Patterico's Pontifications

7/6/2010

L.A. Times: Support for an Unrestrained Commerce Clause = Judicial Restraint

Filed under: General — Patterico @ 7:22 am



David Savage from the L.A. Times:

During her hearing, Kagan found herself in the odd spot of defending judicial restraint before senators who usually worry aloud about sending a “judicial activist” to the court.

“Can you name for me any economic activity that the federal government cannot regulate under the commerce clause?” asked Sen. John Cornyn (R- Texas).

“I wouldn’t try to,” Kagan replied, emphasizing that the court has long said lawmakers have broad powers to regulate economic activity.

Just so we’re clear, defending unrestrained federal regulation of any and all economic activity is known as “judicial restraint” in L.A. Times land. Just as a reminder of where such “restraint” can lead us, here’s Senator Coburn addressing Kagan regarding a hypothetical “eat what we tell you to” law:

Restraint!

Thanks to jimboster.

P.S. The theme of the article is that Obama and the Supreme Court are on a “collision course,” which Savage sets up as John Roberts’s revenge for Obama’s State of the Union slap at the Supremes. Savage does his best to dramatize his theme with such hyperbole, but I still came away yawning.

For what it’s worth, Kennedy isn’t planning to go anywhere soon, and the conservatives show no sign of immediately departing either. Obama hasn’t been able to do anything to shift the Court yet. That comes in the second term!

97 Responses to “L.A. Times: Support for an Unrestrained Commerce Clause = Judicial Restraint”

  1. There will be no second term. Or another non- Aglo-Saxon President for another hundred years. It’s a shame in a way but the shame is Obama’s.

    nk (db4a41)

  2. Who is going to beat him?

    Patterico (c218bd)

  3. This guy’s done nothing to make a man with dark skin and an African/Arab name look the other presidents on the dollar bills.

    nk (db4a41)

  4. yeah, the article is kind of lame.

    and i wish dearly they would really stick her hind end in the fire over this one. Like “how about a law that forbids abortion, is that allowed under the commerce clause?” And when she says no, then ask, “so let me get this straight. the government can force me to eat certain foods, but it can’t prevent me from killing what many consider to be another human being?”

    One gets whiplash watching the liberals go from complete totalitarianism on the economy to libertarianism on abortion.

    Aaron Worthing (A.W.) (e7d72e)

  5. *look like*

    nk (db4a41)

  6. i would add, btw, that if i was sitting there nominated (yeah right), i would have to refuse to answer the veggies question. why? because if obamacare is upheld. then the veggie law would be much easier to justify as part of that. after all, if i have to pay for your healthcare, then maybe i have a right to tell you not to screw up your body.

    Which is exactly why i think obamacare will be struck down. It would be the end of all privacy in america.

    Aaron Worthing (A.W.) (e7d72e)

  7. nk

    wtf are you talking about?

    No one i talk to blames this on Obama’s skin color.

    It more likely that Obama is will sour things for liberals or democrats than his entire race.

    Sheesh.

    Aaron Worthing (A.W.) (e7d72e)

  8. Patterico

    > Who is going to beat him?

    i think at this point republicans could put up a cow and the republicans would squeak out a narrow victory.

    But if you wanted my guess on who will be the next president… i am thinking jindall. which goes against nk’s theory.

    Aaron Worthing (A.W.) (e7d72e)

  9. He said that in his campainging.

    nk (db4a41)

  10. Christie/Jindal in 2012!

    gahrie (f26e70)

  11. Who is going to beat him?

    Christie. Coburn. Ryan. Persian Cat. Pair of Socks. Inert Life Form.

    Dmac (93e7cb)

  12. I don’t know, Patterico.

    The GOP seems even lamer these days.

    nk (db4a41)

  13. A cow or a pair of socks, maybe, but what about McCain or Huckabee?

    I wish I thought that was unlikely.

    Machinist (497786)

  14. AW is right, Obama’s failings have nothing to do with skin tone, they are of his ideology and his own personal shortcomings.

    We have a ways to go before this thing shakes out. I remind you, don’t let the media set the narrative and tell you who the candidate should be. That’s the main contributor to the McCain in 2008 fiasco, IMHO.

    GeneralMalaise (9cf017)

  15. Christie perhaps. Not Jindal or any other minority, this time. Not only has Obama poisoned that water, but it would look too much like “Me, too!” for the Republicans. Surely the press would spin it that way). Whitman might be another contender IF she 1) wins and 2) can clean up the worst of California’s problems as Christie did.

    One thing is completely out for Republicans in 2012: No-one from the Christian Right can be elected (and probably will do the party a disservice by running) — 2012 is about competence, the economy and free markets; social issues will just have to wait.

    Kevin Murphy (5ae73e)

  16. No, the GOP may have a very hard time beating Obama.

    Remember how Clinton sagged. Remember these guys play hardball and there is far more money at stake than ever before.

    There could be a third party… the Dems badly hope so and the ingredients are there. Obama has an amazing campaign crew around him.

    He’s lost a lot of popularity. He looks weak. But just wait until they get their claws into our nominee, if we even pick a good one. The crossover democrats in our nomination will be far greater this round than last.

    I’d be very happy with Jindahl, Christie, Palin, Ryan, or the like. I would sigh with relief but whine a bit with Romney or someone like that. I wouldn’t even vote if it were a Huck type.

    Let’s just win big in 2010 and see if we can get Obama to quit. We could all chip in on a nice set of clubs for him.

    Dustin (b54cdc)

  17. Most of the Democrats I know — who were BIG Obama supporters — are way upset about this oil spill and blame Obama for the incredibly bureaucratic non-response.

    Kevin Murphy (5ae73e)

  18. “ot only has Obama poisoned that water, but it would look too much like “Me, too!” for the Republicans.”

    Steele looked like ‘me too’, but I think a lot of people picked him because he was a forceful pundit sometimes (oops). On the other hand, a lot of people picked him because he was black (pulling that out of my ass, but it’s true).

    We shouldn’t even worry about race. I don’t think it would help much, and I don’t think it would hurt much, since we’re running against Obama, to have a minority. We should just let them debate and campaign and see who has the chops.

    At least Jindal has a powerful narrative that forces the country to face Obama’s most blatant failures. There’s a huge difference between a man who rises up in spite of his race, and a man who is lifted because of his race. I’ve always thought the brilliant minorities are the ones worst afflicted by AA, and I don’t want to be part of that.

    Is Christie running? If he does, he will be tough to beat.

    Dustin (b54cdc)

  19. Look, guys, it was Obama that put race in the equation when he was running.

    I’m still telling my eight year old daughter that there’s no such thing as an African-American President — we only have American Presidents.

    nk (db4a41)

  20. If Obama were to decide not to run for a second term, that would be fine. If he were to resign before the end of this term, President slo-Joe Biden really sounds unappealing.

    BarSinister (563b23)

  21. The Republican establishment will be emboldened to put up the candidate they want, thinking we have no choice with Obama on the other side. If they stick us with a loser again then many will throw away their vote or stay home. With officially backed vote fraud on an unprecedented scale and the Dems free to mess with the Republican primaries, and government resources available to smear or destroy any credible candidate, this will be a tough election at best. Now add in the Republican party’s capacity for stupid and I just don’t know. I just hope the House and Senate change hands this next election.

    Machinist (497786)

  22. …but what about McCain or Huckabee?

    I assume you’re joking about the first, but if the Tea Party has anything to say about it, Huck is toast as well. The thing I worry about most is that the GOP elites seem to insist on treating this movement as nothing more than a transitory action that they can easily co – opt in November. They couldn’t be more wrong, and they may find out the hard way once those elections are over. You’d think that Bennett’s ouster would give them a cluebat, but they don’t appear to be catching on.

    All of which is why I sincerely hope that Christie gets drafted into the 2012 election. He’d satisfy most of the major voting constituencies that would put him over the top. It’s time for the Fat Man!

    Dmac (93e7cb)

  23. Republicans would like a candidate like Jindal or Christie but the Republican establishment do not as they would not control them. They are still telling themselves that McCain lost because of Palin. They are far to invested in the political class.

    Machinist (497786)

  24. I’m with you nk, there’s no denying that an Obama-like person has a disadvantage running for President. But against Obama? Probably a washout.

    I think the real problem in our presidency is that Obama’s administration is full of campaigners who simply aren’t competent at handling problems, and are deluded liberals who aren’t able to challenge and change their perceptions. Biden would just be a new voice for the teleprompter.

    They are so lousy that it does look suspiciously like a conspiracy to ruin various things, but either way, Biden won’t change much if Obama were to actually quit (which I wouldn’t hold my breath waiting for).

    Dustin (b54cdc)

  25. Who is going to beat him?

    Now you’re being fatuous. Republicans haven’t even come close to choosing a candidate, so it’s patently disingenuous to label the Republicans as losers. Even ignoring the absence of a Republican candidate, though, Obama faces daunting numbers right now. Obama was elected with a plurality of voters from across demographic lines. Obama’s standing among white voters now, however, is about where President Bush’s was at this time two years ago.

    The latest NBC-Wall Street Journal poll reveals that Obama’s standing among white voters is remarkably similar to that of President George W. Bush at this same time two years ago.

    In the June 2008 NBC-WSJ survey, 37 percent of white men and 26 percent of white women approved of the job Bush was doing. In the June 2010 poll, an identical 37 percent of white men approved of Obama’s handling of his job, as did 35 percent of white women.

    Moreover, minority, especially black, turnout for Obama’s election was historically high:

    Total turnout in 2008 was about the same as it was in 2004, about 64 percent of voting age citizens.

    But with Barack Obama on the ballot, the makeup of the 131 million who voted last year was markedly different. While the number of non-Hispanic white voters remained roughly the same, 2 million more blacks, 2 million more Latinos and 600,000 more Asians turned out. Compared with 2004, the voting rate for black, Asian and Hispanic voters increased by about four percentage points. The rate for whites declined by one percentage point.

    Barack Obama’s recipe for success was disaffected white voters PLUS the minority vote. Obama is now plagued with his own disaffected white voters – just as many as Bush had – and the novelty of a minority candidate is not only gone, but the minority “leader” has turned out to be a travesty. The last two factors have the potential to quash minority voter attendance, and all three factors taken together could easily spell a regime change in the White House.

    Your blog speaks to the grass roots, regular people, and you help mold granular opinions. Your enthusiasm and disinterest affect others. With that in mind, your cavalier “Who is going to beat him?” remark comes across as defeatist and only yields a point of friction among those working to change the political leadership. I don’t know how you find your comment helpful to that greater endeavor.

    Jazz (f623f1)

  26. The two greatest successes for conservatives in my memory were the Reagan revolution and Newt’s takeover of the House and Senate with the Contract with America in 94. The Republican establishment fought and despised both. They only got behind them when they succeeded in spite of the the party’s opposition and they torpedoed them as soon as possible. They can’t control conservatives and would rather do without them if they did not need to use them.

    Machinist (497786)

  27. Money.

    McCain got caught with his pants down, accepting public finance and spending limits, while Obama got almost ten times as much from nobody knows where.

    nk (db4a41)

  28. “so it’s patently disingenuous to label the Republicans as losers.”

    52% vs 48%

    We are out of power for a reason. The GOP, at least as a general body, is a loser. We had the chance and the power to completely prevent many of today’s problems. Reforming the border, entitlements, spending… we didn’t do it from 1994 to 2007. And anything short of doing it now will be a failure of leadership. Of course, we can’t do it now… we’ll be lucky to put a little majority on the House.

    And there is a problem picking a Presidential replacement. Notice something about all our favorites? They don’t have much experience. Many insist they aren’t even running because it would look crass with so little experience. Basically Palin levels of Governor experience, which is far better than Obama, but still, we have to resort to these guys because we do not have a strong bench of Giuliani level experienced leaders who still sound like Christie.

    Put we have to play that hand as best as we can. There’s no reason to cheer-lead so early, though. I think people ask that question ‘who?’ because it’s early enough to actually be constructive.

    Dustin (b54cdc)

  29. Jazz,
    If the Dems keep the Legislature in 2010 then our votes might not matter in 2012. If the Republicans win power in 2010 then Obama will claim credit for everything they do to save the country as Clinton did, and smear Republicans over every hard decision they must make while doing it. With a lapdog press helping them do this the poll numbers now mean little.

    If I recall the approval for Bush Sr after the Gulf War was over 90% but just a couple of years later he lost to Clinton who had just 93% of the vote. The next two years are going to be very nasty and chaotic.

    Machinist (497786)

  30. Did you mean 43% of the vote?

    nk (db4a41)

  31. 43%, Duh!

    Machinist (497786)

  32. NK, Yes I did, Thank you.

    Machinist (497786)

  33. Bush senior had more problems than that.

    The two biggest I think

    Breaking the “No more taxes” promise
    and
    The media blaming the LA(Rodney King) riots on him.

    nk (db4a41)

  34. 52% vs 48%

    We are out of power for a reason. The GOP, at least as a general body, is a loser.

    So, because Republicans have lost big races in the past, the outcome of future races is predetermined? That’s not a party problem, that’s a vision problem.

    Yes, the Republicans have a problem with their recent track records. That doesn’t make election outcomes forgone conclusions two years before they actually transpire. Acting like it does depresses people. That’s my point.

    Jazz (f623f1)

  35. Bush senior had more problems than that.

    The two biggest I think

    1) Ross

    2) Perot

    Dustin (b54cdc)

  36. Petterico asked, “Who is going to beat him?”

    Well, Lady Gaga could pull it off, but she’ll never take the pay cut. So, the GOP is going with McCain/Scozzafava.

    ropelight (79113b)

  37. Hillary covering for her husband’s infidelities is probably the more learnable lesson but the GOP had not learned by the time of the empty suit from Chicago.

    nk (db4a41)

  38. True, but my point is that two years is a long time and poll numbers can change. If the Republicans take the Legislature they will have to do many hard and unpopular things. The Democrats and the press will demonize and smear them at every opportunity. This will require a rational voter population and a Republican legislators with courage and conviction. I am not too confident of either and this will help Obama.

    Machinist (497786)

  39. So, because Republicans have lost big races in the past, the outcome of future races is predetermined?

    Oh, I’m probably a bigger cheerleader than you are, to be honest.

    But you’re getting the causality I’m speaking of all screwed up.

    There’s a reason the GOP lost big elections. And I’m not just talking about future elections. The elections are not the point and they won’t inform me on whether or not the GOP is a failure as a party… which it currently is.

    Are we spending more than we can afford? That’s probably my main metric. Whether we win elections or now, the GOP is going to have to fix the problem to be a ‘winner’.

    Dustin (b54cdc)

  40. Nk

    > Look, guys, it was Obama that put race in the equation when he was running.

    To a degree, yes, but that doesn’t justify you saying that now this has poisoned the water for all non-whites or anything like that.

    Kevin

    > Not only has Obama poisoned that water,

    Um, so no minorities because one screwed up? How about women?

    How about people from a minority religion?

    Myself, I judge not by the color of one’s skin but the content of their character. So no liberals or democrats.

    > but it would look too much like “Me, too!” for the Republicans. Surely the press would spin it that way

    Who cares what the press says?

    Dustin

    > Remember how Clinton sagged. Remember these guys play hardball and there is far more money at stake than ever before.

    Agreed, that Clinton came back after getting his a– handed to him in the midterms, but… Clinton was completely unscrupulous. Obama, on the other hand, I think actually is a true believer. So he might not co-opt the republican agenda as Clinton did. he might actually be capable of shame, unlike Clinton.

    And Clinton was competent. Clinton would not got half the country covered with oil. I mean he might get half the country covered in astroglide, but that is a different issue.

    > Let’s just win big in 2010 and see if we can get Obama to quit.

    Well, I would like to make him cry, but quit…? then he would be replaced by Biden, the only person who might actually be worse at this than Obambi.

    > because [Steele] was a forceful pundit sometimes

    Steele was great running for Senate in Maryland, and a lot of insiders saw that and were impressed because its next door to D.C. But man he has been a disaster in the new job.

    > At least Jindal has a powerful narrative that forces the country to face Obama’s most blatant failures. There’s a huge difference between a man who rises up in spite of his race, and a man who is lifted because of his race. I’ve always thought the brilliant minorities are the ones worst afflicted by AA, and I don’t want to be part of that.

    There is a theory that Indian Americans are doing well in the republican party, because in the group dynamics and tribalism of the democrats, they are getting the short end of the stick, while republicans will nominate anyone of merit. And he seems to be doing a good job.

    As for Christie, I see a lot of potential in Christie and he is fun in those clips, but I would like him to be governor a little longer before we consider him for the top job. That’s also how I feel about palin, except she isn’t going to be governor anymore.

    Aaron Worthing (A.W.) (e7d72e)

  41. And maybe the real problem with the GOP is the GOP voter.

    Among Republicans:

    1. Mike Huckabee 20%

    2. Mitt Romney 18%

    3. Newt Gingrich 14%

    4. Sarah Palin 13%

    5. Rudy Giuliani 12%

    6. Mark Sanford 4%

    7. Jeb Bush/Bobby Jindal 3%

    8. Don’t know etc., 14%

    I’m pretty sure this is not the latest, and that doesn’t matter.

    Maybe asking who is going to beat Obama is the wrong question. Who is going to fix our country is more important. Is the GOP, as a mass of millions, capable of fixing its nomination process, rejecting the corrupt, and fixing our country?

    I’m an alphabetist more than most, so I’m really asking myself.

    Dustin (b54cdc)

  42. I agree with you AW. I’m just saying that Obama’s current position is one he could win from. Easily if there’s some third party.

    Dustin (b54cdc)

  43. Jazz,

    The Republican voters have shown a fatal tendency to get complacent. When they get even a tenuous hold on power they say the problems are solved and sit back, while the Dems turn up the heat. A little realistic caution is called for or we will just do it again. If the Republicans win in 2010 but the Dems win power back in 2012 and reelect Obama, they will be unstoppable as they blame all the bad results of their actions on the Republicans brief period of control. Obama’s second term with the legislature restored to their hands would be so much worse than the first term.

    Machinist (497786)

  44. Dustin,

    Could you elaborate on your point in 41. Why is the GOP voter the problem? Is it because they are currently unfocused, two years away from an election? Is it because there is still strong support for candidates you find undesirable?

    Christian (3290f5)

  45. Christian,

    I don’t think there’s a problem with a focus on teh 2010 elections. Though I enjoy talking about 2012, it shouldn’t be the focus.

    My problem is more closely linked to ‘strong support for candidates [I] find undesirable’.

    I do not think the GOP is really a mass of people who think we should restrict entitlement spending to what we can afford. I’m not really sure what defines a GOP voter.

    I know I love Chris Christie, and I know Tea Partiers should and probably tend to.

    But we haven’t nominated a fiscal conservative for President in an awfully long time. Our entire nomination process is broken. Congressmen all over the GOP bring home the bacon or lose elections.

    I can blame some of this on Dubya and Tom Delay, but the real problem is that they were the preference of our voters. Some of these people want a compassionate leader who takes care of our little problems. Some want this so much that they prioritize the sweet talk of Huckabee over some pretty basic issues that I find urgent.

    It may all boil down to whether each voter thinks government is the solution, or the problem.

    But part of my idea is that it’s really on us. It’s our fault if we do not succeed in picking a great nominee, winning elections, convincing friends, education our families. And of course, to taking over the party from the lowest levels.

    I don’t mean to come across as a judgmental jerk. I’m just turning the spotlight from Mccain to the group that made Mccain (and if not Mccain, Huckabee). Go micro enough and you can say ‘He dammit! I liked Fred Thomson! That’s not fair!’

    Fair or not, we are failing to get what we need until we start convincing eachother to focus on limited government.

    Dustin (b54cdc)

  46. The resident is not incompetent because he is somewhat black. Zero was elected to the residency only because he was black. Without that “qualification”, nobody with his lack of experience, extreme liberal record, and history of assocation with radical extremists could have gotten the Dim’s nomination.

    Yrral Dleifsarb (62bad0)

  47. Dustin,

    Thanks for the long clarification. I agree that the nomination process, and election process, has tended toward electing candidates who “grow” government and who win re-election by demonstrating how many “Federal Dollars” they are able to bring back home.

    Voters who are motivated by candidates who “bring home the bacon” aren’t voters who are genuinely interested in smaller government, they are voters who are interested in getting free stuff.

    This is a problem in both parties and has led to our current fiscal situation. Obama says he is going to put the Republicans to the question next year by asking them “what do you want me to cut?” This is when we’ll see that most voters, or at least tragically too few voters, aren’t actually interested in smaller government and fewer “benefits.” They are interested in fewer benefits for their neighbors.

    Ever since Roosevelt, we have turned our voters into financially interested stakeholders — much to the discredit of our nation.

    As an illustration of how old the problem is take a look at Mr. Smith Goes to Washington. While the “supposed” dramatic tension is between the noble individual against corrupt machine politics, what we really have is the following:

    Mr. Smith is filibustering to clear his name and to ensure that he can secure a low interest loan from the government for his own pet project — a boys camp. To do this, he is opposing a job creating project funded by the federal government.

    Pork vs. Pork. Noble Pork vs. Corporate Pork.

    Voters want their pork. Ask my grandmother to give up Social Security payments that she never paid in to. It isn’t going to happen. People love “free” stuff.

    What we MUST do is to demonstrate how these things aren’t actually free and that it isn’t always our neighbor who is paying for them.

    Christian (3290f5)

  48. Since conservatives are saying he’s a one-term president, what’s the problem?

    JEA (b29a48)

  49. Btw, this is off topic, but it seems right up your ally. apparently all hell is breaking loose in the Wisconsin Supreme Court. http://host.madison.com/wsj/news/local/govt_and_politics/article_059e2f86-8522-11df-83b6-001cc4c03286.html

    althouse is blogging it, too.

    Aaron Worthing (A.W.) (e7d72e)

  50. Leave it to JEA to introduce a non-sequitur into the discussion. I am fairly conservative, and think he will win again. And his electoral abilities have nothing to do with this topic.

    JD (fbeb58)

  51. Well, they don’t have anything to do with judicial restraint. Apparently they are on topic in this thread.

    JD (fbeb58)

  52. JD

    well, i would defend including Obama’s reelection as a topic. i mean the post talked about how kennedy is definitely planning on staying until the end of the term. So the topic is related to the presidential election in the sense that it relates to who will be appointed kennedy’s successor, if he steps down between 2012-2016.

    Let’s face it, that would be the whole ball of wax right there.

    Aaron Worthing (A.W.) (e7d72e)

  53. If we get another Sotomayor, Kagan, etc … to replace Kennedy we are well and truly f@cked.

    JD (fbeb58)

  54. This is huge issue for presidential elections. We need to face what’s at stake. And we need to make sure a GOP nominee doesn’t nominate a Souter or a Miers (no disrespect to her).

    Dustin (b54cdc)

  55. A change-of-control in Congress in 2010?….
    The re-election of the President in 2012?…

    Remind me again, how much of the Trillion-Dollar+ Stimulus Fund(s) have not yet been spent, and are essentially a White House slush-fund for political activity?

    The GOP will need an effective media message this fall to overcome the money advantage that the Left will have in paid media,
    not counting the disadvantage the GOP faces in un-paid media.

    Then, when the re-election campaign kicks in (November 3, 2010), there will be an explosion in positive paid and un-paid media that will not only be pro-Obama,
    but will verge on canonization.

    AD - RtR/OS! (1087df)

  56. AW, thanks for the heads-up. Yeah, the ad was deceptive, but it was part of a political campaign, and it’s little more in essence than what Dems in Congress and MSM did fairly regularly to GWB and what they are doing now to the TEA Party people.

    At least, they can’t accuse Gableman of quibbling over the meaning of “is,” or claiming immunity because there was “no controlling legal authority” to enforce the rules Algore flaunted.

    And, anyway, what ever happened to caveat emptor?

    Further, a 3-3 split does signal a hung verdict. Gableman walks because the burden of proof resides with his accusers, not on the accused.

    ropelight (79113b)

  57. The Republican voters have shown a fatal tendency to get complacent. . . . A little realistic caution is called for or we will just do it again.

    The caution you advocate is not the same as Patterico’s fatalism. “Who is going to beat him?” is a statement of a fait accompli, and it’s complete horse hockey. There’s a big difference between a warning (“If Republicans are complacent, they’ll lose the election”) and a conclusion (“Republicans can’t win the election”).

    Jazz (f623f1)

  58. Why not? I mean, the proggies wouldn’t be so crass as to “filibuster” (misused) a nomination or stage a press-assisted reputation assassination, would they?

    Naw. Never happen.

    Frank Drebbin (8096f2)

  59. “Who is going to beat him?” is a statement of a fait accompli, and it’s complete horse hockey.

    Wow.

    And I thought it was just a question or a challenge to come up with a candidate who could beat Obama.

    Why are you so upset about something you have to read so much into? Just answer the damn question: who can beat Obama + third party + a media smear + the financial interests of ‘stimulus’?

    That’s a big reason I start whining about voters. It’s going to take a lot to beat Obama, even though his polls are very weak today.

    Dustin (b54cdc)

  60. rope

    a 3-3 split in the supreme court doesn’t necessarily mean that the tie goes to the defendant. it doesn’t work like that in the U.S. Supreme Court, for instance. And in fact both blocs disagree on what their split means. huh.

    and its not my state, so i wouldn’t know.

    Aaron Worthing (A.W.) (e7d72e)

  61. AW, it does work like that in the Supreme Court insofar as the party with the burden of proof fails if there is a tie.

    While the party with the burden of proof at the Court is often the defendant, in this case, I think the prosecutors bringing the charges had a burden of proof. I also think this is exactly the problem that burden of proof is meant to solve.

    You’re right that they are disagreeing and chaotic and there is a real question as to what will happen, but I think the fairest result would be to establish the bringer of the claims as the party with the burden, and thus the issue is closed.

    Dustin (b54cdc)

  62. 3-3 split means either the decision of the lower court stands or the court of appeals with jurisdiction hears the case as though it were the Supreme Court. (If the it was not a direct appeal from a district court, and it came up from a court of appeals, the decision of the court of appeals stands.)

    nk (db4a41)

  63. Simple explanation:
    A tie at SCOTUS results in the upholding of the decision being appealed.

    AD - RtR/OS! (1087df)

  64. DRJ had a post up about this a few days ago.

    nk (db4a41)

  65. nk is right in terms of the federal appeals system.

    a deadlock means the decision below stands. which maybe was waht dustin was saying, it was a little unclear.

    But this is all wisconsin state procedure, and that is where i have less confidence. especially since the judges themselves don’t agree on what the effect of their deadlock is. the article has links to the opinions and they are a serious clusterf—.

    That being said, I think the so-called “conservative” bloc has the better of the two arguments. its despicable what this guy did, but its protected under the first amendment. at best there might be a cause of action for defamation. but judicial misconduct. no, no, no.

    Aaron Worthing (A.W.) (e7d72e)

  66. well, enough threadjacking. sorry Patterico. i just thought the link was dang interesting. since its not my state, i will pull up a chair and a bowl of popcorn.

    Aaron Worthing (A.W.) (e7d72e)

  67. Voters, both Republican and Democrat, have a great many options to decide how they want to use their free time on election day, as well as on most other days.

    Present them with uninspiring candidates and they find better things to do. It isn’t complacency, nor is it some existential rejection of the mediocre in favor of the superb. It’s what my old professor called “the goading urgency of contingent circumstance.” It’s simply what people do, and have always done.

    Since you can’t really talk voters to the polls, and you can’t shame them in sufficient numbers to win the day. Nor will party affiliation produce victory. Voters, like car buyers, want the best vehicle for their needs, so you can talk day and night about what a great company Ford is, or sing the virtues of the GOP, but no one is going to line up to buy an Edsel.

    So, other than stuffing ballot boxes, or resorting to some form of coercion, the way to win elections is to field exceptionally good candidates who can inspire voters to turn out. Nothing else is going to get the job done.

    ropelight (79113b)

  68. ropelight, that’s why we get the government we deserve.

    If some voter’s participation in our system is limited only to voting when a great candidate is available, and just letting the parties bid for them, then they will never compete against those who have huge stakes in the pork business.

    And yes, that is complacence and I respectfully hold these voters to blame for Obama. Those who worked their asses off to get someone better than Mccain nominated are not to blame for Obama.

    It’s all on us little voters to step up, in my opinion.

    Dustin (b54cdc)

  69. AW, I didn’t mean to be unclear. I was simply pointing out that your comparison to the Court may be a little more clear if instead of saying that the defendant often loses if there’s a tie, saying that the party with the burden of proof loses when there’s a tie.

    The burden of proof rests with the accuser. That’s basic.

    The 3 judges issuing an order against the judge, without a majority and thus without the burden of proof being met with a majority, are simply being idiots. I agree they are creating chaos. It’s Wisconsin… what do you expect?

    Sorry I wasn’t clear. I just think the situation is easier to resolve than the press seems to.

    Dustin (b54cdc)

  70. Burden lies with accuser or claimant, I should say.

    Dustin (b54cdc)

  71. Dustin

    its a blog comment. inexactness is common. and expected.

    Aaron Worthing (A.W.) (e7d72e)

  72. btw, james taranto suggests that kennedy is staying put to purposely freeze out Obama because of what Obama did at the SOTU. While i think a judge should try to be indifferent to the effects of the timing of his or her retirement (as part of my belief that the justices should be as apolitical as possible), if that’s the case, i wouldn’t blame him too much for it. Dressing down the SC in front of the nation was just out of bounds.

    Aaron Worthing (A.W.) (e7d72e)

  73. Dustin, by and large each party’s faithful will show up, shout “Hallelujah!” and sing with gusto from the approved hymnal. But, that won’t get the job done for either party.

    The rough breakdown in party self-identification is 1/3rd each for Dems and the GOP, and the remaining 3rd for Independents and others including idiots and Libertarians. However, those broad categories for the 2 major parties includes both the hard and soft core adherents.

    Yellow dog Democrats and rock-ribbed Republicans will nearly always turn out, it’s that soft core you need for victory, especially in off year elections, and it moves more as a consequence of inspiration rather than as a result of either shame or guilt. That’s what losers concern themselves with.

    ropelight (79113b)

  74. Why are you so upset about something you have to read so much into? Just answer the damn question: who can beat Obama + third party + a media smear + the financial interests of ’stimulus’?

    Upset? Talk about reading into something. Glad you have all the answers. Since you’ve demonstrated such a command of everything discussed here, you can have my vote proxy.

    Thanks for the good work.

    Jazz (f623f1)

  75. okay sorry to threadjack twice now, but here is the DOJ complaint against Arizona, over the new immigration bill.

    http://www.politico.com/static/PPM156_doj_az_immigration_lawsuit.html

    i think they are putting the best face on it they can, but its my understanding that the states can enforce federal criminal law on their own, and in short that is their complaint.

    Also i find it interesting that it necessarily rests on the notion that they don’t go after lots of illegal aliens, because it is their policy… you would think they didn’t want to admit that.

    Aaron Worthing (A.W.) (e7d72e)

  76. i will add that it is clear that at least these idiots have actually read the bill. so there’s hope.

    Aaron Worthing (A.W.) (e7d72e)

  77. Jazz, I’m not reading into anything you said.

    You specifically said exactly what I said you did.

    And I’m just asking you to take a chill pill and realize the GOP does have a challenge in store for it. IF you can point to someone who can beat Obama and all these other factors that could come up, that’s great news, but you didn’t do that.

    Dustin (b54cdc)

  78. its a blog comment. inexactness is common. and expected.

    Comment by Aaron Worthing (A.W.)

    Oh, no worries, man. I’m very unclear sometimes and I know it.

    And you keep coming up with good links. If you had a blog I’d read it.

    Dustin (b54cdc)

  79. Dustin

    I do have a blog, besides the everyone draw mohammed thing. but i have been really lazy about it. but not as lazy as beldar. heh.

    http://allergic2bull.blogspot.com/

    Eh, i haven’t posted in a month. need to.

    Aaron

    Aaron Worthing (A.W.) (e7d72e)

  80. USA v. AZ…
    Not being a lawyer, my common-sense look at this would be that AZ would respond to the complaint with a side-by-side of AZ’s law, and relevant Federal law & regulations, and ask for a Summary Judgement of Dismissal since they haven’t usurped the Federal Government prerogatives except to enforcement of the law, which it appears this Executive has neglected in contravention of his sworn duties.

    If only they could find a District Court Judge with such a backbone.

    AD - RtR/OS! (1087df)

  81. I like your style, AD.

    Ace was saying how it’s accepted that State law can’s conflict Federal law within Fed authority. But Arizona doesn’t conflict with the law… just the policy of not enforcing the law.

    It’s not clear to me that State law can’t conflict with vague federal policies. That’s an unworkable result and I hope we don’t see that.

    Dustin (b54cdc)

  82. Well, I read the first two pages of that filing, and almost up-chucked on by keyboard it is so filled with political swill…

    “…The nation’s immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests…
    In administering these laws, the federal agencies balance the complex – and often competing – objectives that animate federal immigration law and policy…”

    Funny, I have yet to see Congress write a law saying it shouldn’t be enforced, which is what these bozo’s are doing.

    If AZ has some smart lawyers, and it is my understanding that Gov.Brewer has retained outside counsel on this matter so they’re probably in the top tier of legal talent in AZ, it should be fun to read their response to this swill.

    AD - RtR/OS! (1087df)

  83. #80 & 82, AD, there’s iron in your words. That’s the best course for Arizona I’ve heard to date.

    ropelight (79113b)

  84. ropelight, just saw your response to me. I can’t find any fault with your reasoning and yet I hope you go ahead and do your best to get involved with the GOP or at least the political process, and fix it. On the ground, though, you’re right about how people will react to bozo politicians. Hence 2008.

    Dustin (b54cdc)

  85. I do not think the GOP is really a mass of people who think we should restrict entitlement spending to what we can afford. I’m not really sure what defines a GOP voter.

    So what defines the Democratic voter?

    Michael Ejercito (e8b989)

  86. Dustin, I quit the GOP over TARP. I’m a TEA Party Independent now and involved to the extent I feel comfortable and capable.

    Once upon a time, back in the early 70s, I was a Democrat, but the party made a sharp left turn and lost me. So I drifted to the right, eventually joined the GOP. Then, after a long and boisterous marriage, they embarrassed me during the Bush years, pissed me off with Harriet Miers, and outraged me with TARP, so I went rogue.

    Now, I’m doing what I can to encourage more open processes within the GOP establishment. If the old dogs stay in place, the party will atrophy, Democrats will continue to smear emerging GOP leaders, denigrate sensible policies, and drive the nation toward bankruptcy.

    I want to see the GOP live up to its promise, become the party which represents the interests of the American people. One that stands for a strong national defense, and upholds the Constitution. A party that cuts spending, lowers taxes, reduces the size and scope of government, fights our enemies, and secures our borders. I’d be proud to support such a party.

    ropelight (79113b)

  87. I want to see the GOP live up to its promise, become the party which represents the interests of the American people.

    Just received one of those incessant fundraising surveys(?) from the NRCC.
    Filled out their little survey, with some added commentary, and concluded that,
    No!, they would not be getting any money from me until they demonstrated that they were worthy of the product of my blood and sweat;
    and signed it:
    A Vet!

    If I wasn’t thinking somewhat positively about them, I would have stuffed everything back into the prepaid envelope, including the envelope it came in…
    (which I did to Sen.Cornyn’s exhortation last week – those guys in “the other body” need to grow a pair).

    AD - RtR/OS! (1087df)

  88. “Dustin, I quit the GOP over TARP. I’m a TEA Party Independent now and involved to the extent I feel comfortable and capable.”

    I sincerely apologize for implying you were not involved enough, if I did (I’m not sure). How can a sane man be a devoted Republican and remember TARP? Or the party of cronies (which is what the Miers and Kagan nominations are all about… these people have no business on such a technical and experience demanding bench IMO, before we even consider their viewpoints).

    You’re right that the GOP simply has no future if it’s the party of TARP. It can’t beat the democrats at that game anyway, but I don’t just mean electorally.

    There’s a reason the worst elements of the GOP hate the Tea party more than they hate the Democrats. Perhaps this is the point where the information age completely overcomes the mountain of corruption.

    Dustin (b54cdc)

  89. LA Times guy is
    one silly savage but that’s
    par for the course, yes?

    ColonelHaiku (9cf017)

  90. Now you’re being fatuous. Republicans haven’t even come close to choosing a candidate, so it’s patently disingenuous to label the Republicans as losers. . . . Your blog speaks to the grass roots, regular people, and you help mold granular opinions. Your enthusiasm and disinterest affect others. With that in mind, your cavalier “Who is going to beat him?” remark comes across as defeatist and only yields a point of friction among those working to change the political leadership. I don’t know how you find your comment helpful to that greater endeavor.

    Nice speech.

    Did you happen to mention somewhere in there who is going to beat him?

    Patterico (c218bd)

  91. When speechifying
    turns to verbal flatulence
    the battle is lost

    ColonelHaiku (9cf017)

  92. Whigs….Republicans….TEA Party

    Who will be our Lincoln?
    Is GWB Millard Fillmore?

    AD - RtR/OS! (1087df)

  93. Big 0 governance
    make haiku think name should have
    been fielding mellish

    ColonelHaiku (9cf017)

  94. So, unelected judges can tell elected representatives what legislation to pass? And, Patterico believes that judges not ordering Congressfolk around is not restraint? I miss the days when the Federalist society loved Holmes and his deference to Congress…

    I guess activism is in the eye of the beholder?

    timb (8f04c0)

  95. “So, unelected judges can tell elected representatives what legislation to pass?”

    No. They are required to uphold the laws, such as the laws against illegal immigration.

    What law do you see us telling the court to force or chance?

    And again with the lie that activism applies to both sides. Asking for a plain and common sense interpretation is not the same as inventing laws that aren’t there.

    Did you read the Admin’s case? They say it’s their responsibility to enforce immigration, and that’s in conflict with their policies, and this recipe has combined to create the real law which is in conflict with Arizona, who after all simply copied the actual fed law.

    You know who’s playing games here. Sadly, this is a sickness I blame the GOP for first. It’s not a partisan issue.

    Dustin (b54cdc)

  96. That comes in the second term!

    OTP!!

    OTP!!

    We all want OTP!!

    IgotBupkis, President, United Anarchist Society (79d71d)

  97. timmah gurgled: “So, unelected judges can tell elected representatives what legislation to pass?”
    — No. Judges tell elected representatives whether or not the legislation they passed is Constitutional. Ya know, you could’ve actually sat and watched “Schoolhouse Rock”, instead of flipping channels to watch “Shazam!”

    “And, Patterico believes that judges not ordering Congressfolk around is not restraint?”
    — I would never venture to speak for our host, but is it not true that inaction can equal acquiescence? Is it the job of the courts to vote ‘no contest’, or (saints preserve us!) ‘present’?

    “I miss the days when the Federalist society loved Holmes and his deference to Congress.”
    — You were alive when Oliver Wendell Holmes was a SCOTUS justice? Jeez, you’re more ancient than McCain! And are you saying that Holmes did not believe in a system of checks & balances?

    Icy Texan (ec99c0)


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