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April 05, 2005

Comments

Hmm, if I'm in disagreement with SH and Katherine maybe I need to reconsider.

rilkefan: I disagree with you too. (Had to happen sometime...) Sebastian: thanks; great post. Me: to bed.

So republicans are threatening judges now. Nice...keep it up guys. please.

He's trying to draw a connection because the GOP wants that connection to exist. The GOP wants to intimidate the judicial branch of the government into submission. Plain and simple.

"the Supreme Court has taken on this role as a policymaker rather than an enforcer of political decisions made by elected representatives of the people."

Didn't seem to bother him when the USSC selected Shrub to be preseident of the USA.

What a disgrace, even for Texas, which seems to have a monopoly on that market. Further comment here

A sad sea rises! Swim strong against this terrible tide!

I heard some reporting on NPR on this, this morning. NPR made remarks to the effect that this was not characterizable as anything resembling unified support for this point of view. I think that anyone supporting the notion that one branch of government could even consider infringing on another probably is deserving of a little modification, himself, at the hands of his electorate. The above comments should make Cornyn a candidate for a recall election. Probably won't, but ought to.

And of course, the ringleader for this sort of thing needs some smackdown. Y'all know who I'm talking about.

My question, though, is this: are the separate branches of government supposed to be self-regulating, or is there some other means of making sure they don't step outside of their mandate? What if, for example, the collective courts decided that it was in fact perfectly ok for them to perform de facto legislation from the bench? Who's to naysay them? Asking out of admitted ignorance, here. I know all of this is supposed to be covered by checks and balances, but I can't see how it is.

What if, for example, the collective courts decided that it was in fact perfectly ok for them to perform de facto legislation from the bench?

judges can be impeached, right ?

just for fun, try googling "impeach judges schiavo" .

That IS an interesting Google. I'd be interested in hearing what some of our resident legal staff has to say about things like, say, this. Not to flog a dead horse or anything, but there are aspects to this that seem a bit odd. Apparently "The Empire Journal" has a stiffy for Judge Greer.

It's all fun and games until a truck bomb goes off in front of a federal court building. I don't think the GOP actually coddles terrorists and encourages terrorism (well, except maybe Saudi Arabia), but since the democrats have been accused of doing such since 9/11, I'm not going to spend a lot of energy fighting that meme if it develops.

What if, for example, the collective courts decided that it was in fact perfectly ok for them to perform de facto legislation from the bench?

There's always what Andrew Jackson did when the Supreme Court held that the property rights of the Cherokee had to be repected -- ignore them. The check on the power of the judiciary lies in the fact that it has no independent power to do anything. The judiciary has power only because the executive respects and endorses its edicts, and in the face of a genuinely lawless judicial decision, simple disobedience is always easily possible.

Of course, as in the case of the Cherokee, where the executive has taken this route, it often appears in retrospect that it would have been better if the courts had been obeyed.

A pox on both. Cornyn for his ill-considered, badly articulated and unsupported statements, and the hardliners for the breathless over-the-top reactions.

Cornyn's comments are foolish, if not downright stupid.

So republicans are threatening judges now.

However, it appears it could possibly be contagious.

Yeah Charles you got that breathless over-the-top reaction thing down pat.

http://obsidianwings.blogs.com/obsidian_wings/2005/04/three_deaths_an.html>hardliners

Playing Devils Advocate here for a moment; Well he didn't actually say he wanted judges killed...

Though if Dems talked like Republicans that is what the political action groups would say when he comes up for reelection. Sadly it'll be years before we learn to do that.

I think the Republicans are looking for language to justify using the nuclear option here. Thats what this is really about. The Senate Reps looking to work themselves up for it.

Macallan - with government comes responsibility, the seriousness of any 'contagion' is directly proportional to their proximity to power and their likelyhood of influencing policy. We have many recent examples on point I believe.

I think the Republicans are looking for language to justify using the nuclear option here.

I'd like to make a humble proposal: that we keep the word "nuclear" ([Homer]"That's nuculer...nuculer."[/Homer]) out of conversations that don't in any way involve actual nuclei.

Slarti- I thought about using nukular.

Charles- As far as hyperventilating goes if the sides were reversed you'd be saying:

1 Its a sedition and murderous incitement to treason.

2 He is objectively pro terrorist

3 Why does he hate America?

There are any number of checks and balances on the judiciary – they include, impeachment, limiting jurisdiction (under article III), constitutional amendments, political pressure most importantly the APOINTMENT process.
(its checks and balances)
Most of these means have fallen on disuse because (generally speaking) the Judiciary regulates ITSELF through proper interpretation (constructionism & originalism) = Just standard legal reasoning and methodology.
But as the courts have grown more activist & liberal over the last 40years we have had to consider employing these means to reign them in.
Don’t worry, the appointment process should do its job & restore the necessary balance. But if that is somehow thwarted and the courts continue on this path then other options become necessary.

However, it appears it could possibly be contagious.

Pftt whatever Mac. Given DeLay's recent statement about judges "answering for their behaviour" I'm calling a spade a spade. A thinly veiled threat is a threat just the same.

And it IS a threat Mac. Maybe not an explicit threat of violence but a threat nonetheless.

Cornyn's remarks= "this could happen to you, watch out"

to pretend otherwise is ignorance.

Thanks Sebastian.

"Nuclear option" is Lott's term and there is no danger of anyone confusing it with an actual nuclear warhead. I would be happy to go with "end to the filibuster" instead of "nuclear option", as it's more descriptive and more neutral, but I suspect you're not going to have much success getting everyone to agree to that as long as Bill Frist insists on the nauseating "Constitutional option."

On Cornyn's remark: it is certainly possible to analyze the causes of a terrible thing without attempting, consciously or unconsciously, to excuse or justify it. And there is not a bright line between explanation and excuse. What category I put it in depends on:

1) whether the alleged explanation is true, or at least whether a reasonable person could believe it is true.

2) the context in which it is made.

To see the importance of context in determining whether a denunciation of violence is sincere or not, note this extreme example, taken from a comment in a Matt Yglesias thread a long time ago:

The quite genuinely fascist Northern Irish nut Ian Paisley (who received a doctorate from- can you guess- Bob Jones University) had a splendid way of going about this, as described by Martin Bell of the BBC. Speaking at a crowd of massively inflamed Ulster Protestants, he would say 'The BBC, as you all know, have been supporting the IRA in their murder campaign and spreading lies about our people. THERE (pointing) is one of their worst liars, the journalist Martin Bell and his film crew. Of course, as a clergyman, I strongly deprecate all forms of violence. But, alas, I realise I am totally unable to restrain a mighty crowd such as yourselves.'

The context of Cornyn's remarks is obviously nowhere as close to as damning as the context of Paisley's remarks. Not in the same league at all. But if you want to understand the context from a Democrat's point of view, here it is (cross-posted):

there is an effort By: KatherineR

To de-legitimize the independent judiciary itself, and the rule of law.
I am sure the GOP's dislike of the judiciary began as genuine and justified anger about either the lousy constitutional reasoning behind, or the human costs of, the decisions of the Warren Court. There are some decisions conservatives had every reason to be angry about on both levels, like Roe v. Wade.

There are also some decisions, like Brown v. Bd. of Ed., which were not well argued at all but whose results were entirely correct, legally and morally. Those also sparked a lot of hostility to the judiciary, and for whatever reason most of the people and parts of the country that were angriest about that are now in the Republican party. I think an overwhelming number of them now support the outcome of Brown on both a moral and legal level, but I think the hostility and distrust towards the judiciary remains.

There are also plenty of decisions whose legal arguments are excellent, and where the law pretty clearly required the judges to act as they did, but the G.O.P. rejects because it disagrees with the outcome.

The anger about Roe is, as I said, quite justified in my opinion. If I were on the Supreme Court I would vote to overturn it. If I were in the Senate I would not make it a litmus test in voting for nominees--though unfortunately any nominee who wanted to overturn Roe would almost certainly also cross lines that I do consider litmus tests.

But it has gotten loose from its moorings and become a generalized hatred and distrust of the judiciary that has little to do with the legal reasoning of decisions, or their evaluation of the facts. It has gotten to a point where the aim seems to be to delegitimize the judiciary in general.

I don't think Tom DeLay or John Cornyn has any intention of murdering judges or inciting others to do so. But they are playing a dangerous game here, and I think they are playing it because they want to either intimidate judges into doing what they want, or, failing this, to openly defy inconvenient rulings of the courts in an act of alleged civil disobedience. A "Justice Marshall has made his decision, now let us see him enforce it" moment, or a George Wallace stand in the school house door.

If that it is not their intent, it may still be their effect. This is a dangerous game to be playing.

At a time when:
--the Republicans control the House, the Senate and the White House
--they are seeking to end the filibuster in the Senate
--they have made major changes in the House rules to marginalize not only Democrats but moderate Republicans
--the House has been gerrymandered enough to protect incumbents in general and Republican control in particular & is being gerrymandered more now, so that even if a majority of the public opposes their policies it is fairly implausible that the Democrats will retake the House in 2006.
--the large cities that are the heart of the Democrats' constituency are in the states that are most underrepresented in the Senate; the rural areas that are the heart of the Republicans' constituency are in the states that are most overrepresented in the Senate, so it is fairly implausible that the Democrats will retake the Senate in 2006 even if that is what the voters want. (As I've noted before, the Democratic Senators got more votes in the last election than the Republican Senators and still lost five seats. That might have been fluke-y; you don't usually have such lopsided races in California AND New York AND Illinois. But if we can get more votes and lose five seats, we can't count on gaining six seats in unless we get a lot, a lot more votes, and given the increasing polarization of the country I think this is unrealistic.)
--the Democratic caucus has been badly led for so long that their party discipline is atrocious, and while the Senate leadership shows signs of getting its act together the habit has proved very very hard to break.
--the Bush administration has successfully convinced a large % of the public that their press releases, Fox News, and talk radio are more trustworthy sources of fact than the Washington Post or the New York Times or PBS or even (this is true; there are surveys to prove it) C-Span.
--The mainstream media does a really really really lousy job of informing the public.
--There is an effort to pass laws that attempt to force state-run universities to conform to party orthodoxy, and to de-legitimize private universities, like judges and the press, as "liberal elites out of touch with mainstream America" in the eyes of the public.
--Huge % of scientists working for the Agencies and other civil service employees have said that they are afraid of losing their jobs if they make factual determinations that the administration does not like, and have changed not only their actions but their factual findings accordingly.
--It is routine for Republicans to either directly say or insinuate that Democrats are guilty of or close to guilty of treason, murder, hate America, etc.
--There are serious attempts to limit the rights of unpopular minorities (i.e. gay people, Muslims).
--The administration has taken the position that it can indefinitely detain American citizens on American soil without charge or trial.
--The administration has argued that torture of prisoners is legal under some circumstances.
--Members of the administration have argued that not only is it legal for the President to allow torture, but it unconstitutional for Congress to order him not to torture, and he would be justified in disobeying such a law.
--There have been numerous, credible, accusations of torture. There are many documents showing that the administration turned a blind eye to torture, or authorized policies that would forseeably and inevitably lead to torture. There has not been and will not be an independent investigation of this.
--The only effective check on the President's claims of unlimited executive power have been the federal courts--starting, but not ending, with the Supreme Court's decisions in Hamdi v. Rumsfeld and Rasul v. Bush.
--Again, we are at war. As the President's advisors themselves have recognized, this is a struggle of ideologies and for hearts and minds rather than of conventional military force. If we go off the rails in our treatment of Muslims, I think it could have disastrous effects on the outcome of this war.
--We have fortunately gone longer than I thought without a terrorist attack on U.S. soil, but the possibility remains. A nuclear attack or biological attack is unlikely, but not impossible and not implausible. A chemical or radiological attack are even more plausible. All of these sorts of attacks would probably lead to the public rallying around the President & accepting far greater restrictions on civil liberties. This will be true even if the President's policies actually did more to contribute to the attack than to stop it--it will not be possible to prove that e.g. the President's neglect of A.Q. Khan's black market made this possible, or that the rise of Zarqawi's network because of the Iraq war was a but-for cause of this attack, or that Abu Ghraib helped make it more likely. Even if the arguments are true, we will not know they are true, and people who make these arguments will be accused of blaming Bush and not the terrorists, and the public will probably buy this whether it's true or not.

I don't go in for stupid Nazi analogies. I have pointed out plenty of times that not only have Bush's abuses of power not compared to Hitler's, but that as far as U.S. citizens go they do not compare to FDR or Woodrow Wilson's. But just because things have turned out all right in the past (assuming you accept the internment camps as turning out all right, which I don't) does not mean that they will turn out all right in the future--our country has been extraordinary lucky, and one day that luck may run out.

One of the best means I have had of preventing liberals, myself included, from getting stupid and hysterical and paranoid has been to point out: the courts have been truly courageous in defending the Constitution and the laws in general. And while they have attempted to evade the courts' decisions in every way imaginable, and make ridiculous legal arguments in justification of blatantly illegal acts until they get a final court order to stop--when the courts have given a clear order to stop, the administration has stopped. That is an important line that has not yet been crossed.

If and when it gets crossed, that's when I stop telling myself my fears are overblown.

might as well head this off at the pass too:

just to be crystal clear, what I'm genuinely scared of is NOT Nazi Germany. As anyone with any knowledge of history knows, there are all sorts of governments, that are not even close to as bad as Nazi Germany, but which are quite bad enough and which would be a total betrayal of this country's traditions. Most governments in the world today, and actually in human history fall into this category. So do many moments in America's past, for that matter--there are darker periods in our history that I thought we had left behind forever and I could not ever accept our going back to. (This is part of why I find the stupid "Bushitler" stuff so annoying: it betrays a total ignorance of U.S. history and of the current state of the world.) I don't think we'll go back to those either--governments without limits on their power over their citizens are contantly developing creative new ways to suck, and we pride ourselves on innovation in this country.

there is no danger of anyone confusing it with an actual nuclear warhead

Hardly my point, Katherine. But of all the words you wrote, that's my only criticism. The rest was simply wonderful.

That's my best attempt at explaining how this remark sounds to a liberal Democrat--Yglesias's is the most convincing guess or explanation of Cornyn's motivations. Obviously impossible to know for sure what's going in Cornyn's head, but this is the best attempt I've seen.

Yglesias's is the most convincing guess or explanation of Cornyn's motivations.

I guess that depends on your standards for "convincing". Key parts of it were supposition and completely unconnected with anything Cornyn said. Case in point: that what he said was in any way linked with the effort to get judicial nominees confirmed. Really, exactly where did that come from?

It ought to be obvious by now that when one is attempting to summon forth the thought processes of one's political opposites, one is going to be completely unable to avoid indulging in projection.

actually, I take it back: it's usefulness is not in explaining what Cornyn thought, or at least not what he thought he thought, but in explaining why violence against judges might be politically useful to the GOP even as they express their disapproval of it. This, combined with the obvious falsity of Cornyn's analysis, combined with his own background as a judge, is part of the context that leads liberals to strongly suspect bad faith.

We're all very good at rationalizing our actions--buying our own bullsh*t. It's entirely possible that Cornyn thinks he's offering a sincere warning to the judiciary rather than threatening them, but it's not necessarily so relevant. That's Yglesias' point I think.

It seems that what Matt was talking about is an attempt to paint the judicial branch as a bunch of loose cannons. If they can convince Americans that there is a problem that needs "fixing", then the nuclear option will seem reasonable. It's all about ginning up public outrage as cover for drastic measures.

A pox on both. Cornyn for his ill-considered, badly articulated and unsupported statements, and the hardliners for the breathless over-the-top reactions.

No, Charles. A pox on Cornyn, and a pox on Republicans who let this statement by a US Senator - a wink and a nod to those who talk of violence aganst judges - stand unchallenged. And especially a pox on those who see the "broader lesson" here to be the fact that the Democratic grassroots are "paranoid and not too bright."

But no pox on Cornyn's critics.

I will repeat my post above for further reflection.

There are any number of checks and balances on the judiciary – they include, impeachment, limiting jurisdiction (under article III), constitutional amendments, political pressure most importantly the APOINTMENT process.
(its checks and balances)
Most of these means have fallen on disuse because (generally speaking) the Judiciary regulates ITSELF through proper interpretation (constructionism & originalism) = Just standard legal reasoning and methodology.
But as the courts have grown more activist & liberal over the last 40years we have had to consider employing these means to reign them in.
Don’t worry, the appointment process should do its job & restore the necessary balance. But if that is somehow thwarted and the courts continue on this path then other options become necessary.


When you get decisions like Lawrence (based on the reasoning of Roe) that lead to the Mass. SSM decision that call the vast majority of the public (and their opinions) nothing more than “irrational bigotry” – people will contemplate violence (I know I have) if they continue down the road of tyranny then (I suppose) violence will follow.
This is something I hope our country avoids. Its time for a change in the direction of the Courts. This change is unavoidable because of the appointment power. Its time for a generation of conservative judicial interpretation. (and not a minute to soon)

"Case in point: that what he said was in any way linked with the effort to get judicial nominees confirmed. Really, exactly where did that come from?"

Slart, where've you been, man?

Must've been a nice, quite place where the words 'gay marriage is being forced on us by activitist judges' were never mentioned. Where Senators, Congresspersons, Presidents, and Cabinet Officers never say our democracy and freedoms come from the Bible and by golly judges ought to defer to the scriptures accordingly.

A nice quiet place where the words 'Terri Schiavo' and 'judicial murder' were never mentioned. Where Tom DeLay didn't make a spectacle of comparing himself to Terri Schiavo and Schiavo to Jesus; where George Bush didn't interrupt a vacation for the first time in his Presidency in order to sign a bill ordering the courts to take another look at the Schiavo case. A nice quiet place where Rush, Sean, Joe and the usual morally-bankrupt bloviators never ever speculated on the regrettable but perhaps necessary act of punishing judges.

A nice, quiet place where 4 GOP Senators and 18 GOP Reps have not come up with a 'judiciary reform' bill that contains an establishment of religion clause, and which threatens removal of judges who decide an establishment of religion is unconstitutional.

Sure, Cornyn's remarks are simply be the vaporings of an idiot, taken on their own.

But they're not on their own.

There's a whole lotta context goin' on.

And it takes a great walloping truckload of disingenuousness to overlook that context, or insist it's not there... and esp to say anyone who notices and complains about it is 'projecting.'

What CaseyL says, Cornyn isn't operating in a vacuum.

"A nice, quiet place where 4 GOP Senators and 18 GOP Reps have not come up with a 'judiciary reform' bill that contains an establishment of religion clause, and which threatens removal of judges who decide an establishment of religion is unconstitutional."

Now this I feel would get these guys booted in a slightly better world.

And it takes a great walloping truckload of disingenuousness to overlook that context, or insist it's not there... and esp to say anyone who notices and complains about it is 'projecting.'

All that insulting bloviation without a single explanation of how appointments and Cornyn's comments are in any way linked. Whatever blows your skirt up, Casey; plausible connection doesn't equal actual connection. Appointments aren't going to do anything to fix Cornyn's problems with judges in the present tense. The fact is that neither you nor I nor Yglesias have the slightest notion of what Cornyn was trying to say, other than what he did in fact say.

Slarti- Cornyn is in the Senate, that means he votes on appointments. I'm not sure CaseyL meant this, but one reason all this hate speach against current judges is relevant is that it encourages the Republican base to believe that the nuclear option is a good idea even if it comes with associated costs no matter what others say.

Frank -I think you have nailed the point of the Senators remarks.
Of coarse - the nuclear option IS a good idea.
This is just laying the groundwork.

"the Mass. SSM decision that call the vast majority of the public (and their opinions) nothing more than “irrational bigotry” "

1. I haven't read Goodridge or the follow up in a few months but I would be shocked if Margaret Marshall used the words "irrational bigotry." I bet she used "irrational" but I doubt she used "bigotry". "Prejudice" is not the same thing as "bigotry", and it is very, very, very plausible that a large majority of the country would be prejudiced against a small, despised minority.

2. The "vast majority of the citizens of" Massachusetts, to whom the Massachusetts Supreme Judicial Court are ultimately accountable, have not opposed gay marriage at any time since this debate began. When Goodridge was issued a majority of citizens supported it. There was a backlash after that, but the number of people opposing the decision was never "overwhelming," and now there's an even larger majority of the people who support gay marriage. There are zero examples where it is even possible that a legislator lost his seat for voting against the state constitutional amendment. There are one or two examples where it's very probable that a state represenative lost his seat for his virulent opposition to gay marriage. In one case he was defeated by an openly gay candidate.

In just about every race where the issue has been brought up & people had an option to choose between a pro-gay marriage and anti-gay marriage candidate, the pro-marriage legislator has won. I can think of only one exception to this. In most of the races gay marriage was probably not a deciding factor, but it hasn't been harmful at all; that it's been a non-issue sort of proves my point.

The leader of the state House, a staunch opponent of gay marriage and a widely despised figure throughout the state, has resigned on unrelated ethics charges. The new speaker supports gay marriage, as does the new representative from the former speaker's district. She's a Haitian woman married to an Irish Catholic cop, by the way--it's not just white secular law students like me who support gay marriage, not in Massachusetts. Most of the Haitian-American and black representatives support it. One of the openly gay representatives is Cuban-American and considers himself Catholic. (Don't tell me the church disagrees--the church considers ME Catholic in its membership statistics because I was baptized and have not officially notified them that I am renouncing my faith. They may think he's in a state of mortal sin and not a practicing Catholic, but he's Catholic all the same.) My representative is an Irish Catholic who opposes legal abortion but supports gay marriage. He's far from the only one to feel that way. It's still a very Catholic state--part of the reason the divorce rate is low--but it's a state that had a recent painful experience with the imperfections of the church that is still very raw. Cardinal O'Malley has made a good effort to undo the damage, but it's not something that happens overnight.

The Senate Democratic president, who officially opposes gay marriage but supports civil unions, does so without any real conviction & in a way that lead me to believe he was mainly trying to provide John Kerry with political cover--he gave a toast at the wedding of a gay state senator that reportedly had people tearing up.

The governor opposes gay marriage with increasing stridency, but this has not gone over well at all in the state, and has led people to mutter that he's insulting his own state for the sake of the 2008 primaries & newspapers to call for him not to run for re-election if he's so ashamed of Massachusetts. He may actually not be planning on running for re-election.

The leading Democratic candidate for governor supports gay marriage. He originally opposed it; he said he had a change of heart when he talked to gay couples. That's possible, but it's also possible that he believes he need to support gay marriage to win the primary and it won't hurt him in the general election.

Again, you don't know about Mass. electorate. It's neither the far-left den of iniquity that the President portrays, nor the victim of activist judges subverting the people's will that you imagine. Most people just don't care that much. Of the ones that do care, I'd guess, and the election results suggest, the supporters of gay marriage are now more numerous and more motivated, if worse funded. Even with the built in organizing advantage of the Catholic church, they're the ones who had to bus people in demonstrators from out-of-state at the Constitutional convention.

"people will contemplate violence (I know I have)"

against whom, exactly?

Frank:

You mean there's more than one person who thinks I've just gotten out of...maybe not jail, exactly, but perhaps a monastery? I know who Cornyn is. I'm fairly up-to-date with what's going on (although I have absolutely no idea of what Casey's talking about with the "judiciary reform" bill; sosume) and I can connect dot A to dot B as well a the next guy. My point is that because one can draw a line between dot A and dot B doesn't in any way suggest that said line actually exists.

Fitz: I second Katherine's question. Who have you contemplated violence towards, and why?

"it encourages the Republican base to believe that the nuclear option is a good idea even if it comes with associated costs no matter what others say."

Which encourages every Republican senator who is contemplating a run for higher office, or wants to keep his committee chairmanship, to vote for it.

I don't think you can understand the Schiavo case without understanding that.

It could provoke a backlash, but it's not guaranteed to. There's a positive feedback mechanism too: the more extreme your behavior, the more you need to convince yourselves that it is justified and your opponents really are awful people, which justifies more extreme behavior....and as I've said before, the media's tendency to:

--report two sides to every fact
--treat Democratic and Republican arguments as equally honest and equally extreme, no matter what the factual merits are
--ignore political coverage in favor of celebrity trials
--replace reporting with punditry, and stupid, shouting match knee jerk punditry at that
--decide political stories' importance based solely on how many other people are talking about it, at what volume.
--dumb down complex issues--especially in matters of law, economics, and national security....

all of this rewards dishonesty and extremism. If they're going to treat you as equally truthful no matter what you say, why tell the truth when a lie might be more useful? If they're going to treat you as equally moderate or immoderate no matter what you do, why compromise if you don't have to?

I have to confess I've contemplated violence, but rarely indulged. Once, actually, in ninth grade.

The last time violence was performed on me was right around high school graduation. The fellow who did so was beating his girlfriend (which I thought I could stop without tying him in a pretzel) and is, amusingly (or not, if he's presiding over your case) a judge. So I can say that I've contemplated violence against a judge, I guess.

My point is that because one can draw a line between dot A and dot B doesn't in any way suggest that said line actually exists.

Quite true, but even if Cornyn did not connect A and B and had no intention of connecting them does not mean that whoever made point A isn't perfectly willing to co-opt point B whether Cornyn intends it or not. The rhetoric provides its own narrative logic.

Re: the Judicial Reform/God is the source of US law.

4 GOP Senators are co-spondoring this one:
****************************************************
S.520
Title: A bill to limit the jurisdiction of Federal courts in certain cases and promote federalism.
Sponsor: Sen Shelby, Richard C. [AL] (introduced 3/3/2005) Cosponsors (5)
Related Bills: H.R.1070
Latest Major Action: 3/3/2005 Referred to Senate committee. Status: Read twice and referred to the Committee on the Judiciary.

SUMMARY AS OF:
3/3/2005--Introduced.

Constitution Restoration Act of 2005 - Amends the Federal judicial code to prohibit the U.S. Supreme Court and the Federal district courts from exercising jurisdiction over any matter in which relief is sought against an entity of Federal, State, or local government or an officer or agent of such government concerning that entity's, officer's, or agent's acknowledgment of God as the sovereign source of law, liberty, or government.

Prohibits a court of the United States from relying upon any law, policy, or other action of a foreign state or international organization in interpreting and applying the Constitution, other than English constitutional and common law up to the time of adoption of the U.S. Constitution.

Provides that any Federal court decision relating to an issue removed from Federal jurisdiction by this Act is not binding precedent on State courts.

Provides that any Supreme Court justice or Federal court judge who exceeds the jurisdictional limitations of this Act shall be deemed to have committed an offense for which the justice or judge may be removed, and to have violated the standard of good behavior required of Article III judges by the Constitution.

*********************************************

18 GOPs in the House are also ready to offer this bill.

Ah, hadn't seen that, Casey. Maybe it's because the collective legislative percentage supporting it is still in single digits. Wake me when the stupidity reaches double-digits, ok?

Quite true, but even if Cornyn did not connect A and B and had no intention of connecting them does not mean that whoever made point A isn't perfectly willing to co-opt point B whether Cornyn intends it or not.

It doesn't even matter whether I agree with that or not, because it's unrelated to what I actually said. Yglesias was postulating Cornyn's thoughts, not the effect of what he said.

18 Reps isn't double-digits? What arithmatic base are you using?

My point is that because one can draw a line between dot A and dot B doesn't in any way suggest that said line actually exists.

God bless the engineers. I believe you are making this remark in good faith, and it is indicative of your true worldview.

However, a little projection can be a useful thing, considering that Cornyn and his ilk (politicians, and to a lesser extent lawyers in general) do not share your strict limiting principle. The work of a politician is bound up in the shifting sea of media nuance, and they gauge and phrase their remarks so as to permit retreat or advance from any given position, depending on the public's fickle whim.

These things operate like ripples in a pond, or rather competing breezes before a storm: some in harmony, amplifying each other, some in discord, causing stillness, or incoherent susurration. As you are aware, Cornyn does not stand forth to criticize judges in a vacuum; he has tasted the wind, and is adding his own air to it, filled with caveats and fallback positions. If the public reaction is negative, he may simply disclaim the critics as irresponsibly projecting their fears upon his comments.

And he will be right; or, at least, there are none who may prove him wrong. The only tool to meaningfully examine this type of cowardly bullying is projection, or, more precisely, by assuming that his remarks were intentionally made at a certain political moment, rather than at random. Starting from the assumption that the connections suggested by the political moment "do not at all suggest" the purpose of a politicians remark is often the same as performing no analysis at all.

I'm not trying to piss you off, though - I get where your coming from, and I believe the world you want is better than the one that I am arguing for.

Single digit percentage I presume. 18/435=4.1%

18 Reps isn't double-digits? What arithmatic base are you using?

Pay closer attention to the word "percentage", as in:

Maybe it's because the collective legislative percentage supporting it is still in single digits.

Ah, Sebastion was a bit quicker on the "post" button than I was.

"My point is that because one can draw a line between dot A and dot B doesn't in any way suggest that said line actually exist"

True. But, what if there are dots A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, and P, and you ask Microsoft Excel to fit a curve to the data, and there is a line that fits all of them almost perfectly? It's "projection" all right, but it's a useful one. It's not perfect, but it's a much better means of guessing what a politician is doing than what said politician SAYS he is doing.

It's not perfect, but it's a much better means of guessing what a politician is doing than what said politician SAYS he is doing.

Which would be a decent point, had he emitted data that could be represented by those points in close time-proximity (meaning, in the same speech) to the event in question, which might give you good reason to think "hey, these are connected".

I was going to suggest that you simply ask him, and then I remembered he's a politician. Just don't confuse the model with reality, and I'll have no further objection.

It's not perfect, but it's a much better means of guessing what a politician is doing than what said politician SAYS he is doing.

Or, to return to my point, it is a good way of locating a political center in a discourse, and whether whatever that person is doing, for whatever reason, strengthens the shift to that new center or deflects the shift away from it. It's not the individual intention that matters, it's the institutional center.

I'd take Cornyn to see Murder in the Cathedral, but I don't think he'd actually understand it.

Katherine.

In order for the MSC to do what it did - it is necessary to call ALL argument against it to be (and these are the exact words from Goodrich) “irrational animus” & motivated by “bigotry”
The Constitution has many ways in which the minority is protected.
One way is federalism; another is your right to vote, or free speech – or to petition your government… ect. ect..
As an attorney I am well aware of the constitutional and legal theory your banking on to secure what you feel is your “rights”
Just ponder – If you agree with what has been done so far…
Then all those people, and all those arguments… are nothing more than “irrational” & “bigoted”
Ponder that- (who’s being irrational?)
The legal theory that the desisions in favor of SSM is predicated on must classify opponents arguments for traditional marriage as being "irrational"
Without that lie - you would have no gains.

I believe this is something your well aware of.
I believe you are just being obtuse.
(willfully ignorant)
When the State argues in favor of traditional marriage it is arguing in favor of a public policy advocated by the state.

Your wrong to suggest any “counterweight of the equality argument” The legal truth of the matter is that the State has a presumption in its favor – State arguments on public policy grounds are deferred to under the rational basis standard. (the lowest threshold in the law)
What this means is exactly how it sounds, the argument does not have to be a winning one (i.e. your balancing test) or even a reasonable one, NO it merely has to be a rational argument (i.e. having some relationship to logic)


The FACT of the case is that you DO have to ““necessarily have to claim they are bigotted or irrational to win the argument.””
As a matter of law YOU necessarily have to call the states argument Irrational and bigoted in order to win this “right” you have advocated. This is exactly what the court did in Massachusetts and recently the lower court in California. This is what has serious opponents of SSM so upset.
In order for you to win your argument in court (as opposed to the legislature) it is necessary that you classify ALL opposing arguments as irrational animus alone. This has been the legal strategy of the Human rights campaign, ACLU, Lambda Legal.. etcetera
Now remember, your opponents (and a vast majority of the public) consider the arguments against SSM not to be merely rational – but entirely reasonable and indeed overwhelmingly a winning argument (even under your balancing test). Yet here you are admitting that in cocktail arguments YOU find such arguments rational & reasonable, but in a court of law they some how fail to be so.

No, I’m sorry – this is exactly what it appears to be, activist judges thwarting the law in order to win a public policy THEY want. Its judicial tyranny and we have seen it before. Its hijacking the law, skirting the standard, and imposing a policy against both the constitution, precedent, and the will of the people.
I hope this enlightens you as to the anger on the other side. We see most of our opponents to be deluded- they have already dismissed any argument in defense of traditional marriage laws as irrational and bigoted.
I only wish that on blogs like yours and others most people would have the courage and integrity to forthrightly applaud the strategy being used to win their cause
But Remember- try and keep in mind one thing.
Are those arguments RATIONAL.
Not a perfect argument that applies in all circumstances (What argument does?)
Not even a reasonable argument – just merely rational.

Main Entry: 1ra•tio•nal
Pronunciation: 'rash-n&l, 'ra-sh&-n&l
Function: adjective
Etymology: Middle English racional, from Latin rationalis, from ration-, ratio
1 a : having reason or understanding b : relating to, based on, or agreeable to reason : REASONABLE
2 : involving only multiplication, division, addition, and subtraction and only a finite number of times
3 : relating to, consisting of, or being one or more rational numbers
- ra•tio•nal•ly adverb
- ra•tio•nal•ness noun

I think any number of things about my opponent’s arguments – but I’m not narcissistic and delusional enough to call the irrational. (although they are often unreasonable!)

When accusing very, very smart people of being ignorant, it's best not to sprinkle spelling and grammatical errors in said accusation. Just a thought, and not intended to address anything you said.

"As an attorney I am well aware of the constitutional and legal theory your banking on to secure what you feel is your “rights”"

No, you aren't. I've stated many times that I disagree with the legal reasoning of Goodridge but agree with the result.

Unless I'm misreading you, you also seem to be assuming I'm gay. "Not that there's anything wrong with that", as they say, except that since I've stated numerous times that I'm straight and married, I get the impression you're not actually listening to my arguments at all, and find it simply impossible comprehend that a straight, married person could believe that you, and not gay couples getting married, are the ones dishonoring marriage in general and my marriage in particular.

This, combined with the thing about contemplating violence, suggests to me that further discussion with you on this is not going to go anywhere. It's also off topic for this thread. So you'll forgive me if I don't continue. I would still be interested in who you've contemplated violence against, and why, and how seriously, if you choose to answer, but if not that's your decision.

Guess what? Sebastian is now an authoritative liberal commentator. We of the dark side bid you welcome!

Re: Percentages

You're right. I skimmed right over that word. My bad.

Sorry.

Gasp! I'm horr-a-fied!

Funny thing is Jane Galt is #7 on both the Conservative and Liberal indices.

What's odd about that is that it's so clearly an artifact of the fact that it's so odd to have liberals and conservatives on the same site that no one seems to have any way to deal with it. I have never understood this at all -- the idea of talking only to people who already agree with me is, to me, some sort of Being-John-Malkovich-like nightmare.

Sweatless, Casey.

Well Katharine.
The post above is a compellation of a couple of other posts I’ve done.
I do this because rehashing the legal argument ad nausea is tedious.
I did not think you were gay, and should have edited more carefully.

If you agree that Goodrich is bad law then (it would seem) that you should agree that bad precedent should be overturned. (it really does rot the law and undermine respect for it – i.e. Roe v Wade)

This overturning can be done by the people (what are the chances that in Mass – the people will actually get a vote on this – must scare the hell out of the activists)

Or it can be done by the supreme court –(or federal district court) or though the people via constitutional Amendment.


PS. I have contemplated violence against judges and law professors (wistful daydreams) I have yet to enter any phases of planning violence against this or other groups.

You see – Its very frustrating when you realize that courts like Mass. & Vermont (and others) can do through extra-legal means (that bad opinion we agree on) what legislatures would hardly even bring to a vote –much less pass.

Fitz - "When you get decisions like Lawrence (based on the reasoning of Roe) that lead to the Mass. SSM decision that call the vast majority of the public (and their opinions) nothing more than “irrational bigotry” – people will contemplate violence (I know I have)..."

So is it Lawrence (striking down sodomy laws that target gays) or the Mass. SSM decision (interpreting the Massachussetts state constitution in a way that, apparently, the majority of Massachussetts citizens support) that lead you to contemplate violence? Against whom, exactly?

"...if they continue down the road of tyranny then (I suppose) violence will follow."

I can understand the procedural reasoning for considering Roe (and therefore Lawrence) an incorrect decision. If you want to demonstrate that the Mass. decision was incorrect, then you will have to demonstrate some knowledge of Massachussetts constitutional law. I don't have such knowledge, but let's assume that a reasonable argument could be made that the decision was flawed. How exactly do you get from a couple of flawed decisions to "tyranny"? I usually interpret "tyranny" to mean the abrogation of basic rights. The two decisions you've referred to here either state that a selected group can not be presecuted for adult, consensual behavior in the bedroom (Lawrence) or that a certain group should have the same marriage rights as the majority (Massachussetts). In other words, they grant or protect basic rights for a minority. No ones rights are abrogated. You could certainly make a argument that the judges in question did not follow proper procedure, but I don't see how you get from there to "tyranny". There have been plenty of court decisions I've disagreed with, but I wouldn't call them tyranny.

Anyway, I'd like to repeat my question, violence against whom? And what conceivable moral code would lead you to the conclusion that violence might be an acceptable response to rulings that certain types of discrimination against your fellow citizens are not constitutional?

I'm trying to come up with different interpretations of your post. The only likely targets I can come up with are either the judges or gays. That means that, depending on whether your problem is with Lawrence, the Massachussetts decision, or both, you would contemplate violence against:
a) Edward, for having legal sex with his partner
b) The Supreme Court, for saying that Edward can't be locked up for having sex with his partner
c) Sebastian, should he move to Massachussetts and decide to get married
d) The Massachussetts Supreme Court, for saying that he could do so.

Please inform me why I, or any moral person, should view your outlook with any less contempt than we would the thug who thinks it would be ok to assault an interracial couple, on the gounds that they were "asking for it" by walking down the street together.

I have contemplated violence against judges and law professors

Like this man?

In the light of these threats and quasi-threats, Dahlia Lithwick's remarks on Men in Black: How the Supreme Court Is Destroying America are worth reading.

Please inform me why I, or any moral person, should view your outlook with any less contempt than we would the thug who thinks it would be ok to assault an interracial couple, on the gounds that they were "asking for it" by walking down the street together.

Well, you could start with the assumption that your view is exclusively the moral one. Or perhaps even whether your view is even grounds for any contempt. You might also work on your analogies and their appropriateness. But that's just a start.

Tonydismukes

"No ones rights are abrogated"

The rights that are being abrogated is your and mine Tony.
Its the most basic right there is.
The right to suffrage - the right to vote.
You know, self -determination.

A just government derives its power from the consent of the governed
And all that.
(if it was so popular in Mass, why not just vote on it, and avoid all this fuss)

The coming invasion of the box turtles!!!!
& those who love them.


http://news.scotsman.com/latest.cfm?id=4346001

Fitz - I missed your latest post on preview. Apparently the answer to the question about targets is b) and d). Of course, once you go down that track, I don't expect that a) & c) are far behind.

For the record, I'm generally willing to go to great lengths to have civil and informative discussions with those who I strongly disagree with. (My posting record on this site and elsewhere will back that up.) Suggesting the moral acceptability of violence to enforce your biases puts you in a place I'm not willing to reach out to.

Judges and law professors eh? What a credit to your state bar association. I wonder what the theory is that makes law professors worthy of death, since they're obviously not usurping agents of the state. Impiety">http://en.wikipedia.org/wiki/Socrates"Impiety and corrupting the youth, I guess.

Sarcasm is not really appropriate here though. If you're serious about this, you should talk to a pastor (assuming your pastor would disapprove) or a mental health professional about it immediately. If you're not serious about it but just find toying with the idea amusing:

Having taken a class with the Con Law professor who'd probably be your public enemy #1 if you've gotten that specific in these fantasies, who I'm sure would be the first to explain why this threat is Constitutionally protected under the First Amendment (it is)....having taken another class from a judge in South Africa who military intelligence had on a hit-list under the apartheid regime--it's a sick and dangerous thing to take pleasure in or fanatasize about, even if you don't really mean it.

I suppose I should be grateful for proving my point about Cornyn though.

Kath & Tony
Chill

"Every normal man must be tempted at times to spit upon his hands, hoist the black flag, and begin slitting throats." – H.L. Mencken

Charles- As far as hyperventilating goes if the sides were reversed you'd be saying:
1 Its a sedition and murderous incitement to treason.
2 He is objectively pro terrorist
3 Why does he hate America?

Well, Frank you are speculating on a hypothetical situation, which is a practice that I try to avoid as much as possible. BTW, some Republican also said these measured words about the judiciary:

[L]et me just say I have the greatest respect for our judiciary, the men and women who wear black robes....For 13 years of my professional life, I have worn a black robe, judging cases, first presiding over the jury trials, and coming to have a great deal of respect not just for those judges but for men and women who serve on juries and decide hard cases....

Federal judges are appointed subject to advice and consent provisions of the Constitution for a lifetime. They do not run for election. They do not have to raise money as do other politicians. I know those who do envy them that. But the idea is they are supposed to use that independence in order to be impartial umpires of the law -- it is called balls and strikes -- and they should use that independence that has been given to them in order to resist politics, in order to resist those who would suggest that in order to be popular you must subscribe to a particular way of thinking or a particular social or political or ideological agenda.

Given that framework that the Founding Fathers agreed was so important and that I know we all agree is important today to preserve that independence so as to preserve that judicial function....

Spoken by none other than John Cornyn in the very same speech which started this whole little tempest. I repeat. A pox on both. Cornyn for his ill-considered, badly articulated and unsupported statements, and the hardliners for the breathless over-the-top reactions.

Um, I really don't like doing this: But if Fitz is going to keep on going on about his fantasies of violence, can he be banned for a day till he quits? I've been kind of assuming he means this as a joke, and I note that the Posting Rules only forbid "Calls for the assassination of any politician" (not judges or law professors)...

So I see that I'm to the right(?) of Instapundit and Jonah Goldberg here. CB, got any other positions I can stand with you on? Are you, say, a Yankees fan? (Jeter, Jeter! though I'm favoring Matsui for MVP.)

Rilkefan, you know that if katherine and I agree on something me must be right....or correct.... or whatever.

Jesurgislac

What a bunch of sallies - Who's "advocating or fantasising violence"
All i originally said was this:

"people will contemplate violence (I know I have) if they continue down the road of tyranny then (I suppose) violence will follow."

Pretend were talking about the L.A. riots OK...
Im not going to kill anybody- or advocate it..


after all, there's this bit of under-reported news.
http://washingtontimes.com/national/20050401-114205-2153r.htm

Im not going to kill anybody- or advocate it

I don't believe you would, dear. Talking about it's enough for you.

This overturning can be done by the people (what are the chances that in Mass – the people will actually get a vote on this – must scare the hell out of the activists)

Fitz,

Just to reiterate a point that Katherine made, and supported, at length, earlier, it is very unlikely that Goodrich will be overturned by the people of MA. There has been an amendment proposed, and in MA this requires simple majority approval in two successive legislative sessions, and then approval by simple majority in a statewide referendum.

My opinion as a resident of the state is that the amendment will almost surely fail. You may disagree, but the fact, among others, that the state AG, Thomas Reilly, now supports gay marriage should make you think again. Reilly used to oppose it, and argued the losing side in Goodrich. The idea of running for governor seems to have concentrated his mind.

Macallan - just to clarify, my contempt is not for Fitz's opinion that the court rulings in question were wrong. It's not for his opposition to gay marriage, though I strongly disagree with him on that point. It's for his apparent opinion that violence would be a morally acceptable way to address decisions he disagrees with. I'm kind of funny that way. On the plus side, it means that if we ever met in person, we could debate our disagreements peacefully rather than me beating you up for whatever I thought you were doing wrong.

As far as my analogies, Fitz apparently was contemplating b) and d), so I suppose a better analogy would be to a thug who thought it might be ok to assault the justices who decided the case of Loving vs. Virginia. Consider the correction made.


Fitz - "The rights that are being abrogated is your and mine Tony.
Its the most basic right there is.
The right to suffrage - the right to vote.
You know, self -determination.
"

I presume that the citizens of Massachussetts voted on their constitution. The Massachussetts Supreme Court was of the considered opinion that the Massachussetts laws prohibiting gay marriage were in conflict with that constitution. In a conflict between the constitution and lesser law, the constitution wins. You may be of the opinion that the Massachussetts decision was in error, but you haven't yet presented your evidence. In any case, the court based their decision, even if erroneously, on the constitution voted on by the people of the state. Most laws require some interpretation. Just because you think an interpretation is wrong does not automatically mean that the populace is being disenfranchised.

As far as the Lawrence decision, even if I were to grant that the decision was precedurally flawed (which I don't necessarily - I haven't studied the legal issues involved), lets look at the consequences. On the one hand the majority loses it's "right" to vote that Edward and Sebastian should be put in jail for having sex with their loved ones. On the other hand, Edward and Sebastian and millions of others gain the right to be with their loved ones and not go to jail. About the worst face I can put on that for arguments sake is that it's a wash on the rights front. It certainly doesn't add up to "tyranny" as far as I can see.

Bernard.

Obviously advocates for SSM want to preserve what gains they have so far.
So the question is – will it pass the second (of two) legislative hurdles and get in front of the people for a vote. Do they even have the nerve to put it in front of the people.
I may not live in Boston, but I’m not from another planet either.
I mean – how would the opposition in Mass. even get heard? –the Globe?

tonydismukes

"In any case, the court based their decision, even if erroneously, on the constitution voted on by the people of the state."

That’s right guys - the Mass. constitution calls for gay marriage when ratified -its just laid dormant for all these years.


Its precisely because some of us know the law that we understand what tyranny is!
Its not a parlor game kids. Its not a exercise in semantics. Its not a game of impose and then sit on the ball until the clock runs out. Fair is fair.
Let the people vote!

Well, Frank you are speculating on a hypothetical situation, which is a practice that I try to avoid as much as possible.

I can't believe you're actually capable of delivering that line in all seriousness. Your posts routinely traffic in conjecture, hypotheticals, and what can only be politely described as a highly creative filter applied to established facts.

Spoken by none other than John Cornyn in the very same speech which started this whole little tempest.

Your argument seems to boil down to "Cornyn could've have possibly meant what it sounded like he was saying, because elsewhere in the same speech he contradicted himself and sounded much more moderate."

I have another term for what Cornyn said: pre-emptive disclaimer.

You know the tactic, Charles. You engage in it yourself. It's where you know you're about to say something extremely incendiary, and to stave off the predictable reactions, you start off or follow up with something that moderates or plays down the incendiary part of what you said.

The most charitable explanation--the most charitable /and credible/ one, anyway--that I can muster for what Cornyn said is that he was engaging in a blame-the-victim argument in order to discouarge judges from ruling in ways he thinks are inappropriate, without actually thinking his words would encouage violence. This explanation would necessarily require that Cornyn be a complete imbecile. It was, in any event, a carefully-hedged apologia for right-wing violence against judges they disagree with.

A pox on both. Cornyn for his ill-considered, badly articulated and unsupported statements, and the hardliners for the breathless over-the-top reactions.

I find it entirely unsurprising that you and Tacitus--two of the most relentless apologists for the most inexcusable mistakes of the Bush administration--are hard at work writing apologia for Cornyn's inexcusable comments. You'll pardon me if I find your harping about "hardliners" and "breathless over-the-top reactions" to be a hysterical example of the crow calling the raven black.

If Fitz is ever charged with violence against a judge, perhaps instead of a taking his case to court, with its unelected, unaccountable, activist judges, we should instead determine his guilt or innocence by popular vote.

What say you, Fitz? Is the will of the people sufficient when it's your freedom on the line?

Cornyn was a Texas Attorney General and a supreme court Justice .
He knows the implications of his words and the context they are uttered in.

Gromit - but the laws I would be charged under, are themselves voted on by the people.

Fitz - "Im not going to kill anybody- or advocate it.."

Hmmm, I might be more reassured if it hadn't taken you so many posts to get to that statement. It occurs to me that there are many reasons why you might not be planning on actually committing or advocating murder - such as the fact that you would likely go to jail. If you will unambigiously state that you believe the violence you mentioned contemplating is morally wrong, then I will happily chill and withdraw my comment about contempt.

Fitz: you keep telling us that you know the law, including the Massachusetts constitution. You also tell us that you know about all sorts of other things, like what the Mass. electorate wants, and what the Boston Globe is prepared to cover. But as far as I can see you have not provided any support at all for your claims, other than citing the dictionary definition of 'rational' (a word whose meaning was not in dispute.) You would be more convincing if you made actual arguments supported by facts.

What would your reaction be if John Kerry said this:

Let me just say I have the greatest respect for our police, the men and women who wear blue....For years of my professional life, I was a prosecutor and worked with these brave men and women every day. I respect the police deeply.

On the streets, cops are supposed to be impartial umpires of the public peace, without regard to a particular way of thinking or a particular social or political or ideological agenda.

It causes a lot of people, including me, great distress to see cops use the authority that they have been given to pursue personal racist or authoritarian vendettas. Sometimes, the cops have taken on a role of enforcing the submission of the poor and marginalized rather than simply interdicting violent or unlawful behavior.

I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of cop killings in this country. And I wonder whether there may be some connection between the perception in some quarters, on some occasions, where cops are targeting minorities yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence. Certainly without any justification, but a concern that I have.

If John Kerry said this, how long would it take for him to be excoriated as a defender of cop killers? Tacitus's dismissal of Cornyn's critics as paranoid and dumb seems, shall we say, a bit self-serving. A bit contrived.

Fitz, It looks as if the people might vote in Mass, but your other point isn't valid. Even though it took years, decades or centuries to recognize an inherent unfairness in certain laws, our failure to be fair does not justify the laws. The constitution is written as it is written. It takes time and enlightenment to recognize blind spots caused by our prejudices, particularly those that are reinforced by religion. When you can offer a constitutionally valid reason for not allowing same sex marriages, I'll be happy to consider it. I will not buy the argument that Anatole France sent up when he commented about making it equally illegal for the rich and poor to live under bridges.

Go away, silly italics!

If Fitz is ever charged with violence against a judge, perhaps instead of a taking his case to court, with its unelected, unaccountable, activist judges, we should instead determine his guilt or innocence by popular vote.

Ermm... you mean like a... Jury?

Its not a parlor game kids. Its not a exercise in semantics. Its not a game of impose and then sit on the ball until the clock runs out. Fair is fair.
Let the people vote!

And if your data showed that the majority favored SSM, would you be clamoring for a vote then?

And would a constitutional amendment even be necessary if the people clamoring for a vote were not afraid that their majority was only temporary?

Cries of once-and-for-all with regard to any positively stated restriction on rights to replace a negative liberty only ever come from those who wish to prevent future generations from exercising the same right of interpretation that the current one enjoys. It is the essence of anti-democratic action.

Tony - yes violence is morally wrong. (except when its not – i.e. justified)
Even more so in this case because it would not accomplish anything.
(i.e. unjustifiable) For more on this look at just war theory.

Hilzoy – Read the dissent of the case.
You don’t have to have much of a legal mind to know the Health Departments arguments were at least rational (which is why I defined it)

http://www.mass.gov/courts/courtsandjudges/courts/supremejudicialcourt/goodridge.html

The only other applicable amendment was the state ERA – In which the legislative record explicitly said did not apply to SSM (something the court simply ignored) Yet it is SOP in interpreting amendments/statutes

http://thomas.loc.gov/home/thomas.html

Q. But Sir, what of Justice.
A. My Job sir- is the Law.
Oliver Wndell Holmes Jr.


I have another term for what Cornyn said: pre-emptive disclaimer.

Well, that's your take, Catsy.

two of the most relentless apologists for the most inexcusable mistakes of the Bush administration

Wrong again, Catsy. Was I defending the Bush administration in my last post? Of course not And that Tacitus fellow, he sure is a relentless and unapologetic defender. Get real, man.

"That’s right guys - the Mass. constitution calls for gay marriage when ratified -its just laid dormant for all these years."

I haven't really studied the decision, but my understanding is that the Massachussetts constitution calls for certain standards of equality. It certainly is not absurd to note that the implications of those provisions relative to certain specific situations could take a while to surface. The 14th amendment to the U.S. constitution was ratified in 1868. Brown v. Board of Education Of Topeka wasn't decided until 1954. Is the Brown decision another example of the tyranny you're talking about?

For someone who professes to know the law, you don't seem prone to actually making legal arguments rather than unsupported assertions.

(On preview - I see you've pointed to the dissent in the Massachussetts case. That seems like a step in the right direction.)

"Tony - yes violence is morally wrong. (except when its not – i.e. justified)
Even more so in this case because it would not accomplish anything.
(i.e. unjustifiable)
"

Just to clarify, are you saying that violence against judges would be justifiable if it kept them from making decisions you disagreed with? You seem to be saying that it would be wrong merely because it would be ineffective, but maybe I'm misreading you.

I don't understand, Fitz.

Opponents of gay marriage, some of them at least, have said that it would be OK if enacted by the legislature, rather than imposed by judges. In fact, much of your criticism deals with this. Well, now the MA legislature has a chance, effectively, to enact gay marriage, but that's not legitimate all of a sudden.

Why am I unconvinced that any process whatsoever that led to gay marriage would be acceptable to you?


Bernard
Yes I think SSM is bad public policy.
When its imposed by the courts its worse than public policy- its tyranny. (rule by a few)
I hope the people get a chance to overturn this so we can have substantive debates about things that matter.
While we wait for more bad news to surface in Scandinavia & eventually Canada
I could go on all day about why I think it’s a bad idea – Culturally, Legally, and Morally.

Tony – I would not renounce violence in the name of Liberty. But before I could concede to it I would need to know that all other options have extinguished themselves.
(something far from over – in this country)

A pox on both. Cornyn for his ill-considered, badly articulated and unsupported statements, and the hardliners for the breathless over-the-top reactions.

*cough, cough, ward churchill, cough cough*

"Tony – I would not renounce violence in the name of Liberty. But before I could concede to it I would need to know that all other options have extinguished themselves."

Well, I'll give you credit at least for wanting to save violence as a last resort. Let me ask you a question to clarify your stance, though. Suppose Lawrence had not been decided the way it was. Suppose that anti-gay sex laws were upheld all over the country and passed where they did not exist. Suppose the majority continued to support said laws, and the courts upheld them. In this case, there would be no abrogation of voting rights. However, there would obviously be a drastic abrogation of the rights of millions of people, including some of the hosts of this blog, to have a consensual sexual relationship with the partners that they loved. If all attempts to change the laws failed, would you support Sebastian and Edward committing violence against the legislators in the name of Liberty? How about me, could I commit violence on their behalf?

"I hope the people get a chance to overturn this so we can have substantive debates about things that matter."

I imagine that to some people, the right to get married does matter. I'd certainly think it mattered if the elected legislature decided that I couldn't be married.

Tony

I happen to not support ant-sodomy laws (and feel like a real sucker) but that does not mean I find them unconstitutional. {I find them unnecessarily intrusive on the civil level, and public fornication and indecency laws accomplish largly there intended purposes –(i.e.-chasing them out of parks/bathrooms)
Most states got rid of those laws with only a handful having them at the time Lawrence was decided. They were rarely enforced. This was an example of Federalism working, the people themselves got rid of laws they found unnecessary or intrusive.
The point of Lawrence was to follow the logic of Roe in personal autonomy.
Despite the fact that the Judges said EXPRESSLY that the decision was not to be read as precedent for SSM, the Mass. Court used it for that anyway.

If SSM is such a great idea – then they can sell it to the American people.

Its not such an injustice that it would need to be imposed by judicial fiat.
(and if it IS that big of an injustice then shouldn’t it be imposed nation wide?)

As far as your question goes –(I get it, what if things were reversed) No I would not support such violence by anyone.
Why? Well, naturally – I feel my position to be the righteous one.

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