Judge Richard Posner vs. Elena Kagan

I have been perusing the paper trail for SCOTUS nominee Elena Kagan, but most of it is mere puffery written for the purposes of a future nomination. I will continue to examine her record and analyze her work (because politicians and the press clearly have more important things to do), but I did come across one gem early.

“Richard Posner is the most important legal thinker of our time, and for generations to come legal scholars will dissect and analyze, will praise and criticize, his distinctive legal vision,” gushed Elena Kagan in 2007. “Rifle through the pages of whatever casebook you have at hand (nearly any subject, common law or statutory, will do) and you will find a grossly disproportionate number of Posner opinions. Perhaps consciously, perhaps not, Judge Posner writes for the casebooks: for two and a half decades, he has produced simply remarkable teaching materials. Love them, hate them, agree or disagree with them, Judge Posner’s opinions make people think -about what the law is doing, about what the law should be doing, about why it all matters. Law professors – actually, anyone who cares about our legal system – should esteem these opinions for this quality.”

Any person with any legal background with an ounce of credibility knows 7th Circuit Appellate Judge Richard Posner to be a brilliant jurist. So why are we not elevating “the most important legal thinker of our time,” in Kagan’s own words, to the most important institution in shaping the law of our land?

Probably because our President has no clue the man exists, despite the fact that both attended Harvard Law School, served as President of the Harvard Law Review (though only one of them published) and accepted teaching positions at the University of Chicago Law School (though only one of them actually was a professor). Shoot, when I put it that way, it sounds like Judge Posner is more qualified to be President (and he was in no way corrupted by Chicago politics).

Judge Posner is certainly as qualified as Elena Kagan to be a Supreme Court Justice. Both clerked for SCOTUS, served in the solicitor general’s office, and taught law at the University of Chicago. But only one has served as a judge for the last 29 years; only one has offered a paper trail of judicial brilliance.

Age should not be a factor, either. Judge Posner is younger than a majority of the court (Stevens, Ginsburg, Scalia, Kennedy and Breyer are all older). His experience as a judge prior to elevation to SCOTUS almost equals that of the most experienced justices prior to elevation (Sotomayor and Alito at 17 and 16 years, respectively). And, much like retiring Justice Stevens, he writes his own opinions.

Now, here is the kicker for all of the trolls on the internets and any liberal that thinks progressives have your interests in mind: he has an issue with the criminalization of marijuana. Your precious “liberal” wing of SCOTUS will always uphold federal law justified under the commerce clause. And if you think the Left in Congress will ever repeal the drug laws, you live in la-la-land. But we already knew that.

Sadly, Judge Posner, one of the most deserving candidates for SCOTUS, will probably never get a nomination from either political party. President Bush tried to convince conservatives that his personal relationship with Harriet Miers was enough to guarantee that she’d have the right opinions. President Obama apparently feels the same way. Forgive me for using salty language, but I’d appreciate it if those people lucky enough to serve this nation as its President didn’t piss down my back and tell me it’s raining.

Kagan does not belong on the court, just as Miers did not belong on the court. At some point – we are going to have to start selecting judges based on their experience, and not on how long they have known the president.

A Dog in the Fight: SCOTUS Gets Constitutional

On April 20, 2010, the Supreme Court scored a victory for 1st Amendment restrictions on government intrusion into our right to free speech and prosecutorial discretion, in US v. Stevens (2010). Granted, the decision, written by Chief Justice Roberts, allowed the seller of dog-fighting videos to continue that practice, of which I do not condone personally, but within the 8-1 decision (Justice Alito was the lone dissent) were a few gems. Some conservatives think this was a poor decision, but if modern conservatism is going to be a champion of individual liberty, it must be the leading voice in decisions like this. Remember to examine the opinion objectively, and not to allow your personal feelings to cloud the logic behind this opinion.

A little background: Robert J. Stevens sold videos of pit bulls (lovely dogs with the right owners) engaged in fights and hunts. Presumably, he did not produce these videos; rather he was selling content that had been created by others. At issue was 18 USC § 48, "Depiction of Animal Cruelty." The original intent of the legislation was to criminalize "crush videos," a particularly twisted sexual fetish. Historically, common law and constitutional jurisprudence have allowed for certain well-defined and narrowly limited restrictions on free speech. The government was contending that depictions of animal cruelty should be added to that list.

The Government contends that “historical evidence” about the reach of the First Amendment is not “a necessary prerequisite for regulation today,” Reply Brief 12, n. 8, and that categories of speech may be exempted from the First Amendment’s protection without any long-settled tradition of subjecting that speech to regulation. Instead, the Government points to Congress’s “‘legislative judgment....'"

Essentially, the government is arguing that new categories of speech can be restricted based upon the public will through legislation. Of course, we are all aware that legislatures have been known to pass bad laws. The idea that Congress could carve out exceptions to the restrictions on government intrusion upon our rights is rather frightening.

The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad-hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).

I am amazed that the liberal-wing of the court signed on to this opinion without a concurrence. The decision was rule-based, rather than policy-based. Policy decisions exemplify the progressive attempt to interpret the Constitution as a "living, breathing document." Balancing tests often fall in favor of policy, rather than rules. Chief Justice Roberts points out that the restrictions on government in the Constitution already took into account the "social costs." In other words, better to allow an individual to sell dog-fighting videos than to allow the government to carve out exemptions to the 1st Amendment willy-nilly.

The decision also took into account prosecutorial discretion, which allows the government to decide which cases to prosecute.

This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint. When this legislation was enacted, the Executive Branch announced that it would interpret §48 as covering only depictions “of wanton cruelty to animals designed to appeal to a prurient interest in sex.”

The legislation was passed for a specific purpose, and the executive branch promised to prosecute based upon that specific purpose. However, the broad-based language of the legislation allowed the government to cast a wider net. Laws have unintended consequences, and an unwary public can be caught up by those unintended consequences. Thankfully, SCOTUS stopped another government attempt to expand its powers at the expense of individuals. While the particular subject-matter was unpleasant, the logic behind the decision was sound; something to keep in mind with the upcoming nomination.

The Constitutional Case Against Progressives

[Do not read this article without a copy of the Constitution, and if you do not have one handy, shame on you (link here).]

A line is being drawn in the sand between the statists and Americans, and I use the term American in the grandest sense. The United States of America represents one of the last bastions of traditional liberalism, which is why the Left should no longer be identified as liberal, but rather we should continue to identify its members as progressive statists. The Left believes the precepts of our Constitution have failed society, and thus, we must look towards the “enlightened democracies” of socialized Europe for guidance in the progression of American society.

We hear the mantra of rights professed daily by the progressives: education, work, social security, health care, etc. And since we do not live in a state of nature, the guarantor of those rights must be the government. This is the definition of a statist, and adherence to these beliefs is inherently in opposition to the Constitution. The Founders recognized that government could NEVER be the guarantor of rights which is why so much of the Constitution is written in terms of limiting powers conferred upon the government.

Take for example Article I § 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 (emphasis added).

Congress has no power outside the enumerated powers identified in the Constitution, and furthermore, Congress may not exercise any power that is not inherently legislative in nature. Article I § 9 lists specific power limitations upon Congress, and Article I § 10 lists legislative power limitations upon the States. Article III identifies the judicial power of the United States and limits it in much the same manner as in Article I.

Article II is a little different, but can only be understood in the context of the framing of the Constitution. Article II § 1 begins:

The executive Power shall be vested in a President of the United States of America.

On its face, Article II seems to grant rather broad powers to the President. One of the main reasons the Constitution was created was because of the impotence of the Articles of Confederation without a federal executive. But even the President is confined to the boundaries identified in the Constitution through his Constitutional Oath as written in Article II § 1 cl. 8:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States (emphasis added).

All other Constitutional officers are “bound by Oath or Affirmation, to support this Constitution,” in Article VI cl. 3, but the President is beholden to specific duties.

The only time “right” is mentioned in the original articles of the Constitution is in Congress’s duty to promote the ownership of Authors and Inventors to their respective creations (Article I § 8 cl. 8), but even that was only to be secured for a limited time. The Bill of Rights is written in negative terms to prevent the government from infringing upon certain recognized rights of the people. The only positive rights are identified in the 6th Amendment, but should really be read in the negative since the government prosecutes for alleged crimes committed. In fact, the entire Constitution, articles and amendments, is written in terms of limiting government infringement upon existing rights, not creating rights. For a discussion of this you must check out Federalist No. 84. Furthermore, many of the amendments to the Constitution forbade government infringement upon the people’s rights (1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 13th, 14th, 15th, 19th, 24th, and 26th).

Some would argue that “privileges and immunities,” as discussed in Article IV § 2, indicates positive rights, but rights are not privileges because privileges may be revoked. Article I § 9 cl. 2 recognizes the “privilege of the Writ of Habeas Corpus,” but also recognizes that it may be revoked under certain circumstances. Privileges are allowances granted to specified individuals in areas where government power prevails, which is limited to the powers granted by the Constitution.

Let us turn our attention to the most under-utilized provision of the Constitution as it exists today; the 9th Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people (emphasis added).

Essentially, any right not identified by the Constitution is retained by the people, not the government (state or national). This is where progressive statists run astray of the Constitution. Government cannot grant us the “right” to work or receive health care because government does not have that power, nor the power to force us to exercise any right (imagine the outcry if the government forced every person to exercise their 2nd Amendment right). And the government does not equal “the people” because our government is only representative of an illusory majority.

Herein lays the danger of the progressive statist utopia. It envisions a permanent government entity, exemplified in the bureaucracy. People may come and go, but the government will always remain. And our rights are beholden to that permanent entity.

Americans recognize that government is only an extension of the individuals that comprise it, and thus ethereal. Bureaucracies are invasive upon the rights of the people. And unless the people are vigilant in protecting their rights, all governments will attempt to seize them.

The United States of America was the first country to create a government wholly in terms of limitation. This is what makes it the first and last bastion of traditional liberalism. We often identify ourselves as conservatives or libertarians, but we are only as much because we understand the context of the Constitution striving to create a liberal utopia within the boundaries of our nation. We understand and have fought against the horrors of the statist utopia, so we must not allow the progressive statists to hide behind concepts like liberalism.

And for those who espouse certain liberal social rights, you will not find salvation within the progressive statist agenda. You will only find regulation and marginalization; at least until the government deems you oppressive to the progress of the state.

The Constitution cannot be a living, breathing document. If it is then government can arbitrarily grant and take-away the people’s rights. If it is then the government can arbitrarily create and seize powers.

Read your Constitution. Study your Constitution. Defend your Constitution.

The Constitution is your only protection from the progressive statist utopia.

Progressives in America

Alexis de Tocqueville traveled to the United States of America in 1831 on assignment from the French government to study the American prison system. One result of those travels was a rather prophetic study of American society, “Democracy in America.” The study consists of two volumes. The first considers American political society, and the second considers American civil society. The entire study is a must read, but my focus is on one of the last chapters.

What Sort of Despotism Democratic Nations Have to Fear

It would seem that, if despotism were to be established amongst the democratic nations of our days, it might assume a different character; it would be more extensive and more mild; it would degrade men without tormenting them.

In essence, the sort of despotism we might find in America today would not be of the sort found in ancient Rome or imperial Russia. The tyrants exercising that sort of despotism were confined to tyranny upon the ruling classes. The vast majority of people would have been unaffected by the actions of one tyrant to another because they were not a source of power. Democracies derive their power from the people, which means despotism cannot exist openly, but that it also affects more people. It becomes “soft despotism,” operating both in the name, and at the expense, of the people.

For their happiness such a government willingly labors, but it chooses to be the sole agent and the only arbiter of that happiness; it provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritance: what remains, but to spare them all the care of thinking and all the trouble of living?

If that statement does not describe the progressive-statist agenda, I do not know what does. Ever since the progressive movement began its push for social engineering funded by income taxation, government has extended its tendrils into every aspect of our lives. Bit by bit, the administrative state has expanded its grasp over the last century. And all of this has culminated in socialized medicine: government regulation over our very lives.

An association for political, commercial, or manufacturing purposes, or even for those of science and literature, is a powerful and enlightened member of the community, which cannot be disposed of at pleasure, or oppressed without remonstrance; and which, by defending its own rights against the encroachments of the government, saves the common liberties of the country.

This does not mean organizations like ACORN, Project Vote or the Secretary of State Project. These groups work for the expansion of government at the expense of liberty by promising false prosperity to the less fortunate in exchange for a vote. Instead, think Tea Party or Citizens United (2010). If anything, organizations that align themselves too closely to government should be viewed with extreme skepticism. Think “too big to fail” or SEIU.

It is therefore most especially in the present democratic times, that the true friends of the liberty and the greatness of man ought constantly to be on the alert, to prevent the power of government from lightly sacrificing the private rights of individuals to the general executions of its designs.

We were caught sleeping at the wheel. During President George W. Bush’s administration, the rhetoric of the progressives espoused the ideas presented in the previous quote. But rhetoric is merely the art of communication, and is separate from the critical thinking involved with logic. Many Americans, lulled to sleep by the “soft despotism” of the administrative state, assumed they were acting in the interest of liberty by electing the likes of President Barack H. Obama, and believed “transformative democracy” was a way to re-establish alleged liberties lost.

It is ever to be feared that revolutionary tendencies, becoming more gentle and more regular, without entirely disappearing from society, will be gradually transformed into habits of subjection to the administrative authority of the government.

Our rights exist outside of the government, or rather, the government is not the guarantor of our rights. As I have argued before, the right to free speech is not guaranteed by the 1st Amendment, but rather, the 1st Amendment precludes government intervention in our pre-existing right to free speech. The 9th Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (emphasis added). The message of “transformative democracy” championed by progressives represents the gentle revolution of subjugation for which de Tocqueville forewarns.

I have sought to point out the dangers to which the principle of equality exposes the independence of man, because I firmly believe that these dangers are the most formidable, as well as the least foreseen, of all those which futurity holds in store; but I do not think they are insurmountable.

And they are not!

Americans are re-awakening to the promises of liberty established and promoted from the founding of our nation.

I close with the final sentence of “Democracy in America”:

The nations of our time cannot prevent the conditions of men from becoming equal; but it depends upon themselves whether the principle of equality is to lead them to servitude or freedom, to knowledge or barbarism, to prosperity or wretchedness.

Article V: Repealing ObamaCare

There is much talk of repealing socialized medicine, though the rhetoric has waffled a bit since passage. The problem is that even if we gain majorities in Congress we still need 60 votes in the Senate to avoid a filibuster, not to mention the 2/3 majorities we need in both houses to override a presidential veto. Meet Article V of the Constitution:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, SHALL call a convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. (emphasis added)

Dark thoughts are on American minds these days, despite the optimism in the American system. It is not the first time, nor will it be the last. Travel backwards to the Spring of 1786. The Articles of Confederation were the “Supreme Law of the Land,” but one Charles Pinckney of South Carolina proposed a revision. Congress represented the sole institution of our national government, and Congress was rather weak. The states retained much of their sovereignty, and Congress, with the few powers it actually wielded, could only operate with unanimous consent. Rebellion and credit issues abounded, not to mention the threat of foreign invasion, without effective centralized governance. And so, the Constitutional Convention eventually convened in May 1787 to revise our system of government, and prevent disaster.

The Articles of Confederation were completely replaced by the Constitution when New Hampshire ratified it as the ninth state on June 21, 1788. The United States of America under the Constitution came into existence without a bloody revolution or civil war. And the Constitution provided a means to revision in Article V.

Every amendment to our Constitution was proposed by 2/3 of both houses of Congress. When there have been possibilities that 2/3 of state legislatures would propose an amendment Congress has pre-empted. Perhaps Congress, and the national government as a whole, feared a convention would completely alter our system of government, as did the Constitutional Convention. This is the fear we need to engender. If a convention is called, we will radically restore the limits of power on the national government to prevent its hegemony over the rights of individuals and the powers reserved to the states. We will radically alter its cash flow, and its ability to subvert the meaning of words for political gain.

Many think Congress will not acquiesce to our demands, but we have a legitimate Constitutional argument to force its hand. “Shall” is unequivocal. And if the progressives think it is not then the vast majority of laws passed in this country, including their precious socialized medicine, are illegitimate. Hell, the 1^st Amendment would be absolutely useless if “shall” is not absolute, let alone every other limit on government regarding our rights. The Supreme Court cannot ignore this fact, and 2/3 of states petitioning the courts will not be ignored. Furthermore, Alexander Hamilton wrote in Federalist Paper 85:

“By the fifth article of the plan, the Congress will be obliged ‘on the application of the legislatures of two thirds of the States…to call a convention for proposing amendments’…The words of this article are peremptory. The Congress ‘shall call a convention.’ Nothing in this particular is left to the discretion of that body.” (emphasis added)

We should be ready to call for an Article V convention, regardless. This requires a focus not only on national politics, but state politics. A majority in Congress will help us avoid a conflict over Congress’s obligation to call a convention, but it is the state legislatures that must call for the convention. We need 34 states to call a convention. We need 38 states to ratify whatever comes out of that convention. It must be our goal to take back the state legislatures in as many states as possible. And we cannot forget that goal in our drive to replace Congress.

We should not even begin to consider other means by which we can bring the national government in line with our national will (though preparation never hurts). In fact, we do not necessarily need to call an Article V convention. The mere threat may suffice, at least in the short term. Perhaps an election is all we need. I am an optimist, but I am not a naïve optimist.

Over 200 years ago we had a crisis over a weak national government. Our Founders strengthened the national government, but entirely in terms of limitation to prevent Tyranny. Over the course of time, those limitations have been slowly eroded by false promises and naked power grabs.

We are not beyond the brink, but I see Tyranny raising its ugly head on the not too distant horizon. “Don’t tread on me” means nothing unless we are willing to use every tool at our disposal to stop Tyranny in its tracks. Article V is a fairly potent tool, and the one most suited to our times.

The Emperor’s Old Robe: Justice John Paul Stevens

Despite praise as a civil libertarian and liberal advocate, Justice Stevens’ real friend was government.

Justice John Paul Stevens, retiring before the United States Supreme Court’s fall term, has long been considered the leader of the liberal’s intellectual bloc on the Court. While praise from the Left for Stevens will continue throughout the summer, the Obama administration has made it clear it plans to replace the Justice with a “like-minded” liberal.

Stevens penned the majority opinion in Hamdan v. Rumsfeld (2006), concerning the Bush Administration’s treatment of Guantanamo Bay detainees after 9/11. He held that the administration’s conduct violated the Uniform Code of Military Justice and Common Article 3 of the Geneva Convention. He was also influential in establishing the privilege of habeas corpus for suspected terrorists in Boumediene v. Bush (2008). For his role in these cases, many liberals and civil libertarians have held Stevens in high regard. In addition, Stevens joined the conservative bloc of the Court in Crawford v. Washington (2006), overturning years of bad law regarding the Confrontation Clause of the Sixth Amendment and providing bright-line protections against out-of-court statements used against the accused at trial. With government intrusion and involvement already secured and guaranteed, Stevens frequently voted to scrutinize government procedure and broaden protections for the accused.

Stevens, however, was not so friendly to the cause of freedom and the protection of individuals from such interference. Stevens was skeptical, sometimes fearful of individual rights, consistently deferring to government power and tolerating its expansion into private lives.

In Kyllo v. United States (2001), the nation’s highest court heard the issue of whether thermal imaging could be used to “search” homes without a warrant. This police practice involved measuring and monitoring the heat radiation from private homes to find persons cultivating indoor marijuana. The Court held that the use of thermal imaging to detect activity within a home constituted a search under the Fourth Amendment and required a warrant. Even the ACLU filed an amicus brief in favor of the Court’s holding. Stevens dissented, arguing that there was no reasonable expectation to privacy, choosing to refer to the government’s behavior as “surveillance” instead of a “search.” Had Stevens garnered an additional vote on the bench, this police “surveillance” would be law, reaching inside the private home at the whim of Big Brother.

Stevens again voted in favor of government expansion at the expense of individual rights, writing the majority opinion for the controversial Kelo v. City of New London (2005) case. Kelo involved a plan by the local government to take private property and give it to another private entity for purposes of economic restoration. It held that private property, taken by government for other private economic development, constituted “public use” under the Fifth Amendment. The infamous case led President George W. Bush to issue an executive order limiting the decision’s effect on the federal government takings policy, and the majority of states to enact laws protecting state citizens from Kelo’s reach.

Perhaps most alarming was Stevens dissent in Texas v. Johnson (1989), where Stevens voted to uphold a ban on burning the United States flag. As a World War II veteran, Justice Steven’s view of flag-burning as a deplorable act is understandable; his explanation for upholding a constitutional ban is not. Stevens wrote that the case had an “intangible dimension” that made the Court’s usual First Amendment analysis inapplicable. This “intangible dimension” apparently comes from the flag’s status as “a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations.” He concluded by writing, “The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for – and our history demonstrates that they are – it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.” Stevens’s strange logic can be summed up: The First Amendment must be curtailed in order to protect freedom, liberty, and equality; to save freedom, we must restrict it (in this case, imprison a flag-burner).

In the landmark Second Amendment case, D.C. v. Heller (2008), Stevens argued that the “right to bear arms” was not an individual right, but a collective right that was conditioned upon membership in a defined militia. More shocking, Stevens made an analogous argument that the First Amendment, specifically the right to assemble, was merely a “collective right” because it could not be exercised alone. Conceding it takes two to tango, the right to assemble belongs to the individual and is not conditioned on involvement in a specific assembly. As pointed out by the majority opinion, penned by Justice Antonin Scalia, “The unamended Constitution and the Bill of Rights use the phrase ‘right of the people’ two other times [along with the Second Amendment], in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people). All three of these instances unambiguously refer to individual rights, not ”collective’ rights, or rights that may be exercised only through participation in some corporate body.”

More recently, in Citizens United v. Federal Election Commission (2010), the Court held that corporate spending on individual political candidate “electioneering communication” could not be limited under the First Amendment. For advocates of individual rights, this decision was a breath of fresh air. The First Amendment protects both the individual’s freedom of speech and right to assemble; therefore, it follows that the individual would have the same freedom of speech when assembled in an association; even if that association is in the corporate form. Stevens saw his concerns with corporate influence in elections a more important issue than the individual’s freedom of speech and right to assemble. Just as with flag-burning, Stevens’s own arbitrary concerns trumped the freedom of individuals. Justice Scalia opined that Stevens’ dissent was “in splendid isolation from the text of the First Amendment.”

Justice Stevens, a member of the Court since 1975, displayed distrust for freedom and voted on the wrong side of many significant constitutional issues. He willingly eroded individual rights in favor of intrusive government policy. Stevens’ uneasiness with freedom and individual rights led him to substitute textually sound, constitutional arguments with “intangibles” and fearful hypotheticals involving individuals abusing their rights at the expense of others. Justice Stevens decided to hang up his old, worn, black robe for the final time. May his replacement, likely to have a long tenure on the bench, hold not the same trepidation regarding freedom, but wear the robe in protection of individual rights.

Was Coffingate A Fundraising Stunt?

I know a little something about coffins. And I know when I’m being lied to.

An email arrived in my inbox this afternoon from Missouri Secretary of State Robin Carnahan’s baby-brother, Congressman Russ Carnahan (D-Missouri). In this email, Carnahan pledges to not be intimidated by Coffingate, and then asks me for money. This email may be the most despicable yet of the campaign season. After a brutal 48 hours of press retractions about an incident regarding a coffin placed near his house, Carnahan is attempting to hustle money for intimidation that did not occur.

Carnahan provides a link to a piece in Politico – the very piece that was suggested to Politico reporter Jake Sherman by a Carnahan spokesperson, (and subsequently corrected). Here is some text from his email.

They’ve tried every dirty trick in the book to block critical reforms that will stop insurance companies from rejecting children with preexisting conditions or denying care to those who are sick. Try as they may, we will not be intimidated.
Help me send a message that threats and extreme tactics will not work. Please contribute $100, $50 or even $25 right now to help me fight back against those who will stop at nothing to block health care reform for Missouri families….

It must be hard to get good help these days. At the center of the controversy is Sara Howard, Congressman Carnahan’s spokesperson for his re-election campaign. Howard comes from SEIU, where she spent a number of years learning the ins and outs of labor-press relations.

Among those lessons was the use of race-baiting flyers that accuse Republicans of hosing down Southern blacks to prevent them from voting. Howard defended the use of this flyer in 2004, when she worked at the Missouri office of Americans Coming Together. The flyer was placed in urban neighborhoods with the intention to foment resentment in the black populace, which, at the time, was showing insufficient enthusiasm for John Kerry. This is the background Carnahan found appealing in his campaign staff.

Howard was hired just days before the August Townhall, the same one where SEIU “purple shirts” assaulted Kenneth Gladney, and just days after a memo from HCAN’s Margarida George layed out the strategy for combating an energized Tea Party. Howard’s hiring was unique, in that Carnahan had suffered a series of humiliating public gaffes, and St Louis became the first of many cities where SEIU bused in supporters to townhalls, controlled the entrances and the format, hushed protestors, and in some cases, used physical intimidation. Her hiring was either extremely timely, or designed to bring SEIU into Carnahan’s corner.

Mission accomplished.

In September, Ed Martin filed for the Republican primary to get the chance to challenge Carnahan in the 2010 Congressional election. Initial fundraising reports showed Martin outraising Carnahan in that quarter, a stunning turn of events considering Carnahan is a member of the House Leadership. In the fourth quarter, Carnahan did beat Martin in fundraising, but only after a third of his total came in the door in the last three days of the quarter.

With the unpleasant press from the townhalls, the national uprising against the healthcare bill, rumors about the $90 million in stimulus funds given to the Carnahan family business, poor fundraising totals, and embarrassing gaffes like a staged gun range photo that was shopped to the local paper, Carnahan’s campaign must have been in a cold sweat. What would be the best way to drive money?

How about inserting a coffin into the conversation?

Starting Wednesday night, three days after the mock-funeral and prayer-vigil was held, Sara Howard began confirming the story to reporters about a coffin left on the front lawn of Carnahan’s home. Later stories would be changed to “placed near the family home” instead of left on the lawn, and the mock-funeral was moved back to Sunday instead of Wednesday. But the basic story repeated by the AP, UPI, and hundreds of local papers was the use of a coffin as a political threat against Carnahan. The timing of the story coincides with alleged threats to other members of Congress from both sides of the aisle. Only Carnahan seems to be crass enough to pretend he did not take the coffin as a threat and also use it for fund-raising.

Here is Howard’s original story as reported Wednesday night. Note it says the coffin was left in the front lawn on Wednesday. A second version says it was used in a protest Sunday, (but only worth taking to the press on Wednesday). A third version states Carnahan does not see the coffin as a threat, but instead asks for civil discourse.

As we now know, the coffin was a stage-prop. It was covered with an American flag, and the protest itself was covered by local television station KSDK. The coffin was not left on any lawn, but instead was used and then taken back to the garage of a St Louis Tea Party organizer.

Knowing this, Carnahan still sends out a fundraising request painting himself as a victim, citing a story he planted in the national press three days after the incident occurred. He must have been so frightened he couldn’t call the press for three days.

If this entire story was not an attempt to create a fake Joe Wilson fund-raising moment, it has become one. Carnahan is now part of a group on the liberal fund-raising site ActBlue called Congressional Victims of American Terrorists. $2 has been donated so far. What makes this a farce is that Sara Howard told a local television station that Carnahan did not feel threatened by the funeral.

Carnahan press secretary Sara Howard told KMOV this morning that the Congressman did not take the mock funeral as a threat, but did say that this “kind of rhetoric and behavior has absolutely no place in civil discourse.”

Let us recap. Facing bad fundraising news, Sara Howard plants a story in Politico, which had to be corrected, then confirms the story with Missouri reporters, before changing the story and stating there was no threat. This was followed by a clumsy fund-raising email asking for money so Carnahan could continue to not be intimidated by the non-threatening coffin that was not left on his lawn.

Maybe the threatened feeling has to do with the end of his political career. Now that’s some justice I can get behind.

How Many [Justice] Lawyers Does It Take To Screw In A Lightbulb?

Everyone has their favorite lawyer joke. Most end up rather poorly for the lawyers.

I understand the public outcry against lawyers, recently stoked by the situation at the Department of Justice (DOJ). For those not familiar with this news, Attorney General (AG) Eric Holder is in a pitched battle with members of the Senate over the backgrounds of nine attorneys working at DOJ. Apparently, each of those attorneys have either represented or advocated for terrorist detainees. Two have been identified: Principal Deputy Solicitor General Neal Katyal was lead counsel for Guantanamo detainees in the Supreme Court case Hamdan v. Rumsfeld; Jennifer Daskal advocated for Guantanamo detainees with Human Rights Watch (HRW).

A little background on their background:

Hamdan focused on the Combatant Status Review Tribunals (CSRTs) established under Executive Order by former President George W. Bush in 2001. CSRT determination was crucial to understanding detainee rights under the Geneva Conventions (adopted by the US), which grant specific rights to lawful enemy combatants (see Article 4) and are silent in regards to unlawful enemy combatants (see Article 5). CSRTs were a form of military commission. The main problem the Supreme Court had with CSRTs is that they were not “regularly constituted courts” under the Geneva Convention because our Constitution grants Congress the power of establishing courts. So Congress passed the Military Commissions Act, which was partially struck down by the Supreme Court in Boumediene v. Bush (but that is a story for another day).

HRW is “dedicated to protecting the human rights of people around the world.” It sounds nice, but the group admits to “targeted advocacy.” Started in 1978, HRW focused on the atrocities committed by the Evil Empire of the Soviet Union. When the Evil Empire collapsed in 1991, HRW decided to shift its main attention to the “Evil Republic” of the US. I suppose HRW decided it could not fire the vast amount of people needed to identify atrocities committed by the Evil Empire, and there was only one major power left. I also gather that it is a little easier to address “atrocities” committed by the US, as opposed to atrocities committed by China or Russia.

AG Holder refuses to identify the remaining seven lawyers, and in fact, there may be more lawyers with similar backgrounds.

Now we get to the point where you may initially disagree. While AG Holder should identify the remaining seven attorneys (promises of transparency notwithstanding) this should not turn into a witch-hunt. Some attorneys have an agenda in targeting certain clients and cases, but most attorneys simply practice their profession. Lawyers get a bad rap because you often hear about the bad ones. I am guilty of this, and sparked some expected backlash against lawyers, in general. What you have to remember is that there is ALWAYS a lawyer on the other side, and it is a lawyer’s duty to represent his client to the fullest extent of the law. And sometimes you have no control over who your client is.

John Yoo comes to mind. Mr. Yoo was recently vindicated from allegations of professional misconduct for legal opinions pertaining to enhanced interrogation techniques, among others, during his tenure at DOJ under former President George W. Bush. In fact, the DOJ attorneys accusing Mr. Yoo are probably deserving of allegations of professional misconduct. The controversy over his opinions centers on one addressing a principle of international law called jus cogens. These are peremptory norms in international law from which states may not derogate. Not necessarily contained in any treaties adopted by the US, it is a list of international no-no’s. Piracy was one of the first, followed by slavery, genocide and torture. The problem with these principles is that they are not clearly defined under international law, but are really only understood through practice and state (national) law. Keeping this in mind, Mr. Yoo was asked to outline the limits of Executive authority to interrogate detainees within the confines of US law, including treaties adopted by the US.

The point is that Mr. Yoo had a client who wanted a result. His job, as an attorney, was to satisfy his client to the extent the law would allow him, and our common law system allows for a lot of leeway when laws are not directly on point. We do not have to agree with his opinion, but that should not necessarily extend to the man. Understanding this, I can fathom why AG Holder is stone-walling. Communications between DOJ attorneys should be as protected as communications between any other Executive branch officials, assuming nothing on par with Nixon is occurring. However, AG Holder should not be allowed to withhold the identities of those attorneys. The public should be able to weigh in on the decisions of any president’s administration, especially when the officials at issue are not subject to confirmation by the Senate. This sort of conduct by the AG only heightens the public sense that something nefarious may be afoot. Transparency would limit that affect.

So as I stated earlier, I understand the public outcry against lawyers, but lawyers are people, too. They have families, work obscene hours, span the political spectrum, and a lot of them feel the pressures of the present state of the economy. Perhaps these DOJ attorneys should be subjected to scrutiny by the Senate but let us not jump to conclusions. At this point, the only bad actor is AG Holder, and he should not be representative of the entire legal profession.

The answer to the question: "It depends, that'll be $300."

ACORN’s Attorneys Stole $450,000 From Missouri Taxpayers

In July 2005, the United States Justice Department began investigating Missouri for non-compliance under the National Voter Registration Act of 1993 (NVRA). Justice was not investigating for failure to register voters; rather the problem was too many voters. About 1/3 of Missouri’s counties had registered voters that exceeded the number of eligible voters. One county’s ratio was upwards of 150%. Justice found that the Missouri Secretary of State (SoS) failed to conduct a general program that made reasonable efforts to clean the voter rolls, and filed a lawsuit.

We would presume that Project Vote conducted a study, found that a nefarious plan to dilute the vote of low-income voters was taking place, and filed an amicus brief in support of the government’s lawsuit. We would be wrong. Government suits do not generate attorney’s fees under NVRA, but more importantly, SoS Robin Carnahan (D) has close ties to the legions of progressive groups. And the government did not stand a chance with Judge Nanette Laughrey (appointed during the governorship of Robin’s father, Mel Carnahan, and a former Carnahan aide-de-camp), who, despite her left-leaning tendencies, managed to deliver a summary judgment that would make any strict constructionist proud. Judge Laughrey writes that Carnahan had no responsibility to actually do anything, other than “coordinate,” which is left up to Carnahan.

Despite the amusement of a liberal judge mimicking a Scalia or Thomas, the district court ruling went too far; even for a panel of judges on the 8th Circuit, composed entirely of W appointees. There are definitely flaws in the NVRA. Former Ohio SoS J. Kenneth Blackwell pointed them out rather deftly, and Project Vote has utilized these flaws to further a progressive agenda with ACORN. The problem with district court ruling is that it clearly was meant to provide cover for Secretary Carnahan. Even after the 8th Circuit found that SoS Carnahan was still responsible for conducting “reasonable efforts” to comply with the various NVRA provisions, Judge Laughrey white-washed the efforts of Carnahan, belittled the government’s minimal expectations regarding compliance under NVRA, and established a target for Project Vote and ACORN that would be easy prey in later suits.

In March 2007, Project Vote began communicating with SoS Carnahan about Missouri’s compliance under NVRA. Project Vote was quickly informed that the SoS had very little responsibility regarding NVRA, according to the aforementioned case. Of course, SoS Carnahan still had access to all of the relevant information regarding Missouri’s compliance. And since excessive voter registration “clearly” was not a problem in Missouri, progressive focus centered on voter registration at public agencies. The target was Local Election Authorities (LEA’s) and the Department of Social Services (DSS). In Missouri, DSS has direct control over the conduct of local agencies. What followed was standard Project Vote procedure for instigating litigation.

In May 2007, ACORN and Project Vote allegedly visited DSS offices to conduct “secret shopper” evaluations, posing as eligible recipients for DSS services (recall the heavy-handed response to James O’Keefe’s conduct in Louisiana). I say allegedly because it appears that DSS and the other defendants objected to this testimony as hearsay during the hearing on the preliminary injunction. Loose evidentiary rules during the hearing allowed for the testimony, but as the case progressed we only got this information from ACORN’s plaintiff, Dionne O’Neal. What is notable is the lack of detail in all of this. The only real details we get come from Dionne O’Neal. Interestingly, though O’Neal is a member of ACORN, and ACORN spends millions registering low-income voters, O’Neal was not registered to vote at the time. How convenient!

Now that ACORN had its plaintiff, Project Vote had to build the case for non-compliance under NVRA. In September 2007, Project Vote issued a “scientific” study, written by Douglas Hess, alleging everything in the previous paragraph. That same study alleges only 4 out of 53 visitors were offered voter registration services (with no details). This study lays out the numbers regarding registered voters in Missouri, and notes that the number of people registered by DSS has dropped from 143,135 in 1996 to 15,568 in 2006. Of course, nowhere does the study address the excess of voter registrations found by the government in 2005. After proposing four weak hypothetical explanations for the decrease, Project Vote concludes that Missouri must be violating the NVRA.

But neither Missouri nor the SoS was the target. The main targets were DSS and the LEA’s in St. Louis and Kansas City. Project Vote relied on letters from SoS Carnahan to each of the defendants to establish notice of NVRA violations. Which begs the question: if SoS Carnahan was doing such a good job conducting a general program that made reasonable efforts for Missouri’s NVRA compliance, why did she only realize that Project Vote’s targets may have been violating the NVRA after Project Vote suggested it to her? That is a topic for another day, but what is clear is that the defendants were not going to get any help from a SoS working with Project Vote.

They were not going to get any help from the judicial system either. ACORN filed its case in April 2008. In another stroke of “good luck” for ACORN, the case conveniently landed in the lap of Judge Laughrey. A concerted attempt was made to drop ACORN from the case for lack of standing, as argued by former Ohio SoS J. Kenneth Blackwell, but Judge Laughrey dismissed those efforts. An attempt to join the SoS was also rebuffed by the court. After months of draining litigation, suspecting that the SoS was working against them, and faced with a court unwilling to throw out bogus claims, DSS and the LEA’s settled in 2009.

As a result of that settlement, ACORN and its allies were granted attorney’s fees of $450,000. In response to claims that ACORN stole $450,000 from the state of Missouri, ACORN and its defenders make the claim that the money only went to lawyers, not directly into the coffers of the organization. This may be accurate (although money paid to Project Vote always seemed to find its way back into the hands of ACORN’s national headquarters), but it doesn’t make it any better. These same lawyers now have direct resources to pursue other cases without relying on donations from the Democracy Alliance or the Tides foundation. They also have a track record for other lawyers to consider when joining suits in other states. They attempt to deflect blame from ACORN, but the money will be used for the same purpose – furthering the progressive attack on our electoral process.

Project Vote In Ohio: It Ain’t The Voting, It’s The Counting

“Congress should address the need for both national standards and a more robust enforcing authority. If not, more decision making will fall to the states,” said Miles Rapoport, President of Dēmos, an umbrella corporation for the myriad of progressive groups attacking our state electoral processes. Progressives, realizing the Help America Vote Act of 2002 (HAVA) left much of the implementation to states, began their National Voter Registration Act of 1993 (NVRA) assault in 2006.

The first battle over compliance with the NVRA occurred in Ohio in 2006. Coincidentally, the Secretary of State Project (SoSP) focused much of its efforts on seizing the open-seat for Ohio Secretary of State that same year. Seeing an opportunity to de-legitimize Ohio’s electoral process and to create an atmosphere favorable to a progressive candidate, ACORN filed a suit a little over a month before the 2006 elections. Sound familiar? It was the strategy in Michigan in 2004. But Secretary of State J. Kenneth Blackwell (R) was not going to leave office without a resolute fight in defense of Ohio.

At issue was NVRA § 7: Voter Registration Agencies. Any state agency providing public assistance received designation as a voter registration agency. Public assistance agencies were supposed to follow a set of procedures providing mail voter registration, assisting applicants in completion of those forms, and accepting completed voter registration forms. Each state designates a “chief state election official” to coordinate state responsibilities for compliance with the NVRA.

The procedures for compliance are rather straight-forward, so Project Vote had an easier job alleging non-compliance. Catch any agency on a day after it has run out of forms. Seek assistance from any personnel unfamiliar with NVRA requirements. Find any individual receiving public assistance that has moved, and was formerly registered to vote. Compare the number of individuals registered in the first year under NVRA to the number of individuals registered now (because every year should see the same amount of people receiving public assistance, the same amount of people unregistered, and they will always be new or moved people, right?) Send a letter to the chief state election official alleging non-compliance through “scientific” studies. Demand a plan to remedy violations. Offer “help” to the state. Then sue to “protect” the voters (and more importantly, recoup expenses). Brilliant!

Republican Secretary of State Kenneth Blackwell fought back. A motion to dismiss was filed on three grounds: (1) standing (of ACORN), (2) notice, and (3) improper party defendants.

• (1) Standing:

This was the best argument, and one that should be utilized anywhere ACORN or other progressive groups file suit. First-party standing requires (a) injury in fact, (b) the injury is fairly traceable to the challenged action of the defendant, and (c) likelihood the injury can be redressed. Third-party standing requires (a) members would otherwise have standing, (b) the interests at stake are germane to the organization’s purpose, and (c) neither the claim asserted nor the relief requested requires participation of individual members. Additionally, mere interest is not sufficient to confer standing and the organization must establish that its ability to further its goals has been ‘perceptively impaired’ so as to constitute more than an abstract setback.In regards to first-party standing, the court points out that ACORN would have spent money on voter registration drives anyway. As to third-party standing, ACORN failed to allege anything other than an abstract setback to its goals (whatever that might be).

• (2) Notice:

Notice was established fairly easily, as ACORN notified the “chief state elections official” of the alleged violation of NVRA involving the individual plaintiffs identified in the suit.

• (3) Improper Party Defendants

A proper defendant can be forced to redress the plaintiff’s injury. Whether the SoS would be a proper defendant was in flux at the time of this ruling. What is clear is that the progressives had not done their homework. Contempt for state law led them to not read and argue the state statutes with precision. Ignorance left them clueless as to the contemporary understanding of liability under the NVRA in the federal courts. And because SoS Blackwell was not going to “help” ACORN, the lawsuit floundered in federal district court.

In the memorandum in opposition to the motion to dismiss, Project Vote’s attorneys point to the state statute that would later allow ACORN to sue Ohio successfully. However, Project Vote explained the Ohio SoS’s duties in terms of the wrong federal court ruling. In United States v. New York, the federal district court determined that under New York state law and jurisprudence state officials were responsible for local enforcement of the NVRA. SoS Blackwell relied on United States v. Missouri, where the federal district court found that the SoS lacked enforcement responsibilities. In reality, Ohio statutes put the SoS’s responsibilities somewhere in-between Missouri and New York. In addition, Missouri, New York and Ohio are all in different federal circuits, so district court cases from each state are merely persuasive, not controlling. Regardless, the progressives got nowhere with state officials defending their state.

The case was dismissed in December 2006. Enter SoSP candidate Jennifer Brunner, who took office in January 2007. During her term as SoS, she did much to advance the voting issues susceptible to vote fraud that Michigan fought against in 2004. She agreed to work closely with public assistance agencies and ACORN to ensure “compliance” with NVRA. The District Judge, a Clinton appointee, even wrote a memorandum in opposition, citing Brunner’s willingness to do whatever she was asked to do. Unfortunately for Ohio, that was not enough for the progressives. ACORN, Dēmos, Project Vote and the associated attorneys wanted money. As you will see in Missouri, the need to generate legal fees was paramount over the desire to work with a state to register low-income voters. Even though ACORN had a SoS willing to help them, they appealed to the 6th Circuit to re-open the original case. Brunner used the same argument Blackwell had used. The appellate court skewered her argument, referring to the United States v. Missouri case and pointing out it had been overturned prior to her defense. Either Brunner is the most incompetent election-law lawyer ever (which would be surprising given her background), or she only wanted to put up the appearance that she was defending the interests of Ohio taxpayers. This second time around, the court interpreted the state statutes broadly to grant the SoS enforcement powers under NVRA. It was Brunner’s responsibility. And so Brunner’s office settled in November 2009. As a result, the progressives and their lawyers were granted an as yet unreleased amount of money from Ohio taxpayers for the settlement.