Jeffrey Rosen is a liberal in good standing. He is the legal affairs editor of The New Republic. He posted a piece on the passing of Robert Bork. Rosen was a summer intern on Joe Biden’s staff that summer. (May I say that some of the colloquies between the uber dense Biden and the uber brilliant Bork during the confirmation hearings make for some amusing viewing.) Although Rosen opposed the confirmation of Bork, he regrets the manner in which his nomination was defeated:
But even from the sidelines, as I celebrated Bork’s defeat, I remember feeling that the nominee was being treated unfairly. Senator Edward Kennedy set the tone with a demagogic attack. “Robert Bork’s America,” he said, “is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of Americans.”
Bork’s record was distorted beyond recognition, and his name was transformed from a noun into a verb. The Borking of Bork was the beginning of the polarization of the confirmation process that has turned our courts into partisan war zones, resulting in more ideologically divided opinions and less intellectually adventurous nominees on the left and the right. It led to the rise of right-wing and left-wing judicial interest groups, established for the sole purpose of enforcing ideological purity and discouraging nominees who have shown any hint of intellectual creativity or risk-taking. And it had obvious costs for Bork.
If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended. If the Constitution is law, then presumably, like all other law, the meaning the lawmakers intended is as binding upon judges as it is upon legislatures and executives. There is no other sense in which the Constitution can be what article VI proclaims it to be: “Law….” This means, of course, that a judge, no matter on what court he sits, may never create new
constitutional rights or destroy old ones. Any time he does so, he violates not
only the limits to his own authority but, and for that reason, also violates the
rights of the legislature and the people….the philosophy of original understanding is thus a necessary inference from the structure of government apparent on the face of the Constitution.
Robert Bork, one of the titans of American Law, has died. The foremost expert on anti-trust, and a champion of originalism in regard to the Constitution, Bork was appointed by President Reagan to the United States Court of Appeals for the District of Columbia. In 1987 he was nominated by Reagan for the Supreme Court. In a campaign of lies and personal vilification spearheaded, fittingly enough, by Senator Edward M. Kennedy his nomination was defeated. If he had been confirmed, Roe v. Wade would now be merely a bitter memory. Continue reading
by Joe Hargrave
Recently Kyle Cupp at Vox Nova (one of the good ones, he is) addressed the arguments of a Peter Sunderman at The American Scene regarding the validity of arguments against gay marriage. In brief, Sunderman doesn’t really believe there are any. Instead opposition to gay marriage, even his own, is motivated by a vague “intuition” that cannot find adequate manifestation in any rational argument. While Kyle unfortunately appears to agree with Sunderman, I do not.
Let us first be clear that the case for traditional marriage between one man and one woman is already more than amply made. As Kyle points out, gay marriage advocates such as Andrew Sullivan are willing to acknowledge all of the great and useful aspects of traditional marriage. What they maintain is that opponents of gay marriage have not demonstrated how its legal recognition will harm traditional marriage.
I have never been the greatest adherent of the notion that “the law instructs.” Oftentimes I believe laws merely reflect shifting economic and cultural trends, often playing catch-up after the fact. In the case of homosexual unions, however, any act that places them on the same level as traditional unions will necessarily send a message to everyone in society, including children, that it is a matter of indifference whether one marries a person of the same sex or of the opposite sex. And it must be mentioned here that in the face of declining Western birth rates, the case for traditional marriage is stronger than it has ever been. Contrary to overpopulation hysteria, which I suppose some will want to debate over, developed countries need more children, and they need them now. It is hard to see how the problem of declining birth rates will be addressed by a society that is indifferent to sexual behavior.
With that said, let us now make the easiest case against gay marriage.
Solicitor General Elena Kagan, President Obama’s nominee to the Supreme Court, is already being painted as a moderate by the media and some political interest groups. This portrayal of Kagan is difficult to dispute comprehensively because of her lack of a public record and accompanying statements that delineate her actual personal views on judicial philosophy, thus, complicating the venture of placing her on an ideological spectrum.
Despite this hermeneutical difficulty, allegedly confident political portraits have been made with the details that we do know about Elena Kagan. The New York Times on May 11 published a piece—“As Clinton Aide, Kagan Recommended Tactical Support for an Abortion Ban”—by Peter Baker discussing a memorandum authored by Kagan while she was working for the Clinton Administration. Kagan in the memo counseled President Clinton to support an amendment, authored by Senator Tom Daschle (D-SD), to Republican-sponsored legislation to ban partial-birth abortion that would include an exception for the “health” of the pregnant women in a ban—so broad an exception that it could be easily employed as a loophole that would prevent few, if any, partial-birth abortion procedures.
President Clinton and his advisors (in this case, Kagan) anticipated that the Daschle amendment would not secure enough votes to pass, but White House support could provide enough political cover for Democratic lawmakers who could reiterate their alleged support of the partial-birth abortion ban, but justify their vote against it because of the lack of inclusion of the broad “health” exception for the pregnant woman. In the end, the Daschle amendment failed and the Republican-sponsored partial-birth abortion ban, endorsed by the National Right to Life, was successfully sent to President Clinton who consequently vetoed it. Kagan’s advice to the President was successful and held up the passage of a partial-birth abortion ban for six years.
Douglas Johnson, the legislative director of the National Right to Life, before a joint-hearing before the U.S. Senate Judiciary Committee and the Constitution Subcommittee of the U.S. House Judiciary Committee in 1997 said:
“The Clinton-Daschle proposal is a political construct, designed to provide political cover for lawmakers who want to appear to their constituents as if they have voted to restrict partial-birth abortions, while actually voting for a hollow measure that is not likely to prevent a single partial-birth abortion, and which therefore is inoffensive to the pro-abortion lobby.”
In other words, a better reading of the facts is not that Kagan is “in the middle” on abortion, but rather she was advising President Clinton of the pragmatic steps (endorsing a pseudo-ban on partial birth abortion) needed to defeat the actual pro-life measure. Kagan may very well be a “legal progressive” as was recently claimed from the White House defending the nominee from the political left suspicious of her liberal credentials. Continue reading
[Updates at the bottom of this article as of 1:47pm CDT AD 10-1-2009]
[I’ve done my best to tone down the explicit talk related to Roman Polanski, consider this a PG article instead of the usual G]
Famed Hollywood movie director Roman Polanski, who has been hiding in France since 1978, was arrested five days ago by the Swiss Justice Ministry while trying to enter Switzerland at Zurich Airport for an outstanding 1978 US arrest warrant. Polanski was going to attend the Zurich Film Festival to receive a Lifetime Achievement Award. He is now waiting extradition, which he is appealing, to the US for his crime of engaging in unlawful intimate relations* of a 13 year old girl.