Ken Starr has Bush the Elder to blame

Ken Starr was demoted from President to Chancellor at Baylor University for its handling of sexual assault accusations against members of the football team.

I haven't read the independent investigative report that led to this. My guess is Starr took a hands-off approach to athletics as something beyond his expertise. As President, he was responsible, but may not have been morally culpable. That's why he was allowed to keep his tenured professorship.

Still, he must wonder how it came to this. He should be on the Supreme Court. Instead, he'll be remembered as the out-of-control independent counsel who investigated Bill Clinton's sex life, and overseer of a university that put winning ahead of justice for women.

And the only reason he had either job was because he wasn't on the Supreme Court.

He was well on his way, but President George H.W. Bush failed him.

Here's what happened. In 1990, Justice William Brennan retired. Several people were high on Clarence Thomas. There was already a black Justice sitting, Thurgood Marshall. Bush's appointment of Thomas would have confounded liberal opponents by giving the court two black seats, and thereby claiming that the quality of the legal mind, not race, was the main factor. 

But Bush passed on Thomas that year. And he passed on Starr, who clerked for Chief Justice Warren E. Burger, had been a federal appeals judge, and was the sitting Solicitor General. Bush chose the potentially less controversial David Souter instead. Souter became part of the Court's "liberal" wing.

Marshall retired the next year. Bush finally appointed Thomas, giving opponents ammunition that he was appointed only because he was black. The Anita Hill hearings were a result. I don't think they would have happened the previous year.

Ken Starr could then have filled the Marshall vacancy.

But Bush wanted no fuss either time. Souter was safer than Starr and Thomas in 1990 because he wasn't as well known. And in 1991, Thomas was "safer" than Starr because Bush felt he had to nominate a black person.

If Bush had appointed Thomas in 1990 and Starr in 1991, the Court would have become more solidly conservative, somebody else would have investigated Clinton, and somebody else would have become President of Baylor University.

Maybe things would been worse. Maybe Starr would have been ill-suited for the Court. But I suspect that's probably where he most belonged and where he probably would have done the least harm.

Money Isn't Speech

The Supreme Court is obviously wrong in its McCutcheon v. Federal Election Commission that struck down "a decades-old cap on the total amount any individual can contribute to federal candidates in a two-year election cycle."

It's wrong because money isn't speech.

You see, the machine through which Stephen Hawking speaks is free. It never cost anybody anything, and has no maintenance cost. It just magically appeared out of nowhere.

Indeed, I'm not saying there should be laws limiting the amount of money spent on speaking aids for the disabled, but if there's a compelling public interest to do so, why not?

"Money isn't speech."

Some people spend too much money going to see plays or comedians. That should be limited.

Indeed, "money isn't speech" is an obvious statement. Money also doesn't apply to other First Amendment provisions as well. I mean, it's clear...

"Money isn't  religion."

Indeed, perhaps the federal government should limit how much you give to your church and its affiliated institutions and charities, if there's a compelling public interest to do so.

"Money isn't the press."

Maybe the feds should also limit the amount of money you spend on books, magazines, and newspapers.

"Money isn't assembly."

And the federal government should be able to prevent you from spending money to rent a meeting space.

In conclusion, money obviously has nothing to do with the exercise of our freedoms. Any rational, well-intentioned person can see this, and if you disagree you're part of the oligarchy!

An Ironically Proud Day to Be an American

These are my initial reactions to the Westboro decision. I haven't studied the reach or all the implications of the Court's ruling.

Today, I am ironically proud to be an American. I am celebrating because the Bad Guys won.

The Bad Guys, of course, are from Westboro Baptist Church of Topeka, KS. This fringe cult is a unique Church indeed . . .

• Its hatred of gays shocks even the Christian Right
• Its anti-patriotism shocks even the Left
  

Nearly everyone who's ever heard of this church is appalled by what it does.

Its members celebrate the death of U.S. servicemen who died in our overseas wars. They believe this is a sign that God is punishing the U.S. for tolerating homosexuality.

They go around the country and stage "protests" near the funerals of fallen soldiers, coming as close as local laws allow.

Their presence inflicts deep emotional pain on the families and friends of the dead.

In fact, one father sued them for inflicting emotional distress. The case made it to the Supreme Court, which defended Westboro's free speech rights 8-1, with only Justice Alito dissenting.

Although I'm not a lawyer and have not studied the jurisdictional issues and other nuances of the case, I have breathed a sigh of relief.

And NOT because I agree with Westboro. Far from it. I believe that what goes on between consenting adults in their own homes is nobody else's business.

Furthermore, I disagree with the U.S. occupations in both Afghanistan and Iraq (and virtually everywhere else in the world), which makes deaths resulting from those occupations a cause for more sadness, not gloating.

The reason I breathe a sigh of relief is that the Supreme Court still took the side of the most unpopular defendant imaginable. Just as it did two decades ago in two different flag desecration cases. Just as it did three decades ago when it allowed the Ku Klux Klan to march in heavily-Jewish Skokie, IL.

The difference between then and now is the gradual changes in our culture. Although the term "politically incorrect" has been so over-used as to become a cliche, there is a real phenomenon behind it: over the past two decades, speech codes on college campuses have had a chilling effect. Any statement or gesture that can be interpreted as "offensive" or even just "insensitive" can land a faculty member or student before a campus tribunal.

That Political Correctness persists on college campuses is shameful.

It would have been even worse for the Supreme Court to make "political correctness" the law of the land . . . :

• If the Supreme Court had barred the Klan march in Skokie that would have opened the door to banning other unpopular views in other places.
  
• If the Supreme Court allowed for Flag desecration to be criminalized, that could have opened the door for government to protect other national or local symbols from "desecration"
• And then governments would have sought to censor other activities that it deems too "offensive"
  

The people, especially those who hold unpopular beliefs, would have been in a position of legal uncertainty -- unsure if their forms of expression would be tolerated at all. If they weren't censored directly, they might have censored themselves to avoid trouble.

And the public would have been the worse off for it. Just because a belief is unpopular doesn't mean it isn't true -- and if it's not wholly true, at least it may provide insights that broaden public understanding.

The Westboro case may make the issue more stark. The issue wasn't whether the government would prosecute for offensive speech, but whether another private party can sue for "emotional distress" caused by speech.

This would have been EVEN MORE chilling to ALL speech. Consider . . .

Perhaps you march without a permit, or "desecrate" a national symbol, and you get charged for a misdemeanor. Although it's not right, you might be able to handle it, and take pride in your civil disodience.

But what if what you say or do is tolerated by the authorities, but subject to an $11 million lawsuit if it "offends" someone else.

Now THAT'S a chilling effect!

• Imagine you are an editor of a newspaper, and your editorial cartoonist draws the image of a sacred religious figure in a derogatory light; should offended readers who are members of that religion get to sue you and the cartoonist?
• Imagine you want to build a religious center on private property, but other people in your neighborhood blame members of this religion for a recent tragedy in the neighborhood; should they be able to sue to keep you from building this center on your own property?
• Imagine you hold the "traditional view" on sexual morality and express your feelings in a public forum; should someone who is offended by your remarks get to sue you?
• Or imagine you criticize the "traditional view" on sexuality through mockery, satire, and shocking images; should people offended by your presentation get to sue you?
  

Thanks to today's decision, it looks like freedom of speech is pretty safe. The Supreme Court upheld the rights of a group reviled by ALL sides. When the question is asked, "Where is the line drawn on freedom of speech," the answer is, "So far away that even Westboro is safe, and if Westboro is safe, YOU have nothing to worry about."

Most courts in the English-speaking world and of Europe would not have upheld freedom of speech in this case. Indeed, in several countries some degree of Political Correctness is the law of the land, where it is even illegal to promote certain conspiracy theories.

To a large degree, however, freedom of speech and freedom of assembly still remains safe in America. I haven't felt this proud and lucky to be an American in a long time.

536 People

The Sotomayor Senate hearing is something I couldn't care less about. It does not matter who's on the Supreme Court.

Indeed, I believe Charley Reese was wrong when he held 545 people responsible for all U.S. woes. He adds together both Houses of Congress, the President, and the Supreme Court to get to that number. I'd subtract the latter nine, leaving 536.

It is true I'm not a fan of "liberal" justices who support eminent domain (aided by federal funds) for private profit, federal raids of medical marijuana growers, and the abridgment of speech and press during election seasons.

To be fair, neither do I applaud "conservative" Justices who tend to overlook or excuse the abuse and tyranny emanating from the President, the military, and police.

But what has the Court really done in these cases, but defer to the will of the popularly-elected President and/or majorities of both Houses of Congress? Well, one could reply, the Court is supposed to protect the rights of oppressed minorities. Yet, each member of the Court was nominated by a President who seeks more and more power for himself, and was confirmed by a Senate majority.

If the President wants more power for the Executive, he will nominate Justices more willing to allow him to have it. And if the Senate can't be trusted with passing sound, Constitutional legislation, neither can it be trusted to confirm Supreme Court Justices who will properly interpret law and the Constitution. Incompetence in the one area indicates, if not necessitates, incompetence in the other.

Even in a case like abortion or the Pledge of Allegiance, Congress already has the Constitutional power (without a Constitutional Amendment) to reverse the Court's decisions and prevent the Court from hearing such cases. They just don't want to because playing political football with these issues is more to their advantage.

That's really what the Supreme Court is: political circus. The unacknowledged purpose appears to be to allow the political, elected branches to blame the Court for messes they themselves are responsible for. There is no incentive for Presidents and Senates from either party to nominate the wisest, brightest, and most impartial of intellects to the Court. Rather, they require a Supreme Court that will almost always often be deferential to federal power, yet will still spice up the Culture War every now and then. No matter how it shakes out from year to year, the government always wins.

Souter, Spector, Kemp

Recent news items . . .

Justice Souter retires

Souter's appointment in 1990 was a defining mistake of George H.W. Bush's Presidency. Not the biggest one, not the one that cost him re-election, but a defining one.

How so?

When William Brennan retired in 1990, with Thurgood Marshall still sitting, Bush could have appointed Clarence Thomas to the Court and so have two African-Americans on the bench at the same time! The implicit message: No tokenism here, folks! I'm appointing Thomas because he's the best person for the job - even though African-Americans are now over-represented on the Court!

It would have left Democrats scrambling.

Instead, Bush replaced the white Brennan with the non-descript white guy Souter. Then the next year, when Marshall retired, Bush decided to fill the "token black seat" with Thomas. A political uproar ensued.

It turned into a farce, with Senate liberals essentailly railing against affirmative action and exploiting the stereotype of the oversexed black man for poltical purposes.

Thomas hasn't been able to live it down since, with many on the Left thinking still today he was unqualified. (Even though he did have the credentials, and from what I've read from their decisions, he's probably the most competent of the right-wing Justices.)

Anyway, the fact that Bush could have nominated Thomas in 1990, and then Souter (or someone else) in 1991, instead of the other way around, is a testament to his ineffectiveness as a party leader.

As to Souter's legacy, whatever. When the federal government demands more power, the Justices, whether Left or Right, gives it the green light nine times out of ten. So what the Court does hardly matters to me anymore. All responsibility for the bad laws the Court upholds belongs to Congress anyway. It is there we must focus attention.

Arlen Spector defects to Democrats

Well, he's pro-abortion. And that's the only difference between the two parties, so it makes sense.

Jack Kemp dies

I once was drawn to Kemp's vision of "market-based" solutions to America's social problems, enough so that I was a Republican in the 1990's. Although I've moved away from that, I never questioned Kemp's sincerity or intentions. He always seemed like a decent guy.

The Myth of Conservative Judges

Vache Folle got me thinking about judicial activism. It occurs to me that no matter how a Supreme Court Justice behaves, he will be accused of being a judicial activist. In any case, it is virtually impossible to be a "conservative" Supreme Court Justice.

It is judicial activism to strike down the will of the legislature without clear textual evidence from the Constitution, but it is also judicial activism to overturn precedent. If, a long time ago, a liberal Court struck down a duly-enacted law in a decision short on Constitutional reasoning but long on sociology and social policy, that ruling should be overturned. But is it "conservative" to overturn a precedent? No; the very nature of conservatism is to build upon precedents, or sometimes to modify them over a period of time, but not to overturn them.

In the end, the very concept of judicial review - the power of the Supreme Court to declare a federal or state law unconstitutional - lets the activist cat out of the bag, leaving federal judges free to scratch and tear up laws or the Constitution whenever it pleases them. The doctrine of judicial review itself isn't even found in the Constitution.

But even a Justice who doesn't believe in judicial review and always defers to the legislature wouldn't really be a "conservative;" in today's climate he would actually be the most radical of them all.

This goes back to different conceptions of conservatism. One is moderate and works within the current political climate; the other is reactionary and insists on a strict interpretation of the Constitution even if it means abolishing the Fed and getting rid of the New Deal. The reactionary position may be the correct one, but it isn't conservative in the Burkean sense.

For the conservative Justices to be evaluated in terms of consistency, perhaps we ought to know which kind of conservatism we're talking about.