Friday, April 15, 2005

Taking the "Jew" out of "Judeo-Christian"

The Daily Kos reports that many Jews aren't happy with being lumped together into some amorphous "Judeo-Christian" concept to engage in demagogic attacks on the judiciary.

These are the people who make me proud to be Jewish. Way to go, and maybe next time radical Christian fundamentalists will remember who they speak for, and who they don't.

Muller KOs Vieira

So most folks are now familiar with conservative activist Edwin Vieira's call for Stalin-like tactics against federal judges. UNC Law Professor Eric Muller responded by calling for a federal investigation, on the grounds that it is at least a potential threat against the judiciary (which is a crime). Vieira then posted a comment on Eric's site saying that wasn't what he meant at all, and it was "character assassination" to suggest otherwise. And Muller obliging takes the bait to smack Vieira down again.

This is the voice of the modern Republicans. Their lust for power knows no bounds.

Activist Governors

Time to add to the list: Activist Judges, activist journalists, activist legislators, and now activist governors.

The immortal Family Research Council, in an ironic twist I'm sure eludes them, is praising the Oregon Supreme Court and blasting the Oregon state governor. As I blogged, the State Supreme Court ruled that same-sex marriages were barred under a constitutional amendment passed by voters in 2004. However, the Court specifically expressed no opinion as to whether civil unions, which were not barred by the amendment, would be permissible (required?) under the Oregon constitution. So the governor of the state has indicated he'd be willing to recognize civil unions as an alternative to marriage, so as to guarantee gay citizens their full rights under law. The FRC's response?
Yesterday, the Oregon Supreme Court unanimously nullified 3,000 "same-sex marriages" conducted a year ago in Multnomah County, saying, "The County did not have authority to issue the licenses for the marriages in question." The court noted that Oregon voters approved a constitutional amendment last November that defines marriage as between one man and one woman. When the people are given a voice on this important issue, judges cannot help but acknowledge the will of the people and the rule of law. The people of Oregon have clearly supported marriage as a sacred institution. Oregon Governor Ted Kulongoski (D), in an end-run move around the people, seeks to impose civil unions on the citizens of Oregon. Such a move only leads to a devaluation of traditional marriage and goes against the intentions of Oregon voters who passed the marriage amendment...The Oregon Supreme Court..."get[s] it" the people define our culture, and the people overwhelmingly support traditional marriage. [emphasis added]

Damn those activist governors, getting in the way of the unelected judiciary! It's time we teach those democratically elected tyrants who's really in charge of this country!

How Appealing has done an incredible job rounding up coverage of the Oregon case. Check it out if you want more.


To borrow from the immortal words of the Instapundit.

The Onion makes my day. What do people think about Tom DeLay? A snippet:
"I heard Tom DeLay's blood was in the water and the sharks were circling him, but unfortunately, it turned out to be a metaphor."

Ask and Ye Shall Receive

The stellar new blog Prawfs Blawg notes the passage in Connecticut of Civil Unions legislation which grants gay couples virtually all the same rights as heterosexual married couples (Balkinization points out the one niggling exception). So, they ask, since this bill was passed via a democratic branch of government, how will the far right flame this bill? As they put it:
"Query: The theocrats have attacked VT and MA court opinions as judicial meddling in political questions. I wonder how they will attack this one? Perhaps they will finally admit to the real issue: the culture wars have nothing to do with principles like states' rights or judicial activism. Rather, it is all about politics, and as soon as those principles are no longer useful, they will cast them aside and find some new reason to criticize legislation supported by the majority."

Admit they have no principles? Haha, don't be silly! The Family Research Council instead argues that a bill passed through the democratic legislature isn't really democratic at all:
"The Family Institute of Connecticut and the Connecticut Catholic Conference recently announced the results of a jointly commissioned poll which shows that seventy-six percent of Connecticut residents want the chance to vote on a constitutional amendment defining marriage in Connecticut as the union of one man and one woman. The Connecticut house should reject the senate bill and Governor Jodi Rell (R) should veto any civil union legislation that reaches her desk. If legislators are fearful of defending the cornerstone of society, then they should let the citizens have an opportunity to do so by voting on an amendment to the state's constitution defining marriage and its benefits as between one man and one woman.

You got that? The new standard is, if it isn't in a referendum, it isn't really democratic. And now along with our activist judges and activist journalists, we can add activist legislators as well. How's that for a principle?

Thursday, April 14, 2005

Which Witch?

The 4th Circuit Court of Appeals released its ruling in Simpson v. Chesterfield County Board of Supervisors today. Sometimes, there are cases where one disagrees with the outcome as a matter of policy but finds it reasonable as a matter of law. This case was not one of them.

Simpson deals with prayers given at meetings of, you guessed it, the Chesterield County Board of Supervisors. Essentially, the board has a big list of religious groups, mostly churches (given the location of the county) but also synagogues and mosques. The County then sends out invitations to the lot of them, and allows any respondees to give invocations on a first come first serve basis. The suit came when Simpson, a Wiccan, asked to give an invocation. The county refused her, with their attorney saying "Chesterfield's non-sectarian invocations are traditionally made to a divinity that is consistent with the Judeo-Christian tradition." How the county can simultaneously argue its being non-sectarian and mandate its prayers stay within the "Judeo-Christian tradition" eludes me. In any event, Simpson sued, asking that the court either declare the system of prayers an unconstitutional establishment of religion, or, alternatively, declare that denying her request specifically discriminates against her on the basis of religion and is therefore unconstitutional.

In addressing the first claim, Judge J. Harvie Wilkinson, correctly in my view, established Marsh v. Chambers as the binding precedent and affirmed that legislative prayer, in the abstract, was not unconstitutional. Wilkinson, incidentally, is reportedly on Bush's shortlist for a Supreme Court spot, making this opinion particularly disheartening. In any event, I personally do not think Marsh is particularly good law, but the 4th Circuit is bound to it and its analysis makes sense. I have no real quarrel with the first part of the ruling.

Where the opinion really begins to go wrong is when it dismisses Simpson's second claim--that the admission of only clergy compatible with Judeo-Christian norms--still contains no Establishment Clause violation. The Court's analysis here ranges from the offensive to the merely incoherent. In Marsh, Nebraska hired a Presbyterian minister for 14 years to preside over prayers in the legislature. The Court here reasoned that if hiring one minister from one denomination did not violate 1st amendment restrictions, then certainly selecting many pastors from many faiths wouldn't. But this is patently absurd. For example, imagine that the county wanted to commemorate racial equality. It might select one person, say a noted civil rights leader, and have her give a speech every year, or month. In this situation, the race of the speaker (specifically, the fact that the county was only representing the views of one race) would be irrelevant. However, if the county instead selected many speakers, then systematically excluded those of a particular race (say, Native Americans), the racial discrimination would be clear. In that situation, the fact that having many speakers seems more inclusive than having only one masks--but does not eliminate--the reality that the county was blatantly engaging in racial exclusion. Similarly, in this case, the county expressly informed Simpson that her petition to give an invocation would be denied because her religion was not part of the dominant tradition. Simpson is not trying to make the county an "object of constitutional condemnation" for its inclusiveness, she is pointing out that the county's inclusiveness is a facade, it "includes" only those religions which the county considers to be sufficiently mainstream to have something worthwhile to say. That is a determination that neither Marsh, nor any other case, permits.

The opinion only goes downhill from there. Where the court moves from being illogical to plain offensive is when it implies that the Judeo-Christian tradition, and only the Judeo-Christian, has transcendental appeal that, in contrast to the cultlike Wiccans, everyone can relate to.
In seeking to invalidate the Chesterfield system, Simpson effectively denies the ecumenical potential of legislative invocations, and ignores Marsh's insight that ministers of any given faith can appeal beyond their own adherents. Indeed, Marsh requires that a divine
appeal be wide-ranging, tying its legitimacy to common religious ground. Invocations across our country have been capable of transcending denominational boundaries and appealing broadly to the aspirations of all citizens. As Marsh and other cases recognize, appropriately ecumenical invocations can be "solemnizing occasions" that highlight "beliefs widely held."

We cannot adopt a view of the tradition of legislative prayer that chops up American citizens on public occasions into representatives of one sect and one sect only, whether Christian, Jewish, or Wiccan. In private observances, the faithful surely choose to express the unique aspects of their creeds. But in their civic faith, Americans have reached more broadly. Our civic faith seeks guidance that is not the property of any sect. To ban all manifestations of this faith would needlessly transform and devitalize the very nature of our culture. When we gather as Americans, we do not abandon all expressions of religious faith. Instead, our expressions evoke common and inclusive themes and forswear, as Chesterfield has done, the forbidding character of sectarian invocations [internal citations omitted].

Nowhere in the opinion does it justify, or even attempt to explain, why Simpson's faith cannot be "wide-ranging, tying its legitimacy to common religious ground." The Court here is caught in a bind: Either Simpson's Wiccan faith shares this common ground with Judeo-Christian faiths, in which case she should be allowed to stake her claim to it same as any other religious person, or her faith doesn't share common ground, in which case it isn't common ground by sectarian ground "common" only to the religious majority. The Supreme Court has itself said legislative prayer that "have the effect of affiliating the government with any one specific faith or belief" are impermissible (Allegheny County v. ACLU, 492 U.S. 573, 603 (1989)). I'd say that it is precisely this paradox which undermines Marsh, but regardless of whether it does that or not, it certainly destroys the Court's opinion here. Skipping over that inconvenient problem, the 4th Circuit asserts that "when we gather as Americans, we do not abandon all expressions of religious faith," happily ignoring the fact that it has just forced one American to do just that.

Oregon Rules Against Same-Sex Couples

The Supreme Court of Oregon has issued its opinion in Li v. Oregon. It ruled that same-sex marriage was banned in the state as a result of the ballot initiative approved by Oregon voters last election, and that the same-sex marriage licenses granted by Multnomah County prior to the election were beyond the scope of county's power and were also invalid.

This case is relatively narrow in effect, since Oregon passed an anti-gay marriage constitutional amendment and since, like in California, the entity which granted the marriage licenses wasn't really granted that authority under state law. One thing the Court expressly did not do was opine on whether the exclusive benefits of marriage--being available only to heterosexual couples--represented a violation of the Oregon constitution. That was the original ruling of the trial court, which the Supreme Court said was untimely. Hence, it still could be argued in future cases.

DeLay Sits Down With The Washington Times

This Interview of Tom DeLay by the Washington Times is just chock-full of quotable material (damn liberal media!). My favorites:

On media reports of his ethical improprieties:
Somebody ought to ask the New York Times why they're shopping an op-ed piece. I mean, that's activist journalism. Somebody ought to look at the organizations and ask the New York Times, the Washington Post, the L.A. Times, Time, Newsweek, AP why they're spending all these resources they are, who they talked to ... are they collaborating with all these organizations that are funded by George Soros and his heavy hitters, and do these organizations ever talk to each other? Of course they do, they have people that are on the same boards. I mean, different boards but same people.

Activist journalism? Sounds like somebody's found a new buzzword.

Then there is this gem:
Mr. Hurt: Have you ever crossed the line of ethical behavior in terms of dealing with lobbyists, your use of government authority or with fundraising?
Mr. DeLay: Ever is a very strong word.

So is "frequently," but you don't hear me hesitate to use it.

How about the role of the Courts? What is it that causes DeLay's vociferous opposition? Over to you:
"I blame Congress over the last 50 to 100 years for not standing up and taking its responsibility given to it by the Constitution. The reason the judiciary has been able to impose a separation of church and state that's nowhere in the Constitution is that Congress didn't stop them. The reason we had judicial review is because Congress didn't stop them. The reason we had a right to privacy is because Congress didn't stop them."

Right to Privacy? Judicial Review?!? This is what DeLay is crusading against? I suppose that it's good he's put it out in the open.

Thanks to Wonkette and Kos for tips. The Moderate Voice also has a nice post on Mr. DeLay up.

Wednesday, April 13, 2005

We Created You...

And thus, Tom DeLay seems to think, we can destroy you (the "you" in this case being the American Court system). The New York Times reports Tom DeLay is ordering the Judiciary Committee to investigate the rulings on the Terri Schiavo case, and recommend possible legislation in response.
Mr. DeLay was not specific about what legislative changes, if any, he would like to see emerge from the Judiciary Committee's review. But in announcing that he had asked Representative F. James Sensenbrenner Jr., a Wisconsin Republican and the committee chairman, to examine the actions of federal judges in the Schiavo case, Mr. DeLay said the House had previously passed legislation limiting the jurisdiction of the courts and breaking up the United States Court of Appeals for the Ninth Circuit, a bill that died in the Senate.

"We set the jurisdiction of the courts," Mr. DeLay said. "We set up the courts. We can unset the courts."

Lovely sentiments. I'd remind everybody that Representative Sensenbrenner was the guy who said "There does seem to be this misunderstanding out there that our system was created with a completely independent judiciary", but at this point we're just par for the course.

I'm guessing this bill probably factors into DeLay's plans somewhere.

UPDATE: I suppose when you think that the judiciary is more dangerous than al-Qaeda this sort of thing makes sense.

Filibusters are Bad! No, Good!

The Family Research Council might want to make up its mind.

What's my position, you say? Well, I'm moderately swayed by the Mickey Kaus/Rick Hertzberg school of thought: filibusters are only okay for judicial nominations, not just any old bill. After all, as Hertzberg notes, bills can be repealed, but judges are forever (or at least for life). The stakes are higher. Filibusters force judicial nominations to the center, whereas without them the President has little or no incentive to not pick an ideologue (a problem especially acute when one party controls the whole of government, and outright catastrophic when that party controls the entire government even though it has only a very narrow mandate). Perversely, the branch of government which should be most zealously guarded against radicalization is, in many ways, the most vulnerable to it. Kaus explains that
"you need the filibuster to force...compromise. When the the Senate votes on ordinary legislation, a President usually has to moderate his proposals to please the various factions within his own party even if (or, rather, especially if) that party is the majority party. President Bush's immigration plan has run into opposition from his party's right wing, for example, while his Social Security plan makes many Republican moderates queasy. Neither plan would make it through the Republican Senate intact even if filibusters were outlawed. But when it comes to Supreme Court nominations, the lingering tradition--however misguided--of deference to the president's selection makes radical choices likely to command majority party support when, as now, the president's party controls the Senate. The only way to force a consensus candidate, in that case, is to give the minority party an effective veto by way of the filibuster."

None of these things apply to run of the mill bills and resolutions. From a purely pragmatic perspective, I find Nathan Newman and Matthew Yglesias to be very compelling on how the filibuster is harmful to liberal interests in general. The exception, it seems, is on liberal social issues. Newman and Yglesias make great points about how liberal entitlement programs such as Social Security and Medicare can survive a legislative nuclear war untouched--the sticker being getting them passed. However, on social issues (such as stopping egregious "Defense of Marriage Acts" from passing), I don't think the liberal position is on all that steady ground, without some tools in the toolbox of the minority to back them up. So I'll label myself undecided on the merit of the filibuster for non-judicial bills. In any event, judicial nominations occupy a unique and special place in our constitutional scheme. They require more careful and deliberative debate than do other bills, and should be treated accordingly.

Other great posts on this topic have been made by Legal Fiction and The Decembrist

Tuesday, April 12, 2005

When Cats Attack

I haven't really been all that interested in Wisconsin's move to allow cat hunting (if you're really interested in the story, check out The Moderate Voice for some links and a good summary). But it does give me an excuse to link to Obsidian Wings, whose mascot is perhaps the best irony in response to the story. Just go for a second. Oh, and if they hadn't already put up the slogan they're using, I'd steal for my site. As it is, I settled for making it an away message. But it is hilarious.

First Target

Now that the right has figured out what to do with the "imperial judiciary," the question becomes who will be the first target.

Orin Kerr makes the case for...Justice Scalia!

In other news, my latest Carleton Progressive column is online, featuring a defense of Scalia. The article is entitled "Everything in Moderation," and it defends the use of the filibuster and other "obstructionist" tactics by political minorities.

Now it's Chafee's Turn

Kos reports that Rhode Island Senator Lincoln Chafee (R) has joined Rick Santorum and Christopher Shays in questioning DeLay's ethical strength.

Meanwhile, The Moderate Voice links to a Christian Science monitor report on The Hammer. It notes that under both historical and contemporary trends, DeLay is in big trouble. TMV picks out the best quote, from a Democrat's perspective:
"But in private, some senior leaders are saying it's only a matter of time before the most powerful Republican in Congress is forced from office. "Democrats should save their money. Why murder someone who is committing suicide?" said a senior GOP lawmaker, on condition of anonymity.

It's only a matter of time...

Monday, April 11, 2005

Terms of Debate

Legal Fiction makes an excellent point on how liberals need to steal conservative terms to use for their own ends. I kind of started doing this, when I attacked those who said Democrats supported a "culture of death" by challenging the attackers to speak out against gun violence, inadequate healthcare, and lack of opportunity in the inner cities. But LF fleshes out the argument in far more detail.

Check it out.

Less on Courts

Former ACLU Chief and current NYU Law Professor Burt Neuborne has more on the theme I hit upon in my first Progressive Column, namely, that liberals need to depend less on Courts and more on politics if they truly want to achieve their objectives. Money quote:
"In recent years, many progressives appear to have lost the habit of following up judicial victories with grassroots movements. Simply put, too often the appeal to courts is treated as the end of the political process, not its beginning...

The battle over abortion rights has never developed an effective movement designed to explain why abortion is fundamentally fair. The high moral ground was ceded to opponents who stressed its moral complexity. The progressive response was an abstract defense of individual autonomy that winds up sounding hedonistic, together with hairsplitting distinctions about when human life begins. That may be fine for courts, but it does not persuade ordinary people. In the early 1990s Ginsburg, by then a judge on the Court of Appeals for the DC Circuit, recognized the problem and urged that Roe be defended politically, not on its own terms but as a matter of necessity in order to permit women to function equally in the society. She was shouted down by lawyers afraid of weakening the precedent. It's not too late to take her advice."

Thanks to Eugene Volokh for the link.

Sunday, April 10, 2005

Teaching Israel

Crooked Timber points me to (and partially dismantles) this screed by Michigan History Professor Juan Cole. Cole dovetails in and out of two contradictory positions, seemingly without realizing it. First he says:
Historians are unkind to nationalism of any sort. Nineteenth century romantic nationalism of the Zionist sort posits eternal "peoples" through history, who have a blood relationship (i.e. are a "race") and who have a mystical relationship with some particular territory. The Germans, who were very good at this game, called it "blood and soil." Nationalism casts about for some ancient exemplar of the "nation" to glorify as a predecessor to the modern nation.

Quite right. You won't find any disagreement from me on this. But Cole needs to remember his subject. Jews aren't a race in the classic, blood-bond sense of the term, but rather because they are culturally and in many ways ethnically different. The community is one of self-identification, for which membership is open and voluntary. There are black Jews, white Jews, Arab Jews, all kinds of Jews. No mythification is necessary. But just as most claims of biological connection are fictive, the cultural connection is very, very, real, and deeply ingrained in what it means to be Jewish. Cole's standard storyline of racial construction doesn't work here, but he tries to force the master anti-colonialist narrative onto a group it really doesn't apply to. The implication of this narrative is that Israel (being the result of fictive and oppressive nationalist forces) doesn't deserve to exist (why any nation-state--Palestinian, Saudi Arabian, French, Chinese--deserves to exist is left unsaid).

Then Cole says:
"[A]nti-Israeli"...generally...means any criticism of Israel. (You can criticize Argentina all day every day till the cows come home and nobody cares in the US, but make a mild objection to Ariel Sharon putting another 3500 settlers onto Palestinian territory in contravention of all international law and of the road map to which the Bush administration says it is committed, and boom!, you are branded a racist bigot. And if you dare point out that Sharon's brutality and expansionism end up harming America and Americans by unnecessarily making enemies for us (because we are Sharon's sycophants), then you are really in trouble."

The distinction, Professor Cole, is that criticism of Argentina never carries the subtext that the state has no right to exist, a point you ratify mere paragraphs earlier. I'm sorry, but you can't apply a standard to Israel and nobody else, and then whine when we treat your criticisms differently than those of anybody else.

Either Cole agrees Israel has the right to exist on the same terms as any other nation (in which case Cole's first point is simply biased), or he doesn't, in which case he can't complain when Israel supporters believe that his criticisms might not come from a objective stance.

Crack in the Wall

Pennsylvania Republican Senator Rick Santorum has come out and said that DeLay should "come forward and lay out what he did and why he did it and let the people then judge for themselves." Though certainly not the harshest of terms possible, it represents perhaps the first outward crack in the wall of support for the Hammer by a high profile Republican. Moderate Connecticut Representative Chris Shays went much farther than that though, saying "he is an absolute embarrassment to me and to the Republican Party," and promising to never vote for him as Speaker of the House.

The Daily DeLay has more.