chemjeff's blog

Frequently the liberals on this blog moan and lament that they wish there was a "viable", "sane", "rational" conservative party in this nation.  Now, I think this is mostly a passive-aggressive swipe at the Tea Partiers.  But, I'm sure a few mean it sincerely.  And for those, I've been puzzled by the remark.  Don't they understand that a "viable", "rational" conservative party is one that will compete with liberals and actually win elections from time to time, thereby threatening the liberal agenda?  Why would good, sincere liberals want conservatives to win elections?

And then after reading this column from Jonah Goldberg, it struck me.  They don't want real conservatives.  They want "sherpa conservatives".  They want conservatives that serve merely as guides to the ones who really ought to be in charge, the liberals.

I think this is what turned off so many conservatives to John McCain.  They saw a sherpa-like quality in him, someone willing to "reach across the aisle" to assist his "good friends" on the other side, when that assistance constituted chiefly to modify awful liberal ideas to slighly-less-awful liberal ideas.  Case in point: campaign finance, cap-and-trade, amnesty.  Bully that they are slightly-less-awful; but they certainly shouldn't be heralded as victories for conservatism.  And, quite frankly, I think this is what turns many of the Tea Partiers against the establishment Republicans, other than the clear cultural differences.  When a guy like Cornyn comes out and makes equivocal statements about repealing ObamaCare, the Tea Party crowd gets suspicious that maybe Cornyn isn't entirely opposed to ObamaCare himself.

Well, I want no part of sherpa conservatism.

Something I've noticed: when many leftists make a claim, they tend to use as a source (when they cite a source at all) some leftwing blog entry or opinion piece.  Do you all realize that it's not terribly convincing to cite someone's opinion as a reference for anything?  I'm beginning to get the impression that you don't even realize that a website like, say, Center for American Progress, or Huffington Post, is biased to the left.  Do you just simply accept their claims uncritically?  Don't you realize that if you read only the Huffington Post website, you will get a biased view of events, which is not the same as reality?

Frankly it's irritating when I ask for a citation and I get some random guy's blog page.  That's not a citation, that is just some guy's opinion.  A proper citation is to an authoritative source, preferably in the primary literature.  If you claim that there are 78 billion trillion uninsured Americans and I challenge your claim, I really don't care that you are able to tell me that John Podesta also agrees with you.  I'd like some actual statistics please.

Oh, did I say "right-wing"?  I meant "Nancy Pelosi".

I believe I have a moral obligation to help the less fortunate, but it is my decision on how I will meet that obligation.  I can help out family and friends.  I can donate money or volunteer my time.  I can work to improve myself, knowing that through self-improvement I'll be better able to serve my customers, coworkers, and bosses.  There's a limitless number of ways that I can decide to serve others.

Enter Nancy Pelosi & the Democrats.  They too believe that everyone has a moral obligation to help their fellow human beings, but they have decided to define what that obligation is for everyone.  To them, my obligation must include buying health insurance.  No exceptions.  Because my health insurance premiums will serve to lower the premiums of everyone else, thereby making health care more affordable.  (Maybe.)   

So why should I continue to serve my fellow man voluntarily?  The state is deciding for me how I must do so, under penalty of jail time.  Why should I spend my valuable free time helping the less fortunate?  Isn't that now what I do when I pay my taxes and, if Nancy has her way, buy health insurance?

The problem with the liberal welfare state is that it gradually turns its citizens into selfish bastards.  I no longer need to have charity in my heart; I can live the most self-centered life that I desire, and I can still have a clean conscience when I pay my tax bill.  Liberals blame excessive selfishness on capitalist consumerism, but that is merely a symptom, not a cause.  Why would a good person, with a big heart and a generous spirit, spend his hard-earned money on toys for himself instead of on the less fortunate?  He will, if he believes that his money isn't necessary, that the state is picking up the tab instead.  And that's what is happening as the state decides to become the nation's largest charity.  Slowly, those who are charitable in spirit lose that desire to help others through simple neglect of that part of their being,

I'm sure many people here did too.  It was a fundraising letter on behalf of the NRCC.  I"m sure you also realize that there is a lot of buzz on our side of the aisle when it comes to the 2010 elections.  In short, people are pumped up and excited about voting the Dems (and RINOs) out of office.  Republicans have a real shot at capturing back the House.

Now I know that many people here disagree with the current direction of the Republican Party generally.  But, as a practical matter, 2010 is an opportunity to take Congress in a rightward direction, and we shouldn't squander it.  This doesn't mean that we should necessarily line up and march lockstep, but we should appreciate the opportunity that arises.

So even if you think the Republican Party is too socially conservative, too beholden to business interests, too inept in its leadership - criticisms I share, BTW - I still think we owe it to our principles overall to seize upon this opportunity.  I think it would be a mistake to pout and sit out one more election.  In 2006 - yeah, the Republican Congress had lost its way.  In 2008 - yeah, McCain was a terrible candidate.  But now?  So even if we don't agree with the Republican Party in every detail, this is a big opportunity to put the brakes on our current socialist joyride.

On another thread I was asked this question.  I thought it was important enough to merit its own blog entry.

Here was my response.

With regard to what I hope to conserve: I'm a big fan of Burke on this score.  I believe society is a fragile, delicate, interconnected web encapsulating the inherited wisdom of the customs and traditions of countless generations.  Its complexity is beyond human comprehension.  We mess with it only at our peril.  So I'm not in favor of "socially engineering" anything, because I don't think it's possible to do successfully.  What I want to conserve are the traditions and customs of the past that has led to the extraordinarily free and prosperous nation that we have (well, minus the socialist bits).  To the extent that customs and traditions are no longer compatible with modern values, then let's change our customs and traditions organically, via consensus, instead of having the imposed by judges.  So that's what I believe.

Timothy then responded:

Interesting. You present the development of history toward secular, pluralistic democracy as a conservative endeavor rather than a progressive endeavor. Are you suggesting that, only by slowing the wheels of progress, we've landed in the place we are at? I'm curious; do you think, were we to go back in time and pick out all of the crucial moments of change that have led us to this point, that conservatives would be the champions of those changes or the opponents of those changes, more often than not?

My guess is that you'd find conservative ideology, by its nature (including what you've listed here) would be opposed, more often than not. The changes that have led us to this "extraordinarily free and prosperous nation" are more likely to have been championed by those forces outside of conservative ideology. Right? Isn't that logically necessary?

My response:

Well I suppose it has to do with how you define "accomplishment".  I don't consider the establishment of "secular, pluralistic democracy" as an end unto itself.  I consider it a manifestation of a particular system of ordered liberty through which individuals can pursue their individual aspirations, and it's these accomplishments which I regard as having made this country prosperous.  So it's good that we have a large amount of individual liberty in this country, but it's only what people do with that liberty (i.e., achieve great things) which makes America truly great.  And it's because of the wise customs and traditions of the past that we, for the most part, use the liberty towards positive ends and not negative ones.  Have you ever wondered: why do people, for the most part, stand politely in line?  There's no law against linejumping.  Yet you almost never see it.  Why?

Plus, keep in mind that conservatives are not anti-progress.  We don't really want to stay in the 18th century forever.  There have been changes that have been championed by conservatives, e.g., women's suffrage.  These changes can be well reconciled with foundational principles of our republic.  Many conservatives today advocate for tremendous change: a radically different tax system, for instance.  What I as a conservative most object to is change that attempts to replace the wisdom of the customs and traditions of the past with the knowledge of smart experts.  I don't care how smart the experts are: the "fragile web" of society is beyond human comprehension, and we cannot tinker with it without expecting it  to get all messed up.  I believe it is also why many people perceive conservatives as being "anti-intellectual".  It's not that we hate smart people, it's that we don't think brains can replace wisdom or "common sense".

Furthermore, if we are going to engage in intellectual time-travel exercises, I also think that our current path of historical development is not the best of all possible outcomes.  Who knows, if abolitionists had not insisted so loudly on ending slavery, and we had never fought a Civil War, then legal slavery would likely have persisted longer.  But it would have come to an end eventually, and I think that if slavery had ended without having a shot fired, then we never would have had the racial problems we have had in this country since the end of slavery, because it would have happened organically and not by force, would have been more generally accepted by all.  Incidentally I feel the same way about Roe v. Wade.  Honestly, you pro-choicers should advocate for it to be overturned, because the undemocratic imposition of legal abortion is a non-trivial motivating force for pro-life protesters. If Roe v. Wade is overturned, and abortion becomes a matter to be decided upon by the states, then eventually I think it will become not just democratically adopted everywhere, but also normalized, and in the end you will have won.  Which is, incidentally, exactly how women's suffrage was achieved in this country.  Judges didn't impose it; it was achieved by referenda and by Constitutional amendment (i.e., votes by representatives of the people).

So my answer to your last question is complex.  Even if conservatives had stood in the way of every single one of those changes (which I think is unlikely), then I don't know if things would have turned out worse, or better, or just merely different.  And we can never know.

What do the rest of the conservatives on this site think?  Am I right or am I way off base?

First, let's look to some of the statements presented in defense of The Honorable Judge Soto.

1.  Our very own Nando:

Let me quote to you the words of Antonin Scalia from the 2002 decision Republican Party of Minnesota vs. White:

In fact, however, the judges of inferior courts often "make law," since the precedent of the highest court does not cover every situation, and not every case is reviewed.

How is what he said so very different from what Sotomayor said?

Here Nando is being lazy.  I suspect he is just repeating "research" from lefty websites and repeating them as gospel truth.  The case Nando cites, Republican Party of Minnesota v. White, dealt with a First Amendment case in which state judges in Minnesota were elected by popular vote but were nevertheless forbidden from discussing certain topics during their election campaign.  SCOUTS ruled that this restriction was a violation of the First Amendment.  So this case dealt with STATE JUDGES, not federal ones, and didn't even deal with judicial activism as a core issue.  Nevertheless:

(a) Scalia is a federalist.  It is an entirely consistent federalist position for Scalia, or anyone else for that matter, to admit that Minnesota state judges are little activist hellraisers, as a statement of fact and not of approval, yet still decry judicial activism on the federal bench.

(b) But that isn't even what Scalia is saying in this case.  This quote, found in a footnote buried at the bottom of his opinion (I'm a little weirded out that this particular Scalia quote was so readily available to you), was part of Scalia's response to Stevens' and Ginsburg's dissent on the case.  Here is the entire footnote (you'll have to read the opinion yourself to understand the terms):

12.  Although Justice Stevens at times appears to agree with Justice Ginsburg’s premise that the judiciary is completely separated from the enterprise of representative government, post, at 3 (“[E]very good judge is fully aware of the distinction between the law and a personal point of view”), he eventually appears to concede that the separation does not hold true for many judges who sit on courts of last resort, post, at 3 (“If he is not a judge on the highest court in the State, he has an obligation to follow the precedent of that court, not his personal views or public opinion polls”); post, at 3, n. 2. Even if the policy making capacity of judges were limited to courts of last resort, that would only prove that the announce clause fails strict scrutiny. “[I]f announcing one’s views in the context of a campaign for the State Supreme Court might be” protected speech, post, at 3, n. 2, then–even if announcing one’s views in the context of a campaign for a lower court were not protected speech, ibid.–the announce clause would not be narrowly tailored, since it applies to high- and low-court candidates alike. In fact, however, the judges of inferior courts often “make law,” since the precedent of the highest court does not cover every situation, and not every case is reviewed. Justice Stevens has repeatedly expressed the view that a settled course of lower court opinions binds the highest court. See, e.g., Reves v. Ernst & Young, 494 U.S. 56, 74 (1990) (concurring opinion); McNally v. United States, 483 U.S. 350, 376—377 (1987) (dissenting opinion).

Instead, Scalia is pointing out the inconsistent position of Stevens and Ginsburg.  That is the point of his footnote.

(c) Finally I think everyone would admit, even Scalia, that judges should, on occasion, "make law"; for instance, I don't think anyone has a serious problem with judges ruling that Internet communications are also protected by the First Amendment, even though the Founding Fathers had no conception of the Internet when they wrote the Constitution.  That is because this "making law" is consistent with well-established principles and the original intent of the Constitution.  What we conservatives decry as judicial activism is when judges "make law" based more on their own opinion, or on "changing standards of the times", or on "international opinion", rather than on well-established principles or original Constitutional intent.  That's the real odious part.  So the "lawmaking" that a federalist, strict constructionist judge like Scalia would make is a lot different than the "lawmaking" that a liberal "living Constitution" judge would make.  So how is this relevant in Soto's case?  Well, she certainly admits that the Court of Appeals "is where policy is made" even if she later giggles and feigns not advocating it.  But what is the policy that she would make?  Would it be original-intent policy, or would it be policy based on "changing standards of the times"?  Considering that Soto was nominated by a liberal president, I'm not hopeful on the former.

2. On Soto's much-quoted "wise Latina" comment, defended by our own Jim Dandy:

..when you place it in the context of what was being discussed: 

Race and Sex Discrimination cases! 

There is no question that a Justice who is a woman and a minority would have a different perspective on cases where Race and Sex Discrimnation is involved, would be able to understand the issues better, and therefore be more equipped to render a better conclusion.

Different perspective?  Sure.  But how would this different perspective lead to a better conclusion on any case, even on a race or sex discrimination case?  After all, if she's doing the things that all good non-activist judges are supposed to do - follow original intent, follow legislative intent, follow stare decisis - then who cares what kind of experiences she's had?  All that really matters is her knowledge of the law.  Which leads me to the next point...

3. On Soto's record, presented by BWall:

Sotomayor is anything but a flaming liberal based on the opinions that I have read: she favors judicial restraint in policy-making, has not ruled to extend rights beyond their constitutional basis, and favors consensus with conservative colleagues...

So according to BWall, she's the model jurist.  (More on this later.)  But to the extent liberals believe this, it stands in direct conflict with the intent of her "wise Latina" comment.  Exactly what part of "judicial restraint" means that "wise Latinas" get to make better decisions than white males on sex discrimination cases?  It doesn't.  A person who truly favored "judicial restraint" would be the first one to lambast her for her "wise Latina" comment.

Which leads me to conclude that liberals are trying to pull a fast one here.  They are trying to persuade us that it's possible to have a judge who is not a judicial activist, yet still agrees with the core ideas of identity politics.  Identity politics, by its very nature, is a corruption of justice; it suggests that there should be different standards for different individuals depending on race or sex.  If a judge hears a case on sex discrimination, the race or sex of the judge shouldn't make one whit's difference because justice is blind.  The identity politician, on the other hand, would say that the "better decision" - or really, the only valid decision - can be reached if it is decided by a judge belonging to the same victim class as the oppressed.  Why?  Because, according to the identity politician, justice should not be blind - the scales of justice should be tipped towards the oppressed merely because the judge and oppressed share some common heritage.

So, libs, pick one: either she's a judicial activist who decides cases "wisely" based on her membership in the Coalition of the Oppressed, or she's a model judge who eschews such nonsense.  But you can't have it both ways.

4. Her real record: It is true that there isn't a whole lot of controversial stuff, because mostly what appeals judges do is hear cases from death row inmates or illegal immgrants being deported.  But there are still causes for concern.

(a) Blackman vs. NYC Transit Authority - in this case, Blackman worked for the transit authority and made threatening statements against his supervisors while on the job, for which he was fired.  Blackman took it to court, claiming it violated his free speech rights.  And Soto's court agreed with him.  Oh, did I mention that Blackman also just happened to be the president of the local union chapter representing the transit authority workers?  Soto certainly took notice:

Blackman was an active union member, and a vocal advocate on a variety of issues, including workplace safety. He was, at the time of his December 4 and March 1 comments, the elected local Union Chairman. His violent comments can be viewed against the context of his struggles and frustrations with Transit Authority supervision over these and other concerns — concerns which transcend his own personal interests. It would not be impossible, therefore, to take Blackman’s March 1, 2004 comments as having, to some extent, touched on matters of public concern.

So here we see Soto's "wise Latina" side emerging: because Blackman's just a frustrated union leader working selflessly on behalf of his union brethren, so his violent threats against a supervisor ("I have a .38 and I'm not leaving") can be excused.  Soto sides with the stereotypical "oppressed", e.g. labor, against the stereotypical "oppressors", e.g., management.

(b) Boykin v. KeyCorp: In this case, Boykin, a black woman living in Georgia, tried to get a home equity loan on a house that she owned, and rented out, in Buffalo.  KeyCorp turned down her application because she didn't really live in Buffalo.  Boykin sued, alleging it was really because she was the victim of discrimination.  The circuit judge dismissed her case, but Judge Soto reversed the decision.  Why?  For a bunch of reasons: because the rules about filing deadlines are vague and contradictory, Boykin didn't really miss the deadline so she should be given the benefit of the doubt; because, even though Boykin couldn't point to an affirmative act of discrimination on the part of KeyCorp, since Boykin's a pro se petitioner, she should be given the benefit of the doubt.  Judge Soto bends over backwards giving Boykin the benefit of the doubt here.  Here we see more "wise Latina"-ism: using more judicial contortions to give the "oppressed" a "fighting chance" to have her case heard.

(c) Ricci v. DeStefano: The famous Connecticut firefighters case.  Really, the most obnoxious thing about this case is how brief the opinion is.  Just one paragraph.  If I wasn't as cynical, I might conclude that the judges here simply didn't want to get involved in this case, knowing that either way it would be appealed to SCOTUS.  But the fact that there's a pattern of wise-Latina-ism, plus the fact that Title VII does not permit racial discrimination as a remedy to avoid a discrimination claim (such as invalidating test scores in a racially motivated manner), gives me reason to discount the otherwise inoffensive reason.

So, based on these reasons, I'm not inclined to believe that she's going to be one of those staid, judicially restrained judges.  Instead I think she really meant it when she said that she thinks her activist decisions are better because she has a better grasp of the experiences associated with membership in the Coalition of the Oppressed.

5. Is she a racist?  I think it would be racist for her to claim that her race gives her an edge over everyone else simply because of her race.  Her "wise Latina" comment comes dangerously close to making this claim.

6. Does her membership in La Raza matter?  I don't think so; like what others have said, it may have started off as a Southwestern liberation front, but nowadays I think it is more of a leftist civil rights group.  Of course, it is amusing to note the double standard: liberals never have to explain away their associations with groups or individuals that, in the past, have been hotbeds of radical extremism (Obama-Ayers, anyone?) - it's only conservatives who must atone for their sins if they were ever a member of, say, a secessionist group.

1. If I do not want health insurance at all, and am willing to accept the risks involved, would you permit me to forego it?

2. If all the health insurance I want is catastrophic care, and I am willing to pay out of pocket for everything else, would you permit me to do this?

3. If I have objections to modern medicine in general, either based on religion or efficacy, would you permit me not to subscribe to a health insurance system that is entirely based on Western medicine?

For those of you who support "truth commissions" on the issue of torture, you must provide me with some concrete assurance that it would not devolve into a witch-hunt.  As of yet, I see no reason why it wouldn't.  A witch-hunt is the exact opposite of the rule of law; it is, instead, rule of the mob.  The danger of witch-hunts, of course, is that the zeal of the mob is so strong and so unrestrainable that it ends up destroying those which it shouldn't.  Note that I didn't say "it ends up destroying the innocent" because that is only rarely the case.  Targets of witch-hunts typically aren't innocent angels; they themselves may be guilty of some sin.  Even most of the infamous Salem "witches" were guilty of something (e.g., drinking on the Sabbath, lying to investigators, being 'juvenile delinquents'), just not witchcraft.  But, in the self-righteous atmosphere of the witch-hunt, every sin is considered an irredeemibly damnable offense, and yet one more reason to "dig deeper" to find the "real truth". In this case, I think the most likely result would be that the so-called "truth commission" will end up criminalizing political decision-making.  You can say that George Bush made some poor decisions, and I'd be the first to agree with you.  But that doesn't mean he's a criminal and a traitor, and I don't see any evidence that the mob won't be satisfied until George Bush is put away for treason.  Once the mob gets going, though, there's no way to know where it will end.

If you really favor the rule of law, the answer is simple: prosecute the alleged torturers themselves using the existing law.  Not lawyers, and not politicians.  But it's the truth commission itself, though, that would be corrosive to the rule of law, because it would demonstrate that the law can be sidestepped at a moment's notice by the unrestrained passions of the mob.  Suddenly, the laws on torture would mean nothing; what would matter instead is what the inquisitors of the truth commission thought, using their politically motivated and emotional views on torture.

If you think the law itself insufficiently prohibits or punishes torture, again the answer is simple: change the law.

For you Trekkie fans out there, the TNG episode "The Drumhead" is the classic example of the witch-hunt.  It behooves a re-evaluation at this moment as this nation may soon be thrown into the abyss of drumhead trials.

Or Free Republic, for that matter?  Well, Linda Sanchez (D) thinks it might be a good idea.

(a) Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.

So, let me see if I understand this.  If I go onto Daily Kos and start accusing the posters of being godless communists bent on destroying the USA, using withering inflammatory insults ("severe" and "hostile"), and I do so in a "repeated" manner, then according to Sanchez I should be thrown in jail.

Of course the intention is to stop 'cyber-bullying' among kids.  But here is a pretty obvious case where the proposed action upon the intention will have significant unintended consequences that threaten everyone's liberty.

H/T: Corner, Volokh

It is interesting to note how liberals, when discussing some problem, often speak in terms of programs in order to fix those problems.  Got a housing problem?  Start an affordable housing program.  Got a hunger problem?  Start a nutrition program.  Got an energy problem?  Start a renewable energy program.  These programs are, of course, intended to fix the problems for which they were designed to address.   Consider housing; specifically, the current problem of high foreclosure rates.  Obama has proposed dealing with foreclosures with his housing program.  If an individual wanted to take advantage of this plan, he/she would have to meet the qualifications.  The intention, of course, is that those needing the help would meet the qualifications.  But that isn't always going to be the case.  Some people who ought to be helped won't qualify, for one reason or another; and some people who oughtn't be helped will still qualify anyway.   To use an analogy, government is attempting to cast a wide net to catch fish; no matter how big the net, government won't be able to catch all the fish, and it will end up catching some turtles too.

But if you think about it, "the housing problem" is really composed of a bunch of little problems.  "The housing problem" includes Bob & Judy and their family who, sadly, are being foreclosed on because Bob just lost his job and Judy was just diagnosed with cancer and now has huge medical bills.  That's sad and these people are worthy of help.  But "the housing problem" also includes Vince the house-flipper who got in over his head and now is looking to be bailed out from his bad choices.  "The housing problem" includes Reginald the owner of beachfront resort housing who is rich enough to weather the housing bubble, but, if the government is going to be handing out free money, is more than happy to take a share of it.  "The housing problem" includes Farmer Joe who, during the days of $4/gal gas, put all his eggs in the ethanol boom, and, now, finds himself and his farm overleveraged and doesn't know if he'll be able to keep his farm that's been in his family for generations.  Will Obama's housing program help all these people?  Will Obama's housing program help any of these people?  Maybe 3 out of 4?  We don't really know.

So, naturally, conservatives complain that Obama's program will end up helping people like Vince and Reginald (possibly), and liberals defend Obama's program pointing out that it will help people like Bob & Judy and Farmer Joe (probably).  Conservatives and liberals scream at each other: "You want to bail out the irresponsible!"  "You want to throw poor people into the streets!"  But this shouting match misses the real problem inherent in Obama's housing program, or any housing program for that matter.  To use the fishing analogy again, it's not that government is casting the net too wide, or is using too fine a mesh of net, to catch aquatic life that shouldn't be caught.  The real problem is that government is using only one net.  It has conceived of the problem in the singular form - "the housing problem" - and has designed a singular solution in order to fix it.  Sure the solution may have different components with different strategies, but it is still conceived in response to a singular problem.

And herein lies the real contrast between conservatives and liberals.  We conservatives are less inclined to view these problems as singular nouns.  We understand that there is no single best solution to any of these problems; what will help Bob & Judy will probably not help Farmer Joe, and vice-versa.

So what is government to do?  Well, government could, in principle, tailor its solution to meet the needs of each individual person who ought to be helped.  With the fishing analogy, it would be equivalent to throwing away the net and individually selecting each fish to be caught.  And this solution, while possible in principle, is just not feasible.  Besides, a government which had this sort of immense power is not one that I care to live with.  So this is why conservatives are knee-jerk opposed to new government programs. It's not that we don't want "the housing problem" to be solved.  It's that the government program won't actually solve the real underlying problems (plural) for which it has been designed to solve.