Free Markets, Free People

SCOTUS

Challenging The Health Care Reform Bill On Constitutional Grounds – Is It Really An Option?

One of the more dishonest ways the Congress is able to portray various spending bills as not adding to the deficit or being revenue neutral is to push mandates onto the states and have them pay a large portion of the cost. That way, that cost is hidden from the original numbers churned out by Congress and validated by the CBO. That’s the case in this health care bill and one of the primary reasons Sen. Ben Nelson sought an exemption for his state of Nebraska before he’d support the current Senate bill.

Well that’s not sitting well with any number of states going through hard financial times right now and seeing even more spending mandates coming their way in the health care reform legislation. They’re threatening to go to court if what they’re calling the “Cornhusker Kickback” is left to stand in the legislation:

Thirteen state attorneys general have sent a letter to Congress threatening legal action against health care reform unless a provision in the Senate bill given to Nebraska is removed.

The provision is known as the “Cornhusker Kickback,” because it gives Nebraska a permanent exemption from paying for Medicaid expenses that would be required of all the other states. This means that taxpayers in other states would be paying for an increase in Nebraska’s Medicaid population. Medicaid is a federal-state health care program for the poor.

“This provision is constitutionally flawed,” the attorneys general wrote. “As chief legal officers of our states we are contemplating a legal challenge to this provision and we ask you to take action to render this challenge unnecessary by striking the provision.”

I bring this to your attention because I think this may be the primary way those who oppose the health care bill will have to fight it once it has passed – in court.  There are all sorts of problems and pitfalls with such a strategy.  But I’m also of the opinion much of the bill is “constitutionally flawed” and wide open to challenge. Of course, given the rather liberal interpretations of that document in the past by SCOTUS, it’s rather difficult to predict whether challengers will have any success. However, I think the mandate to buy health insurance, for instance, is something which can be challenged on constitutional grounds. And obviously these 13 States Attorney Generals think they have constitutional ground to challenge the kick back (I wish they’d challenge the mandate to the states instead).

We’ll see, but supposedly that’s what the court is there for – although since Kelo, I’ve had very little confidence in the court’s actual desire or aim to uphold the actual intent of the document.

~McQ

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Sotomayor – The New “Conservative” Justice?

Move over Clarence Thomas and Sam Alito, here comes Sonia Sotomayor.

I’m not sure who that was appearing before the Senate Judiciary Committee yesterday, but I’m pretty sure it wasn’t the woman everyone expected. As Sen. Lindsey Graham said:

“I listen to you today, I think I’m listening to [Chief Justice John] Roberts.”

She talked about “settled law”, precedent, how a justice must set aside their emotions, even to the point of saying she disagreed with Obama’s declaration that in judicial decisons, “the critical ingredient is supplied by what is in the judge’s heart.”

Perhaps the most unconvincing portion of her testimony, however, was her defense of the “wise Latina woman” comment. She began by declaring that Justice Sandra Day O’Connor couldn’t have meant what she said when she said “a wise old man and wise old woman would agree on a judicial case’s outcome”. Surely, Sotomayor reasoned, if one of them came to a different conclusion, that wouldn’t mean they were unwise.

She claims her statement was a “rhetorical flourish which fell flat”. She pointed out that she was trying to inspire mostly Latino audiences when she included her “flourish” in a speech. A reminder of that so-called “rhetorical flourish” that was supposedly aimed at the O’Connor maxim:

“I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Yeah, I’m having difficulty with the connection as well. She went on to say:

“What I was talking about was the obligation of judges to examine what they’re feeling as they’re adjudicating a case and to ensure that that’s not influencing the outcome,” Sotomayor told Sessions. “We have to recognize those feelings and put them aside.”

Really? That’s what Sotomayor was talking about? Then I agree that it was indeed a rhetorical flourish which fell flat because I got precisely the opposite meaning from what she originally said.

Apparently she figured it was time to declare that whatever she said it should make no difference, because you see —

“To give everyone assurances, I want to state upfront, unequivocally and without doubt, I do not believe that any ethnic, racial or gender group has an advantage in sound judging. I do believe that every person has equal opportunity to become a good and wise judge, regardless of their background or life experiences.”

Maybe it was just me, but I felt that Ms. Sotomayor was saying pretty much whatever the task demanded yesterday. I’m not at all assured that she believes anything she said in her “assurance” above. I thought her explanation about the “wise Latina” remark was poor at best.

That’s not to say she won’t be confirmed for the SCOTUS. She most likely will. In fact, I’d bet on it. However, that doesn’t mean she’s fooled anyone with the show she’s putting on during her confirmation hearings.

~McQ

Sotomayor Overturned? (Update)

From Twitter a minute ago:

NYT NEWS ALERT: Supreme Court Rules for White Firefighters in Affirmative Action Case

This could give new legs to the opposition of Sotomayor’s nomination.

Again, developing …

UPDATE:  The Washington Post confirms.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide, potentially limiting the circumstances in which employers can be held liable for decisions when there is no evidence of intentional discrimination against minorities.

I’d say that’s a fairly significant ruling and certainly the opposite of what Sotomayor held. Of course, if Sotomayor was on the court right now (and hadn’t had to recuse herself for hearing the case in a lower court) she wouldn’t have made any difference since David Souter, the justice she’s slated to replace, voted in the minority.

More here.

~McQ

Miranda Warnings In The Battlefield?

This simply can’t be right, can it? That the Obama administration secretly directed the military to Mirandize combatants and terrorists when captured? Surely this is just crazy talk:

… the Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan, according a senior Republican on the House Intelligence Committee. “The administration has decided to change the focus to law enforcement. Here’s the problem. You have foreign fighters who are targeting US troops today – foreign fighters who go to another country to kill Americans. We capture them…and they’re reading them their rights – Mirandizing these foreign fighters,” says Representative Mike Rogers, who recently met with military, intelligence and law enforcement officials on a fact-finding trip to Afghanistan.

Rogers, a former FBI special agent and U.S. Army officer, says the Obama administration has not briefed Congress on the new policy. “I was a little surprised to find it taking place when I showed up because we hadn’t been briefed on it, I didn’t know about it. We’re still trying to get to the bottom of it, but it is clearly a part of this new global justice initiative.”

Ever since the Boumediene decision I’ve been warning that we’re turning legitimate military actions into law enforcement nightmares. No matter how badly we may want to achieve a world where transparency and the rule of law are the basis for all government action, the fact of the matter is that there are plenty of people out there who want to see the US destroyed regardless of the cost to themselves or their families. If we start dealing with these people as if they were common criminals, then we erode the very fabric that binds us as a nation. No longer does the word “jurisdiction” mean anything. Instead, we hand our enemies the keys to the castle.

Consider the following:

A lawyer who has worked on detainee issues for the U.S. government offers this rationale for the Obama administration’s approach. “If the US is mirandizing certain suspects in Afghanistan, they’re likely doing it to ensure that the treatment of the suspect and the collection of information is done in a manner that will ensure the suspect can be prosecuted in a US court at some point in the future.”

But Republicans on Capitol Hill are not happy. “When they mirandize a suspect, the first thing they do is warn them that they have the ‘right to remain silent,’” says Representative Pete Hoekstra, the ranking Republican on the House Intelligence Committee. “It would seem the last thing we want is Khalid Sheikh Mohammed or any other al-Qaeda terrorist to remain silent. Our focus should be on preventing the next attack, not giving radical jihadists a new tactic to resist interrogation–lawyering up.”

According to Mike Rogers, that is precisely what some human rights organizations are advising detainees to do. “The International Red Cross, when they go into these detention facilities, has now started telling people – ‘Take the option. You want a lawyer.’”

Rogers adds: “The problem is you take that guy at three in the morning off of a compound right outside of Kabul where he’s building bomb materials to kill US soldiers, and read him his rights by four, and the Red Cross is saying take the lawyer – you have now created quite a confusion amongst the FBI, the CIA and the United States military. And confusion is the last thing you want in a combat zone.”

Prosecution of any war, regardless of what your betters may think, is absolutely impossible in a law enforcement setting. Imagine having to “arrest” enemy soldiers instead of shooting them on sight. Or worse, think about the complications involved when a soldier shoots anyone, as compared to when a policeman is involved in a shooting. How would it work to take custody or extract intelligence from any enemy soldier if our soldiers have to apply mercurial Supreme Court precedent to each situation before risking their lives? Any cop will tell you that it’s hard enough keeping up with the norms as laid down by the high court (and interpreted by the administrators) in order to simply arrest common criminals. The idea that soldiers in the field of battle have the time or ability to “arrest” terrorists and the like, in places where English is not likely to be a common language (N.B. does that mean the military will be required to provide interpreters before apprehending anyone?) is simply ludicrous.

War is not pretty, and anyone who pretends to make it so is simply a fool. Ugly, unmentionable, outrageous and despicable things happen in war, as they do in any struggle for life. Creating an imaginary world in which there are breaks for tea and the enemy plays by the same (or any) rules is how the British lost North America. Subjecting ourselves to the vagaries or our enemy’s backwardness, by ignoring their complete denial of our moral superiority, will only serve to hasten our defeat.

For the foregoing reasons, I have to assume that Stephen Hayes is on the wrong end of some very bad information. As much as I may disagree with the Obama administration on a great many things, I have a hard time believing that they could be this naive and unconcerned about the future of our country that they would grant unprecedented gratuity to those who most wish us ill. The policies are most certainly wrong, but they can’t possibly be this misguided.

SCOTUS Temporarily Halts Chrysler Sale To Fiat

And Ruth Bader Ginsberg granted the halt (I wonder if she issued the stay on empathetic grounds or legal grounds?).

The “greedy speculators” who requested the stay were somewhat happy:

Indiana Treasurer Richard Mourdock said the ruling was a small victory for Indiana pensioners, who brought the request for an injunction for fear of losing their stake.

But, like I said, this is a very temporary stay:

In order for the stay to have a more lasting effect, five justices need to sign on it. That has not happened, or at least not yet. The court may yet deny the emergency request or grant it and await arguments about why it should actually hear an appeal.

However, that should be more than enough time for the usual suspects to demonize the firemen, police officers, teachers and blue collar workers greedy speculators and their desire to destroy the UAW auto industry for their pension funds 20 pieces of silver.

In fact, it has already begun:

Rep. Gary Peters, D-Mich., whose congressional district is home to Chrysler world headquarters, said the state of Indiana pension funds’ attempt to stop the sale is an effort to prevent a swift emergence from bankruptcy in the name of a small sum.

Indiana’s pension funds would lose $4.8 million if Chrysler is allowed to emerge from bankruptcy, Peters said, while the state will lose more than $20.7 million in tax revenue if Chrysler is liquidated, as well as incur tens of millions in lost revenue, expenses and new unemployment claims.

“Other stakeholders, including other secured lenders and Chrysler’s autoworkers, accepted shared sacrifice because they recognized their interest was better served keeping Chrysler alive rather than forcing liquidation. Why the officials who decided to take their objections all the way to the Supreme Court can’t recognize this is beyond me,” Peters said.

IOW, Michigan’s greed is much more acceptable than is Indiana’s. And besides, the powers to be have already made up their mind that the “greedy speculators” in Indiana should just shut up and accept the rape of their pension funds because the interests of others are “better served” if they get screwed vs. Michigan.

Nice.

~McQ

SCOTUS Says “No” To “Don’t Ask Don’t Tell” Challenge

The court chose not to hear the suit which challenged it, brought by an Army CPT, preferring, instead, to let the Obama administration deal with the subject. CPT Pietrangelo was originally 1 of 12 petitioners challenging DADT in court. Their case was dismissed by the 1st Circuit, but unlike the other 11 who chose to not appeal and let the Obama administration handle it, Pietrangelo appealed to SCOTUS. The result is as reported in the lede.

However, here’s the confusing part:

In opposing Supreme Court review of the Pietrangelo case, opponents of “don’t ask, don’t tell” have noted that Obama pledged during his presidential election campaign to end the policy. They say he appears to proceeding carefully to end the ban by first asking the Pentagon to study the implications and report its recommendations.

Why? Why is he “proceeding carefully”? One would assume that when someone declares he is going to end a policy, he has already gathered the information and done the studies necessary to understand the implications of changing such a policy might have before he declared he’d do it, right? [For the record I have no problem with trashing DADT.]

Oh wait, this is the same guy who declared he’d close Gitmo and end the Iraq war immediately after taking office, do away with FISA and hold the telcoms responsible, and have nothing to do with jailing bad guys indefinitely if they merely posed a threat to the US isn’t it?

Uh, nevermind.

~McQ

Policy Maker or Neutral Legal Umpire?

Which of those descriptions in the title would best describe your understanding of a Supreme Court Justice?

If you wonder what President Obama wants in a Supreme Court Justice, take a look at this excerpt from his speech explaining why he couldn’t vote for Justice Roberts.

He’s describing that 95% of the cases before the court will find all justices coming to the same conclusions. However, it is the 5% that concerned Obama and determined his inability to vote for Roberts. Here’s what he said:

In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

In those 5% of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country, or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions, or whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

“Empathy” and “heart” do not equal “rule of law”.

Thomas Sowell distills the essence of the argument against Obama’s assertion:

Justice Oliver Wendell Holmes said that he “loathed” many of the people in whose favor he voted on the Supreme Court. Obviously, he had feelings. But he also had the good sense and integrity to rule on the basis of the law, not his feelings.

Laws are made for the benefit of the citizens, not for the self-indulgences of judges. Making excuses for such self-indulgences and calling them “inevitable” is part of the cleverness that has eroded the rule of law and undermined respect for the law.

[…]

It would be considered a disgrace if an umpire in a baseball game let his “empathy” determine whether a pitch was called a ball or strike. Surely we should accept nothing less from a judge.

And that is reason enough why all of his nominees should be subjected to rigorous examination that requires them to explain their judicial philosophies in light of the president’s stated desires.

~McQ

Sotomayor – Reason To Be Concerned?

While there is all sorts of silly criticism emerging on the right (including the pronunciation of her name and the fact that she likes certain latin foods), there is an emerging criticism which I think has some validity. Most of of focuses on a speech she delivered at UC Berkley in 2001 and published later by The Berkeley La Raza Law Journal.

“While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law,” Sotomayor said.

“Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”

Although she attempts to have it both ways (“I agree” and “we do a disservice”), she seems to really be claiming that some level of gender or racial “empathy” is necessary to render “fair” judgments. And that only those who have lived that life are capable of such renderings. Here she essentially admits that to be the case as she perceives it:

“Personal experiences affect the facts that judges choose to see,” Sotomayor said. “My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”

How else do you interpret her statement except to say, “we can’t change the fact that personal experiences affect our work and the best we can hope for is we will “take the good” for those experiences and apply them …?”

That, of course, helps explain the statement most of the right object too the most, i.e.:

“…a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Given what she said above, this makes perfect sense. Although she claims to agree “judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law”, she then builds the case that a) such isn’t really possible, and b) in fact race and gender based experience is a positive that should be injected in such “reason of law”.

Her ruling in the case of the 18 white firefighters in New Haven CT seems to indicate she is indeed inclined to use race and gender bias in her decisions.

That is a legitimate and troubling point and certainly one which requires a very close look. But Republicans need to lay off the silliness (and words like “racist”) and stick with the legitimate points of contention her nomination bring. And they need to explain their concerns in a way which is both complete and easy to understand.

~McQ

Media Matters Takes On Sotomayor Quote

Water is wet, the sky is blue, and Media Matters tortures facts and logic to arrive at the conclusion that Sotomayor is being unfairly treated with respect to a prior statement:

Better than a white man?

Better than a white man?

“… I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

According to Media Matters, FoxNews babe Megyn Kelly and renowned ABC correspondent Jan Crawford Greenberg misrepresented the above remark and skewed Sotomayor’s true meaning:

Fox News host Megyn Kelly and ABC correspondent Jan Crawford Greenburg misrepresented a remark that Judge Sonia Sotomayor, President Obama’s nominee to the Supreme Court, made in a speech delivered at the University of California, Berkeley, School of Law, claiming that she suggested, in Kelly’s words, “that Latina judges are obviously better than white male judges.” In fact, when Sotomayor asserted, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” she was specifically discussing the importance of judicial diversity in determining race and sex discrimination cases.

Oh, so it’s okay if Sotomayor thinks that her race and gender make her a superior judge in certain cases. Obviously Kelly and Greenberg were horribly unfair then in accusing the SCOTUS nominee of thinking that in every case, since it’s perfectly justified to be a little bit racist and/or sexist … in some cases … sometimes.

As Media Matters for America has noted, former Bush Justice Department lawyer John Yoo has similarly stressed that Supreme Court Justice Clarence Thomas “is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him” and argued that Thomas’ work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.

Well that really nails the coffin shut, doesn’t it? Media Matters goes to the man whom they were vilifying just two weeks ago as the arbiter of what sorts of statements concerning a judge’s race and gender are acceptable. Of course, in making the comparison between Yoo’s statement and Sotomayor’s, they miss a couple of critical points:

(1) In direct contrast to Sotomator’s statement, Yoo never claimed that Clarence Thomas’ experience made him a better judge than anyone else. Instead he merely pointed out that Thomas’ experience aids in his judicial decision-making, just as those who often attack him claim they want from diversity on the bench, and that comparatively, Thomas is in a much better position to understand the plight of the less fortunate than a bunch of upper-class liberals.

(2) Sotomayor was speaking for herself, while Yoo was speaking abouts someone else.

Furthermore, going back to first, misguided point, the claim that Sotomayor was speaking only about sex and discrimination cases is more than a stretch. In fact, she was directly countering a statement attributed to Sandra Day O’Connor, and not at all limiting her refutation of that sentiment to particular cases (my emphasis):

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

While it’s true that Sotomayor is addressing sex and discrimnation cases overall, it’s clear that, in this passage, she is listing the reasons that she thinks the O’Connor (Coyle?) platitude is mistaken in general, not just in specific circumstances. Accordingly, Kelly and Greenberg get it exactly right, and Media Matters proves, yet again, that they no more than a propaganda outfit.

RNC “Fumbles” Sotomayor Talking Points?

According to The Hill’s Blog, the Republican National Committee has already screwed up their opposition to Sonia Sotomayor’s nomination:

Whoops. The Republican National Committee (RNC) has apparently inadvertently released its list of talking points on the nomination of Judge Sonia Sotomayor to the Supreme Court.

Included on the released list were a few hundred influential Republicans who were the intended recipients of the talking points. Unfortunately for the RNC, so were members of the media.

Yikes! Sounds bad doesn’t it? There must be some mention of Sotomayor being an “especially dangerous” candidate because of her Hispanic ethnicity or something. Well, let’s have a look-see:

o President Obama’s nomination of Judge Sonia Sotomayor to the Supreme Court is an important decision that will have an impact on the United States long after his administration.

o Republicans are committed to a fair confirmation process and will reserve judgment until more is known about Judge Sotomayor’s legal views, judicial record and qualifications.

o Until we have a full view of the facts and comprehensive understanding of Judge Sotomayor’s record, Republicans will avoid partisanship and knee-jerk judgments – which is in stark contrast to how the Democrats responded to the Judge Roberts and Alito nominations.

o To be clear, Republicans do not view this nomination without concern. Judge Sotomayor has received praise and high ratings from liberal special interest groups. Judge Sotomayor has also said that policy is made on the U.S. Court of Appeals.

o Republicans believe that the confirmation process is the most responsible way to learn more about her views on a number of important issues.

o The confirmation process will help Republicans, and all Americans, understand more about judge Sotomayor’s thoughts on the importance of the Supreme Court’s fidelity to the Constitution and the rule of law.

o Republicans are the minority party, but our belief that judges should interpret rather than make law is shared by a majority of Americans.

o Republicans look forward to learning more about Judge Sotomayor’s legal views and to determining whether her views reflect the values of mainstream America.

Wow. That’s devastating. Republicans want a “fair confirmation process” devoid of “knee-jerk judgments” so that they can take the time to study Sotomayor’s record. Actually that sounds about right. Maybe this is one of those communiques that require a special liberal decoder ring to reveal the “code words” and their obviously racists message.

Pressing on with points about Obama’s motivations in picking a nominee:

o Liberal ideology, not legal qualification, is likely to guide the president’s choice of judicial nominees.

o Obama has said his criterion for nominating judges would be their “heart” and “empathy.”

o Obama said he believes Supreme Court justices should understand the Court’s role “to protect people who may be vulnerable in the political process.”

o Obama has declared: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old-and that’s the criterion by which I’ll be selecting my judges.”

For sure, quoting the President in your talking points is a sneaky way to get around the racist message that must be lurking in there … I sure could use that decoder ring.

Further points:

o Justice Souter’s retirement could move the Court to the left and provide a critical fifth vote for:

o Further eroding the rights of the unborn and property owners;

o Imposing a federal constitutional right to same-sex marriage;

o Stripping “under God” out of the Pledge of Allegiance and completely secularizing the public square;

o Abolishing the death penalty;

o Judicial micromanagement of the government’s war powers.

Ummm … so that’s it? Talking points that reiterate what the GOP has been saying for years? I’m missing where the RNC “fumbled” anything. Instead, it looks like The Hill got pwned.