Cleanse, Fold, Manipulate

Ms. Miers nomination has certainly stirred up the hornet's nest amongst the "conservative" rank and file. What we can glean from scant information about her centrist notions on affirmative action, RvW, and other "conservative" causes cause consternation or optimism, in accordance with the beholder's eye. Of course, there's that complete lack of any public record that really leaves us all pretty much scratching our heads.

The religious right just can't understand why their payoff isn't the nomination of a prominent judge who loudly agrees with (and even repeats!) their slogans. Someone who doesn't "legislate from the bench", whatever the hell that means -- I have yet to meet a GOP voter who can successfully articulate an instance of this with any level of specificity. What I mostly get is, "you know -- when they write laws and stuff". Yeah, like when? Where?

Most people just don't get what the Supreme Court does, most of the time. The Supreme Court serves as a check on the power of government. The constitution is the only law of this land that tells the government what it may and may not do. When the Supreme Court (or any other court) is interpreting the constitution, the primary reason it is done is to ensure that your freedoms remain intact, despite the "best intentions" of those in power.

Do you seriously want to dissolve the ability of the Supreme Court to enforce constitutional limits on government? That is a notion of stunning foolishness. Should we wait for a four-year election cycle and use our votes as the sole means of checking government power? One look at the democracy-destroying nature of gerrymandering should convince us all of the inefficacy of that.

What good is a constitution if there is no-one to enforce it? What good is a right to vote if the rules of the game are manipulated by a party immune to constitutional review? The only right to a vote you have is that guaranteed to you by the constitution. Enforcement of the constitution is the cornerstone of democracy.

But back to our Ms. Miers. Why Miers? Does Bush just, uh, like her or something? Does he like her more than Laura? Maybe so. Maybe he really was the "best governor ever!". We should see if she ever lived in Arkansas.

But maybe there's something more to this. The crowd currently in control of the White House (I hold out the possibility that Bush is a member) knows that the GOP is based on an unstable amalgam of a number of groups: The Religious Right, the Anti-Democrats, the Business-Firsters, the Establishment Preservationists, the Fuck-You-I'm-A-Winners, and the Xenophobes. What do they all have in common? Each of these has a single issue that overwhelms all other concerns for them. They are all single-issue voters, so if you tell them what they want to hear on their single issue, they'll vote for you even if you're completely screwing them over in every other way.

I’m using common terminology for the Religious Right, but perhaps you are somewhat mystified by my other GOP-voting categories.

I’ll cheerfully and hopefully place my GOP-voting Perfidy colleagues in the “Anti-Democrat” category. Anti-Democrats vote for the GOP because there’s only one thing they know for sure – as bad as the GOP and all that crooked crowd are, the Democrats are worse. Can’t argue with that – it’s a purely subjective take on the political situation, and they’ve got a right to it.

Business-Firsters want deregulation and low business taxes. They’re a very small group, but they have the money and use it to influence the political process. They want deregulation so they can screw over the public at large while avoiding any responsibility for doing so. They want low business taxes so they can make as much money as possible doing it. Long term, they want something even better than deregulation. They want de-de-regulation. That’s when the government says it’s completely legal for them to do what they want, and it’s illegal for their competitors to do the same thing.

Establishment Preservationists, besides being an ass-kicking name for a band, refers to those wealthy families and groups who believe that change is all fine and good right up until it place them or any of their possessions into any form of risk, or opens them up to any kind of competition. For example, civil rights are fine unless there’s too many brown people showing up in the neighborhood. That “changes” the nature of the establishment, and is thus UnAmerican. The most important example is that of preservation of social class – any changes that would jeopardize the social class (derived from economic status) of those currently at the top is an egregious, UnAmerican change. Can’t have those.

Ah, Fuck-You-I’m-A-Winners: Just like kids playing basketball on the playground, they are all utterly convinced that someday they’re going to be playing in the NBA, or on top of the world. And they’re going to do it by following a system: If they have the right attitude, and connect with the right people, they’ll get what they deserve! Of course, when their spiraling credit card debt hits them between the eyes, they whine about their taxes being too high. When they don’t find themselves “on top”, it’s someone else’s fault. They’re dreamers, and schemers, and playing fair isn’t even slightly on their minds. It’s about getting ahead, and about the competition. The GOP has a special pitch for these folks: They tell them they’re the smart guys, that they get it, and that those stupid liberals just don’t understand the fundamental natural laws, the kill-or-be-killed of it all. They tell them they’re on the team, and that’s all the Fuck-Yous need to hear. They’re a part of the winning team. Virtually all Fuck-Yous circle the drain for a while then end up down, out, and confused, but by that time they’ve voted for the GOP often enough that they become automatic Anti-Democrats.

Xenophobes are the special sub-breed that can’t stand the damn foreigners – they’re like Establishment Preservationists who don’t have money as an excuse. In spite of the fact that declining birthrates mean that structures like Social Security are going to be in trouble they figure that permanently shutting the doors to immigration is the solution to their problems. And screw tourism – we don’t need’em. When pressed they are unable to connect immigration to whatever is troubling them in their personal lives, but dammit, you have to hate somebody, and immigrants are the easiest of all targets.

And the Religious Right? They’re single issue people – abortion. They know that doesn’t play all that well so they’ve jumped on the “legislating from the bench” bullshit so they have at least one secular issue they can talk about. But since they don’t know what it means and can’t cite any examples of it, they’re back to what they really care about, which is abortion.

You may notice the unsurprising lack of the “fiscal conservative”. Fiscal conservatives are currently in hibernation. They find themselves largely in the Anti-Democrat category. If in the future the GOP once again establishes any minute form of credibility when it comes to financial issues, they will re-emerge. In the mean time, they are sliding further and further towards the Democrats. They might even vote for one, someday, or even in the next election. Damn, never thought that would happen.

No, really, I’m getting back to Miers this time – I swear. If you’re the political genius in charge of the GOP, you know that you need to find a way to keep this whole darn crazy thing together. If you gave the religious conservatives what they wanted (abortion), you run the risk of having them look at any other issue. And then you’re dealing with the population at large – a significant portion aren’t going to like what they see in the GOP.

So the very best chance the GOP crowd has to stay in power is to do precisely what George Bush always advocates – Stay The Course. Don’t solve the problems, or give anything to any part of the base that will truly satisfy that base. The cultural war must be continued, for that distraction provides the leverage necessary to win elections, while engaging in policies that harm those who vote for you. If you can’t prove you’re right, then for God’s sake, obscure the fact that you’re wrong.

Harriet Miers keeps the cultural war alive. She’s one skirmish in a larger war.

Posted by Ross Ross on   |   § 6

§ 6 Comments

1

Ross:

Couple of things - thanks for not putting me in the "Fuck-You-I’m-A-Winners" (also an ass-kicking name for a band) category, since on the politico-evolutionary scale, I think they're no better than the mouth-breather wing of the "religious right".

I think you've done a good job of stratifying the support groups, but have made two small but important errors.

Speaking only for myself, even as I think there are many who'd agree, I fit into more than one of your categories. To classify all support for the Rethugs (would also be a great band name, now that I think about it) as single issue is incorrect. I'm afraid that the Democrat Party does the same thing, to their detriment and, by extension, to the detriment of us all. Single issue categorization makes it easy to lump folks into groups which can be ignored en masse, which is a handy little time-saver, but oversimplifies things to the point of being useless for formulating political responses.

The second quibble would be the assumption that fiscal conservatives are in hibernation, although I'd grant you both that there's an intersection between the Anti-Democrats and fiscal conservatives as well as that fiscal conservatives are largely being ignored right now, to my chagrin.

I'd self-classify as an Anti-Democrat (by your defintion, with which I concur, and at no disrespect to actual Democrats, many of whom I count among my friends), a Business-Firster (even as I disagree with part of your definition, the money-grubbing evil part), and a fiscal conservative. Notwithstanding, it is quite conceivable that I would vote for a Democrat in a national or state-wide race, under the right circumstances. Like if I still lived in Ohio, as just one example.

To strict constructionists or originalists, groups that omit me, "legislating from the bench" is the process of asserting rights not specifically enumerated in the constitution. Protecting the people from unconstitutional laws is an undiluted good thing, but it's not true that all Supreme Court actions do so. Sandra Day O'Connors' breath-takingly stupid opinion in the case regarding the UofM Law School (Grutter">http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol… v. Bollinger), wherein she opined that, 25 years from now, everything would be ducky and they could quit discriminating against people of pallor is a perfect example.

Kelo and Raich (both of which O'Connor was on the correct, though minority, side of, as I recall) are cases that give the thoughtful cause for pause about the court's involvement in matters properly left to the legislatures, as well a to evoke wonder whether the court can actually read and understand the actual wording of the Constitution.

Anyhow, back to Ms. Miers, I fail to see where she'll either help or hurt in any of the important areas of constitutional interpretation, and still couldn't give two shits whether she's confirmed or rejected. All this could be moot, anyway - the rumor">http://insider.washingtontimes.com/articles/normal.php?StoryID=20051021… mill is flying.

2

Legislating from the bench? I'm in a hurry just now, so I'll just give you Jones Laughlin for starters.

3

If you're referring to NLRB v Jones & Laughlin, 1937, then I am somewhat perplexed. I looked it up, and this is a case where the SC _supported_ the federal government's legislation. That's not exactly legislating from the bench. What it said was that a federal act regarding labor disputes was a legitimate exercise of power under the interstate commerce clause. Seems to me it's a viable interpretation. The commerce clause is a real catch-all, and I don't particularly like it.

Got anything newer than 1937? :) After all, conservatives complain that the contemporary court is legislating from the bench...not that it once did so!

4

Ross, Patton's slight quibbles notwithstanding, this is good stuff.

That's a slippery concept, "legislating from the bench." I gotta say, even Roe v. Wade, which is infamous for the penumbral quality of its thinking, didn't so much *make* new laws as interpret the constitution in a way that many observers felt was novel.

Or take Kelo. The Court, regrettably, chose to uphold *precedent*. The negative reation that ensued stemmed from the fact that most people had NO idea that the precedents existed to allow a court to come reasonably easily to such a twisted mockery of American libery, but there you are.

Seems to me that usually, "Legislating from the bench" = "I hate that decision and reject its reasoning."

Nu?

5

Agreed, mine own quibbles, such as they were, notwithstanding, Ross makes good points.

Regarding legislating from the bench, pretty much by definition, any time the SC allows federal legislation to stand, they're not legislating from the bench. Derelict in their duty? Maybe, but that's a whole nother thing.

If, asaferinstance, the Jones & Laughlin Ken & Ross are referring to is the same case, and was construed the way Ross describes, it is not an apt example of the genre, even if it occurred yesterday instead of when my Dad was in short pants. (I'm too busy to read it myself, and I trust Ross' interpretation anyway).

If Kelo upheld precedent, I'm not sure what precedent it upheld. I consider it to have been a hernia-inducing extension of precedent, and thus legislation from the bench. Raich, doubly so.

If we're inclined to throw darts at "legislating from the bench", I do feel we need to define one exception to the case where a law, duly passed by the legislature, is upheld. When that occurs, legislation "from the bench" is a dubious claim. However, McCain Feingold, which I consider a hideous intrusion into free speech rights, was legislated via the bench, to no particular discredit of the bench, and utter discredit to the nipplehead who tossed it their way hoping, or pretending to hope, that they'd reject it.

Yep, Chimpy McHitlerBushiBurton.

6

If you prefer, you may look at Jones Laughlin perhaps not so much "legislating from the bench" as "amending the Constitution from the bench" in order to achieve a policy outcome. The legislation was unconstitutional; the words of the Constitution either mean what they mean (based on the original public meaning of the words, not upon the purported intent of men long dead) or they mean nothing at all and there is no effective curb on what the State may do. There is a procedure for amending the Constitution, and this isn't it.

Yes, McCain-Feingold is another example of bench-amended Constitution. So was Carolene Products. So was Kelo v. New London. So was Raich v. Gonzales. So was any decision expanding or confirming the expansion of the powers of government beyond those specifically enumerated according to the original public meaning of the words of the Constitution. That's a whole lot more than space permits, if you can keep track of them as they go by.

Even the majority opinion in Griswold was execrable, although the finding for Griswold was correct. Had the Court simply written, "See Amendment IX. 'Nuff sed," we would be far better off.

It's not just the federal courts, either. There's another case, from New Jersey (and this is a state court case, but the precedent was widely adopted). Unfortunately I can't remember the name of the case and I don't have the book in which I found it with me, but it was from 1953 or 1954. The Court basically discarded decades of precedent prohibiting the use of corporate funds for philanthropy under the doctrine of ultra vires. In other words, if it ain't in the charter you cain't do it. The New Jersey Supreme Court found that firms have additional social obligations, and created from whole cloth the right of managers to spend owners' funds on philanthropy.

By the way, Ross, what's wrong with a 1937 citation? You asked for one example. You got one...and then, unsurprisingly, you moved the goalposts. You should be looking at the scoreboard instead.

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