Still Pissed Off About the Hawley-Smoot Tariff

Monday, October 31, 2005

The Alito Opinions: Planned Parenthood v. Casey

The great thing about nominating someone who is already a judge means you can go read his or her opinions to guage judicial philosophy. The first on my list is Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991) which the Supreme Court reversed in a famous case upholding Roe v. Wade. Rather than waste everyone's time trying to argue about the merits of abortion, I think it's important to look at how he reaches his conclusions.

In the decision, a majority of the Third Circuit held that abortion cases required strict scrutiny for laws that would impose an "undue burden" on an abortion decision, but rational basis for laws that don't create an undue burden. Under this standard, the court upheld the informed consent, parental consent, and reporting requirements, but struck down the spousal notification provision.

Alito, concurring in part and dissenting in part, begins by noting his deference to binding Supreme Court precedent. The issue is whether the spousal notification requirement creates such an undue burden, and Alito very convincingly argues that it does not. To reach this conclusion, he makes absolutely no reference to how he thinks things ought to be, no appeals to emotionalism, and no authoritarian pronouncements. Instead he notes that O'Connor was the author of the controlling precedents, and quotes O'Connor extensively on that point. Illustrative of his approach is this telling statement: "Whether the legislature's approach represents sound public policy is not a question for us to decide. Our task here is simply to decide whether Section 3209 meets constitutional standards." Casey at 723.

Ah, judicial deference to the democratic determinations of duly-elected representatives. That's a breath of fresh air.

Of course, Alito's concurrence can be -- indeed, has already been -- attacked as nothing less than judicial activism, but from the conservative angle instead of the liberal angle. Such an attack fails for several reasons. First, if a liberal critic really believes that an opinion is conservative activism simply because it reaches a conservative policy goal, then the liberal realy has no grounds to complain. After all, if all judges are to be seen as nakedly political actors, then conservatives shouldn't feel compelled to exercise even the remotest degree of restraint. If Ginsburg the hard-core Lefty can sit on the Court, so can the most conservative, foaming-at-the-mouth right-winger.

Second, Alito's opinion upholds the determination of the legislature. According to some critics of originalist judges, activism simply means striking down laws (I've never seen a justification for such a definition, but I'm assuming, arguendo, that it's valid). If so, Alito's decision to uphold the law is the opposite of judicial activism.

Third, and by far most important, conservative opposition to judicial activism is not based on striking down or upholding laws, but rather on the tendency of liberals to effect social policy measures through the courts. Can't get abortion legalized at the polls? Have a couple of judges force it on America against our wills. Can't get same-sex marriage by political persuasion? Who needs persuasion when you've got judges? But that's obviously not what Alito is doing here. He expressly states that the legislature's approach to protecting a man's interest in his offspring may be flawed, or bad policy, or perhaps not the most efficient approach. Irrelevant, he states, because it's not his job to pass on the wisdom of the statute, only on the Constitutionality. And based on O'Connor's opinions, he demonstrates very convincingly that it was constitutional (at least until O'Connor changed her mind on appeal).

So far, I like what I'm seeing. I'll discuss more Alito opinions as I have time.

All Alito, All the Time

First, the conversation on Give 'Em Hell, Harry, such as it is, redefines pointless. It's quite the sorry lot of the ill-informed spewing talking points. A few gems:

"For the third time, he has declined to make history by nominating the first Hispanic to the Court."

Yeah, I think we know what Harry Reid thinks about Hispanics. Just go ask Miguel Estrada.

"I don’t talk to Neocon Freepers."

What is this guy, in kindergarten? And incidentally, the guy keeps talking to me anyway, so neener neener on him.

"This is exactly why this blog need comment moderation now. We have comment Moderation on all of the blogs at and we have ZERO GOP trolls posting comments because of it."

Well congratulations on your successful efforts at completely insulating yourself from opposing viewpoints. You must be very proud.

"The Supreme Court asserts 'Equal Justice Under the Law.'"

Well now this explains a lot. Apparently liberals have a Constitution with completely different words from that which everyone else in the world can read. I guess that's why I've never spotted that clause about penumbras and emanations. I'm sure a lot of arguments could be avoided if the Lefties would just let conservatives read their super-secret special copies of the Constitution.

"Confirmation should be about what is really best for the entire Country and not a group of radicals."

When the "group of radicals" elected Bush by a popular and electoral majority, then that pretty much ends that argument right there, doesn't it? Oh, and remind me what percentage of the vote Clinton got before nominating two left-wing extremists?

"Having non moderated instant comments enables the rightwing noise machine and makes sane logical political conversation impossible."

Always with the censorship. Sheesh, move to China or something, dude.

Goldstein steals a peek at Feinstein's notes.

Ace has some commentary, and a nice family photo.

It's Alito

Samuel Alito tapped to replace O'Connor.

I don't know much about the guy, so I'll update as I get some research done, but in the meantime, here's Harry Reid's statement. You may notice I asked him some questions in the comments section, but I can't say I expect an answer.

Sunday, October 30, 2005

Speaking of the Timeless Struggle Between Pirates and Ninjas...

Cool. And by cool I mean totally sweet.

Thursday, October 27, 2005

The Official SobekPundit Blogger Interview: VodkaPundit

Hello, this is Chris Matthews, filling in for Sobek, who says he hates you all and hopes you never read this blog again. Frankly, I don't know that I can blame him. I've just been looking through his Sitemeter referral logs, and you're a pretty sorry looking bunch. Anyway, this week's guest is Steven Green from VodkaPundit. I like Vodka, you know? I like those, uh, what do you call them? Hole in One, that's it. Those are great.

Chris: Anyway, welcome to SobekPundit's blog, Mr. Green. I can only assume Sobek is driving around downtown Vegas, firing his gun into the air.

Stephen: First, it's Stephen, not Steven. Second, a Hole in One is made with Scotch, not Vodka.

Chris: Exactly. A nice scotch vodka. I visited Scotland, once. Ate some really tasty pasta there.

Stephen: That's really great, Chris, but I don't have all day. I need to get back home and get laquered.

Chris: Of course, of course. First question: what is the difference between the Arabic letters "saad" and "siin"?

Stephen: What? I have no idea.

Chris: Not too surprising. Moving on: in what year was Franz Kafka's "The Trial" first published?

Stephen: Why on earth would I know that?

Chris: Avoiding another question, I see. That's what I expect from religious fundamentalist whackos like you.

Stephen: Look, if you'd even bother to read my blog you'd see I ...

Chris: I'm after facts, not excuses. Here on Hardball ...

Stephen: This is SobekPundit, not Hardball.

Chris: Spin it anyway you want, the fact is you can't answer the tough questions. Which early Christian father wrote a famous rebuttal to Celsus?

Stephen: This is the worst interview I've ever seen. You're supposed to ask me questions about politics, hot issues of the day, or something that a reasonable reader would want to know about. This is just stupid trivia.

Chris: I'm not the least bit surprised to see you resorting to name-calling instead of a substantive defense of your positions.

Stephen: This is ridiculous. Who knows crap like that?

Anderson: "Saad" is emphatic, while "siin" is pronounced closer to the front of the mouth. The Trial was first published in 1937 by Max Brod, in defiance of the author's request to destroy the manuscript. Origen, in his famous Contra Celsam.

Stephen: ...

Chris: Thanks for proving my point, Anderson.

Stephen: Look, if you two jackasses are through, I've got some work to ...

Chris: What does the word "slooshy" mean in Nadsat, the slang language invented for Anthony Burgess' A Clockwork Orange?

Anderson: What spices are used in the Indian appetizer known as "samosa"?

Chris: Why does ice float?

Anderson: What is the most common size of thimble sold in Nebraska?

Stephen: I'll be going now. Have a nice day.

Chris: ...

Anderson: ...

Chris: Well, I guess we just showed that Nazi a thing or two.

Anderson: Chris, Stephen Green is half-Jewish. Do you really think the word "Nazi" is appropriate for ...

Chris: Great, Karl Rove got to you, too. Well, that's all the time we have for this edition of Hardball.

Anderson: This isn't Hardball, it's SobekPundit. Where is he, anyway?

Chris: Probably hitting the sauce again. Have you ever had a Hole in One? And what's with you having a last name for a first name? What's that all about?

Other SobekPundit Blogger Interviews:
John from WuzzaDem
Ace of Spades
Dave from Garfield Ridge
Oliver Willis
The Therapist
Protein Wisdom

Next Week:
What do you people want from me? Blood?

The Official SobekPundit Blogger Interview

I got nuthin.

Wednesday, October 26, 2005

A Pair of Reposts

In order to keep up with my duties over at WuzzaDem (man, that dude knows how to crack a whip), I've taken to re-posting some of my old material. So here's a link to the complete Leon Trotsky series. Here's the complete Mr. Potato Head series.

And on a more serious note, I've gotten embroiled in a discussion of feminism, Afghanistan, and identity politics in the comments section of this post. I'd have to say, far and away the best comment there is by Sean M: "Hel-lo Irish heritage, goodbye public intoxication charges!"

Tuesday, October 25, 2005

Avast, Ye Scurvy Dogs!

The kidd-o makes a pretty fearsome pirate. My exceptionally talented wife made the costume.

Monday, October 24, 2005

Cindy Sheehan, Apparently Unaware that College-Level Stunts are Not the Best Way to Earn Respect for Your Cause, Announces College-Level Stunt

Story here.

Seriously now, is there anyone who doesn't see where this is going?

(Some time in early March, 2006): Guys? Seriously, I don't think they're going to do it. Will you please untie me now?




Okay, now did anyone in Camp Casey not think to remind this bonehead that October in D.C. can get a wee bit chilly? Could this possibly be a better set-up for the Bush administration? She isn't planning on being there very long, because she assumes she'll be arrested. Simple solution: don't arrest her.

I suspect she'll cave before the White House does. Call it a hunch.


In related news, Dennis the Peasant continues his lonely vigil outside the White House, tied to the fence until SobekPundit promises to stop hunting hobos for sport. A defiant SobekPundit reportedly responded, "He can freeze his anarcho-syndicalist 'nads off, for all I care! Bring it on, peasant boy!"

Help! I'm being repressed by an ancient Egyptian crocodile!

[Note: I corrected the quote. It's "repressed," not "oppressed."]

Saturday, October 22, 2005

Meirs: The Last Straw

I'm officially anti-Miers.

My initial reaction to the nomination was one of supreme annoyance with President Bush, not because I was sure he had made a mistake, but because I couldn't believe he was willing to leave anything to chance, in spite of Republican control of the House, the Senate, the White House, the majority of Governor's seats, etc. But of course I did not impute Bush's flub to Meirs herself, because hey, I didn't know anything about her. I might as well reserve judgment concerning the nominee until further information should present itself.

I've got enough info now, thank you very much.

The link is to a Washington Post article which begins: "As president of the State Bar of Texas, Harriet Miers wrote that 'our legal community must reflect our population as a whole,' and under her leadership the organization embraced racial and gender set-asides and set numerical targets to achieve that goal."

This is one statement on top of a consistently weak defense of the nomination by the Bush administration, revelations that she wouldn't join the Federalist Society (because it's "too political) but that she heaped praise upon the -- er, apolitical? -- NAACP, ambiguous statements concerning abortion (which, even viewed most favorably to her, say nothing about her opinions on the legal underpinnings of Roe), language that almost exactly tracks with O'Connor's opinion in Planned Parenthood v. Casey (upholding Roe)...

At some point I gotta say enough is enough. I've reached that point.

I've argued before that limited affirmative action, done properly, may be both socially beneficial and constitutionally sound. I proposed what I later learned is termed race-neutral alternatives, by which preferences are set forth based on non-racial, economic factors, with the assumption that economic disparity, which tends to align along racial lines, will as an incidental matter benefit racial minorities. The benefit of such a system is that it is naturally self-correcting, because as racial inequalities ameliorate, a system that gives preference to economic will have an increasingly race-neutral effect. In my view, this is a far superior system to that adopted by O'Conner in the Michigan law school cases, in which she arbitrarily picked a term of years and stated that race-based preferences are constitutional for twenty-five years (that's the kind of garbage that makes me have no respect whatsoever for O'Connor's judicial "philosophy," such as it is).

Clearly, then, affirmative action is more than simply an either/or proposition. On one end of the spectrum, one may argue that the Equal Protection clause requires absolutely no nods to race whatsoever, under any circumstances. On the other end is an absolute numerical set-aside. In the middle lie the race-neutral alternatives theory, and what I will term the prefence theory, whereby race is a plus factor, rather than an absolute (i.e., it is a tie-breaker among equally-qualified candidates, rather than an absoulte "we need X number of black students" kind of thing).

Note that, of the alternatives roughly sketched out, Meirs apparently adopts the most liberal possible option. It is utterly unsupportable by the language or history of the Constitution's Equal Protection clause. It is the anti-textualist, "living-breathing" approach so abhorred by judicial conservatives. It is utterly inappropriate even for a Democrat nominee. That it comes from George W. Bush, who promised us more Scalias and Thomases, makes it vastly more inappropriate. I have therefore left neutral ground -- Meirs and her supporters now carry an extremely heavy burden of persuasion to garner my support, and I frankly doubt it can happen.

'Cause, you know, I'm pretty sure she reads my blog...

Thursday, October 20, 2005

Ensign v. Kelo

Unlike four-fifths of the United States Supreme Court, Nevada Senator John Ensign apparently respects private property rights.

Nice to know somebody does.

He's sponsoring a bill to deny federal funding and tax breaks to private corporations and government entities that use eminent domain (I'll need to read the bill to get the specifics of how that's done, and when it would apply).

One nitpick: "The ruling was a victory for communities that are home to blighted neighborhoods but a setback for property rights advocates." Well, no, the Supreme Court specifically noted that the disputed property in Kelo was not blighted. The Kelo danger is that it expands "public use" far beyond the notion of condemning blighted or dangerous property, or constructing public buildings like post offices, schools, or a movie theater that only shows the Alien movies.

Looks Like I'll Be Ordering the Business Cards a Little Earlier Than Expected

It's ON, baby!

Wednesday, October 19, 2005

Foreign Law and the Constitution (part two)

Dave has a reply to my first post on foreign law and the Constitution. I'm responding here, rather than in his comments section, because this is probably too extensive for a comments section.

He starts by noting that Scalia read Kennedy's majority opinion as relying a lot more heavily on foreign law than I allowed, and asks, "perhaps Sobek believes Scalia misread Kennedy's opinion?"

Well, yes, mostly. Scalia states: "Though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage." That's manifestly not the case. And the fact that Scalia writes a copious amount of time to debunking the first part of Kennedy's opinion suggests precisely that -- if international views "take center stage," then why the heavy emphasis on domestic laws, attitudes and precedents in both the majority and the dissent? Note that Kennedy devotes 30 paragraphs to domestic analysis, and 6 to international opinion. But I've already noted that Kennedy's express language forbids Scalia's characterization.

Then again, Scalia may very legitimately fear that Kennedy's obiter dicta will be used in future opinions to go waaaay beyond Kennedy's own limited scope. And that's the way Supreme Court opinions tend to go; one of my Con law professors explained that the actual words of a case are nowhere near as important as what later Courts say the words meant. And Scalia and other critics of Kennedy are not at all unreasonable to fear that a dangerous door has been opened.

"Of course, the question remains why Kennedy felt that a reference to foreign opinion had to be made at all. Either his argument was strong enough on the domestic merits alone and Kennedy added the foreign opinion reference out of a sloppy rhetorical flourish, or he felt it was necessary to include foreign opinion in order to strengthen an argument he may not have felt confident enough to win on domestic merits alone. Either way, unless you accept that foreign opinion (not even law, but opinion) has a place in SCOTUS deliberations, then whatever reason Kennedy used to include the reference is superfluous. It's the legal equivalent of tits on a bull."

Yes, well, the Supreme Court has been putting tits on the bull for a long, long time. The first case I ever read in law school, in fact, Pennoyer v. Neff, is almost entirely superfluous. By their very nature, dissenting and concurring opinions are superfluous. But dissents, concurrences, and dicta have a curious habit of becoming "The Law." Hence the reaction of conservatives.

"Sobek then argues that the use of foreign precedent is similar to the American state courts using precedent from each other. I don't see how this is directly relative, however, as the key adjective here is *American* states, relying on American laws that are assumed to have already passed American constitutional scrutiny."

First, let's not read my last post so narrowly as to assume we're only talking Constitutional Law. I'm referring in general to foreign law as persuasive authority in any case, but constitutional cases in particular, because that's the hot topic.

With that in mind, the basis of my argument is that a court (state or federal) should feel free to adopt reasoning and legal tools, from whatever source, so long as it works. And to make sure the reasoning is sound, and that it is likely to work, I proposed my two crucial rules.

We've seen the successful adoption of foreign law concepts in two well-known areas of American jurisprudence: worker's compensation and the contract doctrine of unconscionability (both from German law). Both are good ideas. One reduces the legal burden of an injured worker by creating a common fund to satisfy claims, while immunizing employers for negligence -- basically a legal shortcut to spread risk and thus maximize resources. The other is a consumer protection measure that lets a judge decide that the terms of a contract are so incredibly lop-sided that justice cannot be done by enforcing the contract. The American experience has shown that both legal tools, while imperfect, function sufficiently well to merit their adoption.

In other cases, adoption of a foreign rule has proven unworkable. In American contract law, a contract requires consideration -- that is, the contracting party must exchange something of value for the agreement to be enforceable. So a gratuitous promise -- e.g. "I promise to give Dave a million bucks" -- is unenforceable, because it's just a promise, without any bargained-for exchange. The states used to have a rule that by affixing a seal to a written document, a gratuitous promise could become enforceable. But gradually the seal rule fell out of favor. New York considered adopting the European notary system, whereby a gratuitous promise could be made enforceable by notarization. But that notion was abandoned when, upon close inspection, it was determined that a European notary and an American notary have very little in common. The importation of a notary rule, then was incompatible with American jurisprudence, and was rejected.

Notice how these examples illustrate my two rules for using foreign law. The first is that the other nation confronted a similar problem. In Germany, as in America, with the industrial revolution, workers increasingly found themselves subject to anonymous injury with proof of negligence almost impossible. If a boiler explodes and injures you, and in the process is itself incinerated, how do you prove what caused the explosion? But if you can't prove that, how do you prove your case? So the Germans came up with the worker's comp solution, and as a practical matter it worked. The second rule is that the systems must be sufficiently compatible that a similar result may be expected. While German and American law are very different, upon close inspection it appeared that the German rule could be adopted and used to solve American legal problems.

And again, experience has shown that the adoption of German law has worked, in that area.

Note that it would have been completely irresponsible to adopt the German rule if a) it didn't work in Germany, or b) prevailing conditions would have made the rule incompatible in America. Consider, for example, if a completely non-industrialized nation had tried to adopt the worker's comp rule: the justification for risk-shifting would be moot.

And note that the notary rule, while it works fine in Germany or France, would have failed my test. Perhaps the rule would have been sufficient to deal with a problem faced in both places -- finding a just device to determine which gratuitous promises are legally enforceable. But the second rule, similarity of conditions, could not be satisfied. In America, you take a class, pay your $50, and you're a notary. In Europe, you get a degree, buy into someone's licensed practice, and learn an obscene amount of law. A European notary is not like an American notary.

With all of that in mind, I reiterate my views on even Constitutional jurisprudence. And I emphasize that I'm not relying on "international consensus" or any such nonsense. It's insufficient, in my view, to argue that "almost every country prohibits X, and therefore the Constitution also prohibts X." That simply does not follow. It must first be established that other countries do X to solve a problem that also confronts America, that it has worked in that other country, and that conditions are sufficiently similar in America to expect a similar result.

Rather than discussing hot-button issues, like death penalty, equal protection, or abortion, let's focus on something relatively bloodless: personal jurisdiction. In order for me to sue you in any given court, that court has to be able to exercise personal jurisdiction over you, according to the XIVth Amendment Due Process clause. So if I sue Dave in a Nevada court, but Dave doesn't live in Nevada, owns no property in Nevada, doesn't conduct business in Nevada, and has only been in Nevada once, four years ago, on a crazed coke-and-Thai-hooker binge, the Nevada court will tell me to take a hike. It's incompatible with "traditional notions of fair play and substantial justice," to use the official lingo. He doesn't have enough contacts with Nevada.

We live in a federal system. A really big one. How do we determine what process is due under the Constitution, in such a way that parties from different states can sue or be sued in a way that is fair to Plaintiffs and Defendants? Consider that, as we explore answers to these questions, Europe faces a similar problem. When is it fair for a German to sue a Spaniard in a German court? And if the Spaniard doesn't show, how and where may the German enforce his default judgment? Note that the U.S. Constitution doesn't answer any of these questions, so strict constructionism is insufficient. In this case, as in many others, it seems that the intent of the Framers was to let judges figure out a workable system. So why not benefit from the experience that Europeans -- who are in a similar situation -- have gained through their own attempts to work things out? But that is only, and I must reiterate only, after my two threshold questions have been asked and satisfactorily answered. Once again, it's not good enough to say, "Well Switzerland allows jurisdiction to attach if any of Defendant's physical property is in the country," because that's only part of the analysis, and by far the least important part.

SobekPundit: Guest Blogger!

John from Wuzzadem is taking the week off to glue orange hair back onto his wig, and he asked me and a few others to watch the place for him while he's gone. You know, keep the punk teen-agers away and such. So I'll be posting over there as well. And while I'm on the subject, Cranky Neocon has already knocked one out of the park.

The Therapist and Liberal Larry have also promised to post something. Cranky, Ron and Larry, the entire universe may just collapse into a black hole of ultra-concerntrated funny. I'll just try not to embarass myself too much.

The Official SobekPundit Blogger Interview: Protein Wisdom

Welcome to this week's installment of the Official SobekPundit Blogger Interview. Apparently last week's interview with SondraK wasn't enough to make me throw in the towel on this obvious cry for help. This week, Jeff Goldstein from Protein Wisdom has agreed to meet with me. Mr. Goldstein's blog is noted for its amazing armadillo every Friday, frequent conversations with inanimate objects, penetrating (read: incomprehensible outside of the English department) discourses on identity politics, and, of course, Jeff Gannon's penis.

Sobek: Welcome, Jeff. As you know, I'm a big fan. I've even referred to you as "like a Jewish Mel Brooks."

Jeff: It's my pleasure, Sobek. Say, is that an original Nintendo Entertainment System?

Sobek: Why, yes. Yes it is.

Jeff: Do you have Contra?

Sobek: As a matter of fact, I do.

Jeff: Would you mind if I played a quick game?

Sobek: That's fine.

Jeff: Great. Thanks.








Jeff: F*&!ing aliens...





Sobek: You kind of suck at this.





Jeff: So, yeah, I'm thinking the bit might be dead.

Sobek: Uh-huh.

Other SobekPundit Blogger Interviews:
John from WuzzaDem
Ace of Spades
Dave from Garfield Ridge
Oliver Willis
The Therapist

Next Week: