The Trojan Horse – Comments II

I have received another comment to my post: "The Trojan Horse - Comments." It came from Leonard Levenson Esq. of Manhattan, whose relatively long dissertation can be found in full here

I am reproducing his arguments in quotations with my responses below.

Levenson’s response is exactly what I have been railing against. It represents a closing of one’s eyes to facts that contradict one’s preconceived notions, which are planted by our “wonderful media and their pundits,” who have even less interest in facts or even logic.

I set forth in my earlier posts, a huge number of major accomplishments by the President and his Administration, some of which Levenson may been have been aware of, and many of which he may have forgotten or never knew. But instead of saying thank you for reminding me, I get “they are minor.”

I was an early and enthusiastic supporter of Obama but like eroding drops of water on granite, his record is eroding my enthusiasm for him. I do not doubt the sincerity of his social views but he has been ineffective in implementing the important changes that concern me.

I have been trying to understand the irrational hatred of our President by those who should be hailing his great accomplishments. I can only come up with one theory that makes any sense. I conclude that in the great enthusiasm that the candidacy of Barack Obama engendered, caused a delinking from reality. As I wrote in my sardonic post of November 2009 entitled Obama Walks on Water," the public has discovered that Obama does not “Walk on Water” and has “no magic wand.” Apparently neither the punditry, nor the “liberal public” has even now been able to come to terms with the fact that the President has no magic wand. They are angry because they feel that he has refused to wave it.

You mention many of his accomplishments but they were largely minor.

Minor? Only someone determined to belittle the President could call the enumerated accomplishments minor.

Universal Health Insurance, which Presidents of both parties have been trying to enact since Truman, and which Clinton spectacularly failed to accomplish is minor? If the Supreme Court Strikes it down, will it show that Obama isn’t strong enough?

Getting rid of "Don't Ask, Don't Tell," was a minor accomplishment? It sure was important when it was not yet accomplished!

The stimulus package, which together with the rescue of Chrysler and GM, which probably saved a million jobs, and the bank rescue package, without question, saved this country from a ’29 depression. That is minor? Yes, it should have been bigger, and it should have had fewer tax cuts and more spending in it. But does anybody really think that such a package could have attracted the votes of the two Senators from Maine, without whose votes nothing would have passed.

Schip legislation giving health coverage to millions of children is minor? Tell that to the parents of those children!

What kind of economy would we have if our unemployed did not have unemployment insurance extended again and again? How much worse would it be both for them and the economy?

The Lilly Ledbetter Fair Pay Act wasn’t important? Tell that to the millions of women who now have the ability to fight back against pay discrimination.

Or the new fuel standards, which is the first time in decades that they have been raised and which will be a major factor in reducing our dependence on foreign oil, in reducing the cost of gas for hard working Americans, and last but least, play an important part in slowing global warming.

Eliminated expensive co pays for birth control, which will for the first time make pre-natal services available for poor women. Minor? Tell that to Planned Parenthood, who hailed it as a major achievement. Tell it to the millions of women who will for the first time have access to such services.

I could go on and on. But, only someone anxious to belittle our President, and join the Tea party in doing so, could call these achievements minor.

But I really can’t blame Levenson, or others who have begun to speak like him, for the so-called liberal punditry, rules the day, though I hope they will rue it one day. But the punditry is so anxious to besmirch Obama that they even have begun to lie like Republicans, and to stay on message in the best style of Karl Rove.

You mention a 9.3% unemployment rate but neglect to mention those who have stopped looking for work and those who are limited to marginal part time work. When these are counted the unemployment rate increases to 17%.

Yes, that is true, but it is still valid for comparison purposes, for the ’29 depression with an unemployment rate of 37% or 38% also didn’t take into account these other casualties, nor did Reagan’s (who Levenson voted for) unemployment rate of 10.3% take these others into account. But whatever the figures are, unless you buy the Romney argument that Obama inherited a bad economy and made it longer and worse, these figures should be used against the Republicans, not against our President. Or does Levenson disagree? (See: Discussion of stimulus package above.)

You mention the Kagan and Sotomayor nominations, but hundreds of District Court and Appellate courts seats remain unfilled. Admittedly, the Republicans are obstructing votes on many Obama nominations but a Clinton, with a majority in the Senate would have pushed them through.

The fact is, he didn’t push them through. From American Progress: “At the beginning of 1998… Senate conservatives were systematically blocking President Bill Clinton's judicial nominees, William Rehnquist, warn(ed) ‘vacancies cannot remain at such high levels indefinitely without eroding the quality of justice.’"

You forget to mention his EPA failure to enforce regulation to prevent oil spills in the Gulf of Mexico.

It wasn’t his failure, and it wasn’t his U.S. Bureau of Ocean Energy Management (Not EPA). It was Bush’s. It takes time to change direction of an agency, particularly where the Senate refuses to approve your appointments, leaving the old people in place. In addition it is far from clear that the permit should not have been granted, given the facts that were known (or unknown) at the time the permit was issued.

You also neglect to mention his Justice Departments Civil rights failures.

It is impossible to answer all of these slanders without turning this into a book. Therefore allow me to only address just one, which I will highlight in italics.

For example, it is his Justice department under Eric Holder that has supported positions not much different from those of the Bush administration on Civil rights. He has consistently taken positions before the Supreme Court to limit the rights of individuals who were wrongfully imprisoned under Bush era terrorist statutes. He has pushed for limiting or eliminating their right to sue the US Government for the torture of imprisoned "terrorists' even after a clear showing that they were not terrorists. He has severely limited the Guantanamo prisoners effective right to counsel, the right to apply for Writs of Habeas Corpus in Federal courts, has refused (by folding to right wing pressure) to allow these prisoners to be housed in the US where they have easier access to lawyers and he has supported the continued use of Military Commissions rather than civilian courts.

In December 2010, over his objections, the Congress passed a bill forbidding the military to spend its money to transfer detainees from Guantánamo Bay, Cuba, to the United States, even for trials. It wasn’t Obama; it was a cowardly Congress. But if one wants to slander someone, one always finds a way.

With regard to the economy, he gave up, almost without a fight, any thought of raising taxes in his negotiations with Boehner.

Nothing could be more at variance with the facts. What was his leverage for getting Republicans, not Boehner, to agree to tax increases? Threatening them with defaulting? What? I said not Boehner because Boehner did in fact agree to 1 trillion in tax increases, to balance 3 trillion in cuts, and then couldn’t sell it to his caucus. But what threat was Obama supposed to use? Go to hell, don’t raise the debt ceiling? Well, that might have produced default, but not increased taxes. Did Levenson really think about it, with such glib talk?

The reality (but who cares about that) (And I am also getting tired of defending baseless complaints) is that we will give you more cuts, if you give us additional revenue. But why should Obama have been against cuts. There are many that he, Levenson, and I should have favored. So the next approach is what kind of cuts can we agree on, and one understands that without revenue enhancement it will not be 4 billion, which it really should be. I said that the deficit crisis was a hoax to try to use it to gut entitlements; but the deficit it is nevertheless real and a danger in the long run. So we negotiate for cuts that don’t go into effect during the next two years, we make half of them in the military, and we take entitlements, which really do need addressing, off the table.

What the President got was a fantastic deal, which is why all the Tea Party and all the Presidential candidates have declared against it. Nobody on the Left has given any valid reason to oppose it.

The attempt by the Left, to demagogue this issue by lying, and in the style of Karl Rove “Staying on Message” is disgusting and should be rejected by all who are true liberals. See my post entitled: "The Trojan Horse" where I expose the lies, and write:

…Campaign for America’s Future…

A new undemocratic "Super Committee" is charged with finding $1.5 trillion in savings – from cuts in Social Security, Medicare and other entitlements and/or in increased revenues. If a majority agrees, the proposals will be “fast tracked” to passage in Congress—without our elected representatives able to amend their plans.

But these are boldfaced lies. As CNN Money reports in a piece titled “Debt Ceiling: What the deal will do":

The cuts will be “evenly divided between defense and non-defense spending.

Exempt from this round of cuts, however, will be programs that aid low-income Americans… These include Social Security, Medicaid, veterans' benefits and pensions, food stamps and Supplemental Security Income.

While Medicare would not be exempt, the framework would restrict cuts to no more than 2% of the program's cost. And the cuts that occur would not affect Medicare benefits nor would they increase seniors' costs, …

Half the cuts have to come from defense. What is wrong with that?

Or Progressive Change Campaign Committee:

Congress voted for a deal that will cut trillions from important programs like Head Start, asks nothing of the rich, and makes likely future cuts to Social Security, Medicare, and Medicaid.

But what about facts? Writes the Wall Street Journal:

The deal included enough money for Head Start, the preschool program for low-income children, to keep enrollment from dropping, and for Pell Grants to maintain the current $5,500 annual maximum award to low-income college students. Republicans had wanted to cut Head Start and proposed freezing the Pell program, which would have cut the maximum grant size.

Why do I have to repeat myself? Is it because that which doesn’t fit the narrative is to be ignored and the lies just repeated?

What is the Left up to? What is their agenda? And I call them the Left advisedly, because they do not deserve the appellation of “liberal” which term I claim for the President and myself.

But since this post is getting entirely too long, I ask both my readers and Leonard Levenson for their patience. I will revert to this in my next posting, where I will address the remaining arguments, and discuss other lies and slanders that have crept into the scribblings of the punditocracy.

The Trojan Horse - Comments

I posted my commentary "The Trojan Horse" on August 6, 2011. Those who may want to re-read it can find it by clicking on the title above.

I received a concise comment from Pam Tisza who wrote:

Probably should not reply this morning because I am so disturbed by the loss of 38 of our young people in that foolish war in Afghanistan. Anyway, the polls show that 36 per cent (I think that is correct) of people do not approve of Obama's handling of the debt crisis. I think that is pretty much his liberal base--and Krugman speaks for that base. I am old enough to remember the last bad depression from Mt. Hoover, and I see it all happening over again.

Which prompted a rather long response from me that I want to share with my readers:

The poll figures are 48% disapproval of Obama's handling of the debt crisis and 71% disapproval of the GOPs approach. 48% is hardly the base. It undoubtedly includes those who think that he compromised too little, and those who think he compromised too much, with the vast majority not really having any opinion, except a general feeling that all must be to blame.

What I am trying to accomplish, and I am not sure I am succeeding, even with the relatively small audience that I have, is for people to get the facts before forming opinions. Nobody seems to care about the facts. It is as though all approach the issues of the day with, "I have made up my mind, don't bother me with the facts.”

This is something I have railed about for a long time against the Right, but now I find the Left is no longer interested in the facts either. Obama has been criticized for caving in to avoid a shutdown of the government. I have searched the media - I cannot find any description of what was conceded to avoid the shutdown. Some Right Wing sources have been grumbling that the GOP got nothing, that they caved completely and settled for bookkeeping gimmicks, but nowhere can I find what if anything Obama conceded. But the left criticizes that he gave up too much and nobody even attempts to get the facts, or if they have them they aren't sharing them with the public.

Now in connection with the debt ceiling compromise, I searched the New York Times and the Washington Post pages and found almost nothing on what the details of the compromise were. I finally found a good summary in CNN Money and the Wall Street Journal, but the facts are entirely at variance from what is represented in Krugman's and other "liberal" columns and in the e-mails I got from liberal organizations the facts are completely misrepresented. This is what I was trying to get across in my last blog. I am not sure anyone is hearing me.

All I am urging is Facts First, then opinions based on those facts. Krugman and the others are blatantly misrepresenting the facts. I am not sure whether they speak for the base, or are leading the base, or rather misleading the base.

You say you are old enough to remember the great depression and I see that at 88 you are indeed old enough. I came to the US in 1939, well past the worst of it, but I have read enough about it and seen enough documentaries, that I think I am as familiar with it as anyone. But there is no comparison between that and what we are experiencing now. Now we have an unemployment rate or 9.1%. In 1933 we had an unemployment rate of 37%. It is often said that we didn't get out of the depression until the war got us out of it, but by 1940 the unemployment rate was 13.9%, far worse than we have now, but a hell of an improvement over 37% which is what the Roosevelt Administration inherited. See my commentary on my blog entitled: "Roosevelt and the Great Depression."

What I am trying to get across is that the attacks are not only unfair, but they are based on either a misconception or a deliberate misrepresentation of the facts. What will it accomplish? It can only accomplish one thing, and that is to elect the real villains of the piece. Do we really want a President Bachman, or not much better a President Romney, who will run on a platform that he was a businessman who knows how to create jobs, but the dirty little secret will be that all he ever did was eliminate jobs.

All these Pundits seem to think that the President has the powers of a dictator. That he can sign an executive order that would have eliminated "Don't Ask Don't Tell.” That he could have simply invoked the 14th amendment and kept borrowing. They are not living in the real world. Aside from the fact that the Public (and the Left is not the public) would not have supported such high handed behavior, the chances are that the markets would have questioned this, and quite likely refused to lend, except at much higher interest rates, almost as great a disaster as going into default. The President lives in the real world, one in which no other President in American history has had to deal with. An opposition party that will resort to every tactic never before used. To filibuster everything that they don't like in the Senate, resulting in an unheard of situation where 59 to 41 in favor, defeats any bill, to using the debt ceiling as a weapon, which also has never been done before. Both Roosevelt and Johnson had huge majorities in both houses. Obama has had to work with slim margins. The legislative branch does count.

And almost from day one, the people who should have had his back, like Krugman, instead buried their dagger in it.

Now with all these obstacles has Obama accomplished anything? He has kept an incipient major depression form occurring and so instead of an unemployment rate of 37%, as we did in 1937, we have an unhappy 9.3%. Not good, but thank God.

Despite all the criticism of Obama from both the Right and the Left he has had more major achievements than any President before him since Lyndon Johnson.

We have universal Health Insurance. To be sure it is not single payer and does not have a public option. But it is more than any other President has been able to achieve, and to boot it is will lower the deficit according to the CBO, which Republicans cite if they like its findings, but ignore when it doesn't.

The left was very impatient with Obama because he was too slow to get rid of " Don't Ask, Don't tell," but he has now succeed where all his predecessors failed, and where the policy was adopted under the aegis of the last Democratic President, Bill Clinton. Under his Administration we have now in place some stern (yes, they could be sterner) bank regulations. If he had accomplished nothing else, this would be a brilliant record of achievement but he has accomplished much more.

$19 billion has been allocated to help implement an electronic medical record system.

On infrastructure the Department of Transportation has approved 2,500 highway projects.

A $2,500 tax credit to help offset the cost of tuition (among other expenses) for those seeking a college education has been enacted. Nearly five million families are expected to save $9 billion.

He saved the auto industry and untold millions of jobs in the process.

He allocated $2 billion in stimulus cash for advanced batteries systems. One high-ranking Hill aide called battery technology "the next big frontier" in the automotive world.

Set up an office of Urban Policy in the White House

Through the Recovery Act, DOJ secured $2 billion for Byrne Grants, which funds anti-gang and anti-gun task forces. The money, cut during the Bush years, should have massive ramifications on inner-city crime and violence.

Signed Schip legislation giving health coverage to millions of children by a bipartisan vote.

Pushed for and got unemployment insurance extended more than once on bipartisan votes.

The Omnibus Public Land Management Act of 2009 put under federal protection more than two million acres of wilderness, thousands of miles of river and a host of national trails and parks.

He signed into law the Lilly Ledbetter Fair Pay Act, designed to make it easier for workers to sue over gender-based pay discrimination.

He cut taxes for 95 percent of American workers in his stimulus package.

Tightened limits on interrogation tactics by Central Intelligence Agency officers.

Removed financing restrictions on groups that provide or discuss abortion overseas.

Granted California a waiver to regulate automobile tailpipe emissions linked to global warming.

The day after pill to stop unwanted pregnancies was approved by a new science based FDA.

Dealt effectively with a standoff with Somali Pirates.

Changed Cuba policy allowing Cuban Americans unlimited travel and money transfers to relatives there.

Signed an executive order reversing the ban on federal funding for embryonic-stem-cell research.

Restarted nuclear arms reduction talks with Russia.

Released the Bush Torture Memos, almost without redactions.

Announced a new policy on medical marijuana raids by the federal government.

EPA's adopted the position that carbon dioxide and other greenhouse-gas emissions pose a danger to the public's health and welfare.

Got rid of ineffective missile shield in Poland and Czech Republic.

Negotiated a treaty with the Russians to reduce the nuclear arsenal of both countries and managed to get it approved by the Senate.

Put Sonia Sotomayor and Elena Kagan on the Supreme Court

Despite the rise of the Right and the Tea Party we are making more progress on DOMA than anyone could have hoped.

Oversaw the elimination of Osama Bin Laden, an objective that had totally escaped the Bush Administration.

Set a new standard, which will eventually require a 54.5-mpg fleet average (roughly 163 grams of CO2 per mile), will effectively double the average fuel economy of US vehicles by 2025.

Set new standards for commercial trucks to reduce by up to 20 percent fuel consumption and pollution emissions, beginning with 2014 models. Heavy-duty pickups and vans, will need to curb fuel use and emissions to achieve up to a 15 percent reduction by 2018. So-called "vocational vehicles," such as garbage trucks or fire engines, will have to cut emissions and fuel use by about 10 percent by 2018.

By executive order eliminated expensive copays for birth control.

And I am sure I missed many achievements.

Clinton did a terrific job in raising taxes early in his term, which together with an agreement with Fed Chairman Greenspan, to lower interest rates, brought on the eight most prosperous years in a very long time and wiped out the deficit. But he was lucky to get it passed. It passed by a tie vote in the Senate with the VP breaking the tie, which by the way shows that bringing prosperity is not a sure fire way to win a mid-term election.

Nevertheless, Clinton after losing the midterms, swung Right, employed that hired gun, Dick Morris, became famous for triangulation, and presided over, among many other things, the repeal of the Glass–Steagall Act, which probably was largely responsible for the bank crisis, presided over the abolition of Welfare, signed into law the "Don't ask, Don't Tell" and couldn't stop the enactment of the Defense of Marriage Act (DOMA).

Yet the base never savaged him. Somebody tell me why these Presidents are treated so differently?

Well, maybe because Obama unrealistically promised both to be a post-partisan and a transformational President, which are contradictory and impossible to achieve. But it should have been obvious that these are aspirational goals, not achievable ones.

The Achievements of Barack Obama

 From the viewpoint of Republicans, who lately have chosen to dress themselves in the mantle of Independence and pretended bipartisanship, Obama has achieved nothing worthwhile, and every act of his and every achievement has been a detriment. That is not surprising.

But what we are increasingly finding is that it is his base that is complaining, “too slow” and some of his acts are a betrayal of their agenda and of his promises. It's strange, but it wasn't so long ago that the complaints were "Too Much To Soon?" prompting me to write a commentary by that name on April 9, 2009 rebutting that fallacious viewpoint.

I think that the criticism is factually wrong and strategically counterproductive. It ignores that Obama has done more in his first year in office since any President, save for FDR or Lyndon Johnson.

So what has he done so far? I will list some of these at random.

 He saved this country, and arguably the whole world from an economic meltdown on the scale of the ’29 depression and he did it in record time. On October 12, 2009, eight months after his inaugural Fox Business reported, “The recession, which began in December 2007, (almost a year and a half before his inaugural) has ended…” On November 25, 2009 Reuters reported, “U.S. consumer spending rises, jobless claims tumble." 

   If he had accomplished nothing more in his first year than this, it should have marked his Administration as one of solid achievement. Instead both Left and Right are complaining about an unemployment rate, a lagging indicator, as being at 10.2%. When the Reagan Administration without having to cope with an incipient meltdown, allowed unemployment to become almost as bad at 9.7%, I do not recall either the Left or the Right indulging in the kind of hand wringing we see now. In economic terms there are still certain laws. The economy must revive, and job growth will inevitably follow. The economy has revived, and only the disgruntled and those disconnected from reality will do other than applaud.

The awarding of the Nobel Peace prize was derided by both Left and Right on the ground that he had not yet accomplished anything, but his success in changing the standing and the image of the US throughout the world, and in fostering diplomacy instead of endless confrontation with friend and foe alike, was a major accomplishment.

He started the process to reform our Health Care System and has succeeded in getting it through the House. Even if it eventually flounders in the Senate, it is his leadership that has brought it to a point never before reached in American history.

But a number of things have already been accomplished in the Health Care area through the stimulus package, e.g. $19 billion has been allocated to help implement an electronic medical record system.

On infrastructure the Department of Transportation has approved 2,500 highway projects.

A $2,500 tax credit to help offset the cost of tuition (among other expenses) for those seeking a college education has been enacted. Nearly five million families are expected to save $9 billion.

 He has saved the jobs of untold numbers of teachers and in the process saved the primary educational system in many states throughout the country.

He saved the auto industry and untold millions of jobs in the process.

He allocated $2 billion in stimulus cash for advanced batteries systems. One high-ranking Hill aide called battery technology "the next big frontier" in the automotive world.

Appropriated $5 billion in aid commitments "to bolster Pakistan’s economy and help it fight terror and Islamic radicalism" within the country.

Set up an office of Urban Policy in the White House.

Through the Recovery Act, DOJ secured $2 billion for Byrne Grants, which funds anti-gang and anti-gun task forces. The money, cut during the Bush years, should have massive ramifications on inner-city crime and violence.

 Signed Schip legislation giving health coverage to millions of children by a bipartisan vote.

 Pushed for and got unemployment insurance extended more than once by a bipartisan vote.

 The Omnibus Public Land Management Act of 2009 put under federal protection more than two million acres of wilderness, thousands of miles of river and a host of national trails and parks.

 He signed into law the Lilly Led-better Fair Pay Act, designed to make it easier for workers to sue over gender-based pay discrimination.

He cut taxes for 95 percent of American workers in his stimulus package.

Tightened limits on interrogation tactics by Central Intelligence Agency officers.

Removed financing restrictions on groups that provide or discuss abortion overseas.        
   
Granted California a waiver to regulate automobile tailpipe emissions linked to global warming.

Ordered the Transportation Department to issue guidelines that will ensure that the nation's auto fleet reaches an average fuel efficiency of 35 miles per gallon by 2020, or earlier.

The day after pill to stop unwanted pregnancies was approved by a new science based FDA.

Dealt effectively with a standoff with Somali Pirates.

 Changed Cuba policy allowing Cuban Americans unlimited travel and money transfers to relatives there.

 Signed an executive order reversing the ban on federal funding for embryonic-stem-cell research.

 Restarted nuclear arms reduction talks with Russia.

 Released the Bush Torture Memos, almost without redactions.

Announced a new policy on medical marijuana raids by the federal government.

EPA adopted the position that carbon dioxide and other greenhouse-gas emissions pose a danger to the public's health and welfare.

   Stopped the deployment of an ineffective missile shield in Poland and the Czech Republic.

   Took away from perpetrators of 9/11 the positive appellation of enemy combatants and treats them as mass murderers and common criminals, bringing them before the bar of justice.

Put Sonya Sotomayor on the Supreme Court.
   
   I have no doubt that there are many accomplishments that I have overlooked, but anyone who says the Administration’s accomplishments are meager, has a short memory or a convenient one. Carping from the Right is to be expected. Carping from the base is foolish and counterproductive.

Originalism - A Constitutional doctrine without validity

In my last three commentaries I have been demonstrating how the doctrines propounded by the Right for judicial interpretation are fallacious and downright dishonest. I strongly urge my readers to reread these articles

I would also urge readers to read my analysis on the meaning of a Right wing Supreme Court which I published in October of 2005 under the title, “The Supreme Court - Consequences As New Appointees Shift Its Balance and the short add-on entitled, “The Debate About Supreme Court Nominees”

In these articles I demonstrated that the term activist judges more appropriately applies to the Right Wing of the court which strike down acts of elected legislatures with far greater frequency than the liberal judges and that “calling balls and strikes” is a misnomer which has no place in a realistic understanding of how the Constitution and the laws passes by Congress are interpreted.

Another favorite catch phrase used by the Right is that of “Originalism” by which the Right of the Court and in the Congress claim that they strive to interpret the Constitution by the original intent of the founders. I may be wrong but I believe that the term had its origin with Robert Bork, that highly controversial Reagan nominee to the Court who was denied confirmation by the Senate as being far, far too Right. Yet Bork himself admits that it is a doctrine that in the real world cannot be applied. In a book that he co-authored he writes in its Introduction:

“Regrettably, but perhaps inevitably, ‘[t]he ink was not yet dry on the Constitution when its revision began.’ Almost immediately, Congress began pressing beyond specifically enumerated powers granted it in Article I. As a result, today, Americans encounter a national government far more expansive than the Framers and men of their generation could ever have imagined…

“Uncertainty stems, in part, from the recognition that the scope of the commerce power has expanded so far beyond the original understanding of that power's boundaries that any attempt to adhere strictly to its original meaning today would likely be futile and inappropriate… “There is no possibility, today, of adhering completely to the original constitutional design. Such a daring plan would require overturning the New Deal, the Great Society, and almost all of the vast network of federal legislation and regulation put in place in the last two-thirds of the twentieth century. It appears that the American people would be overwhelmingly against such a change and no court would attempt to force it upon them.”

And at a later point he goes on to say: “When the world has changed but the underlying constitutional principle remains, the task for those ‘in this generation [is] to discern how the framers' values, defined in the context of the world they knew, apply to the world we know.’ The world we know includes the long-standing jurisprudence on the commerce power because ‘[w]hen there is a known principle to be explicated the evolution of a doctrine is inevitable."

So much for the claim that liberals on the court are activists and that Right-wingers are originalists. It is a phony paradigm. As I have stated before, judges are human and what they read into the vague text of laws or the Constitution, whether Left or Right, is informed by their backgrounds and their political philosophy. To argue otherwise is either insincere or naïve.

As for the loud cries against using references to foreign law in interpreting the Constitution that too is a misplaced argument. First it is not only the liberal Justices who make such references. Justices Kennedy and O’Connor both appointed by Reagan have supported this.

Secondly when we look to the Declaration of Independence we find the phrase, “a decent respect to the opinions of mankind” and the Constitution’s Bill of Rights in amendment VII refers to the “common law” which every lawyer knows is a reference to the decisions of British courts preceding the founding of the U.S.

It is again a tempest in a teapot without reason.

Just how little respect for due process the present five Justices of the Right have can be seen in their recent decision in DISTRICT ATTORNEY’S OFFICE FOR THE THIRD JUDICIAL DISTRICT ET AL. v. OSBORNE which held that a state is not obligated to allow DNA testing where it would conclusively show whether a man convicted of rape was, in fact guilty. See the Washington Post’s story on it here.

In that case the District Court granted Osborne summary judgment, concluding that he had a limited constitutional right to the new testing under the unique and specific facts presented, i.e., that such testing had been unavailable at trial, that it could be accomplished at almost no cost to the State, and that the results were likely to be material. The Ninth Circuit affirmed, relying on the prosecutorial duty to disclose exculpatory evidence under, e.g., Brady v. Maryland, 373 U. S. 83.

Finally, I strongly urge those who have an interest in these issues to listen to Senator Whitehouse of Rhode Island on Sotmayor nomination, which can be listened to in full here. The speech is 21 minutes long but I think that the investment of your time will be more than rewarded, though the first minute or two will not hold the reader spellbound.

The issues involved in these court decisions in many ways outweigh those pending in the Congress, and I urge you to take the time to read and listen, if you desire an understanding of the forces at work.

Distortions and Contradictions in the Discussion of the Firefighter Case.

In my last commentary entitled Philosophical and Life Experiences in the Shaping of Supreme Court Views, which I distributed on July 21, I concluded with the comment, “Next time I will discuss the much-maligned Ricci (aka the firemen’s) case. 

This case needs discussion because it is the one case out of the hundreds that came before Judge Sotomayor in the years that she was on the bench that most raised the ire of her critics.

These critics were the ones who screamed that empathy had no place in the law, that decisions must be based on the law and only the law. They then turned around and attacked the decision in the Ricci case by citing the poor dyslectic firefighter who having bought all the books and studied extra hard did not get his promotion, even though he scored high enough on the test to be entitled to it. Without question we can have empathy for this firefighter. But what about the law? Did all these strident voices, who loudly denounced the concept of empathy, once discuss the law? Anybody who followed the debate knows that the law was the last thing they were interested in. See here.

But let us look what in fact happened. I assume that at least some are interested in some degree of consistency and in examining the facts. It has no bearing on the confirmation of Judge Sotomayor for she will be confirmed. But if we are to have any kind of intelligent discourse about the law we need to step back and examine the real facts.

The strident voices have denounced Sotomayor for her decision. But, of course it wasn’t her decision. It was a decision of a three-judge panel of the Court of Appeals and it was unanimous. Three judges all reached the same conclusion. If we count the decision of the District Court it makes it four judges. After the panel handed down the decision a petition was filed for the whole Court of Appeals to hear the case known as a “rehearing en banc.” According to Rule 35 of the Court  “A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc.” There are a total of 12 active judges on the Court. So when the hearing en banc was denied it meant that at least 6 judges decided it did not warrant such a rehearing. Thus we can see that a total of at least 10 judges did not feel the decision was wrong. Doesn’t that suggest that at the very least there was a basis in the law for the decision? What is the law that the court was interpreting? It was Title VII of the Civil Rights Act of 1964. For the text of the act click here. But to listen to the braying one wouldn’t even have known that there was a law passed by the elected Congress that the court was interpreting. That this law provides in Section K 1A: “An unlawful employment practice based on disparate impact is established under this subchapter only if-

     (i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity…”

     Ever since that law was passed a test which has a disparate impact on race must be discarded unless it can be shown that the questions asked are “job related for the position in question and consistent with business necessity;…”

     Apparently the District Court, which is the trier of the facts, found it had not been demonstrated that many of the questions on the test were job related. It then surveyed the law and in an opinion 48 pages long analyzed the facts and the law, cited and reviewed at least 19 previous decisions, including prior Supreme Court decisions, and decided the examination violated the statute. For those few who may actually want to read all the decisions cross references can be found here.

Now the critics of Judge Sotomayor argue that judges who are reversed by the Supreme Court should not be elevated to the High Court, ignoring of course that this would eliminate most, if not all, judges sitting on our courts. Furthermore, The Supreme Court decision was by its common 5-4 majority that chose to ignore its own precedents and changed the law, as it has existed since the passage of the statute.

   I will grant that we can argue the wisdom of the statute; we can argue the wisdom of the policy, but to suggest that Sotomayor or the three judge panel which adopted the opinion of the district court as being sound on all counts, is in some way not applying the law, is nothing less than deliberate distortion, sophistry and demagogy.

  The dishonesty of Judge Sotomayor's critics is apparent. And what makes the attacks even more deplorable is that one of her severest critics was Senator Sessions of Alabama, who was rejected by the Senate when Reagan nominated him for a district court in Alabama, because he was a known racist. According to the Huffington Post he “once quipped that he ‘used to think [the KKK] were OK’ until he found out some of them were ‘pot smokers;’ and he routinely referred to an African-American attorney who worked for him as ‘boy’ -- even once warning that attorney to ‘be careful what you say to white folks’ after Sessions overheard him chastising a white secretary.”

  This is typical of the crowd that tries to represent itself as being in favor of a non-racist society.

Obfuscation regarding Supreme Court Decisions

In my commentary, which I distributed on May 28. 2009 and posted on my blog the following day,  I said I was taking some time off from writing about current events in order to attend to personal matters. I have not succeeded in cleaning up my backlog but events in the public sphere are calling out to me, and I cannot remain silent any longer.

Some time ago I said that I wished in my writings to destroy myths. Some of these are becoming evident in the discussion leading up the vote on the confirmation of Judge Sotomayor and rather than allow them to fester and become part of the lore I feel that I should address them.

There are many, but one that particularly offends me is the notion promulgated by Justice Roberts in his confirmation hearing is that a Supreme Court Judge simply “calls balls and strikes.” This implies that the rules are crystal clear and the Judges need merely apply them. In this scenario Right Wing judges apply the law and liberal judges or “activist judges” make law to suit their predilections.

Let us test this against the real world. For example the Fifth Amendment to the Constitution provides: “The right of the people to be secure … against unreasonable searches and seizures, shall not be violated …” What is reasonable and what is not” is hardly a matter of calling balls and strikes.

Or the First amendment provides: Congress shall make no law… abridging the freedom of speech…” (Emphasis added) Shall this be taken literally? In 1919 the Supreme Court in Schenk v. U.S. made it clear that this language can not be taken literally when Justice Holmes set forth the famous example, “that this amendment could not prevent laws that “protect a man falsely shouting fire in a theater and causing a panic” which all would agree with, but used the analogy to allow a law which made it illegal “to distribute flyers opposing the draft during World War I” a holding which has since been overruled by Brandenburg v. Ohio, which held that speech can only be proscribed if it is likely to incite imminent lawless action (e.g. a riot). It also is not crystal clear what free speech is. Is it limited to speech actually spoken or does it include symbolic speech? The difficulty in finding the right line can immediately be seen and it is not like calling balls and strikes. Thus Justice Roberts, when he made this claim was either being naïve or disingenuous and I don’t think he was or is naïve.

Another recent example of the difficulty in interpreting this Constitutional provision came before the court when it held in Texas v. Johnson, 491 U.S. 397 (1989) that burning of the American flag can not be criminalized because it is symbolic speech. Justice Scalia, generally considered part of the Right wing of the court, joined the liberal four justices in this holding.

Thus the claim or myth that interpreting the Constitution is an exercise in the obvious is nothing less than part of the Right wing’s desire to obfuscate. The worldview of any given justice will influence their decision and the Right Wing of the court has no monopoly on seeing the correct meaning of provisions that are ambiguous.

But “calling balls and strikes” is not the only deliberate misrepresentation of those who follow a particular philosophy. They have also developed the theory of “originalism” to give credence to their own unique view of the meaning of all things. They claim that what they are doing is sticking to the Constitutions meaning as its meaning was intended at the time it was written. But again this is nothing more than obfuscation by the Right Wing, or conservative judges, as they like to call themselves, for they strike down laws passed by elected legislatures with more frequency than the liberal judges, (See here) which aside from marking them as activists, strikes down their claim to be originalists, for when the Constitution was written, there was no provision giving the Court the power to declare any acts unconstitutional. To quote a favorite refrain of the Right, “where is the provision for this?”

As a matter of fact during the early days of the Republic there was a general assumption that what was constitutional was in the first instance the responsibility of Congress and secondly that of the President. George Washington in fact felt that the most important, if not the only reason for vetoing a bill, was that it was unconstitutional. It was not until Marbury v. Madison decided in 1803 that the Supreme Court laid claim to this authority, saying, “If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.” Logical, but drastically new, and not an example of originalism. Thus to lay a legitimate claim to originalism the Right members of the court would have to renounce the claim to strike down acts of an elected legislature. The liberal members, not burden with the claim to originalism have a right to strike down laws, but they use it with restraint while the Right asserts that power over and over.

But the power to strike down laws are not the only things that the Right finds in the Constitution that are not explicitly there. The Constitution does not explicitly provide for the power of the government to set up the Federal Reserve, or the FDA. There is nothing in the Constitution that specifically says corporations shall have the same rights as real people including all the protections to freedom of speech and due process but the “originalists” manage to see things that aren’t in the original constitution when it is in line with their philosophy. Their claim to originalism or even to strict constructionism has no basis in their actual rulings and it is a concept that long ago would have made the Constitution obsolete.

For a more extensive discussion of the of the rulings of the Supreme Court and what might have happened if Bush had been able to make one more appointment, see here and for a discussion of the debate on judicial nominations in 2005 see here.

But it isn’t only the Constitution where the “conservative” judges of the Supreme Court show their biases. It is also in interpreting the laws of Congress. Next time I will discuss the Ledbetter case which involved no constitutional issue and was concerned with interpreting an Act of Congress.