• Peterr commented on the blog post Brownback Turns Harder to the Right, as if That Were Possible

    2014-10-18 10:01:54View | Delete

    This appeal to the will of the voters probably isn’t going to help Brownback as much as he thinks, though, given how voters’ views have shifted. From the Wichita Eagle:

    Further evidence that Kansans’ views of same-sex marriage have changed a lot since the constitutional ban passed with 70 percent of the vote in 2005: The latest Public Policy Polling survey of Kansas found that while 49 percent of those surveyed oppose same-sex marriage and 44 percent support it, 70 percent think that when it becomes legal it will have either a positive or no impact on their lives (12 and 58 percent, respectively).

    PPP press release on the whole poll here.

  • Many thanks, Erwin, bmaz, and Dahlia, for this great discussion!

  • I smell a sequel . . .

    Any other issues you wanted to include but decided not to?

  • I suspect the lack of dissents to cert petitions that were refused had to do with internal SCOTUS politics.

    I can easily hear an argument being made to either of these two justices: “Even if SCOTUS were to take the case, you don’t have the votes to win. You’ll just enrage the other justices, who will see this as grandstanding and a waste of the Court’s time. Better to swallow the defeat quietly, and try to influence things behind the scenes in a less confrontational manner.”

    I don’t agree with the argument, mind you, but I’ve heard it in far too many analogous situations as an excuse for not making a stink that it immediately comes to mind when I saw this question.

  • Reading your book while following the ongoing news out of Ferguson MO (where I used to live) was very depressing on this point, especially the chapter on “Abuses of Government Power”.

    Similarly, the Kansas court fights I referred to earlier had to do with school funding, mandated by the Kansas Constitution and viciously opposed by the hardcore rightwingers now led by Sam Brownback. As I wrote at FDL earlier this year, the Kansas Supremes were not amused by Brownback’s assertions of legislative and executive supremacy over the courts.

  • But for far too many women, Hobby Lobby takes away the ability to exercise that right in a manner open to most other women.

    Rights without the ability to exercise them are no longer rights.

  • I have identical discussions with some of my clerical colleagues, including a number of bishops, and share your incredulity.

  • There’s an interesting question for a confirmation hearing: “In your years as a judge, you’ve written many opinions, and anyone with that many opinions and ruling has to have some that make you look back and say ‘What was I thinking when I said X?’ Can you describe one such ruling, and then describe how recognizing the mistake you made has changed your approach as a judge?”

    Of course, the nominees with the least humility and most hubris will be the least likely to say anything substantive in response, but even asking the question would make a difference.

  • Saying the Court through history “has largely failed” is different from saying that it is a failure. As you note at the end, what would be the better alternative?

    Your final paragraph says “It is time to get past the facade of the marble columns and the mystique of justices who appear in robes from behind heavy curtains . . .”

    Yes, and this is why televised proceedings are so important. This is why honest confirmation hearings (rather than scripted kabuki) are so important.

    Instead of fearing change, SCOTUS needs to be convinced that changes like these will enhance the authority and standing of the Court.

  • Sadly, at the state level, conservative GOP majorities and governors are bent on rolling back merit-based selection processes. I live in metro Kansas City, and in Missouri (which once boasted of the best merit-based program around) and next door in Kansas, the GOP has been slapped down by courts shaped by relatively merit-based programs, and they are aiming to shut them down in reaction.

    The problem, by the lights of these conservatives, is that so-called merit-based selection processes put too much power in the hands of the liberal American Bar Association and in particular, liberal trial lawyers. The result is liberal activist judges and liberal activist courts, overturning the will of the voters, and This Must Be Stopped.

    Or words to that effect.

    Frankly, I think you’ll see cameras in SCOTUS before you’ll see a significant merit-based selection process.

  • The biggest part of the hesitancy is, in my oppinion, tied to accountability and the notion of the Court being “above it all”. Imagine what Jon Stewart et al. would have done with video in reaction to Scalia’s enormous factual error in a reference to case he cited to buttress his dissent in Environmental Protection Agency v. Homer City Generation, in which he completely misstated what he himself had written in an earlier case.

    To borrow from the language of my discipline, far too many SCOTUS justices seem to operate with a sense of Legal Infallibility, and Scalia is probably the most visible example. I cannot imagine that this attitude will persist, as future justices coming up through the district and appellate courts will be increasingly familiar with televised court proceedings, either in their own courts or in the courtroom next door.

  • I think the strongest explanation of the current court’s opposition to cameras was stated well by Erwin in the book, which can be distilled down to two words: Jon Stewart.

    If an earlier era joked that you know you’re having a bad day when Mike Wallace and his 60 Minutes camera crew were waiting to speak with you in the lobby, today’s corporate/governmental fear is appearing on Jon Stewart.

    Do NOT underestimate the fear that he inspires, particularly among those who see themselves as unaccountable to the unwashed masses.

  • What a great book! I say this not as a lawyer, but as a Lutheran pastor who enjoys reading legal opinions, particularly those involving appellate decisions.

    Your last chapter was particularly interesting, as the introductory post makes clear. In thinking about your comments on the confirmation process and possible changes, I was struck by what seems to me to be an obvious direction to take things that you did not mention at all (much to my surprise).

    The very first item on your list of potential reforms is to clarify the role of SCOTUS – protection of the minority from the tyranny of the majority, enforce the constitution in times of crisis, ensure redress for constitutional violations, etc. If (as seems to be the current situation) specific issues are ruled out of bounds as subjects for questions, probing a nominees views on the role of the Court generally seems to me to be a very good way to get this discussion going.

    It would also shape the discussion in future oral arguments before the court. I can easily imagine one of the lawyers noting “As Justice X said in his/her confirmation hearings, one of the principle roles of the Court is to do A, which is why we are here today. . .” It would have the effect of holding a justice accountable for what is said during his or her confirmation, in that he or she would have to address their prior stated views and explain how they have grown or shifted, if the justice has indeed shifted.

  • Peterr commented on the blog post Holding Politicians Accountable

    2014-09-28 14:05:26View | Delete

    The second paragraph of Hardy’s paper is this:

    One element of this understanding must be a recognition of the possibility of regulatory capture, that is, the possibility that the regulated institutions exercise excessive influence on the regulator. A captured regulator acts primarily in the interests of the regulatees, rather than in accordance with their putative mandate to promote the common good.

    How Hardy gets from there to the definition of regulatory capture in the quotation in the post above is a real feat of contortion.

  • Peterr wrote a new diary post: Schooled

    2014-09-24 19:52:33View | Delete

    This is hilarious. The conservatives took over the school board in Jefferson County, CO, and took steps to redo the American History curriculum, which has not gone down well with students, parents, and staff in the schools. As the Denver Post described things , “Community members are angry about an evaluation-based system for awarding raises to educators [...]

  • Peterr commented on the blog post More Troubles in Kansas for the Wizards of Oz

    2014-09-20 09:56:09View | Delete

    If Orman wasn’t running, I think Taylor could have taken Roberts. The hardcore GOP folks do not like Roberts at all, and a fair number may stay home in November. The moderate Republicans do like him, but are increasingly disgusted with what the GOP has become, both nationally and especially in Kansas. Taylor was appealing to some of these folks, but Orman much more so.

    I don’t know all of Taylor’s reasons, but I’m sure he could see the polling that showed him falling and Orman rising.

  • Peterr commented on the blog post More Troubles in Kansas for the Wizards of Oz

    2014-09-20 09:53:56View | Delete

    Orman is a mixed bag. He made his first big money starting a company called “Environmental Light Concepts” that worked with industrial and commercial customer to be much more energy efficient in their lighting. He toyed with running as a Democrat in 2008, but decided not to. I’m not thrilled with his whole “both sides do it” vibe, but he’s a damn sight better than Roberts.

    He has not declared who he would caucus with should he win, but says this:

    If I ‘m elected, there’s a reasonable chance that neither party would have a majority in the US Senate. If that is the case, I will work with the other independent Senators to caucus with the party that is most willing to face our country’s difficult problems head on and advance our problem-solving, non-partisan agenda.

    When it comes time to support a candidate for Majority Leader, I’ ll encourage both parties to select a leader who has a demonstrated track record of working across the aisle as one indicator of his or her willingness to solve problems. I’ll also look at responsible leaders from both sides like Democrat Heidi Heitkamp and Republican Lisa Murkowski who are willing to cross party lines to vote for what is right.

    Both Harry Reid and Mitch McConnell have been too partisan for far too long to earn my vote for Majority Leader.

    With that said, if one party is clearly in the majority, I will seek to caucus with the party that was in the majority as that would be in the best interest of the state of Kansas.

    But caucusing with a party does not mean voting with them on every issue. My vote to caucus with a party is dependent on their willingness to seek common-ground solutions to our nation’ s problems. That means I will vote on each bill individually,based on the content of the proposed legislation.

    My first and only allegiance is to the people of Kansas — not a political party — so should the caucus I join fall into bad behavior, I will represent the people of Kansas appropriately and vote on the merits of the legislation instead of how party bosses demand. I will always seek common sense solutions while maintaining my independence from either the Republicans or Democrats.

    All in all, as candidates outside the GOP and Democrats go, Orman is not a Donald Trump or a Ross Perot, but he’s no Bernie Sanders either.

  • Yes, various Christian denominations argued in favor of slavery and that was overruled by the anti-slavery amendments. No one can point to the first amendment and say “my religion gives me the right to keep slaves.” Similarly, Bob Jones got slammed for how they treated students, and they lost their first amendment case. That’s a very different legal issue from how a church hires and fires its leaders.

    SCOTUS was crystal clear on this issue as recently as 2012, in a unanimous (!) ruling in Hosanna-Tabor Evangelical Lutheran Church v EEOC. The first amendment says that churches get to make their own rules about who their leaders and teachers are, without any — ANY — interference from the state. As I wrote at the time,

    Chief Justice Roberts framed the issue at hand in the very first paragraph of the opinion of the court in this unanimous case [pdf, p. 6]:

    Certain employment discrimination laws authorize employees who have been wrongfully terminated to sue their employers for reinstatement and damages. The question presented is whether the Establishment and Free Exercise Clauses of the First Amendment bar such an action when the employer is a religious group and the employee is one of the group’s ministers.

    Period. It’s not about whether religious organizations can ignore any law they don’t like. It’s not about whether employees in religious organizations have rights and protections. First and foremost, this case is about who gets to choose who is a leader in a religious organization: the group, or the government. SCOTUS unanimously — and unsurprisingly — said “the group.”

    Imagine the alternative: six Roman Catholics and three Jews deciding who gets to be called a Lutheran minister.

    This situation at Cor Jesu is exactly the same. The Roman Catholic church gets to decide who can and cannot teach in their schools, and they’ve made the determination that LGBTs who are active and practicing cannot. I disagree with that position on so many levels, but there’s no way I want the state to decide who can teach in a Catholic school.

  • Thanks, John and James. The chat has been fun, and I look forward to finishing the book!

    What’s next, John?

  • The account of Nixon’s comparison of Jack Anderson getting a Pulitzer for his bugging while the GOP/RNC/WH will get condemned for trying to bug the DNC certainly makes this clear.

  • Load More