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Former BUFF driver; self-styled military historian; paid (a lot) to write about beating plowshares into swords; NOT Foamy the Squirrel, contrary to all appearances. Wesleyan Jihadi Name: Sibling Railgun of Reasoned Discourse

Tuesday, May 24, 2005

Chefjef on Judicial Nominations

Referring to this post, Chefjef expands the debate on judicial nominees.

The article in National Review is not excellent, it is a joke. First of all, any aticle purporting to examine a judicial nominee's record would have to be much longer of an article, and include much longer quotes from the nominee's writing. The tiny blurbs in the the article are no different than small blurbs from the Bible that I see on atheist and supremicist websites that easily twist the meaning of the verse, given the lack of the the entire verse being quoted and the lack of perspective available if one is not familar with the book or chapter the verse comes from. The bottom line is, like Monk likes to say, if you don't read the whole thing--and that includes a judicial opinion--then you don't know wht's what.

Second, the article ignores the pedigree of some of Bush's ridiculous nominees, thus there is no perspective. Some of Bush's nominees have been so activist and questionable in their legal work that, at the time, they were criticized by other conservatives in the legal community.

Third, it is a common political tactic for Presidents to nominate some ideological fanatics in order to increase the percentage of their nominees who are appointed; the idea being with attention focused on a couple of nuts, it should be smooth sailing for the others who are comparatively mild.

But lastly, and more importantly, the Dems have confirmed a larger percentage of Bush's nominees than the Repubs confirmed of Clinton's, and despite what you may think of past nominees, most of those being opposed in the here and now should be opposed, just as most of Clinton's nominees who were opposed should have been. The National Review article was in no way informative; it served as an article written by those with a pre-determined position, for those with a pre-determined position, and provided no sufficient empirical material to draw a definitive conclusion about its targert subject's legal acumen or objectivity, either one way or the other. It was a puff piece.

As to the qoute - well, I guess not exactly a quote - from Burkette in your article, it is not as illuminating as you make it seem. I don't completely agree with it. Still, there is no endorsement of murder. She didn't write that he should be acquitted, merely given life in prison instead of death. The topic of the blurb was the defendant's emotional state, which must be discussed as a part of his mens rea, or state of mental intent, which is an element of homicide and MUST BE DISCUSSED AS AN ELEMENT OF THE CRIME AND SENTENCE AS A MATTER OF LAW, DATING BACK TO ENGLISH COMMON LAW. Thus, it is important to understand, even if you disagree with her position, that the issue she was discussing was not a tangential social ranting by a lefty sympathizer (though that may be her ideological leaning), but it had to be addressed (even at the trial stage) as a matter of law, and I'm certain, even without reading the opinion, that it was discussed by the majority (obviously with a different [take]).



Monk here.

I will concede your point on reading out of context--you may very well be right concerning the nominees in question--on whom the Senate has finally agreed to vote, in a deal some on both sides are regarding as a devil's bargain--I have not read enough of their own writings and don't have the requisite legal training to make an informed judgment.

That said, I certainly can, as an informed and concerned citizen, make judgments regarding the larger social issues involved. These may or may not be relevant in the cases at hand. There are two that come to mind.

First, I think it unlikely that any Democratic senators have read any more of the opinions of Owen, Pryor, et al, than I have. They are busy folks and don't have the time. Staffers may have read them; certainly lobbyists for leftist causes read them and submitted talking points. The bottom line is that most if not all Dems oppose these nominees not based on considered judgment of their qualifications or their "activism," but for their ideology--what they are "activists" for (if indeed they are activists). Democratic senators opposing nominees for "judicial activism" is beyond the pot calling the kettle black--it's almost Beyond Irony, as my original post was intended to show. That post pretended no great legal insight or knowledge of qualification details; it was just intended to show that this nomination furor is ideologically motivated and is being carried on in the Senate by the type of folks who probably do sympathize with the opinion I quoted from.

Secondly, I suspect that one of the issues that so irks the Dems specifically and the left in general relates to the nominees' physical and cultural characteristics more than anything else. Most of the nominees threatened by filibuster represent Democratic pet constituencies: African-American, Hispanic, women, Catholics. It's much easier to muster majorities against conservative male WASPS. You can play the race or culture cards against them. The idea that truly conservative nominees come from groups the Dems claim to speak for is like sand in the collective Democratic underwear. And it's a threat--a threat to their status as Official Self-Proclaimed Spokespersons for "Minorities" and the "Oppressed." If women, blacks, Catholics, and Hispanics buck the Party Line, people in those groups--and other groups too--may begin to believe thay have actual freedom of conscience and thought. Dangerous, that. Threatens the powerbase, doncha know. This accounted for some of the most vocal opposition to Justice Thomas' nomination, too: "he can't be a real black man--he doesn't believe what a black man should." What price Janice Rogers Brown?

Underlying all of this, of course, is a fundamental tenet of the left's ideology: that group identity determines both "worth" and thought. All denominations of the relativist religion have believed this, even if they disagreed as to which groups were "good" and which were "bad." Even the determining criteria differed: French Revolutionaries--French class status; socialists & communists--economic class; fascists & many modern leftists: race and/or culture. This deserves fuller treatment in later posts, however.

The bottom line here, from a macro perspective, is that Bush's nominees threaten the left's campaign to stock the courts with judges willing to enact a leftist agenda by judicial fiat that could not be won by popular vote.

PS: I concede that the quoted opinion was directly relevant to the defendant's mens rea, but am still more concerned about the mens rea of the opinion's author--it clearly advocates reducing a sentence because the defendant believed he was murdering out a sense of "social justice." This is the kind of thing we can expect much more of if the left gets its way in our courts.


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