Thursday, May 28, 2009
Maybe Rove Is Starting to Get it:
He has declared: "Empathy" is the latest code word for liberal activism, ....”
Yes, imagine that!
Liberals like liberal activism, conservatives like conservative activism.
I’m always amazed when political folks portray the most obvious of truths as the re-appearance of Beazelbub. Maybe the sulphurous smoke is blinding them? (Actually, I’m not amazed at all - this is the very life breath of jingoism....)
“...for treating the Constitution as malleable clay to be kneaded and molded in whatever form justices want. It represents an expansive view of the judiciary in which courts create policy that couldn't pass the legislative branch or, if it did, would generate voter backlash.”
Yes there are laws that can’t get through a legislature. Some bad ones, some really good ones that get blocked, some that legislatures haven't even though about yet.
One would suspect that Mr. Rove is familiar with lobbyists and special interest groups and the huge growth in corporate money being spent to affect (and sometimes block) legislation.
Judges have made law and policy throughout our legal history: we are a common law system - in a common law system, judges make law. The “sudden” concern for this historic truth apparently reflects the fact that lately (the last 100 years or so) “activist judges” have, in delivering justice, found that the legislatures have failed to come up with justice on their own. Maybe because of lobbying? Special interests?
In the mid and late 1800s, activist judges created a slew of law about railroads, clearing away some old views about property rights and of torts that were blocking expansion of the railroads. The legislatures were slow to act and the law was very different from state to state.
Uniform law was needed and the judiciary provided it for the benefit of “big business and commerce.”
Kind of too bad in a way. It would have been interesting to see how commerce would have grown if we had stuck to rivers and canals.
Re judicial activism: see also my earlier blog entries for April.
And this recent one on empathy as being a required element of judging for some areas of law.
Monday, May 25, 2009
[Judging, Empthy and the Law: Part I]
In some areas of law, the law itself requires judges to exercise empathyJudging is far more than application of set mechanical rules, twisting wrenches and tweaking fits.
Laws regulate human interactions: in serving us through making judgments, judges are in the thick of the human activity being regulated, applying an immense range of skills. We owe it to them to not inadvertently dismiss their work as no more than the application oft vice grips and hammers, and fine tuning with the torque wrench.
Some people, primarily conservatives, have challenged the idea that judges, such as Supreme Court judges, should have empathy; they argue that judges should just “interpret the law” (and that “empathy” is just a code word for “activist.”)
But, some areas of law not only allow judges to exercise their powers of empathy, they require judges to exercise their powers of empathy in making their decisions.
The required judicial power of empathy is illustrated in two ‘recent’ Supreme Court cases regarding school search and seizure programs, in opinions written by Justice Scalia, in Vernonia v. Action, 1995 (“Vernonia”), and Justice Thomas, in Pottawatomie Cty. V. Earls , 2002 (“Earls”). The cases involved the Fourth Amendment search and seizure provisions.
Such cases, involving prospective programs of searches and seizures, require three determinations:
(1) the degree of invasion of the subjects’ privacy,
(2) the degree of the state’s interest in the searches, and
(3) the degee of effectiveness of the class of searches under review.
The third can be determined by relevant studies; the second by studies and understanding of the state’s public policies and the state’s interest in regulating students’ private and public activities.
The first factor, however, judging the degree of invasion of privacy, requires the judges to exercise their powers of empathy.
In Vernonia, Justice Scalia wrote:
“School sports are not for the bashful. They require "suiting up" before each practice or event, and showering and changing afterwards. Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford.”
The court’s decision hinged completely on the judges’ degree of empathy for the affected students’ privacy feelings and expectations.
Similarly, In Earls, Justice Thomas (despite a need arising from the different facts in the case to minimize the expectation of privacy leg of the "decisional 3-legged stool") also used his own powers of empathy to declare:
“We therefore conclude that the students affected by this Policy have a limited expectation of privacy.”
Empathy: "the action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another" (Merriam-Webster.com) is a necessary quality in those people entrusted to judge us in our day to day lives
Law and Judging
People often envision law and legal analysis as little more than finding the appropriate rule, sub-rule, or sub-sub rule exception to the sub-rule... or rule.
Lawyers call such a construct “black letter law.” And there are many legal questions involving black letter law: to referee student sports in State X, you must hold required certificate Y; when driving you must stop at red-lights (unless you are an emergency vehicle on a run and sounding your siren and pulsing your emergency lights, etc.)
But, especially for cases which end up before a judge, there is no clearly applicable black letter law: the facts are such that we need a neutral party to judge them. (The easy, black letter law cases usually don't end up in court: few want to pay high legal expenses where the outcome is certain and courts have various powers to avoid wastes of their time.)
When real controversies arise for the courts, determinations as (i) what the law is and (ii) how it should apply to a given fact situation require far more than simply knowing the potentially applicable rules, sub-rules, and sub-sub exceptions to the sub-rules.
Worthwhile determinations also require judges to understand and apply the underlying rationale for the rules, the precedents set by earlier cases, and the intent of the law makers (such as representatives when they legislate.
Because we are a common law legal system where, through precedent, the decisions made by one court can control or persuade later cases, legal determinations also require judges to anticipate how their decisions will affect future activities and decisions of the public at large.
Good judging requires far more that simply deciding which rule applies or knowing how to merely“interpret”a rule. Those are necessary and important qualities, but they are only the start. To suggest they are sufficient qualities for a judge is to inadvertently dismiss the many skills needed and used by that particularly valuable species of public servant.
Often, the law itself requires judges to exercise their power of empathy.
Sunday, May 24, 2009
Judging Empathy And Law: Part II
A few weeks ago, President Obama mentioned “empathy” as one of several qualities he would look for in his judicial appointments.
Some critics have asserted that “empathy” is just a code word for “activist judges” (apparently assuming that the ‘activist’ judiciary which has created a great deal of the fundamental law of our nation throughout our history was somehow ‘unamerican’ or acting contrary to the funding principles of the nation.)
Accepting that “code word” characterization at face value, it should be noted that, in this era of our history, “activist judge” is itself a code word for “liberal judge.”
Conservatives have openly advocated a conservative judiciary and the appointment of conservative judges - a perfectly natural and appropriate expression of their views.
At best, it it disingenuous, however, to condemn liberals for advocating a liberal judiciary when one engages in exactly the same sort of political advocacy from a different viewpoint.
Friday, May 22, 2009
I've just stepped in a huge waste of our money by our governments - local, state and probably federal. It looks like it adds up to about $11 billion every year.
See, we've just been taught by one of the political parties that carbon dioxide can't be a pollutant because we breath it out every day, every minute:
Rush Limbaugh: “we exhale C02. If it were a poison, if it were something -- we would -- wouldn't be part of the way we stay alive."
So why the heck are we spending $11 billion on treating our pee and poop?
Darned waste of our money, if you ask me.
Darned socialist waste of our money...
Wednesday, May 20, 2009
Just something that caught my fancy....
Iin a campaign to oppose to re-election of “dishonest left-wing extremist Harry Reid (D-NV).... [and] his non-stop assaults on America” a right wing site, “The Right-Wing Underground Resisting Socialism and Surrender” is soliciting funds.
Political fund-raising? As American as apple pie, of course. More power to ‘em
In pleading for funds, the site proclaims: “We're going up against the President of the United States and the Senate Majority Leader. So we have to do this right. We truly need to own the TV airwaves.” [Emphasis added.]
Should we tell them that, decades ago, in the Radio Act of 1927, “socialist” ownership of the airwaves was set as the law of the land, and that, in fact “We do truly own the TV airwaves?”
(Of course, I’m conflating their metaphor with the reality of our broadcasting history, but I’m always amused when advocates demonstrate a certain inability to understand the implications of the words they chose.)
(BTW: Conservatives like to argue from various obscure facts that there is no basis to claim the “public owns the air waves.” They overlook the most basic rule of the early radio and then broadcasting laws: that the government was leasing “air waves” to licensed broadcasters. Leasing something to someone requires ownership.)
Tuesday, May 19, 2009
"Subprime" Green Jobs?
Rep. Phil Gingrey (R-GA) , in his opening statement on the Waxman-Markey American Clean Energy and Security Act (H.R. 2454), attacked green jobs as “subprime:”
“There’s little doubt in my mind that this legislation will shut down businesses and eliminate blue and white collar jobs. While I know the majority has prided its plan on the creation of green jobs mr chairman I have listened to some of our counterparts in Europe discuss their experience with these green jobs....They may be described as “subprime” in comparison to solid traditional manufacturing jobs we’ve recently lost to other countries.” [Emphasis added.]
Wow, looks terrible! How about some facts?
Here’s a look at some of those “subprime” jobs:
There are 3 newish solar panel companies in my area. First Solar has been around the longest, Sunlight for a couple of years, and Willard & Kelsey Solar Group LLC has recently started up.
For a list of the “subprime jobs they offer, may I suggest
FirstSolar has 83 jobs open, most require a 4 year engineering degree.
How 'shaky' is FirstSolar? How likely is it those jobs will be lost?
“First Solar has demonstrated strong revenue growth over the past three years. Since 2004, it has more than doubled its revenue each successive year while turning a profit in 2008.
“In the first quarter of 2008, First Solar saw net sales of $196.9 million - up $130 million year-on-year but down $3.9 million from 4Q07. Gross margins were 53% - down 2.3% from 4Q07. The company's backlog is worth $6 billion.”
Xunlight has 13 positions open, mainly engineering but one requires a law degree and license.
Wksolargroup doesn’t list their openings on line, but word on the street is that they’re mainly looking for engineers and skilled machinists.
Pretty rotten jobs, eh?
Who was it who warned us about "nattering nabobs of negativity?"
[Thanks to The Wonk Room at ThinkProgress for calling attention to the comments by Rep. Gingrey]
Thursday, May 14, 2009
I’m a regular reader ofthe blogs at ThinkProgress.org and believe that site publishes much of value.
Today, however, the ThinkProgress.org site said: "Karl Rove declared that House Speaker Nancy Pelsoi (D-CA) was 'an accomplice to ‘torture,’”
I believe that was a misleading characterization.
Rove was writing in the conditional sense and did not make the flat out statement attributed to him, creating the impression that he implicitly admitted torture was used:
"If Mrs. Pelosi considers the enhanced interrogation techniques to be torture, didn't she have a responsibility to complain at the time, introduce legislation to end the practices, or attempt to deny funding for the CIA's use of them? If she knew what was going on and did nothing, does that make her an accessory to a crime of torture...? [Emphasis added.]
Swing and a miss for ThinkProgress.
But they still have one heck of a high batting average
Tuesday, May 12, 2009
I haven't seen anyone talk about the role that real estate agents played in the real estate/sub prime mess.
It is my understanding that most RE sales involve agents for the buyers - were the agents for the sub-prime borrowers acting in their principles' best interests? Advising them as to the financial propriety of those transactions?
If anyone has seen this discussed, I'd like to see a link/reference.
Monday, May 11, 2009
This study discusses such programs and demonstrating that there are good reasons to "just say no" to such drug testing. (This is an ACLU related Study -- see the link below for a Cato Institute study)
Some key points from the study:
• Drug testing is not effective in deterring drug use among
• Drug testing is expensive, taking away scarce dollars
from other, more effective programs that keep young
people out of trouble with drugs;
• Drug testing can be legally risky, exposing schools to
potentially costly litigation;
• Drug testing may drive students away from extracurricular
activities, which are a proven means of helping
students stay out of trouble with drugs;
• Drug testing can undermine trust between students and
teachers, and between parents and children;
• Drug testing does not effectively identify students who
have serious problems with drugs; and
• Drug testing may lead to unintended consequences, such
as students using drugs (like alcohol) that are more
dangerous but less detectable by a drug test.
This study from the conservative Cato Institute has raised similar questions:
"In this paper, I explore the conditions under which the random drug testing of athletes will lead to the perverse outcome of increased student drug usage. As I will show below, the threat of this policy backfiring is not fanciful, but rather is quite real and should worry policymakers and others who are concerned with the high level of drug use among students. Civil liberties issues aside, the random drug testing of athletes may be a very risky policy innovation."
See also, in Salon magazine:
"If the Supreme Court rules in favor of drug testing in public schools, will students come clean? Kids at schools in Indiana, where drug tests rule, say no way."Apr 22, 2002 | According to the students at rural Rushville Consolidated High School, there are a dozen ways to pass a drug test. "
[On Edit - 5-13]
I've done more digging and found some "pro testing" websites:
There is, of course, debate as to whether these programs "work" and whether there are potential negative consequences. I'm digging in.....
This site appears to be linked to another site: http://www.ibhinc.org/ Which appears to be principally the work of Robert L. DuPont, M.D. -- bio at http://www.ibhinc.org/biorld.html
The Student Drug Testing Coalition web site reports that “The Coalition is a project of the Drug-Free Projects Coalition, Inc.”
I have not been able to find any information on the internet as to the Drug-Free Projects Coalition, Inc.
The Cost of “Free”
Rep. Pete Sessions, head of the House Republican committee tasked with electing more GOP members, has a unique theory as to why unemployment continues to rise: Obama wants to wipe out free enterprise.
Sessions told the Times that Obama's plan is to "diminish employment and diminish stock prices." By doing so, Obama "intended to inflict damage and hardship on the free enterprise system, if not to kill it" as part of a "divide and conquer" strategy to consolidate power.
(Remember, in the past, Sessions has argued that the Republican Party ought to emulate terrorists. The GOP, Sessions famously argued in February, ought to model its "insurgency" after the Taliban. "Insurgency, we understand perhaps a little bit more because of the Taliban," he said.)
“Free enterprise” really took off in the second part of the1800's, with the industrial revolution. It worked so well that giant monopolies formed, the antithesis of free enterprise as described by Adam Smith. (Few know or remember: Adam Smith did not think much of corporations .)
So we, the people, came up with anti-trust laws, taking a bite out of the “free”
And just as one group of people organized to leverage the return on their assets, through stock companies, another group of people organized to leverage the return on their assets, through trade and labor unions. (They had a pretty tough go of it though, given relative political power.)
Another bite out of the "free."
Free enterprise led us into the Great Depression. So we came up with business and finance laws, taking another bite out of the “free.”
As industry grew, to maximize their profits and return for shareholders, which is what they were supposed to do, free enterprise got rid of their wastes as cheaply as possible, leading to widespread pollution.
So we, the people, came up with environmental laws in the 70's, taking another bite out of the “free.”
Capitalism and enterprise with restrictions (“sort-of-free enterprise”) have generated much wealth and, in many ways, a much better world.
Our latest experiment with easing the rules by which business is governed, “sort-of-freer enterprise,” the financial and economic meltdown of the first decade of the 21st century should have again shown us that “really-free enterprise” leads to pretty high costs for "free."
One essential part of our governance is the structure of checks and balances. The need to restrict the freedom of the executive, of the judicial and of the legislative is understood by all and is seen as a response to human imperfections.
Free commerce, without checks and balances simply hasn't worked well over our history.
Cries for "free enterprise" are simply denial of this basic human truth.
Whistling Past The Graveyard Department:
Sunday, 5/10/09, on ABC's This Week, John McCain expressed his view that the problem for Republicans was not that Americans had rejected their right-wing policy ideas, but that they had not communicated those policy ideas well enough in the recent past.
Okay. If that's what you need to think...., I'm all for ya.....
Saturday, May 9, 2009
I have been aware for awhile that it’s got to be tough to be a Republican these days.
The moderate Republicans have been eschewed and discarded by their more passionate “compatriots” to their right; the right wing shoved its ideology down the American throat only to have it (semi) promptly regurgitated -- in public.
Former presidential candidate Mike Huckabee has pinned the tail on the elephant: he says the GOP is at risk of becoming "irrelevant as the Whigs;” that the GOP would only further decline in influence should it "alienate social conservatives."
The social conservatives are, to a large extent, incapable of accepting other views and they are repelled by the idea of associating with others with mildly differing values.
Remember, to a large extent, these are the folks who think a retail store which doesn't include “Merry Christmas” in its winter season greeting is attacking, literally attacking Christianity.
Asking them to accept difference views is, in their minds, attacking them and thus alienating them.
In an interview with the California newspaper The Visalia Times-Delta, Huckabee "Throw the social conservatives the pro-life, pro-family people overboard and the Republican party will be as irrelevant as the Whigs."
As some have noted in another area of societal battle: “can’t live with ‘em, can’t live without them.”
Friday, May 8, 2009
The Importance of Being Spicy
Referring to the left's reaction to the right wing fascination with Obama using an style of mustard based on a French recipe, another recent arrival in the blog world,William A. Jacobson, noted:
"Dijongate was a metaphor for the larger issue of media bias which helped Obama get elected...."
Which would be a wonderful observation if it made any sense. I was an English major, I know metaphor when I see metaphor, and Professor Jacobson, that tweren't no metaphor.
But, to give credit where it might possibly be due, apparently, he is a "the-media-is-liberalista" and found significance that one channel edited out the end of President Obama's sentence where he specified spicy or Dijon style mustard as yet another proof of the liberal bias of the media:
Not alone in his condiment-phobia among conservative commentators, he then felt it, ah, thrilling? that their concern with Obama's mustard choice was mentioned by several "nutroots:"
"Check out the links to the original post, and you will see that many of the high profile nutroots blogs have linked. If you check out the links and comments, you will see that the full foul-mouthed, abusive intellect of the nutroots has been brought to bear.
[Query: is referring to people with other views as "nutroots" an example of either foul-mouthed or abusive intellect? I'd say no-- rather, use of such a descriptor is evidence of a lack of intellect, as the word is commonly used. Or, as we used to say in Torts class: "res ipsa loquitur."]
"So I kept updating the story, with further links to Obama's choice of condiment, in part as a reaction to the reaction. Which has driven some people even crazier. Now the story has gone national, being picked up by the Washington Post blog.
"What gives here? Why the out-sized reaction? If this is a non-story, why is the left obsessed with it?
Perhaps some on the left are obsessed - there are "nutroots" on both sides of the aisle.
For me: I wouldn't say I'm obsessed with his blog.
I mention it for two reasons: First, maybe I can get a mention on his site and build my hits. Economic self-interest, you know.
And second, I am in favor not only of highlighting idiocy on the right, but in actively encouraging it and promoting its day in the sunshine. I hope you hit the evening news.
You go, boy, er, Professor - keep showing the world the thinking processes of today's right wing intellectuals. The conservative branch of the Republican Party is in search of new ideas*, and the president's mustard choice is just about the best you guys have come up with.
I suspect you couldn't do more for liberalism in the US if you tried.
*A wonderful, but apparently wholly unconscious admission that today's conservative ideology now has less vitality than Enron and Chrysler combined: by definition conservatives revere and want to reinstate the past.
The very fact that they are seeking "new ideas" demonstrates that their Holy Grail of life -the good old days - has come a cropper.
How we miss conservatives who had something to say. There are still some, but even they are drowned out by the prevailing loud voices in Lambaughstan.
Thursday, May 7, 2009
If you're going to pursue truth, you have to be prepared to change your mind.....
National Day of Prayer
Should the National Day of Prayer be highlighted by a public White House event?
Not according to experts:
Matthew 6:5 "And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by men. I tell you the truth, they have received their reward in full. 6 But when you pray, go into your room, close the door and pray to your Father, who is unseen. Then your Father, who sees what is done in secret, will reward you."
Wednesday, May 6, 2009
Rush Limbaugh May, 2009: “We do not need a listening tour. We need a teaching tour. That is what the Republican Party , or slash, the conservative movement needs to focus on. Listening tour ain’t it.”
Membership in the Republican Party is dropping - down to 21% according to recent news reports.
Republicans lost electoral ground in 2006 and even more in 2008.
And Rush believes that “they” don’t have to listen, they have to teach.
OK. As a Democrat with primarily progressive beliefs, I hope Rush’s view prevails within the remaining faithful still residing in Limbaughstan.
I wish them the best of luck with that battle cry.
Because I believe the American people have been listening to the conservative teachings over the past decades and have learned that the extreme views of today's "conservatives" don’t work.
(I believe there are thoughtful, reasoned conservatives and " we" can and should give their views consideration, and that we can learn from those who are reasoned and thoughtful. If nothing else, to find common ground and areas where we can all compromise and "hang together.")
And, I believe that if you’re going to pursue truth, you have to be willing to change your mind.
That, to able to change your mind, you have to be willing to learn and listen
I.e. you have to understand that learning never stops.
Monday, May 4, 2009
Our Activist Judiciary = Checks and Balances (Part 4 - See Parts 1-3 below)
In a NYTimes analysis in 2005, Professor Paul Gewirtz and Yale Law graduate Chad Golder gave an interesting set of facts on “judicial activism.”
They define judicial activism in terms of overruling Congressional acts on grounds of unconstitutionality: “Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act ‘of great delicacy, and only to be performed where the repugnancy is clear.’”
So, who are the “activist” judges?
From 1994 to 2005, in cases challenging constitutionality, the each of the justices voted to rule a congressional act at this rate:
Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %
So, the “conservative justices are generally the “activist judges.”
So much for conservative attacks on “judicial activism.”
Following, an historic look at judicial activism from the perspective of “judges making law.”
(Some call this “legislating from the bench”, but that’s a simply a misuse of language in an attempt to backdoor a constitutional argument: that Congress has the sole right to legislate and so courts shouldn’t. Judge made law is simply the creation of common law - which has been at the core of our legal system since long before the adoption of the Constitution -- dating back to pre-colonial England.)