Thursday, April 15, 2010
Stevens: 'I Never Left Sanity. Sanity Left Me'
Stevens: 'I Never Left Sanity. Sanity Left Me'
Wednesday, April 14, 2010
Two observations about retiring Supreme Court Justice John Paul Stevens are about to become established fact by sheer repetition. The first -- that Stevens is the last Protestant on the court -- is not true in any meaningful sense. The second -- that Stevens didn't move left, the court moved right -- is madness.
While it's true that there are no other Protestants on the court -- now composed of six Catholics and two Jews, making the Supreme Court only slightly less diverse than cable news hosts, 75 percent of whom are Catholic or Jewish, but also include a Scientologist, a Mormon and a gay -- it's difficult to believe Stevens is any kind of Protestant.
Stevens is more like a pre-road to Damascus Saul. Or maybe the late Justice William Brennan.
It has been said that when asked during his confirmation hearings if he would follow his Catholicism or the Constitution, Brennan should have answered: "Neither." (Only one senator voted against that cheap leprechaun. Guess who!... That's right: Joe McCarthy.)
Stevens' overall career-average may be less ridiculous than Brennan's, but in one respect, Stevens was a standout: He was the most fanatically anti-religious justice in modern times.
In the 1989 abortion case, Webster v. Reproductive Health Services, for example, Stevens argued that a state law that defined life as beginning at conception violated the First Amendment by -- yes, establishing a religion. The abortion law, he said, gave "a theological answer to the question of when life begins." (You've all heard of the First Church of When Life Begins, United, haven't you?)
Fortunately, Stevens didn't read far enough to see that the Bible also condemns murder generally, or he might have voted to strike down all laws against murder, too.
In the 2002 school voucher case, Zelman v. Simmons-Harris, Stevens argued that an Ohio program giving poor parents tuition aid to send their children to schools of their choosing also violated the establishment clause. Stevens admitted that the public school system in question was in "crisis" and also that the new schools were freely chosen by the parents.
Still, he said, because the program did not forbid parents from using the tuition payments at religious schools, the state was using "public funds to pay for the indoctrination of thousands of grammar school children in particular religious faiths." That money should have been used to indoctrinate children in subjects such as animal rights, Gaia theory, anti-Americanism and fisting etiquette!
Speaking as a Protestant, and not a "Protestant," we're happy to see Stevens leave the court.
Stevens' claim that he hasn't moved left, the court has moved right, if stated during a mental competence hearing, would have earned him a straitjacket and a handful of Thorazine.
But because Stevens' self-characterization comports with the legal left's position that the Supreme Court's failure to enact the entire platform of the Green Party constitutes "conservative judicial activism," it has been reverently repeated.
It's true that on a few issues, Stevens didn't change. He has long found any religious practice not crushed by the government to be an "establishment of religion." Stevens has also never been an enthusiast of tenuous claims to free speech rights, voting to uphold city restrictions on strip clubs in 1976 and voting to uphold a law that prohibited the burning of the American flag in 1989.
But on many other issues, such as race discrimination, Stevens swung so far to the left that his earlier opinions would be unrecognizable as having been written by the same man.
In 1978, Stevens was not only in the majority in University of California Regents v. Bakke, but he also wrote the opinion holding that the school's race-based admissions program violated Title VII and ordering the university to admit Bakke.
In another case of government race-based classifications, Fullilove v. Klutznick (1980), Stevens ridiculed the idea of race-based "remedies" being applied to every ethnic group under the sun.
Adopting Justice William Rehnquist's view that the specific history of blacks in America makes their claims unique, Stevens wrote: "Quite obviously, the history of discrimination against black citizens in America cannot justify a grant of privileges to Eskimos or Indians." (Remember when you could use terms like "Eskimo" and "Indian" without being accused of a hate crime?)
Unlike blacks, who were "dragged to this country in chains to be sold in slavery," Stevens said "the 'Spanish-speaking' subclass came voluntarily, frequently without invitation, and the Indians, the Eskimos and the Aleuts had an opportunity to exploit America's resources before the ancestors of most American citizens arrived."
Now fast-forward to 2003, when the court considered the race-based admissions policy at the University of Michigan. The school automatically awarded 20 points -- one-fifth of the total points needed for admission -- to every minority, including not only blacks, but also Hispanics, Indians, Eskimos and Aleuts.
This time, affirmative action for Aleuts was just peachy with Stevens, who came up with a ludicrous procedural objection to the lawsuit, basically concluding that no one ever has standing to sue for race discrimination in college admissions. I guess he figured it was time somebody did something about the University of Michigan's long, shameful history of discriminating against Aleuts.
That's quite a change from the Justice Stevens of Fullilove, who compared government affirmative action programs to Nazi policies, saying if the government "is to make a serious effort to define racial classes by criteria that can be administered objectively, it must study precedents such as the First Regulation to the Reich's Citizenship Law of Nov. 14, 1935," translated in Volume 4 of "Nazi Conspiracy and Aggression."
Whatever you think of Stevens' newfound admiration for government racial preferences, it's preposterous to say, as Stevens did, "I really don't think I've changed all that much."
If liberals will lie about obvious facts from the last few decades, such as Stevens' dramatic swing to the left, how can they be trusted to tell the truth about a 200-year-old Constitution?
No (Political) Experience Required
Thursday, April 15, 2010
WASHINGTON -- Stiffening their sinews and summoning up their blood, pugnacious liberals and conservatives who relish contemporary Washington's recurring Armageddons are eager for a summer-long struggle over Barack Obama's nominee to replace Supreme Court Justice John Paul Stevens. They should pause and ponder how recently and radically the confirmation process has changed.
By 1939, the Supreme Court had been embroiled in political controversy for half a decade. It had declared unconstitutional some important New Deal policies, and FDR had reciprocated by attempting to "pack" the court by enlarging it, which had earned him a rebuke in the 1938 elections. Yet when on Jan. 5, 1939, he nominated Felix Frankfurter to fill a court vacancy, the Harvard law professor sailed through Senate hearings and the confirmation vote in 12 days. It was a voice vote, with no audible dissent.
On March 20, FDR nominated William O. Douglas to fill another vacancy. Although the 40-year-old Douglas had no judicial experience -- he was chairman of the Securities and Exchange Commission -- and would be the youngest justice in more than a century, he was confirmed 15 days later. No witness testified against him.
Linda Greenhouse of The New York Times notes that when Stevens was nominated in 1975 to fill the first vacancy since the 1973 Roe v. Wade decision, he was asked no question about abortion during his confirmation hearing. He was confirmed 98-0, as was Antonin Scalia in 1986. Things changed the next year, when Ted Kennedy used a demagogic Senate speech to launch a successful liberal crusade against Robert Bork.
As Stevens departs, the eight remaining justices are all products of the Harvard, Yale or Columbia law schools; all are former federal judges. Professor Terri L. Peretti, a Santa Clara University political scientist, notes (in Judicature, Nov.-Dec. 2007) that the court has often included judges with political experience.
The greatest justice, John Marshall, who made the court a nation-shaping force, had been a state legislator and congressman. Between 1789 and 1952, most justices had some legislative or executive political experience. Chief Justice William Howard Taft, a former president, was followed by Charles Evans Hughes, a former New York governor. Hugo Black had been a senator from Alabama. Earl Warren had been California's governor, which became a problem: Because President Eisenhower, like many others, believed that political thinking sometimes supplanted jurisprudential reasoning in Warren's decision-making, he sought judicial experience in his remaining four nominees.
In 1971, Richard Nixon nominated the last two justices without such experience, William Rehnquist and Lewis Powell. The last justice with experience in elective politics was Sandra Day O'Connor, who had been an Arizona state legislator before becoming a judge. Bill Clinton seriously considered four prominent politicians for Supreme Court nominations -- New York Gov. Mario Cuomo, Secretary of Education and former South Carolina Gov. Richard Riley, Secretary of the Interior and former Arizona Gov. Bruce Babbitt and Senate Majority Leader George Mitchell.
Peretti believes that when, with the 1954 Brown decision, the court began the dismantling of segregation, Warren's political skills were apparent in the unanimity of the decision as well as the fact that it was "short and non-legalistic" and was "a public appeal" accessible to a broad public rather than "a cogent legal argument whose reasoning lawyers and academics would admire." But although the court played a crucial role in overturning the South's social structure, the need for such a dramatic judicial role is rare and there is no visible occasion for it today, so there is slight need to select politically experienced justices.
Conservatives spoiling for a fight should watch their language. The recent decision most dismaying to them was Kelo (2005), wherein the court upheld the constitutionality of a city government using its eminent domain power to seize property for the spurious "public use" of transferring it to wealthier interests who will pay higher taxes to the seizing government. Conservatives wish the court had been less deferential to elected local governments. (Stevens later expressed regret for his part in the Kelo ruling.)
The recent decision most pleasing to conservatives was this year's Citizens United, wherein the court overturned part of the McCain-Feingold campaign finance law. The four liberal justices deplored the conservatives' refusal to defer to Congress' expertise in regulating political speech.
So conservatives should rethink their rhetoric about "judicial activism." The proper question is: Will the nominee be actively enough engaged in protecting liberty from depredations perpetrated by popular sovereignty?
To continue reading the historical thread, click here.
Posted by Brett at 12:02 PM