Saturday, June 26, 2010

切腹,* Or . . . There Go The Republicans On The Senate Judiciary Committee, Again

On March 22, 2009, I wrote the following blog, entitled “Obama’s Judges”:

It begins!

The fight for the heart and soul of the Supreme Court of the United States began last week when Obama fired a warning shot across the bow of the Republican Senate minority.

Obama has nominated an Indiana political veteran, currently masquerading as a federal district judge, for a seat on the United States Court of Appeals for the Seventh Judicial Circuit.

His name is David Hamilton, formerly counsel to Democrat governor Evan Bayh, now an Indiana United States Senator who is the nominee’s rabbi.

Even though Hamilton had been a staunch ACLU apparatchik before political pull found him a seat on the United States District Court [for which he was rated “not qualified" by the American Bar Association], Obama claimed that his nominee has a "long and impressive record of service and a history of handing down fair and judicious decisions." Indeed, the White House painted Hamilton as a "moderate"—thus moving the goal posts from Left to Right.

Others have a different view of what they call Hamilton’s "pretty clear leftist political record." Wendy Long of the Judicial Confirmation Network adverted to his ACLU work, asserting that Hamilton "appears to have made rulings that show his willingness to bend the law to reach outcomes favored by his ACLU allies, which are inconsistent with the proper role of a judge under our Constitution."

And where will the Republicans be on the Hamilton nomination, which is doubtless a trial balloon for the soon-to-be first Supreme Court vacancy?

Indiana’s Republican senator, Richard Lugar has been the first to fold: he promises to "enthusiastically support" the nomination—a crucially important endorsement for Hamilton because a judicial nominee, any nominee for that matter, needs the support of his home-state senators.

The Senate Club is yet again accommodating its own, and if the Lugar apostasy is a portent of Republican reaction to Obama’s judicial nominations—especially to the courts of appeal (where most of the federal appellate work is done), and surely to the Supreme Court—the Left-Democrats will sooner than later probably control all three branches of the federal government.

Then, the "Living Constitution" will be in full bloom, its noxious blossoms completing the job of poisoning our nation.

In this regard, a lengthy essay I wrote before the election bears repeating (see It is reprinted below in its entirety.


Last week’s Supreme Court 5-4 decision in Boumediene v. Bush—holding that alien unlawful enemy combatants have a constitutional right to use habeas corpus in American federal courts to challenge their detention—came as no surprise to those of us who have watched the "Living Constitution" virus metastasize since that ideological disease first began to infect the judiciary during the Warren Court era.

Those who subscribe to "Living Constitution" ideology believe that the founding principles of this Nation are passé, that the Declaration of Independence’s ringing endorsement of limited government and individual rights is outdated, that the Constitution’s creation of a representative republic is from a long past moment in history, and that the Bill of Rights is not a restraint on government but rather a source of newly invented "rights."

The "Living Constitution’s" partisans’ high priest was the late Warren Court-era Supreme Court Justice William J. Brennan, Jr. According to him, in a 1985 speech, the Constitution "embodies the aspiration to social justice, brotherhood, and human dignity that brought this nation into being. * * * Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure." (My emphasis.)

Brennan was saying that the Constitution, rather than delegating specific powers to the federal government (Articles I, II and III), respecting state sovereignty (Tenth Amendment), and recognizing the existence of enumerated (Amendments I-VIII) and unenumerated (Amendment IX) rights, instead embodies amorphous "aspirations." Whose aspirations, Brennan did not inform us.

But Brennan did tell us what those aspirations are: "social justice, brotherhood, and human dignity."

We’ve learned the hard way that by "social justice" Brennan meant that the Supreme Court would allow Minnesota to rewrite mortgage contracts to benefit defaulting farmers (Home Building & Loan Association v. Blaisdell). "Brotherhood" would permit law schools to racially discriminate in the name of diversity (Grutter v. Bolinger), and Roe v. Wade would foster murder of the unborn to protect “privacy.”

After his paean to "social justice, brotherhood, and human dignity," Brennan’s 1985 speech continued: "When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is . . . the community’s interpretation that is sought. * * * But the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. * * * Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized." (My emphasis.)

Let’s analyze Brennan’s startling statements piece by piece.

"The phrasing is broad and the limitations of its provisions are not clearly marked." Doubtless Brennan was referring, for example, to Article I “(The House of Representatives . . . shall have the sole Power of impeachment”), Article II (“The executive Power shall be vested in a President of the United States”), Article III (“The judicial Power of the United States, shall be vested in one supreme Court”), Article IV (“No new State shall be formed or erected within the Jurisdiction of any other State”), Article V (“No State, without its Consent, shall be deprived of its equal Suffrage in the Senate”), Article VI (“No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States and Article VII (“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States ratifying the Same”)—and of course in the Bill of Rights, for example, the First Amendment (“Congress shall make no law”). (My emphasis.)

If this "phrasing is broad”"and if these “"imitations . . . are not clearly marked," then nothing in the Constitution and Bill of Rights is—which is exactly what Brennanites want, as they worship their Living Constitution.

"When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is . . . the community’s interpretation that is sought." Here, Brennan was wrong on two counts. Putting aside what "community" the judges are supposed to speak for (village, town, city, county, state, country, hemisphere, continent, UN, EC, NATO?), proper constitutional interpretation speaks for what the words say and what they meant at the time they were written, and to the men who wrote them. Nor are today’s justices supposed to speak "for themselves alone." Who cares what they think, compared to the Constitution’s words and their meaning?

"What do the words of the text mean in our time,”"Brennan asks about the Constitution. Thus, in the world of the "Living Constitution," the "in our time" requirement that the President be at least 35 years of age should really mean 60 because, after all, life spans are much longer today than in 1787. Or the words "[n]o state shall impair the obligation of contracts" should mean, "in our time," except when farmers need debt relief—as the Court held in Home Building & Loan Association v. Blaisdell.

"The genius of the Constitution," Brennan told us, "rests not in any static meaning it might have had . . . ." "Static," in Brennan’s context, is of course a pejorative term, suggesting that anything fixed and immutable is somehow undesirable—though Brennan would doubtless not see the First Amendment as undesirably static.

"In a world that is dead and gone . . . ." Putting aside the melodrama of this passage, if, as Brennan says, the world of the Framers is "dead and gone"—where government was limited, individual rights paramount, federalism understood, state sovereignty protected—that is all the more reason to now interpret the Constitution in accordance with the principles that ruled in those bygone days.

"But in the adaptability of its great principles . . . ." It is facially contradictory for Brennan in one breath to condemn "static meaning" and in the next to laud "great principles," because if principles are indeed great, like not bearing false witness, their strength is in being "static."

"To cope with current problems and current needs." Immediately after the Civil War, when the Fourteenth Amendment was adopted, there was no "current problem”"about some private land being burdened by racially restrictive covenants, and there was at that time no "current need" for Negroes to move into formerly white suburbs. However, such a problem/need did arise after World War II. Thus, according to Brennan, it was appropriate that the Equal Protection Clause, which was never intended to invalidate concededly valid private land contracts, should be employed to hold unconstitutional judicial enforcement of those covenants. Brennan should have asked the Japanese-Americans who were shipped off to internment camps after Pearl Harbor if they thought the litmus paper of constitutional interpretation should be "current problems and current needs." Or the dead American draftees who perished in Vietnam. Or, for that matter, Negro slaves on the day the Dred Scott decision came down.

"Our Constitution," Brennan concludes, "was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized."

Ah Ha! The "static meaning" that Brennan decried earlier in his speech was apparently not intended to be static after all.

Nor, apparently, was it intended that the clear text of the Bill of Rights should preserve the individual rights guaranteed by the Constitution’s first nine amendments.

In effect, Brennan would have us believe that the Constitution was a mere outline for a script yet to be written by judges about "new principles," which the Framers were apparently too dull to have "sufficiently recognized"—"new principles" like sterilizing imbeciles, outlawing capital punishment, inventing "prisoners’ rights," imposing racial quotas, murdering the unborn, restricting political speech, and much more.

William J. Brennan, Jr., like many of his colleagues then and now (today, think Justices Stevens, Kennedy, Souter, Ginsburg, Breyer), and countless other federal and state judges throughout the United States, are not just liberals, which would be bad enough. They are, philosophically, collectivists and statists who believe with the orthodoxy of zealots that "rights" are created by society and its Platonic guardians, the judges, and that through the exercise of government power utopian goals can be achieved without regard to constitutional principles or the moral code that underlay them at the Founding.

In short, Brennan and his ilk are utterly indifferent to the proper role of judges, and see themselves as uber-legislators imposing their personal policy preferences on the unwashed in the guise of constitutional interpretation.

Which bring us to the current election and presumptive Democrat Party nominee [and now President], Barack Obama.

Putting aside that Obama is plainly a white-hating, white-using radical, and probably a Marxist Elmer Gantry, it needs to be said that if the fate of the federal judiciary, let alone the Supreme Court, falls into his hands (especially with a compliant Senate), our Nation will be crippled in its domestic battle against socialism and our foreign war against Islamofascism.

This is not a charge that I make lightly, but rather one rooted in the words of Obama himself.

On July 17, 2007, Obama made a speech in Washington, D.C. to the country’s leading abortion-meisters, "Planned Parenthood." In the words of NBC reporter Carrie Dean, Obama not only "leveled harsh words at conservative Supreme Court justices," but "he offered his own intention to appoint justices with 'empathy'."

"Empathy," according to Webster’s New World Dictionary of the American Language, is "the projection of one’s own personality into the personality of another in order to understand him better; ability to share in another’s emotions or feelings."

Thus, we have been unmistakably warned that Obama will appoint Supreme Court justices who will not honestly interpret the Constitution, Bill of Rights, and Fourteenth Amendment—let alone on the basis of what they say and meant to those who wrote them—but who, instead, will project their own personalities into others to understand them better; justices who can share in those others’ emotions or feelings.

And who might Obama’s empathy-receivers be?

Obama himself told us in that same 2007 Planned Parenthood speech: "We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges." (My emphasis.)

It could not be clearer what this pretender to the presidency [now President] of the United States has admitted.

So much for the classical liberal philosophy that was at the Founding’s core and in its fundamental documents. From now on, constitutional interpretation Obama-style is to be through the eyes of whom he sees as society’s alleged victims.

Obama’s confession drops Brennan’s "Living Constitutionalism" into yet a lower rung of hell. His confession reveals that while the Brennanites fed the "Living Constitution’s" voracious appetite in order to achieve the amorphous goals of "social justice, brotherhood, and human dignity," Obama will nurture the beast with what’s left of limited government and individual rights, all in the name of "empathy"—a code word for something much darker: sacrifice of constitutionalism to the needs of society’s perceived victims.

This perversion of America’s essence—individuals as supreme, with government as their servant—is Brennanism squared. While our Nation has been able to survive Brennanism—though with the recent Guantanamo decisions, especially Boumediene v. Bush [and other decisions since], who knows?—we will not be able to survive Obama-appointed Supreme Court justices.


I wrote the foregoing before the 2008 election.


I wrote the following soon after the 2008 election.

The battle over those justices has now begun with the Hamilton nomination, and so far Republican Lugar is AWOL. We’ll soon see how many of his GOP colleagues—Specter, Stowe, Collins, McCain, Graham, Voinovich?—join him in deserting principle in return for pork, earmarks, fellowship and grandstanding.


The following, I wrote today:

Well, David Hamilton was confirmed, and now sits as a judge of the United States Court of Appeals for the Seventh Circuit.

And so was Sonia Sotomayor, whom the Republicans didn’t lay a glove on, who now sits as a justice of the Supreme Court of the United States.

Which brings me to Monday, June 28, 2010 and the beginning of hearings on Obama’s nomination to the Supreme Court of Elena Kagan, late of the Harvard Law School and other overtly progressive legal venues.

I read that the Republicans on the Senate Judiciary Committee have designed a brilliant plan to oppose Kagan with earth-shaking revelations that as dean of HLS she kept military recruiters off campus, that she’s more of a politician than a lawyer, that she’s never been a judge.

If these reports are true, they prove once again that some of those dunces (and/or their staffs) do not understand the nature or importance of what it is they took an oath to defend: the Constitution of the United States of America.

They should be asking Kagan questions like:

Which Supreme Court justices, past and/or present, does she admire, and why?

Whether under Article II the President, not the judiciary, has the textual power to manage America’s foreign affairs and conduct wars?

Whether the federal government’s Article I powers are limited and enumerated?

What is the “delegation doctrine”?

Whether the Tenth Amendment reserves to the states all powers not expressly delegated to the federal government, nor expressly denied to them?

Should Supreme Court decisions rely on international law and, if so, to what extent?

What is the meaning of Article I, Section 10’s “contract clause”?

What presidential appointments are subject to Senate approval?

What does the Eleventh Amendment provide?

What is the difference, if any, between the meaning of Article IV, Section 2’s “Privileges and Immunities” and the Fourteenth Amendment, Section 1’s “privileges or immunities”?

What is the meaning of “substantive due process”?

What were the constitutional underpinnings of the Supreme Court’s decision in Griswold v. Connecticut?

What are the historical roots of the principle of “due process of law”?

Whether whatever other limitations on speech may exist, “political speech” should be absolutely protected?

Whether government can constitutionally discriminate on the basis of race, ethnicity, national origin, religion, disability, sexual orientation, citizenship or age?

Whether the “Cruel and Unusual Punishments” Clause should bar only cruel and unusual punishments imposed by a court?

What criteria should a justice use to interpret the Constitution or a federal statute?

If you agree with me that these questions, and many others like them—questions going to the root principles of American constitutional law—are ones the Republicans on the Senate Judiciary Committee should be asking nominee Kagan, instead of insipid, soft-ball questions such as whether military recruiters should be allowed on campus, please contact every Republican member of that committee.

Apparently they do not have conventional publicly available email addresses, but rather online contact facilities:

Using Sessions's as an example, choose "Judiciary," and in the box put "Questions for Kagan." Squeeze in as many as you can, and add "For additional questions, see []."

Here are what I believe to be their telephone numbers: Jeff Sessions (202) 224-4124; Chuck Grassley (202) 224-3744; Jon Kyl (202) 224-452; Lindsey Graham (202) 224-5972; John Cornyn (202) 224-2934; Benjamin L. Cardin (202) 224-4524; Tom Coburn (202) 224-5754


*The Japanese character means “stomach-cutting," a form of ritual suicide by disembowelment. Rather than disembowelment, some of the Republicans on the Senate Judiciary Committee may be better candidates for lobotomies.

Friday, June 25, 2010

At 60: The Still Forgotten Korean War

Today--June 25, 2010--is the sixtieth anniversary of the North Korean invasion of South Korea.

Important, unanswered questions remain about that war.

Did Stalin use North Korean Communist Kim Il-sung as a pawn to draw Mao Zedong into a war against the United States, thereby preventing a rapprochement between China and America?

Did Truman and Acheson, in order to arouse Congress and the American people from their post-World War II torpor, bait North Korea into attacking, by deliberately defining South Korea as outside the United States' defense perimeter and starving the South's military?

Did the Soviet Union contrive to be absent from the U.N. Security Council when it voted to send MacArthur's Eighth Army north of the 38th Parallel, headed for the Yalu River and on the other side Chinese Manchuria?

Was MacArthur both militarily correct and morally right when he sought to bomb Yalu River bridges and Manchurian hydroelectric plants?

Was MacArthur personally responsible for Chinese intervention, or was Mao's entry into the Korean War not a foregone conclusion and thus an institutional misfortune rather than any one individual's fault?

There are many other such questions, but rarely does anyone today ask, let alone answer, them.

Indeed, all day today I searched the Internet for essays by prominent American commentators at least mentioning the Korean War, and found virtually nothing. Today, our local paper had an editorial supporting the recent idea of making V-J Day a national holiday, commemorating the end of World War II. But not a word about the Korean War.

Yet, proportionally more Americans were killed during the three years of the Korean War than in all the years of the Vietnam War.

Journalist Clay Blair famously entitled his book about that conflict The Forgotten War.

Sadly, it's an apt title. And, in a way, also an apt epitaph--not just for the Americans who died there, but for our country's institutional memory of how, once, now long ago, we stood up to forces of darkness in an effort to destroy them.


No longer!