Baseball Crank
Covering the Front and Back Pages of the Newspaper
April 17, 2008
LAW/POLITICS: One Justice, One Vote

If you want to understand precisely why Barack Obama's sneering condescension towards the beliefs and culture of ordinary voters - and willingness to treat them as irrational prejudices - is a concern in presidential politics, you really need look no further than what happens when such attitudes are brought to the Supreme Court, whose Justices Senator Obama wants to pick. Check out the conclusion of Justice Scalia's brief but masterful concurring opinion yesterday Baze v. Rees, taking Justice Stevens to task for his separate opinion urging that the death penalty be held unconstitutional under the Eighth Amendment (a position the Court had taken once before, only to be reversed by Justices then including Stevens himself), despite the many state and federal legislatures that have repeatedly endorsed it, the many juries that have imposed it, the studies supporting its effects, and the fact that the Constitution itself makes explicit references to the death penalty:

As Justice Stevens explains, "'objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.'" .... "I have relied on my own experience in reaching the conclusion that the imposition of the death penalty" is unconstitutional.

Purer expression cannot be found of the principle of rule by judicial fiat. In the face of Justice Stevens' experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress - who retain the death penalty as a form of punishment - is dismissed as "the product of habit and inattention rather than an acceptable deliberative process." Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a "thirst for vengeance." Ante, at 11. It is Justice Stevens' experience that reigns over all.

(Bold added; italics in original). Read the whole thing; as I said, it's pretty short, as Justice Thomas' separate concurrence (there were seven separate opinions) does the heavy historical lifting.

Now, take note here; it's not Justice Scalia in this debate who wants to take the issue of the death penalty away from the people of Kentucky and make it a matter to be determined by presidential appointees; it's Justice Stevens. I think a lot of Americans wish that we had presidential politics free of hot-button cultural issues, but it's not conservatives who are the main obstacle to doing that. Yet if you listened to Senator Obama last night, he would still have you believe that there's something wrong with voters who care about the rights and democratic privileges that people like Senator Obama want to bring under federal control:

[P]eople are going through very difficult times right now. And we are seeing it all across the country. And that was true even before the current economic hardships ...And so the point I was making was that when people feel like Washington's not listening to them, when they're promised year after year, decade after decade, that their economic situation is going to change and it doesn't, then, politically, they end up focusing on those things that are constant like religion.

They end up feeling this is a place where I can find some refuge. This is something I can count on. They end up being much more concerned about votes around things like guns, where traditions have been passed on from generation to generation. And those are incredibly important to them. And, yes, what is also true is that wedge issues, hot-button issues, end up taking prominence in our politics.

And part of the problem is that when those issues are exploited, we never get to solve the issues that people really have to get some relief on, whether it's health care or education or jobs.

In other words, you're only supposed to vote about what Obama says you should vote about - even when Washington is busy meddling in other areas of life. On the "wedge issues," people who agree with Obama should just be given a free hand. (It's also rather rich for Obama to suggest that guns should not be a political issue given his own record of voting to restrict gun ownership - I guess he cast those votes because he was too bitter to stick to economic issues, eh?).

Cases like Baze vividly illustrate that, for the foreseeable future, the Presidential power to appoint federal judges will have an outsized impact on the resolution of "hot-button" or "wedge" issues. I understand full well why, given the unpopularity of "rule by judicial fiat" for liberal ends, Senator Obama doesn't want voters to consider those aspects of the president's powers in voting for who the president should be. But I very much doubt that most voters are such ignorant rubes that they don't realize that a President Obama would be quite happy to use his powers to advance his own values, not theirs.

Posted by Baseball Crank at 9:19 AM | Law 2006-08 • | Politics 2008 | Comments (7) | TrackBack (0)
Comments

If BO wants guns to go away as an issue because he thinks they are not really important, he can start by saying something like this:

I renounce all prior legislative acts I have taken in regard to support of gun control measures because I now realize I was wrong to oppose a right of the people that is explicitly expressed in the Constitution. Furthermore, if I become your President, I will veto all gun control legislation that is brought to my desk because we already have plent of laws of this nature that restrict a right that is explicitly reserved to the people. I renounce all electoral support of gun control organizations because they are focused on restricting a right that explicitly reserved to the people. It was a mistake on my part to say that citizens who enjoy the right to own and bear arms are doing so out of bitterness or economic exploitation because a quick review of the history of gun ownership in the US will reveal that it does not wax and wane in any type of direct correlation to economic data or conditions. It was a mistake on my part to create an issue that did not exist and needlessly insult good citizens. I apologize to them. This will never happen again.

I'm sure that this will occur as soon as pigs fly, but a little sincere contrition on the part of a politician never hurt.

Posted by: NRA Life Member at April 17, 2008 12:21 PM

IMHO one of the downfalls of voting for candidates based on their stance on specific issues rather than on their core beliefs (and values) is that most of what a politician decides will not be based on his stance on issues, rather what he perceives is the "best" thing to do. The "best" could be for himself or others.

I think it was Lincoln who encouraged people to vote for him based on his beliefs since he stated he will make decisions based on what he felt was right instead of what was politically correct. Certainly history showed he did just that. At times being wildly unpopular but in the long run showing that he made better decisions for the country.

Jimmy Carter also made his decision based on his core beliefs. I don't agree with many of his decisions, but he did stick to his beliefs.

(How often does a conservative refer to both Lincoln and Carter in the same article? That is a first!)

The Supreme Court should not be making decisions on their own beliefs, rather on the consitution. This is one of the reasons that selecting a Supreme Court nominee has become a political hot topic. Some Justices make their ruling outside of what is in the constitution.

Uncovering these core beliefs is important and is not just an attempt to undercut a candidates reputation.

So if you agree with politician's core beliefs (once you know what they are), vote for them.

One of my frustations with Hillary (and her husband) has been that they mask their core beliefs as a means to appeal to larger variety of voters. While most politicians do this to an extent; the Clintons seem to do this alot more than most.

Posted by: Lee at April 17, 2008 12:28 PM

"So if you agree with politician's core beliefs (once you know what they are), vote for them."

To quote the Great Bard, "Aye, there's the rub".

Simplistically, don't listen to what they say unless they have backed it up with consistent verifiable behavior.

Lee, believe me, I share your frustration. It would be so cool if any of these candidates (including McStraightTalk) considered the Constitution to be like a fixed rate mortgage binding both parties to explicit language expressed in the document and ratified by the states. So cool, such a dream.

Posted by: NRA Life Member at April 17, 2008 1:04 PM

The notion that the text of the Constitution conveys unambiguous meaning that will serve as a rule to guide judicial decisions is a foolish fantasy. Justices on both sides of the divide -- yes, even the Sainted Scalia and Clarence "Best Possible Nominee" Thomas do it.

Stevens was wrong in this instance, but if you think that the conservative justices don't do the exact same thing to make a case come out the way they want it to, I've got soem land in Florida I want to sell you.

Posted by: Magrooder at April 17, 2008 5:43 PM

First, to imply that my comments make me naive to think that "..text of the Constitution conveys unambiguous meaning that will serve as a rule to guide judicial decisions ..." is elitist. It is one thing to interpret the intend of the founding fathers and another to dismiss the text of the Constitution entirely. To toss out the Constitution because you have your own personal opinion/agenda is not the role of the Supreme Court.

Secondly, I made no implication that one particular political side is guilty of this. However, it seems (at least in recent times) that the liberal agenda has been advanced more often than the conservative agenda by activist judges.

Posted by: Lee at April 17, 2008 6:51 PM

The Justices should start by trying to understand what the original intentions were. I appreciated Justice's Thomas' explanation of his position in that he really tried to get at the core of what the Founders meant by cruel and unusual punishment. The various versions of the death penalty that were not uncommon in the 18th century apparently creeped them out in the same way that we are repulsed today. On the other hand, if another Justice should (hypothetically) begin his/her consideration of cruel and unusual punishment by noting common practices in 21st century Europe, in my opinion and probably Justice Thomas' as well, they are focusing at the wrong end of the rifle. The whole point of Constitutional interpretation should be to try and figure out what it is telling us to do, and not to figure out how to improve on it without going through the amendment process.

Posted by: NRA Life Member at April 17, 2008 10:25 PM

Sneering condescension!

Wow Crank, you've gone straight off the deep end with this one. You're frothing like a rabid animal.

I swear I almost wish Hillary (who I hate) starts to make some inroads against Obama just so we can get you back.

Posted by: Mike at April 18, 2008 8:01 AM
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