability to limit general speech but speech that opposed executive branch policies.
From the link you provided I’m willing to agree that the First Amendment does protect the speech of executive branch employees, but it doesn’t seem to offer nearly as much protection as it offers to others.
John: yea, that’s about right. The general rule is that the more the public is concerned with the issue spoken of, and the less effect on the employee’s ability to do their job, the more protection there is. Issues of lesser public concern or more related to the employee’s job performance = less protected.
Paul,
Let me give you some useful advice. When you are in a hole you won
Richard: can you read? I’ve been trying really hard to be polite here in the face of your deliberate distortion of what I said, but this is truly ridiculous. Either you’re a complete blithering moron who truly doesn’t understand that I WAS NOT MAKING ANY ASSERTIONS WHATSOEVER ABOUT THE GENERAL CHARACTER OF RELIGIOUS PEOPLE, PERIOD, or you have some chip on your shoulder that really requires professional counseling before you’re fit to be returned to civilized society. Listen to me. I’ll explain it in short words so you can understand.
I used the World Church of the Creator thing to show one point, and one point only: people claim religious sanction for things we don’t have to agree with.
I specifically distinguished between Christians, most of whom are good people, and World Church of the Creatorians, all of whom are bad people.
I said nothing about making any person suspect. I said that certain ideas were suspect, and that those ideas could not be sheltered from criticism merely by virtue of the fact that they came from anyone’s religious belief.
That is all I said. all. ALL. ALL. I said nothing else. NOTHING! NADA! ZIP! ZILCH! ZERO!
Why can’t you get that through your thick skull? You can’t possibly be that stupid, because you know how to operate a computer. Read my first comment like it’s something that you want to understand (optimistic a goal as that may be) rather than something you want to pick out three fucking words from and use them to create a derange attack based on my supposed bias against religious people when… you have no idea what my own personal religious beliefs are!
But wait, it’s not just me! You’ve blatantly and deliberately distorted actus’ comments too. You suggested that (s)he believes that it was Christians who flew the planes into the World Trade Center. Uh, yea. Right. Look, obviously you’re so insecure in your own religious faith that you feel the need to outright lie about what other people say whenever they deign to criticize — not even the religion — but the actions of anyone who proclaims Christianity or any other religion. Perhaps you need to reconcile yourself to whatever deity you believe in and then you can interact with others as civilized people instead of attacking like a rabid doberman whenever someone says anything which you delusionally interpret as critical of religion.
Or perhaps you just need to take a remedial reading class. Adult literacy programs are available in every major urban area, if you post your city, I’m sure those of us that know how to use google can find one for you.
If you don’t get it yet, have your mommy buy you hooked on phonics and brush up on your reading comprehension skills.
LEARN TO READ.
Everyone (except Richard): I apologize for the previous tirade. Deliberate distortion of what I say tends to really piss me off. John, I won’t be at all offended if you delete that rant.
Michelle:
I’m serious about that. I don’t take people’s claims to believe in stare decisis seriously unless they’re willing to apply it to a case they earnestly think was wrongly decided. Since anyone interested in Constitutional law has at least one pet case that s/he thinks was wrongly decided, I’m curious what you’d let sit, as “established law,” that you think is wrong. Anything will do; I’m just curious if there is anything.
I think I can answer that in good faith as to any number of cases. Off the top of my head, Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) (which itself disregarded stare decisis for no good reason since it basically overruled Logan Valley), which I think represents a terrible restriction of the free-speech-on-private-land line of cases, and creates a real injury to grassroots political action in this day and age of privatized public squares like shopping malls because speakers no longer have easy access to audiences.
Nonetheless, I see no argument to overturn it. Unlike Plessy, it isn’t blatantly wrong. I disagree with it, it creates an interpretation of the First Amendment that I think is contrary to what the framers would have wanted had they been presented with shopping malls, but it’s a permissible interpretation of the constitution.
I think that’s really what it comes down to. A case can be wrong, but as long as it’s within the scope of reasonable, it shouldn’t be overruled. Plessy was wrong and also an unreasonable interpretation of the equal protection clause. Lloyd is wrong but a reasonable interpretation of the first amendment.
In the same vein, I don’t like Buckley v. Valeo. It’s incoherent. Contributions (a.k.a. the speech of the contributor) aren’t protected, but expenditures (a.k.a. the speech of the candidate) are? It makes no sense. I don’t really think a fair limit on expenditures, one that was facially neutral and large enough to permit challenges to incumbents with greater name-recognition and media access, would really implicate any first amendment interests significantly. It wouldn’t restrict the actual speech directly, and the indirect connection is tenuous since there’s a bunch of ways that candidates communicate that aren’t terribly expensive. So I disagree with Buckley.
But, should George W. Bush drop a whole bunch of really bad acid and appoint me to the Supreme Court (NO, Richard, I’m not calling Bush a drug addict. And nor is the fact that I used the word “bad” in the same sentence as the word “George” mean I’m saying all people named George are bad.), I wouldn’t vote to overturn Buckley because I think it’s a permissible interpretation of the first amendment.
Paul,
One thing is certain. You are not a
That’s right, Richard. I lied about my profession. In actuality, I’m an Al Qaeda operative on a mission (personally assigned from Osama) to discredit all believers in Christianity by making references to other, bad, organizations in the same paragraph. Watch this!
Christianity has absolutely nothing to do with Hitler. For that matter, I do not believe that Stalin was a religious person. While Pinochet may have believed in a religion, I doubt his actions were consistent with that religion. Evil Space Aliens from Mars might have a religion. Insane prisoners who think the government implanted microchips in their head and file suits claiming same sometimes believe in a God.
Bwa ha ha! I have now utterly destroyed the credibility of religion in public life by equating it with Hitler, Stalin, Pinochet, Evil Space Alients and insane prisoners! Take that, Christ!
Paul,
And you clearly lack a sense of humor. Hint, notice the quote marks around civil. Now aren’t we embarrassed?
Actually, on my monitor, the quotation marks didn’t appear. They showed up due no doubt to some ascii glitch as question marks.
�civil�
And that is funny. What a world, eh? Shake hands and make up?
If we want to double our irony, reference this post on my own blog, where I manage to prove both of us in the wrong: me by regretting my tendency to lose patience with people I disagree with, and you by the fact that I endorsed Christ. :-)
Paul,
I
Blogworthies LXIII
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