January 29, 2006

RINO Sightings for Jan 29!

The RINOs have been sighted! (actually, they're not that hard to spot, as they are scrambling to be noticed.) We have a good crop of free-ranging opinion and observation this week, as is traditional for the Sightings. Thanks to all the RINOs who submitted a post. Good stuff all around.

Dan Melson of Searchlight Crusade checks in with thoughts on the Alito nomination.  Dan is pulling for a filibuster (cause he thinks it will backfire big time...)

A Typical Joe submits his argument for adding Bible Study in the Public Schools. There's a part1 post as well here. The idea is to teach the Bible as an important piece of literature, which it is. I took a similar class 30+ years ago in a very secular private school and liked it. The religious angle makes this a extra-steamy hot potato issue, so I'm not holding my breath waiting for Bible classes in California schools.

AJ Strata of Stata-Sphere is wondering why some would try to "wage war with warrants and subpoenas."  AJ suggests we let the NSA do its job. Funny how as long as the NSA does its job and keeps terrorists from mounting attacks in the US, people can complain about their activity. If they back off, however, and an attack occurs, the same folks will complain about their inactivity. As you might have guessed, this issue only exists to create headlines, (or to try to create headlines.)  AJ astutely points out that so far only a hurricane has made it through the security net.

Tom Hanna of Tom Rants is ranting this week on the relative death rates of abortion and terrorism. He wonders, "How Big a Threat is Terrorism?" Its an interesting perspective, at least from the point of view of the society in general. For an adult like me, many decades past any personal risk of abortion, terrorism seems the larger threat.

Legal Redux has prepared a review of the thinking on whether the unborn are  "persons" under the 14th amendment. As you might expect, there are differing opinions. Redux if not a fan of either Justice Blackmun's or Justice Douglas' reasoning.  These are difficult ideas to think about, for many folks, and the attempt to create a legal framework where there is no clear science or opinion results in some twisted logic. One way the Roe decision has hurt the country is to prevent us from engaging in a painful but very necessary debate on points like this.

While were reading Law Blogs, So Cal Lawyer has found that at least one lawyer is responding to the revelations about the "autobiography" of James Frey. Said lawyer want to be compensated (of course) for time lost reading a biography that isn't. So Cal is shocked, but i can't say I'm surprised. In fact, I'm surprised its only one lawyer who has had this idea.

Ya know, we don't talk enough about Barry Goldwater these days. Reagan has become the icon for the conservatives, but Barry is certainly good for a quote now and then. Barry Campbell at enrevanche has some fine words from the other Barry on the subject of tyranny (with some word about equality as well.) 

Despite all the political controversy to talk about, Dean Esmay manages to find a contrarian view on the one issue about which there is no controversy! Dean does not find that commenters are nearly as uncouth as others say. Dean attracts a pretty classy sorta commenter, most days, but that may be a reflection on the quality of his blog, and his well reasoned, centrist positions. Other blogs attract a different sort, alas.

You know Eric Scheie in "in da house" when you see a post headlined, "Toilets and other Windows of opportunity." Believe it or not, the post concerns economic policy!  Apparently, Toilets are the current theme at Classical Values, and in this post Eric muses on the impact of government regulation on toilets, where regulation has been good for the manufacturers.

Over at Right Thoughts, Jim K. is feeling down on Wikipedia, now that Congressional staff members are practicing their "spin" on its pages, but feels a bit better about Google.

While Googe and China are getting friendly, the US and Germany are feeling less cozy these days. Alex Schoellkopf gets to observe US-German relations from a neutral position in Switzerland, and has some observations on " Why German-American relations are so poor." Apparently its a combination of German guilt over the 20th century and German envy of the French and their well-developed anti-Americanism. The blog is "Pigilito". btw.

Things are not so friendly on the US/Mexican border these days either. Diggers Realm has the dirt on accusations that American troops are impersonating the Mexican army.  Oh yea, I'm sure it happens all the time.

I can't believe it took this long to come up with a post on the House leadership race! Restless Mania admires how craftily Roy Blunt has lost the support of the right-wing bloggers. Not a good start for the likely next leader.

Scott Welch, the Environmental Republican, is looking towards the State of the Union address. Actually, its the "wishful thinking" from Philadelphia Inquirer columnist Dick Polman that has caught Scott's attention. Dick figures the Pres need to "restoke enthusiasm among restive conservatives." ("Restoke" (?) huh? Dick could have just said "stoke" but "restoke" sounds cooler, I guess.)

We are all over the conceptual map this week in the "Sightings." Here's a post from "J.D." at Evolution that starts with a rather confusing (and confused) message from a reader, who seems to very amused at his own comment (Lots of LOL's), that seems to say that thermodynamics makes evolution impossible. J.D. does some research and finds that this is not the first time this odd bit of confusion has surfaced.

Mark Coffey, who writes at Decision '08,  is posting about a different election this week. He has some questions for the big winners in this week's Palestinian election. Will Hamas still be Hamas, now that they are leaders too?

The Commissar has a suggestion for "The   10 words that Democrats should use to define their message ." It's a stirring slogan, sure to win votes (but not here in the U.S.)


This week's RINO Sightings closes out with a word from Orac of Respectful Insolence. Orac finds a picture from last week's big dual protest in San Francisco a bit irritating. I'm sure he's not alone. (I've seen some of the S.F. protests in person and the pictures don't do them justice. Very scary)

Thanks again to all the RINO's who contributed. A remarkable range of subject matter this week.

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Posted by Jay on January 29, 2006 at 11:15 PM | Permalink | Comments (2) | TrackBack

January 25, 2006

RINO Sightings - Coming Soon!

The Raging RINOs are gathering once again, for the weekly "sightings" carnival, and this week it's hosted here at Radical Centrist. If you're a RINO looking to be heard, get your submissions to radcen@theradicalcentrist.com by 6pm Pacific tomorrow (Sunday.)

What with the final "debate" underway on the Alito nomination, and the Republican House leadership up for grabs, there should be plenty to blog about, so get your submissions in!

Posted by Jay on January 25, 2006 at 03:11 PM | Permalink | Comments (1) | TrackBack

January 19, 2006

Condi is remaking State

Sec. of State Condi Rice continues to impress. Austin Bay looks at recently announced changes at the State Dept. Rice want to move the overly Eurocentric diplomatic corp towards the important areas of the 21st century world. Being focused on Europe doesn't seem to have helped much. This quote comes from the Washington Post:

The State Department’s culture of deployment and ideas about career advancement must alter now that the Cold War is over and the United States is battling transnational threats of terrorism, drug smuggling and disease, Rice said in a speech at Georgetown University. “The greatest threats now emerge more within states than between them,” she said. “The fundamental character of regimes now matters more than the international distribution of power.”

This is important insight. Conflict in this new century are more likely to develop between ideologies that nations. Groups that work within and across national boundaries are increasingly more important, and to be sensitive to those developments we need people who are working out where the action is. Staying close to the black-tie crowd in a European capital won't accomplish that.

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Posted by Jay on January 19, 2006 at 09:58 AM | Permalink | Comments (0) | TrackBack

January 13, 2006

Ya' knew Peggy Noonam would say it best.

A month ago I decided to treat myself to a news-fast. It's very healthy for the soul, you know. I liked it so much that I have continued to stay completely free of television news since then, and I am a happier man for it. Especially when the Senate is questioning a judicial nominee; that's when avoiding televised coverage can save your sanity. There are people with stronger nerves (or stomachs) than I who did observe the sad spectacle and reported it to the rest of us, a courageous public service, so I have some sense of what went on. When people in my very liberal neighborhood express amazement that a fellow like George Bush can be re-elected, I need only remind them of the quality of his opposition. That a fine state like Massachusetts, my birthplace and family's ancestral home, cannot produce better, is more than I can believe. Perhaps it's time to revisit term limits for the Senate; clearly the power of the incumbent is too strong. I had intended not to get myself started on this subject...I had better turn the commentary over to Peggy Noonan, who is more tolerant of this foolishness than I. Typically, she has a way of putting things exactly right.
Judge Alito and the White House know they have to let these men talk. They don't want the senators to feel resentful or frustrated. They know each senator feels he has to play to his base. They know the senators are, by nature, like Conair 2000 hairdryers: They just love to blow, and hard. Fwwaaaaahhhhhhhhh. And they know it is good, it is helpful, to let each senator reveal himself through his own words. I think senators feel that their words, when strung together, become little bridges. I think the White House feels that their words, when strung together, become little nooses.
Noonan makes an additional point that ought to catch the eye of the bloggers...
The Democrats on the committee seemed forlorn in a way, as if they knew deep in their hearts that nobody's listening. Two decades ago they could make their speeches and fake their indignation and accuse a Robert Bork of being a racist chauvinist woman hater and their accusations would ring throughout the country. But now the media they relied on have lost their monopoly. Everyone who's fired at gets to fire back, shot for shot.
Could the days of the Senatorial blowhard be at an end? I'll believe that when I see it, but it's a nice dream, no? PS: Here's an idea! Before a Senator can sit on the Judicial Committee let's require him or her to be questioned, on television, before that panel of distinguished judges that appeared at the witness table yesterday. Think about Teddy facing eight or nine crack Federal judges all alone. That would be fun to watch. Let's see them defend their own legal expertise and "temperament."

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Posted by Jay on January 13, 2006 at 11:10 PM | Permalink | Comments (0) | TrackBack

December 05, 2005

Something else that is "not rocket science"

I am loath to dip into religious talk on this blog, many readers will click away at the first whiff, I fear, but I think I'll risk it on this occasion.

Ancient Jewish law was noted for a great many detailed restrictions and mandates (read Leviticus for good examples). In one of his regular debates with the legal authorities of his day, the Pharisees, Jesus famously reduced whole of this extensive law to a two line summary, love God with all your heart, and love others as you love yourselves. Jesus teaches that the myriad of "thou-shalt-not" and "thou shalt" laws were just specific applications and interpretations of this simple exhortation to love.

I like Jeff Harrell's blog, Shape of Days, and read it regularly. I admit that I have never before found occasion to draw a parallel between Jeff's writing and the preaching of Jesus, but this morning Jeff managed to bring Jesus' simplification to mind. Jeff notes that the more-or-less smooth functioning of society depends on adherence to an extensive list of generally unwritten societal rules; the sort of things one learns in early grade school. Nowadays the teachers call it, "socializing the child." Jeff finds that all of these little rules can be adequately summarized in one.

We teach small children many things. Share your toys. Use your inside voice. Don’t fight. Don’t tell lies. No one wants to hear your armpit noises. There are a million tiny lessons we all learn as children, a million tiny rules we follow. But they can basically all be summed up like this: Don’t be an ass.

I like this summary. "Words to live by." Be nice to see it carved in stone above the entrances to schools and other institutions. Moreover, Jeff notes another phenomenon that parallels an observation made by Jesus.

Again in questioning from the Pharisees, Jesus noted that as bad as sinners were, they at least knew themselves to be sinful, and therefor held out some hope that they might decide to change their ways. Far worse were sinners who believed themselves to be pure (meaning the Pharisees) as they would not repent and effect a change.

Similarly, there are people who fail to observe the "Don't be an ass" dictum. Whether the person is doing so inadvertently or has decided to be an ass for some reason, there is a chance for that person to reverse course. The really dangerous are those who convince themselves that being an ass is a noble thing.

Yes, occasionally you’ll run into somebody who talks too loudly or who makes impolite noises or who behaves in some other fashion to offend those around him. But people like that are subject to an onslaught of sideways glances and dirty looks and, as an absolute last resort, a “Hey, buddy, do you mind?” Usually the offender relents, even apologizing for his misdeeds. Once in a great while you encounter someone wholly oblivious to social graces and ignorant of the fact that he is displaying none; in those cases, you bite your tongue and count the minutes until you can get away from there.

But a problem arises when these violations of the social order become more than the mindless acts of people too self-absorbed to notice their effect on others. Sometimes these minor social crimes are carried out with malice aforethought, by people who act with deliberate aggression.

And sometimes, worst of all, the people who perpetrate these acts do so in the name of almighty freedom.

It takes a whole bunch of thinking to twist one's mind to the conclusion that rudeness can be righteous, but some otherwise smart people seem to have accomplished it. Now ponder why I felt moved to discuss this post on Radical Centrist, my political blog. Something about this subject seems very relevant to political discourse, especially the part about someone thinking that being an ass is a noble action.

American politics has never been "courteous" and is never going to achieve true "civility", but the simple rule, "don't be an ass" seems like an achievable standard; a constitutional amendment to this effect would please me more than an anti-flag-burning amendment.

OK, the religious stuff is over now. You can take your fingers out of your ears.

Posted by Jay on December 5, 2005 at 11:56 AM | Permalink | Comments (0) | TrackBack

November 20, 2005

Saving Murtha from himself

As I mentioned yesterday, the quick vote in the house on a resolution to withdraw all US troops from Iraq helped to clarify what Rep.Murtha was intending to say. His position very much needed to be clarified. Over the weekend both Murtha and other leaders of his party have been saying that the vote was a cynical stunt, and that what was voted on was clearly not what Murtha had advocated.

That's nonsense. In the hours after Murtha's speech all talk concerned how this military veteran had called for immediate withdrawal. Here's the first paragraph of the NYTimes report on Murtha's Thursday speech. (via Kausfiles)

The partisan furor over the Iraq war ratcheted up sharply on Capitol Hill on Thursday, as an influential House Democrat on military matters called for the immediate withdrawal of American troops and Republicans escalated their attacks against the Bush administration's critics.

What the House did Friday evening was to take this popular interpretation of Murtha's remarks and put it to a vote. In the course of the hasty debate (the best kind, btw) Murtha himself had a chance to clarify that this was not at all what he had intended. Given the depth of feeling and the serious nature of the battle we are fighting, a chance to clarify may have been a great gift to Mr. Murtha.

Had this vote not occurred the Democratic leadership and their media supporters would have been pumping the "immediate withdrawal" angle all week. In response, the Republicans and the military supporters would have responded by attacking Murtha to discredit his judgment. The Representative may well have gained favor with the anti-military crowd in San Francisco, but he would have lost friends and reputation with many others. I cannot say who would have come out of the firestorm over the Thanksgiving recess a winner, Republicans of Democrats, but I can predict with great confidence that Mr. Murtha would be the loser.

As it is, he's going to carry the label, "Cut and Run" for a while. likely the remainder of his career, and that's his own doing, (or the responsibility of the people who put him up to it.) He was handed a slim opportunity to moderate his language and recover some reputation. We'll see if has sense to use it.

Posted by Jay on November 20, 2005 at 09:52 PM | Permalink | Comments (1) | TrackBack

November 19, 2005

Clearing the fog

I have to admit that I really enjoyed that little dust up in the House last night. I'm no fan of the partisan bickering that is so commonplace at the Capitol, but this was different. Sure, it was essentially R's vs D's, but there was a serious subject and, to my mind, a serious need.

Would I be giving into cynicism if I asserted that Rep. Murtha's statement the day before had been carefully staged to be sufficiently ambiguous to allow Democrats and their media supporters to claim that a decorated veteran has called for immediate withdrawal from Iraq, and then immediately deny that any such thing was said to anyone who reacts angrily. Ambiguity is a popular political tool. I suspect that the leadership had the talking points and the television appearances all lined up for the recess. A week or two to discuss the dramatic erosion of support, safe in the knowledge that the ambiguity was there to protect them.

I have said that I don't like partisan bickering, but there nothing wrong with two-party politics and a good debate. I also don't like the silly spin-games these folks like to play. I love the idea of a nice clear vote.

The Dems have said that the motion put up for a vote last night was not really what Murtha was proposing. Well, that's a valuable clarification, because that was certainly what people were saying at the time Murtha said it. If all we accomplished yesterday was to remove the ambiguity from Murtha's position, I call that a step forward. Now we are all spared a week or more of punditry over a position that is not supported by either party, and our troops can go back to doing their excellent work.

Tossing out ambiguous remarks about something as important as this war is beyond "irresponsible"; I really don't know how to characterize it. Could last night's vote be the start of a "no BS" phase in the House? That seems almost too good to hope for. Perhaps we can get a vote on record about the "we were duped!" accusation.

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Posted by Jay on November 19, 2005 at 06:55 PM | Permalink | Comments (0) | TrackBack

November 16, 2005

Condi continues to amaze

Condi Rice continues to do some very impressive diplomacy. Some people achieve note as diplomats by virtue of being in the right place at the right time, but Condi seems to be succeeding on the basis of her personality and approach. She has a exquisite sense of when to be absent, and when to be present, when to be calming and easy, and when to be tough and demanding. I especially liked this quote (from the New York Times coverage)

Ms. Rice had also avoided personal involvement, and last February she deliberately left the region to avoid appearing at a summit meeting of Arab, Palestinian and Israeli leaders in Sharm el Sheik, Egypt, to complete the Gaza withdrawal plan.

But when she arrived in Jerusalem on Sunday, aides said she was determined that this trip was going to be different, in part because of Mr. Wolfensohn's dire warnings about the deteriorating situation.

"We're going to get this done while I'm here," Ms. Rice told Mr. Sharon and Mr. Abbas in separate meetings, according to State Department officials. The two leaders' reaction, the officials said, was skepticism,

Not, "I hope we can get this done", or even, "we would lie to get this done", but a no-confusion statement that the time had arrived (now that she had arrived) for things to get settled. She is establishing a very healthy pattern, when Condi arrives the maneuvering and bluster stop and it's time to settle.

Greg Djerajian at Belgravia Dispatch, who has much more experience watching diplomats at work than I, likes what he sees.

...a quick note to congratulate Condi Rice on a job well done. I'm still dubious in the extreme we will get to final status talks by '08, but at least we've got a little shot in the arm for a change rather than peace process drift & decay
Like any experienced observer of the Middle East, Greg is not ready to declare a victory, even a partial victory, but he sees progress. Even the LA Times is impressed by the Sec of State. In their editorial today they proclaim that "Condi gets it."
SECRETARY OF STATE CONDOLEEZZA RICE has finally demonstrated what a little roll-up-your-sleeves diplomacy can achieve in the Middle East. Tuesday's agreement between Israel and the Palestinians on opening the borders of the Gaza Strip and allowing freer movement of Palestinians between the West Bank and Gaza reflects Rice's involvement in advancing the peace process. ... Former World Bank President James Wolfensohn played an important part in the agreement, mediating talks on border crossings and other economic issues. Wolfensohn also was willing to criticize both sides when he thought they were stalling. But the final agreement required shoves from Rice. Hours before announcing the pact, Rice said that results would come "with will and with some creativity."
This story, provides more details on the process, and on the importance of Rice's personal approach. The story has been buried, it seems, at some news sources, I saw it in the print edition of the Mercury News (not on the front page, but at least in the front section), for example, but couldn't locate it in the on-line edition. The newly launched, Open Source Media portal has it prominently featured, a good sign. Congrat's (again) to Condi!

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Posted by Jay on November 16, 2005 at 11:34 AM | Permalink | Comments (1) | TrackBack

November 05, 2005

Can we tear up "the race card" now?

I saw this mentioned on Wednesday in James Taranto's daily email, and was so stunned I didn't know how to respond. I started a post but couldn't complete it. A rarity; I'm not often at a loss for words, but this story has left me gape-mouthed. Taranto brought it up again today and I'm making another run at a post, determined to get it completed and posted before I dissolve into angry ranting. Wish me luck!

It seems that in Maryland, at least, the issue if race is not really all that important or sensitive any more. An African-American, Micheal Steele, is running for a Senate seat from of that state, which is not exceptional, especially considering that Mr Steele is the current Lt. Governor. Shockingly, at least to my naive ears, Lt. Governor Steele has been subjected to fierce racial attacks of the sort that disgraced American politics in an earlier era. Not the more subtle attacks hidden in innuendo and code words, or the softer racism of "low expectations." Rather, Steele has been subjected to good old-fashioned racial baiting and stereotyping. That is shocking and dismaying enough, I am literally stunned to find that this is not considered shameful behavior in Maryland. There is a catch, apparently. The people tossing racial barbs at Steele are fellow African-Americans, and they are Democrats. The other key factor is Steele himself. The Lt. Governor is a Republican.

State Sen. Lisa A. Gladden, a black Baltimore Democrat, said she does not expect her party to pull any punches, including racial jabs at Mr. Steele, in the race to replace retiring Democratic U.S. Sen. Paul S. Sarbanes. "Party trumps race, especially on the national level," she said. "If you are bold enough to run, you have to take whatever the voters are going to give you. It's democracy, perhaps at its worse, but it is democracy."

Wrong Lisa, that's not democracy, even "at it's worst." That's racism; old-fashioned anti-black racism. If the situation was reversed and Republicans of any color tried these tactics against State Sen. Gladden, I cannot imagine that she would dismiss it as the price of democracy. Tactics like those were used against earlier generations of black candidates, and some explained that these "trouble making blacks" should have expected some trouble. Perhaps someone in Alabama turned to a reporter and said, "you have to take whatever the voters are going to give you."

As a child in the 60's I was inspired by the courage of M.L. King and the people, both black and white, who joined in those protests. In the church where I worship, a banner to Dr. King hangs overhead amongst other "saints of the church", and his "Letter from [a] Birmingham Jail" is studied in Christian Education classes. In the '70's I roomed with black students at school and learned their stories and lived in their world, if only for a bit, and developed a deep, visceral hatred for the smirking evil of racism and related ways of belittling and humiliating a fellow human. To this day I cannot fathom the calm and control of African-American friends who brush off discrimination and taunts and move on. 'Tis a good thing I was born a New England "wasp"; I'd have been in fights everyday with an ethnicity that attracted attack.

So despite the assurances of Maryland Democrats, that "politics trumps race", and that racial attack is no longer a really serious matter, I find I cannot contort my own emotional form to fit the new mold. I must go on hating racists, even those that are black.

This feeling has been long brewing in me. I have been getting strong whiffs of a festering racism amongst the left for some time. Michelle Malkin has been subjected to the most ugly racial attacks from the left for some time. These ugly rants have even provided her with material for a new book, which was released this week to a storm of highly racist outcry from the left. She has been covering the Steele affair and other examples of the left's increasingly open racism (and anti-semitism) on her blog. See this post for the latest on Steele and this earlier post as well (which includes the now infamous "Sambo" photo). Here's a quote:

This is how low the Left's political discourse has sunk: I'm a banana and a coconut and a whore and worse. Michael Steele is an Uncle Tom and a Sambo. ...So, defacing Steele's photo and assaulting him with Oreo cookies are peaceful exercises of free speech. Demonizing Condi is a harmless prank. Calling her a "House Nigga" is acceptable humor.

So even the previously radioactive "n-word" is now revealed to be only a harmless taunt to toss at a dark skinned member of the opposite party. I'm not buying it. What started as "racialism" slips quickly into simple racism with only a small nudge. I'm not going to fall into line and accept it. The Democrats of Maryland and elsewhere may celebrate their own perverse equality of hate, where an opponent can be despised for race, ethnicity, religion or even for shopping at WalMart. I can only react with revulsion, and a large measure of dismay. Can this ugliness never be killed?

One thing that has been killed, is any sense that the "race card" retains any meaning. The Black Caucus has killed it, by eagerly dipping into the white-racists' bag of tricks without shame. These black politicians have finally "gotten even" with the white-racists of old. They have descended to that subterranean level themselves, tossing aside what moral authority was left them, and will no longer find this American listening when they cry "racism."

Posted by Jay on November 5, 2005 at 12:02 AM | Permalink | Comments (1) | TrackBack

November 03, 2005

On the nature of a Judge's opinions

A few commenters, notable Jeff Goldstein ( tip to Instapundit) have noted some apparent confusion over what a Judge actually does in our courts. Or, at least, what a Judge is supposed to do. Having recently served on a jury, I have a fresh recollection of how that particular California judge described his role in contrast with our (the jury's) role. It seemed pretty clear when the judge explained it to us and made a lot of sense. Neither we nor he, he told us, were there to decide what we wanted, that is, to make rulings based on our personal predilections. There was a law to consider. Whether we liked the law or not, that was the law and our duty was to consider the facts in its light. The judge was even more closely restricted to considerations of the law, and less to an expression of how he liked a witness or the attorney, or how he felt about the socioeconomic effects of the law as defined in California. These things were expressly excluded from both his and our consideration, (at least in court.)

This should be a great comfort. The people who framed the Constitution had some experience with the arbitrary whims of power, and of judges in particular. Keeping the personal passions of judges out of the courtroom remains an important matter today, if my limited observations are typical. I've met a few judges and they seem to take this sort of thing pretty seriously. Most lawyers I know do as well. We should not find it hard to imagine that a professional person be able to disregard personal feelings in the course of their duties, we ask policemen to do it everyday— doctors, teachers and bank loan officers too. Certainly a jurist with long experience and a reputation for brilliance like Samuel Alito should be able to consider important cases based on the relevant law alone. Especially since, as an Appellate Judge, that is his primary function within the system. Goldstein responds to comments about the most controversial of Judge Alito's decisions:

At this point, it is important to remind readers that Judge Alito’s role in all this touches on none of these social issues-no matter how desperately those who oppose his SCOTUS nomination try to switch the grounds of debate to make it so; instead, Alito’s role was to decide whether the Pennsylvania legislature had the Constitutional right to pass such a spousal notification law, and Alito decided that they did, using Justice O’Connor’s “undue burden” standard-and existing analogous legislation-to decide the case. His role was not to decide whether or not the Pennsylvania statute was a bad law. That is the debate we are having here. Instead, his role was to decide whether the law passed Constitutional muster, and his thinking, from a legal standpoint, is rigorous and well-argued.

Let us imagine a judge who, presented with an accused rapist, is moved by his personal revulsion for rape to admit illegally obtained evidence. A personal revulsion to rape is a laudable thing, but most observers would criticize such a judge, and with good reason. Sometimes the law requires judges to release people they personally detest, or to protect activities they personally revile. The newly confirmed Chief Justice is noted for a decision involving a 12-year old eating a french fry on a DC subway. Roberts took the unusual step of indicating that he thought the law, or at least the manner of its enforcement, a bad bit of thinking, but he upheld that it was not a constitutional question.

Some have contrasted Roberts' strict interpretation with Justice O'Connor's less rigorous approach. The last paragraph in this article pretty clearly frames the issue.

...to others, the contrast with O'Connor is striking.

"She has been worried about pragmatic solutions that reach common-sense answers," says Kim Scheppele, a Princeton University law professor who kicked off a lively blog discussion of the two cases with a posting last week. "Roberts says if the law doesn't track common sense, my job is to say what the law is, and someone else is in charge of common sense."

The writer seems to assume that I (the reader) will be shocked and dismayed by Roberts' attitude. Actually, I'm not. Everyone involved in the process needs to use common sense, judges included, but the sense a judge needs concerns clearly seeing "what the law is." I'm perfectly happy to let the legislatures take the heat for their lack of common sense, and to allow them to be answerable to the people for their actions. Some questions, actually most questions, are best left to people who make decisions as a deliberative body (in other words, lots of minds at work) and who are subject to frequent re-election. People who act in private, and are not answerable to the people, should be restricted to clearly defined questions. The right way to handle a bad law is to get a better law, not to get all wishy-washy in interpretation and enforcement.

The popular conception, however, is that judges are just appointed potentates, who create law for the rest of us based on what we hope are beneficent inclinations. Note the thinking in this discussion of Judge Alito's early activities:

But some people are looking at a young Alito to try to find indicators of how he'd vote on certain issues.

For example, Alito joined the Army reserves while he was a college student because his draft lottery number made it likely he would be taken for the Vietnam War, his college roommates said.

Also, 30 years before the Supreme Court decriminalized gay sex, Alito declared on behalf of his group of fellow Princeton University students that "no private sexual act between consenting adults should be forbidden."

Alito, back in 1971, also called for an end to discrimination against homosexuals in hiring.

The underlying assumption here is that the man will decide points of constitutional law based on personal attitudes expressed in college. I hope he would not. If Alito is presented with cases related to any of these questions, I would hope that he applies his understanding of the law and the constitution, acquired in the decades of study and practice since 1971. The questions placed before Supreme Court justices, moreover, are not really of this nature. They do not determine whether it is good policy to forbid consensual private acts, but instead they are asked whether such restrictions are unconstitutional, which s a very different question.

Despite the silly speculations at CNN, Judge Alito seems very much capable of being a disciplined judge of legal matters, and I am increasingly comfortable, even enthusiastic, about his nomination. I hope these hearings, like the Roberts hearings earlier, help clarify the difference between choosing a justice and choosing a legislator.

Posted by Jay on November 3, 2005 at 01:11 PM | Permalink | Comments (3) | TrackBack