October 23, 2012

SCOTUS Nominations Warning: Do Not Confuse Relief with Joy

I have written an article to place in perspective the argument, recently advanced repeatedly, that the election of Mitt Romney would spell the end of liberal judicial activism. That is far from certain. 

The virtue of being not-Obama must not be confused with virtue. While defeat of Obama should be a basis for relief, it does not follow that election of Romney should be a cause for joy. The latter case would assure nothing beyond the avoidance of absolutely certain judicial disaster. But avoiding a guarantee of what would happen is not a guarantee that it won't happen anyway.

As readers of this blog know, but the public does not, for the last six decades, the sorry history of harmful liberal judicial activism has largely been a history of handiwork of Republican appointees.

So optimistic assurance is no substitute for real vetting -- and fighting! Credible objections to nominees must be taken very seriously by constitutionalists rather than set aside just because the president is purportedly conservative.

No Republican president can be relied upon. None! Not ever!

If Obama wins, the judicial war will be lost for a generation and possibly forever; but it does not follow that, if Romney wins, the war will be won. Unless proponents of fealty to the law and Constitution as written surrender at the outset, a Romney victory promises only the beginning of a protracted judicial struggle -- not only against the most venomous leftist character assassins but also against the inclinations of Republican presidents to seek "moderation" and also to buy easy peace from the assassins by compromising judicial integrity and principles.       

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October 01, 2012

ObamaCare vs. SCOTUS Legitimacy

At the onset of a new Supreme Court term a month before a critical election, many have been looking back at Chief Justice Roberts’ ObamaCare opinion that resulted in widespread shock at the end of the last term. Of particular significance was that this opinion came in the wake of vicious personal attacks by de facto parties to the case, especially President Obama and Senate Judiciary Committee Chairman Leahy. They charged that a ruling against them would be a severe blow to the legitimacy of the Court. Numerous accounts have suggested that the chief justice reversed himself for fear of lending validity to that charge. 

I have written an article here arguing that, if protecting legitimacy was his goal, Roberts sadly produced the opposite result. He has raised questions concerning the utility of elections, what remains of our actual Constitution, the rule of law, and public acceptance of judicial review.

As protested by the dissenters, his opinion was an exercise in utter sophistry. I analyze six fast shuffles that Roberts and his apologists had to engage in to defend this result. For example, calling the same words a tax and not a tax, declaring that it was constitutional to compel indirectly what was unconstitutional to compel straightforwardly, and recognizing limits on federal power while at the same time giving the Court’s imprimatur to unlimited presidential and congressional power. I also discuss the fast shuffles involved in lecturing the voters that their political choices were responsible for ObamaCare and, hence, it was up to them to fix it; as well as disregard for completely unambiguous legislative history by justices who had relied upon such history in the past when far less clear. Finally, I argue that Roberts’ apologists, trying to absolve him of the charge of acting as a politician rather than a judge, engage in sophistry by applying the wrong standard of evaluation, rather than the appearance standard applied to assessing judicial impartiality.

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