The Anonymity of the Internet

There is an interesting case I heard about on the news which I am pondering. A model, Liskula Cohen, is suing Google to find out who is responsible for a web site devoted to trashing her photos and personality. It brings up some interesting arguments.

There will, of course be those who argue for the First Amendment right of free speech. Before I partially agree with that point of view, I feel obligated to point out that the right of free speech was intended to be for political speech. It was the view of the founding fathers that to have a functional democracy, the population should be allowed to hear all sides of issues to make informed judgments. In order to have representative votes, the population has to be educated on political debates. I don’t believe they ever intended exotic dancers to run around naked as part of their first amendment rights. Therefore, I believe the First Amendment is critically important to a democracy when interpreted in that light.

That being said, before the internet, when you spoke out or wrote about a subject, any subject, it was easy to recognize who the source of the information was. That recognition allowed the subject of the discussion to respond accordingly to the speaker or writer. The internet has now allowed anyone, anywhere to widely broadcast any information, factual or not, anonymously without directed response and without ever being held accountable for the content. In law, one of the fundamental rights of trials is to be able to face your accuser and present your side of an issue. It is precisely the anonymity of the internet that allows cowards and provocateurs to make slanderous accusations without ever being held responsible.

In order to win a case of libel in court, one must show that the information presented is false, that damage has been done, and most importantly, that there was intentional malice in the presenter’s publication of the information. This is where almost everyone, particularly news organizations, gets out of responsibility for their false information. They just say they never intended to hurt anyone. In fact, for most public figures, it is assumed that lies about them are par for the course. Whether a Vogue model is a public figure can be debated. The question is more about where the anonymity line is drawn. The fact that some coward calls a model a “skank” is not Earth-shattering but the fact that the person cannot be identified means that all restraint is gone. What if the person is publishing classified data or advocating open rebellion? I can already hear people saying, “But that is against the law!” or "It is only an opinion". Slander and libel are also reasons to be held accountable. The only difference is that it is a civil action, not a criminal one. Can someone knowingly publish false facts or intentionally hurtful information on the internet anonymously with impunity?

Let’s take a couple of more examples: Can someone intentionally publish misleading information about drug dosages which leads to many people taking overdoses of a medication? Can someone intentionally publish inaccurate instructions on how to put a product together which cause injuries to the users? Can someone publish instruction on making home-made weapons? Once again, the arguments would be, “These things cause harm to the users”. But one could also argue that trashing a professional model’s reputation could cause her to lose work and therefore harm her financially. She would, of course, have to show that harm in a court case. But the problem in all those scenarios is that the publisher of the information has no responsibility at all if the publisher remains anonymous. If someone published the above mentioned information in print or spoke it in public, the source is easily identified. I believe that the internet is a valuable tool and cannot conceive of not having access to it but it should not be a wall of privacy for every ne’er do well on the planet to hide behind as they perform nefarious deeds. I also believe that Google and all other internet service providers have an obligation as citizens to not assist people in either committing crimes or causing intentional harm. To the person who made the comments, come out of your mother’s basement, step up to the plate and identify yourself. If you can’t take on a ninety five pound model, you are one sad sack of feces.

Term Limits and Corruption in Politics

As I have watched the political landscape over my adult life, I have seen more and more of the ineffectiveness of the legislative branch. I am convinced that many of the problems which we all see regularly playing out on the evening news and the twenty-four hours news outlets could be avoided by term limits. I have written earlier on how the US Constitution was purposely developed in the way that is was to make the passing of new law and the changing of existing law difficult so as to not be subject to whim and short term fads and trends. What we see now is not what the founders intended.

The founding fathers embraced the concept of the citizen-legislator. This is when a person becomes successful in some private endeavor and then voluntarily leaves his vocation to temporarily serve in the government to try to better the state for all. The citizen-legislator does not join the government to advance his/her own interests but serves to improve the lot for the people. After a period of service, the citizen-legislator leaves government voluntarily to return to their vocation, content in the knowledge that they have served their country and that others will carry on in their stead. It is a way to pay back the country for the opportunities which allowed the person to become successful in the first place. It is not done for personal enrichment or glory, it is altruistic.

We have devolved to the lowest political scum, the career politician. The only goal of the career politician is to remain attached to the public teat for as long as possible. Those who are career politicians may have the public good at heart as a coincidence, but their primary goal is always to maintain their office and to consolidate their power. Let us examine some of the problems with the career politician.

Anyone who spends their entire life in public jobs has no idea how the overwhelming majority of people in the United States earn their living. I will use some examples throughout this discussion. How a very wealthy Senator who never held a job of consequence in his life (e.g., Edward Kennedy) claims to be champion of the working man amazes me. The idea of the citizen-legislator was to bring people with real-world experience and knowledge to the legislature so that people who understood commerce would craft laws about commerce. People who understood the effects of taxes would write laws controlling taxation. People who held jobs would create law which encouraged job creation. People like Bill Clinton who never had a job not paid for by tax payers are stereotypical of what the founding fathers did not want. The Civil Service, not elected office, is the place for people who want to make a career in government.

There is no reason to consolidate power into a kingdom if you know you will be leaving office and will no longer be King. Lobbyists pay off the more senior and more powerful legislators precisely because they know that those people will never leave office voluntarily. You might have noted that every time you see a Representative or Senator charged with misconduct or ethical violations, it is always some one who has been in Congress a long time (Stevens, Frank, Dodd, Rostenkowski, Hastert, Rangle, Jefferson, etc.) That is because it makes no sense to bribe someone who doesn’t hold power to promote your agenda. The saying that “absolute power corrupts absolutely” could have been the motto of the US Congress. Quoting Alexander Hamilton in Federalist number six, "Men of this class, whether the favourites of a King or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquillity to personal advantage, or personal gratification."

The career politicians always argue that the people have a right to vote whoever they want to into power for as long as they want. Of course, the people don’t know about the many back room deals, gerrymandering and bribes which go into continuously getting those same politicians re-elected. That argument might work if there was a level playing field but there clearly is not.

The career politicians also argue what a wonderful job they have been doing for their constituents. While this may be true and many unnecessary tax-funded projects may have been brought back to their political contributors in their home districts, the arrogance of the argument is startling. If you are, for example, a Senator from New York, will you honestly argue that there is no one else in a state of millions of people who could do a good job as Senator? Does Ted Stevens have to remain a Senator (and crook, apparently) for thirty six years? Is there no one else in the State of Alaska who could do the job? He stayed there for that long and you see where it ended up. Joe Biden has been a Senator for twenty eight years and is now actively seeking to have his son taken the seat from him. Is that an elected office or a kingdom? The King is now Vice President; long live the new King, son of the old King.

My suggestion is that when the amendment restricting the terms for the Presidency to two was passed, it didn’t go far enough. That is not unusual because Congress almost always includes a codicil in every law they pass which states that the law does not apply to Congress. I think that five terms (ten years) is enough time for any representative to do some good then go home. Two terms (twelve years) is enough for a Senator. If you can’t get anything done in twelve years, you need to be replaced on principle. A system like that would set up a staggered rotation, eight years for President, ten years for Representatives, and twelve years for Senators. The idea of Robert Byrd tottering around the Senate, barely able to speak and stay awake, is ridiculous. By the way, if you want to see how absolute power does absolutely corrupt, go see Robert Byrd in West Virginia. You take the Robert Byrd Highway across the Robert Byrd Bridge and the Robert Byrd Dam, turn onto Robert Byrd Parkway past Robert Byrd Park, Robert Byrd Elementary, and Robert Byrd High School until you find the Robert Byrd Federal Building. There may be something in West Virginia not named after Robert Byrd but I am not sure what that might be.

Art and Public Funding

There is always an ongoing debate about public funding, as in tax money, being used to give grants to art projects through the national Endowment for the Arts (NEA) and other public mechanisms. I have had the same debate a number of times over the years and today I was reminded of it so I thought I would make an entry about this subject.

The first problem with the system is that art, by its very nature, is so subjective that the difficulties in determining which projects should be funded are problematic. It will always be left up to the interpretation of the leaders of the NEA what constitutes worthwhile projects. Inevitably, there will be public disagreement about whether a project is worthy. A large part of this is that the very people chosen to be a part of the NEA are not going to be in the mainstream of American education or values. Anyone who believes that a crucifix in a jar of urine is not offensive and is worthy of public funding is clearly outside the mainstream of public opinion. The art community will, of course, argue that the very nature of art is to be provocative. While that may be true, it in no way obligates the use of tax funding to subsidize the making of such projects.

My older brother, who is one of the smartest people I have ever known, once told me that a project like that was art because it “evoked an emotional response”. I argued in response to him that if someone was to make a bowel movement on the hood of my car, it would certainly evoke an emotional response in me and I wouldn’t consider it art. Additionally, what I would do to that person would certainly evoke an emotional response from him/her and that person, while traveling to the medical facility, would not consider my response performance art. It would, however, be nice if the police said no charges could be filed because I was just doing some “art”.

After the conversation with my brother, the analytical side of me reared its head and I decided I needed some objective criteria for what I considered art. So, here are a few that I came up with in a short time:

1) If I can do it, it isn’t good. I am absolutely terrible at painting anything other than a wall in a house. If art work consists of randomly throwing something at a canvas, scribbling nonsensical figures, pouring something to have it splatter, dropping something out of a flying plane, or especially, using bodily fluids, it sucks because I can do that. I am not sure who decided that three I-beams stacked up and painted orange is art but you see that same crappy thing in front of buildings everywhere. Once again, I can do it, so it sucks.

2) If you have to explain it to me, it isn’t good. Quality pieces of art have some intrinsic beauty or force that allows one to just know it has merit when seen. If I have to listen to some long-winded explanation about how it represents mans constant struggle to revive the extinct Dodo bird, the artist is not an artist, he is a bullshit artist. I can look at anything Rembrandt painted and just be awed by the lighting and mastery contained in the painting. Anyone can look at a Michelangelo statue and have no question of the mastery in his hands. I don’t need Rembrandt or Michelangelo to come back from the dead and explain it to me.

3) If you can’t sell it, art is your hobby, not your job. I play the guitar pretty well and sing while I am playing. That does not make me a professional musician. I do not expect the United States government to fund my upcoming CD costs. I don’t believe that Brad Paisley, Josh Groban, or the Rolling Stones expect funding for their recordings, either. If no one likes what you are producing enough to purchase it, you should at least consider the idea that your art work is not good. There are thousands of “actors” in Los Angeles who have never made dime from the entertainment industry. If you are making your living bussing tables, you are a potential actor but not a professional one. In fact, you are a bus boy. A struggling artist is a pseudonym for someone who can’t make a living from art. My previously mentioned brother is a very successful writer but he always had a job in addition to writing and didn’t expect taxpayers to subsidize his work.

4) Funding for art education is a legitimate use of tax dollars. The idea of having a broad educational experience for children in public schools, including art and music is a good thing. When you consider the current state of commercial television and the pop recording industry, it is clearly in the interest of all people in the country to have kids exposed to some quality. Classical music, jazz, poetry, classical literature, and art all deserve a place in education. I will also add that they should be in addition to, not in place of, reading, mathematics and science. I would much prefer kids to know the story behind the 1812 Overture than what “I’m gonna do with all the junk in my trunk”.

5) Good art and literature stays good. Charles Dickens books are still good all these years after he has departed. Leonardo DaVinci's works still inspire awe despite the hundreds of years since he produced them. He is another one who doesn't have to come back and explain them. Anything that is trendy and doesn't stand the test of time exposes itself for what is is... bad.

When the outlay of public funds for art projects is left in the hands of a small group of people chosen because of their out of the mainstream radical views, it is inevitable that curious and outrageous decisions will be the result. Their response is the typical left response of “You just don’t get it” because anyone who disagrees with them must be stupid. Recognizing trash when you see it is not one of the prerequisites for stupidity, however, not recognizing it certainly is.

Judical Activism

In all of the media frenzy over non-issues and personalities in the last national election, the most lasting historical effect of any President's administration was mostly overlooked. The choice of Justices to the US Supreme Court and Judges to the Circuit Courts of Appeal and the Federal District Courts have a profound effect on the lives of the population of the country. While the issue was largely overlooked, judicial activism is a constant danger to the make up of the government. It amounts to the judicial branch subverting the very document they are sworn to uphold and interpret.

When the founding fathers of the United States designed the mechanics of the government, they made the passing and changing of law difficult. To people desiring changes in the law, it can be frustrating to watch the sniping and deliberations which go into the passage of legislation. It has been famously said that “no one should see how sausages or laws are created”. It seems inefficient and more difficult than it needs to be. That is not coincidence. It was designed to be that way from the beginning and it is very intentional. At the time that the ratification of the United States Constitution was being debated, there was a lot of wariness of a strong central government and allowing the central government too much power. After all, the country had just fought a long and bloody war to get out from under a too powerful government which was not responsive to the needs of the people.

It was precisely because of the suspicion that central government which was too powerful would be subject to trends and to shifting political winds that the constitution was written the way it was. It takes deliberations in both the House of Representatives and the Senate separately, and then agreement between the two bodies before the bill being considered is even sent to the President. All of those steps were meant to ensure that fads and short-sighted trends were not constantly causing changes in law which were fickle and subject to whim. Political preferences in the United States are cyclical and the founding fathers knew that in order to have stability, the law must have some consistency.

Keeping those ideas in mind, the changes which are, by design, most difficult to make are changes in the constitution itself. A change to the United States Constitution requires involvement of all of the state governments and two-thirds of those governments must ratify the amendment. This is a Herculean task by any measurement. It is supposed to be. All of the articles of the constitution were hammered out in long debate and compromise in which all sides strenuously argued the merits. It is not something to be casually changed on a whim.

The constitution specifically delegates the power to create law to the legislative branch. The legislative branch is designed to be most representative of the governed population. Any idea without merit will not get through the scrutiny of the elected legislators because in short order they will be facing those same people asking to be re-elected. The country tends to be reluctant to wholesale radical change and so these processes allow progress to be generally very methodical with some notable exceptions. By definition, every constitutional amendment is a big change.

Liberal political thinkers got frustrated by their inability to pass legislation that agreed with their political views so they found a way to get around the constitution. They found activist judges. The idea is that they can find a judge who agrees with whatever interpretation of the law they want codified and they argue a case in front of the judge. The judge then rules that the law is only constitutional if it is rewritten the way the judge wants it. In that way, the legislature becomes powerless to change or adapt the law in any way other than the judge wants it.

There are a number of problems with this approach. The first is that the legislative branch is delegated the authority to create law specifically because they are accountable to the people in open elections. Federal judges are political appointees who, except in cases of malfeasance or criminal conduct, are accountable to no one. The second problem is that case law from one area of the country can be used as precedent in another part of the country. This allows creative and radical decisions by rogue judges to spread like malignancies across the country. It is a well documented phenomenon that liberal lawyers "shop" cases around until they find a favorable federal judge and try the case in that district or circuit. The third problem is that an isolated federal judge making a decision creating law removes the entire deliberative process installed in the constitution specifically to prevent trendy and whimsical changes in federal law.

A constitution which constantly changes shape like an amoeba and adapts without deliberation and debate and the input of the legislatures is no constitution. There is no stability and no consistency and besmirches the system of government on which our country’s very existence is based. Judges who create law are not interpreting law, as the constitution intended and specifically states, they are pseudo-monarchs creating law without accountability. The American Revolution was fought to divest this country of just such a system of government.

Olympic Judging and Other Impressions

Has anyone else noticed the seemingly endless parade of screw jobs in the Olympic judging concerning the Chinese athletes? Don’t get me wrong, some of them are just awesome. The guy on the still rings looked like Conan the Barbarian and did stuff that seemed impossible. The female springboard diver was clearly the best. But, when a Chinese female does a vault and falls to her knees and gets the same score as the All-Around Champion who sticks her vault, something stinks. Before the gymnastics fanatics go crazy, yes… I understand start values, deductions, etc. and the way the system works. Nastia Liukin also nailed her uneven parallel bars routine and scored lower than the Chinese female with multiple obvious faults. One judge scored her execution 9.0 and the Chinese girl 9.3 despite many more obvious mistakes by the Chinese gymnast. I don’t think it is a conspiracy but may just be a bunch of judges trying to please the home fans. The overall impression stinks like old fish. Bela Karoly did have an excellent point when he suggested that the Olympics get rid of the 16-year-old rule. The Chinese girls were clearly not sixteen but certainly were good enough to be in the competition. Why make governments falsify passports when everyone can clearly see they are underage? If they are good enough to compete, let them.

This brings me to the larger point. I absolutely detest any sport requiring judges. Over the years, I have seen so many screw jobs in: diving, gymnastics, boxing, and absolutely worst of all, figure skating. I much prefer the sports like swimming and track & field. Here is a line. Everybody line up on it. Whoever gets to that line over there first is the winner. Simple and pure. Or, whoever throws this heavy thing the furthest, wins. Simple and pure.

There are a lot of Americans complaining because softball and baseball are being dropped from the Olympic Games. I don’t believe they should have ever been there. I know there are professional track athletes but I would generalize that any sport with popular professional leagues probably shouldn’t be an Olympic sport. Olympic tennis? Give me a break. I was as excited as anyone to see the American/Russian hockey game back in the day but those were college players. I don’t want to see the NHL, NBA, NFL, MLB, or FIBA rehashed like another set in a series of pick up games. Some sports only get attention during the Olympics, like rowing, real wrestling, weightlifting, badminton, etc. Despite the sacrifices made by those dedicated athletes who don’t get big endorsement deals and huge contract salaries, all of the TV coverage seems to be of the NBA stars, and the bikini-clad beach volleyball players who are making a fortune regularly. I guess the up side to beach volleyball is that the outfits piss off a bunch of fanatic Mullahs.

On the positive side, there was some great sportsmanship and attitude among the swimmers. Dara Torres, who granted has more maturity than others, had the head official hold the start of a heat so another competitor could change into a non-ripped suit. The girl did not qualify for the final. If she hadn’t swum in that heat, she would have had years of preparation and training and not even had the chance to swim. She was not a teammate of Torres. It was a class move by a class athlete. Torres also showed her class with her reaction to losing the 50-meter freestyle by .01 seconds. She is a real role model. Milorad Cavic, the swimmer who lost to Michael Phelps by .01 seconds showed great class after the race. There were several American swimmers, I believe Rebecca Soni and Katy Hoff, who swam American record times and did not win their races. Instead of whining about it, they expressed joy at swimming their best times ever. That is how it should be. If you do your best and someone else is better, congratulate them.

Another interesting thing I haven’t quite figured out is the disparity in distance versus sprint athletes. Almost everyone in the sprint finals was from the Caribbean area and almost all the distance racers are from Africa. It causes one to wonder if it is a cultural thing or if it is the altitude training in Kenya versus the sea level training in the islands. I have to admit that is was fun to see Usain Bolt and Shelly-Ann Fraser celebrate their wins because they were so happy. Bolt cared nothing for the world record. He just wanted to win the race. The United States doesn’t seem to have any significant distance runners. Even the ones like Bernard Legat are from Kenya and he did not qualify for the final.

All told, the Olympics, to this point have been schizophrenic. The greatness of Michael Phelps and Usain Bolt’s accomplishments have been stirring but the judging and lack of coverage of the lesser-known sports is disappointing.

Judicial Activism and the Courts

I have become more and more interested in this subject recently after a number of court rulings, particularly by the United States Supreme Court. I have looked into several interesting decisions specifically because of the liberal use of the courts to establish law. My previous posting was about the danger of more liberal nominations after the next election should Barack Obama win the election and the Democrats control the Senate. This time let us look at a couple of specific cases.

The District of Columbia Gun Control Law (Heller versus DC)

Mr. Heller is a man who legally carries a gun during the performance of his job in Washington, DC. He is trained to use it and carries it when at work. The DC gun law denied Mr. Heller the right to possess a firearm at home despite his training and demonstrated ability to carry a gun safely. Mr. Heller sued based on the interpretation of the Second Amendment of the Constitution that the individual right to own guns for legitimate purposes is not to be infringed by state or municipal law. DC maintained that its interest in the protection of the citizens of DC was sufficient cause to pass the law. In a 5-4 ruling today, the US Supreme Court struck down the DC law, causing howls of liberal protest and celebration by conservatives. Justice Scalia wrote in the majority opinion that while the efficacy of protecting the citizenry by restricting gun ownership is debatable, the power of the court to contravene the Second Amendment is not debatable. Therefore, the Supreme Court has the power to review and interpret law but does NOT have the power to make law. It therefore follows that if the US Supreme Court does not hold this power, no lower court does.

The landmark case of Marbury vs Madison confirmed the idea of judicial review even though the concept had been informally in place earlier. In the Marbury case, Chief Justice John Marshall found that there was a conflict between the Constitution and the Judiciary Act of 1789. Since the Judiciary Act was a law passed by Congress, the question became whether Congress could legitimately pass a law which conflicted with the Constitution. Marshall wrote that law that conflicts with the Constitution is not law and therefore the Constitution always wins out. Since the Constitution is the highest law of the land and judges swear an oath to it, how can a judge issue a ruling in conflict with it? Marshall’s point was that there was no reason to have a Constitution if Congress never paid attention to it and passed laws in conflict with it.

One of the more interesting things which came out of this decision is how the four liberal justices (Souter, Stevens, Ginsburg, Breyer) all found a way to justify the law despite it being in conflict with the United States Constitution. The Canon of Constitutional Avoidance states that if an issue can be interpreted without causing a constitutional conflict, it should be interpreted that way. In this case, there was no way to avoid the conflict because the law directly conflicted with the Second Amendment despite any good intentions of the DC government.

Eminent Domain (Susette Kelo versus City of New London)

The concept of Eminent Domain has been around for a long time. The idea is that a government can seize property from an individual property owner for use to benefit the community at large. Per the Takings Clause of the Fifth Amendment, the property owner is compensated for the value of the property, though often not to their satisfaction. This has historically meant takings for uses like hospitals, transportation centers, public utilities and other obvious public welfare projects, usually tax-funded. For completeness, eminent domain does not only apply to real estate properties, it can be used by the government to seize military needs, trade secrets, patents and other intellectual properties. The difference in the Kelo case was that property was being taken from an individual to be used for a private venture for profit by other private investors, not the government. The government of New London argued that the improvements to the property would increase tax revenues and the business venture would be good for the citizens at large. Kelo argued the government had no right to seize property from an individual for another individual. The taking of property for profit subsequently made its way to the US Supreme Court.

The case was decided 5-4 in favor of City of New London setting off nationwide protest. The majority were the five liberal justices and Justice Anthony Kennedy. In opposing the ruling, Justice Scalia argued that ruling in favor of New London would eliminate the distinction between private and public property and that the only private property would be property the government was not interested in obtaining. After the decision, reaction was swift. Polls showed between 65-97% of people interviewed disagreed with the decision. President Bush issued an executive order banning similar eminent domain procedures by the federal government. More than forty states have enacted laws to prevent takings like the Kelo case. This is another case of the liberal US Supreme Court justices making law in conflict with the constitution. The Fifth Amendment specifically states “nor shall private property be taken for public use, without just compensation”. The liberal justices substitute “public purpose” for the actual phrase “public use”. This means that any wealthy business can have the local government condemn (take) anyone’s property solely with a promise to have a more successful business. This is clearly an example of liberalism in that the government is always smarter than its citizens and always knows what is best for individuals. This decision also preferentially gives advantage to the wealthy and powerful.

Both of these cases point out the need to avoid nominating judicial activists to the courts. President George W. Bush can be accused of a lot of things but he has certainly been a lot more successful in nominating Supreme Court justices who interpret rather than create law than either Presidents Eisenhower or Reagan.

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.