Saturday, May 22, 2010
Back on May 13, I posted something
by Mark Lilla on the Tea Party. Today, Elizabeth Sanders, a professor in the Department of Government at Cornell and a ReligionLeftLaw blogger, posted a comment, at RLL, in response to that post. Elizabeth's
comment is not to be missed ... so here it is:
I'm not
sure it's accurate to see the Tea Party as libertarian, in view of its
flamboyant nationalism, apparent militarism, and unyielding defense of
Medicare and Social Security. We may be over-intellectualizing an
assortment of malcontents. I attended a TP rally in Alabama in April.
It celebrated soldiers and the Bible (Judge Roy Moore of Ten
Commandments fame is running for governor and was the most
rabble-rousing politician to address the rather small crowd).
From my informal survey of my high school class (which appears to
celebrate the TP), I tend to agree with NYT columnist Tom Friedman, who
wrote in a recent Op-Ed,
“Our parents were “The Greatest Generation,” and they earned that
title by making enormous sacrifices and investments to build us a world
of abundance. My generation, ‘The Baby Boomers,’ turned out to be what
the writer Kurt Andersen called ‘The Grasshopper Generation.’ We’ve
eaten through all that abundance like hungry locusts.”
I am a Baby Boomer too. Most of the audience at the TP rally I
attended were baby boomers; most, I dare say, already on Medicare (or if
not, probably some of the lucky few who are still working, and, like
me, have generous employer-provided health and retirement programs).
What I hear the Tea Party baby boomers and their upper-income allies
saying is this:
“I’ve got mine. My government-provided health care is the most
generous available. I can fall and bruise my foot and get taken to the
hospital in an ambulance for days of “observation,” and pay almost
nothing. I can make innumerable visits to the doctor for every health
worry…and they are abundant in my over-fed, under-exercised generation.
Instead of telling me to shape up, cut the fat and salt from my diet and
walk for an hour a day, the doctor will give me prescriptions for drugs
for my blood pressure and cholesterol and the indigestion that attends
overeating, all paid for by the government. I may live forever (granted,
without large chunks of my mind); but my doctor and hospital and the
hugely profitable pharmaceutical industry have every financial incentive
to keep my body alive.
“I ignored the Bush policy of conducting two big wars—one based on
stories about Saddam Hussein being ready to launch a ‘mushroom cloud’ at
us. I thought it was fine to have two big wars while cutting taxes on
upper-income people like me. I agreed with Alan Greenspan when he told
Congress to ignore the growing deficits and not try (like Clinton and
the Democrats in the ‘90s) to cut the deficit and restore a balanced
budget. I also backed the big Republican expenditures for new weapons
systems, highways, agricultural subsidies, and more Medicare drug
benefits (with no controls on drug pricing, and importation of cheaper
drugs forbidden). After all, I benefitted from these policies.
“I also supported deregulation of the finance industry. I believed
Bush and Greenspan when they said this would unleash great free-market
energies with no possible downside. I watched as the EPA, SEC, and other
regulatory agencies were virtually dismantled. Good riddance!
“Now economists say that all those chickens have come home to roost.
The economy tanked because of deregulation and the rising burden of
debt-financed wars and generous baby-boomer health care and retirement
pensions.
“Now, suddenly, I NOTICE the debt, and I am outraged, OUTRAGED that
the Democrats propose extending health care to young and low-income
people. Granted, even my son, a small businessman, has no health
insurance while paying a big chunk of his income in Medicare and Social
Security taxes, but luckily he’s still pretty healthy.
“I want all entitlements and programs for people under 65 cut. I want
the new health care bill repealed. I do NOT want ANY change in Medicare
or Social Security. I refuse a higher co-pay, any limit on drugs or
office visits, and I certainly refuse to work a month beyond my
66th-year retirement eligibility. I’m ready for golf, bridge, and seeing
my friends in the doctor’s office waiting room. I’m happy for the high
levels of unemployment that came with the economic crash of 2008,
because now I can have a housekeeper, home health aide, and a yard man
without paying an arm and a leg.
“I do NOT want to cut the military budget, which rivals entitlements
for a huge chunk of the budget. We need to remain the world’s only
superpower, with a military budget as big as all other countries put
together. The way to fight terrorism is not with wimpy international
police work and pressing Israel and India to end their occupations of
the West Bank and Kashmir. Let people over there go crazy with rage.
We’ll just use our predator drones and missiles to wipe out their
villages.
“So the only way to pay down the huge deficit and cumulative debt
that suddenly worries me is to repeal the health care reform and cut
things I don’t care about. I hear foreign aid is less than one percent
of the budget, but I’m fine with it going to nothing if that will help
to protect my Medicare drug benefit. I also think we spend too much on
education and research. Let the private market provide those services.
“They can also cut out the EPA, as far as I’m concerned. I don’t go
to Gulf Shores much anymore, since my walker doesn’t roll well in sand.
And besides, Rush Limbaugh says the ocean will gradually absorb that oil
without any remediation or regulation. Drill Baby Drill!
I also agree with him when he says we shouldn’t spend a taxpayer dime
to protect silly Louisiana wetlands, if that would mean cutting any
medical benefits for granny. After all, I am granny!
“Hear me roar!”
Friday, May 21, 2010
Thanks, Rick, for calling attention to Michael Winters's post responding to yours and mine. He seems to be a friend of yours, so I'm sure he has some worthy qualities. I therefore don't know what to make of the way he conducts himself in intellectual exchanges. Let's examine his behavior in this one. We can go step by step to show how he willfully twists and misrepresents an interlocutor's words in order to create a false impression of what his opponent is saying.
1. He posts a comment on a pair of Supreme Court cases in which he says: "I am no constitutional scholar, and so I will pass on any analysis of the legal arguments." Got that? He expressly excuses himself from analyzing the legal arguments put forward in legal opinions whose soundness and validity he is about to pass judgment on. He does that on the ground that "I am no constitutional scholar." (Has he even read the opinions? He can tell us, but my bet is that he had not read them. He certainly gave no indication that he had done so.)
2. He declares the rulings to be "sound" and the dissents to be wrong. Of the first ruling, he delcares, "the Court got it right." The second ruling, he says, "is just as sound."
3. So here we have a fellow who by his own account---not mine, mind you, but his own---does not analyze the legal arguments, yet declares one side right as a matter of constitutional interpretation and the other side wrong. Why does he not bother to analyze the legal arguments? Because, to quote him again, "I am no constitutional scholar." Note again, these are his words, not mine.
4. I point out on MoJ that despite evidently not having read the opinions, and despite declaring himself unqualified to judge the legal arguments (yet again: it was he, not I, who made that declaration, and he did so in the context of excusing himself from the responsibility to offer an anlysis of the legal arguments on the competing sides of the case), he declared with utter confidence which side was right and which was wrong.
5. I then drew the inference that seems plainly to follow. What inference is that? Notice that it is not that non-lawyers are unfit to analyze legal arguments or offer opinions on constitutional questions. Rather, it was that "he seems to think that the Supreme Court has plenary authority to invalidate laws the justices regard as unjust and uphold laws they deem to be just." I then observed that "it's a common mistake about the role of courts and the scope and limits of their authority under the Constitution, but a mistake nonetheless."
6. At this point Winters responds with this: "If by this Professor George means that no one but a legal scholar is permitted to assess the basic justice of a court ruling, I will look forward to his making that point at next year’s annual March for Life. I deny the exclusive right to judgment by a priestly legal caste which alone can judge whether or not a given decision by the Court meets the standards of justice I think should be met. And every citizen has the same right to question the Court." Here the manipulation and dishonesty begins. He attempts to cover himself against having it exposed by the expedient of prefacing his characterization of my views with the words "[i]f by this Professor George means." But no one will be fooled by that. What Winters suggests to readers I meant is manifestly not what I meant and is manifestly not what I said. To evade my criticism, he is here attributing to me a silly and condescending view that I do not hold and, indeed, firmly reject, namely, the view that only "a legal scholar is permitted to assess the basic justice of a court ruling," and that members of "a priestly legal caste" alone are fit to "judge whether or not a given decision by the Court meets the standards of justice . . . ."
7. So, instead of answering my criticism and engaging in fairminded and honest debate about points on which we (I assume) disagree, he lowers himself still further, stooping to a purely ad hominem argument underwritten by his blatant misrepresentation of what I had said: "As for Professor George’s condescending tone, what to say? If he were unable to write condescendingly, he evidently could not write at all. It is his only key."
Mr. Winters' behavior here is, alas, very much in line with his conduct in the only other case in which I had dealings with him. That was when he misrepresented what I had said in a public exchange with Douglas Kmiec at the National Press Club in Washington, D.C. regarding the Obama administration's policies on abortion and embryo-destructive research. Since I don't know the man, I have no idea what's behind it or what he hopes to gain by conducting himself in this way. It doesn't advance the discussion of points of disagreement and it makes him look bad. If he wants to criticize my views and arguments, it would be far more constructive---and honorable---to engage what I actually believe and say and offer readers his reasons for believing that I am in error.
Dayton Daily News
May 20, 2010
Montgomery County Common Pleas Judge A. J. Wagner has asked to be excused
from the case of Cody Henderson, 20, indicted on three counts of aggravated
murder, including murder for hire. It’s a death penalty case, and Judge Wagner
opposes the death penalty. His desire not to serve clearly applies to all death
penalty cases.
This is unusual. Several law school professors around the state who follow
these matters were contacted by the Dayton Daily News. None could think of a
case of a judge making such a request.
Presiding Judge Barbara Gorman approved the request, saying she has approved
all requests for recusal.
Judge Wagner made his request not by filling out the usual form, but by
putting together a 135-page
submission. It includes material from a respected group of lawyers that has
studied how the death penalty is applied.
Despite the length, his argument comes down to a simple matter: He cannot
justify the death penalty on moral, constitutional or religious grounds. So is
he right in recusing himself?
Well, if he is not going to impose the death penalty no matter what, then, of
course he should not be sitting on a death penalty case. The law obliges him to
proceed on a case-by-case basis. A judge has to follow the law.
The larger question here is whether somebody who can’t follow the law should
run for a position as a common pleas judge. Capital cases are part of the
territory, after all. Could he have done something short of recusing
himself?
Lori Shaw, assistant dean for student affairs and professor of lawyering
skills in the University of Dayton School of Law, suggested one option might
have been hearing the case but then ruling that the death penalty is
unconstitutional. That ruling wouldn’t prevail, but it would fight the fight, at
least more than simply passing the case on to somebody else.
Judge Wagner wonders, however, whether it would be appropriate to preside all
the way through a capital case in the full knowledge that he wouldn’t apply the
ultimate sanction.
Judge Wagner isn’t slated to face voters until 2014. Whether pro-death
penalty voters should be upset with him is not so clear. After all, if he
refuses to hear a case, the case might go to a judge they might like better.
Still, some voters are likely to have an opinion on this matter.
Even before that, though, the question arises: Should a judge stay in a job
in which he refuses to do the biggest, toughest tasks?
Judge Wagner says the question isn’t compelling because death penalty cases
are rare. This is his first, except for one in which a plea bargain had been
arranged, he said.
Recusing oneself from a case is a respected mechanism. It’s used when a judge
knows a person involved in the case or has some other potential conflict of
interest. But it’s typically used one case at a time, not for a category of
cases.
And not for such a tough category. After all, many judges dread death penalty
cases. Some oppose the death penalty as law, but feel they must enforce the law.
When a judge declines to take up the burden, that means somebody else ends up
with it, in this case Judge Mary Wiseman.
Judge Wagner says that when he first ran for judge at the beginning of the
last decade, he thought he could handle a death penalty case. His thinking
gradually changed. But he was last elected in 2008 (unopposed).
He has now thrown the court and the public a curve ball, and some people have
a right to be upset.
Judge Weinstein is still trying to make the law "less cruel". Read about it, in the New York Times, here.
Michael Sean Winters responds here to recent posts by Robby and me, in which we expressed some disagreement with the Court's recent Graham decision, in which the Court ruled that it is unconstitutional to sentence someone to life-without-parole for a non-homicide crime committed as a juvenile.
Also very worth reading on this matter is this piece, by Benjamin Wittes, which Winters also engages.
Winters writes:
This commitment to judicial restraint is undoubtedly true about some policies, but the policy in question is about punishment, and the Constitution, which the Court interprets, guarantees you and me the right to be free from cruel and unusual punishment. I do not see why the legislature in Florida should receive carte blanche to decide what is and is not cruel anymore than I think they can decide what is, and is not, protected speech under the First Amendment. The Florida legislature, after all, did not do such a great job interpreting the requirements of the equal protection clause for many years.
I emphatically do not want the Supreme Court to yield its authority to interpret the guarantees in the Bill of Rights to any legislature. Is it really that hard to believe that a legislature could adopt a statute the plays well politically but which violates the constitutional rights of citizens? Or, that 37 state legislatures may have over-stepped into cruel, and therefore unconstitutional, territory? The judicial branch is the least responsive to popular opinion for a reason, because sometimes the mob seeks injustice, and the political branches cave. I think the Founders knew what they were doing in creating one branch that was removed far from the popular will.
This excerpt makes me worry that my own post, to which Winters was responding, was not sufficiently clear. My point is not that the Court lacks authority to interpret and enforce the Eighth Amendment. Rather, it is that the judicially enforceable content of the Amendment needs to be very carefully identified, in a way that is sensitive to the danger that judges can confuse their policy preferences with the Constitution's requirements. It's not a question of giving "carte blanche" to the Florida legislature, or even of denying the claim that the 8th Amendment's meaning "evolves." Rather, it's a question of according appropriate skepticism to a claim that the Constitution prohibits, as "cruel and unusual", a penalty that 37 (I think) states authorize.
