Guarino

Sotomayor, Precedent and Marriage

Sonia Sotomayor during her confirmation hearings has placed legal precedent on a pedestal.  Of course, this would have the effect of protecting Roe and other decisions that led to liberal policy outcomes. 

Senator Charles Grassley of Illinois did a good job of questioning her about a little known Supreme Court precedent that dealt with the topic of marriage.  This decision apparently concluded that marriage is an area of law for the states to decide.  Grassley exposed in a graphic way her contradiction on the matter of how important precedent is:

 

The Death of Walter Cronkite

The predictable tributes to Walter Cronkite have begun with the stories covering the news of his death.  There is a flip side, however, to the MSM accounts. 

Cronkite served as anchor of the CBS evening news program during the time of the Vietnam War.  He had cultivated a reputation of trust, but the mainstream media was unfortunately undermining the American effort in Vietnam.  CBS News was a part of that.  The depictions of the war, and of our efforts, led to the American people turning against it.  At that time, the media acted as a monolith; and there was little alternative media for the daily consumption habits of the masses.

I had linked several years ago to an article written by Captain Donald Bishop, then an assistant professor at the Air Force Academy.  The article demonstrates the effect of media depictions during the Vietnam War.  It pays particular attention to the representations of the Tet Offensive-- which is considered to have been a turning point in terms of the withdrawal of support for the war across America.

So when we consider the career of Walter Cronkite, we need to consider the manner in which CBS News covered the Vietnam War, the effect that had, and the extent to which it reflected the political biases of those delivering the message.

Update: More commentary over at Sam Spagnola's blog.

Captures the moment...

(HT: WorldMagBlog)

The Ethics of Health Care Rationing

Bubba has a good post that discusses an article by Peter Singer that promotes the practice of health care rationing, presumably in anticipation of ObamaCare.

Peter Singer is supposedly a bioethicist-- but a more accurate label would be "bio-unethicist".  He is the guy who once said it was ethically permissible to kill babies who have disabling medical conditions.

In any event, Singer's article in the New York Times demonstrates why it is a bad idea for government to be sponsoring health care.  The costs are simply bound to become so high that rationing will become irresistible.  But it should be considered, according to our nation's founding principles, impermissible for the government to make life-or-death decisions about health care for citizens-- or to create other administrative bodies that do so. 

But that is almost the inevitable direction we take when we create programs like Medicare or the new public plan being proposed to achieve universal coverage.  We are creating a situation in which the government has to be attentive to the issue of costs, and ration through various means.

Following Greensboro-Area Politics Has its Amusements

It is difficult to overestimate the sense of diversion we all enjoy when we follow Greensboro-area politics.  Two stories yesterday highlighted that reality.

First, we learn that a Latin Kings gang leader is running for an at-large seat on the Greensboro City Council.

Second, Red Clay reports about a bill that Pricey Harrison has introduced in the state House.  Apparently, some cities make it illegal to hang a clothesline.  Now Pricey wants to make it illegal for the cities to prohibit hanging certain clotheslines.  You know, because of global warming and all that stuff.

And so, even though following our local politics can lead to what my relatives used to call "agita", it also has its compensations.

Last Chance to Have Private Health Insurance?

A couple of folks brought to my attention an editorial in Investors Business Daily regarding an obscure provision in the new House health care bill.  This provision makes it illegal to procure private health insurance if such a policy was not already owned at the time the law becomes effective,

There is probably no more revealing indicator of the true intentions of those advancing this legislation than this particular provision.   They want to box everyone into government-sponsored health insurance.  And they want to kill off private insurance.

But there are other reasons to oppose this effort.  The "individual mandate" to purchase health insurance is of dubious constitutionality according to the Federalist Society.  Senator Tom Coburn says health care reform would end up killing people because there would be lower survival rates treating conditions like heart disease and cancer.  And the head of the Congressional Budget Office says our fiscal problems would be worsened.

The AP reports that taxes on upper income taxpayers would shoot back up to pre-Reagan levels.  This would break an Obama campaign promise that taxes would only increase to 1990's levels.

The Wall Street Journal points out, correctly, that small business would be hit particularly hard by the House version.  And even CNN acknowledges that taxing the "rich" cannot possibly fund all the agenda items currently being pursued.  (ht: John)

Fortunately, we are beginning to see some pushback.  Jeff Sykes reports that conservative Democrats in the House say they have the votes to bottle the thing up in committee.  And House Republicans have developed a chart akin to that used so effectively during the early 1990's when ClintonCare was all the rage:

 

 

Habitual Felons in NC

There have been efforts afoot in the North Carolina legislature to water down our state's habitual felon law that causes repeat offenders to enjoy additional prison time.  In some cases, it has been maintained that the length of these sentences has been inappropriate.  And there is apparently a desire to save money on prison space.

Senate Majority leader Phil Berger said the following yesterday after a couple of bills on this topic passed the Senate:

“Protecting law-abiding citizens is the first obligation of government.  Today, Senate Democrats failed in their primary responsibility.  This is what you get from years of spending every dime in sight while ignoring the need for additional prison space.  Now instead of cutting waste and inefficiency in state government, Democrats chose to shorten prison sentences and give dangerous criminals an early return to North Carolina’s communities.”

Meanwhile, Tara Servatius reveals that the felon classes targeted by some of these efforts-- H and I-- include the crime of breaking and entering:

North Carolina's already lax laws on housebreaking have lead to North Carolina having the highest home break-in rate (the FBI calls it "burglary") of any state in the nation according to the FBI's Uniform Crime Report. This is because in North Carolina, for breaking and entering to count as a higher level "burglary" felony carrying far more time, the crime must occur at night when the victims are home. The penalty for most daytime break-ins is probation. Criminals know they can be convicted of breaking into homes at least four times without ever serving a day in prison, which has lead to a free-for-all on North Carolinians' property.

If anything, we need to toughen our breaking and entering laws. Currently, the only way for a prosecutor to put a repeat house-breaker away for a significant amount of time is to use the habitual felon law. It's frightening to ponder how much our already atrocious home break-in/burglary rate would rise if certain legislators and the state's newspapers succeed in gutting the habitual felon law.

In addition, we learned last year of the serious problems North Carolina has with our probation system.  We have been unable to adequately monitor those on probation.  The response of the Democrats in Raleigh is to increase the numbers on probation-- but will they be monitored aggressively?

It's beginning to feel a bit like 1960's New York.

Phil Berger is right.  Maintaining civic order is the first priority of local and state government.  Our criminal justice system needs to maximize crime control, and should not be tweaked just to satisfy liberal agenda items.

The Current State of Health Care Reform

One House committee has announced a bill this week for health care reform; and one key Senate committee passed its own version today.  Based on the content of these two pieces of legislation, here is what we can expect: (HT: Stormy)

Virginia Foxx tells it like it is

HT: Carolina Politics

Hagan's nomination of former GPD officer Al Stewart, Part 3

Senator Kay Hagan's recent nominations for the position of U.S Marshal merit additional discussion.  Recall that she had nominated former GPD officers Al Stewart and W.R. Stafford.

There are a couple of things we learned from the Bledsoe series regarding the factionalism that existed in the Greensboro Police Department.  There were black and white factions.  But also, there was a faction of officers that supported Bill Stafford for chief, and a pro-Wray faction.  Wray and Stafford had competed for the job of chief, and I suppose there may have been some ill feelings between the two groups at various times.

When she made these nominations, Kay Hagan essentially picked sides in the factional dispute that had major implications with respect to the manner in which the GPD fiasco was handled.

Examples of how all of this played a role with the events that unfolded are cited in a Bledsoe installment that describes how Wray was being set up and undermined by others:

As for high-ranking officers who went to (Mitchell) Johnson, Wray knew that Johnson was fully knowledgeable about the split within the command staff – what Johnson referred to as the Hatfields and McCoys. Johnson would have known to whom to turn to get whatever complaints he needed from top officers.

Wray had no doubt that former Assistant Chief Bill Stafford, who had been his primary rival inside the department for the chief's job, had helped Johnson. Stafford, who retired in 2004, had opposed many of Wray's policies and decisions, and he continued to have influence among the anti-Wray faction. Stafford was friendly with Johnson and occasionally had lunch with him...

The RMA report revealed that in the summer of 2004, Bowman "became so concerned about the investigative actions of [Detective Scott] Sanders, as well as the lack of GPD supervision of Sanders, that he shared those concerns with retired GPD Capt. Al Stewart."

Stewart once had been captain of Vice and Narcotics. He also was among the anti-Wray faction in the command staff. He retired on July 31, 2003, the day Wray was named chief. Wray knew him to be a hard worker, and described him as "intense, opinionated and always critical of whoever was in charge." After his retirement, Stewart became an investigator for then District Attorney Stuart Albright.

Stewart had supervised Sanders and Detective Brian Bisset, a federal task force officer who had worked with Sanders in investigating James Hinson's ties to cocaine cartel leader Elton Turnbull.

"Stewart was aware of some previous issues involving the possible veracity of Sanders and the motives of Bisset regarding J. Fulmore," the RMA report said. "Stewart stated that both Sanders and Bisset openly expressed their 'hatred for J. Fulmore' often accusing him of being corrupt with nothing to substantiate such claims."

If RMA investigators made an attempt to determine whether Stewart's claims were true, they did not present the evidence.

The report went on to say that after Sanders was transferred to Special Intelligence, Stewart had called the captain over that unit, Bill Stafford, to tell him that Sanders was "a loose cannon and couldn't be trusted." The report also said that Stewart had tried unsuccessfully to have Bisset transferred for "insubordination" and had "counseled him several times about his 'attitude regarding Fulmore.'"...

Wray said that he questioned Deputy Chief Brady about Sanders. Brady told him that Sanders had a good reputation in Vice and Narcotics, he said, and that he had been moved to Special Intelligence by Bill Stafford because Stafford, who was in charge of the unit at the time, had previously worked with Sanders and had confidence in him. Wray said he also questioned Capt. Richard Hunt, who had worked with Sanders in several capacities.

"Hunt said, 'Sanders is great; he hustles, does good work.' At that point, I didn't have any kind of huge flag, or anything with this."

Al Stewart came to see him in July, about four months after his conversation with Bowman and more than a month after Fulmore was suspended and a new investigation had begun, Wray said.

He didn't remember Stewart telling him the things that were attributed to him in the RMA report.

"He talked about Sanders," Wray said. "He talked about what a great officer Fulmore was and how he'd take 10 Fulmores over a Bisset or Sanders. He said that Sanders didn't like Fulmore and it was a vendetta. He said he had to watch Sanders like a hawk when he was commander over there. I said, 'Al, give me something solid here.' And he couldn't give me anything except that he just didn't like Sanders. Al didn't give me anything to work with at all, just generalities, nothing but an informed opinion. He didn't give me examples of bad stuff. And this quote where Al says either you're stupid if you don't recognize it, or I'm ashamed of you if you do, Al Stewart never said that to me.

"Al made his point. I listened and said thank you. I wasn't going to jump on Al's train."

Wray said that he looked for evidence that Sanders and Bisset had acted irresponsibly or were on a vendetta and couldn't find it.

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Obama Throws a Folly Floater

Major League Baseball's All-Star game last night was marred by the presence of Barack Obama, whose omnipresent visage and voice were given ample, repeated coverage by Fox Sports.  I cannot for the life of me figure out what MLB and Fox were thinking.

In any event, the president threw the first pitch.  As we watched last night, several things became clear. 

First, Obama throws like a girl.

Second, the pitch that he threw soared high into the air, and its downward trajectory fell far short of where it was supposed to drop.  When I was a kid, we used to call this type of pitch a "Folly Floater".

In any event, Obama's appearance on the mound was an apt metaphor for his foreign policy.

The Folly Floater back when I was young was rarely used; but seriously threw off the timing of the hitter.  Phil Rizzuto calls one example:

Workers' Compensation, Reprised

A reader has requested that I give my thoughts on workers' compensation.  I had written about this soon after I began to blog back in 2005.  (I probably only had about five or ten readers back then.)  I am reprising that post for those who did not see it when it was first published here:

Workers' compensation was one of the first entitlement programs.  It materialized because of tragic circumstances that developed when a family's breadwinner was killed or severely impaired due to traumatic industrial accidents.  It was devised as a no-fault system. 

Some would question why trial lawyers have an interest (in workers' compensation) if the system is no-fault.   Typically they intervene to advocate for certain benefits before the Industrial Commission; to assist claimants in contesting decisions made by employers and insurers; and to negotiate upward financial settlements.

I have had ample experience dealing with workers' compensation.  As an occupational medicine specialist, I have been involved in the evaluation and treatment of alleged work injuries since I began practicing in 1989.  I also act as a utilization review consultant for a large workers' compensation insurer based here in the Triad to evaluate selected cases...

There are several problems with the system as it currently operates, however.  First, there are many cases in which fraud, psychological issues, personal life circumstances and motivational states interfere with an individual's returning to work.   Effective administrative and medical management can help, but these dynamics  still create  major problems throughout the state.

Second, the incentives to access the system are enticing on the surface (although ultimately are a bad deal for most).  The injured employee sometimes sees the prospect of receiving nearly 2/3 of wages, tax-free, when out of work, and a financial settlement at the end of the rainbow.  It often is the only form of disability insurance the employee "owns", and therefore he feels enormous incentive to access it when he confronts a medical predicament.   In addition, it pays all the medical bills-- no copays, no deductibles.  A mercifully small subset of employees is  militant with respect to taking advantage of  workers' compensation benefits.

Third, a large number of claims consist of "soft tissue" complaints alleged to be associated with such activities as lifting or repetitive motion.  These complaints usually involve the spine or the upper extremities.  The problem is that many of these cases represent normal conditions of life that are not necessarily attributable to work.  Dr. Nortin Hadler, a professor of medicine at the UNC-Chapel Hill School of Medicine, has done some yeoman work in this area.  The workers' compensation system was not designed to accommodate these circumstances, but rather was initially structured to deal with discrete, objective trauma.   Coverage of these conditions increases the load to the system by large numbers. 

Fourth, the state Industrial Commission chairman, Buck Lattimore, has stated that the Commission operates under the presumption that NC law requires the Commission to err on the side of the claimant whenever doubt or uncertainty exists.   Employers have often related to me that they do not feel they have a fair shake at contesting questionable cases before the Commission, although this apparently is somewhat dependent on the judge to which the case is assigned.

Of course, employees who perceive they have been injured have their own set of objections to the current system, even in spite of all of the above.

North Carolina has lost many industrial jobs over the last five years.  Nearly every position is theoretically at risk of being exported to a foreign country.  Recruiting for new employers has become more difficult and competitive. Employers no longer perceive our state as more business-friendly than others in our region from the standpoint of traditional indicators such as taxes, labor costs, regulatory environment and cost of land.  One of the powerful, but unrecognized, factors that prospective employers evaluate is the state's workers' compensation environment.  It can have a profound impact on a company's viability and profitability.

North Carolina needs to take a serious look at its current system.  It needs to reevaluate its statutory guidance to the Industrial Commission as to the threshold for determining what constitutes a compensable claim.  It should assure that normal conditions of life are not regarded as compensable, and that the system reverts back to one that emphasizes treatment for discrete, objectively verifiable trauma.   Some more creative proposals floated nationally have suggested uncoupling the medical and disability components of the workers' compensation system, and employing creative techniques to manage both. 

The absurdity of maintaining the system as it currently exists, however, ignores the harsh realities of competing for jobs in a global marketplace.

A Demonstration for A Convicted GPD Officer

The organization with which the Rev. Nelson Johnson is affiliated-- the Beloved Community Center-- makes a mockery of itself by staging a demonstration on behalf of convicted GPD officer Ahmed Blake.  And the basis for doing so seems pretty flimsy.

In Greensboro, we thought that we had seen everything; but new events always seem to overtake those that had already passed. 

It appears that a certain recent expression of regret might have failed to slow down the perpetual grievance machine.

Roe vs. Wade: Settled Law?

Sonia Sottomayor told the world today that Roe vs. Wade is "settled law".  This suggests that her mind is closed on the matter, even taking into consideration the likelihood that the noteworthy case had been decided incorrectly.  She conveniently and consistently elevated judicial precedent to a sacrosanct place during the hearing today. 

One cannot help but wonder what she would have done if she had been nominated to the Supreme Court in the year 1860.  Would she have told the Senate at that time that the Dred Scott decision was "settled law"?

Governor Perdue in Roland Burris Territory?

Dome:

North Carolina Gov. Beverly Perdue is now getting into Roland Burris territory...

Her (approval rating) is so low that the firm has found only one governor or senator in the country with worse numbers – Burris, the Illinois senator whose appointment by ousted Gov. Rod Blagojevich is under investigation.

We need to give the woman credit.  It must not have been easy to have achieved this particular distinction.

Infrastructure, Eh? Part 2

We learn this morning in the News and Record that federal stimulus money is saving some jobs in the Guilford County Schools system.

Let's celebrate!  Strike up the band!

...Er, wait a minute:

Federal stimulus funding to high-poverty schools and special education will save more than 100 Guilford County teaching and administrative jobs.

The funding was considered in budget planning, and those positions are included in the 2009-10 budget.

Some of us were led to believe that stimulus spending was intended to "stimulate" the economy.  I suppose, however, that we were silly if we believed that particular sales pitch.

While it is great that some local folks are getting to keep their jobs, the rest of the country is having to pay for it, directly or indirectly. By virtue of their remaining employed, they will have more money to spend and save and invest than if they had lost their jobs.  That undoubtedly helps the economy to some extent in a very temporal way.

But we were led to believe there were going to be grand infrastructure investments and the construction of public facilities of enduring value.  We were led to believe this would spur multiplicative economic benefits throughout the economy as materials are purchased, and as the services of various firms are retained to make it all happen.   Instead, we are seeing a profligate federal government bailing out  profligate local and state governments. 

And in the long run, many are concerned we may end up having to pay for all the federal debt incurred in a very serious way. 

The airplane trip to D.C., and our local elected officials

There was more commentary over the weekend regarding the much-discussed offer by a Greensboro developer to transport two local elected officials to Washington by private plan to lobby for monies for a downtown development project.

Ed Cone:

Some good things have happened in terms of transparency in local government: the Mayor took it upon herself to get on the phone with a blogger to share some news; readers reacted quickly to the airplane plan; the newspaper read the blog and moved the story forward; the trip got postponed, and the ethics of developer/politician relationships -- surely one of the more important issues in this town -- got some fresh scrutiny.

Good intentions can lead to less-good outcomes, and processes that lead to good outcomes can be messy along the way. Nothing baffling about that.

News and Record:

Does it seem contradictory to say, on the one hand, that government needs partnerships with private business even more in these hard times -- but on the other hand, providing an above-board, well-publicized plane ride for official business is illegal? And could this have a chilling effect on the future partnerships between business and government?

It doesn't have to. As long as the arrangements are sufficiently vetted as legal and ethical before they happen.

Business leaders absolutely should not seek to influence public policy by offering favors to elected officials. But they should and do have the right to be good citizens by donating goods and services to their communities.

As long as they follow the letter of the law.

Getting things done in Greensboro is important. Getting them done right is more important.

Keith Brown:

To hear the Mayor of Greensboro Yvonne Johnson say that since local developer Roy Carroll had no financial interest in this property she was comfortable being on his personal plane to D.C. is a complete ethical lapse of judgment ...

It is also interesting to note that there hasn't been one quote from the chairman of the Guilford County Board of Commissioners in Skip Alston about the postponing of this trip. 

My position is a bit different than that which was expressed on Ed's blog and the N&R editorial page.  It appears to me that the local elected officials involved in this matter were not mere neophytes-- they each had been serving in public office for quite a number of years.  They have been dealing with these issues for a long time.

There was nothing mysterious about this particular conflict.  It was so obvious that there can be no excuses for having failed to see it.  Is the standard of ethics in Greensboro politics so low that this particular episode must be treated like a revelation, as if we are exploring new turf?

Yvonne Johnson and Skip Alston should have known from the outset this arrangement was inappropriate; and they should have steered clear of it regardless of whether it was illegal or not.  It was a no-brainer.  I don't think we should sugarcoat that reality.

We need better ethical standards for local elected officials.  This episode demonstrates amply that, in reality, we currently do not have any.

Charlotte Mayor Pat McCrory on the Stimulus

Pat McCrory is interviewed on Fox Business, and identifies the failures of the federal stimulus package.  He speaks from the perspective of mayor of a fairly large southern city:

Hagan's Nomination of Former GPD Officer Al Stewart, Part 2

Yesterday, I discussed how Kay Hagan had nominated former GPD officer Al Stewart to be U.S. Marshal.

I am excerpting heavily from part 77 of the Bledsoe series to provide more information:

The RMA report continues with more claims from officers about (Scott) Sanders.

"In the summer of 2004, another significant event occurred that speaks to the issue of Sanders' lack of supervision and investigative tactics. The Assistant District Supervisor of the State Bureau of Investigation for the Greensboro area, James Bowman, became so concerned about the investigative actions of Sanders, as well as the lack of GPD supervision of Sanders, that he shared these concerns with retired GPD Captain Al Stewart. Stewart was working at the time as an investigator for the District Attorney's Office."

Wray knew and respected Bowman and doubted that this was true. He knew that Bowman and Stewart, who retired as commander of Vice and Narcotics on the day Wray became chief, were long-time associates and are both white. It was more likely, Wray thought, that Stewart, who didn't like Sanders, had complained to Bowman. The SBI is not supposed to involve itself in internal investigations in other law enforcement agencies unless requested to do so. It also had no business becoming involved in the internal politics of the Police Department. Yet SBI Director Robin Pendergraft allowed Bowman and his boss, Frank Brown, to be interviewed by Mitch Johnson and former City Attorney Linda Miles. Johnson claimed that Bowman and Brown came to him, but the Attorney General's Office said the opposite was true.

If Bowman were deeply concerned about Sanders' investigative tactics and lack of supervision, Wray said, he should have brought that to his attention, and he didn't.

The RMA report notes that Al Stewart had supervised Sanders and Brian Bissett, who is white, and "was aware of some previous issues involving the possible veracity of Sanders and the motives of Bissett regarding J. Fulmore."

"What is that doing in this report?" Wray asked. "Neither one of those guys that I know of was charged administratively with anything. Both were in good standing."

The truthfulness of officers can threaten court cases, Wray said, and if Stewart had an issue with the truthfulness of anybody under his command, he should have acted on it.

Apparently, Stewart didn't do that, Wray said.

The report continues: "Stewart stated that both Sanders and Bissett openly expressed their 'hatred for J. Fulmore' often accusing him of being corrupt with nothing to substantiate such claims. Stewart stated that in 2002 when Sanders was transferred from his supervision to the Special Intelligence Section he contacted the Captain of that section and told him that Sanders was a 'loose cannon' and that he 'couldn't be trusted' and warning him to stay on top of him [Sanders]. While commanding the Vice and Narcotics section, Stewart stated that he had tried, unsuccessfully, to have Bissett transferred for 'insubordination' and he counseled with him several times about his 'attitude regarding Fulmore.'" Sanders was transferred to Special Intelligence in January 2001, not in 2002, as Stewart supposedly told RMA.

Wray heard a different tale about the transfer of Sanders from Vice and Narcotics to Special Intelligence. One of two commanders involved told him they had arranged the transfer because they thought Sanders was a good detective who wasn't receiving fair treatment due to Stewart's strong dislike for him, Wray said. Mike Toomes, now retired, said that Stewart also strongly disliked Bissett, who was a federal drug task force officer. But Toomes said he considered Bissett to be an asset to the unit and gave him high evaluations.

In July 2004, nearly a year after Stewart's retirement, the report says that he went to see Wray to share his concerns about Sanders.

"Stewart stated that he told Wray of the specifics discussed above and that he told Wray that 'if he didn't know about these issues that he was stupid, and if he knew and didn't do anything to stop it he was ashamed of him.'"

"Al gave me nothing but an informed opinion that he didn't like Sanders," Wray recalled of the meeting. "He didn't give me examples of bad stuff he had done. And this quote where Al says either you're stupid if you don't recognize it, or I'm ashamed of you if you do, Al Stewart never said that to me."

Stewart's visit took place only a few weeks after Julius Fulmore had fallen under investigation again, this time by Vice and Narcotics and IA. Vice and Narcotics officers discovered that Fulmore had rented a motel room adjoining a room occupied by a prostitute who was a crack cocaine user. The prostitute told detectives that Fulmore had brought her cocaine and she'd had sex with him. Fulmore denied that, but gave conflicting accounts. He acknowledged renting the room to have sex with a young woman of his acquaintance and said he later allowed a friend with a history of drug violations to spend the night in the room.

The report says that Stewart told Wray that if there were a hearing for Fulmore, he would testify on Fulmore's behalf. Wray said that Stewart made clear his strong support of Fulmore. No criminal charges were brought against Fulmore and only a minor administrative infraction was sustained against him, even though the prostitute passed a polygraph test and Fulmore showed deception on his.

The Sotomayor Hearings

The Senate Judiciary Committee hearings on Sonia Sotomayor begin tomorrow.  Two learned scholars have offered their opinions as to how Republicans should approach the hearings, and what topics should be explored:

Hadley Arkes:

No roughing up of Sonia Sotomayor: She should be treated as we would wish our own sisters to be treated. But a gentle course may actually provide a greater political yield and be far more illuminating for the general public...

So the Republicans should simply invite her to explain the state of the law, as she sees it, on a range of subjects that have been particularly vexing of late in our politics: abortion (of course), but also matters like racial preferences, same-sex marriage, and the role of judges in overseeing military action on the battlefield.

There is no need to ask Judge Sotomayor how she would rule in any of these cases. She could simply display her learning by explaining the state of the law as she understands it, and reveal in that way the furnishings of her mind...

The Republicans can simply ask Judge Sotomayor to explain what Roe v. Wade and Doe v. Bolton established. If she just says those cases established a right to abortion for the first three months of the pregnancy, the Republicans can correct her, and correct her on national television. For the right to abortion actually extends through the entire length of the pregnancy. For most Democrats, that right to abortion would cover even partial-birth abortions, with the body of the child dangling out of the birth canal...

And as it turns out, the law that has been shaped by the Supreme Court could be read as quite open to such restrictions on abortion in particular cases. It is arguable also that five of the justices now sitting would be willing to sustain those restrictions, depending on the case at hand. Does Judge Sotomayor understand the law in that way? Or does she think that the law springing from Roe v. Wade mandates nothing but abortion on demand, for any reason at all, at any time?

And Matthew Franck muses on the excessive manner in which we have regarded the concept of "judicial supremacy" in recent times, and offers the following:

Because of the nature of the Supreme Court’s work—initiated by aggrieved litigants and not the justices themselves, carried on in esoteric language, and seeming to matter much even to politically aware citizens only two or three times a year—the public occasions and opportunities to reconsider the scope of the Court’s authority in our constitutional order come few and far between. One such occasion occurs when a vacancy on the Court must be filled...

While some senators may not get past a concern only with results—thinking of the Court as just a political institution to be won or lost—others may see correctly that cases like Roe are emblematic of major trends in the aggrandizement of judicial power, and can open up a real discussion of the role of the courts in our political life and whether we aren’t paying too steep a price for overinflated notions of judicial independence...

We ought... to be interested in what our future Supreme Court justices think about the meaning of the Constitution—a thing altogether outside themselves, with its own integrity, content, and history...

If the Constitution has its own content and integrity, then there are right answers to the questions the justices face. That the justices often disagree is only a sign that the answers are not easy, or are contested for some good or bad reasons—not that right answers are nonexistent or unknowable...

We should ...be committed, and urge senators to be likewise committed, to finding out if a nominee has what it takes to be a good judge...

(A) good starting point would be to invite the nominee to offer some reflections on Cooper v. Aaron, the 1958 declaration of judicial supremacy we discussed in our first essay. Did the justices in Cooper have a correct understanding of the Supreme Court’s relation to other branches of government? Did they understand the Marbury precedent they characterized as establishing judicial supremacy? What about the apparently contrary view taken by Abraham Lincoln in confronting the Dred Scott ruling? Which view—an authoritative judiciary or the institutional equality of the three branches of government in their own spheres—gives the best account of the Constitution our forefathers entrusted to us?

In the era of judicial supremacy, our whole constitutional system is disordered by the prevailing view that the nation’s governing charter is fundamentally the property of unelected, unaccountable judges with power to shape and reshape it as they see fit. When the Constitution is “community property” again, we will all be much better off, even the justices themselves. In one sense, too much is at stake in judicial nominations so long as we continue to believe this disfiguring myth. We must struggle endlessly over getting the “right” judges—or the “left” ones, as the case may be—until we accomplish the one thing needful, a real renaissance of authentic constitutionalism. Only by raising the stakes in judicial nominations can we have any hope of lowering the stakes in the six dozen or so cases that the Supreme Court decides each year.

These two writers offer some fine food for thought; and an excellent approach for Republican senators to consider. 

It is questionable whether the Sotomayor nomination can be stopped.  But this is a teachable moment, of which we should take full advantage.