Judicial Nominations and Politics

Let's start with a couple of references from the United States Constitution:

Article 1 Section 1 - All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article 3 Section 1 - The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

By legislative powers, in addition to funding and other duties, the constitution means to create and modify law, subject to ratification by the Executive Branch, in the person of the President of the United States. By judicial power, the constitution gives courts the power to try federal cases (including disputes between states) and to interpret the constitutionality of laws. It is very clear to any reader that these powers do not include any provision for the judiciary to create law. In the last few decades, a slick way of writing unpopular law has emerged. Any party who has an agenda which will not be supported by the elected legislators can bypass the legislative process by filing a legal action with a sympathetic judge. The judge then issues an opinion that favors the plaintiff and it essentially becomes law. Even worse, the judge can strike down existing law and tell the legislature what kind of interpretation the judge will allow to stand, which makes the legislators redundant and powerless. It that case, the judge is clearly creating the law. Since the constitutionality of law is subject to review of the judiciary, and the judiciary is making the law, it should be fairly obvious that a judge is not going to strike down his or her own interpretation of the law. This process is usually referred to as “judicial activism”. It allows judges to do whatever they want to without regard to precedent or the desires of the elected representatives of the people. One needs to look no further than the historically astonishing opinions of the Ninth Circuit Court of Appeals in California for many examples. Not coincidently, the Ninth Circuit has more opinions reversed by the US Supreme Court than any other circuit.

Judicial activism has been responsible for a number of liberal causes becoming law. The recent same sex marriage opinion in California was created despite a 61% recent defeat of same sex marriage by the population of California in a vote. Roe versus Wade, the famous abortion decision, was decided based on a constitutional right to privacy which was created out of thin air by the Supreme Court. Under the theory of judicial activism, judges are free to do anything they want and, unlike elected legislators, there is nothing voters can do about it once they are in office. In fact, the legislature becomes powerless and useless.

Part of the Democratic push for the White House is that Justice John Paul Stevens is 88 years old and Justice Ruth Bader Ginsburg is 75 years old. In fact, the liberal justices are significantly older than the conservative justices. With a Democratic majority in the Senate and a Democratic President, the liberal wing of the Democratic Party will push for extremely liberal activist replacements should those justices retire or pass away. Additionally, the Democratic majority has been “running out the clock” by refusing to hold hearings of dozens of nominated judges so that if the next President is Democratic, all those nominations can be squashed and replaced by activists. Since the liberal agenda cannot be supported by legislation, the judiciary is used to create it.

The Republicans, on the other hand, are pushing for the Presidency so that more “strict constructionist” judges will be in place. Conservatives feel that by replacing even one of the liberal justices (Justices Stevens, Ginsburg, Breyer, or Souter), the direction of the court will be shifted. Chief Justice Roberts and both Justices Alito and Thomas are in their 50s. Only Justice Scalia, of the conservatives, is significantly older (72). Justice Kennedy, thought to be in the middle, is 71.

Since the court is currently thought to be four liberal, four conservative, and one swing vote, one new appointment could make a substantial difference to the make up of the court. Liberals are more anxious because of the ages of the liberal justices.

The choice in candidates is pretty clear. Barack Obama said in a recent statement, "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges." Therefore legal expertise and experience apparently have no place in evaluation of judicial nominees, as long as they support his political beliefs. John McCain said that he thought that "abuse of judicial authority" had continued unchecked. "The result, over many years, has been a series of judicial opinions and edicts wandering farther and farther from the clear meanings of the Constitution,"

It is interesting that both Hillary Clinton and Barack Obama voted against the confirmation of both Justice Samuel Alito and Chief Justice John Roberts despite their stellar credentials and qualifications. Clearly their votes were agenda driven on not based on qualifications. John McCain voted to approve both nominees.

Despite the little political and media attention paid up to this point, judicial nominations might be the single most lasting result of the next President.

The Republicans Join the Suicide Pact

I have written previously that the Democrats have taken an election that should have been theirs in a walk and managed to screw it up enough to make the contest competitive in the general election. Now, not to be outdone, the Republicans are attempting to destroy themselves, as well. The truth is that no staunch conservative had a chance to win the Presidency in the current political environment given the war, the current economy, the Republican incumbent retirements, and the fact that a two-term President is leaving office. John McCain came along at the only time he could have been nominated as a Republican in recent history. Although he will be painted as “George W. Bush II” by the Democrats, anyone familiar with politics knows better. That being said, some contemptuous conservatives would rather leave the country to ultra-liberals than have a candidate that is not the “perfect” conservative. When I hear people like Ms. Coulter openly rail against John McCain, I cannot help but think of the ages and health of Justices John Paul Stevens and Ruth Bader Ginsburg. The conservatives whining about McCain cannot possibly be thinking if they do not consider twenty more years of judicial activism a problem. In the current climate, the Democrats will likely pick up seats in the Senate. Therefore, a Democratic President will be able to nominate and confirm any flaming liberal activist judge and the Republicans will just have to grin and bear it. If McCain is elected and nominates a conservative justice, the Democrats can not possibly stall a Supreme Court nomination for an entire four years, like they are doing to the Appeals Court justices now. The Democrats have been holding up hearings on judicial nominations “running out the clock” until the next election. The nomination of the next two or three Supreme Court justices and having hearings on the Appeals Court justices may be the single most important legacy of the next President. It is mind-boggling to think who Barack Obama might nominate, not only for the Supreme Court but also to the Appeals Court positions currently held in limbo. That alone has the potential to change the country more over the next two decades than any elected official. Republicans better wake up to reality before the entire country is San Francisco.

Obama Unwittingly Helps McCain's Fundraising

There has been much made recently about the differential between Democratic and Republican fund-raising for the Presidential election. John McCain is lagging significantly behind the Democratic candidates due to the contentious race for the Democratic nomination. Surprisingly, I believe Barack Obama came to McCain’s rescue today. In a “major” speech about the economy, Obama, the presumptive nominee, stated that the solution to the country’s economic problems was more regulation. He proposed a tax cut to “working families”. Of course, that already exists in the Bush tax cuts of 2001 and 2003. In proposing more regulation by the government, Obama has begun the process of filling McCain’s election coffers by stimulating donations from almost every business in the country. If there is anything a business doesn’t like, it is the federal government telling them how to do their jobs.

The two Democratic candidates are locked in a heated battle. On the nasty side, they continue to delve deeper into accusations and nit-picking and it is wearing the voters thin. On the other hand, they battle by trying to out-promise each other, thereby buying the votes with bribes. It is an interesting paradox that if a candidate walked up to you and offered you $100 cash to vote their way, they could go to jail. Yet it is perfectly legal for them to offer you thousands of dollars in government money for the same goal. What no one seems to realize is that the money they offer comes from tax revenues. Obama has already offered up something like one trillion dollars in new spending proposals. Someone will have to pay for his programs. It will be people who work, thereby removing the incentive to work.

We have all heard someone say, “Why work harder? The government is going to take it, anyway.” There is some tipping point where people lose the incentive to try. That is the very reason communism fails as a form of government. It flies in the face of human nature. The reason the United States became the most powerful economic nation in history in only roughly 200 years is because there is incentive to work and produce. If you work hard or come up with a better product, YOU live in a better home, drive a better car, take a nicer vacation, not everyone else. In communism, everyone works down to the lowest level at which you can maintain your job (kind of like the US Civil Service). When liberals take more money from working people for socialist-like economic redistribution programs, they remove the incentive for people to work harder. A graduated tax table does the same thing. Graduated tax brackets are the driving force behind loopholes and tax cheating to reduce income levels on paper.

So, as the Democratic candidates continue to promise bigger government (meaning more taxes and more regulation), they spur contributions to the McCain candidacy from business and people who earn income. McCain should send Obama a thank you card.

Embellishment and Hillary Clinton Fatigue

How is it that any politician running for national office thinks that they can get away with embellishment, lying, or misleading statements in the modern age of communications? How Hillary Clinton can relate a story of “running under sniper fire” when video exists of the actual events is beyond me. In recent history, Dan Rather was run out of town for forgeries, Barack Obama’s minister’s sermons were exposed, Gary Hart had pictures of his affair exposed, Eliot Spitzer had his prostitution usage exposed, Nixon had tapes in the White House, Bill Clinton left evidence on a dress, Kwame Kilpatrick had 10,000 text messages, and on and on. There is virtually nothing that happens of consequence that doesn’t leave some trail of evidence.

Hillary Clinton started out behind the eight ball. People already had, at least independents and conservatives, an opinion of her as a scheming, no trick too dirty political opportunist. Her campaign had to be, in part, an effort to convince people that the impression was false and that she was genuine. Moving to New York to be elected certainly hadn’t helped that view. Everyone, even Democrats, knew that the move was political opportunism. The Clintons always complained about the “politics of personal destruction” and then were the foremost practitioners of it. Hillary Clinton had to run an almost perfect campaign in order to offset that image. To the Democrats, she was the “heir apparent” to the Presidency and the primaries were to be a formality (thus, the unimportance of super-delegates). In fact, the super-delegates were supposed to get the nomination process over more quickly by squashing any second place usurper who dared to make it a contest. What the Democratic leadership had not counted on was the appeal of someone other than Hillary Clinton. Make no mistake, Barack Obama is an appealing candidate, but a large part of his appeal is that he is NOT Hillary Clinton. Recent polls have shown that 19% of Obama supporters would vote for John McCain if Hillary Clinton is the Democratic nominee. That speaks volumes about the opinion of Democrats. In the Michigan primary, without Barack Obama on the ballot, almost 40% of Democrats did not vote for Hillary Clinton. They preferred “none of the above”. Many Democrats have been dismayed with what the Clintons did to the Democratic Party for a long time but always held their tongues because they were convinced that Hillary would be President. The haters of President Bush feel the Clintons were responsible for him being elected. Now that there is another viable candidate who is actually leading her in delegates, the truth is coming forward. There are a lot of Democrats who don’t like her in a big way and never did. Combine that with the fact that Republicans loath her and it makes for a tough candidate to elect. If she was winning big, the Democrats who dislike her would hold their noses and vote for her but now they have an alternative and they are jumping on that train.

The latest Bosnia embellishment is not surprising given her history of similar episodes but it is more revealing of the Democratic Party as a whole as they use it to again justify why so many would support anyone else. In a column just before New Hampshire I wrote that I didn’t think Obama had much of a chance. I clearly underestimated the undercurrent of Democrat desire to get away from the Clintons.

The Democratic Fondue Pot Melt Down

I have recently began reading the comments section below some of the news stories on the web and have noticed the visceral angst among the Democratic voters about the Clinton/Obama race. To believe the Democratic Party can come together between the September convention and the November election unless they resolve their candidacy issue before the convention might be wishful thinking. The blog commenters are inflamed and displaying a lot of vitriol. It has gotten down to a lot of "yo momma" types of comments. The two sides are building a lot of genuine animosity against the other.

To try to look at the options somewhat rationally, let's look at the likely general election tactics:

Obama versus McCain is a large contrast (young vs old, ultra liberal record vs moderate/conservative record, black vs white, etc.); Clinton vs McCain not quite as much (woman vs man, mostly liberal vs moderate/conservative) and keep in mind that Clinton/McCain have voted the same way many times. The problem Clinton has against McCain in the general election is that all the arguments she uses in the primaries against Obama don't work about McCain. Therefore, she will have to do a 180 and run with Obama's arguments of change. Her arguments of: experience (McCain has a lot more), legislative accomplishments (McCain has a lot more), working on bipartisan bills (McCain again), ability to be Commander in Chief (She isn't in the same zip code) will not sell when looked at closely. Therefore, she shouldn't distance herself from Obama too much because she will have to use his platform of unity/change in the general election. However, by using Obama's platform, she will become another "flip-flopper" in the eyes of the public. Obama would have it easier because he will run on his current platform of unity/change. Obama will have a problem there. His record shows that he always votes with the liberal block and has a record of not supporting bipartisan bills. That makes his "unity/bipartisan" theme a tough sell to make. Additionally, he has been knocked off his pedestal (ironically by the Democrats, not the Republicans) and now appears to be a regular politician. When evaluated as a regular politician, he has almost no accomplishments and negligible experience, when examined closely.

Add to those problems a really bad case of timing. The Democrats have been trying to sing in chorus that the Republicans have a "corruption" theme. However, all the latest scandals (NY governor, Detroit mayor, etc.) have been Democrats. Additionally, their own primary system process is beginning to look corrupt. If you really look at Obama/Clinton, there is much more similarity in their positions than differences. The Democratic Party is destroying itself over little details, egos and personalities. Someone needs to do a sanity check. Howard Dean is really falling down on his job. They are at risk of giving this thing away from within.

The Democratic Soap Opera♦

It is really interesting to watch the latest in the Democratic Party nomination process. Barrack Obama still leads in delegates and it is pretty far-fetched to see Hillary Clinton catch him mathematically, given the proportional distribution system the party uses in their nomination process. It is also apparent that the Clinton campaign is getting pretty desperate because they have begun to try to destroy Barrack Obama. I have always found it ironic how the Clintons have always wanted it both ways. When their actions are examined closely, it is either a "vast right wing conspiracy" or "the politics of personal destruction". But every time they find themselves behind the eight ball, their tactic is always to try to destroy anyone who gets in their way (e.g., Gennifer Flowers, Paula Jones, Ken Starr, Kathleen Willey, etc.).

Barrack Obama is facing a tough fork in the road. His campaign has been trying to remain positive and to set a new tone but if he doesn't respond to the Clinton attacks, he will appear weak. Since everyone knows that Clinton will stop at nothing to achieve her ends, making vicious attacks doesn't affect anyone's opinion of her, sadly. However, when Obama fights back, she can claim he was facetious in saying he wanted to run a positive campaign. For her, it is a no lose strategy because without it, her campaign is lost, anyway.

The interesting fact is that, on most substantive issues, there is little to no difference in their respective policies. To see so much blood-letting over no real policy differences just points out the egotism in both candidates. It certainly follows since most people who go into politics tend to be egocentric. If the race really was about issues, it would be much less rancorous.

The real shame in all this is that the Democratic Party is taking an election that should be a walk in the park and are trying to snatch defeat from the jaws of victory.

The Rhetoric of Electioneering

The buzzwords currently flying around about the current election cycle are "experience" versus "change". After an eight year term by any President, the election is always about change. Eight years always tires the public of whoever the sitting administration happens to be.

It is interesting to watch the Democrats. particularly Hillary Clinton going down in flames as she argues for herself on the "experience" side. In fact, the candidates with actual experience have all failed to gain any traction. For a resume, you can't get much better than Bill Richardson (Governor, Ambassador, Cabinet-member, etc.) but he never made it out of single digit poll land. Joe Biden and Christopher Dodd were long term Senators and received little support. The fact that they sounded like raving maniacs trying to attract the attention of the media that they never received probably didn't help. The media long ago decided that the Democratic race was Clinton, Obama, and Edwards and basically didn't cover anyone else.

Clinton constantly touts her experience. What experience? She was an attorney in an apparently disreputable law firm. Then she was the wife of an elected official who managed to screw that up. Finally, she is a second term Senator in the carpetbagger tradition who has no significant legislative accomplishments. How does that translate into experience? Simply put, it is the best argument her campaign could come up with to put up against Obama. Obama shouldn't even be a Senator except that his opponent who would have beaten him dropped out of the race. He won against Alan Keyes (essentially a forfeit). He has done nothing in the Senate. Therefore, Clinton thought she could use that argument against him. Big mistake. After an eight year administration, having a nothing record is probably an advantage. Edwards is not really a factor. There is virtually no chance of him being elected. The reason he didn't run for re-election in North Carolina is that he knew there was no chance he would win.

On the Republican side, Huckabee has emerged in Iowa to the surprise of most. He will get little support in New Hampshire but may do well in South Carolina. If he does, it could represent a sea change in American politics. Mitt Romney continues to decline in popularity because he represents the status quo (big money, negative campaigning). While studies show negative campaigning works, the public dislikes it intensely. Romney is creating the impression that he is trying to buy the election, and will do anything, no matter how smarmy, to win it. It is not a way to get popular. Huckabee's strategy of not answering with attack ads may not work, but if it does, it could change future elections to the positive. McCain has taken a page from Huckabee's book and stayed a bit more positive than usual, despite the fact he is well known as (to put it mildly) an acerbic character. Basically, he is a prick. However, that could serve him well as President. Giuliani decided to tank Iowa and New Hampshire. The problem there is that if you get off the media radar, it is hard to get back on it. It will take a big showing somewhere else soon to get back in play when you have a lot of negatives. Thompson is both figuratively and literally a non-starter. You can't make an announcement on the Leno show than never show up again. Ron Paul comes off as your nutty old uncle who no one ever takes seriously. He has no shot.

New Hampshire is today. It will be interesting.