The Last Chance Democracy Cafe

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When it comes to the otherwise uber-contentious question of what constitutes the proper role of judges and judging in our nation, there’s one thing that the left and the right seem to agree on — one single immutable truth that transcends even the most extreme of partisanship: judges, according to this widely accepted wisdom, are not supposed to make law. President Obama sure seems to agree. In announcing Judge Sonia Sotomayor’s appointment to the Supreme Court, he said one of the biggest reasons he chose her was because she has “an understanding that a judge’s job is to interpret, not make law.”

Republicans, of course, claim to fully agree. Indeed, they’ve been happily flogging so-called “activist” judges who “make law instead of just interpreting it” for decades. It’s one of their best fundraising tools.

So there you have it: enough feel good post-partisan consensus to warm even the cockles of David Broder’s heart. Judges interpreting law is good: judges making law is bad. It’s a bipartisan given: a deeply held and widely shared cultural truth. Too bad it’s also unmitigated nonsense.

Do judges make law? Of course they do. It’s part of the job — what they get paid for. In fact, if you ever run across a federal appeals court judge, someone like Sonia Sotomayor, who doesn’t make any law, fire her (or, more precisely, impeach her). She’s not earning her paycheck.

What we have here is a massive failure of civics education in this country. The sorry state of things is that most Americans, including many of our national leaders, lack even the most rudimentary understanding of the role of courts in American life. So let’s review.

It is, of course, true that only legislatures are supposed to pass statutes. But statutes have never been anything close to the sole source of law in our constitutional system. Ours is a common law legal system (as opposed to some European nations and to some extent the state of Louisiana which follow a Civil Law system). 

And guess what: the common law, by its very definition, is judge made law. Seriously, look it up. Here, for example, is the definition offered by that final arbiter of all knowledge in today’s world, Wikipedia: “Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals (called case law), rather than through legislative statutes or executive action.”   

“Law . . . developed through decisions of courts”? Egad! That sort of sounds like judges making law, doesn’t it? And that’s bad, right?

Here’s something else: this whole seditious judge made common law thing is discussed in the United States Constitution. Check out the Seventh Amendment which says, “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . .”

Allow me to repeat: Egad! This unholy process of judge made law is actually enshrined in our constitution! Although come to think of it, those Founding Fathers did always strike me as a bunch of commies (although at least there were no uppity Hispanic women in the bunch).

Allow me to say it for you: “The sky is falling! The sky is falling!”

But it get’s worse. Judges “make law” in other ways too. Every time a court construes a statute or a section of the constitution, thereby clarifying its meaning in a way that changes how it is applied, that court “makes law.” Trying to differentiate between interpreting law and making law is like claiming a vast moral distinction exists between frankfurters in a bun and hot dogs: they’re the same freaking thing.

The issue isn’t whether judges make law — they do. The issue is whether they do so in a restrained way that is respectful of our democratic institutions. And unfortunately, at least in recent decades, it’s been conservative Supreme Court justices, not liberals, who have too often failed on that account, striking down congressional enactments as unconstitutional with an alarming frequency.

And this, of course, brings us back to Judge Sotomayor who, whatever her other virtues and faults, has always shown great restraint in her opinions.

Will she make law on the Supreme Court? Well, duh, yeah, I would hope so. But there is absolutely nothing in her record that even begins to suggest she will do so with a heavy hand or in an otherwise improper fashion.

To be honest, her appointment concerns me a little, as a liberal, because I’m not sure she’s liberal enough to start returning a little balance to a Supreme Court which at present tilts dramatically to the right. And we need that sort of balance on the Court badly. But to suggest that her record implies that she’ll be some sort of wild activist in the role of a justice, as so many right wingers are now claiming, is simply a lie.

And I don’t know about you, but my mother always taught me that it isn’t nice to lie.

The question of the day: How much time should liberals spend defending Judge Sotomayor from patently unfair right wing attacks, as opposed to how much time we should devote to worrying that she may not actually be all that liberal?

At the moment, I’m undecided, but I suppose I’ll probably end up doing quite a bit of both.

Like most liberals, I’m disappointed by Barack Obama’s early track record on civil liberties issues — disappointed, yes, but not all that surprised. He isn’t, after all, the same person he was as a candidate a year ago. And he certainly isn’t the same person he was as a community organizer, a law professor, a state senator or even a US senator from a fairly bluish state.

No, he’s now the man. And since when do we look to the man to go to the wall on civil liberties issues? Isn’t that a job that more often falls to outsiders, to “ugly” people who offend polite company — you know, the damn pointy-headed liberal intellectuals, sipping their lattes, and those beer guzzling libertarians with the Live Free or Die bumper stickers on the back of their pickup trucks? 

Sure, Obama needs to be held accountable for his constitutional failings. Accountability goes with the territory, or at least it’s supposed to. He took the oath of office, after all — placed his hand on the bible — Abraham Lincoln’s bible no less — and swore to uphold the constitution. But he’s also the man. And it’s worth remembering that it was Abraham Lincoln himself, back when he was the man, who suspended the writ of habeas corpus during the Civil War. And he stretched the constitution in other ways as well. He had a war to win and a union to save, and if that required cutting a few corners so be it.

Like most things in life, it comes down to perspective. And being the man changes your perspective. High minded civil liberty concerns seem less important: keeping America safe more so. Is that an excuse for ignoring the constitution? Of course not. But the reality is that it’s naïve to expect the man to be the person leading the charge in the defense of civil liberties. That’s just not how it works. 

Franklin Roosevelt, for example, the ultimate liberal hero, committed one of the worst civil liberties offenses in the nation’s history, the internment of Japanese Americans. How could he have done it? How could the great man have stooped so low? Beyond question, it was an unforgivable act — one of the most shameful moments in American history. But the Japanese had just bombed Pearl Harbor. FDR was the man. Protecting civil liberties wasn’t his highest priority at the time.

Rocket ahead 60 plus years. Barack Obama, who wants more than anything to concentrate on issues like finally bringing the United States into the 20th century (one century too late) by adopting universal health insurance, finds himself facing a God awful mess not of his own making. The gulag at Guantanamo Bay has to be shut down. But what to do with the prisoners still held there, many of whom are extremely dangerous people — folks who really do want to kill us in our sleep — or in our wakefulness, for that matter (they’re not that picky)?

And that’s only the beginning of his troubles. It turns out that due to the incompetence and misconduct of the preceding administration some of these presumptive bad guys can’t be convicted in a court of law. So what to do? Let them go free. That’s certainly the correct answer legally, at least if viewed from the perspective of criminal justice: if you don’t have evidence to prove guilt they’re presumed innocent, right? That sounds fine, or at least unavoidable, to a civil libertarian. It might even have sounded fine to a liberal law professor in Chicago a few years back. But to the man? Not so much.

The man looks past the principles to the consequences, for the nation and, yes, for himself as well. What would it mean if a terrorism suspect released by the Obama Administration led a successful attack against the United States? The damage that would do the nation, to our cohesion as a society, would be immeasurable. And for Obama and the Democratic Party it would likely become a political apocalypse. It might be enough to return the torturers to office. God knows that’s what they’re counting on.

When you’re the man you think about things like that. The man always will. 

I have no doubt Barack Obama will be a much more law abiding president than was George W. Bush, and one much more respectful of constitutional rights. Liberals who have given up on him are jumping way too quickly. But he’s not going to push the envelope in protecting civil liberties. He’s the man. That isn’t what the man does.

So sometimes we’ll have to fight him. That’s our job — every latte sipping and pickup truck driving one of us.

John Yoo — torture lawyer extraordinaire — comes out against Sonia Sotomayor. It seems he’s concerned she may be too result oriented, you know, as opposed to Yoo himself who, of course, never gave a second thought the result his bosses wanted when he wrote his little ditties upholding the legality of “enhanced interrogation techniques.”

As Eric Kleefeld notes over at TPM,

“In other breaking news, John Yoo has absolutely no sense of self-awareness.”

I’m glad to see that President Obama has nominated Max Cleland to serve as Secretary of the American Battle Monuments Commission. While obviously not a high level policy post, this will provide Cleland with a fulltime office where he can once again serve this nation as a public official.

As most will remember, Cleland, who was left a triple amputee as a result of injuries he received in the Vietnam War, formally served as a Senator from Georgia. He was defeated in 2002 in a campaign that featured despicable attacks on his patriotism.

I was becoming worried that he’d been passed over in the Obama appointment process. I’m glad to see that didn’t happen.

Wouldn’t it be nice if — as a small thank you for our not sticking their sorry asses in jail — the people who did so much damage to this nation during the Bush years would just shut the fu*k up. Seriously, we don’t need their advice (take this latest saber rattling John Bolton column as an example). We’ve been there and done that — and, strangely enough, we don’t want to go there again.

Go figure.

Now, please just go away.

I wonder if the fact that going to the lake with 40,000 other people for the holiday weekend (which I won’t be doing), to await the arrival of the inevitable holiday thunderstorm, strikes me as about the most unappealing thing (short of an enhanced interrogation technique) imaginable is a sign:

(1) That I’ve grown lazy with age: or

(2) That I’ve grown wise with age.

The response by many liberals to Barack Obama’s speech on detention policies for terrorism suspects has been dismissive: “Nice words,” we’ve said, “but where’s the meat.”

It’s a fair question, certainly. I haven’t been shy myself in expressing discomfort, even anger, over Obama’s recent backsliding on civil liberties issues. Without a doubt, the president’s actions haven’t always lived up to the lofty words he spoke in his May 21, 2009 speech. And that’s extremely disappointing. But to suggest, as many have, that this makes the words themselves meaningless is, I think, terribly mistaken.

Words do matter. They define the terms of debate and set the stage for decision. In the end, they can change the course of a nation. Words are the stuff of democracy — sometimes for the better and sometimes for the worse. And God knows we’ve seen our share of the latter of late. For eight long and miserable years we were governed by people who specialized in using words as weapons of fear. And they were skillful technicians.

We had eight years of a presidency that insisted that we had to watch what we say, lest we give aid and comfort to our enemies; eight years of slander directed against anyone who dared oppose Bush Administration policies; eight years in which our president, far from telling us we had nothing to fear but fear itself, used words in the most irresponsible ways possible with the deliberate aim of actually fanning the public’s fear of terrorism as a means of achieving political ends.

But now, that era of presidential “leadership” is over (if not gone from the national debate). And it is in this sense that Barack Obama’s “just words” yesterday were profoundly important. Standing there in front of the great founding documents of our national liberty, he set out to banish irrational fear as an instrument of policy making. And in doing so he changed the terms of the debate dramatically in favor of the defense of civil liberties and against abuses such as torture. Blind fear, he declared, will no longer be deemed to be a good enough reason to betray our fundamental principles.

As The New York Times editorial board said in response to the speech:

For seven years, President George W. Bush tried to frighten the American public — and successfully cowed Congress — with bullying and disinformation. On Thursday, President Obama told the truth. It was a moment of political courage that will make this country safer.

Mr. Obama was exactly right when he said Americans do not have to choose between security and their democratic values. By denying those values, the Bush team fed the furies of anti-Americanism, strengthened our enemies and made the nation more vulnerable.

This is, of course, a beginning and not an end. The fight to protect our liberty and national honor in an age of international terrorism will go on: and sometimes, no doubt, civil liberties advocates will find ourselves standing against President Obama. So be it. But thanks to the words he spoke yesterday, that fight (the one between civil liberty advocates and the government, not the one waged by the GOP against Obama) will be a fairer and much less corrosive contest — one founded on the underlying agreement that, whatever our disagreements on the details, at the end of the day our national honor must always be stronger than our fear.

It turns out that Dick Cheney is a lying sack of lizard dung. Who knew?

To repeat myself, yet again: Does a day ever go by anymore without another terrifying revelation about global warming?

And this time, the revelation in question is even more terrifying than most.

Global warming could be twice as bad as forecast

WASHINGTON, May 19 (Reuters) - Global warming’s effects this century could be twice as extreme as estimated just six years ago, scientists reported on Tuesday.

Earth’s median surface temperature could rise 9.3 degrees F (5.2 degrees C) by 2100, the scientists at the Massachusetts Institute of Technology found, compared to a 2003 study that projected a median temperature increase of 4.3 degrees F (2.4 degrees C).

Let’s do the math: previous climate change estimates suggested an impending catastrophe. Now we hear things may actually be twice as bad as had been thought when those estimates were made. So what exactly does two times catastrophe equal?

Yeah, I’m going to get drunk too.