Sorrell v. IMS Health, Inc.

It's not every day your employer gets to plead its case before the US Supreme Court, but that was the case with mine earlier this week. A group of companies, led by my employer, sued the State of Vermont over legislation the state passed restricting the sale and provision of physician prescription information. IMS argued, among other things, that the law violated corporate free speech.

For those of you interested, a video summarizing both side's arguments can be found here.

The Westboro Decision

The miserable, execrable, demons of Westboro Baptist Church won a decision in the Supreme Court today that guarantees them the right to continue to mount their loathsome protests in the vicinity of funerals of fallen service members.  The conduct of these hateful lumps of DNA is about as reprehensible as it gets, and there is no place in a civil society for this kind of demonstration.

But the Supreme Court was right to reach the decision it did.

Loathsome, but Legal

By an 8-1 margin (Justice Alito in dissent), the Court (with the Chief writing the majority opinion) ruled that while there was no societal benefit to the speech Westboro practices, its elimination would be injurious to free-speech rights.  It is regrettable that they reached this decision, though the only thing more regrettable would have been for them to rule the other way. 

I am struck by Justice Alito's dissent.  I agree with virtually everything he says on a human level--but when it comes right down to it, there just isn't a reason to prohibit their speech that passes Constitutional muster.

Justice Breyer Is Really, Really, Wrong On The Second Amendment

Most of you know that I'm not a "Second Amendment Conservative".  I have no problem with gun control, but I would like to see most of it passed AFTER the Constitution is amended to ALLOW it.  Why would this be?  Because I'm an even stronger "READ AND UNDERSTAND THE CONSTITUTION" Conservative.  So when I happened across this headline this today ("Breyer:  Founding Fathers Would Have Allowed Restrictions on Guns") my attention was grabbed.

Essentially, Breyer is arguing that James Madison would have liked guns to be restricted, but in the Bill of Rights debate, inserted the Second Amendment in order to guarantee passage of the Constitution.  Putting aside for a moment the stupidity of using the plural of "father" to describe the view of ONE founding father, the fact that he had to trade AWAY that view in order to get the document passed is in and of itself, sufficient evidence of how unpopular such a view would have been at the time.  And since the "votes" on the Constitution came from the political elites in the various colonial legislatures, it seems just as clear that it wasn't a view shared by the bulk of the "founding fathers".

Breyer is grasping at straws.

"She's Not Nearly As Smart As She Seems To Think She Is"

These words--written by Harvard Law School Professor Lawrence "Always a Bridesmaid" Tribe about recent Supreme Court appointee Sonia Sotomayor in a personal letter to President Obama--reveal a good deal about the writer and the reader.

First of all, the leak of this letter will have what the vaporists refer to as a "chilling effect" on Mr. Tribe's appearance at A-List Democrat events.  Sotomayor is a Democratic/Liberal Icon--doesn't matter if the whole letter's point was to put forward the prospects of another Liberal Icon (Ms. Kagan)--Tribe's stepped in it here and stepped in it good.

Secondly, note how important Tribe considers "smart" to be.  Don't get me wrong--we obviously don't want dunces on the Supreme Court--but this fascination with intelligence we see from the elites of the Democratic establishment is part of the larger issue of "were right and smart, they're wrong and dumb".  Where else do we see this?  Why, the Daily Show, of course....

Thirdly, the comfort with which Tribe puts forward his opinions, especially that of Ms. Sotomayor's intellect--seems to be to belie a sense that the READER of this letter--Tribe's good friend Mr. Obama--would likely AGREE with the sentiment contained therein.  Tribe wouldn't burn a relationship with a President over a Supreme Court nomination--he figured that what he was writing would be welcomed in the Oval Office.

Read the letter--sorta like reading the other team's playbook left on the Brady living room table.

Separated At Birth?

Justice in the wings Elena Kagan, and...

Fiddler on the Roof Zero Mostel.

Kagan Determined To Prove She's As 'Vapid And Hollow' As The Rest

Speculation in Washington is that President Obama will announce the selection of Solicitor General Elena Kagan to the US Supreme Court early this week. Kagan would be selected to fill the seat of retiring Justice John Paul Stevens.

Kagan is former Dean of the Harvard Law School, and felt by many on the left as the intellectual counterweight of conservative Chief Justice John Roberts. That's good, as she'll need her wits about her as she attempts an intellectual soft shoe around comments she once made regarding the Senate judicial confirmation process.

In 1995, Kagan wrote an article criticizing the process as a "vapid and hollow charade" because nominees are not forced to say what they think about disputed issues such as abortion, affirmative action, and privacy.

However, when asked to comment about the article last year, Kagan appears to have backpedalled, dismissing it as the brash words of a young Judiciary Committee staffer. "I wrote that when I was in a position of sitting where the staff is now sitting and feeling a bit frustrated", she said, "that I really wasn't understanding completely what the judicial nominee in front of me meant and what she thought."

In other words, I had no idea that in 1995 I would eventually find myself as a nominee to the Supreme Court. And now that I do, I have no intention of jeopardizing this gig by tipping my hand.

E.J. Dionne On The Supreme Court

See if you can get through the first paragraph of this editorial without shaking your head in disgust. I double dog dare you.

Constitutionality of Healthcare

Big Fred and others on The Conservative Wahoo Live! radio program last night made spirited defenses of the ongoing effort by several state Attorneys General to have the insurance mandate portion of the healthcare reform bill overturned by the Supreme Court. I understand their points, but for some reason I had a feeling that the Supreme Court would likely not mess with something this big and "political"--showing deference to the political branches in the process. I'm not so sure anymore.

When the editorial pages of the Washington Post treat the effort with the respect that this piece did, it seems to me that idea may have quite a bit more merit than I thought. I'll try and educate myself further on the matter.

That said--were the Supreme Court to find the mandates CONSTITUTIONAL--I would support a mandate IF AND ONLY IF extension of "coverage" to pre-existing conditions was forced upon the insurance industry. If you--like me--wish to see insurance coverage provided by private companies, rather than the government; and if you--like me--believe that denying coverage to people with pre-existing conditions is coming to be seen as an important policy problem to be overcome; and if you--like me--see forcing insurance companies to take on people with existing conditions not as "insurance" but as an "entitlement"--than we are left without a good policy option to "deepen the risk pool"--except the mandate. If the mandate is found unconstitutional--but the requirement to cover pre-existing conditions remains--the insurance industry will be faced with a HUGE COST driver which will be passed along to those with insurance. Premium hikes are guaranteed by the bill as it is--without the mandate, the hikes will be substantial.

Bottom line--if the Supremes find the mandate unconstitutional, then the requirement to cover pre-existing conditions becomes problematic--both from a cost standpoint, and a political one. Republicans would have to be careful how they contest it, as they will assuredly be criticized for "taking away my healthcare" if they overturn (politically) the pre-existing conditions coverage requirement.

E.J. Dionne Hyperventilates

E.J. Dionne is calling for Americans to take to the ramparts after the Supreme Courts "reckless" decision on campaign finance last week. Typical over the top, emotional, factless bloviation (and I oughta know!) from the WaPosts chief mouthpiece for the Administration.

But there is something here--Dionne advocates for having corporate Chief Executives appear in ads that they sponsor to take responsibility for what is in the ad--like politicians do. I'm open to that--in fact, the more I think about it, the more I like it. Then, we'll have the opportunity to let the market punish corporations for their views.

Back and Forth on Facebook--Judicial Restraint

In response to my post thanking the Almighty for GWB the following thread got started on my Facebook page:

Friend: Since striking down duly passed laws, and disregarding the Court's prior decisions are not hallmarks of judicial restraint, I trust that Republicans will no longer contend that the "conservative" justicis in the Supreme Court majority are not activists.

Me: see Marbury v. Madison. Striking down unconstitutional laws is exactly what they are supposed to do. Finding "shadows" and "penumbras" in order to MAKE LAW is what frosts Conservatives.

Me (again): ...and what's wrong with disregarding prior decisions, if they were botched? Wanna defend Dred Scott, counselor?

Friend: You miss my point. No one claims that John Marshall was not an activist judge. (Marbury in fact quite a power grab by the Court.) But whatever you think of the Court's decision, and I do disagree with it, the Court is not acting with restraint when it does not rule on the issue initially presented by the appeal, sets a second argument on an issue that it orders the parties to brief, and then reverses prior precedent. That is an activist court.

Me: And you miss mine. Conservatives don't mind judicial activism if it is in the pursuit of defending constitutionally protected rights.

Friend: I appreciate your candor.

Me: And I your intellect.


This back and forth illustrates something I think shouldn't be lost in the discussion of "judicial restraint". Conservative esteem for judicial restraint DOES NOT imply that the Supreme Court should sit as a potted plant, allowing "duly passed laws" or even decisions of previous Supreme Courts to stand--if they violate an existing constitutionally protected right.

Thank God For GWB

Why? John Roberts and Samuel Alito. Campaign finance gets shredded, 5-4--and free speech in America--whether yours, mine or Ford's--is again protected!

Sotomayor Dodges Questions--She Should Dodge Them All

Story in the Post this morning about how Judge Sotomayor was a bit "elusive" before the Senate Judiciary Committee yesterday (as Alito and Roberts were before her). Good. She should be elusive. In fact, she should refuse to answer any and all questions.

Here's my point. Sonia Sotomayor has a long and distinguished record as a prosecutor, federal judge, and federal appeals court judge. The Constitution gives the Senate the "advise and consent" power on nominees to the Federal bench. Just once--I'd like to see a nominee with a record like Sotomayor's say in their opening statement "I'm a good lawyer, I'm a good judge, my record speaks for itself. You have before you all you need to make your decision on my fitness to serve. I'd like to serve on the Supreme Court, in fact, it has been a dream of mine for my entire lawyerly life. But it is not so important to me that I will play the amiable dunce in your political game. I respect the Constitution and the wisdom of the framers in placing my nomination before you for your consent. That power of yours however does not levy a responsibility upon me to participate in your proceedings. I wish you great success in your proceedings however you may wish to measure it, but I shall not answer any of your questions."

Let's be honest here--Robert Bork taught us all that the way to get to the Supreme Court is to answer as few questions straight on as you can. Since his nomination, elusive and evasive answers have been the norm, and the confirmation proceedings have become like North Korean show trials. Every member of that committee already has all the information they need to support or dispute her nomination, and nothing she says is going to change that. Either you are someone who sees her vast experience on the federal bench as proof enough of her fitness to serve, or you are someone who sees that vast experience as evidence of a judicial philosophy that renders her unfit to serve. There is no other choice. The rest of this is all kabuki theater, and it is a waste of time and money.

Sotomayor Pledges Fidelity to the Law

Of course she does. Because she's not now addressing a group of female lawyers, or a group of urban rights activists, or a group of ethnic victimization merchants--or any other group who feels for some reason that the law is insufficient to protect their rights and that empathic judges of diverse and varied "experiences" are best suited to issue justice. She's addressing the Senate committee examining her fitness to serve on the Supreme Court, made up at least in part by people who believe the law is sufficient, and where insufficient, the actions to be taken are those by the political branch.

My thinking has evolved quite a bit on this nomination. I remain convinced that elections have consequences, and in this case, the consequence is that Barack Obama gets to nominate someone he feels thinks about the law like he does. I think it is also essential that an up or down vote be taken on the nominee.

But Republicans must oppose this nomination, and oppose it with direct attacks on judicial philosophy. It is not enough to say that she is fit to serve on the Supreme Court because she has been confirmed twice already by the Senate in inferior courts. That is irrelevant. This is the court of last resort; the framers placed the confirmation power in the political branch, thereby making the "advise and consent" function a wholly political one. While law school records, private practice and time on the bench all serve to give individual Senators a better sense of the overall state of qualification for service, it is in the political process that one's ultimate fitness to serve becomes apparent. The political process has played out to a point in which Judge Sotomayor's elevation to Justice Sotomayor is virtually assured; but the process has not played out to the point where those whose ideology and politics require them to oppose the nomination should sit quietly by and defer to the Executive.

Ideology seems to have become a bad word when it comes to judicial nominees. I believe that the Framers displayed great wisdom in placing judicial confirmations in the political branch, knowing all along that fitness to serve was not simply a function of with whom one had read the law.