Patterico's Pontifications

5/19/2008

Obama: Decide the Tough Cases According to Emotion

Filed under: 2008 Election,Judiciary — Patterico @ 8:57 am



In David Savage’s piece on McCain, Obama, and picking Justices (criticized in this separate post), Obama once again gives his view of deciding the big cases according to emotion and not the law:

“What matters at the Supreme Court is those 5% of cases that are truly difficult. In those cases, adherence to precedent and rules of construction will only get you through 25 miles of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works and the depth and breadth of one’s empathy.

“In those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

I don’t think any of you out there are still so pigheadedly blind as to think it doesn’t matter whether you vote for John McCain or Barack Obama. If you still think so, read every word of this article.

106 Responses to “Obama: Decide the Tough Cases According to Emotion”

  1. Well, it would appear that Ron George has a leg up for a SCOTUS appointment in an Obama White-House. Bi-partisanship at its’ best.

    Another Drew (8018ee)

  2. “That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works and the depth and breadth of one’s empathy.”

    Are these things, for you, simply ’emotion’?

    stef (688568)

  3. stef, ya left out the rest of the quotation. It’s right there in the post:

    “In those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

    Patterico (4bda0b)

  4. This man really wants unelected men and women to overturn laws duly passed by the people based on what is in said unelected men and women’s hearts.

    Patterico (4bda0b)

  5. On the plus side, he knows that there are 26 miles in a marathon. That is better than his accounting of the number of states in the Union.

    JVW (c86819)

  6. Nah, it (still) doesn’t matter. McCain won’t have the votes in the Senate to get through the type of nominee he professes to prefer and Obama, to head off a GOP filibuster (assuming the GOP has 41 seats and is willing to use them), won’t nominate blazing liberals and will instead nominate somewhat centrist judges… who will be the same type of nominee that McCain ends up nominating.

    steve sturm (a0236e)

  7. Go read Ron George’s writing and then imagine that as a US SC Justice. Ack.

    JD (5f0e11)

  8. ““In those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.””

    Again, all of this, merely “emotion” ? Is it true that what is in your heart, “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works and the depth and breadth of one’s empathy.” Is merely emotion for you? That’s sad.

    On the other hand, Obama does seem to limit this to when other things like precedent and rules of construction don’t give you an answer.

    9 robed men, including an ex-klansman, may all disagree with the board of education of topeka kansas, and it will piss off lots of people who warn of judicial usurpation, but I don’t think they would do it because of mere emotion. Judges judge, the judiciary has the judicial power.

    stef (56628b)

  9. stef

    From the gist of your posts, you are fine with Supreme Court Justices utilizing what’s in their hearts to make up the final factors in deciding cases.

    I’m quite sure you, of course, would be as comfortable if what was in their hearts came down time after time after time…on the side opposite of your own worldviews.

    Because asking judges to try to refrain from inserting personal opinions and sitting as a superlegislature is simply not allowing them the full breadth of their ability to impact our lives.

    In fact, since we are having our politicians RIGHT AND LEFT design a Supreme Court for us, we probably should simply do away with precedent entirely and fly by the latest fads and pop culture whims to decide how to govern ourselves.

    Leftists will appoint leftist judges and when they win national office, we should have all rulings rigged in their favor.

    Right wing politicians should appoint right wing judges and every ruling should reflect their personal worldviews. They should not be constrained by anything as silly as a few hundred years of precedent, nor should they be confined by codified law.

    It may be a roller coaster ride, with a horribly unstable set of tracks, but we strap ourselves in and pull the levers four years later to start another ride.

    I think this is a great idea. For a banana republic.

    cfbleachers (4040c7)

  10. Again, all of this, merely “emotion” ? Is it true that what is in your heart, “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works and the depth and breadth of one’s empathy.” Is merely emotion for you? That’s sad.

    What does any of that drivel have to do with the law and the Constitution, as written?

    I know, expecting stef or Levi to engage this honestly is like hoping for the Powerball numbers to magically appear, but one can keep hoping.

    JD (75f5c3)

  11. Note well that this is straight out of the leftist / radical play book — throw out the world of principle and law developed over centuries and replace these with the subjective policy expediencies of the moment satisfying the most primitive emotions of the particular individuals on the court, i.e. substitute the rule of law for the rule of men.

    PrestoPundit (ff5e16)

  12. “From the gist of your posts, you are fine with Supreme Court Justices utilizing what’s in their hearts to make up the final factors in deciding cases.”

    I don’t think its mere emotion, but I do think that judges are going to, rather inescapably, decide between right and wrong. Holmes, who upheld many laws he disagreed with, said “The life of the law has not been logic, it has been experience.”

    “They should not be constrained by anything as silly as a few hundred years of precedent, nor should they be confined by codified law.”

    You mean like thomas?

    “What does any of that drivel have to do with the law and the Constitution, as written?”

    Deep values, core concerns, and empathy aren’t drivel. The constitution as written says that the judicial power belongs to the courts. I can’t imagine judging that doesn’t involve those things.

    Here is an instructive case. I still havent picked my favorite opinion:

    http://www.nullapoena.de/stud/explorers.html

    stef (bd5377)

  13. the critical ingredient is supplied by what is in the judge’s heart

    The lawmaker’s heart, that was presumably employed in crafting the law, is therefore irrelevant. And this from a sitting senator.

    Another way of looking at it – the judge who decides based on the written law, using judicial restraint, based on what he believes is the proper role of a judge – is he not using his heart? Is the rule of law not an ideal that can be cherished in one’s heart? It used to be.

    Amphipolis (fdbc48)

  14. “The lawmaker’s heart, that was presumably employed in crafting the law, is therefore irrelevant. And this from a sitting senator.”

    Some theories of judging would have you ignore the lawmaker’s heart too. See, for example, textualism.

    “Another way of looking at it – the judge who decides based on the written law, using judicial restraint, based on what he believes is the proper role of a judge – is he not using his heart?”

    I think you get it.

    stef (4fe3dc)

  15. Let me do some simple division for you cavemen types using Obama’s marathon metaphor.

    He says the last mile has to be based on whatever is in the judge’s heart. That’s 1 mile. Of 26. So those other 25 miles, yes, they have to be based on precedent and cases and laws. That’s 96% of the decision, according to Obama, that should be based on those things, leaving about that 1 final mile, an insignificant 4%, to the judge, his core values, his idea of how the world works.

    And again, that’s only in 5% of the most critically important cases the court hears.

    Thus, far from wanting to base all judicial matters on pure emotion and raw feeling, Obama (who was a lawyer, remember) says he thinks judges should base their decisions on laws, and he hopes that on the most challenging of questions that a judge will face, their good character and judgment can carry them through that decision-making process.

    Levi (76ef55)

  16. In the difficult cases, the critical ingredient is not supplied by precedent or the rules of construction; it is supplied by what the document says.

    The U.S. Constitution does not say there is a right to have an abortion. The California Constitution does not say there is a right to same-sex marriage.

    Maybe they should say those things. If so, they should be amended.

    Amend it, don’t bend it.

    Troopship Berlin (56a0a8)

  17. “Obama has also praised current Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter. “I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through,” Obama said.”

    I guess Susette Kelo isn’t an ordinary person but Pfizer is. If Stevens, Kennedy, Souter, Ginsburg and Breyer are the ones helping the ordinary people we are in big trouble.

    John (fe705c)

  18. The U.S. Constitution does not say there is a right to have an abortion. The California Constitution does not say there is a right to same-sex marriage.

    Maybe they should say those things. If so, they should be amended.

    Amend it, don’t bend it.

    What the California Constitution does say is that there is a right to marry and that everyone is entitled equal protection under the law. They don’t have to change anything, they’re not amending or bending anything. These justices say that the right to marry, which is enshrined in their Constitution, applies to everyone because of the equal protection clause in that same Constitution.

    What are they ‘amending’ or ‘bending’ from the bench? That looks like a pretty straightforward legal analysis to me.

    Levi (76ef55)

  19. Levi — no, what the Court says is that the right to marry really means the right to marry the person one loves, regardless of gender. The right to marry has always been understood the right to marry someone of the opposite sex. If that wasn’t the case then you would find same-sex marriages going back to California’s earliest days in the Union. You don’t.

    This is the same kind of open-ended reasoning that Kennedy trotted out in Lawrence v. Texas. This legal rationale cannot be read in any limiting fashion, so it will equally apply to polygamy and incest. There is no legally principled way to not do so — Californians are entitled to chose who they want to chose. The Supreme Court just said so.

    WLS (68fd1f)

  20. I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through,” Obama said.
    I wonder what that means. So if someone is guilty of say murder or rape, the Judge should have enough “empathy and human feeling” not to punish the offender because his mama cant stand people hurting her little boy?

    love2008 (d2a57f)

  21. He says the last mile has to be based on whatever is in the judge’s heart.

    And that is contrary and adverse to the Judge’s job, to apply the law, as written, to the Constitution.

    Levi – Go do your freaking homework, and come back. Explain to us how the expressed will of the population of the State should be ignored because of that minor little 4% of feeling that you pulled out of your ass.

    JD (75f5c3)

  22. Having a judge decide tough cases based on what is in his heart defeats the legitimate expectation that the party with has the superior legal argument has to an outcome in his favor.

    This is why all the “lets favor the little guy over the corporation” is so dangerous. Corporations make decisions based on an understanding of the law in the areas they do business. If their decision-making is made meaningless by judges who set the law aside and disfavor them simply because the judge will sleep better at night and the LAT will say nice things about him, that conduct eviscerates the notion of the courts being “fair and impartial”.

    Obama’s approach advocates unfairness and partiality — so long as its done for the benefit of the little guy.

    WLS (68fd1f)

  23. so long as its done for the benefit of the little guy

    Or, for the politically desirous outcome, that makes the Judges feel courageous.

    JD (75f5c3)

  24. Levi — no, what the Court says is that the right to marry really means the right to marry the person one loves, regardless of gender. The right to marry has always been understood the right to marry someone of the opposite sex. If that wasn’t the case then you would find same-sex marriages going back to California’s earliest days in the Union. You don’t.

    I’m sorry, which law states this?

    I know what you’re saying, that that’s the conventional wisdom has, even historically, but we’re supposed to be interpreting the law here, not conventional wisdom.

    This is the same kind of open-ended reasoning that Kennedy trotted out in Lawrence v. Texas. This legal rationale cannot be read in any limiting fashion, so it will equally apply to polygamy and incest. There is no legally principled way to not do so — Californians are entitled to chose who they want to chose. The Supreme Court just said so.

    Whatever silly argument you’re making is pointless because polygamy and incest are still illegal. There are specific laws banning them, and this decision doesn’t magically un-do those laws. The decision doesn’t say ‘Californians can choose whomever they want to choose,’ like people are going to start picking up babies from day-care and puppies from the pound, it’s that two people, regardless of their respective genders and as long as they’re meeting other state and federal requirements (such as not having sex with kids) are allowed to be married.

    Levi (76ef55)

  25. And that is contrary and adverse to the Judge’s job, to apply the law, as written, to the Constitution.

    Levi – Go do your freaking homework, and come back. Explain to us how the expressed will of the population of the State should be ignored because of that minor little 4% of feeling that you pulled out of your ass.

    Pulled out of my ass? You don’t know where that came from? I didn’t walk you through it slowly enough?

    Levi (76ef55)

  26. Having a judge decide tough cases based on what is in his heart defeats the legitimate expectation that the party with has the superior legal argument has to an outcome in his favor.

    Where does Obama say that that should happen?

    Do you know what a metaphor is?

    Levi (76ef55)

  27. “Having a judge decide tough cases based on what is in his heart defeats the legitimate expectation that the party with has the superior legal argument has to an outcome in his favor.”

    If one party has a superior legal argument then I don’t think its a tough case.

    “Explain to us how the expressed will of the population of the State should be ignored because of that minor little 4% of feeling that you pulled out of your ass.”

    Are you talking about CA gay marriage ruling? Thats under the CA constitution, not the US one.

    stef (dfd808)

  28. “Or, for the politically desirous outcome, that makes the Judges feel courageous.”

    Or the politically popular one.

    stef (dfd808)

  29. Levi — there was a specific law defining marriage as between a man and a woman — or do you not understand how the California initiative process works? When the voters passed that by intiative in 2000 by a vote of 61-39 — that made it a LAW no different that if the legislature had passed it and the governor had signed it.

    But the fact that it was a law didn’t slow down the Court.

    When a polygamist comes into a California state court and attempts to overturn the ban on polygamy as a violation of the Equal Protection Clause, what will be the rationale for denying that effort?

    A polygamist will say:

    “Where does the Constitution say a married man can not fall in love and want to marry a second women? Just because its always been conventional wisdom that you can only be married to one person at a time, doesn’t mean its in the Constitution. In fact, the Constitution is silent on the issue — the Equal Protection Clause, just like it doesn’t say only men and women can marry, it doesn’t say that a man can marry only one woman.”

    Go look at Justice George’s legal analysis and explain how a CONSTITUTIONAL challenge to the laws against polygamy would be different in its outcome to the challege upheld by the Court last week.

    Hint: you can’t.

    WLS (68fd1f)

  30. On a day when the 9th Circuit is overturned for the bazillionth time by the SCOTUS, this post is rather timely.

    Stef/Levi – why is it that this Circuit is overturned exponentially more than any other? Could it be that their “last mile” reasoning is deemed to be no reasoning at all?

    Why was the Florida Supreme Court in 2000 directed by a 7-2 decision to vacate their unequal application of Florida election law that required any recount to include ALL precincts across the entire state?

    You want to argue that all men necessarily reason/decide utilizing their hearts and souls and emotions? You got it. I’ll go further – did you know that the earth rotates in such a fashion as to allow for a sunrise and sunset at our lattitude roughly every 24 hours? Each concept is well-accepted fact. Neither has any relevance to the question at hand.

    For the Rule of Law to flourish, a judge is required to push aside emotion to the maximum extent possible. Reason, based on language limitations, evidence, and precedent, must win that blasted “marathon.”

    If my side is not protected from capricious and arbitrary Rule of Man judges today, your side will be unprotected tomorrow. Reverse judicial activism, anyone?

    Ed (6b8782)

  31. Apologies. HTML codes can be dangerous.

    Ed (6b8782)

  32. “Stef/Levi – why is it that this Circuit is overturned exponentially more than any other? Could it be that their “last mile” reasoning is deemed to be no reasoning at all?”

    exponentially?

    “For the Rule of Law to flourish, a judge is required to push aside emotion to the maximum extent possible. Reason, based on language limitations, evidence, and precedent, must win that blasted “marathon.” ”

    So lets talk about some cases. Was Brown vs. Board of Education a “tough” case? Maybe:

    ” This essay analyzes the justices’ internal deliberations in Brown v. Board of Education, based on the conference notes, with the goal of explaining why they found the case so hard. (At the first conference discussion, in December 1952, it was not obvious whether a majority existed to overrule Plessy v. Ferguson). I argue that for several justices, most notably Frankfurter and Jackson, Brown presented a conflict between law (as they understood it) and politics. Though they thought racial segregation a clear moral evil, they did not believe it was unconstitutional according to the conventional sources of constitutional interpretation – text, original intent, precedent, custom. The essay also tries to explain how a closely divided Court became unanimous and why school segregation struck most justices as an obvious moral wrong at a time when the nation was divided down the middle.”

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=353361

    stef (dfd808)

  33. #15 Levi: Yes, Obama did get his JD (so did William Jefferson and from the same alma mater), but the four years he spent as a junior associate before fast-tracking his political career passed in the blink of an inconsequential eye.

    Even Patterico’s favorite rag sheet did a story about Obama’s highly self-inflated legal career.

    Obama is merely a LINO. He doesn’t have adequate knowledge and experience to appoint any level of the judiciary, and certainly not that to lead this nation anywhere except straight into absolute chaos and destitution. Toward that end, I expect he would be an exceptional over-achiever.

    EHeavenlyGads (f29174)

  34. “When a polygamist comes into a California state court and attempts to overturn the ban on polygamy as a violation of the Equal Protection Clause, what will be the rationale for denying that effort?”

    The polygamist might claim his equal protection rights have been violated. Polygamy is not a suspect classification entitled to strict scrutiny. Therefore even if there was an equal protection for polygamists, the state only needs a rational basis for denying the polygamist equal protection. Such a rational basis could be the state’s interest in preventing the gender inequity that accompanies polygamy, or the state interest in the fact that the treatment of marriage in all of its laws and records is of a two-person relationship.

    stef (b7ee98)

  35. Levi — there was a specific law defining marriage as between a man and a woman — or do you not understand how the California initiative process works? When the voters passed that by intiative in 2000 by a vote of 61-39 — that made it a LAW no different that if the legislature had passed it and the governor had signed it.

    And this is why we have the judicial part of our government. People make shitty, stupid laws. That includes senators and congressmen and presidents and voters. This initiative, passed by the people, is still a shitty, stupid law, because it inherently contradicts the state Constitution, according to these justices’ interpretation. This is how these things are supposed to work.

    But the fact that it was a law didn’t slow down the Court.

    When a polygamist comes into a California state court and attempts to overturn the ban on polygamy as a violation of the Equal Protection Clause, what will be the rationale for denying that effort?

    A polygamist will say:

    “Where does the Constitution say a married man can not fall in love and want to marry a second women? Just because its always been conventional wisdom that you can only be married to one person at a time, doesn’t mean its in the Constitution. In fact, the Constitution is silent on the issue — the Equal Protection Clause, just like it doesn’t say only men and women can marry, it doesn’t say that a man can marry only one woman.”

    Go look at Justice George’s legal analysis and explain how a CONSTITUTIONAL challenge to the laws against polygamy would be different in its outcome to the challege upheld by the Court last week.

    ‘Marriage,’ in the law of the state of California and other states, is a secular arrangement, a partnership not unlike incorporation. Two people can get married, that is made very explicit from all over California’s tax codes and marriage law, and all of those rules and regulations still remain in place after this decision. So you can’t marry some kid if you’re a creepy pervert, you can’t marry 18 women and get them all health insurance from your work, you can’t marry your own daughter, because there are laws against those things already that are not affected by this decision.

    A law like this doesn’t really change anything, the way you seem to think it does. It doesn’t automatically allow polygamists to do whatever they want to do, they’ve got to prove their case, in court. They can try, and they can use this as a precedent if they want, but it won’t hold up, because it violates hundreds of laws, laws unaffected by and still applicable after this decision.

    Levi (76ef55)

  36. The idea of Levi arguing the law with WLS and Patterico is freakin’ hysterical. Funny beyond words.

    JD (75f5c3)

  37. The idea of Levi arguing the law with WLS and Patterico is freakin’ hysterical. Funny beyond words.

    What’s so funny about it?

    Levi (76ef55)

  38. Oh, I don’t know … silly me.

    JD (75f5c3)

  39. Levi said:

    People make shitty, stupid laws. That includes senators and congressmen and presidents and voters. This initiative, passed by the people, is still a shitty, stupid law, because it inherently contradicts the state Constitution, according to these justices’ interpretation. This is how these things are supposed to work

    And that is exactly what a polygamist will say about the law making polygamy illegal.

    The fact that the state’s role is really just enforcing the “secular” or contractual aspect of a marriage actually favors the polygamist. There is nothing in the California Contract Code that makes three-party contracts void or unenforceable. All a polygamist is asking for is the right to enter into a three (or 16) party marriage contract in the same manner two people are allowed to enter into a contract to marry. The Equal Protection Clause makes his right to marry in this fashion of equal legal significance to the two-party marriage contract.

    And then when he is denied health insurance after the polygamy law is invalidated, he’ll sue the insurance company and win. Then he’ll want the “Family” plan rate even though his family consists of 18 wives and 67 children — and he’ll win that suit as well because to deny him that rate would be to discriminate against him on the basis of his personal choice to be a polygamist.

    Your point about marrying children is a red-herring — much to the disappointment of NAMBLA. Children under 18 lack the legal capacity to enter into a contract, therefore a marriage between an adult and child is void ab initio.

    Go look it up.

    WLS (68fd1f)

  40. WLS: I would argue that the polygamist’s challenge will fail because (a) polygamy is not a protected class, and (b) therefore laws which discriminate against polygamists are subject to rational basis review rather than strict scrutiny.

    aphrael (e0cdc9)

  41. WLS – Levi knows more about California and the law than you. Just ask him. He will tell you.

    JD (75f5c3)

  42. What’s so funny about it?

    They’re actually lawyers, whereas you are a freaking moron…

    Scott Jacobs (fa5e57)

  43. Scott, if it is in fact the case that citizens cannot hold their own with lawyers in discussions of the law, then the law has gone off the rails.

    The law *ought* to be understandable by the untrained.

    aphrael (e0cdc9)

  44. “He doesn’t have adequate knowledge and experience to appoint any level of the judiciary, and certainly not that to lead this nation anywhere except straight into absolute chaos and destitution.”

    We’re not going to get Harriet Miers again, thats for sure.

    stef (f9a0f5)

  45. aphrael – At what point, in Levi’s ramblings, could anyone ever get the idea that he knows anything about the laws in question?

    Homophobe.

    JD (75f5c3)

  46. “Deep values, core concerns, and empathy aren’t drivel.”

    In the context of the post, are you kidding? How do you know this? What makes you believe its not drivel? Who gets to determine if it meets the non-drivel criteria? If you have 10 people in a room the odds are you will have at least half with varying views and values along with different levels of empathy, etc. To use this formual (above) assumes all participants have the same worldview. Yet if they don’t, who gets the final say? Everything screams subjective.

    This is utterly unreliable and foolish and it is especially ridiculous to use as a basis in selecting justices or determining cases.

    Dana (b4a26c)

  47. And that is exactly what a polygamist will say about the law making polygamy illegal.

    That’s what he says now.

    The fact that the state’s role is really just enforcing the “secular” or contractual aspect of a marriage actually favors the polygamist.

    How do you figure? The contractual aspect of marriage has enough room for two people, with no exceptions.

    There is nothing in the California Contract Code that makes three-party contracts void or unenforceable.

    Well it’s a good thing then that marriage is defined explicitly over and over again throughout California law as a two-party contract.

    All a polygamist is asking for is the right to enter into a three (or 16) party marriage contract in the same manner two people are allowed to enter into a contract to marry. The Equal Protection Clause makes his right to marry in this fashion of equal legal significance to the two-party marriage contract.

    Well then what does this decision have to do with anything then? That ‘loophole’ was there before, what was stopping the polygamist back then?

    And then when he is denied health insurance after the polygamy law is invalidated, he’ll sue the insurance company and win. Then he’ll want the “Family” plan rate even though his family consists of 18 wives and 67 children — and he’ll win that suit as well because to deny him that rate would be to discriminate against him on the basis of his personal choice to be a polygamist.

    That’s fucking crazy, no court is going to order a company to start paying insurance for a polygamist’s thirty to forty dependents. There’s laws protecting those companies. And there’s other laws about these sorts of things, about owning property and inheritance and filing tax returns and power of attorney and so on that don’t and couldn’t possibly allow for polygamists.

    And it’s not discrimination against polygamists, what they do is illegal, and it should stay that war.

    Your point about marrying children is a red-herring — much to the disappointment of NAMBLA. Children under 18 lack the legal capacity to enter into a contract, therefore a marriage between an adult and child is void ab initio.

    Go look it up.

    See? Exactly. Just as there are laws preventing children from entering into a marriage contract, there are laws preventing polygamists from entering into a marriage contract. You don’t think so?

    Levi (76ef55)

  48. “Children under 18 lack the legal capacity to enter into a contract, therefore a marriage between an adult and child is void ab initio.”

    Jerry Lee Lewis wants to have a word with you, Mr. ab initio.

    stef (84a199)

  49. Stef at 34:

    Homosexuality wasn’t a suspect classification until last week. It is now the only “suspect” classification that is based on self-definition, which makes it a joke in a legal sense. Its also the only “suspect” classification that can be changed.

    WHy would a polygamist who claims that status on the basis of religious conviction not be entitled to strict scrutiny as a standard of review?

    Now, for a real mind-bender, what about the hetrosexual male who goes to court seeking the right to marry a man without divorcing his wife?

    WLS (68fd1f)

  50. “If you have 10 people in a room the odds are you will have at least half with varying views and values along with different levels of empathy, etc.”

    Thats why its important to pick judges carefully. No more roger taneys. No more four horsemen of the apocalypse. No more Chief judges like Vinson thinking that Plessy was right, and instead judges like Warren, thinking that Plessy must be unanimously discarded.

    stef (48e229)

  51. “What the California Constitution does say is that there is a right to marry and that everyone is entitled equal protection under the law.”

    No, the California Constitution does not say there is a right to marry.

    The word “marriage” appears in two places in the California Constitution.

    Article 1, Section 21 says property owned before marriage or acquired during marriage by gift, will, or inheritance is separate property.

    Article 13A, Section 2(g) says transfers in connection with a property settlement agreement or decree of dissolution of a marriage do not trigger a reappraisal of the value of real property for purposes of taxation.

    The words “gay,” “lesbian” and “sexual orientation” are not mentioned.

    Article 1, Section 7(a) says a person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws.

    The definition of marriage applied to everybody equally.

    Troopship Berlin (56a0a8)

  52. “WHy would a polygamist who claims that status on the basis of religious conviction not be entitled to strict scrutiny as a standard of review?”

    Is religion something that is entitled to equal protection and subject to strict scrutiny in california?

    “Now, for a real mind-bender, what about the hetrosexual male who goes to court seeking the right to marry a man without divorcing his wife?”

    This one is quite simple. The prohibition on having more than one marriage doesn’t violate the equal protection on the basis of sexual orientation. Having more than one marriage is prohibited equally, gay and straight.

    stef (48e229)

  53. aphrael:

    Same issue — homosexuality wasn’t a protected class until last week.

    Here’s the language the Court used in reaching its determination that “strict scrutiny” was the proper standard of review:

    We conclude that strict scrutiny nonetheless is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents – like gender, race, and religion -a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.

    An LDS fundamentalist is going to base his claim on religion, thus moving him within the ambit of “strict scrutiny.”

    A non LDS fundamentalist is going to claim the “right to marry” is so fundamental that any meaningful restriction on it should be subject to “strict scrutiny.”

    The only barrier to a polygamist prevailing is that the Court as currently constituted says it won’t vote to invalidate laws against polygamy.

    But the composition of courts change.

    WLS (68fd1f)

  54. “It is now the only “suspect” classification that is based on self-definition, which makes it a joke in a legal sense. ”

    Religion isn’t based on self-definition?

    stef (fe0aa8)

  55. An LDS fundamentalist is going to base his claim on religion, thus moving him within the ambit of “strict scrutiny.”

    And he’ll get shot down….

    A non LDS fundamentalist is going to claim the “right to marry” is so fundamental that any meaningful restriction on it should be subject to “strict scrutiny.”

    Who cares….

    The only barrier to a polygamist prevailing is that the Court as currently constituted says it won’t vote to invalidate laws against polygamy.

    That’s the only barrier to legalizing murder and rape, too.

    But the composition of courts change.

    Oh yeah, because we’re a pubic hair away from being overrun by polygamists! BACK YOU CALIFORNIA POLYGAMISTS! BACK IS SAY!!

    Does this work the other way? As in, does legalizing polygamy set us on a slippery slope to gay marriage?

    Levi (76ef55)

  56. WLS, I think you have to look at the language the court used to determine that sexual orientation is a suspect classification:

    “For a statutory classification to be considered ‘suspect’ for equal protection purposes, generally three requirements must be met. The defining characteristic must (1) be based upon an ‘immutable trait'; (2) bear[] no relation to [a person’s] ability to perform or contribute to society; and (3) be associated with a ‘stigma of inferiority and second class citizenship,’ manifested by the group’s history of legal and social disabilities.”

    I think it would be difficult for a polygamist to demonstrate that laws banning polygamy are subject to strict scrutiny using these criteria.

    aphrael (e0cdc9)

  57. WLS – Talking law with Levi is like talking golf with an elephant.

    JD (5f0e11)

  58. Talking law with Levi is like talking golf with an elephant.

    Good lord, what must you have been doing when I was gone?

    Levi (76ef55)

  59. JD: you’d think that an elephant would be good at golf. The trunk would make an awesome golf club.

    aphrael (e0cdc9)

  60. aphrael – One would think so. There should certainly be no problem generating clubhead speed, though the hip and shoulder turn might be a challenge.

    JD (5f0e11)

  61. The last time he ran for president, John McCain said that Roe v. Wade should never, ever be overturned. We also know he’ll never nominate someone who would hold unconstitutional his only significant legislative achievement in his quarter-century-long career, the McCain-Feingold statute. So tell me, Patterico: what kind of judge would uphold Roe and uphold campaign-finance reform but otherwise be any different from the kind of judge Barack Obama wants to appoint? Answer: the kind that doesn’t exist and never will exist. So there’s absolutely no daylight between Obama and McCain when it comes to judges.

    Every single time I bring this up, everyone just ignores what Mr. Straight Talk said the last time he ran for president. Which means that the “pigheaded” ones are the ones who insist that McCain and Obama are different on this issue. They’re the pigheaded ones because they consistently ignore–not analyze and reject, not even dismiss, but ignore–the evidence that contradicts their position. But I’ll be only too happy to let history prove me right and Patterico wrong, my admiration for his other writings notwithstanding. I know I’m right, based on the evidence McCain has supplied, and in a few years everyone will know I’m right.

    As Republicans will soon enough learn for the umpteenth time, it makes no difference whether you get a John Paul Stevens nominated by a Republican or a Ruth Bader Ginsburg nominated by a Democrat. It all works out the same way.

    Alan (0cf397)

  62. So tell me, Patterico: what kind of judge would uphold Roe and uphold campaign-finance reform but otherwise be any different from the kind of judge Barack Obama wants to appoint? Answer: the kind that doesn’t exist and never will exist. So there’s absolutely no daylight between Obama and McCain when it comes to judges.

    Their votes on Alito and Roberts prove your entire thesis wrong.

    Patterico (cb443b)

  63. As far as non sequiturs go, Patterico, that one’s a beauty. It also ranks pretty high on the “incredibly lazy counterarguments” measure, since it yet again ignored the evidence I put forth and acted like it doesn’t count. I find it appalling that you seem to think it doesn’t matter that McCain–in an unguarded moment that he thought wouldn’t get publicity–admitted his view that Roe v. Wade should never be overturned, and then lied in one of the fall 2007 debates (in response to Mitt Romney) about ever changing his views. You talk about people like me being blind, and you’re ignoring the biggest piece of evidence about McCain’s views on the judiciary. But of course I mustn’t forget to expose the glaring flaws in your reasoning.

    You’re assuming (1) that McCain’s votes are a guide to whom he’d appoint and (2) that Obama’s votes are a guide to whom he’d appoint. Assumption (2) is sound. Assumption (1) is completely insane. Yes, McCain voted to confirm Roberts and Alito, but he also voted to confirm Ginsburg and Breyer. If McCain’s votes on Roberts and Alito are indications of whom he’d appoint to the Supreme Court, then so are his votes on Breyer and Ginsburg–which means that the indications are contradictory and therefore don’t indicate anything at all about what kind of justice McCain would appoint. It’s inconsistent to say that McCain’s yea votes on Roberts and Alito indicate that he’d appoint more judges like Roberts and Alito, while denying that McCain’s yea votes on Breyer and Ginsburg indicate that he’d appoint more judges like Breyer and Ginsburg.

    McCain, as a senator, is not selective when it comes to voting on Supreme Court nominations. He’s voted for them all, from Bork to Breyer and beyond. Obama is more selective. That proves diddly-squat about what kind of judges McCain himself would appoint. Just because you’ll vote for anyone who gets the nomination doesn’t mean you’ll be good when it comes to deciding who’ll get the nomination.

    Alan (0cf397)

  64. I am appalled that anyone could not see the daylight between McCain and Baracky. Appalled, I tell you. Gobsmacked, even.

    JD (5f0e11)

  65. As far as non sequiturs go, Patterico, that one’s a beauty. It also ranks pretty high on the “incredibly lazy counterarguments” measure, since it yet again ignored the evidence I put forth and acted like it doesn’t count. I find it appalling that you seem to think it doesn’t matter that McCain–in an unguarded moment that he thought wouldn’t get publicity–admitted his view that Roe v. Wade should never be overturned, and then lied in one of the fall 2007 debates (in response to Mitt Romney) about ever changing his views. You talk about people like me being blind, and you’re ignoring the biggest piece of evidence about McCain’s views on the judiciary. But of course I mustn’t forget to expose the glaring flaws in your reasoning.

    You’re assuming (1) that McCain’s votes are a guide to whom he’d appoint and (2) that Obama’s votes are a guide to whom he’d appoint. Assumption (2) is sound. Assumption (1) is completely insane. Yes, McCain voted to confirm Roberts and Alito, but he also voted to confirm Ginsburg and Breyer. If McCain’s votes on Roberts and Alito are indications of whom he’d appoint to the Supreme Court, then so are his votes on Breyer and Ginsburg–which means that the indications are contradictory and therefore don’t indicate anything at all about what kind of justice McCain would appoint. It’s inconsistent to say that McCain’s yea votes on Roberts and Alito indicate that he’d appoint more judges like Roberts and Alito, while denying that McCain’s yea votes on Breyer and Ginsburg indicate that he’d appoint more judges like Breyer and Ginsburg.

    McCain, as a senator, is not selective when it comes to voting on Supreme Court nominations. He’s voted for them all, from Bork to Breyer and beyond. Obama is more selective. That proves diddly-squat about what kind of judges McCain himself would appoint. Just because you’ll vote for anyone who gets the nomination doesn’t mean you’ll be good when it comes to deciding who’ll get the nomination.

    I don’t have a high degree of confidence that McCain will be good. I have a high degree of confidence that Obama will be bad, and that McCain *might* be good.

    Anyone who makes confident pronouncements to the contrary is 1) ignoring their votes on Roberts and Alito; 2) ignoring their rhetoric on the campaign trial; and 3) placing spite over a chance at a decent Supreme Court.

    It is clear to me that you are one of these people, and I don’t think I’ll convince you. That’s fine; this discussion still has a purpose: to use your failure to address points 1-3 as an example of why undecideds should vote with me, and not with you.

    Patterico (cb443b)

  66. I like McCain about as much as syphillis, and I can see the difference between him and Baracky. You have to be intentionally obtuse to not.

    JD (5f0e11)

  67. I did address point (1); you simply ignored it, or felt I didn’t address it persuasively, or whatever, but don’t tell me I didn’t address it. I addressed it in paragraphs two and three of my most recent post. You, by contrast, addressed nothing that I wrote. I don’t see how you’re going to persuade anybody by repeatedly ignoring every piece of evidence that isn’t convenient for those who hold out hope that McCain will be good. I’m addressing your arguments; you’re ignoring mine. How does that look to the undecideds?

    You refer to my “failure to address points 1-3.” Well, I didn’t exactly have point (3) in front of me because you hadn’t previously made the specious allegation that I’m placing spite over a chance at a decent Supreme Court. I’m flattered that you seem to think I’m a psychic and therefore should be expected to address points before you make them, but the truth is I’m not all that bright.

    In any event, now that I actually have a chance to address the third point (which is something you’re not doing–you don’t address the points that don’t work for you): First, I dispute that I’m motivated by spite; second, I dispute that spite is more important than a chance of getting a decent Supreme Court. I of course dispute that there’s any chance of a decent Supreme Court with John McCain.

    About this “decent Supreme Court” we all want, let’s not forget that thing called the “long term.” The president who comes after McCain will be a Democrat. (McCain will run for a second term. He’s healthy, he’s ambitious, he’s got good genes longevity-wise, and he’s got conservatives to spite. And he won’t lose the 2012 primary, because Republicans always eventually fall in line.) So, from McCain, we’ll get an indeterminate number of justices who definitely won’t be of Scalia/Thomas quality, who might be of Roberts quality (not Alito, said McCain, according to Bob Novak, who unlike McCain hasn’t been repeatedly exposed as a liar ever since McCain started this run for president), who probably will be more like Kennedy/O’Connor, and who might well be in the mold of Souter/Stevens. And then we’ll get a Democrat who’ll appoint an indeterminate number of Souter clones for sure. Now, the Democrats will have to win someday, so why not let them win now and start over in 2012 with someone who actually says he’ll appoint more Scalias and Thomases (which McCain has steadfastly refused to say)?

    As for your point (2), I’m not ignoring “their” rhetoric on the campaign trail. I’m listening to Obama, and I take him at his word that he admires Earl Warren and will appoint more David Souter’s. I’m ignoring McCain’s campaign rhetoric because it’s completely inconsistent with what he’s said in private when he thought his remarks weren’t going to be publicized. It’s stupid to give greater weight to campaign promises than to the things a candidate says when he thinks people aren’t going to find out.

    I expect you to ignore completely what I’ve said. That’s fine. The undecideds will see that only one side is responding to counterarguments. That’s my side. And that looks bad for your side.

    Alan (0cf397)

  68. Addendum:

    I can see the difference between McVain’s campaign rhetoric and Obama’s. Yes, I’d have to be thick not to see that difference. But the question is whether the campaign rhetoric bears any relation to the candidates’ beliefs, and in McCain’s case the evidence is perfectly clear that the man is lying like a rug.

    It’s not news that McCain lies (e.g., he lied about his reasons for voting against the 2001 Bush tax cut, he lied about Mitt Romney supporting timetables for withdrawal, he lied about opposing amnesty for illegal aliens). Would he lie about this issue? Well, why doesn’t someone answer my question: what is the basis for believing that there’s any chance at all that a candidate who wants Roe upheld and wants McCain-Feingold upheld will nonetheless wind up appointing judges who make you think, “Thank goodness Obama didn’t win that election?” I’d like to think it’s a pretty obvious question, yet those who’re voting for McCain seem hell-bent on avoiding giving an answer. I guess because they’re going on blind faith: “Sure, McCain sometimes makes promises we know he’ll never keep, like his promise to secure the border first… but when it comes to this issue, I’ll reflexively believe whatever he says on the campaign trail, even if he says completely inconsistent things in private!”

    Alan (0cf397)

  69. Alan – One either has to be willfully obtuse, spiteful, or politically uninformed to not see the Grand Canyon sized chasm between McCain and Baracky. Now, McCain and Hillary would be another story altogether.

    JD (5f0e11)

  70. JD, thank you. Your argument (assertion, actually) has convinced me of the difference. All without evidence, no less. Good job. Saying pretty much the same thing three times without ever offering a shred of support, and completely ignoring everything that tells against your side of the story, really showed me up. I bow to you, in honor of your intellectual prowess. I crave pardon for having expressed such ignorance, of which you’ve cured me. Live forever, O wise one.

    Fine. You don’t want to listen, don’t listen. You want to ignore all the inconvenient facts, ignore them. But those facts will all be stuffed in your faces again when McCain’s nominations prove that I was right. And you’ll have people screeching about how the warning signs were there all along. So you’ll pull the GOP even further to the left for four to eight years, then get Democrats in the White House for who-knows-how-long… Nobody’s going to answer “Yes” to the question “Was it worth it?” That’s when you’ll know who’s really been “obtuse” or “politically uninformed.” It’s you.

    Alan (0cf397)

  71. I bow at the altar of Alan and his superior to all others wisdom. I do not need someone like you to convince me McCain is an ass. I puke in the back of my mouth just thinking about voting for him. But, I can state with 100 confidence that Baracky would never appoint a Roberts, or even an O’Conner. With McCain, there remains a chance. Regardless, if the differences about socialized medicine, punitive taxation, and surrendering in Iraq do not constitute differences in your book, so be it. You did not come here to change minds. You came to lecture.

    JD (5f0e11)

  72. Err … Alan, assuming that you are right, what constructive action do you propose?

    nk (d7f5f5)

  73. nk – Nor Laup

    JD (5f0e11)

  74. JD, learn to read or stop writing back. I said “there’s absolutely no daylight between Obama and McCain when it comes to judges.” I didn’t say there’s no difference between them on other issues. I don’t know how I could’ve made it clearer–I was addressing the issue of judges and nothing else. And I had two reasons for posting tonight. First, to remind people of something Patterico apparently doesn’t care about and of course isn’t going to bring up: that John McCain is against Roe being overturned. Pretty important indicator of the kind of judge he’ll appoint. Call that lecturing if you want; I think arguments are a more positive contribution to the discussion than your repeated mindless, unsupported assertions. Second, I wanted to hear someone explain why they think there’s any chance McCain will be better than Obama on this issue, bearing in mind the fact that McCain wants Roe and McCain-Feingold preserved. No one has answered, and I predict no one will, because no one has an answer–it’s all blind hope.

    As for what nk asked, my answer is that there’s no constructive action in a situation like this. I think the right thing to do is choose the action that’ll be the least destructive over the long term. I’m not voting for McCain or Obama. I think the Republicans need to lose this year, just as in 1976, and come back next time with a candidate who doesn’t totally suck. People say that the world is so much more dangerous now that we can’t afford to lose this year, but that’s arrogant nonsense. It’s lunacy to think that this election will decide whether we’ll get wiped out in a nuclear holocaust. If anyone’s going to save America, it’s not going to be that unstable lunatic John McCain. And the Dems will never stop running candidates as liberal as Obama. People act like Obama is some unique threat. He’s not. The next Democratic nominee will be equally liberal, if not more so. We’ve survived lots of horrible presidents; it’s unreasoned hysteria to say we can’t take any more.

    Alan (0cf397)

  75. The problem is, Alan, that if either Hillary or Barack Married-To-Michelle-America-Sucks Obama become President there might not be a next time. We could probably survive Hillary’s Stalinism “in the long term”. I am not so sure about Barack Trinity-Church-of-Cthulu Obama’s Caliphate.

    nk (d7f5f5)

  76. Right, we’re all gonna die if Obama wins. Of course.

    Really, this isn’t a rhetorical question: How the heck do people get to believe something as hysterical as this? We’ve survived so many horrible presidents; why would anyone think that this time it’s curtains for the Republic if the greater of two evils wins?

    Alan (0cf397)

  77. “The greater of two evils”? McCain has proven his dedication to America a thousand times over. All Barack We-Don’t-Want-Nobody-Nobody-Sent Obama has proven is his dedication to the Daley Machine.

    nk (d7f5f5)

  78. All right, if you’re going to use McCain’s war experience as a get-out-of-jail-free card for him, and forget everything he did to this country since he actually became a politician, I really don’t know what to say, other than “Bull.”

    Except perhaps the following… Yes, I think someone is the greater of two evils when he spends his career demonizing his opponents rather than merely disagreeing (e.g., calling the FEC chair “corrupt” because he didn’t support McCain’s war on what McCain called “quote, ‘First Amendment rights'”); physically attacks people (e.g., shoving 92-year-old Strom Thurmond on the Senate floor); lies about his own record and his opponents’ records and then says at the debates that “I won the [insert any early state McCain won] primary because I told the truth”–indeed, lies constantly and then talks about what a uniquely honest fellow he is; calls drug companies bad guys; and promotes policies that are as good for this country as gonorrhea (like his cap-and-trade plan, amnesty for illegal aliens, and a whole lot more).

    Alan (0cf397)

  79. So, if judges are the only issue, I still do not see how one could think that there is no daylight between Baracky and McCain. Socialist and statists gravitate towards entirely different people. Convince me, Alan. Explain to me how it is preferable for Baracky to win, and absolutely guarantee horrible judges, or McCain to win, and have the chance for a good judge.

    JD (5f0e11)

  80. Patterico’s point about spite seems spot on.

    JD (5f0e11)

  81. Already answered you, but here it is again, even though I know you don’t read, which I guess makes me as thick as you. Time doesn’t end with the administration this country will elect in November. The Democrats will win sometime–specifically, they’ll win right after McCain. So we can get guaranteed Souters now or we can get them right after McCain (plus, I would say, during McCain’s term). If we get them right after McCain, that’s especially bad because McCain, for the reasons I’ve already given, is not going to appoint judges any different than “Baracky” (can you think of a more stupid nickname, by the way?). We can get the bad judges now or we can get them later. We’re going to get them at some point. And since I don’t expect Scalia or Thomas or Kennedy to retire while McCain is president (because they’re not close to death, Kennedy is power-hungry, and Scalia and Thomas no doubt see McCain as an enemey of the Constitution), it’ll be a Democrat who replaces those justices if McCain wins this year.

    I’ve already argued numerous times that there’s no chance that McCain will appoint anyone different than Obama. No one is responding to the points I’ve raised, so I’m at a loss to make the argument any stronger than I already have. Of course, that really only strengthens my point–why do you think there’s any chance at all that McCain will nominate a good judge when we know he wants Roe and McCain-Feingold preserved? Can you imagine a judge who’ll do those things but otherwise be good from a conservative or Republican perspective? I sure can’t. Anyway, that’s that. I’m not going to repeat my argument yet again, and kudos to you for fooling me into doing it now even though I know you won’t read it.

    Alan (0cf397)

  82. Well, your assertions remain unconvincing. Your lecture was interesting, not very compelling, but interesting. If you want to change people’s mind, it generally helps to not be quite so condescending.

    JD (5f0e11)

  83. Would one of y’all please address the advice and consent of a Senate with a yooge Democrat majority, as is likely in the next Congress? Thank you.

    Ed (6b8782)

  84. I’d be less condescending if I didn’t get the unmistakable impression that you and Patterico were just ignoring what I said.

    Alan (0cf397)

  85. I did not ignore it, I just did not find it convincing. Or is that too nuancy?

    JD (5f0e11)

  86. #6 – steve sturm

    “McCain won’t have the votes in the Senate to get through the type of nominee he professes to prefer and Obama, to head off a GOP filibuster (assuming the GOP has 41 seats and is willing to use them), won’t nominate blazing liberals”

    — Like when G.H.W. Bush nominated Clarence Thomas, at a time (1991) when the Senate split was 57-43 in favor of Democrats. And yet Thomas was confirmed.

    Missed It By THAT Much (b7e790)

  87. #18 – Levi

    “What the California Constitution does say is that there is a right to marry and that everyone is entitled equal protection under the law.”

    — I know that somebody already called you on this one but, seriously dude, what made you think you could just blow such a total LIE past us, like it was nothing? The California Constitution DOES NOT say that there is a right to marry! Up until a few days ago a law enacted under that constitution said that one-man one-woman marriage was legal. But then . . .

    Missed It By THAT Much (b7e790)

  88. #61 – Alan

    “The last time he ran for president, John McCain said that Roe v. Wade should never, ever be overturned.”

    — Not really, but seeing how much mileage you’re getting out of it — whatever floats your boat, I guess.

    Missed It By THAT Much (b7e790)

  89. We can get the bad judges now or we can get them later.

    I vote later.

    Patterico (cb443b)

  90. Alan,

    So you argue that McCain votes for everyone, while only Obama is selective as to whom he votes for. If McCain is a blank slate and Obama actively opposes my kind of judges, Obama loses that round.

    You place decisive weight on an unsourced assertion that McCain, in what you term an unguarded moment, said he never wanted to see Roe overturned. You assign no weight whatsoever to McCain’s repeated campaign rhetoric that he would appoint judges in the mold of Alito and Roberts, and his statements attacking judicial activism. You must have a crystal ball I don’t possess, which allows you to know McCain’s isolated statements in unguarded moments trump all his repeated campaign rhetoric. Without your crystal ball, Obama loses this round as well.

    Your only other argument appears to be that McCain would delay bad Democrat-appointed judges by only 4 years. I’ll take that 4 years.

    Patterico (cb443b)

  91. Dear Patterico:

    You are trying to use reasoned debate. That can’t defeat Changeyness! The aura of “Hope”! You will be washed clean of your racism by supporting a mixed race fellow raised by white people in Hawai’i (with some time in Indonesia).

    That’s the subtext I think.

    Voting records are what we have. Teleprompters don’t do much for me.

    I keep coming back to my parents. They hated GHW Bush, so they voted for Ross Perot. They didn’t think he would win. They were just “registering their upset” with the RNC.

    It gave us eight years of Clinton.

    If you like Clinton, cool. But my parents spent that eight years complaining daily about Clinton…and still do to this day. Even though they helped to make it happen.

    The McCain haters will spend the next few years complaining about President Obama the same way. Unless they wise up. Like you, I am astounded by the seemingly partisan telepathy that allows people to just know what McCain will negatively do, and just know that Obama will do positive things.

    We’ll see what McCain and Obama do after the Democratic Convention picks His Changeyness (unless HRC has something up her sleeve), who they both pick for running mates, etc. And I hope to hear some specific policies from both of them.

    No “Changeyness and Hope” allowed.

    Eric Blair (567d79)

  92. Erm, that should have been in response to comment 87, not comment 81. My apologies for the error.

    aphrael (db0b5a)

  93. aphrael,

    That’s fascinating. Now, can you tell me where in the California Constitution this fundamental “right to marry” is located? And isn’t it telling that you cited the CA Supreme Court ruling, rather than the CA Constitution itself?

    Anyway, searching through the 132 references to a “right to marry” contained in the 172 page pdf of the decision, I came upon this, on page 49:

    “Although our state Constitution does not contain any explicit reference to a ‘right to marry’, past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution.”

    So, when I said to Levi, “The California Constitution DOES NOT say that there is a right to marry,” what did I get wrong?

    The above quote from the decision is followed by references to those past cases that, in the opinion of the majority, “establish beyond question” the constitutional right to marry. Those cases, as well as other “right to marry” references in the decision refer to these sections from Article I of the California Constitution:

    SECTION 1. All people are by nature free and independent and have
    inalienable rights. Among these are enjoying and defending life and
    liberty, acquiring, possessing, and protecting property, and pursuing
    and obtaining safety, happiness, and privacy.

    SEC. 2. (a) Every person may freely speak, write and publish his or
    her sentiments on all subjects, being responsible for the abuse of
    this right. A law may not restrain or abridge liberty of speech or
    press.

    SEC. 7. (a) A person may not be deprived of life, liberty, or
    property without due process of law or denied equal protection of the
    laws;

    There are some who would read that and decide that a fundamental constitutional right to marry has NOT been established beyond question.

    Missed It By THAT Much (b7e790)

  94. I hope this link works. Stanley Kurtz wrote an article over at the National Review Online and I think it is a must-read for everyone with an open mind, and certainly for anyone with a working mind.

    The Sen. Obama who is running as a centrist does not appear to comport with the Sen. Obama who sat at the knee of Frank Marshall Davis and is bathed in hard left causes and mentors and advisors his entire life.

    Which judges he would select would be merely the tip of the iceberg. Please read Kurtz’s article, I have been trying to point out some of these things for weeks now. The smoke and mirrors are creating a fog, but he simply has to be made to answer some of these questions.

    By the way, if my link doesn’t work, would someone be kind enough to produce one that does work….it would help, since I’m not skilled yet at the linking and hyperlinking bit. Thanks.

    http://article.nationalreview.com/?q=MjRhNDQ4MGFlYjk0YzUwNDk0MzYyNTE1ZDkwYmNmNDc=

    cfbleachers (4040c7)

  95. Some of the things Stanley left out of his article (the link seems to work just fine, will wonders never cease!) are the connections to Frank Marshall Davis.

    A hard left Communist who mentored and inspired Sen. Obama and held a particularly angry and hostile worldview of America and our way of life, promoting the revolution and telling Obama to keep up the fight and to “remember his people”.

    And, of course….Sen. Obama sought to do just that. He not only sought out his most radical professors…the very core and essence of hard left/hate America bile…he immersed himself in the tapes of Jeremiah Wright. It is important to remember, he took those tapes to school and began imitating, emulating, creating a verbal shrine to Wright…his new “mentor” “spiritual advisor”, (augmenting and replacing Frank Marshall Davis and the radical left professors).

    When Sen. Obama returns to Chicago, Father Pfleger becomse an integral part of the unholy Trinity of hard left voices who form Sen. Obama’s inner circle of theo-political worldview shaping.

    Father Pfleger, Jeremiah Wright, Louis Farrakhan are of one mindset.

    Wright’s version of Christianity is simply Farrakhan’s Nation of Islam disguised and hidden by and through a Christian veil. You couldn’t separate them with a scalpel or scapular.

    Sen. Obama refuses to even RESPOND to any questions about Black Liberation theo-politics…yet, in his books, he defines his entire belief system sea change…by the joining of this particular church.

    Odd that. One would think that the momentous transformation would be one in which he would be open, honest and free with his life changing epiphany…and yet…much like Jeremiah Wright himself…Sen. Obama wishes to keep this all on “deep background”.

    Wright needed to be hidden from view, only to be resurrected, perhaps…AFTER the election.

    “Frank” was not willingly disclosed fully in his books, but kept on “deep background”.

    The most radical professors at college are not named, although surely their influence must have been profound.

    Father Pfleger has been kept at bay. Malley is not a “serious” advisor, Tony Rezco was a fleeting and distant relationship, Ayers & Dorhn he “hardly knew” at all, the Che Guevara poster “did not reflect” his politics, the flag lapel pin issue is a “distraction”, the lack of the hand over the heart is a “false issue”, Sam Graham-Felsen the Chomskyite official blogger hasn’t even become an issue at all, nor have his Nation of Islam staffers Jennifer Mason and Cynthia Miller.

    His relationships with Rashid Khalidi and Ali Abunimah as well as the late Edward Said have yet to be vetted with any vigor.

    Before we can suggest what type of judges Sen. Obama might put forward, we might want to do something more than scratch the surface behind what sort of voices he has sought HIS ENTIRE LIFETIME.

    Suggesting that they are similar or the same as Sen. McCain…is nearly insane. Certainly inane.

    Sen. Obama’s apologists and mistake cleansers…his “cleanup crew”…will RUN…full speed, from this inquiry. But his belief system is not only fair game…is it the raison d’ etre for his entire being and it would be patently unfair and a disgrace of epic proportions for the national metastasis deadwood media to engage in a coverup of that belief system. That is precisely what they are doing now.

    It is up to the blogosphere to vet the candidate that the deadwood media is shrouding in conspiratorial cover. To insist that answers about his worldview be asked and demanded of him as they would any other candidate who did not enjoy their conspiracy of silence.

    Stanley Kurtz has had the courage to get on the right track. We must assist that engine and not let it die the slow death of being ignored by the deadwood media. Only our interest in the blogosphere will fuel it and keep it alive.

    Sen. Obama may indeed have answers to these questions and it is only fair that we wait to hear what they are. But it is not fair to bury the questions and shroud the answers, and allow the deadwood media to steal this election for the hard left by their distorted coverage.

    You can make a difference before the fact. After the fact, may be too late. Raise the questions, insist on the answers. Demand that your information stream not be polluted and corrupted.

    Ask repeatedly why these questions are not being asked of Sen. Obama, insist that you have a right to be informed on topics of importance equally among the candidates.

    cfbleachers (4040c7)

  96. Supreme Court nominees always get an up or down vote on the floor of the Senate. They always “get out of committee” whether with a positive or negative recommendation (the Judiciary Committee recommended “no” on Thomas) and they are never filibustered. Huge or thin Senate majority, the President’s first choice is much more important to us than it is with district and circuit judges.

    As far as Roe v. Wade goes, which nominee since (maybe) Bork *campaigned* on whether he would affirm or reverse? They may talk generally about the right to privacy as found in the Bill of Rights and the Fourteenth Amendment and that’s about it. If I recall correctly, Ruth Bader Ginsburg thought that even that was going too far towards *promising* how she would rule on a case.

    nk (d7f5f5)

  97. # 88– In August of 1999, McCain’s statement was reported in the San Francisco Chronicle that while he would “love to see a point where [Roe] is irrelevant, and could be repealed because abortion is no longer necessary,” nevertheless, “certainly in the short run, or even the long run, I would not support the repeal of Roe v. Wade, which would then force x number of women in America to [undergo] illegal and dangerous operations.”

    Care to repeat your “not really?”

    Unsourced, Patterico? Crystal ball? Are you going to pretend that I’m the first person to bring this to your attention? Okay, do you remember McCain stating repeatedly and publicly through the 2000 campaign that if we overturn Roe tomorrow, women will die? Do I have to go find sources for that too, or will you be honest enough to remember that he said that? If you don’t remember that, you’ve obviously committed yourself to shutting out any more bad news about McCain now that you’ve grudgingly decided to support him. And I’m the one being pigheaded and blind?

    Alan (0cf397)

  98. Yes

    JD (75f5c3)

  99. And we still don’t know much about whats a “tough case.” who here thinks that Brown vs. Board was a “tough case”?

    stef (1d0ada)

  100. What’s so funny about it?

    They’re actually lawyers, whereas you are a freaking moron…

    Comment by Scott Jacobs — 5/19/2008 @ 1:41 pm

    HAHAHAHAHAHAHAHAHAHAHAHA!!!!!!!!!

    Jack Klompus (cf3660)

  101. #98 – Alan

    Care to repeat your “not really?”

    — Certainly. John McCain NEVER SAID, “Roe v. Wade should never, ever be overturned”. He doesn’t say it in the statement you quoted; however, I definitely acknowledge that what he actually did say in that statement was off-base.

    In January, 2000, CNN reported: McCain calls the Roe v. Wade decision “overreaching” and “flawed” but says laws should make exceptions for rape, incest and danger to the life of the mother. Sounds like a realistic, conservative position to me.

    More importantly, his clearly defined position NOW, this year, this election cycle, is dead on. It’s part of the reason why I’m supporting him, and not “grudgingly” either. I’ve contributed to his campaign.

    Do I have to go find sources for that too, or will you be honest enough to remember that he said that?

    — Do I need to mention that it was Governor Ronald Reagan who signed into law the measure that opened the floodgates on abortion in California? And yet, by the time he became President Reagan he had become a vocal figurehead for the pro-life movement. He improved on the issue; so has McCain.

    ———————-

    And what’s with calling ME “Patterico”? Is that some kind of slur because you think I write and think like he does? or do you actually believe that I’m him?

    Missed It By THAT Much (e9a2a0)

  102. I think he separated out his response to you at 88 and his response to me.

    However, note the irony in his whining that I didn’t respond to his specific points — and now he won’t respond to mine.

    Alan, even if McCain said all that, there is a difference between the types of judges McCain is likely to nominate and those Obama is likely to nominate. For example: Alito and Roberts (as I pointed out in a recent post) have refused to say they would overrule Roe. Is there any doubt, however, that they will be better on abortion restrictions than Breyer and Ginsburg?

    Patterico (cb443b)

  103. “All Barack We-Don’t-Want-Nobody-Nobody-Sent Obama has proven is his dedication to the Daley Machine.”

    – nk

    I’m quasi-bemusedly wondering whether or not you’re going to run out of nicknames before November.

    Leviticus (4a1e69)

  104. Thanks, Patterico. I figured it was something like that, but it serves a purpose as a prod to make him respond . . . except it’s not working.

    C’mon, Alan; letsgetiton!

    Missed It By THAT Much (7249e6)

  105. Leviticus # 104,

    Possibly for Michelle America-Starched-My-Knickers Obama because with her my meme is pretty specific. For Barack Keep-It-Clean-Keep-It-Hot-Keep-It-Lubricated Obama, I don’t think so.

    BTW: “We don’t want nobody nobody sent” is attributed to a Chicago Machine patronage boss talking about who gets City jobs.

    nk (d7f5f5)


Powered by WordPress.

Page loaded in: 0.4310 secs.