WHY LIBERAL V**ERS SHOULDNT WANT A LIBERAL JUSTICE TO REPLACE SCALIA
George Leef
L*****t writers are arguing that President Obama should nominate someone for the vacant seat and the Senate should confirm that nominee. If the GOP-controlled Senate doesnt cooperate, that will supposedly turn into a potent issue in the e******n because the Democratic v****g base will be so energized at being deprived the sort of liberal judge Obama is certain to pick.
Perhaps that will turn out to be true.
But there is a hidden assumption that deserves examination, namely that liberal judges will decide cases in ways that favor Democratic v**ers, while conservative judges will decide cases contrary to their interests.
That idea is generally false.
In t***h, conservative judges (i.e., those who consistently take a jurisprudential approach that restricts governmental power) often rule in favor of the little guy, whereas liberal judges often rule contrary to their interests. That is not because liberal judges secretly dislike the often poor and powerless litigants who want the government to leave them alone. Nor is it because conservative judges are, despite all the nasty rhetoric about them, actually the friends of such individuals.
The explanation, rather, relates to the great vault line in American politics.
On one side of that line are those who think that more government is presumptively good and therefore officials should be allowed to do what they think best. These people call themselves progressives because they believe that progress comes from governmental social engineering to t***sform the country.
The judges they prefer, taking their cue from Justice Oliver Wendell Holmes, Jr., rarely say no to any but the most blatantly unjustified use of government authority. Their strongest allegiance isnt to the Constitution, the rule of law, or even sympathetic litigants, but to maintaining the power of the administrative state. And the administrative state frequently victimizes poorer people the very people liberal politicians always say they care so much about.
On the other side are those who think that the Founders were right in wanting to keep government power limited. The sort of judges that conservatives (who are often liberal in the original sense of the word) favor are skeptical about using government to t***sform society, both because they doubt that it succeeds and (far more important for judges) because doing so usually has no constitutional warrant. Their allegiance is to the rule of law, but that usually results in decisions favorable to the little guy.
Here are several cases that make my point.
Kelo v. New London. This eminent domain case pitted a few relatively poor homeowners who did not want to have their property condemned by the city (for a big redevelopment project that would mainly have benefited wealthy people) against New Londons government.
The decision was 5-4 in favor of allowing the city to take the property. The Courts liberal wing sided with the city and approved of the notion that the Fifth Amendments provision that property may only be taken through eminent domain for a public use was satisfied when officials asserted that the project they envisioned would be for the publics benefit.
Kelo thus gave (or more accurately, continued) the green light for local officials to collaborate with wealthy companies and interest groups that want to t***sform cities. But who loses out? Overwhelmingly, poor homeowners and small business people who just want to be left alone are the ones who have their land condemned. There would have been fewer eminent domain victims like Ms. Kelo if the Courts conservatives had mustered a majority. (Incidentally, the entire grandiose New London project flopped, so everyone lost.)
Zelman v. Simmons-Harris. A great many Democratic base v**ers are inner-city residents who desperately want an opportunity to escape from public school systems that are dangerous and ineffectual. But there are powerful interest groups (particularly teachers unions) opposed to any such escape and they are fully aligned with the Democratic leadership. So when a school choice program threatens the status quo, what happens?
In Zelman, the public education establishment challenged the legality of Clevelands school voucher program, saying that it violated the Establishment Clause. The argument that allowing students to spend some public money so they can attend private schools with a religious orientation is far-fetched. Doing that no more establishes any religion than does letting members of the military use their GI Bill benefits at the college of their choice.
Nevertheless, the liberal wing of the Court all agreed that the Cleveland voucher program should be stopped as unconstitutional. But unlike Kelo, they were in the minority. The conservative majority found no constitutional obstacle and therefore parents have been able to benefit from school choice. Again, it was the originalist way of interpreting the Constitution that helped them, not the liberal notion of a living Constitution.
District of Columbia v. Heller. Suppose you live in a dangerous city and think that youd be safer if you had a gun. However, the politicians in your city have put in place regulations on ownership of firearms that make it virtually impossible for you to obtain one (legally, at least). Can you count on liberal judges to assist you by striking down those regulations? No, because they are loath to clash with government officials (few of whom have to worry about their own safety) and uphold your rights.
One of Justice Scalias most noteworthy opinions was in just such a case, Heller, where he wrote for a 5-4 majority that the Second Amendment protects individual citizens against overreaching regulations that interfere with their right to keep and bear arms. The dissent in the case came from the Courts liberals who were content to defer to the Districts gun restrictions.
So again, the originalist, limited government jurisprudence of the conservatives was consistent with the desires of little guys who wanted a gun for self-protection. Had the liberals prevailed, city officials who believe (contrary to reason and experience) in gun control would have continued to leave such people at the mercy of criminals.
Harris v. Quinn. Organized labor is always hungry for money, but rather than asking people to provide support voluntarily (through membership due or contributions), its bigwigs prefer to scheme with politicians to force people to pay whether they want to or not.
In Illinois, two Democratic governors, Rod Blagojevich (now in prison) and Pat Quinn, issued executive orders that made home health care providers members of the SEIU and therefore subject to having some of the money they received under Medicaid siphoned off into union coffers. (For details, see my 2014 article about the case.)
A number of the individuals affected by this act of legal plunder (as Frederic Bastiat so aptly put it) filed suit to stop this arrangement that theyd never consented to.
When the case came before the Supreme Court, the 5-4 decision cleanly split the two blocs. The conservative majority held that the plaintiffs First Amendment rights were violated under this scheme, while the dissenting liberals were in favor of allowing it to remain in place. They would have put the interests of powerful alliance between Big Labor and the Democratic Party ahead of powerless individuals who merely wanted to be left alone to deal with their family problems.
If you look at a host of other issues such as entrepreneurial freedom, occupational licensure, and freedom of speech, you find pretty much the same pattern. Liberal judges either torture the language of the Constitution or turn a blind eye to it in their quest for some rationale enabling them to uphold intrusive and authoritarian government policies. They can usually be counted on to side with institutional interests and government power, and to rule against individuals struggling for liberty.
Now if only more v**ers understood that.
Originally posted on Forbes.
ldsuttonjr wrote:
WHY LIBERAL V**ERS SHOULDNT WANT A LIBERAL JUSTICE TO REPLACE SCALIA
George Leef
L*****t writers are arguing that President Obama should nominate someone for the vacant seat and the Senate should confirm that nominee. If the GOP-controlled Senate doesnt cooperate, that will supposedly turn into a potent issue in the e******n because the Democratic v****g base will be so energized at being deprived the sort of liberal judge Obama is certain to pick.
Perhaps that will turn out to be true.
But there is a hidden assumption that deserves examination, namely that liberal judges will decide cases in ways that favor Democratic v**ers, while conservative judges will decide cases contrary to their interests.
That idea is generally false.
In t***h, conservative judges (i.e., those who consistently take a jurisprudential approach that restricts governmental power) often rule in favor of the little guy, whereas liberal judges often rule contrary to their interests. That is not because liberal judges secretly dislike the often poor and powerless litigants who want the government to leave them alone. Nor is it because conservative judges are, despite all the nasty rhetoric about them, actually the friends of such individuals.
The explanation, rather, relates to the great vault line in American politics.
On one side of that line are those who think that more government is presumptively good and therefore officials should be allowed to do what they think best. These people call themselves progressives because they believe that progress comes from governmental social engineering to t***sform the country.
The judges they prefer, taking their cue from Justice Oliver Wendell Holmes, Jr., rarely say no to any but the most blatantly unjustified use of government authority. Their strongest allegiance isnt to the Constitution, the rule of law, or even sympathetic litigants, but to maintaining the power of the administrative state. And the administrative state frequently victimizes poorer people the very people liberal politicians always say they care so much about.
On the other side are those who think that the Founders were right in wanting to keep government power limited. The sort of judges that conservatives (who are often liberal in the original sense of the word) favor are skeptical about using government to t***sform society, both because they doubt that it succeeds and (far more important for judges) because doing so usually has no constitutional warrant. Their allegiance is to the rule of law, but that usually results in decisions favorable to the little guy.
Here are several cases that make my point.
Kelo v. New London. This eminent domain case pitted a few relatively poor homeowners who did not want to have their property condemned by the city (for a big redevelopment project that would mainly have benefited wealthy people) against New Londons government.
The decision was 5-4 in favor of allowing the city to take the property. The Courts liberal wing sided with the city and approved of the notion that the Fifth Amendments provision that property may only be taken through eminent domain for a public use was satisfied when officials asserted that the project they envisioned would be for the publics benefit.
Kelo thus gave (or more accurately, continued) the green light for local officials to collaborate with wealthy companies and interest groups that want to t***sform cities. But who loses out? Overwhelmingly, poor homeowners and small business people who just want to be left alone are the ones who have their land condemned. There would have been fewer eminent domain victims like Ms. Kelo if the Courts conservatives had mustered a majority. (Incidentally, the entire grandiose New London project flopped, so everyone lost.)
Zelman v. Simmons-Harris. A great many Democratic base v**ers are inner-city residents who desperately want an opportunity to escape from public school systems that are dangerous and ineffectual. But there are powerful interest groups (particularly teachers unions) opposed to any such escape and they are fully aligned with the Democratic leadership. So when a school choice program threatens the status quo, what happens?
In Zelman, the public education establishment challenged the legality of Clevelands school voucher program, saying that it violated the Establishment Clause. The argument that allowing students to spend some public money so they can attend private schools with a religious orientation is far-fetched. Doing that no more establishes any religion than does letting members of the military use their GI Bill benefits at the college of their choice.
Nevertheless, the liberal wing of the Court all agreed that the Cleveland voucher program should be stopped as unconstitutional. But unlike Kelo, they were in the minority. The conservative majority found no constitutional obstacle and therefore parents have been able to benefit from school choice. Again, it was the originalist way of interpreting the Constitution that helped them, not the liberal notion of a living Constitution.
District of Columbia v. Heller. Suppose you live in a dangerous city and think that youd be safer if you had a gun. However, the politicians in your city have put in place regulations on ownership of firearms that make it virtually impossible for you to obtain one (legally, at least). Can you count on liberal judges to assist you by striking down those regulations? No, because they are loath to clash with government officials (few of whom have to worry about their own safety) and uphold your rights.
One of Justice Scalias most noteworthy opinions was in just such a case, Heller, where he wrote for a 5-4 majority that the Second Amendment protects individual citizens against overreaching regulations that interfere with their right to keep and bear arms. The dissent in the case came from the Courts liberals who were content to defer to the Districts gun restrictions.
So again, the originalist, limited government jurisprudence of the conservatives was consistent with the desires of little guys who wanted a gun for self-protection. Had the liberals prevailed, city officials who believe (contrary to reason and experience) in gun control would have continued to leave such people at the mercy of criminals.
Harris v. Quinn. Organized labor is always hungry for money, but rather than asking people to provide support voluntarily (through membership due or contributions), its bigwigs prefer to scheme with politicians to force people to pay whether they want to or not.
In Illinois, two Democratic governors, Rod Blagojevich (now in prison) and Pat Quinn, issued executive orders that made home health care providers members of the SEIU and therefore subject to having some of the money they received under Medicaid siphoned off into union coffers. (For details, see my 2014 article about the case.)
A number of the individuals affected by this act of legal plunder (as Frederic Bastiat so aptly put it) filed suit to stop this arrangement that theyd never consented to.
When the case came before the Supreme Court, the 5-4 decision cleanly split the two blocs. The conservative majority held that the plaintiffs First Amendment rights were violated under this scheme, while the dissenting liberals were in favor of allowing it to remain in place. They would have put the interests of powerful alliance between Big Labor and the Democratic Party ahead of powerless individuals who merely wanted to be left alone to deal with their family problems.
If you look at a host of other issues such as entrepreneurial freedom, occupational licensure, and freedom of speech, you find pretty much the same pattern. Liberal judges either torture the language of the Constitution or turn a blind eye to it in their quest for some rationale enabling them to uphold intrusive and authoritarian government policies. They can usually be counted on to side with institutional interests and government power, and to rule against individuals struggling for liberty.
Now if only more v**ers understood that.
Originally posted on Forbes.
WHY LIBERAL V**ERS SHOULDNT WANT A LIBERAL JUSTIC... (
show quote)
Perhaps it's time to inform v**ers the USSC is the 3rd branch of Government for a reason - and that reason is NOT to;
1. make law, only the Congress may do that.
2. enforce or engage in partisan politics
3. interpret the Constitution - it is written in English
4. read the Constitution through an ideological filter
Maybe it's time to go back to appointing non lawyers to the bench, as there is no Constitutional mandate for them to be lawyers. Nor should we be appointing politicians to the bench. It is OUR Constitution and is neither conservative nor liberal - and attempts to MAKE it so - are un Constitutional. There is no "reading between the lines" required.
lpnmajor wrote:
Perhaps it's time to inform v**ers the USSC is the 3rd branch of Government for a reason - and that reason is NOT to;
1. make law, only the Congress may do that.
2. enforce or engage in partisan politics
3. interpret the Constitution - it is written in English
4. read the Constitution through an ideological filter
Maybe it's time to go back to appointing non lawyers to the bench, as there is no Constitutional mandate for them to be lawyers. Nor should we be appointing politicians to the bench. It is OUR Constitution and is neither conservative nor liberal - and attempts to MAKE it so - are un Constitutional. There is no "reading between the lines" required.
Perhaps it's time to inform v**ers the USSC is the... (
show quote)
IPN: I agree totally!!!!!!
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