Midnight Meme Of The Day!

by Noah

Trumpanzee prides himself on his tremendous capacity, the best capacity, for stating lies and otherwise misleading his gullible followers. Trump's ability to lie is the best that America has ever seen. His ability to issue insane tweets is also beyond compare, and he usually manages to combine his two talents well. Truly, he has "the best words."

The basic "thought" that Trumpanzee expressed in the above tweet is already being shared enthusiastically by republicans across the country. Hating knowledge and devoid of critical thinking, many of them are now assuming that Justice Stevens is a registered Democrat and acting like the mindless robots that they are. Social media is ablaze with it. Who needs fake news from Russian Bots when we already have Señor Trumpanzee?

You can bet that the enemies of the state at the FOX Propaganda Network are already onboard with the anti-Stevens statement as another one of their cherished "Gospels From der Leader." The problem is, of course, Justice Stevens truly is a lifelong Republican, not some evil "liberal Democrat" as the fellow travelers of Trumpworld now believe and would have you believe.

Scalia (1936-2016)

We mustn't pretend that Justice Nino
was anything but, you know, what he was

UPDATE: Noah passes along a totally to-
the-point thought for the day (see below)

Futurama Wiki

by Ken

It happens every time an American officeholder dies leaving behind a record of evil: Amid the conventional pieties about the great sorrow, the great evil gets lost in the shuffle. In the case of that giant blowhard Antonin Scalia, the Supreme Court justice whose sudden death came as such a shock today, it's especially important not to let the subject pass through with the usual pieties.

In a word, Nino Scalia was a monster, and leaves behind an almost unbroken 30-year career of judicial mayhem -- adjudicating and bullying his fellow justices to adjudicate according to the diseased perversions of his social and political philosophy.

It's all the more important to call Justice Nino on his record because of the pretense he was allowed to maintain that he was a judicial "originalist," that his decision-making process was based on the "original intent" of the framers of the Constitution. Like just about everything this blowhard blew, it was a lie. His opinions were almost always formed in his far-right-wing ideological cauldron, and then dressed up in language pretending to claim knowlege of framers' "original intent," which was always twisted to support his ideologically based opinion.

Justice Nino devoted untold energies in those 30 years on the High Court to transforming the U.S. into the stinking hellhole of his mind: a world of unchallenged privilege for already-overprivileged white male Christians. Justice Nino always got to decide who had what kinds of rights and how much of them; the "originalist" trappings were simply grafted on. When push came to shove, as in the far-rightists's preposterous misreading of the Second Amendment to guarantee a non-existent right of all citizens to own guns, our Nino could not only ignore the "original intent" but ignore the plain language of the amendment, which states clearly that it relates to maintaining militias.

So on matters of government power and economic privilege, we were asked to believe that the framers' original intent was always to favor the power and privilege of the ruling orthodoxy. In matters of civic rights too, the operative concern was for the most restrictive orthodoxies -- as long as it wasn't right-wing orthodoxies that might be restricted.

Finally, some thoughts on a few specific issues:

JUSTICE NINO'S LEGAL "BRILLIANCE"

We're still hearing about how brilliant Justice Nino was, and what a brilliant writer, and all I can say is, once again: WTF? As writing, his Supreme Court opinions were barely a step above gibberish -- thuggish, assaultive, take-no-prisoners gibberish, mind you, but gibberish still. I suppose you could say he was a master of sophistry -- phony-baloney arguments dressed up to sound like simple logic. But I don't get how this passes for brilliant legal argumentation.

Hardly a word of his bombastic blithering ever made actual sense except as shameless bullying, substituting raw prejudice and aggression for argumentation. If any of his opinions had been submitted as a freshman English composition, it would have to have been graded somewhere between a peak of D-minus and a closer-to-typical F-minus. All the self-confidence in the world doesn't make logic-free, ad hominem ranting minimally acceptable argumenation.

THE SUPREME COURT SUCCESSION

I know there's already outrage being voiced at Republican leaders' bald statement that they won't consider an Obama nomination. This is certainly cheeky, but the reality is that as our system has evolved, there isn't much chance of Senate consideration of a Supreme Court nomination that's made in the final year of a presidential term, even though the Constitution doesn't offer any such proscription. But it is the reality, isn't it?

FOOTNOTE: IF THE SHOE WERE ON THE OTHER FOOT

I always like to play this little game, If the Shoe Were on the Other Foot. Of course if it was a Republican president faced with a Supreme Court vacancy in February of the fourth year of his/her term, any attempt by Democrats to interfere with his/her constitutional responsibility to name a replacement would be greeted with choruses of right-wing outrage and cries of "tyranny!"

But for right-wingers nowadays, hypocrisy is considered not just "no foul" but a virtual obligation. If you aren't being hypocritical, it's assumed you aren't really trying.

It's sobering enough to consider that right-wingers now have effective control of the Supreme Court confirmation process, as long as there isn't a 60-vote majority against them, and there isn't ever going to be one. And that means that the Right has influence amounting to veto power over the Supreme Court appointment process, since the right-wingers have effective veto power over any nominee they can muster 41 votes against.

This explains, I think, why -- notwithstanding right-wing invective against "liberal Supreme Court justices" -- we haven't in fact had a liberal Supreme Court justice, as far as I can see, since the retirement of Thurgood Marshall in 1993, and probably won't ever have another. The best we can hope for is moderate justices as distinguished as John Paul Stevens (1875-2010) and David Souter (1990-2009) -- both great justices, I think, for the intrepidity of their support for authentic constitutional values, at a time when those values were being increasingly assaulted by the right-wing thug justices, but neither in any sense a liberal.

The same goes for the Court's current block of moderates: Justices Ruth Bader Ginsburg (1993-), Stephen Breyer (1994-), Sonia Sotomayor (2009-), and Elena Kagan (2010-), honorable moderates all. Godspeed to them all.

There is, of course, an opportunity here for the DSCC --

To campaign for Democratic Senate candidates to retake control of the Senate, arguing the importance of Supreme Court confirmations (and confirmation of other presidential appointees). Democratic control wouldn't change the grim reality of the power of the filibuster, but it would certainly make a difference whether the Judiciary Committee holding confirmation hearings is chaired by a D or an R.

Yeah, I know this is pretty hilarious. I just thought I'd mention it.

ADDITION BY SUBTRACTION: THE
IMMEDIATE POST-SCALIA COURT

My gut response to the prospect of the current eight-member Supreme Court configuration remaining in place for, probably, more than a year: This is probably as good as we're going to get -- a case of addition by subtraction. At least now none of the nightmares that were set to ensue with the old 5-4 majority can happen. (Presumably the Court is sitting on a stack of cases it thought it had "decided" by that majority. Sorry, guyz!) Of course not much good can happen in this configuration except insofar as Slow Anthony K (or just possibly Chief Justice "Smirkin' John" Roberts) is prepared to make it happen, but how is this any different from the situation we've been in?

Obviously there are a lot of cases where the remaining justices will have to try to finesse 4-4 splits, trying to see if there's any kind of decison for which either side can negotiate a fifth vote. This will be especially problematic where federal appellate courts dump conflicting rulings in the High Court's hopper. It will be a mess. But can anyone say that the history of the Roberts Court has been anything but a mess?


UPDATE: NOAH SHARES THIS TOTALLY
TO-THE-POINT THOUGHT FOR THE DAY

"For some reason," he says, "I've been thinking of the attached quote attributed to Clarence Darrow's 1932 memoir."

#

Enemies of the State – Reflections on Insurrection and the Second Amendment

"Famous Whiskey Insurrection in Pennsylvania", an 1880 illustration of a tarred and feathered tax collector being made to ride the rail (click to enlarge; source)

by Gaius Publius

Not long ago, this excellent piece by Ken explored the real meaning of the Second Amendment. An added, also excellent, comment by John Puma contributed to the discussion. I'd like to summarize what these two are saying, then print the whole of the first part of Justice John Paul Stevens' dissent in Heller, the Scalia-authored Supreme Court majority opinion that "found" a right for personal gun ownership in the Second Amendment, an amendment about "militias." At the end, I'll add a comment of my own about American insurrection.

Quoting Adam Gopnik's good essay on this subject in The New Yorker, Ken writes (my emphasis):

To the inevitable argument "that the Second Amendment acts as a barrier to anything like the gun laws, passed after mass shootings, that have saved so many lives in Canada and Australia," Adam replies: "In point of historical and constitutional fact, nothing could be further from the truth: the only amendment necessary for gun legislation, on the local or national level, is the Second Amendment itself, properly understood, as it was for two hundred years in its plain original sense."

So what is the "plain original sense" of the Second Amendment? Keep in mind the times. The Constitution was establishing a strong federal government, and the relationship between that government and the (formerly supreme) state governments were continuously at issue. Each state had a state "militia" — a state army, in other words. Would the federal government require that these state militias be disbanded and replaced with a (standing) federal army?

Keep in mind as well that these state militias (state standing armies) had many functions, including suppressing insurrections — in the South, especially slave insurrections, as Thom Hartmann points out. In fact, according to Hartmann, these "militias" were also called "slave patrols," tasked with hunting down runaways.

But state militias weren't just for use against the slaves. This shows the role of state militias during the Whiskey Rebellion of 1791 (links at the source; my emphasis):

The Whiskey Rebellion, also known as the Whiskey Insurrection, was a tax protest in the United States beginning in 1791, during the presidency of George Washington. The so-called "whiskey tax" was the first tax imposed on a domestic product by the newly formed federal government. It became law in 1791, and was intended to generate revenue to help reduce the national debt.[3] Although the tax applied to all distilled spirits, whiskey was by far the most popular distilled beverage in the 18th-century U.S. Because of this, the excise became widely known as a "whiskey tax". The new excise was a part of U.S. treasury secretary Alexander Hamilton's program to fund war debt incurred during the American Revolutionary War.

The tax was resisted by farmers in the western frontier regions who were long accustomed to distilling their surplus grain and corn into whiskey. In these regions, whiskey was sufficiently popular that it often served as a medium of exchange. Many of the resisters were war veterans who believed that they were fighting for the principles of the American Revolution, in particular against taxation without local representation, while the U.S. federal government maintained the taxes were the legal expression of the taxation powers of Congress.

Throughout counties in Western Pennsylvania, protesters used violence and intimidation to prevent federal officials from collecting the tax. Resistance came to a climax in July 1794, when a U.S. marshal arrived in western Pennsylvania to serve writs to distillers who had not paid the excise. The alarm was raised, and more than 500 armed men attacked the fortified home of tax inspector General John Neville. Washington responded by sending peace commissioners to western Pennsylvania to negotiate with the rebels, while at the same time calling on governors to send a militia force to enforce the tax. With 13,000 militiamen provided by the governors of Virginia, Maryland, New Jersey, and Pennsylvania, Washington rode at the head of an army to suppress the insurgency. The rebels all went home before the arrival of the army, and there was no confrontation. About 20 men were arrested, but all were later acquitted or pardoned. Most distillers in nearby Kentucky were found to be all but impossible to tax; in the next six years, over 175 distillers from Kentucky were convicted of violating the tax law.[4] Numerous examples of resistance are recorded in court documents and newspaper accounts.[5]

The Whiskey Rebellion demonstrated that the new national government had the will and the ability to suppress violent resistance to its laws.

Even after the ratification of the Constitution, state militias had a military function.

Justice Stevens' Dissent in "Heller"

Now read Justice Stevens' excellent takedown of Justice Scalia's majority opinion in Heller. Trust me, you'll enjoy it (my emphasis in italics; links in the original):

Stevens, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 07–290

DISTRICT OF COLUMBIA, et al., PETITIONERS v. DICK ANTHONY HELLER 

on writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit

[June 26, 2008]

Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.

The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939), provide a clear answer to that question.

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

In 1934, Congress enacted the National Firearms Act, the first major federal firearms law.1 Upholding a conviction under that Act, this Court held that, “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Miller, 307 U. S., at 178. The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.

Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there;2 we ourselves affirmed it in 1980. See Lewis v. United States, 445 U. S. 55, n. 8 (1980).3 No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons. Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses.

The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment’s text; significantly different provisions in the 1689 English Bill of Rights, and in various 19th-century State Constitutions; postenactment commentary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Court’s decisional process than on the reasoning in the opinion itself.

Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself, see Mitchell v. W. T. Grant Co., 416 U. S. 600, 636 (1974) (Stewart, J., dissenting), would prevent most jurists from endorsing such a dramatic upheaval in the law.4 As Justice Cardozo observed years ago, the “labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.” The Nature of the Judicial Process 149 (1921).

In this dissent I shall first explain why our decision in Miller was faithful to the text of the Second Amendment and the purposes revealed in its drafting history. I shall then comment on the postratification history of the Amendment, which makes abundantly clear that the Amendment should not be interpreted as limiting the authority of Congress to regulate the use or possession of firearms for purely civilian purposes.

I

The text of the Second Amendment is brief. It provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Three portions of that text merit special focus: the introductory language defining the Amendment’s purpose, the class of persons encompassed within its reach, and the unitary nature of the right that it protects.

“A well regulated Militia, being necessary to the security of a free State”

The preamble to the Second Amendment makes three important points. It identifies the preservation of the militia as the Amendment’s purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be “well regulated.” In all three respects it is comparable to provisions in several State Declarations of Rights that were adopted roughly contemporaneously with the Declaration of Independence.5 Those state provisions highlight the importance members of the founding generation attached to the maintenance of state militias; they also underscore the profound fear shared by many in that era of the dangers posed by standing armies.6 While the need for state militias has not been a matter of significant public interest for almost two centuries, that fact should not obscure the contemporary concerns that animated the Framers.

The parallels between the Second Amendment and these state declarations, and the Second Amendment ’s omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time. Article XIII of Pennsylvania’s 1776 Declaration of Rights announced that “the people have a right to bear arms for the defence of themselves and the state,” 1 Schwartz 266 (emphasis added); §43 of the Declaration assured that “the inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed,” id., at 274. And Article XV of the 1777 Vermont Declaration of Rights guaranteed “[t]hat the people have a right to bear arms for the defence of themselves and the State.” Id., at 324 (emphasis added). The contrast between those two declarations and the Second Amendment reinforces the clear statement of purpose announced in the Amendment’s preamble. It confirms that the Framers’ single-minded focus in crafting the constitutional guarantee “to keep and bear arms” was on military uses of firearms, which they viewed in the context of service in state militias.

The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. Such text should not be treated as mere surplusage, for “[i]t cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison, 1 Cranch 137, 174 (1803). [...]

The rest is a good read as well, though occasionally legalistic, as you'd expect.

Again, the concern of the framers was to protect armed state militias ... only. If they were concerned with protecting the hunting rights of citizens, as the contemporaneous Pennsylvania and Vermont Declaration of Rights documents did explicitly, they would have done so, explicitly. Scalia's opinion, joined by the right-wing majority of the Court, is a 180-degree reversal of the plain meaning of the Second Amendment.

Which leads us to one or two more considerations.

Enemies of the State: The American Insurrection

I have two takeaways from this discussion. Both are striking, and they echo each other in that they stand in 180-degree opposition to each other on exactly the same topic, American insurrection.

First, the primary argument (the "rationale" in sales terms*) of the American Right in favor of a "gun rights" interpretation of the Second Amendment is this: The reason (they say) the Founders wanted citizens to be armed is to oppose the federal government. Yet, as John Puma points out, Article One, Section 8 of the U.S. Constitution enumerates the powers of Congress, one of which is (paragraph 15, my emphasis):

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

▪ So ask yourself — How can anyone, for any minute, consider that a Constitution that protects the government's right to "suppress insurrections" also adds a right that encourages and arms them? The Constitution is plainly, obviously, an anti-insurrectionist document.

Second, it's been clear for some time that the American Right is not interested in government as established by the Constitution. Their elected officials aren't interested in using the power of Congress to govern, in using the power of the Executive Branch to enforce the law; nor are their appointed justices interested in using the power of the Court to enforce the Constitution.

Using the power of government to subvert the government is itself insurrectionist. Which tells us two things — the insurrectionist strain in voters of the American Right (per their arguments in favor of "gun rights") is matched by the insurrectionist strain in their leaders and those who hold office in their name.

▪ So ask yourself — Why is the rest of the country not treating this insurrection as an insurrection, like the Whiskey Rebellion, instead of treating it as just another difference of political opinion? In other words, why are we not treating the virtual (and sometimes literal) armed rebels in the hills as a threat to the existence of our government?

That's a serious question. The rest of the country does not see the American Right as an insurrection, is determined not to, in fact, and also is encouraged not to. The reasons they don't and won't see the insurrection as an insurrection are both revealing and determinative of the outcome. After all, would the modern and mainly corrupted Democratic Party be able to sell its own brand of "rule by the rich" if they didn't have Republicans to point to as political enemies, instead of what they are, enemies of the state itself?

It seems at least possible that if the Democrats didn't keep the insurrectionist Republican Party alive as political enemies, their leaders would have to offer actual popular solutions, Sanders- and Warren-esque solutions, instead of only offering solutions favored by the wealthy that finance both parties.

I'm serious. Picture a world in which the Republicans were delegitimized as a political party. What would happen to the Democratic Party? It would split, of course, into a party that could only offer blackmail as a reason to vote for them, and a party that offered solutions to real problems instead.

Interesting considerations, no?

*The "rationale" in sales terms — The "rationale" is the cobbled-together explanation you give your spouse for why you want some god-awful something he's certainly going to oppose and you're determined to buy. And yes, this is how sales pitches work. They teach you about the "rationale," just this way, in courses about writing these pitches. The rationale always comes second in the pitch, after you stimulate the "want," the lizard brain reason for buying in the first place ("chicks will love you" or "fish will jump out of the water into your net"). 

GP

"The Second Amendment is a gun-control amendment" (Adam Gopnik)

Retired Supreme Court Justice John Paul Stevens

"The right the Court announces [in Heller] was not 'enshrined' in the Second Amendment by the Framers; it is the product of today's law-changing decision.… Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court's announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding."

-- from Justice Stevens's dissent in D.C. v. Heller (2008)

by Ken

In the wake (all too literally) of our latest gunfest, The New Yorker's Adam Gopnik rises to remind us that the Second Amendment, thought to leave us powerlsss to deal with gun violence, in fact does so only because of complete gross misreadings, that in fact "The Second Amendment Is a Gun-Control Amendment," provided that one (a) knows how to read and (b) has the basic historical knowledge to make sense of the nonsense that gun-loving Second Amendment defilers have so thoroughly mucked up.

"It hardly seems worth the energy," Adam writes, "to once again make the same essential point that the President -- his growing exasperation and disbelief moving, if not effective, as he serves as national mourner -- has now made again: we know how to fix this."

Gun control ends gun violence as surely as antibiotics end bacterial infections, as surely as vaccines end childhood measles—not perfectly and in every case, but overwhelmingly and everywhere that it’s been taken seriously and tried at length. These lives can be saved. Kids continue to die en masse because one political party won’t allow that to change, and the party won’t allow it to change because of the irrational and often paranoid fixations that make the massacre of students and children an acceptable cost of fetishizing guns.

To the inevitable argument "that the Second Amendment acts as a barrier to anything like the gun laws, passed after mass shootings, that have saved so many lives in Canada and Australia," Adam replies: "In point of historical and constitutional fact, nothing could be further from the truth: the only amendment necessary for gun legislation, on the local or national level, is the Second Amendment itself, properly understood, as it was for two hundred years in its plain original sense."

But, but, but . . . the Supreme Court, you say? We'll come back to that in a moment. Meanwhile, to summarize what Adam is calling the Second Amendment's "plain original sense," he offers a single sentence:

"Iif the Founders hadn’t wanted guns to be regulated, and thoroughly, they would not have put the phrase “well regulated” in the amendment.

And he offers what he calls "a quick thought experiment":

What if those words were not in the preamble to the amendment and a gun-sanity group wanted to insert them? Would the National Rifle Association be for or against this change? It’s obvious, isn’t it?

And, he points out, "The confusion is contemporary." (To which he adds parenthetically, "And, let us hope, temporary.") This confusion "rises," he notes, "from the younger-than-springtime decision D.C. v. Heller, from 2008, when Justice Antonin Scalia, writing for a 5–4 majority, insisted that, whether he wanted it to or not, the Second Amendment protected an individual right to own a weapon." (Again he adds parenthetically, "A certain disingenuous show of disinterestedness is typical of his opinions.")

This was an astounding constitutional reading, or misreading, as original as Citizens United, and as idiosyncratic as the reasoning in Bush v. Gore, which found a conclusive principle designed to be instantly discarded—or, for that matter, as the readiness among the court’s right wing to overturn a health-care law passed by a supermajority of the legislature over a typo. Anyone who wants to both grasp that decision’s radicalism and get a calm, instructive view of what the Second Amendment does say, and was intended to say, and was always before been understood to say, should read Justice John Paul Stevens’s brilliant, persuasive dissent in that case. Every person who despairs of the sanity of the country should read it, at least once, not just for its calm and irrefutable case-making but as a reminder of what sanity sounds like.

Stevens, a Republican judge appointed by a Republican President, brilliantly analyzes the history of the amendment, making it plain that for Scalia, et al., to arrive at their view, they have to reference not the deliberations that produced the amendment but, rather, bring in British common law and lean on interpretations that arose long after the amendment was passed. Both “keep arms” and “bear arms,” he demonstrates, were, in the writers’ day, military terms used in military contexts. (Gary Wills has usefully illuminated this truth in the New York Review of Books.) The intent of the Second Amendment, Stevens explains, was obviously to secure “to the people a right to use and possess arms in conjunction with service in a well-regulated militia.” The one seemingly sound argument in the Scalia decision—that “the people” in the Second Amendment ought to be the same “people” referenced in the other amendments, that is, everybody—is exactly the interpretation that the preamble was meant to guard against.

Stevens’s dissent should be read in full, but his conclusion in particular is clear and ringing:

The right the Court announces [in Heller] was not “enshrined” in the Second Amendment by the Framers; it is the product of today’s law-changing decision.… Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding.

Justice Stevens and his colleagues were not saying, a mere seven years ago, that the gun-control legislation in dispute in Heller alone was constitutional within the confines of the Second Amendment. They were asserting that essentially every kind of legislation concerning guns in the hands of individuals was compatible with the Second Amendment—indeed, that regulating guns in individual hands was one of the purposes for which the amendment was offered.

So there is no need to amend the Constitution, or to alter the historical understanding of what the Second Amendment meant. No new reasoning or tortured rereading is needed to reconcile the Constitution with common sense. All that is necessary for sanity to rule again, on the question of guns, is to restore the amendment to its commonly understood meaning as it was articulated by this wise Republican judge a scant few years ago. And all you need for that is one saner and, in the true sense, conservative Supreme Court vote. One Presidential election could make that happen.

So now all we need is a Supreme Court majority that (a) can read and (b) understands these excruciatingly simple points. (I will add parenthetically that, personally, I'm not holding my breath.)

#

Justice Stevens's grandkids may not care, but he has some things to get off his chest

by Ken

Admittedly, as subject categories go, the category "Most Charming Utterance Uttered by the Late New York Yankees Owner George Steinbrenner" doesn't promise to be especially broad or arresting. That said, the most charming utterance I'm aware of The Boss uttering was in a respone to a question about the cartoonish version of himself incorporated as a Seinfeld recurring caricature during the period when, improbably and often disastrously, George Costanza worked for the Yankees.

The caricature was actually surprisingly gentle, but still, George had ample reason to be resentful. Instead, he declared himself delighted. He had become, he said, a hero to his grandchildren. For that matter, I recall that the actor Lloyd Bridges said much the same thing about the hilarious character he created on Seinfeld. Bridges had a long and distinguished career on both big and small screens behind him, but suddenly he was on his grandchildren's radar.

Add to the list now retired Supreme Court Justice John Paul Stevens, who appeared recently before the Arlington (VA) Committee of 100 and, according to the Fall Church News-Press's "Man in Arlington," Charlie Clark, "brought down the house."

Stevens verified a few legends from the sports world. Yes, he knew Branch Rickey, the Brooklyn Dodgers executive portrayed in the current film "42" who brought up pioneer Jackie Robinson to integrate baseball. He also interviewed Ty Cobb while researching baseball economics.

Most memorably, he did witness, at age 12, Babe Ruth pointing to the outfield stands during the 1932 World Series in Wrigley Field and placing a home run right where he promised to. Decades later, when the Chicago Cubs invited Stevens to throw out the first pitch, "I was a hero to my grandchildren," he said, "which is more important than these other things."

It occurs to me that this might be a better world if our major players thought occasionally about how their deeds would register with the grandkids. Your average Wall Street or bankster predator, for example. It wouldn't provide any guarantee of superior job performance, but it might give some of those folks pause for at least a second thought before doing their worst.

Not surprisingly, Justice Stevens harked back to a different world.

Memories the justice volunteered included several from his 1975 confirmation hearing after having been named by President Ford. As the first nominee to undergo a new tradition of personal visits with senators, Stevens recalled that Barry Goldwater promised his vote because the two shared enthusiasm for airplanes. Strom Thurmond knew not to ask how Stevens would vote on the death penalty -- "It's not proper to probe candidates' views, one requirement being to keep an open mind until you hear the parties and read their briefs," Stevens said. But Thurmond conveyed his support for capital punishment, and at a later meeting, Ted Kennedy conveyed his opposite view.

The audience participated actively, and here, for the record, are some of the points Justice Stevens made:

• The high court needs more diversity, legislative and military experience and trial lawyers such as Thurgood Marshall.

• The Bush v. Gore case resolving the 2000 election "should have been rethought," as suggested recently by Justice Sandra Day O'Connor. "It was nonsense to apply an equal protection argument to hanging chads versus dimpled chads when the voter's intention for both was clear."

• The 2010 Citizens United decision on campaign spending was "incorrect," but "don't hold your breath for the court to change it."

• The 2012 decision mostly upholding Obamacare vindicated his confidence in Chief Justice John Roberts' "integrity and independence" in following the law even when it's not his policy choice.

• In the coming twin rulings on same-sex marriage, he guesses the court will dismiss the California challenge for lacking jurisdiction and strike down the Defense of Marriage Act as unfair tax policy.

In addition:

Asked by [VA] state Del. Patrick Hope whether he backs mandatory retirement for judges, Stevens said people 70 and older can still contribute. He would have loved to keep working but realized during Citizens United he was having trouble "articulating."

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Would I vote for an 80-year-old U.S. Senate candidate? I don't think so. (Not without grave reservations, anyway)

We know that Senator Dick isn't going to get his six more years. My question is, should he even have asked for them?

by Ken

I understand the conventional wisdom about Indiana Sen. Richard Lugar's Republican primary defeat Tuesday by Teabagging thug Richard Mourdock, until recently a classically unelectable "joke" candidate in his home state. Even though I find it hard not to still think of Dick Lugar as Richard Nixon's favorite mayor, when he was mayor of Indianapolis, I understand that he is what passes today for a Republican "moderate." Heck, even Senate Majority Leader Harry Reid says so.

As CNN expresses that conventional wisdom, "Lugar's loss further polarizes U.S. Senate." And I'm not here to challenge this wisdom. I even have enough curiosity about the Indiana situation to have read Chris Cillizza and Aaron Blake's Tuesday-morning washingtonpost.com "Fix" blogpost, "Dick Lugar is going to lose. Did he have to?" (If I may encapsule the verdict: If he had recognized the Teabag peril and acted early on to crush it, and if he had been willing to do absolutely whatever it took to hold onto his seat, he might have been able to -- leaving open the question of whether either of these conditions applied in the real world.)

Of course we'll never know whether Senator Dick (a) could have obliterated the Teabag challenge with prompt action, or (b) whether he could have turned himself into a sufficiently Teabag-preempting candidate to withstand the challenge -- the indications from his own statements are that that he wasn't prepared to present himself as a frothing extremist lunatic. My own hunch is that he wasn't as clueless about the political shape the race would take as is generally being assumed, that he wanted a seventh Senate term provided he could secure it on the same terms he had the previous six.

But on the whole, no, for once I'm not here to quarrel with the conventional wisdom. I just want to throw something out.

On April 4, Lugar turned 80. In Tuesday's primary, he was presenting himself for reelection to another six-year term in the Senate. Is it possible that this was a factor? I can't imagine that this hasn't been discussed. I just don't happen to have encountered any serious discussion of it. Of course, I wasn't really paying that close attention. Still, I confess that I'm surprised.

I realize I will be thought of as "ageist" for daring to suggest that the senator's age should perhaps have disqualified him from that elusive seventh term. So let me take this into the realm of the hypothetical. Is it ageist to ask: Would you vote to give a hypothetical 80-year-old candidate a six-year Senate term? Even this is arguably too presumptuous, so let me ask instead: Would I vote to give a hypothetical 80-year-old candidate a six-year Senate term? And the answer, I think, is I don't think so -- quite possibly not even if he or she was my all-time favorite pol.

Now I'm assuming that our hypothetical 80-year-old candidate is in manageable physical condition and still-alert mental condition. (At least for now.) Otherwise what is there to talk about? And I certainly don't assume that he won't be able to serve out a six-year term, still in manageable physical and alert mental condition. There are certainly many such 86-year-olds dwelling among us.

Not that many, though. And I would like to think that even our hypothetical candidate would be realistic and honest enough to recognize that in making ongoing commitments, it's prudent to be realistic and honest in how far ahead he or she projects. I am certainly not proposing that we automatically declare anyone unfit for further service to the public weal based on reaching a particular age. We already have too many mandatory retirement ages in place in our society which don't take into account the actual condition of the mandated retiree.

The stark reality is that we all age differently. Goodness knows, I cheered Supreme Court Justice John Paul Stevens on for as long as he felt competent to serve, trusting that he would know when his time came. And I'm delighted to see that he still seems to have a fair amount of juice left in him now that he's retired. That's a lot of responsibility to put on an individual, to know when it's time to hang 'em up, and I suppose we have all those mandatory retirement ages because by and large we don't trust workers to know when it's time.

I don't think there's any question that there are all sorts of commissions, boards, and what-all on which Senator Dick would have been welcomed and where he could have made a real contribution, for as long as he cared to and was able to. But again, an 80-year-old Senate candidate? I would have to know way more about the voters of Indiana to know whether this played any significant part in their thinking. But I think it probably would in mine.

As it happens, my own congressman, Charlie Rangel, is in sort of this situation. Not identical, mind you, but similar. Congressman Charlie is almost two years older than Senator Dick, and as I was writing last month, something in him seems just unwilling to let go. But in his case, at least he's only presenting himself to the voters in his congressional district for a two-year term.

I don't know. I'm just asking.


A REAL-WORLD HYPOTHETICAL POSTSCRIPT:
MIGHT I HAVE VOTED FOR SENATOR DICK?

Yes, of course, I myself might have voted for 80-year-old Senator Dick on Tuesday if I was an Indiana Rerpublican and if I was faced with the choice between him and the Teabagger assclown. But that's a couple of more hypotheticals than I'm comfortable hypothesizing.

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If you have to treat the right-wing thug-justices like regular people, I'm afraid I won't be able to serve on the Supreme Court

Justice Sotomayor with Prof. David Strauss, who moderated her 90-minute appearance yesterday at University of Chicago Law School

"'The public sometimes thinks the justices don't like each other because they read our opinions and see the barbs going back and forth,' she said.

"The reality, she continued, was captured in advice she received soon after joining the court from Justice David H. Souter, whom she succeeded. Justice Souter said the key to a pleasant life on the court was realizing that every justice was acting in good faith."

-- from "Sotomayor Reflects on First Years on Court,"
by Adam Liptak, in the NYT

by Ken

It seems fair to point out that Justice Souter got the hell out of there at the spring-chickenly (for Supreme Court justices) age of 69, and gave surprising indications -- surprising for someone who kept his thoughts to himself as much as he did while he was on the court -- that he departed less than completely thrilled with the temper of the place.

Nevertheless, I'm sure Justice Sotomayor isn't making this up -- that he really advised her that the key to a pleasant life on the Court was realizing that every justice was acting in good faith. You'll notice that I didn't put this in quotation marks, because these words weren't actually said by anybody except Adam Liptak, who's paraphrasing Justice Sotomayor paraphrasing Justice Souter. Nevertheless, as I say, let's assume it's not like the old children's game of "telephone," where all the players pass along the message they think they've just received, until at the end the beginning and ending messages are compared, and hilarity ensues.

I confess I would be interested in knowing what exactly Justice Souter said that has come down to us as the goal of leading "a pleasant life on the court, and what exactly he "realized" about his benchmates which has come down to us as "every justice was acting in good faith."

For the record, the point this Justice Souter's remark (whatever exactly it was) was intended by Justice Sotomayor to illustrate was "the misimpression that there is animosity among the justices" -- again a paraphrase rather than a direct quote, but Adam Liptak has been doing this a long time, so let's assume he got this too reasonably right.

"The public sometimes thinks the justices don't like each other because they read our opinions and see the barbs going back and forth," she said.

The reality, she continued, was captured in advice she received soon after joining the court from Justice David H. Souter, whom she succeeded. Justice Souter said the key to a pleasant life on the court was realizing that every justice was acting in good faith.

I don't know, there seems to me to be a certain intermingling of categories here:

* whether the justices like each other

* whether they respect each other's judicial temperaments

* whether they think their fellows are "acting in good faith"

Come to think of it, assuming Justice Souter actually said just that, about realizing his fellow justices were acting in good faith, what exactly does it mean? I'm assuming it means that they have sincere views on the Constitution and the law and they are making a good-faith effort to apply those views, er, sincerely. But did anybody really question that?

I can believe that Justices Scalia, Thomas, Roberts, and Alito that government was instituted among men for the purpose of having wildly overprivileged rich white men live lives as God's chosen privileged class, while everyone else eats dirt, or maybe wacko, anti-human extreme right-wing ideology, which is even less nourishing than dirt. In fact, I'm fairly sure they all do believe that. I also believe they're truly bad people.

Therefore I have to conclude that I would have little hope for a pleasant life sitting on a court with such people. And so with some reluctance I'm afraid I'm going to have to take myself out of the running for a seat. Oh, I realize the chances weren't all that great (and I realize it's pretty late in the game for me to be trying to figure out what I want to do when I grow up). Still, just so there's no confusion, I want to make it clear that if I'm asked, I'm going to have to pass.

SOME THINGS JUSTICE SOTOMAYOR SAID
WHICH ARE LIKELY TO STICK WITH ME

Interestingly, these all come with actual quotations. Like this one:

She was asked if she had a special responsibility in cases concerning race, gender and class.

"I do think I have a special role on the court," the justice responded, "but not in the way that you think."

She said that she welcomed becoming a role model and noted that there had been "a tremendous uptick" in the number of Hispanic groups visiting the Supreme Court. Meeting with them, she said, is "a priority for me."

But she added that her background did not affect her judicial work. "I don't come to the process as a woman of color, saying that I have to come to a decision that will help a specific group of people," she said.

To borrow a phrase, good answer!

And Liptak immediately follows this with:

On the other hand, she said she disagreed with Chief Justice Roberts's approach to cases concerning racial equality. In a 2007 opinion in a decision limiting the use of race to achieve public school integration, Chief Justice Roberts wrote that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

That approach, Justice Sotomayor said, was "too simple."

"I don't borrow Chief Justice Roberts's description of what colorblindness is," she said. "Our society is too complex to use that kind of analysis."

(She also "expressed some skepticism about two of Justice Antonin Scalia's legal touchstones": trying to divine the original meaning of the Constitution, which he favors, and considering expressions of congressional intent in weighing statutory ambiguities, which he doesn't. By the way, I can't be the only one who's had occasion to speculate that when Justice Nino natters on about the original meaning of the Constitution what he really means, but is uncharacteristically reticent to say explicitly, is: The Constitution was written by rich white men to preserve this country as the privileged domain of rich white men, and as long as he draws breath he will do everything in his power to restore the country to that noble ideal.)

Then there's this:

She also recalled the advice she got after congratulating Justice John Paul Stevens, who retired last year, on one of his opinions even as she expressed doubts that she would ever be able to match the quality of his work.

"Sonia, I wasn't born a justice," Justice Stevens said, Justice Sotomayor recalled. "I've had many, many years. You have all the skills to be a great justice, but you have to develop them and grow into them."

Oh man, does that sound like Justice Stevens or what? An important part of life is figuring out who our role models are. No, I don't expect Sotomayor to develop into a "liberal" justice, any more than Justice Stevens was one. But given the reality that we may never have another actual liberal justice, the fully human, thinking moderates become that much more important.

Whereas those assholes Scalia, Thomas, Roberts, and Alito could spend another 100, 200 years on the court and all they'll develop into is bigger, stinkier assholes.


POSTSCRIPT: ABOUT JUSTICE KENNEDY

I notice that in the foregoing I seem to have given Justice K a free pass. It's not that I don't think he's an asshole. Is there really any question about that? I just don't think he's quite in a category with the others. Kind of confused, maybe, and maybe not all that bright, but a truly bad person? Not so much.

#

Random Musings on 2010 (2)

Goodness, is it already 150 years since South Carolina seceded from the Union? Shouldn't we be celebrating? Not to worry -- see No. 4.

by Noah

1. What would you do if you were in line at an airport porno-scanner and you saw it was hooked up to a fax machine?

2. How long will we have to wait before TMZ offers a Celebrity Porno Scans Calendar? Can they get it out by next Christmas? You bet. Paris Hilton? Seen it, who cares? But Sarah Palin? That will be the first one to go viral. Sean Hannity? There can’t possibly be anybody in the world who would be interested -- outside of the monkey house at the Bronx Zoo, that is. Sadly, Coultergeist has been so apoplectic about being scanned that she’ll never be in the calendar. Many people think she just wants to be felt up as often as possible, but I’m not sure about that. Even a feel-up might reveal a secret she’s been keeping from us all.

3. If Big Oil owned the sun, you’d see solar panels everywhere. As it is, since using the hydrogen in water as fuel shows some promise, Big Oil is buying up water supplies around the world. I can’t help but think of those scenes in westerns where the sadistic bad guy holds the canteen just out of reach from a dying man in a desert.

4. Go ahead, Make our day! I’m not sure what it says on South Carolina’s license plates, but I think “The Nutbag State” would be truth in advertising. Like Alaska and Texas, they keep talking about secession, but SC always throws the Civil War into its unique mix of nutbaggery. This year, it’s not just flying the confederate flag above the capitol building, and it’s not just about their Senator Jim DiMentia croaking things about Obama’s Waterloo. Nope, as a celebration of the spirit of the season, some of SC’s finest goofballs, bigots, and sociopaths are holding a Secession Gala, "Commemorating the 150th Anniversary of South Carolina's Secession from the Union." Just in time for Christmas! If you’d like to go, check out the link. (But hurry, it's tomorrow night.)

Note the Charleston motto: “Charleston, Where History Lives.” They must be proud. You can’t blame me if I happen to think that the “Period formal” dress code might include a post-Civil War night-rider hood-and-gown outfit. I mean, really. The secession of South Carolina led to the breakup of the country and the loss of 700,000 of its citizens. This is something to celebrate? Someone tell the South the war is over and they lost, no matter how many times they reenact it on weekends.

Southerners are getting more and more like Muslim jihadists every year. The Islamic culture is known for carrying grudges at psychotic levels for hundreds of years. It looks like the South is aspiring to do the same. The slaves are gone, folks! You lost the war! Hello! They ain’t comin’ back to pick your cotton! There’s no need. Besides, your senators helped close the textile factories and move them to China anyway.

5. Special Privileges: In February, Billo called for the kidnapping and waterboarding of House Speaker Nancy Pelosi. This is the kind of thing that terrorists would do. If you or I called for the kidnaping and waterboarding of Nancy Pelosi, we would be picked up and detained by the Secret Service. Let’s not forget that the same clown has blood on his hands for the assassination of Dr. George Tiller. Please see my Random Musings #1 regarding one of Billo’s colleagues and a similar incitement. Think of the Fox nutbags as agents provocateurs.

6. The wife of “Supreme” Court Judge and porno addict Clarence Thomas proudly announced that she would protest taxes on April 15. Good for you, bozo! Does this mean the Thomas family refused to accept Clarence’s government paychecks? Are they now selling Clarence’s porno collection to make ends meet?

A day after Clarence’s wifey made her announcement, Michele Bachmann jumped on the bandwagon and encouraged her cult followers not to pay their taxes, going so far as to tell them that they don’t have to. Will she be giving them legal aid when the shit hits the fan? Will she pay their fines and fees? Should I assume that she also will not be accepting her government check?

Meanwhile, I encourage these Republikooks not to make use of anything that is supported by the taxes paid by taxpaying citizens. Please don’t call the police, fire or emergency folks, don’t drink my water, and get off my damn roads!!!

7. Watching Fox “News” is like being a voyeur peeping in on a group home of crazy people.

8. In our country we have freedom of religion, but it has become politically correct to tolerate religious crazies at the same time. The Middle East made the same mistake.

9. And who killed the miners? If not for Tony Hayward, Massey Energy’s chief corporate thug, Dan “Let Them Eat Methane” Blankenship would be the Corporatist Pig of the Year. Blankenship has spent a lot of time and money circumventing the laws of the land. After 29 of his employees died so unnecessarily in his Upper Big Branch Mine in West Virginia, he will be lucky if some of his victims' families don’t do some law-circumventing of their own.

Like Hayward, Blankenship acts like some pompous 19th-century English lord. His employees are just wogs. His mines have been cited for over 1300 safety violations just since 2005, and this was under the Bush administration's era of “voluntary compliance.” Have the fines associated with the violations been paid? Well, 16 percent of them have. Sixteen percent! That’s it. President Obama hasn’t caught up, but as we learned with the BP disaster, the government departments and agencies responsible for following up on these things are still infested with Bush appointees. In more civilized countries like Canada and Australia, the pile of violations that Massey Energy has been cited for would result in criminal-negligence trials. We are becoming more and more like some corrupt Third World country all the time.

10. “Supreme Court” Justice John Paul Stevens retired this year. He was nominated by a conservative Republican president, Gerald Ford, and was supposed to be a safe, conservative judge. Then, like many previous judges, he discovered that the Constitution has a “liberal bias.” Too bad political sleazebags like Scalia and Alito and the sad little joke of a man named Clarence Thomas don’t have the same integrity. For one thing, America would never have had to suffer the deep and possibly mortal wounds of a Dubya presidency. There also would have been no Bush tax cuts for the wealthy that exploded the deficit, no Iraq war that resulted in hundreds of thousands of casualties and deaths . . . .


NOAH'S YEAR 2010 IN REVIEW

10 Random Musings (1)
2010, Looking Back: To Republicans, It Was So Much More Than Just a Speech to Kids

And don't forget 2009's 12 Days of Christmas Scorn!

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Sure, the election makes things even worse for the federal judiciary, but we knew that going in, didn't we?

by Ken

On the most obvious level, if this White House couldn't get its judicial nominees confirmed by the Senate with a majority ranging, at least theoretically, from 58 to 60, what do you suppose the odds are now? Especially now that the Party of No has proof positive that Obstruction Works™. Basically, the administration's way of standing by its picks has been more or less like an especially craven trick-or-treater's: ring the doorbell and then run like hell. At least the trick-or-treater maybe has that trick up his sleeve. At the slightest sign of confirmation opposition, the Obama White House's Rahm-tested technique is to cut and run for dear life, and if anybody asks, we never heard of the poor bastard.

Then when it comes to the higher-level judgeships, the Obama administration has been so cowardly that it's scary to imagine those people going into truly "defensive" mode. It goes without saying that Supreme Court Justices Sotomayor and Kagan represent infinite-orders-of-magnitude upgrades over anything we could have expected to come out of a McCranky administration, or than we can expect to come out of, God help us, a Romney or Palin or Beck administration. These are perfectly competent legal people, and I wish them long and honorable service.

At the same time, as far as we can tell, they represent considerable pullbacks to the legal center from the justices they replaced, Souter and Stevens. Partly this is the apparently standard Obama "negotiating" strategy of setting an initial negotiating position by splitting the difference and then giving away whatever is left. Partly it reflects the president's apparently basic right-of-center orientation. Do we have any reason to believe that anyone in a position of decision-making power wanted a justice more committed to the traditional liberal understanding of constitutional values?

Meanwhile, the confirmation process has become worse. It's now totally under the control of the Right. No, they didn't put up much of a fight, but then, why should they have? Sotomayor and Kagan were replacing justices who were already outside their sphere of influence. In all likelihood would be less pesky from the right-wing standpoint than their predecessors were in their very different ways, but the fact is that as long as the High Court's hard-core extremist majority holds, the minority justices are pretty much irrelevant, except insofar as each of them, because they have actual principles, will occasionally be picked off to support the extremist majority.

REMINDER: IT WASN'T LIBERAL JUSTICES
THAT SOTOMAYOR AND KAGAN REPLACED

I think it's important to restate at every occasion that we're not talking about replacing liberal justices. As much as I respect the sitting centrists on the current Court, there hasn't been a liberal jurist among them since the retirements of William Brennan (1990) and Thurgood Marshall (1991).

The reality for the present and foreseeable future is that no liberal can ever again be considered for the Supreme Court.

So while the truly loathsome creatures who occupy the Republican seats on the Senate Judiciary Committee (my goodness, what a bunch!) now have the confirmation process entirely on their terms; the ground rules are now fixed and unchangeable:

(1) No candidate farther left than dead center can ever again be given consideration of any sort, whereas no limit of rightwardness exists.

(2) No nominee can be confirmed without pinky-swearing allegiance to the right-wing booby-mantra of "just applying the law," thereby guaranteeings that anyone who comes out the other end of the process must by definition be either a liar or a legal ignoramus, because anyone with the legal qualifications to, say, watch The Good Wife, let alone sit on our highest court, has to know that "just applying the law" is literally meaningless.

It still seems to me that the next Supreme Court justice to need a replacement is going to be Justice Ginsburgs. The fact is that no meaningful change in the Roberts Court can be hoped for until once of the extremists justices depart, and there seems no immediate prospect of that. When it happens, though, the new rules of selection and confirmation are going to come into play, savagely.

Of course the judicial arbiters of the Right have now made it crystal clear that with judicial appointments, as with everything else in American political life, lying is not only permissible but mandatory, as long as the lies are right-wing ones. The previous two nominees, John Roberts and Sammy Alito, blithely lied their way through their kid-gloves confirmation proceedings. Far from "just applying the law," they have set out to systematically rewrite the Constitution.

Most of us have had a general sense of the extremist block on the Court, apparently now under the personal management of Chief Justice Roberts, has gone about its work of writing a new Constitution. We've seen, in such well-publicizied instances as the gun rights cases and the Citizens United decision legitimizing unlimited corporate cash for election-buying, the broad strategy: deciding what portions of the Constitution or exististing judicial precedent -- which Roberts and Alito swore to respect (ha ha!) -- they wish to rewrite, then finding the cases and instructing the litigators how the cases are to be argued, and of course then abandoning the old-fashioned principle of deciding cases on the narrowest legal grounds necessary for a decision.

Now, however, it turns out that this is only the public face of what Roberts et al. doing, and literally the least of it. My attention has only been directed to and Oct. 4 Slate piece by Barry Friedman and Dahlia Lithwick, "Watch as We Make This Law Disappear," we've gotten a glimpse of the magician-like skills being perfected the the Roberts Court to perform their wholesale constitutional rewrite while keeping it mostly hidden, following the great insight developed by the right-wing think tanks that in much of our political life it's perception that matters rather than reality.

It's a piece that no one with any interest in our system of judicial review can afford to miss. We're going to need to talk about it, I hope over the weekend.

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As Master Rahm was just telling us at DWT about that next Supreme Court pick . . .

Justice John Paul Stevens -- a tough act to follow

"The complication here is that Stevens is the conscience of the court's liberal wing, and space he occupies now is not a space that any nominee simply fills. So growth capacity -- the potential to grow into a Stevens -- will factor in, too."

-- Marc Ambinder, in an Atlantic.com blogpost today,

"On SCOTUS, Obama's Not Looking for a Fight"

by Ken

Well, no wonder Mr. Ambinder is regarded as such a wise political sage! So, the president's not looking for a fight with his next Supreme Court pick, eh? I don't know whether to say "Gosh!" or "Golly!" 'Cause as we all know, looking for fights is what this administration is all about. (For the record, this is sarcastic, but even if you think of all the fights he's managed to find himself in with those of us to his political left, he hasn't really picked fights so much as he and his red-baiting buddy Master Rahm have goaded us into picking the fights.)

Happily, Mr. Ambinder isn't claiming any special knowledge, though when he notes that he, unlike Business Week (which cites "a White House official familiar with the deliberations" as the source for its list of three candidates who it claims are currently the subject of White House focus), hasn't had any names leaked to him, there does seem to be a note of indignation.

Business Week's three names, by the way, are: "U.S. Solicitor General Elena Kagan and federal appellate judges Diane Wood and Merrick Garland."

As it happens, no one has leaked any names to us at DWT either, which is surprising, given our closeness to Master Rahm Emanuel. So we know the same things everyone else knows:

* that, especially since the administration accepted the SCOTUS nomination framework now cemented in place by Republican obstructionists with the Sotomayor nomination, the nominee has to be, or plausibly pretend to be, a by-the-book, just-read-the-law kind of decider, preferably with a much smaller paper trail than Justice Sotomayor's;

* that the Senate Republicans will raise holy hell, whoever the nominee is, and will make a maximum effort of obstruction;

* that while the Court's philosophical balance is most unlikely to change, when it comes to replacing Justice Stevens, well, you're just not going to replace Justice Stevens's legal and moral authority.

JUST A REMINDER: THERE IS NO "LIBERAL BLOC" ON
THE COURT (BECAUSE THERE ARE NO ACTUAL LIBERALS)

Note that I refuse to refer to Justice Stevens's position as leader of a "liberal bloc" on the Court. Can we be serious for a moment, and acknowledge that there are no liberals on the Court? Just because you're not a screaming right-wing loon hell-bent on shredding the Constitution for the greater glory of the super-rich and powerful, that doesn't make you a liberal.

I assume that for the foreseeable future no liberal can even be considered for the High Court on grounds of confirmability. And it would be fairly silly to expect President Obama, who isn't a liberal and seems to have mostly contempt for liberals, to be looking for one.

William Brennan was a liberal. Thurgood Marshall was a liberal. Whereas Steven Breyer is . . . um, has anyone figured out yet what that guy is? And with all due respect to Justices Stevens, Ginsburg, and Sotomayor, and to former Justice Souter, fine justices all, they never claimed to be, and aren't, liberals. In his recent NYT interview, Justice Stevens insisted to Adam Liptak that he's a conservative.

"“What really for me marks a conservative judge is one who doesn’t decide more than he has to in order to do his own job. Our job is to decide cases and resolve controversies. It’s not to write broad rules that may answer society’s questions at large.” (Liptak doesn't seem to have thought it worth pointing out the pointed jab at the new modus operandi of the Roberts Court, which seems to be to find cases that will enable you to rewrite constitutional law the way you want to and then decide those cases as sweepingly as you have to to achieve the desired result.)

The retirement of David Souter was hard for me, because he had come out of nowheresville to rise so serenely to the challenge of the job. I hope it's not necessary to repeat once again the circumstances of Justice Stevens's appointment, by Jerry Ford, at the recommendation of Attorney General Edward Levi. You have to know it hasn't escaped the attention of the right-wing loonies that Souter's appointment too came at the urging of a stinking Jew, New Hampshire Sen. Warren Rudman. Give the R's credit for learning from their mistakes, though -- you could hardly ask for a scummier succession of thugs than Nino Scalia, Clarence Thomas, John Roberts, and Sammy Alito. That still doesn't make Souter a liberal.

What's interesting is how differently people are interpreting these same nomination "realities." Take the issue of confirmability. It's got that stalwart Democrat, Pennsylvania Sen. Arlen Specter, so spooked, that he confided to Fox Noise his hopeJustice Stevens will stick it out another year, when perhaps the political climate won't be as poisonous. (That seems to me a dangerous assumption, and a confirmation battle in an election year strikes me as carrying risks of its own.) Whereas Ambinder seems to think that, provided the calculations are calculated properly, confirmation is no problem:

Politically, the White House wants to find an unimpeachable nominee who the American people quickly accept. Let Republicans make the noise they do and will -- which may excite their own base but won't really do much more than that -- and get the nominee confirmed quickly, and without and fuss. Kagan, Wood and Garland fit the bill.

Ambinder really earns those big pundit bucks with this divining of the administration's agenda in replacing Justice Stevens:

deally, he's looking for someone who can persuade swinger (uh, swing-ideological justice) Anthony Kennedy to change his mind on a set of issues, someone whose qualifications are beyond approach, who doesn't have a lingering paper trail of outrageous (i.e., conventionally liberal) viewpoints, and yet someone he trusts can subtly steer the court to the left. The complication here is that Stevens is the conscience of the court's liberal wing, and space he occupies now is not a space that any nominee simply fills. So growth capacity -- the potential to grow into a Stevens -- will factor in, too.

I think Justice Sotomayor was an admirable pick, but I don't think any of us kid ourselves that she is going to be, either judicially or personally, a counterweight to the "Let's get ready to rumble" loonies Scalia, Thomas, Roberts, and Alito. And now we have Master Rahm judging what potential nominees are going to grow into?

I assume he hopes they'll all grow into power-worshiping tools like Chief Justice Roberts.


POSTSCRIPT: WHO ASKED SENATOR SPECTER?

I can't resist passing on this wonderful note about our pal Arlen's self-injection into the SCOTUS situation, by Michael McGough on the L.A. Times political blog:

Sen. Arlen Specter has high hopes for Supreme Court Justice John Paul Stevens
April 5, 2010 | 11:29 am

Years ago, I mentally created a file called "Who Asked Him?" in which I lodged presumptuous comments by public officials and others. I just deposited Sen. Arlen Specter's suggestion that Supreme Court Justice John Paul Stevens not retire at the end of this term, despite Stevens' own media blitz suggesting that his days, and dissents, are numbered.

Not that we asked, but Specter (D-Pa.) told Fox News that he hopes Stevens won't step down this year because "gridlock in the Senate might well produce a filibuster, which will tie up the Senate with the Supreme Court nominee." He added, apparently in a rejection of the conventional wisdom that his former Republican Party will pick up seats this year: "I think that if a year passes, there is a much better chance we can come to a consensus." To quote Specter's preferred vote in the Clinton impeachment trial, that theory is "not proven."

Cynics would suggest that Specter himself doesn't want to be tied up by a Supreme Court confirmation at a time he is seeking reelection, the first time as a Democrat. Or maybe from the viewpoint of an 80-year-old senator, a 90-year-old Supreme Court Justice is just hitting his prime.

-- Michael McGough

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Afterthoughts from the inauguration

That's the back of 88-year-old Justice John Paul Stevens as he swore in Vice President Biden, accompanied by his wife Jill, their daughter Ashley, and his sons Hunter and Beau.

by Ken

It was, apparently, a good event to watch on TV, though I'm sure the people who were there will carry special memories of their own. Here are some fairly random things that linger in memory from the day.

SENATOR KENNEDY

It was great to see Sen. Ted Kennedy there, in apparently good spirits, fedora and all -- and this notwithstanding his having to be removed from the luncheon by stretcher following a seizure, which is apparently characteristic of his condition. (His condition was later reported to be stable.)

Who would have thought that the most lightly regarded of the Kennedy men would turn out to make the most enduring public contribution?

JUSTICE STEVENS

I mentioned the Rev. Joseph Lowery's rousing benediction yesterday. The other procedural highlight for me: the swearing in of Vice President Biden by Supreme Court Justice John Paul Stevens, who turns 89 in April.

Justice Stevens's tenacious endurance as the Court was being transformed into a rubber stamp for the rich and powerful has made him one of my personal heroes. He gave every indication of being as alert physically and mentally as everyone has been saying he is, so he seems ready for at least one more Court term. Thanks to his tenacity in outlasting Chimpy the Decider, he can now make his decision about continued service based entirely on personal considerations, and also worry less about what happens if circumstances take the decision out of his hands.

It's worth remembering that Justice Stevens was appointed by Gerald Ford (at the recommendation of Attorney General Edward Levi). If this makes him the most enduring legacy of the Ford administration, it's not a bad one.

OAF OF OFFICE
(not original, but I can't resist using it)

Justice Stevens certainly seemed more alert than Chief Justice John Roberts. The chief justice's conspicuous screw-up with the presidential oath seemed to me revealing of both participants' character. The president-elect came prepared. He had clearly taken the trouble to memorize the oath, whereas the chief justice couldn't be bothered, but then the president-elect froze when the chief justice got it wrong. To his credit, he didn't simply utter the oath correctly from memory; he was, after all, supposed to be repeating after Chief Justice Roberts. And he did eventually decide that that's what he should do. Of course by the time he made his adjustment, the chief justice had corrected himself, so they still weren't quite in sync.

Nevertheless, all the words got said -- including the controversial "so help me God" that's not included in the constitutionally prescribed oath but that regrettably seems to have become standard. (One assumes the chief justice didn't spring this on the president-elect without prior consultation.)

MEANWHILE IN WINGNUTTIA,
I: HE'S NOT REALLY PRESIDENT!

Pursuant to the burbled oath: The wingnut hordes promptly went berserk with the joyous news that President Obama is not therefore legally president! Oh, that crafty Chief Justice Roberts!

Oh, for Pete's sake! At this level of imbecility and insanity, these people should really exercise their imagined Second Amendment rights and buy lots and lots of guns and point them at their itty-bitty brains and just keep shooting -- for a better America.

UPDATE: Fox Noise's Chris Wallace won himself Keith Olbermann's Worst Person in the World citation tonight for taking up this very argument. Of course, strictly speaking, Fox Noise isn't "outside" Wingnuttia -- it's more like the professional arm of the howling loons. Still, if it lies in that Twilight Zone between formal Wingnuttia and and the mainstream infotainment-news media (see below), it does represent a wider scope than I was originally reporting.

MEANWHILE IN WINGNUTTIA,
II: INAUGURAL $$$$$ BULLSHIT

Not just the wingnuts but shamefully large segments of the infotainment-news media have been abuzz with factually bogus stories about the cost of the Obama inauguration -- most preposterously claiming it cost "nearly four times as much" as the second George W. Bush inauguration.

Aside from the conveniently forgotten fact that both W. inaugurations were heavy-breathing pay-to-play operations, where the massive fund-raising, with every attempt made to keep donors' identities secret, was just part of the ritual of business-as-usual under the Bush regime, whereby any dollar that didn't stink with corruption was considered a dollar wasted, or that the Obama inauguration accommodated vastly larger numbers of people, the Bush spending figures are conveniently purged of by far the largest component of the inaugural budget, security, which can easily count for three-quarters of the total tab. Media Matters' Eric Boehlert waded into the muck to try to bring some sense to this hodgepodge of real and imaginary numbers (left unexamined by lazy "reporters"), not to mention numbers that can't be compared directly.

It's reassuring to know that to the knee-jerk propagandists of the infotainment-news media, it's still the case that no lie is too outrageous or excessive if it serves the interests of the Extreme Right.

INAUGURAL MESS

While it's obviously true that yesterday's ceremonies accommodated numbers of people heretofore unimagined for an inauguration, this is not to say that, however much it cost, those people were accommodated adequately.

I'm hearing countless stories of official cluelessness and even chaos, stories of people with tickets being unable to figure out or find out where they were supposed to go, and if they found where they were supposed to go, then being left in limbo for hours, in many cases not to be admitted at all. Arrangements for organizing and moving the hordes seem to have been largely ineffective or simply absent. In at least one section, it appears that large numbers of people whose tickets weren't even checked were admitted ahead of patiently queued ticket-holders.

The size of the crowd would have made the situation hard to manage under the best circumstances, but the breakdown in planning, staffing, and execution seems to have been widespread. There are a lot of directions in which to point fingers (I'm hearing that the heaviest burden may lie with Senator Feinstein's joint congressional committee in charge of the inauguration), but surely most -- if not all -- of them eventually come back to Team Obama.

Is anyone else concerned by this series of staff breakdowns we seem to be seeing, despite the vaunted efficiency of the Obama operation? I still spend odd moments trying to figure out how the Pastor Rick Warren brouhaha was brought about. Even if you admit the sinister theory that people on the team thought it might be helpful in courting right-wing and specifically evangelical support to be seen treating its leftish and specifically LGBT supporters so badly, I just can't believe they're happy with the kind of uproar his invitation to deliver the inaugural invocation aroused. At the same time, how could they have not expected the kind of uproar they got?

Again with the debacle of the surgical exclusion of Bishop Gene Robinson from the "business" portion of Sunday's pre-inaugural concert -- i.e., the portion that was (a) attended by the Obama and Biden families and (b) televised: Even if we accept the Presidential Inauguration Committee's insistence that this was not its plan, how could there have been people at any level of the PIC too dense to understand the significance of the "error in executing the plan" which was built into the final event schedule? And possibly worse, why did nobody anywhere in the organization take the most cursory look at the final schedule and see the problem?

SPEAKING OF PASTOR RICK

I thought Pastor Rick's invocation was fine, starting from the premise that we allow the heavy religious overlay in these proceedings. At the same time, if Pastor Rick were a different sort of person, he might have made a point of saying something to rebut the ugly image of him which has been spread so wide -- based on his own words and actions.

MUSICAL MISHMOSH

It was a nice gesture, having the presidential swearing-in preceded by a brief "serious" musical offering played by the rainbow quartet of violinist Itzhak Perlman, clarinetist Anthony McGill, cellist Yo-Yo Ma, and pianist Gabriela Montero, and it's impossible not to admire their hardiness in performing -- not at all bundled up -- under those weather conditions. The actual offering, John Williams' Air and Simple Gifts, was concocted for the occasion. So-called "occasional" music doesn't have the happiest history, and this didn't impress me as a happy specimen.

Maybe some people found the "air" appealing. I was relieved when it gave way to the celebrated Shaker song "Simple Gifts." Probably the song is best known in the arrangements by Aaron Copland: the piano and orchestral versions of the song itself included among his Old American Songs, and its incorporation in the final section of his ballet Appalachian Spring. "'Tis the gift to be simple," the song starts, and Copland's renderings displayed that gift. The clutter Williams piled on showed that it's a far from universal gift, and I fear served to confirm the suspicion of the many people to whom this was a rare exposure to vaguely "classical" music that it's annoying claptrap.

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