We have come to expect a fight whenever a seat opens up on the Supreme Court as there are distinct battle lines between conservatives who believe the Constitution should be interpreted how it was written and liberal/progressives view it in light of what they feel it should be today.  In other words, conservatives approach the Constitution with a magnifying glass while liberal/progressives approach it with an eraser and pencil.

I happen to believe that elections have consequences and that for the most part the president should be allowed to nominate who he chooses to fill a Supreme Court vacancy and have them approved.  However, as Democrats like to point out when a Republican sits in the White House, the Senate has a Constitutional role to give advice and consent on such nominees, not just rubber stamp them, which is true enough.  Unfortunately, today the advice and consent process is almost a sham, because the nominees have learned how to keep their mouths shut and defer from answering all but the blandest questions under the cover that it may come up before them in a case on the court.  We can thank Ted Kennedy for this as he turned the advice and consent role into an opportunity to smear a nominee, Judge Robert Bork, in the most vile and mendacious way to pander to the base of the Democratic Party.  Since then, it’s been lights out on any serious probing of the thought process of nominees to our highest court.

But what about Elena Kagan?  After the Senate Judiciary panel approved her nomination along nearly party lines (Lindsey Graham – R voted in favor) most Americans (87%) believe she will be confirmed, according to Rasmussen.  However, in the same poll Americans oppose her nomination 42% to 36%.  Is she qualified to a lifetime appointment to the Supreme Court?

One of the arguments against her is that she has never been a judge before.  That is true, but it is also true for about one-third of past Supreme Court justices.  However, among those past Supreme Court justices who were not judges, they had on average 20 years experience in the private practice of law.  Ms. Kagan has two years experience in private practice, two years.  The rest of her experience in academia or government service. 

Before her current position of Solicitor General, she had never argued a case at a trial.  She has no judicial experience, next to no private practice experience, and thanks to Ted Kennedy, she revealed as little as possible about her judicial philosophy to get confirmed.  Her key strength, according to Barack Obama, is her ability to build consensus.  I’ll give you a translation of what that really means.  Her job will be to vote with the liberal bloc of the Supreme Court and use her persuasive powers on Anthony Kennedy to peel him off and generate as many 5-4 wins as possible.  President Obama does little without a purpose and his purpose is to pull the Supreme Court in the same direction as the laws he has jammed through against the will of the American people.

Despite the approval of the Judiciary committee, an effort must be mounted to reject or filibuster her approval.  How can we accept someone with so little in the way of qualifications to a lifetime appointment?  We know next to nothing about her judicial philosophy.  There are no cases on which she has written opinions that can be examined.  With regard to what she has written in the government service she simply says I was acting as an advocate for my client, and those are not necessarily my views.  Who could argue with that?  So what are her views?  We don’t know and like Nancy Pelosi claimed with the health care monstrosity, “we’ll just have to pass it to find out what’s in it.”  With a lifetime appointment, you can’t take it back later if you disagree with her eventual positions.  The track record of the “Trust me” presidency is downright frightening.

With all due respect to Elena Kagan, I don’t see how we can idly sit by and silently accept another Obama abomination of ramming through his agenda without regard for the people who elected him.  He is essentially asking us to grant a lifetime appointment that could profoundly affect our liberties, to someone who is a blank slate that we know little about. He should withdraw the nominee and submit another candidate.

His election was a major milestone in the history of the United States.  Leaving aside his political philosophy which a number of us opposed and more are seeing that philosophy more clearly now, electing the first African American to the presidency with 53% of the popular vote no less, truly shows how far our nation has come from the dark days of slavery.

Having achieved this milestone has proved a two edged sword to the progressives and statists.  By celebrating the election of Barack Obama it also signaled the defusing of the most potent weapon in their arsenal, the race card.  How can you routinely call America a racist country when we just elected an African American President of the United States?  By winning with 53% of the popular vote, more than Bill Clinton in two elections and more than Jimmy Carter, it was clear that the black vote alone could not have elected him.  It required him winning over many white voters as well.  How do you continue to justify Affirmative Action when an African American was chosen by his fellow citizens to the most powerful position on earth?  But the progressives and the statists continue to pull the trigger on this dud, particularly where the Tea Party movement is involved, without proof and without shame.

 A New Dark Chapter?

Ironically, it is the Obama administration that is practicing a new kind of racism that the mainstream media is conspiring with them to hide.

During the 2008 election, several members of the Black Panthers dressed in paramilitary uniforms and brandishing a nightstick, stood outside of a polling place in Philadelphia intimidating voters by their physical presence and through verbal taunts.  The Black Panthers were caught on video tape and as this was a clear violation of the Voting Rights act, charges were filed against them.  J. Christian Adams, one of the attorneys at the Department of Justice handling the case called it the “easiest case I’ve ever had.”  The facts were clear, the video tape provided irrefutable evidence and the defendants didn’t show up in court to dispute the charges.  Because they didn’t show up, the judge issued a default judgment, meaning the Justice Department won the case and only the punishment remained.  That is, until the new leadership of the Justice Department weighed in.

 This case was originally filed in the last days of the Bush administration.  So with the victory in hand, the Justice attorneys handling the case were told to dismiss the charges and drop the case.  The reason given was that the “facts and the law don’t support the case.”  It was further ordered that these kinds of cases were “not going to happen out of the Civil Rights Division” of the DOJ.  In other words, where the plaintiff was white and the defendant was black, the Civil Rights Division of the Department would not pursue the case.  If a regional United States Attorney brought a case, the DOJ would permit it to go forward, but not from within the Civil Rights division.

The individuals who delivered this order were Loretta King and Steve Rosenbaum, political appointees.  Adams went further to say that Assistant Attorney General Thomas Perez of lying under oath to a federal commission about the circumstances surrounding the decision to drop the probe.   The Justice Department denied Adams allegation:

 “It is not uncommon for attorneys within the department to have good faith disagreements about the appropriate course of action in a particular case, although it is regrettable when a former department attorney distorts the facts and makes baseless allegations to promote his or her agenda,” she said in a written statement.

Mere partisan politics?  Sour grapes?  You might think that until you hear from Bartle Bull, a lifelong Democrat and Civil Rights attorney who was an eye witness to the incident.  Here is an interview with Mr. Bull and Megyn Kelly of Fox News.  It is nothing less than stunning.  Interview.   He describes how one of the Black Panthers said to him and a person with him, “Now you will see what it’s like to be ruled by the black man, cracker.”

The first African American president has people in his administration who will not enforce the Voting Rights Act if the person whose rights are being violated is white.  I need not point out that if  the Ku Klux Klan was standing in front of the polling place and the Justice Department dropped the case against them what the outrage would be.  But with the mainstream media merely the propaganda arm of the administration, this news is only being carried by Fox News and on the Internet.

President Obama and Attorney General Holder must answer to this outrage.  They have to tell the American people why they refuse to carry out their sworn duty and enforce the law, particularly when the case was already won and they demanded that the charges be dropped and that no new cases would originate from the Civil Rights Division of the Department of Justice.  A great moment in American history will have a stain upon it unless President Obama immediately reverses course.

Over the past eleven months, have you ever gotten a feeling that you are watching a magician, rather than a president run our country?  As any practitioner of the art of the illusionist will tell you, one of the key things is to keep the audience distracted.  Have them watch the left hand, while the right is slipping the coin into the pocket.  The Obama Administration is about to unleash their greatest trick yet, trying Khalid Sheik Mohammed in civil court in New York for the 9/11 attack on America.  Why?

The Greatest Show On Earth

The trial will become an absolute three ring circus, with all the world watching closely.  The liberal pundits say, “this is our chance to show the world our justice system.  We can demonstrate how civilized we are, and show the Muslim world how fair we are.”  Really?

Remember to the footage in the Muslim world immediately following the collapse of the World Trade Center towers.  They were dancing in the street, laughing and singing, shouting praise to Allah.  What do you think the reaction will be if Khalid Sheik Mohammed, jumps up in court and screams out, “Kill the infidels! This is a fraud meant to disguise these devil’s tricks!”  Do we let him ramble with a global audience?  Do we have the bailiffs wrestle him to the ground?  Do we put him in restraints for the rest of the trial?  Who exactly is going to show the world what?

We Have No Secrets

In a civilian trial there is a process called discovery, where the defense is told everything the prosecution plans on bringing to court, including witnesses, so that the defense has a chance to prepare their rebuttal case.  How much of the CIA’s methods and contacts are we prepared to reveal to the world and to Khalid Sheik Mohammed’s allies?  Or, how much are we not going to use in order to protect that information and at the same time increase the chances that he will be acquitted?

Can Anybody Say O.J.?

Do you remember the O.J. Simpson trial?  A slam-dunk if ever there was one.  There was blood evidence, DNA evidence, means, motive, opportunity, it couldn’t get any easier.  But what happened?  Judge Lance Ito, lost control of his court room in the klieg lights of national television.  One of O.J.’s attorneys or advisors told O.J. to stop taking his arthritis medication  so his hands would swell and then the famous glove trick, abra cadabra, “If the glove doesn’t fit, you must acquit.”  What happened after that trial?  Dancing in the streets of the black community.

The Jury Pool

Are Muslims going to be excluded from the jury pool?  If so, on what grounds and would a judge allow it?  In the O.J. case we had what was called jury nullification, where a jury handed up a verdict not based on the evidence presented, but based on a social determination.  O.J. was a symbol for all black men put on trial and all past injustices.  He was a sports hero to millions and he wasn’t going down, no matter what.  What if a someone with strong beliefs sees disrupting the outcome of the trial as the new jihad?  Don’t use suicide bombers in New York, that’s so Middle East, let’s kill them softly by getting Khalid Sheik Mohammed acquitted or a give them a hung jury.  What better way to humiliate the Great Satan.  It will be like David and Goliath all over again.

The Real Trial

Or is it really the Bush Administration that Obama wants to put on trial?  The Obama administration’s popularity is sinking link a stone.  The stimulus package was a bust.  Cap and Trade is a disaster.  Health care a debacle.  Tea Party’s are breaking out all over.  The Democrats got trounced in Virginia and New Jersey, and even New York’s 23rd is still alive as recounts have dramatically closed the gap. A show trial of the Bush Administration is just what the Obama Administration needs to keep the focus off what they are really doing.

This is a tragedy and a travesty and there should be no end to the shame heaped upon this administration if they follow through on this.

Movin' Out

One of the great blessings bestowed upon us by our Founding Fathers was federalism. Our federal form of government evolved from the Articles of Confederation, where states had primacy and the national government acted only with the consent of the states.  This proved to be too cumbersome.

In writing the Constitution, the Founders identified very specific roles and responsibilities for the national government and left everything else to the states or the people (see Tenth Amendment).  In doing so it gave the people the power of liberty through mobility.  If you didn’t like the way they did things in Massachusetts, you could move to Virginia.  If the people of Pennsylvania didn’t want a mass migration of people to Georgia, they needed to be careful regarding the laws that they passed so as not to alienate a large block of their constituents.

The War on Federalism

The statist, who loves government and believes government should control every aspect of our lives, hates federalism, because it weakens its control.  So they attack it through the courts.

Here is their standard battle plan.  Let’s the case of Gay Marriage.  Vermont’s legislature approves Gay Marriage.  Whether you are in favor of that or oppose that it shouldn’t affect you if you don’t live in Vermont.  If you are in favor and you live elsewhere, you can move to Vermont.  If you live there and are opposed you can either fight to overturn it in Vermont, or move elsewhere.  That’s the beauty of federalism.  If continued to its logical conclusion, some states would approve it and those in favor would migrate there, and those who are opposed would concentrate in states that would ensure that it would not be adopted in their state.  You could have a raging debate, but your liberty would be preserved through mobility.

However, the statists have a different view of things.  After the law is passed in Vermont by the legislature (as is proper), or made up out of thin air by the court in Massachusetts (judicial activism and improper), some couples who are married in these states move to another state.  By doing so, they should leave their state sanctioned rights behind.  However, what they will typically do when their Vermont sanctioned rights are not honored in, say, Tennessee they will rush to federal court and says their Constitutional rights are being violated.  A court stocked with judicial activists, will find some fig leaf of justification with words like emanations and penumbras, to make a new law of the land and with the stroke of a pen, the liberties of all Americans will be swept away based on the will of the people of Vermont.  You no longer can protect your liberty through mobility.  You cannot go anywhere to live in proximity to like minded people and live the life you believe in.  Mobility is no longer a tool to protect your liberty it is a weapon against you.  People can secure rights elsewhere and use mobility to come to your doorstep and use the courts to force their beliefs on you.

Fierce Fighting

I believe that is why the fighting over these issues become so fierce and acrimonious.  If something is allowed anywhere, it will soon be allowed everywhere, because of an activist judiciary.  Our rhetoric has become more strident, our politics is anything but bipartisan, all because everything is being elevated to the federal level.  States are becoming less and less important.  If you don’t believe it  ask people, who was responsible for the fiasco after hurricane Katrina?  If they say President Bush, ask them to name the mayor of New Orleans or the governor of Louisiana at the time. Bush and the federal government should have been the third line of defense, not the first.  The first should have been the city, then the state and then the federal government.

Back to Federalism

Show me where in the constitution it says the government should own General Motors and Chrysler.  Show me where it says that a tunnel, entirely in the city of Boston should be paid for by the taxpayers of Arizona.  Show me where in the constitution it says education is the responsibility not of local government but the federal government.  It doesn’t.  And until well roll back this juggernaut, our liberties will be crushed little by little, day by day.

This is why it is also important to guard against activist judges getting on the bench or being elevated to higher levels of the court. It is just these activist judges who are taking away your liberty to move away from those who don’t believe what you do and moving toward those you do agree with.  Take note of the nomination of Judge Sotomayor to the Supreme Court.

Republicans: Don't Fall Into This Trap

Republicans lose elections when they act counter to what people expect of them.  When President Clinton was undergoing impeachment, too many Republicans focused on what happened in the Oval office, leading Democrats to tut tut, “Republicans are just a bunch of prudes.”  In France, where taking a mistress and siring a brood is a way of life, were baffled at the commotion over here.  The argument should have focused on women’s rights and how Clinton, by his lying, was denying Paula Jones her day in court on a legitimate claim of sexual harassment.  If that was the gravamen of the discussion, the Republicans would have one on either the impeachment claim or by discrediting the left wing of the women’s movement by starkly painting them as choosing abortion as the sine qua non of their existence, rather than supporting the rights of a solitary woman against a powerful man.  Alas, the Democrats successfully dragged the fight into the mud, smearing everyone in the process.  When it was all done, you couldn’t tell a muddy Clinton, from a spattered Ken Starr, from a slime covered Republican Congressman.

Take the High Road

Today there was a news release from the Republican National Committee trying to make hay out of President Obama taking his wife to a Broadway play on the eve of GM filing bankruptcy, the state of the economy, etc., etc.  PLEASE!  Let the man take his wife to a play.  Barack Obama will have the Secret Service following him for the rest of his life.  It costs money to protect him.  What do we expect our President to do, stay home and bowl for the rest of his term?  The man still has very high approval ratings.  Trying to make these kinds of points is counterproductive and will probably raise his numbers and the Republicans negative numbers at the same time.  Instead of asking why he was doing that, ask him how he liked the play.

With the confirmation hearings approaching for Judge Sonia Sotomayor, the Republicans have to be on guard for the same things.  Get off the “she’s a racist” bandwagon.  You’re playing right into the Democrats hands.  They are the party of class warfare and nothing would please them more than ad hominem attacks on a Puerto Rican woman.

Treat it just like any job interview.  Is she qualified to do the job? Don’t bring up any questions about race, sex, age, disabilities, or anything else you couldn’t ask on a job interview.  Instead of saying she is a racist for saying a Latina woman would arrive at better decisions than a white man, ask her to explain her thinking behind the statement and then follow it up with a line of questions about judicial activism.  On the Ricci case, ask her what would be the remedy that would pass muster in her court.  How many blacks would have to pass the test to allow the promotions to go through?  How many Hispanics? How many Asians?  Ask her if a white male wanted to sue the National Basketball Association because whites are disproportionally represented in the NBA, what would she rule?

Set the Table

Judge Sotomayor probably has the votes to make it to the Supreme Court.  At the same time most Americans are opposed to judicial activism.  If the Republicans stay on message and take this as an opportunity to point to another instance of this Administration taking away more and more of our liberties, they can head to the production studios and start making the commercials for 2010.  If they accept the left’s invitation to step into the mud pit, then when it is all over all anyone will see is the mud dripping from every participant.  Just say no.  No ad hominem attacks.  No inflated claims on small points.  Just a steady, consistent focus on whether on not Judge Sotomayor is an activist judge.  Here is the speech that we should hear from any Republican senator when the nomination comes up for a vote:

“Judge Sotomayor has a great American story.  It is a story that all Americans should admire.  She seems like a truly warm and caring individual, which are qualities than anyone should embrace.  However, in her judicial philosophy she doesn’t seem to be able to separate her personal feelings from the law.  Her passion would make her a wonderful legislator, but a judge does not make the rules.  Like an umpire in a baseball game, the judge calls balls and strikes, safe and out.  The umpire doesn’t directly influence the outcome for one team or the other, neither the underdog nor the favorite.  Justice should be blind.  Judge Sotomayor doesn’t believe that.  Therefore, regretfully, I will be voting against her.”

The Constitution in the Hands of Activist Judges

President Barack Obama has made his first nomination to the Supreme Court, Sonia Sotomayor.  She has a great American personal story, not quite as great as Clarence Thomas, but a great one nonetheless.  Here is what Barack Obama said about Clarence Thomas and Justice Scalia.

“I would not have nominated Clarence Thomas,” said the presumptive Democratic nominee. “I don’t think that he…” the crowd interrupted with applause. “I don’t think that he was a strong enough jurist or legal thinker at the time for that elevation. Setting aside the fact that I profoundly disagree with his interpretations of a lot of the constitution. I would not have nominated Justice Scalia though I don’t think there is any doubt about his intellectual brilliance. Because he and I just disagree. — Barack Obama with Rick Warren

Much of the ballyhoo over Judge Sotomayor has been about her background.  No one, I repeat, no one has a more compelling story than Clarence Thomas, but when he was up for nomination, the ad hominem attacks were disgraceful.  Barack Obama doesn’t think Clarence Thomas is a strong enough jurist?  You may disagree with Clarence Thomas’ beliefs but remember the context of the question from Rick Warren.  Warren asked who on the Supreme Court Obama would not have nominated and out of the nine justices, he picked Thomas.  So Obama thinks Souter has a greater legal mind than Thomas? Or was Obama trying to score a twofer?  He can bash a conservative to score points on the left, while showing he is not a knee jerk Affirmative Action type by singling out the black guy, so he can score points with independents.  Let’s be clear, Obama rarely makes a public statement that is not calculated for effect.

President Obama is now trying to get his first nominee confirmed and to do so is pointing to the tradition that President’s should generally get who they want, unless there is a serious problem with the nominee.  However, while in the Senate, he had a different view as shown during the confirmation of Samual Alito.  Obama voted to filibuster that nomination.

“As we all know, there’s been a lot of discussion in the country about how the Senate should approach this confirmation process. There are some who believe that the President, having won the election, should have the complete authority to appoint his nominee, and the Senate should only examine whether or not the Justice is intellectually capable and an all-around nice guy. That once you get beyond intellect and personal character, there should be no further question whether the judge should be confirmed.

I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge’s philosophy, ideology, and record.” — Barack Obama speech on why he was voting against Samual Alito.

With the nomination of John Roberts, Senator Obama clearly stakes out a position favoring judicial activism.  He said that in 95% of the cases following the Constitution is fine.  The other 5% of the time judges should feel free to re-write the constitution.

“The problem I face — a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts — is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”  — Barack Obama’s speech on why he was voting against John Roberts

Okay, so show me where Ruth Bader Ginsburg has voted with Antonin Scalia 95% of the time.  If you take what Obama says at face value, if they followed the Constitution 95% of the time, Ginsburg and Scalia would vote the same way.  Since Scalia plainly says his philosophy follows “original intent”, that is, adhering to the Constitution as written, Obama must be admitting that Ruth Bader Ginsburg is a judicial activist since she rarely agrees with Scalia.

“A lot has been made about the Supreme Court and my criteria,” Obama said in a 20-minute speech to 250 of the night’s biggest donors. “I want people who have a common touch, who have a sense of what it’s like to struggle.”

He praised Sotomayor because she knows that “every once in a while, people need a hand up.” — Barack Obama speaking on why Sonia Sotomayor should be nominated to the Supreme Court

In this statement about Sotomayor, he confirms what he really believes that personal prejudices, and by that I mean “pre-judging”, are an essential element for a judge.  He believes the Constitution plays a role, but where the outcome is not pleasant, by all means re-write the Constitution to give you the outcome you want.  But once again Obama flip-flops:

“There are, of course, some in Washington who are attempting to draw old battle lines and playing the usual political games, pulling a few comments out of context to paint a distorted picture of Judge Sotomayor’s record. But I am confident that these efforts will fail; because Judge Sotomayor’s seventeen-year record on the bench – hundreds of judicial decisions that every American can read for him or herself – speak far louder than any attack; her record makes clear that she is fair, unbiased, and dedicated to the rule of law.” — Barack Obama’s weekly radio address.

First, I want to point to the Obama straw man, “some in Washington,” without naming who those some are.  So, here he says she is “fair, unbiased, and dedicated to the rule of law.”  Well, which one is it?  Biased, to swing those 5% of the cases that need a better outcome, or dedicated to the rule of law.

Teaching Moment

Judge Sotomayor’s nomination will probably be confirmed.  What conservatives must do is refrain from the name calling, any ad hominem attacks, and focus on whether or not she is a judicial activist or not.  The questioning should be respectful but unwavering.  Most Americans are opposed to activist judges.  The American people should be clearly informed that Justice Sotomayor is just that.  But if the long knives come out to damage her, that message will be lost, as will a valuable issue to use in the next election.  When adhering to conservative principles 60% of the American people are with us.  When we put up wishy washy candidates to appeal to groups, the Democratic playbook, we get slaughtered every time.

Wobbly Republicans

The drumbeat is starting.  The Democrats are gleefully opening their playbook to the right page and holding it open for the weak kneed Republicans to see.  “If you vote against Judge Sotomayor, the Hispanic vote will go against you and make you pay.”

Ah, the politics of class warfare.  Republicans fall for it almost every time.  That’s why we got John McCain as our nominee.  The news analysis will point out how fewer Hispanics voted for McCain than for Bush, with Bush getting 40% and McCain only 31%.  Maybe it was because McCain was a weak candidate?  Bush put forward Miguel Estrada for the Supreme Court, he appointed Alberto Gonzales as the first Hispanic Attorney General, McCain and Bush were both for open borders.  Boy, did that pay off!

Bush appoints Colin Powell as the first black Secretary of State, followed by Condoleezza Rice as the first black woman Secretary of State.  So how did the black vote turn out for Bush?

So let’s get over copying the Democratic practice of appealing to groups and get back to our conservative principles of appealing to individuals.  Don’t worry about the black vote, the Hispanic vote, the gay vote, the union vote, the Catholic vote.  Worry about doing the right thing for all Americans.  The Democrats want us to worry about all these blocs so that they can get us to meekly wave through their nominees.  But when the tables are turned (e.g., Clarence Thomas, Michael Steele, Miguel Estrada, et. al.) they will be vicious, slanderous, mean and ugly.  They don’t give a damn about offending the black or Hispanic vote because they think they own them.  And when we put up candidates that are a weak imitation of the Democratic candidate, they do.

We need to stand for Life, Liberty and the Pursuit of Happiness and not back down from that.  The votes will follow.

Sonia Sotomayor’s story is a great American story.  Like Barack Obama hers is a story of overcoming adversity to live the American Dream.  For that we should admire her and applaud her.  However, her nomination to the United States Supreme Court is a poor choice.

Her personal story, her life experiences, her empathy, would all be excellent qualities as a Congresswoman representing the interests of her district and giving a strong voice to those she represents.  But the Supreme Court and all courts for that matter are based on two principles:  Blind justice and the original intent of the United States Constitution.

Blind Justice

We’ve all seen the famous statue of Lady Justice.  She holds scales in one hand and a sword in the other.  More importantly she is blindfolded.  The reason for the blindfold is so that she does not take into account what she sees, that is, she ignores race, sex, social status, height, weight, etc.  In other words she applies justice equally without regard to any personal factors.  Judge Sotomayor has said:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,”

How does that work?  If a white male candidate had made a statement like this his nomination would not only go down in flames, he would probably be removed from the bench on which he was currently sitting.  Are there different laws for Latina women?  Are the laws applied differently based on your race or your upbringing?  If she makes that statement as a Congressional candidate representing a Hispanic district running against a white male opponent, that statement is fine, but as a judge, no.

Original Intent

There is an ongoing debate about the Constitution in this country with conservatives standing behind the original intent of the document and liberals saying that the Constitution is living, breathing and should evolve.  If you believe the latter point of view, we have no constitution. It is whatever a judge today says it is.  Tomorrow?  Who knows, it may take another breath.

Judge Satomayor says that policy is made on the Court of Appeals. (Video -  Policy is Made on Court of Appeals.) Laws are made in the legislative branch, which is Congress at the Federal level.  Policy is typically made in the Executive Branch in enforcing the laws.  The courts function is to interpret the laws written by the legislature, not to make new laws to their liking.  Such a statement by Judge Sotomayor is dangerous.  She is openly saying that she believes that the courts should usurp the function of Congress and other legislatures and has no problem with that.  Think about it.  A Supreme Court Justice is a lifetime appointment with no recourse to the people.  If we are going to have judges make our laws, let’s shut down the Congress.  I can guarantee you that no judge is going to write a 900 page opinion that no one will read.  It is the same effect.  It is also the same as taking away the right to vote, because once appointed, judges who make laws are not accountable to anyone.

Withdraw Your Name and Run for Congress

If you want to make laws, run for Congress.  I may disagree with your positions, but your qualifications for the legislature are excellent.  But judges must apply the law according to the Constitution.

In 1962 Rachel Carson wrote a book called Silent Spring, about which some have credited the beginning of the environmental movement.  It also led to the subsequent ban of DDT in 1972.  DDT was accused of causing cancer and in damaging wildlife, particularly birds by causing eggshells to thin.

Prior to this DDT was believed to be a miracle, and the scientist who discovered it, Dr. Paul Muller, was awarded the Nobel Prize in 1948.  During WWII, GIs would cover themselves liberally with the substance before heading into the jungles for protection against malaria.  It is also believed that its use eradicated malaria in the U.S. and other developed countries.

Flawed Science

A 1969 study found a higher incidence of tumors in mice that were fed DDT.  Let’s think about that.  A single study found an increase in cancer in mice fed DDT.  However over 20 years of widespread use among humans did not show any increase in the cancer rate among those populations that used them.  Upon closer examination of the study they found that both the subject and control groups had increased levels of tumors. Oops.  It appears that both groups were fed moldy food that contained a carcinogen.  When the test was repeated, neither group had any tumors.

The studies of birds whose eggshells were thin, were also given closer scrutiny.  It was determined that the cause was due to a calcium deficiency, not DDT.  Actually during the period of greatest DDT use in the U.S. many of the bird species under study grew in numbers rather than fell.

Don’t Let Science Stand in the Way of Politics

In 1971, authority for pesticides was transferred from the Department of Agriculture to the newly formed Environmental Protection Agency.  What better way to kick off a new government bureaucracy than some bold action:

“In April 1972, after seven months of testimony, Judge Edmund Sweeney stated that ‘DDT is not a carcinogenic hazard to man. . . . The uses of DDT under the regulations involved here do not have a deleterious effect on freshwater fish, estuarine organisms, wild birds, or other wildlife. . . . The evidence in this proceeding supports the conclusion that there is a present need for the essential uses of DDT.’” — Sweeney EM. EPA Hearing Examiner’s recommendations and findings concerning DDT hearings. 25 April 1972 (40 CFR 164.32)

However, two months later, the new head of the EPA, William Ruckleshaus, instituted the ban on DDT.  This was done without him attending a single hearing on the matter as it was discussed over a seven month period or reading the transcripts.

The Tragic Results

In Ceylon, modern day Sri Lanka, widespread use of DDT cut the number of malaria cases from 2.8 million in 1948 to 17, that’s right, seventeen in 1963.  Spraying was stopped in 1964 and by 1969 the number of cases had risen again to 2.5 million.

It is estimated that in the last ten years alone the number of deaths worldwide from malaria is over 27 million.

There is an aggressive program today to raise money to buy bed nets to protect children in Africa and other parts of the world where malaria is still rampant.  Billions of dollars are estimated to be needed to buy and deliver these nets.  One of the positive factors about DDT was that it was inexpensive, around seventeen cents per pound.

If only had cooler heads prevailed, and the “science” looked at with a reasonable dose of skepticism, tens of millions of lives would have been saved and malaria, perhaps eradicated.  But when some in the environmental movement latch onto a position it soon moves into the realm of settled or consensus science.

The Next Blunder

So before we drive the world over the next environmental cliff, perhaps it’s time to tune out Al Gore, take a cleansing breath, and take a closer look at the science with clear eyes.  What the global warming, er, global climate change crowd is proposing would cost in the trillions. Let’s ask if what some scientists are saying that global temperature peaked about ten years ago, why is the earth cooling if we continue to pour more and more carbon dioxide into the atmosphere?  Why are we calling carbon dioxide, which is essential to life…we exhale it, trees take it in and give off oxygen…a pollutant?  What if we eradicate the pollutant, carbon dioxide like we did DDT?

Will there be anyone around to count the damage?

The scene was rather startling, an elderly woman holding a cross in her hand peacefully demonstrating for Proposition 8 in Palm Springs, California and some miscreant viciously slaps it out of her hand.

At another venue in the Castro district of San Francisco a group of evangelicals were peacefully gathered on the street praying and making themselves available to anyone who wanted speak to him.  One young lady’s bible was stolen and when she asked that it be returned, her request was met with kicking and punching. Nice. So much for the city of tolerance.

So what we are hearing now, which is a formula we have seen before, is if you lose at the ballot box pick up your marbles and head off to find a activist judge who will discover within an evolved Constitution, the fundamental right that everyone missed for the last two hundred plus years and declare the will of the people null and void.

What’s This Really All About?

Here is the actual text of Proposition 8 (leaving out the legalese regarding where it fits in the California Constitution to just get to the meat of it):

SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.

That’s it.  If you landed here from another planet you would probably wonder what’s going on?  If you are a foreign visitor and see this on the news you would probably think we had lost our minds.  Who would propose a constitutional amendment to define what any idiot knows to be true?  What should we look for next?  A constitutional amendment that defines the world as round?  The sky blue?  The grass green?

But this is not about rights. It is not about tolerance. It is not about fairness.  It is about mainstreaming.  It is about a definition. It starts by tearing down a definition that has existed for several millennia, the definition of marriage.

Once that definition is altered, then terms like husband and wife lose their meaning.  After all, if you are talking about the marriage of Jim and Joe, who is the wife?  If you are talking about the marriage of Jane and Mary, who is the husband?  If husband and wife lose their meaning, then what will soon follow is that it will become politically incorrect to use those terms at all.  Any instance of husband and wife will have to be stricken first from any public documents then eventually from all documents.  In the end we will all just be spouses or significant others or some other bland descriptor.

The reason, in my humble opinion, why the battle lines have been so starkly drawn and the fighting is getting so fierce and will continue to do so, is because this is not about adding to the rights of gays.  It is about taking away how the majority of Americans define themselves.  They just don’t see it as an equivalency.

If you took three islands and put all the heterosexuals on one island, all the gay men on another and all the gay women on the third and came back in 100 years, only one of those three islands would be populated.  So how does A=B=C?

What Was the Point of Marriage in the First Place?

Marriage and the laws that eventually gave it protection and encouraged it were for the purpose of bringing children into the world.  A man and a woman would come together, make a commitment to be bound to each other, to be responsible for each other and in that family unit bring children into the world and provide for their protection, care, and upbringing.  It was survival, not only for that family, but for the community as a whole.

Are there exceptions to the rule?  Yes.  There are couples who for biological or other reasons cannot have children and there are couples who do not want children.  For the former group adoption has been an alternative.  In the case of homosexuals, the rule is the exception.  They cannot have children without adoption or by involving a third party.  So again, how is that the equivalent of marriage?

It’s Not About Rights

Prior to 1920, women were not allowed to vote.  But with courageous leaders like Susan B. Anthony they fought for those rights and won them through the legislative process and by amendment to the Constitution.  They didn’t seek out an activist judge to redefine the term “male” to mean both men and women.

In the 1947 movie, “Gentleman’s Agreement,” the character portrayed by Gregory Peck poses as a Jew to write about the discrimination against Jews in America.  What was the solution?  Did Jews find an activist judge who would redefine them as Episcopalians?  Can you imagine them making that case?

“So, Mr. Levine,” the judge asked, “you want to become an Episcopalian?  Then why don’t you just become one?  Why are you here?”

“No, your honor, I’m perfectly happy being a Jew. I don’t want to become an Episcopalian; I just want to be called an Episcopalian.”

“Let me get this straight.  You want to continue to be a Jew, worship like a Jew and live the life of a Jew, you just want to be called an Episcopalian?”

“Right.”

” Why?”

“Life would be so much easier.”

The battle surrounding Proposition 8 is a similar one, gays don’t want to marry someone of the opposite sex in the traditional definition marriage, they just want to be defined the same way.

What Does Sex Have To Do With It?

I think that most Americans are open to the idea that the rights that gays are seeking, such as the right to share and inherit property, the right to visit a sick partner in the hospital, the right to make decisions on the part of a partner that currently go to the next of kin, should be allowed.  But taking it a step further, why should it be limited to those who have sexual relations?

Let’s take a hypothetical case of Felix and Oscar.  Felix and Oscar are heterosexual men.  They are getting on in years, both in their early eighties.  They fought together in WWII.  Their wives are both deceased.  They are not physically attracted to each other.  However, they both feel that at this stage in their lives they would like to look out for each other like they did on the beaches of Normandy and the Ardennes forest.  They want to buy and share a house together, pooling their resources, and look after each others health, and leave whatever financial assets they have to the surviving partner.  Their families, though distant, have no problem with this arrangement.  Why couldn’t these two gentlemen have the same rights that gays are seeking?  Do gays seek a special class that only includes those who are sexually intimate?  Why shouldn’t Felix and Oscar have the same rights?

Stick to the Rights Issue

If gay advocates stick to the rights issue and be inclusive such that any two people, who want to be legally bound and committed, can have the right to share, look after, and care for each other, these rights that gays are seeking would probably be granted quickly.  But if the objective is to tear down something that has existed for several thousand years in order to forcefully mainstream a way of life, then they had better be ready for a battle.  Time and again gays are asking straights to be understanding, to be fair and to be compassionate.  Perhaps it’s time to turn the tables where gays should be understanding, fair and considerate and leave marriage well enough alone.

Most fair minded Americans will support individual rights and oppose discrimination.  But if their way of life, which is not discriminatory, comes under attack you can expect them to battle back.  Marriage is not discriminatory.  It is a loving bound between a husband and a wife.