Obsidian Wings

A Court of Law

--Sebastian

One of the more influential Supreme Court Justices in US history once said:  "This is a court of law, young man, not a court of justice."  Or at least Oliver Wendell Holmes, Jr. is often credited with saying that, though after a bit of searching on the web I can't find anything further about the quote.  It is strange to think that such a thing might be uttered by one who became the father of legal realism (or at least its great-uncle)--a theory which broke ground on the idea that the text of laws did not determine the outcome of cases, and that judicial law should be a tool of social policy.  It is amazing how far we have come such that the idea that high level judges might be incapable of doing justice seems not to resonate with out idea of the courts--what we now call "the justice system".

The quote combined with Holmes' intellectual legacy is interesting because it reminds me of one of the reasons I have a strongly conservative tendency.  Reformers are a product of their cultures, they can rarely see the destructive capability of their ideas because they subject their ideas to informal limits which are often a result of the culture they wish to change.  Holmes was well indoctrinated in the idea that a judge could not do justice, he could only do the law.  He saw the unjust results of that stance and sometimes argued against it.  Nevertheless I strongly suspect that he would be surprised to see a United States where one of the most important aspects in electing a President is the judges he might appoint, and some of the longest and most vicious Senate battles revolved around confirming them. 

Speaking of the Senate battles, my conservative instincts extend to the fillibuster.  It is a procedure which tends to serve ignoble purposes in its most storied cases--just ask Senator Byrd about his decision to fillibuster the Civil Rights Act.  But it cannot be denied that it serves as a long-standing check on majority power.  A check which I can respect perhaps more as exercised by ultimately accountable Senators rather than judges.  I can't really think of a way that getting rid of it would be so awful, but to be intellectually honest I have to admit that far greater minds than mine have been caught up in ends-oriented reforms without looking beyond the immediate ends well enough.  And in any case, the damaging nature of the fillibuster has not yet been determined.  Republicans have not actually forced the Democrats to engage in the rather humiliating exercise of reading through phone books or otherwise babbling in a television society.  So my immediate counsel would be, let us see a real fillibuster.  When the Republicans shut down the government under Gingrich, it was a sign that they had overextended their power.  Let us see what happens if the Democrats choose to shut down the government over a few judges.  Better to see what happens in the natural outcome of that, rather than messing with the whole system. 

And while they are listening to the Democrats 'debate' by reading from a phone book, maybe some of them can think of a way to help the distinction between a court of law and a court of justice back into the debate.  It would be a much healthier country where that distinction was well maintained instead of both sides merely trying to wrest that lever of power from each other.  But I'm too tired to try to analyze that tonight. 

There is an early post of mine on a very similar topic here.

Why They Fight.

Filibuster Update: The Democrats have offered a compromise whereby three of the seven judicial nominees they find objectionable would get floor votes. Republicans have rejected this offer. As the nation prepares for a showdown over the "nuclear" "Constitutional" "New Ponies For Everyone Option", it's time to stop and consider who these worthies are for whom the Republicans in the Senate are prepared to scrap the filibuster and do battle. And right on cue, Janice Rogers Brown pops up to remind us:

"Just days after a bitterly divided Senate committee voted along party lines to approve her nomination as a federal appellate court judge, California Supreme Court Justice Janice Rogers Brown told an audience Sunday that people of faith were embroiled in a "war" against secular humanists who threatened to divorce America from its religious roots, according to a newspaper account of the speech. (...)

"There seems to have been no time since the Civil War that this country was so bitterly divided. It's not a shooting war, but it is a war," she said, according to a report published Monday in the Stamford Advocate.

"These are perilous times for people of faith," she said, "not in the sense that we are going to lose our lives, but in the sense that it will cost you something if you are a person of faith who stands up for what you believe in and say those things out loud."

A spokeswoman for the California Supreme Court, Lynn Holton, said no text was available because "it was a talk, not a speech." Brown's office did not dispute the newspaper's account.

The Advocate quoted Brown as lamenting that America had moved away from the religious traditions on which it was founded.

"When we move away from that, we change our whole conception of the most significant idea that America has to offer, which is this idea of human freedom and this notion of liberty," she said.

She added that atheism "handed human destiny over to the great god, autonomy, and this is quite a different idea of freedom…. Freedom then becomes willfulness." "

How nice to learn that a nominee to our courts feels that she is in a war against, among other people, me. But how odd to learn that she feels imperiled as a person of faith. Offhand, I would not have thought that this was a time of great danger for people of faith in general, or for Christians in particular. It's certainly not like the years after the church was founded, when Christians were thrown to the lions and broken in Roman prisons. It's not even like 1960, when it was not clear that a Catholic could be elected President. It's today, when we regularly read stories like this:

"Evangelical Christian leaders, who have been working closely with senior Republican lawmakers to place conservative judges in the federal courts, have also been exploring ways to punish sitting jurists and even entire courts viewed as hostile to their cause.

An audio recording obtained by the Los Angeles Times features two of the nation's most influential evangelical leaders, at a private conference with supporters, laying out strategies to rein in judges, such as stripping funding from their courts, in an effort to hinder their work."

But Janice Rogers Brown is used to feeling imperiled at unlikely moments. As I noted in an earlier post, in 2000, when Republicans controlled both houses of Congress, she said:

""There are so few true conservatives left in America that we probably should be included on the endangered species list. That would serve two purposes: Demonstrating the great compassion of our government and relegating us to some remote wetlands habitat where — out of sight and out of mind — we will cease being a dissonance in collectivist concerto of the liberal body politic. In truth, they need not banish us to the gulag. We are not much of a threat, lacking even a coherent language in which to state our premise.""

In the same speech we learn that socialism has triumphed in America:

"Democracy and capitalism seem to have triumphed. But, appearances can be deceiving. Instead of celebrating capitalism's virtues, we offer it grudging acceptance, contemptuous tolerance but only for its capacity to feed the insatiable maw of socialism. We do not conclude that socialism suffers from a fundamental and profound flaw. We conclude instead that its ends are worthy of any sacrifice — including our freedom. (...) The revolution is over. What started in the 1920's; became manifest in 1937; was consolidated in the 1960's; is now either building to a crescendo or getting ready to end with a whimper."

And:

"I want to suggest that the belief in and the impulse toward human perfection, at least in the political life of a nation, is an idea whose arc can be traced from the Enlightenment, through the Terror, to Marx and Engels, to the Revolutions of 1917 and 1937. The latter date marks the triumph of our own socialist revolution. All of these events were manifestations of a particularly skewed view of human nature and the nature of human reason. To the extent the Enlightenment sought to substitute the paradigm of reason for faith, custom or tradition, it failed to provide rational explanation of the significance of human life. It thus led, in a sort of ultimate irony, to the repudiation of reason and to a full-fledged flight from truth"

Those of you who are not lawyers may be wondering why she keeps talking about 1937. The answer: in that year the Supreme Court upheld FDR's New Deal programs. It might not be obvious that this constitutes "the triumph of our own socialist revolution", but as Brown has already told us, "appearances can be deceiving."

So as the Senate leadership prepares to do battle, bear in mind what they are fighting for: the ability to place on the Appellate Court someone who believes that socialism has triumphed in the United States, that four years ago she and conservatives like her were about to be herded off to gulags, that these are dangerous times in which to stand up for the gospel, and that we should roll back jurisprudence to a time when it was thought to be unconstitutional to pass minimum wage laws.

And who also believes that she is a soldier in a war against those of her fellow citizens who, for whatever reason, are not what she would call 'people of faith'. "It's not a shooting war, but it is a war." I do not regard her as my enemy, but apparently she regards me as hers.

Oops!

No, really. Via Discourse.net, here is the original recording of 'Oops! I Did It Again!", and if you know who it's by before you click, you're much better informed than I am. Just to ensure that everyone has enough versions of this song that are not by Britney Spears, I've put up another (Richard Thompson, live, quite good), along with a few other songs. One is from a Beijing band that's hard to find in this country; it's off this CD. If you click on 'purchase now', your email program will produce an email addressed to the guy who sells it; if you send him money, a CD will, in fact, arrive. Also, if you like the song I put up, you might consider buying his all-Wild Children CD; I liked it a lot better than the compilation. But since I can find no mention of this CD on the internets, you'll just have to email him and ask. At $12 including shipping, it's a bargain, and you personally might drive up their non-Chinese sales by 50%. More tracks from the compilation CD are here.

Filibuster Flip-Flopping

--Edward

via Kos
~~~~~~~~~

Two of the groups represented at Justice Sunday have had a religious conversion regarding filibusters since the Republicans became the Senate majority.

It's been widely reported that pro-nuclear-option Republican Senator Bill Frist once filibustered Clinton nominee Richard A. Paez. But on the Keith Olbermann show yesterday it was revealed that Dobson's very own Family Research Council has flip-flopped on the practice as well:

As mentioned, the filibuster stretches back not merely to Jimmy Stewart in “Mr. Smith Goes to Washington,” but to the presidential administration of Franklin Pierce 152 years ago.  And, as a last measure of the defense of the minority, it has had many supporters over the years, like the very people of faith who sponsored yesterday‘s Justice Sunday, the group Family Research Council.

Yesterday it was opposed to filibusters.  Seven years ago, it was in favor of them.  That‘s when Clinton and a then-Democratic plurality in the Senate wanted a man named James Hormel to become the ambassador to Luxembourg.  Hormel, of the Spam and other meats Hormels, was gay, as the Senate minority bottled up Hormel‘s nomination with filibusters and threats of filibusters, minority relative to cloture, to breaking up a filibuster.

They did that for a year and a half.  The Family Research Council‘s senior writer, Steven Schwartz, appeared on National Public Radio at the time and explained the value, even the necessity, of the filibuster.

“The Senate,” he said, “is not a majoritarian institution, like the House of Representatives is.  It is a deliberative body, and it‘s got a number of checks and balances built into our government.  The filibuster is one of those checks in which a majority cannot just sheerly force its will, even if they have a majority of votes in some cases.  That‘s why there are things like filibusters, and other things that give minorities in the Senate some power to slow things up, to hold things up, and let things be aired properly.”

So, which of Frist's and the Family Research Council's faces are we supposed to believe is sincere? The ones they wore back when then, or the ones they wear now?

Three Little Birds (2005 Mix)

Joseph Britt, writing in The Belgravia Dispatch, puts his finger on the reasons for my vague sense of unease regarding President Bush's recent meeting with the Saudi Crown Prince:

Just in case this hasn't occurred to anyone else I thought I'd point out that the idea of a President of the United States having to approach foreign governments hat in hand asking for favors is thoroughly offensive, barring some grave emergency. First it was the Chinese two weeks ago over their weak-yuan policy, and today it is the Saudis over oil production levels and the idea that they might invest in refineries here in the

United States. Counting on other governments to bail ours out of problems it is unwilling to address seriously itself is an abdication, not a policy. As the poet might have said if he'd been even a tad bit wonkish, "oh, what a tangled web we weave when first we practice to never propose anything that might be seriously unpopular and damage our approval ratings." All right, so I wasn't an English major, but you get the idea.

Of course, all Administrations run to the Saudis when oil prices go up -- that's been a constant in American politics since the 60s (if not before).  And none of us are really too proud to accept a hand up or bail out; we just don't admit that we accepted it.

Yet, this bothers me a bit.  In part, it's because waiting for a hand out or hand up seems to be an intrinsic element of so many of the Bush Administration's policies.  The Administration's stance on an issue has frequently been one of studied inaction (or hope-filled blindness).  Or, alternatively, the "almost on point" program -- a policy that almost, but doesn't quite, address the issue at hand. 

For instance, I'm a big fan of Bush's plan for personal accounts.  Personal accounts, however, don't address the (very real) short and medium term problems with Social Security's solvency -- and it's a mistake to argue otherwise, lest your dissembling become the story (as it has for Bush).  I also (in theory, at least) approve of Bush's tax cuts.  All things equal, tax cuts are good.  But now -- facing a deficit that is partially caused by those tax cuts, and which is going to pose major economic problems down the road (some of which may be reflected in the current uncertainty in the market) -- there's nary a word from Bush about tax reform, except that we better not let the tax cuts expire!  Can't pay for the Medicare boondogle?  Don't worry, 'bout a thing. North Korea, Iran, a weakening dollar?  C'mon now, don'cha know that every little thing's gonna be all right.

Time and time again, the solution has been to hope that someone or something else will save our fat from the fire.  The economy will catch fire.  The North Koreans will come around.  The Saudis will give us a gimme.  Now, sometimes this the only thing we can do.  And, surely, sometimes waiting for another to take action is the right thing to do.  (Bush's "hands off" policy on the Israel/Palestinian dispute seems to be paying dividends, for instance.)  But consistently trusting that someone or something is going to ride to our rescue when the going gets tough -- that China, for instance, will continue to lend us money to finance our growing deficit -- is not a policy.  At least, it's no policy with which I want to be associated.

An Interesting Change Of Plans...

Kevin Drum reports the following:

"Democrats have been threatening to "bring the Senate to a halt" if Republicans go ahead with plans to eliminate the filibuster, but today the Senate Dems announced a plan to do just the opposite. Via email, Harry Reid's office announced this afternoon that "As a matter of comity, the Minority in the Senate traditionally defer to the Majority in the setting of the agenda. If Bill Frist pulls the nuclear trigger, Democrats will show deference no longer." "

What does this mean? Well, Kevin tells us, but I'm going to quote a press release from Sen. Reid instead, since it contains additional details:

"Invoking a little-known Senate procedure called Rule XIV, the Democrats put nine bills on the Senate calendar that seek to help America fulfill its promise.

“Across the country, people are worried about things that matter to their families – the health of their loved ones, their child’s performance in schools, and those sky high gas prices,” said Senate Democratic Leader Harry Reid. “But what is the number one priority for Senate Republicans? Doing away with the last check on one-party rule in Washington to allow President Bush, Senator Frist and Tom Delay to stack the courts with radical judges. If Republicans proceed to pull the trigger on the nuclear option, Democrats will respond by employing existing Senate rules to push forward our agenda for America.”"

Below the fold are the nine bills, with Reid's descriptions; I have added their numbers, and links to the bills' text.

Bolton (yes, again)

by von

I'd like a blunt, tough-talking scamp for UN Ambassador as much as the next guy; yet, as I've written several times, whatever John Bolton has in bluster, he lacks in sorely-needed credibility.  And credibility is what counts in Ambassadorships.  (Franky, I couldn't care less when or if Bolton may or may not have raised his voice to subordinates.)

This Newsweek story, which concerns Bolton's involvement in the US's and UK's attempts to eliminate Libya's WMD programs, flags another (albeit related) problem with the Bolton nomination:

On several occasions, America's closest ally in the war on terror, Britain, was irked by what U.S. and British sources say were efforts by Bolton to undermine promising diplomatic openings. Perhaps the most dramatic instance took place early in the U.S.-British talks in 2003 to force Libya to surrender its nuclear program, NEWSWEEK has learned. The Libya deal succeeded only after British officials "at the highest level" persuaded the White House to keep Bolton off the negotiating team. A crucial issue, according to sources involved in the affair, was Muammar Kaddafi's demand that if Libya abandoned its WMD program, the U.S. in turn would drop its goal of regime change. But Bolton was unwilling to support this compromise. The White House agreed to keep Bolton "out of the loop," as one source puts it. A deal was struck only after Kaddafi was reassured that Bush would settle for "policy change"—surrendering his WMD. One Bush official called the accounts of both incidents "flatly untrue."

(Via War and Peace and Mr. Calpundit.)

If Blair's government does anything other than say the same ("flatly untrue"), Mr. Bolton must step aside.  As I've written, it doesn't matter whether it's fair to Mr. Bolton or not

It isn't personal.  The issue isn't whether Bolton is an honest man; it's whether he is credible representative of the US's interests.  In the current climate, it's increasingly clear that he's not.  The President's choice doesn't trump the national interest; being the Executive is not the same as being inerrant.  It's time for Bolton to step aside, and serve his country in another way.

How We Hurt Each Other

I just went on a blind date.  It was mildly bad insofar as I was relatively sure he wasn't attracted to me from the start [clearly something wrong with him  :) ]and while we were at dinner he saw someone he knew and talked to them for 20 minutes.  I asked how long he knew the guy and found that they had only met twice before.  When I dropped him off at home, he said that he had a good time but that we didn't click for whatever reason.  I totally agreed, but it made me think a bit. 

Quite often after an uncomfortable date like that, one or both of the people would make suggestions about seeing each other again later even though it was clear (to at least one of them) that it wasn't ever going to work out.  Sometimes this is interpreted for the polite noise that it is meant to be, but other times--by less discerning people (including I hate to admit myself at times) this is interpreted incorrectly as being encouraging.  This then follows with either unreturned phone calls, or worse returned phone calls with difficult to interpret polite noises.  Sometimes one party (and I've been on both sides of this) just can't make it clear that this isn't going to work out by hinting, but they also find it difficult to say something straight out.

I suspect we do this because we don't want to hurt the other person's feelings.  This is interesting because in fact the hurt feelings are almost always worse after days or weeks of what retrospectively gets identified as "leading me on".  Tell me you aren't interested up front and my feelings will get hurt a bit and I'll get over it an hour later.  Tell me you aren't interested after days of me thinking something is going to work out and I'm defintely going to be more hurt. 

There is a balance to be had of course.  You don't need to be brutal.  But while I thought the talking to a non-friend for an extended period of time during dinner was rude, I have to give props to the guy for being straight-forward in a non-obnoxious way at the end. 

Are there other common ways that we try to spare people's feelings and end up making things worse in the long run? 

Poetry: Special Edifying Edition

Flowers, bees, infant joy: enough of these happy subjects! It's time for a bracing dose of stern Edwardian moralizing. Time to stiffen our backbones, roll up our sleeves, and reread Kipling, for whom I have an unaccountable soft spot.

Contest

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(I know, it's Roxanne's idea, but how could I resist?)