Tag Archives: Supreme Court

The History of History


Posted by Omnipotent Poobah

Washingto Making History

 I made an inexplicable blunder in this post. The Federalist Papers were, of course, written by Alexander Hamilton, James Madison and John Jay. My apologies. Tom Paine wrote Common Sense…which I clearly lost here somehow.

There is an immutable fact about history – if you weren’t there, if you didn’t personally know and speak to the history makers, you can have no irrefutable, complete evidence of their intent.  You can know concrete things, like dates. You can read treatises written by the historical participants and get some insight into what they were thinking. “Experts” can fill in some blanks. But at some level you can’t know, beyond a shadow of doubt, everything they thought, and more importantly, why.

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Small Government: One Small Fly in the Ointment


Posted by Omnipotent Poobah
Small Government

A BIG LITTLE PROBLEM - Sometimes it's amazing just how big small government can be

Conservatives – especially their tea partying faction – are yelling, “Hell no! We won’t grow!” in their quest for government with a microscopic “G”. Their biggest quibble with St. Ronnie of Reagan’s government isn’t the solution, it’s the problem mantra was that he didn’t lay off the entire government (except for a staggeringly expensive, ass-kicking military…and it’s associated contractors and arms makers) and outsource everything to the states, or preferably, India by way of multinational conglomerates.

I suspect they’ll be getting a rude awakening soon. They’ll find it next to impossible to fight the strong running political tide, agree on what needs to be shed, or even agree on what small government means.

For example, arch-conservative Michele Bachmann wanted to prohibit earmarks only to find that, oops, her state wouldn’t get any money either. Suddenly her perception of pork changed in the face of angry voters who saw that Michele’s financial acumen was roughly equivalent to a high school home economics course in buying canned hams at rock bottom prices.

Solutions

SOLUTIONS - Ain't that the truth?

One man’s crumbling highway is another’s canned ham. Let those drivers give up the ham. They need to be put on the fiscally conservative South Beach Minnesota Diet. Same for those homeless people too by golly. It’ll be good for their no account goldbricking asses.

Conservatives never met a regulation they liked – unless it benefits them or is written by lobbyists. And one of the biggest government expenditures of all is creating and enforcing regulations. The baggers and Republi-Goobs are of a similar mind that only the private sector is smart enough to do anything – apparently ignoring that whole financial derivatives thing. But who’s counting.

So here’s an idea.

Regulations and regulators are a huge chunk of the budget, right? The Tax and Spend It All on Me Crowd frequently reminds us, usually in high-pitched squeaky voices, that the private sector is where smart, upstanding CEOs can do anything. They even have big paychecks to prove it.

Since the Supreme Activist Court (SACOTUS) took it upon themselves to give corporations Constitutional rights far and away more important than the rights of all individual citizens combined, it makes sense that corporations would be the very picture of responsible citizens in thanks. And smart as whips too.

So, corporations are just terrific, and honest, and thrifty, brave, clean, and reverent. We know this because Cryin’ John Boehner and the boys tell us so. So, how about we just trust them to do the right thing? No need to regulate when the free market unfailingly leads companies to the path of righteousness and honor.

We’d cut thousands of regulators in a jiffy. Legislators would have absolutely nothing to do except rubber stamp appropriations bills for the War du Jour. And lobbyists? Well, they’d become pro bono advisers to a micro-government that runs as smooth as BP oil rushing out of a broken wellhead. Yeah, THAT’S the ticket!

Um, only one small fly in the ointment on that one. Forget I mentioned anything.

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When Judicial Activists Judge ‘Judicial Activists’


Posted by Omnipotent Poobah

These days any drop of bipartisanship must be savored like the world’s rarest wine. Ironically enough, a wine that’s thoroughly disgusting to voters because there’s so little of it and it’s sourer than vinegar. Senator Lindsey “Nelly Bottom” Graham was the only Republican to throw in the towel and vote for SCOTUS nominee Elena Kagan yesterday. Kagan’s 13-6 escape from the Senate Kangaroodiciary Hearings is about a bipartisan as they come in an environment where one (really) is the Loneliest Number.

Graham’s an unusually magnanimous loser… for a Republican. “What’s in Elena Kagan’s heart is that of a good person who adopts a philosophy I disagree with,” Graham said. “She will serve this nation honorably, and it would not have been someone I would have chosen, but the person who did choose, President Obama, I think chose wisely.” Alas, there was a time when statements like that were normal.

Not now.

Congressional hearings aren’t really hearings, they’re foregone conclusions where the naysayers get to bitch and moan and the triumphant get to do the moonwalk and say, “We win! You lose! It sucks to be you!” The nominees are coached to say as little as humanly possible about how they might decide cases while being subtle enough to blend with the fabric of the chair they are soaking through with sweat.

The past several times around, questions have followed such preset patterns they may just as well have asked the nominee for a form – and not even a notarized form at that.

Republicans, like top Rebumblican Jeff Sessions, have traditionally kvetched about “judicial activists”. That’s code for “someone who I’m going to call a Commie and who doesn’t agree with me.” Oddly, they never seem too concerned about judicial activism when it comes from one of their own.

Scalia, I’m talking about you!

They also like to whine that whatever nominee sits before them will be totally unable to separate personal choices from ones made on the bench. Again, nominees are de facto impartial when they happen to vote the Jeff Sessions line.

By and large, Presidents should be able to choose anyone for the Supreme Court they want, provided they’re minimally qualified for the job (see Harriet Miers). The fact is that all judges are going to be “activist” if they’re doing anything. Laws need to breathe in order to support society and that’s part of what SCOTUS does. If it was as simple as a checklist for subtle Constitutional interpretation, we wouldn’t need a SCOTUS – we’d all agree already

By the same token, none of them will be totally impartial either. People bring who they are, what they know, and how they’ve lived into court with them. Despite Sessions’ great displeasure with Sotomayor’s “wise Latina” quote, these are part of us all and not in an altogether bad way either.

Had Sessions’ actually made it to the bench instead of failing years ago, I’m sure he’d decide against abortion on any case appearing before him. He would do this by bringing in a spring-loaded, prickly, conservative, intolerant white male, demeanor into court with him. I think he’d find it nearly impossible to look “only at the law” as he demands. I’m confident that he couldn’t look at the long history of precedents that have made abortion the law of the land for decades now and not vote only on that law as it stands.

In other words, Sessions’ couldn’t honestly strike down abortion in front of his own court unless he defied the law previously expressed in Supreme Court findings and lower court precedents while simultaneously acting like a judicial activist bent on “changing the(available abortion)  law” as it stands.

Jeff, if you want to see the face of your judicial impartiality and judicial activism look in the mirror. Your dishonest, and frankly troubling, face will be looking back.


SCOTUS v. Cameras: Techno-Dolts or Inocent Sausage Makers


Posted by Omnipotent Poobah
SCOTUS

MICROSOFT OUTLOOK v. SCOTUS - Are the Supremes just an band of ancient techno-dolts or do they ask seemingly stupid questions for a reason? You can't read the scorecard without the televised instant replay.

Many people wonder why the Supreme Court refuses to allow cameras in court. A recent exchange between the justices and lawyers hearing a sexting case might provide some clues – the back and forth hypothetical nature of questioning sometimes sounds, well, just plain loopy.

In the sexting case, the legal question was whether police officers could have a reasonable expectation of privacy when using their department-supplied pagers to text sexy messages to one another. Some of the justices asked questions that, on the surface, sounded as though they had graduated at the bottom of the class at the Ted Stevens University of Information Technology.

At one point, Chief Justice John Roberts asked about the difference between, “email and a pager”. Justices also asked what happened when two texts arrive at the same time. “Does it say: ‘Your call is important to us, and we will get back to you?” Justice Stevens asked. “Could Quon [one of the defendants] print these spicy little conversations and send them to his buddies?” Scalia asked.

One explanation for these somewhat surreal exchanges might be that even the middle aged Roberts understands little more about information technology than his more elderly peers. The other might be that Roberts and the other justices asked the questions not because they were oblivious, but because there was some rhetorical reason while arguing the case. Without the context a camera could provide, we lay people don’t know and, in fact, question what the hell is wrong with someone asking about the difference between email and a pager in the 21st Century.

The assumption in some media outlets was the Roberts and the rest of the SCOTUS gang were just plain stupid and I must admit I’m hard pressed to find a reason for Roberts’ question, reasonable or otherwise.

Most of the stories today didn’t give SCOTUS the benefit of the doubt. It makes for a more compelling story than assuming they really do know that they’re doing. I’m sure the justices were embarrassed by the tenor of the stories. No one likes to look like an idiot in front of the world and it might legitimately be a lack of understanding on the reporters’ part.

Perhaps, this is a subject the justices should reconsider in their own court. Is it worse to reveal the legal sausage making and potential embarrassment of open, televised court where a video feed might clarify things? Or, is it better to let people make their own conclusions about subjects that many of them are clueless about, even with the help of video technology?

If I was a justice, I’m afraid it would be a split decision.

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To Smite or Not to Smite Westboro, That is the Question


Posted by Omnipotent Poobah
SMITE THEM GOD, SMITE THEM - Westboro's God Hates Fags campaign is an embarrassment to humanity. Yet they have the right to make idiots of themselves. Even if we do want to smack them down.

SMITE THEM GOD, SMITE THEM - Westboro's God Hates Fags campaign is an embarrassment to humanity. Yet they have the right to make idiots of themselves...even if we do want to smack them down.

There are few things as repugnant as Westboro Baptist’s “God Hates Fags” screeds at military funerals. It’s an understandable impulse to want to thump these yahoos to within an inch of their putrid lives, but if you do, expect to do some time in the pokey. Free speech is allowed, violence isn’t.

The Supreme Court will soon hear the question of whether free speech protections cover Westboro’s lunatic fringing. It’ll be interesting to see how it goes.

Cases like this pose a constitutional dilemma. For the most part – save the whole “shouting fire in a crowded theatre” question – I favor letting people say what they want. Free speech doesn’t mean free to anyone I don’t think is stupid, rude, or just plain wrong. It means free…for everyone…even if they are ignorant pootieheads.

Defending the Rights of the Asshatted
I recently defended the right of gay rights opponents to say what they want and received some not unexpected fallout for my trouble. Several commenters took a zero-tolerance line – they said it’s never OK to oppose anything as important as gay rights…period. However, you could just as easily turn that around to say it’s never OK for Republicans to speak either. No matter how much I fantasize about stopping their unending, infernal chants of NO it would be clearly unconstitutional and just plain wrong. The offense in Westboro’s case owes a lot to where you and your opponents stand.

The Constitution presupposes there is someone on either side who is rational and feels as strongly about others’ rights as they do their own. It assumes these people will speak and not poke each other in the nose. It assumes that words don’t cause permanent damage regardless of how insulting and wrong you may feel they are.

But cases like the Westboro Association of Pinheads’ picketing the funerals of innocent, grieving bystanders who have nothing to do with their “issue” seems to go a step farther. Is this the point where the right of grieving families and friends should be protected from a group if nimrods who have no respect for others? After all, my general rule is that exercising your right is OK as long as you don’t impinge on someone else’s right to exercise theirs. Not respecting their rights takes you one step closer to their values, not farther away.

GOD, ARE YOU LISTENING? - God needs a better PR person on Earth. Fred Phelps and his ilk are damaging God's brand.

GOD, ARE YOU LISTENING? - God needs a better PR person on Earth. Fred Phelps and his ilk are damaging God's brand.

The Slippery Slope
My first impulse is to squash them like the vermin they are. However, in the back of my mind I keep hearing a constitutional voice whispering that depriving Westboro of their idiotic fun may be the first in a series of slip slides down a mucky slope.

Who gets to make these decisions? What are the criteria? How much does asshatery cost per pound when compared with the cost of individual freedom? It’s too simple to just say STFU and be done with it. As clear-cut as it may appear, it’s anything but.

As with many issues, there isn’t a good black and white answer and I don’t profess to have one. At the end of the day, the Supremes will make a decision. In all likelihood, Congress will pass more legislation and the Supremes will have to retest the new version of Constitutional right and wrong. No doubt, this question will come back up repeatedly, if for no other reason than the Westboro loons are unlikely to stop until their God snatches up the last of them and casts them into a lake of fire. This is the juncture between the letter of the law and its common sense application.

The whole sordid affair makes me long to go back to my original thought and thump the stupid bastards to within an inch of their crapulent lives.

But that’s not Constitutional either.

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