No Neutrality

Turning To The Left

Souther Baptist theologian--and one of my favorite bloggers--Albert Mohler, highlights an article from two academics who, though apparently on the Left themselves, do somewhat acknowledge what many conservatives have said for years--many justices, once on the SCOTUS, tend to drift leftward.

(from Dr. Mohler's blog post)

They were right to be concerned. While there have been a number of relatively reliable conservative justices over the years--Antonin Scalia, Clarence Thomas, and Rehnquist being prime examples--and some important right-shifting exceptions--notably Felix Frankfurter, appointed by Franklin D. Roosevelt, and Byron White, appointed by John F. Kennedy--the tendency in recent decades to drift leftward has been strong enough to gain both popular and scholarly attention. Indeed, Larry J. Sabato, the director of the University of Virginia Center for Politics, has suggested that about one quarter of confirmed nominees over the last half century have wound up "evolving from conservative to moderate or liberal."

Pot Calling Kettle...

Mark Levin is blogging now.  He says so much more concisely what I never tire of saying: If you want to tarnish a party or movement as "racist," the historically accurate target is the Democrat Party:

We knew it was coming; that is, the attempt to impugn Sam Alito by using the race card against him. You see, it’s a given in Washington, New York, Hollywood, and other liberal enclaves that conservatives are, by nature and philosophy, racist. And conservative presidents, as a matter of course, nominate racists to the bench — Bob Bork, Clarence Thomas (even though he is black, but that didn’t matter), Charles Pickering, Bill Pryor, and, now, Sam Alito. They’ve all been targeted this way.

Ironically, the party that defended slavery in the 19th century and segregation for much of the 20th century is the Democrat party. The governors who stood in schoolhouse doorways were all Democrats. The segregationist senators who filibustered the 1964 and 1965 Civil Rights Acts were all Democrats. The party that elected former Klansman Bob Byrd as its leader in the Senate for a decade was the Democrat party.

Mockery Of (the) Justice

You have GOT to be kidding me. We have reached the point of utter madness in the judicial confirmation process:

When it comes to abortion and voting rights, Zelizer said, "If he is too hostile, if he's too confrontational, if he fails to convey the sense that he's evolved on these issues since the 1980s, there is a chance that Democrats will see this as reason to filibuster," he said. (Yahoo News!)

Somebody must have changed the "advise and consent" powers of the Congress while I was napping.

It's Been Said Before II

Recently I purchased a copy of Fighting Terrorism: How Democracies Can Defeat the International Terrorist Network, 2001 Edition, by former Israeli Prime Minister and terrorism expert, Benjamin Netanyahu.  It truly is one of those can't-put-it-down type of books and couldn't have come my way at a more opportune time, especially given the controversy raging in Washington (and the Press) over the revelation of President Bush's eavesdropping program.

The Role Of Religion

Taking a page from DBPJ's Jeff, I'm going to leap from the comments section of one of my posts, up to a new post here.  Specifically, I wanted to talk about the role of religion in American life; and in particular, the Framers' understanding of the relationship between religion and government. 

None of us at DBPJ are historians or constitutional scholars. I'd wager that none of those that comment on our blog are either (if you are, good for you!).  The point is, we are all amateurs relying on our reading between busy jobs and family obligations to get us by on topics that we aren't necessarily experts on ourselves.  With that in mind, I make no bones about my heavy reliance on other experts to educate me on as much of the finer points of particular issues as possible.

But with that said, there is also a place for just plain common sense.  There are some things that you don't need to be an expert in to make a solid, logical inference that would probably bear up under professional scrutiny.  That brings me back to what I started with--the Framers' and religion and government.  I had intended to talk about the history of the incorporation clause using Robert Bork's awesome book The Political Seduction of the Law, in which he lays out the clearest explanation of the entire issue, along with John Whitehead's book, The Stealing of America. And, depending upon my time, I still very well may do that.  But for today's post, I'd just like you to consider some common sense. 

If, as some say, the Framers intended the distance between private religion and the public square that we have today then why...

• ...did the state of Massachusetts explicitly ground its political freedoms upon religious grounds with statements like:
  

  "The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.

  We, therefore, [that is, seeing this huge task we have before us of making a legitimate government] the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts." ?

• Or consider the state of Maryland with
  "We, the People of the State of Maryland, grateful to Almighty God for our civil and religious liberty, and taking into our serious consideration the best means of establishing a good Constitution in this State for the sure foundation and more permanent security thereof, declare..."

• Or Vermont with

  "That all persons have a natural and unalienable right, to worship Almighty God, according to the dictates of their own consciences and understandings, as in their opinion shall be regulated by the word of God; and that no person ought to, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of conscience, nor can any person be justly deprived or abridged of any civil right as a citizen, on account of religious sentiments, or peculia[r] mode of religious worship; and that no authority can, or ought to be vested in, or assumed by, any power whatever, that shall in any case interfere with, or in any manner control the rights of conscience, in the free exercise of religious worship.
  Nevertheless, every sect or denomination of christians ought to observe the sabbath or Lord's day, and keep up some sort of religious worship, which to them shall seem most agreeable to the revealed will of God." [whoaa nelly!!]

• or Pennsylvania with
  "WE, the people of the Commonwealth of Pennsylvania, grateful to Almighty God for the blessings of civil and religious liberty, and humbly invoking His guidance, do ordain and establish this Constitution."

• And why did Joseph Story, justice on the SCOTUS from 1811 - 1845(!) say these things in his book, A Familiar Exposition of The Constitution Of The United States (a book specifically intended to give guidance on understanding on the Constitution) :
  
  &440. "The first amendment is, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;...
  
  &441. The same policy, which introduced into the Constitution the prohibition of a religious test, led to the more extended prohibition of any religious test, led to the more extended prohibition of the interference of Congress in religious concerns. We are not to attribute this prohibition of a national religious establishment to an indifference to religion in general, and especially to Christianity, (which none could hold in more reverence, than the framers of the Constitution,) but to dread by the people of the influence of ecclesiastical power in matters of government; a dread which their ancestors brought with them from the parent country, and which, unhappily for human infirmity, their own conduct, after their emigration, had not, in any just degree, tended to diminish. It was also obvious, from the numerous and powerful sects existing in the United States, that there would be perpetual temptations to struggles for ascendency in the National councils, if any one might thus be introduced, to an extent utterly subversive of the true interests and good order of the Republic. The most effective mode of suppressing evil, in the view of the people, was, to strike down the temptations of its introduction.
  
  &442. ... Indeed, the right of a society or government to interfere in matters of religion, will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice. The promulgation of great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to Him of our actions, founded upon moral accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues; - these never can be a matter of indifference in any well-ordered community. It is, indeed, difficult to conceive, how any civilized society can well exist without them. And, at all events, it is impossible for those who believe in the truth of Christianity; as a Divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it it among all the citizens and subjects. This is a point wholly distinct from that of the right of private judgement in matters of religion, and of the freedom of public worship, according to the dictates of one's own conscience. [heck, I should just bold everything...]
  
  &443. The real difficulty lies in ascertaining the limits, to which government may rightfully go, in fostering and encouraging religion...
  
  &444. Probably, at the time of the adoption of the Constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the State, so far as such encouragement was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold in utter indifference, would have created universal disapprobation, if not universal indignation." 

If, as we are constantly lectured, the State was INTENDED to not only refrain from establishing a religion but (to our point here) was to remain positively HOSTILE to it (for example, by removing crosses from city symbols and banning chaplains from saying "in Jesus' name") how in any sane, logical universe could the things above even be considered much less ratified or written??  How could a man get away with writing a popular book like that in a time when possibly some of the Framers were around (or at least many of their proteges) who could debunk his exposition with a quickness?

I don't need a long, tortured argument from Lawrence Tribe, or a soapbox oration from Barry Lynn to see what my own eyes plainly see even from this considerably SMALL sample of quotes: the Founders had absolutely NO SUCH ATTITUDE toward the First Amendment vis-a-vis religion that some today try to represent as "history."  A junior high school student could read what I have here and understand.

No, what's plain is that America has simply changed, and the strength of Christian witness has waned, so much so that those who oppose it are now in the ascendancy and now the fight is on to remove all influence of religion from the public square.  To do so, those who can't tolerate religion (by which I mean specifically the CHRISTIAN religion) attempt to cover their agenda with the patina of constitutional reasoning, rewriting history and reinterpreting the Constitution to dress up their crusade as just "being fair."

Call me crazy, but I don't see how anyone on the Left can satisfactorily explain these things without engaging in just out-and-out revisionism or denial.

Ruminations On The Alito Confirmation Battle

So if the Democrats and all the rest on the Left in the US are going to continue the tired old claim that Alito (and really, ANY serious conservative nominee) is likely to put our Constitutionally guaranteed rights in jeopardy, it at least has one beneficial side effect:  it shows that the Left clearly understands how the role of the Supreme Court can be abused.  It shows that they understand what the proper role of a justice is--to adjudicate within some kind of boundaries and not from your personal desires.  So even though they claim to believe that the Constitution is a "living, breathing document," in actuality, that's just a PR statement.  The Left really doesn't take the Constitution as its reference for deciding what is "constitutional" at all.  There is something else altogether that they are bound by.

If you claim, as good Leftists do, that a single man joining the SCOTUS has the power to overturn settled law (and to do so legally) then you obviously believe that there is a way to manufacture a desired result by means of "interpreting" the Constitution that passes the "legal" test, but that nevertheless is a naked exercise of power.  If you say that such an action could never be legal, then you'd never fear any nomination because you'd be assured that the instant an usurpation like that was attempted, it would be immediately brought down.  If you hold that there is a type of "legal" power grab by the Court that is possible, then you've just proved the conservative argument for judicial restraint.

Democrats have conceded that there is a kind of judicial philosophy that any judge--conservative or liberal--is capable of embracing that is essentially a philosophy of judicial fiat.  Currently, this is the great weakness of our system and Democrats recognize that fact every time they bleat about a conservative making the SCOTUS bench. They say they are worried about a justice imposing his or her "extreme right wing agenda" on the rest of us by means of the interpretation of the law.

So the term "strict constructionist" should not be a dirty word for the Left.  It is essentially what they are arguing for every time they whine about the need for judicial restraint on the part of conservative jurists.  "Restraint" implies a restrictive force, a binding power.  The only real difference between conservatives and liberals where this issue is concerned is that the conservative thinks that a Supreme Court justice is bound by the original intent of the Framers but the liberal thinks that the Supreme Court justice is bound by leftist ideology.  Both think that there is a kind of "going too far" that a SCOTUS justice is capable of that is destructive, but all the same legal.  Both think there is a governing philosophy that should guide and restrain the justice seeking to interpret the law.

Conservatives should use this debate then, to illustrate this very point and drive home the truth that the contention is not over whether or not justices should work within a framework, or within given constraints.  Instead, the real controversy is over what that framework or constraints should be.  For the "originalist" conservative it is the plain meaning of the Constitution itself; for the liberal, it's the agenda of the Left.  One of those frameworks is quintessentially American and in the best tradition of the "American experiment."  The other is an alien form of "constitutionality" that bears no resemblance to what the Founders envisioned, and, in fact, is highly injurious to the long-term viability of this country.  THIS is why these confirmation struggles are so terribly important, and THIS is where the battle is joined.

Bring it on.

I'm So Glad

...that I have Senator Chuck Schumer watching my back.  He cares about all of us black folks. That's why he was careful to warn us all about how Judge Alito will likely rollback the work of folks like Rosa Parks, who just died last week.  That is, in case you didn't get it, Judge Alito supports race-based discrimination; in particular segregation that Ms. Parks stood against. 

You have to be up on these things, like Senator Schumer, or you might be fooled by the fact that Justice Alito has been a federal judge for 15 years and was TWICE confirmed (at least once unanimously) as a justice by the Senate during the Clinton administration.  So I' m not going to bother my silly little head with facts like that--I'll just trust Senators Kennedy, Leahy, and Schumer.

So, yes, I'm glad Senator Schumer and all those gracious Democrats are there for me!  I wouldn't have caught on to that sneaky "Scalito" in a million years!  But, you know, they're always looking out for me (and all of us "people of color") when it comes to these nasty conservatives in government.  I mean, they've warned me about people like Janice Rogers brown who "want[ed] to take us back to the Civil War days," where presumably she would somehow be exempt from slavery even though she's the daughter of a black sharecropper.  And back during my teens, Ted Kennedy was kind enough to warn me about the sheer pandemonium that would erupt if Robert Bork was confirmed. (You know: Blacks in the back of the bus again, back alley abortions, illegal brain surgeries by Bible-waving Jesus freaks, cat juggling--and it just gets even uglier... )

Somehow, maybe it's just me, but I'm starting to get the impression that to my Democrat friends, all conservative jurists are bigoted, Bible-quoting posers.  (Or, maybe that's Senator Robert "KKK" Byrd I'm thinking of? No wait--he's a good guy, right?  I don't know--I get so confused!)  I guess that's why the Democrat Party is there to do the thinking for me. 

Whew!

On Miers and Righteous Judgment

I'm more and more convinced that Harriet Miers should be withdrawn. Ideally, she would do this voluntarily. But definitely not for the same reasons many of my conservative friends think she ought to withdraw. In fact, the reason I think she should withdraw is because of how inflamed many former Bush supporters have become. It just isn't worth it.

And it seems to me, that once started on the "down with Miers" path, many of them (try Patterico, Michelle Malkin, and many of the contributors to ConfirmThem) got committed by their pride to a point of view that has been compelled to cast Ms. Miers in the darkest, most ridiculous light possible, which to me is one of the most disturbing aspects of this whole ordeal. One thing about conservative politics, which as a Christian has allowed me to label myself as a "conservative" is the insistence on truth, an aversion to finding just any old reason to protest or criticize as long as we're protesting or criticizing. In Christian circles, I would call it "righteous judgment." In other words, whatever arguments you use to support your position on any issue, they should never be based on just any old argument regardless of whether the only thing they have going for them is their appearance.

Such is possibly the case with the Miers questionnaire story. I admit, I was inflamed by this one also when I first heard it. Even Carol Platt Liebau was a bit taken aback, which to me was a reinforcement. Indeed, the mistaking of "Proportional Representation" with the Fourteenth Amendment's Equal Protection Clause would be a huge mistake for a Supreme Court hopeful to make, and likely a final one. And if all you're looking for is another reason to stay on track and not have to back down and admit you were wrong, you might stop there.

But happily enough there are fair-minded ones out there. Although a bit shaken by it, Carol makes this common sense suggestion:

...it might be worth a peek at some questionnaires of other nominees -- just to see if this kind of mistake is unique to this nomination, and how the supposedly "insulting" answers (according to some senators) compare to those of former nominees. If they are, indeed, deficient, it speaks poorly for the White House handlers as well as for the nominee herself, but such a judgment is best made after review and comparison of other questionnaires submitted at this stage in the process.

Thank you Carol.

And then the Powerline guys, whom I believe have come out against Miers, make this rational analysis of the Miers "gaff":

I now realize that I was reading too much into Miers's sentence. Left-wing law professor Cass Sunstein is, for once, right. All Miers meant was that the City Council, in trying to draw districts in compliance with the Voting Rights Act, had to take into account the one-man-one-vote rule that has been held to be mandated by the Equal Protection Clause. In other words, the districts had to be of roughly equal size so that each voter's ballot counted about the same.

Thus understood, the criticism of Miers is (not for the first time) far out of proportion to the offense. The meaning she gives to the phrase "proportional representation" isn't the usual one, but it is perfectly logical. Read in this way, there is nothing at all wrong with what Miers wrote. The Equal Protection Clause has indeed been held to require that voters be "proportionally represented," i.e., that some citizens' votes not be diluted by being part of a disproportionately large district.

All of which suggests, I think, two things: first, people shouldn't be so quick to jump to the conclusion that Miers is an idiot. Let's let her speak for herself at her confirmation hearing. And, second: Patterico, you can come in off that ledge.

So, I urge my Christian friends that though you might be opposed to Ms. Miers, stick to your principles of not rushing to convenient reasons at the expense of righteous judgment.

"Deeply Held Beliefs"

I just have an odd question to throw out there tonight, before I make another sad attempt at a night's sleep (the baby slept till 3:00 AM last night so we're getting somewhere!):

What does it mean when someone makes the claim that your "religious beliefs" shouldn't affect how you perform your job (if you're a public servant)?

It implies to me, for instance, that while Justice Roberts is on the bench, Protestants, atheists, and all non-Catholics should be on guard for the moment that he slips in some Constitutional obligation for every American child to undergo Roman Catholic Confirmation before they can obtain a high school diploma.  You laugh, but that's what seems to be implied.  What's suggested is that "people of faith" in public office ought to be suspect lest we find ourselves stuck wearing Mormon underwear, praying to the Saints, or being legally forbidden to receive blood transfusions.  But even though that's what it seems is being urged, I think what's really happening is a classic bait and switch maneuver.

Most people who make that claim know full well that no serious person of faith would make the attempt to coerce the entire American public to observe some particular of their faith by means of governmental force.  They know that it would be political suicide, for example, for an Evangelical to push legislation that would require all public school children to attend a mandatory Bible instruction class (with textbooks authored by Jerry Falwell!).  So what do they mean when they somberly intone, "I'm so conceeeeeerned that such-and-such's deeply held beliefs might bias them in the performance of their duties"?

Well since they don't mean the distinctives of any one religion, they must mean something else altogether and that is simply--the morality that stems from such a religious belief.  That's all.  The Church/State plea is just a ruse.  When they claim that perhaps some Christian justice might be unduly tainted by their religious beliefs when confronted with, say, abortion, they aren't afeared that a Chief Justice Dobson will force everyone who has had an abortion to ask Jesus into their hearts.  What they really mean is to have a pretext to exclude the system of morality that such a person of faith would bring to the issue. 

Since an Evangelical Christian, or an observant Jew have known and established stands on the abortion issue--both pro life--they fill pro death proponents with unease, fear, and even sometimes hatred.  Unable to simply say I disagree with them on this point about whether abortion is right or wrong but they are free to disagree, and fearful for the other viewpoint to gain ascendancy, they pull out the cheap objection of "Well...they're religious and their religion says abortion is wrong, therefore their viewpoint is unduly biased and they are unfit to 'objectively' rule on the issue."  Heck, if you can not only disagree with your opponent but also get their view judged as not even permitted into the discussion, you've gained a significant, if not permanently victorious position over them.

But think about it: what do most people do?  You stand around the watering hole at work and one fellow says, "Hey, did you hear about the 30 year old teacher sleeping with his 14 year old half-sister?" and then comes the discussion of how "perverted" the guy is, how disgusting "incest" is and so on.  No one stops to question each other and ask "Where do you get the idea that he's 'perverted'?" or "Why is incest wrong anyways?" but if you did ask, 10 will get you 20 that after some thought, most would point to what they believe, often from their religion.  That is, it's elementary that many obtain their morality from their religion. Why shouldn't Woody Allen have slept with his adopted teenaged daughter?  While nature itself is completely silent on the topic, most religions aren't, as they usually aren't about most moral issues.  And more broadly, all people derive their moral framework from some kind of belief system, be it religious or not.

So if that's the case, why pick on a person of faith when they are up for a nomination to the SCOTUS, for example?  Simple: they're an easy target.  That's all.  Since most everyone in America has been indoctrinated in the false belief of Church/State exclusivity, it's an easy sell.  And with the lazy way that most of us think, it's simple to throw the wool of "Separation of Church and State" over the issue and immediately gain a nod from most Americans.  Just saying "God bless you!" to someone sneezing on the same street corner that a Supreme Court nominee happens to pass is almost enough to derail the nomination these days because of "Separation of Church/State".  The fact is, in a truly pluralistic system, the origin of my reasons for adjudging something right or wrong is irrelevant and not grounds for dismissal; my system of right and wrong is just as good as the next guy's regardless of where I got it from.  Don't let the Church/State talk fool you.  What is really at issue in most of the cases you hear this kind of talk is a clash of worldviews, a basic disagreement of what's right and what's wrong.  By excluding people of faith from public service where they can effectively impact questions of right and wrong on the grounds of Church/State separation, you effectively rule out one whole class, one system of morality--one based on a religion--from even entering the public square.  But morality based on other systems, such as humanism or atheism, are left untouched and uncontested.  It's a very clever and thus far effective, way to fight: just make your opponent's worldview against the law.

In the hands of some, "Separation of Church and State" has really become "Separation of Governance from the Religious" and people of faith all over America had better get in the game--while it's still legal to do so.