judicial activism

The Ted Cruz Show (Michelangelo Fist)

Republican presidential candidate Sen. Ted Cruz (R-TX), speaks at a rally Sunday, 21 February 2016, in Pahrump, Nevada. (AP Photo/John Locher)

It is, as we have recently observed, easy enough to pick on David Brooks but then along comes Charles Hurt to remind why meandering desperation in lieu of useful analysis is still a better option than attending a hardline conservative posturing as some manner of serious mind. While the New York Times endures Brooks, Mr. Hurt’s résumé is a proper slime trail leading from the New York Post on through Breitbart, Newsmax, FOX News, and the Washington Times; just to make the point he picked up a gig with Drudge. For The Hill, however, Hurt attempts to explain “The problem with Ted Cruz”. It’s a doozy:

While the media attention has focused entirely on the exuberant and entertaining traveling carnival nature of the Trump campaign, this overlooks another, deeper problem conservatives have today: Sen. Ted Cruz (Texas).

Washington Times columnist Charles Hurt appears on FOX News in December, 2015.In the past eight years, no one has captivated the realistic hopes of conservative constitutionalists the way that Cruz has in this election. On every single issue of importance to conservatives, Cruz is right. He is a walking, living, breathing Supreme Court dissent, masterfully articulated and extensively annotated on paper.

Then, he opens his mouth. And people scream. They run for the exits as if their hair is on fire. They want to take a shower.

We might fixate on the phrase, “captivated realistic hopes”, all day, and never figure out what the hell the author intends. The nearest thing to a realistic hope we might project for these “constitutional conservatives” is to somehow elect Ted Cruz, watch him get crushed by Congress and Court alike, and spend the next twenty years like they have the last, complaining about evil gov’ment and the usurpation of democracy just like they’ve been mewling at least since Romer v. Evans.

Still, though, Charles Hurt is a conservative; it is unfair to expect that he should make sense according to reality.

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A Memo to Mike Huckabee (Civic Leadership)

Former Arkansas Gov. Mike Huckabee waits backstage before speaking during the Freedom Summit Saturday, Jan. 24, 2015, in Des Moines, Iowa (AP Photo/Charlie Neibergall)

MEMORANDUM

To: Mike Huckabee

re: Civic leadership

So … Mike―

The two-time Republican presidential also-ran lashed out Erickson, again on Fox News, accusing the conservative of attempting “to blow up the Republican Party.”

“The message that’s coming across is the voters are stupid so we’ll figure out a way to make the decision for you because we don’t trust your decision,” Huckabee complained of Erickson’s anti-Trump effort.

(Tesfaye)

―you do realize, do you not, that sometimes that’s exactly what civic leaders are expected to do?

In our own American heritage we say the Constitution is not a suicide pact. In our human endeavor, we might simply say that civilized society is not a suicide pact. Observably, the Donald Trump phenomenon disdains either expression.

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The Beehive Stand

VIII. Adjustment.

For all the complaints we hear from conservatives about judicial activism, what are we to think? Yet for all the jokes we might make about Utah, all eyes turn to the Beehive State. This week a juvenile court judge ignored the will of a birth mother, the recommendations of the state’s Division of Child and Family Services, the office of the Guardian Ad Litem, and, as near as anyone can tell, Utah statute when he ordered a nine month-old removed from the home of certified foster parents April Hoagland and Beckie Peirce because he alleges scientific data that he will not provide demonstrates children will fare better under heterosexual parents.

The State of Utah does not seem inclined to agree, and is fighting back:

Utah state officials are challenging a decision made by a Utah judge to a take a baby away from lesbian foster parents and place her with a heterosexual couple for the child’s well-being.

Utah Division of Child and Family Services officials said Thursday in a statement that they will fight the ruling at the appeals court if Judge Scott Johansen doesn’t rescind his decision.

The state agency said the judge went against its recommendation that the 9-month old baby should stay with April Hoagland and Beckie Peirce, a married couple in Price, Utah.

In his decision, Johansen mentioned research that shows children do better when raised by heterosexual families, state officials said. However, the American Psychological Association has said there’s no scientific basis for believing that gays and lesbians are unfit parents based on sexual orientation.

(McCombs and Price)

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The Perfect Sense (Tennessee Intellectual Remix)

Firestarter: Detail of frame from FLCL, episode .

Simon McCormack tries, desperately, to explain the situation, for Huffington Post:

A Tennessee judge said the Supreme Court’s decision to legalize gay marriage nationwide has left him unable to determine what constitutes divorce.

A Signal Mountain couple, Thomas and Pamela Bumgardner, are still legally married even though they don’t want to be because of Hamilton County Chancellor Jeffrey Atherton’s stance, according to the Chattanooga Times Free Press.

“The conclusion reached by this Court is that Tennesseans have been deemed by the U.S. Supreme Court to be incompetent to define and address such keystone/central institutions such as marriage, and, thereby, at minimum, contested divorces,” Atherton wrote in his decision last week.

“With the U.S. Supreme Court having defined what must be recognized as a marriage, it would appear that Tennessee’s judiciary must now await the decision of the U.S. Supreme Court last to what is not a marriage, or better stated, when a marriage is no longer a marriage,” he added.

It is true that the question occurs to wonder why conservatives are the ones so often complaining about judicial activism.

This is the pertinent question: What the hell is wrong with these people?

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McCormack, Simon. “Judge Won’t Divorce Straight Couple Because Gay Marriage Is Legal”. The Huffington Post. 3 September 2015.

The Main Attraction?

Speaker of the House John Boehner (R-OH8)

“Just because some Republicans want to pretend that before January 2009 presidential power had been limited to pardoning Thanksgiving turkeys doesn’t mean they are right.”

Jonathan Bernstein

And the hits keep coming. ‘Tis a bold headline for Bloomberg View: “Boehner Betrays Congress”, and Jonathan Bernstein leaves little room for doubt about his perceptions:

I’ll say it again: Speaker John Boehner and House Republicans aren’t asking for authority to be returned from the White House to Congress. They want an imperial judiciary that could trump either of the elected branches.

Jonathan Bernstein (via BloombergView)In a system of separated institutions sharing powers, which is what the Constitution created, all three branches do things that look a lot like legislating, but laws can trump administrative or judicial rule-making. That gives Congress serious clout within the system. This lawsuit, however, is an abdication of that clout. In effect, it says that the courts, not Congress, should have the last word when there’s a dispute between branches.

Filing this lawsuit amounts to institutional treason. Boehner and House Republicans should be ashamed. The rest of us can only hope that the courts rescue them by keeping to precedent and tossing this lawsuit into the garbage.

To the other, the suit is filed. In a way, that is actually surprising. It is not quite that it seems like yesterday that House Republicans found themselves in need of a new lawyer after the one they hired quit the case, owing to the sort of political pressure one’s law firm might apply when one is about to publicly humiliate the firm with an act of juristic malpractice; it wasn’t yesterday, but two months ago. After hyperpartisan lawyer David Rivkin quit the case for having bitten off too much hyperpartisanship for his firm, Baker Hostetler, to chew, the GOP turned to William A. Burck of Quinn Emanuel Urquhart & Sullivan, who had just finished the laborious task of failing to defend former Virginia First Lady Maureen McDonnell.

Late last month, then, we learned that Mr. Burck was also stepping down. Josh Gerstein and Maggie Haberman of Politico summarized the situation thus:

Rivkin’s firm withdrew in September after health-care-related clients pressured the firm to back out of representing the House in the Obamacare-related suit. Two sources told POLITICO in recent days that a similar scenario played out with Burck’s firm, with clients bringing pressure to get the firm off the case.

How about three days ago? Is that close enough to feel like yesterday? For whatever reason, Jonathan Turley of George Washington University decided to take up the case. Lauren French of Politico reported ot Tuesday:

“Professor Turley is a renowned legal scholar who agrees that President Obama has clearly overstepped his constitutional authority,” said Michael Steel, a spokesperson for Speaker John Boehner. “He is a natural choice to handle this lawsuit” ....

.... “Even for $500-per-hour in taxpayer dollars, Speaker Boehner has had to scour Washington to find a lawyer willing to file this meritless lawsuit against the president,” said Drew Hammill, a spokesperson for Minority Leader Pelosi. “Now, he’s hired a TV personality for this latest episode of his distraction and dysfunction.”

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The Future, Revealed?

Jobs, jobs, jobs ... j'abortion!

We might for a moment pause to recall 2010. Republicans achieved a majority in the U.S. House of Representatives, but the real story was in the state houses, where the GOP made astounding gains by hammering away at the economic instability their Congressional partners worked so hard to create.

And then they tacked away from jobs. As Rachel Maddow memorably put it, “Jobs, jobs jobs … j’abortion”. State-level Republicans passed record numbers of anti-abortion bills, knowing that most of them were unconstitutional. And it is certainly an old conservative scheme, to tilt windmills, lose, and then bawl that the sky is falling because the Constitution is Sauron and Democrats and liberals the armies of Mordor.

With many predicting a Republican blowout in the 2014 midterms, some are looking ahead to figure out just what that will means in terms of policy and governance. And some of those are Republicans.

Yet there is a week left; perhaps this isn’t the best time to be telegraphing the Hell they intend to call down upon the Earth.

Or, as Lauren French and Anna Palmer of Politico explain:

Conservatives in Congress are drawing up their wish list for a Republican Senate, including “pure” bills, like a full repeal of Obamacare, border security and approval of the Keystone XL pipeline — unlikely to win over many Democrats and sure to torment GOP leaders looking to prove they can govern.

Interviews with more than a dozen conservative lawmakers and senior aides found a consensus among the right wing of the Republican Party: If Republicans take the Senate, they want to push an agenda they believe was hamstrung by the Democratic-controlled chamber, even if their bills end up getting vetoed by President Barack Obama.

Their vision could create problems for congressional leaders who want to show they aren’t just the party of “hell no.” And while conservatives say they agree with that goal, their early priorities will test how well John Boehner and Mitch McConnell can keep the party united.

Two points: Swing voters can’t say they weren’t warned. And conservative voters complaining about gridlock should admit that’s what they’re after.

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The Dignity of the Great State of Texas (and Other Notes)

Texas

See, the thing about Texas ....

It is, actually, a difficult proposition to pick on a whole state. After all, no population is monolithic. Still, though, there is a reason why one might note, as Tim Murphy of Mother Jones did last week, that—

As a Texas state senator, Dan Patrick has conducted himself in a manner consistent with the shock jock he once was. Patrick—who is now the Republican nominee for lieutenant governor—has railed against everything from separation of church and state to Mexican coyotes who supposedly speak Urdu. He’s even advised his followers that God is speaking to them through Duck Dynasty star Phil Robertson.

—and others will simply nod and mutter to themselves something about how that sounds right. Nor will those folks be surprised to find that the article only goes downhill from there.

And it is true that we see this over and over again, and while it is not some rarified view from an emerald tower to the far horizon, it is a difficult calculation to express just what it is they are doing wrong. Like art and obscenity, though, sometimes it is just plain apparent.

Whether it’s advocating violence against journalists, offering women money to abandon babies, tinkering with history in textbooks, trying to cram small government between women’s legs, showing his tolerance through intolerance, something about coyotes speaking Urdu, denigrating migrants, touting his own piety in order to be seen by other men, breaking Senate rules in order to try to force a bill through because, well, you know, God, mocking Asians, or arguing against the separation of church and state, there really isn’t anything about Murphy’s profile of the shoe-in to what is described as the most powerful office in Texas that doesn’t “sound Texas”.

One of the things about states’ rights is that in our democratic society, how our majority votes is one of the most apparent projections of what our society believes. It’s kind of like wondering what the Joni Ernst campaign means as an expression of Iowa values. Does any of this embarrass supporters?

And Texas? Come on, we saw Rick Perry in the 2012 primary. And it is still hard to explain the two presidential terms of George W. Bush. But for all the miserable disaster about Perry or Bush, or Ron “Legitimate Rape” Paul? Really? Does none of this embarrass the Texans who support these people?

Take Rep. Vance McAllister. The Republican from Louisiana’s Fifth Congressional District is best known as the “kissing congressman”, and sure, it’s not the worst thing in the world for a member of Congress to be caught cheating on his wife. And some would make the point that, hey, it was just a kiss, you know? But what was really, really embarrassing about that episode, what seemed so unreal, was the back and forth about whether he would resign, or maybe simply not run for Congress again, and, well, now he actually trails the lone Democrat in a six-way race otherwise rated Safe Republican. Still, the only people annoyed by the controversy seem to be his opponents. And in truth, it is hard for outsiders to comprehend the context of Times-Picayune political reporter James Varney’s recent explanation of the race for LA5CD:

Is McAllister this bad? Does he actually have a chance of being re-elected?

Well, as for the first question, maybe not. He’s a veteran, for one thing. And he earned all that money through savvy personal business moves, for another. In addition, as his campaign stresses, he holds a bunch of excellent positions: he’s against amnesty; he thinks Obamacare is terrible.

So, taken all in all, McAllister is the sort of guy who could have kept his seat in Congress and a Robertson family duck blind forever if he could have simply resisted his married staffer.

Whether he has a chance or not is hard to determine. The Robertson clan, maintaining the Old Testament stance that jibes with their unshaven look, is backing and bankrolling a relative, Zach Dasher. Dasher, a political rookie, is also supported by outside groups like the Club for Growth.

It’s a crowded Republican field, too. The third candidate most people familiar with the field identify as a guy with a shot at the runoff is Ralph Abraham. Abraham holds both medical and veterinary degrees so he’s overqualified for the job. There isn’t a whole lot of daylight between the three men on the issues.

There’s also a Democrat in the race and, somewhat surprisingly, he’s reportedly got a shot at a spot in the runoff. There appears to be little reliable, objective polling data on the race. More than a month ago The News-Star in Monroe had McAllister leading the race with 27 percent followed by the Democrat, former Monroe Mayor Jamie Mayo.

At some point, it seems as if we are reading a satire on Poe’s Law, which essentially asserts that at some point it becomes impossible to discern between satire or even parody to the one, and reality to the other. And when this sort of question was largely restricted to internet arguments about anything under the sun, it was whatever it was. As a particular notion was explained to me in 1995, “Remember, this is the internet. Any moron with a connection can have a soapbox.” To what degree the surfactant has permeated the social discourse is a complex question, of course, but there does come a point when it seems almost impossible to dismiss the simple fact of certain results. Dan Patrick and Rick Perry in Texas? Vance McAllister in Louisiana? “Fangate”, for heaven’s sake? Really, it sounds like a cruel joke, “America’s Wang”, except that, well, it’s Florida, so one nods and mutters, “Sounds about right.”

In the end, it’s not that we hate these people in these states, because we don’t. And we might hope that despite the general contempt they show the rest of American society they don’t actually hate us. But, damn it, what kind of friends, family, or neighbors would we be if we stood by, watching them denigrate and even hurt themselves, and simply say nothing?

Sometimes people embarrass themselves. And, yes, sometimes it’s really, really funny. But the point is to be able to look back on this, someday, and laugh. These aren’t storts of things we should be laughing at, though. The implications are serious. And when the history is written, and the damage is tallied, the indictments will be hideous. At this point, simply admitting there is a problem might be a generational process for some of these states.

And we can complain about the media all we want, but in the end, the only way to change it is to stop paying attention to what the stenographers journalists say. And in truth, not everybody is suited to read the news backwards, to start from the editorials and work back to the sources. Sometimes this proves fruitful, such as when one hears conservative commentators ranting about liberal judicial activism on the Supreme Court, and then finding the case they are talking about, and it turns out all the Court actually did was refuse to overturn the opinion of one of the most conservative state supreme courts in the nation.α To the one, however, it is a laborious process, and sometimes source documents can be hard to find. To the other, there are some people who simply do not seem to understand how government works. And those would be the sort who would complain about the Supreme Court imposing its will on the states, but then be unable to figure out that had Missouri not pushed its losing cause in front of the Supreme Court, it would have stayed in the states. In this case, though, Missouri really, wanted to execute someone, demanded the Supreme Court’s attention, got it, and then failed to make the case. And if you put the question to certain people—How did the Supreme Court impose its will by leaving a state supreme court decision to stand?—it seems somehow incompatible with whatever is going on in their minds to understand that had the U.S. Supreme Court refused to hear the case, the outcome would have been the same. Strangely, the dissonance of the complaint against liberal judicial activism creates an argument whereby the U.S. Supreme Court rejecting and overturning a state supreme court is the only outcome that would not constitute an imposition of will.

No, really, think about it. The three potential outcomes of Roper: (1) SCOTUS refuses to hear appeal, state supreme court decision stands; (2) SCOTUS hears appeal, upholds state supreme court decision; (3) SCOTUS hears appeal, overturns state supreme court decision. By the complaint of liberal judicial activism against the second possibility above—the one that came about—the first is similarly indicted for arriving at the same result; the third, technically, remains a mystery, but in this context of imposing against the states, the outcome that sees SCOTUS reject the state supreme court becomes the only one that does not impose the federal judiciary’s will on the states. The difference is in what part of a state one is looking at. It was the Missouri judiciary that imposed its judgment against the will of the state’s executive branch. And since the U.S. Supreme Court did not impose its will against the state judiciary, it imposed its will against the state executive branch. If it seems like a complicated accommodation for the executive branch of Missouri having asked the Supreme Court of the United States to impose its will? Well, right. That’s the problem with the rhetoric we hear from cable news commentary. And, really, considering what we know or believe about the “average voter”, who the hell has time to figure all that out? About everything?

And while all of this might seem a long and winding road from seeking divine inspiration in Duck Dynasty, we might hope to illustrate a larger issue. American society is lowering the proverbial bar for this crowd. And everybody selling something has a reason to play along. Simplistic sensationalism draws a news audience, which attends to the money biasβ. Simplified issue dynamics make for an appearance of greater efficiency and potency for campaign operations. And the candidates themselves have fewer details and quandaries to manage. In truth, the only losers in such a marketplace are the consumers, i.e., voters.

Stupidity is both simple and spectacular.

So, yes. We look to the low end of the data set, to what is dragging down the averages, and this is what we see? Yeah, the question persists: Aren’t they even a little bit embarrassed by all this?

It would be reassuring to believe they are.

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α That decision would be Roper v. Simmons (2005), in which the Supreme Court declined to overturn the Supreme Court of Missouri. In this case, reading backwards from the editorial complaint about liberal judicial activism, we find the underlying accusation to be that the Supreme Court of Missouri is apparently too liberal and activist. And, frankly, if the Supreme Court of Missouri is too liberal and activist, one wonders what the threshold actually is.

β You know that phantom liberal media conspiracy we hear about from time to time? It has always been about money, and part of the appearance of disparity in coverage is that while both sides indeed have their clowns, not all clowns are equal. What is the other side’s version of a Ted Haggard or George Rekers? Or Sarah Palin? Or Bryan Fischer? Or Ted Cruz? Really, if one asked about the other side’s John Boehner, it would be historically inaccurate to point to Nancy Pelosi. And there are reasons for this, and no, not all of them are moral or ethical indictments of conservative politics; much of it is just the fact of accelerating societal transformation and the resulting destabilization of prevailing cultural standards. That is to say, while conservatism itself is not inherently evil, there are reasons why it has come to this. That, in turn, is a larger discussion of its own.

Murphy, Tim. “Man Who Believes God Speaks to Us Through ‘Duck Dynasty’ Is About to Be Texas’ Second-in-Command”. Mother Jones. 21 October 2014.

Bowman, Bridget. “Poll Shows McAllister Race Is Wide Open”. Roll Call. 7 October 2014.

Everett, Burgess. “The passion of the ‘kissing congressman'”. Politico. 20 October 2014.

Varney, James. “Is Rep. Vance McAllister, R-La., a big, fat slob or just a cheater?” The Times-Picayune. 21 October 2014.