November 21, 2007

It’s On

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

After 68 years of silence, the United States Supreme Court finally agreed on Tuesday to rule on the meaning of the above text; the Second Amendment – after dancing around it way back in 1939.

What we will hopefully know by the end of this year’s term: does the Second Amendment guarantee an individual right to have (keep and bear) a gun for private use, or does it only protect the collective right of an organized military (National Guard)?

The city of Washington’s appeal (District of Columbia v. Heller) seeking to revive its flat ban on private possession of handguns that was ruled unconstitutional by the D.C. Circuit Court of Appeals is expected to be heard in March with a decision a few months later.


July 28, 2007

Fool Me Thrice

Filed under: Congress,Democrats,Elections,Republicans,Supreme Court — acepundit @ 12:58 pm

Senator Chuck Schumer, the high-ranking Democrat who sits on the judiciary committee, cannot believe how easily President Bush was able to fool him not once but twice with his two stellar picks for the Supreme Court: John Roberts and Sam Alito, and vows not to be fooled a third time.

Speaking to the American Constitution Society, Schumer all but promised that President Bush is done picking Supreme Court justices, telling the group he and his colleagues were “too easily impressed with the charm of Roberts and the erudition of Alito.”

Says Schumer, “I will recommend to my colleagues that we should not confirm a Supreme Court nominee EXCEPT in extraordinary circumstances.”

Like when there’s a retirement? I don’t think the American public would pleased with a Senate that refused to act if presented with a vacancy more than a year before the next election.

ABC correspondent Jan Crawford certainly put it mildly when she wrote, “some of the liberal commentary on the Court since the justices packed up and left town has been almost breathtaking in its over-the-top hysteria.”

It also doesn’t help when the media is consistently wrong in its analysis of the last Supreme Court term. Just yesterday on his blog at the Washington Post, Paul Kane wrote about Schumer’s childish plan to give Bush the silent treatment should another retirement take place with erroneous information on what the Roberts court has done, saying, “The Roberts court overturned previous rulings on partial birth abortion and campaign finance reform.”

An all too familiar pattern. Certainly the Left has little to cheer about in regards to the recent Supreme Court decisions that didn’t turn out their way, but their predictable “sky is falling” rhetoric goes beyond the pale. Contrary to what you’re being told by the media and even respectable law professors, the Supreme Court did not reverse a bunch of precedents and send the country back 200 years.

The Court did not overturn any previous rulings on partial-birth abortion. Everyone swears it did but the Nebraska state law that banned the nasty procedure was scratched by the Supreme Court in 2000 and is still dead.

This year the Court simply upheld a federal law passed by Congress – you know, the branch that’s popularly elected by the people to write laws – outlawing partial-birth abortion in 2003. And it wasn’t exactly an ideological piece of legislation. The House passed it by a vote of 281-142 and the Senate by a comfortable margin of 64-34.

When it reached the Supreme Court on appeal, the nine justices had to decide whether to invalidate or uphold a fairly new and popular law supported by 345 members of Congress plus the president, to 176 members who opposed it.

For all the screaming liberals do about respecting precedent and not enacting it’s own ideological agenda, they come off mighty contradictory for assaulting the Court for upholding a four-year-old congressional law.

Campaign Finance is also alive, albeit weakened, but when the Supreme Court found it a violation of the Constitution to prohibit an advocacy group from running a televised campaign ad less than 60 days before an election, liberals went nuts.

It was a blow to students’ free speech rights, liberals argued, when the Supreme Court sided against a high school student who refused to take down a “Bong Hits 4 Jesus” banner at a school-sponsored event because the principal thought it violated the school’s policy against advocating drug use.

It would have been interesting, had the Court recognized such free speech rights that trample school policy, to see what else students could get away with. At least now we know a student who shows up at school with a swastika on his t-shirt probably wouldn’t get the support of the Supreme Court.

So Chucky has spoken. Will we witness the greatest showdown ever to take place in the Senate? It’s a fight in which at least one senator from New York is willing to participate.

July 17, 2007

And Speaking of Hillary and the Court

Filed under: Democrats,Politics,Supreme Court — acepundit @ 10:34 pm

The two leading Democratic candidates took their typical potshots at the two newest justices with plenty of ambiguous rhetoric about “turning the clock back on civil rights” left for future appearances.

Clinton says she would “appoint well-qualified judges who really respect the Constitution,” and Barack Obama opined, “we need somebody who’s got the empathy to recognize what it’s like to be a young teen-aged mom,” he said.

What Obama is suggesting sounds not so much like an impartial judge for the Supreme Court but some spiky-haired kid on his laptop at Starbucks or in line at a Reel Big Fish concert. They, are like, totally down with authority and The Man.

A Judicial Branch With a Hint of Olive

Filed under: Democrats,Elections,Politics,Republicans,Supreme Court — acepundit @ 4:30 pm

Rudy Giuliani’s recently assembled cast of judicial advisors can only be described as an all-star lineup that would crush MLB’s best American League roster accustomed to beating up National League lightweights.

“America’s mayor” made a campaign promise to appoint the right kind of judges to the federal bench, and has just taken a huge step toward fulfilling it by surrounding himself with advisors who’d make great judges themselves…ones who aren’t judges already.

Social conservatives who are afraid of the next liberal Republican president desperately need to be aware that the worst eight-year presidency can be completely vindicated by just one Supreme Court selection.

Just one.

One pick.

One 50-year-old selection like John Roberts to replace the aging dinosaur John Paul Stevens to secure the proper direction for our federal jurisprudence for at least another half century.

But Republicans are looking at the short term. A recent poll found that nearly a quarter of Republicans are unwilling to back any of the leading candidates because they’re looking for the next Ronald Reagan.

Well the next Reagan isn’t an option for 2008, and with what President Bush has done to the image of the Republican party as a middle-of-the-road moderate, America isn’t hungry for someone more ideological.

And besides, the great Ronald Reagan was the president who gave us Sandra Day O’Connor and Anthony Kennedy. Bush Sr. gave us David Souter. Bush Jr. tried to give us Harriet Miers.

A president’s political philosophy is just not a reliable indicator of judicial appointments, and regardless of what Giuliani’s positions may be there is no reason to believe he’s lying when he says he will appoint “strict constructionists” to the bench as president, something he didn’t promise before he became mayor of New York and made moderate appointments. When he wasn’t surrounded by members of the Federalist Society.

If elected he can show up to his inauguration in drag and do whatever else conservatives fear about him, but three things will be guaranteed:

1. Replacing John Paul Stevens with another young John Roberts would pay off in dividends so great that no liberal Giuliani agenda would be able to spoil them.

2. Replacing a second liberal (leaving only two left) with a solid Supreme Court pick would safeguard the Constitution from judicial activism so long that your grandchildren will benefit.

3. Hillary Clinton won’t be the president.

June 29, 2007

Let’s Break Up the Neighborhoods!

Filed under: Politics,Supreme Court — acepundit @ 6:24 pm

The people who believe Brown v. Board was overturned yesterday scream about how important diversity is and why we need forced-integration, but I doubt many of them would endorse this brilliant hypothetical scenario by National Review’s Ed Whelan:

If, as the Washington Post tells us (in an editorial that is nearly as bad as the New York Times’s), racial balancing plans in public schools are needed “to overcome patterns of residential segregation,” why not directly attack the disparate racial composition of America’s neighborhoods? Why should America’s adults make America’s children bear the burden of long bus rides? Why not instead require that all neighborhoods reflect the racial composition of their broader metropolitan area? Why do we continue to tolerate the invidious freedom of Americans to self-“segregate” by choosing where they wish to live?

Under the logic of Justice Breyer’s dissent, there’s surely a compelling interest in “setting right the consequences of prior conditions of [residential] segregation,” which were long bolstered by race-restrictive covenants in deeds. And so long as the racial residential quota in a neighborhood has broad outer bounds, it would be narrowly tailored. Forced exchanges of property—accompanied by just compensation, of course—would serve a public purpose within the meaning of the Court’s 2005 ruling in Kelo. What better way to fulfill (in Breyer’s words) “the promise of true racial equality—not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s cities and schools”?

Call me crazy but I don’t think Whelan’s idea would fare well in the neighborhoods of the rich and privileged where you have to pass through a gate to get home. But something has to be done. What kind of America are we promoting when there are neighborhoods that are 80% white?

Benito Alito

Filed under: Politics,Supreme Court — acepundit @ 2:22 pm

Today’s hysterical “scary new direction” augury is brought to you by the Washington Post’s E.J. Dionne Jr., for demanding of the Senate to accept Not One More Roberts or Alito should there be another Supreme Court vacancy during President Bush’s tenure:

The Senate should refuse even to hold hearings on Bush’s next Supreme Court choice, should a vacancy occur, unless the president reaches agreement with the Senate majority on a mutually acceptable list of nominees.

As for the Supreme Court, we now know that the president’s two nominees, Chief Justice John Roberts and Justice Samuel Alito, are exactly what many of us thought they were: activist conservatives intent on leading a judicial counterrevolution. Yesterday’s 5 to 4 ruling tossing out two school desegregation plans was another milestone on the court’s march to the right.

Even after he was confirmed, Roberts was talking about something other than the 5 to 4 conservative court we saw this year on case after case. In a speech at Georgetown University Law School in May 2006, Roberts rightly argued that “the rule of law is strengthened when there is greater coherence and agreement about what the law is.” It’s a shame this quest for broader majorities had so little bearing on the 2007 Roberts-led court.

That’s why a majority of senators should warn Bush now that they will not take up his nominee unless he strictly construes the Constitution’s provision that he appoint justices with “the Advice and Consent of the Senate.” The rule should be: If the advice isn’t taken, there will be no consent.

So Dionne’s “Advice and Consent” to Congress that’s currently enjoying a 24% approval rating is to piss off the American people even more by obstructing judicial appointments and refusing to do their job if the nominee is an “activist conservative” – whatever the hell that means; I’m guessing someone whose judicial philosophy doesn’t match up with that of E.J. Dionne.

But the Constitution (you know, that pesky document that defines the role of our government) gives the President of the United States the sole responsibility of appointing federal judges. Nowhere is he instructed to follow any advice from Ted Kennedy, Patrick Leahy or Harry Reid.

Dionne’s call for obstructionism is only slightly less ridiculous than the plan to impeach justices who do not achieve Chief Justice Robert’s goal of consensus by siding with Ruth Bader Ginsburg every time.

It is safe to say the addition of Roberts and Alito moved the court further to the right than many of us expected because Roberts turned out to be every bit as conservative as his predecessor was, and was in agreement with Alito more than any two justices were this term. Not everyone will be comfortable with this new court, but the hysterics are rather unnecessary.

June 28, 2007

Dusting Off the Clocks

Filed under: Democrats,Politics,Race,Republicans,Supreme Court — acepundit @ 11:28 pm

Once again we’re hearing about how clocks are being turned back, this time at the most recent Democratic debate. Seriously, where are all these clocks I keep hearing about?

A half century of desegregation law — and racial tension — was laid bare for the Democrats hours before they met. In a 5-4 decision, the Supreme Court clamped historic new limits on school desegregation plans.

Clinton said the decision “turned the clock back” on history, and her competitors agreed.

The conservative majority cited the landmark Brown v. Board of Education case to bolster its precedent-shattering decision, an act termed a “cruel irony” by Justice John Paul Stevens in his dissent. The 1954 ruling led to the end of state-sponsored school segregation in the United States.

Obama, the only black candidate in the eight-person field, spoke of civil rights leaders who fought for Brown v. Board of Education and other precedents curbed by the high court. “If it were not for them,” he said, “I would not be standing here.”

Biden noted that he voted against confirmation of Chief Justice John Roberts, who wrote the majority opinion. He said he was tough on Roberts. “The problem is the rest of us were not tough enough,” he said, seeming to take a jab at fellow Democrats. “They have turned the court upside down.”

All the Democratic candidates in the Senate opposed the confirmation of conservative Justice Samuel Alito, another of President Bush’s nominees. Clinton, Biden and Obama voted against Roberts; Sen. Chris Dodd voted for his nomination.

Once again, it must be restated that yesterday’s Supreme Court decision was nothing about segregation. Segregation was a racist practice implemented by schools in the southern states to keep blacks out of white schools until they eventually came around to accepting the Supreme Court decision Brown v. Board of Education, “with all deliberate speed.”

It was and still is impossible, the Court found, to fashion a system that could both forcefully segregate schools and maintain equality at the same time.

Today’s decision doesn’t breath life into forced segregation as many are charging it with doing; it strikes a blow to forced integration. In our noble quest to achieve racial equality the Supreme Court was troubled by the social experimenting going on to get there.

The most hated justice by the Left, self-hating negro Clarence Thomas, made the most sense in his dissection of forced integration and its hardly-noticed consequences:

“[R]acial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination.” Adarand, supra, at 241 (opinion of THOMAS, J.). As these programs demonstrate, every time the government uses racial criteria to “bring the races together,” post, at 29, someone gets excluded, and the person excluded suffers an injury solely because of his or her race. The petitioner in the Louisville case received a letter from the school board informing her that her kindergartener would not be allowed to attend the school of petitioner’s choosing because of the child’s race.

Most of the dissent’s criticisms of today’s result can be traced to its rejection of the color-blind Constitution. See post, at 29. The dissent attempts to marginalize the notion of a color-blind Constitution by consigning it to meand Members of today’s plurality.19 See ibid.; see also post, at 61. But I am quite comfortable in the company I keep. My view of the Constitution is Justice Harlan’s view in Plessy: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion). And my view was the rallying cry for the lawyers who litigated Brown.

Like it or not, the world doesn’t abruptly become peachier when you’ve got the same number of white and black children eating lunch together in the school cafeteria. And trying to balance the equation by using children as variables because of their race is exactly the problem our nation had with segregation: it’s based on race.

Clarence Thomas Health Watch

Filed under: Supreme Court — acepundit @ 3:15 pm

The warm-hearted Kos Kids are already counting the days until the Supreme Court will reverse direction and endorse schools that judge children by the color of their skin. Radian asks: “Anyone happen to know medical histories of Scalia or Thomas or Kennedy. Any hospitalizations recently. Not to be morbid or anything like that, but does anyone know anything?”

In response IhateBush opines: “Thomas is a chain smoker, I’d bet he’s the one to go first. I think an impeachment attempt on Thomas would be the place to start. See if you can put enough stress on him to cause him to retire a couple years earlier.

This isn’t the first time I’ve heard of an “impeach Thomas” movement, but his critics never say what the grounds for impeachment will be. Not thinking the way blacks are supposed to? Believing the Constitution is colorblind? Paying Scalia to write his opinions for him? It would be fun to watch Harry Reid debate this one.

Racial Imbalance is Not Segregation

Filed under: Education,Politics,Race,Supreme Court — acepundit @ 10:01 am

Wrote Supreme Court Justice Clarence Thomas in his concurring opinion as part of the 185-page decision from the Supreme Court today that ultimately rejected a school’s voluntary integration plan. The decision was 5-4 with the Chief writing for the conservatives plus Justice Kennedy. Thomas’s concurrence is a rebuttal to Justice Breyer’s dissent. I’m still reading through it right now and I can say that Breyer and his liberal colleagues are PISSED. Usually justices end their dissents with “I respectfully dissent.” Breyer, after saying the court will “regret” today’s decision, ends his opinion with “I must dissent.”

UPDATE: More to come as I finish reading the opinions, the final ones for this term. Once again swing-voter Justice Kennedy has proven to be the most powerful judge in the country. While he has more often than not sided with the conservative justices, he today voted with the liberals in a 5-4 decision repealing the death sentence for a “mentally delusional” inmate.

Update II: The Supreme Court got it right, plain and simple. Chief Justice Roberts reminds us that “Seattle has never operated segregated schools – legally separate schools for students of different races.nor has it ever been subject to court-ordered desegregation.”

Because there’s no history of segregation, the majority argued, there’s no compelling interest to divide up the students by race. If as a result one school is prodominatly one color that’s the way it is. As Thomas wrote:

The dissent repeatedly claims that the school districts are threatened with resegregation and that they will
succumb to that threat if these plans are declared unconstitutional. It also argues that these plans can be justified as part of the school boards. attempts to .eradicat[e] earlier school segregation. Contrary to the dissent’s rhetoric, neither of these school districts is threatened with resegregation, and neither is constitutionally compelled or permitted to undertake race-based remediation. Racial imbalance is not segregation, and the mere incantation of terms like resegregation and remediation cannot make up the difference.

Although there is arguably a danger of racial imbalance in schools in Seattle and Louisville, there is no danger of resegregation. No one contends that Seattle has established or that Louisville has reestablished a dual school system that separates students on the basis of race. The statistics cited in Appendix A to the dissent are not to the contrary. See post, at 69.72. At most, those statistics show a national trend toward classroom racial imbalance. However, racial imbalance without intentional state action to separate the races does not amount to segregation. To raise the specter of resegregation to defend these programs is to ignore the meaning of the word and the nature of the cases before us.

It is a noble goal to achieve racial harmony where schools are divided perfectly even by racial demographics and the students hold hangs singing songs of racial diversity. But we shouldn’t get there by socially experimenting with race.

June 25, 2007

The John Roberts Court in Full Force

Andrew Cohen at Washington Post’s Bench Conference laments the ass-kicking we were handed today by a conservative Supreme Court majority in four of five rulings (the fifth was near unanimity):

The Justices further chipped away at the wall that separates church and state, took some of the steam out of the McCain-Feingold campaign finance law, neutered federal regulators in environmental cases to the benefit of developers and slammed a high school kid who had the temerity to put up a silly sign near his high school.

Indeed, so strong is the conservative bent to the court right now that even when its right-facing Justices did not agree on the legal reasons or rationale for their rulings– which was the case in the religion case noted above– they are able to agree to promote government sponsorship of religion and to block taxpayer efforts to prevent it. In other words, there is room for dissent even among the Court’s working majority– a bad sign for liberal judges, lawyers and litigants in the months and years to come.

Contrary to the forthcoming hysteria, today’s rulings were hardly earth-shattering developments. Yes, the conservatives weakened McCain-Feingold; good news for people who appreciate free speech. McCain-Feingold is a crappy law that tells us when we can and cannot promote a candidate of our choosing with our own money during election season. Even a majority of liberals are satisfied with today’s outcome in this case. Nevertheless the justices restrained themselves from striking it down completely. So don’t worry, Congress can and will still tell us how we we’re allowed to participate in political campaigns.

The supposed “wall” that separates the evil church and state is still intact; the Supreme Court simply reminded us that charities vying for federal funds ought not to be punished because they have a religious affiliation. Instead, charities should be judged by their effectiveness.

The kid whose “silly” sign got him into trouble was reminded that you can be punished for celebrating illegal activity (in this case drug use) if done on school time. To be sure, Cohen is right in his analysis that there was dissent amongst the majority – Clarence Thomas would have given schools the power to regulate all forms of speech because, “in the earliest public schools, teachers taught, and students listened,” and that’s how it should be today. He was alone in concurrence.

Cohen is also right that any doubts there may have been that President Bush moved the court to the Right have been surely extinguished. Expect more of today on Thursday when the court is expected to finish this year’s term.

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