Yay, let's celebrate the fact judges appear to be biased by gender...

 I love the portion in red - the author thinks this study proves that diversity of judges is a good thing.  I think it proves only that judges need to base their their legal reasoning to the law, regardless of their gender.  If the findings were truly based on legal reasoning, there wouldn't be any correlation between the gender of the judge and the judge's findings.  That study should be very concerning to anyone who want the law to be enforced equaly and fairly.  What happened to "justice is blind"?

 

US conservatives are fighting for the rights of a minority – white men

Obama's nomination of a Latina to sit on the supreme court has prompted an attack from the right against racism

• 
• • Gary Younge
  • guardian.co.uk, Sunday 7 June 2009 22.00 BST
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'You do not choose to be a son or a daughter," argues Kwame Anthony Appiah in The Ethics of Identity. "A Serb or a Bosnian; a Korean or an Mbuti ... In all sorts of ways ... our identities are neither wholly scripted for us nor wholly scripted by us."

We are all a product of our time and place. Born in the midst of a random variety of narratives over which we have no control, most of us spend our lives trying to write the best story we can with the material we have been given. Some struggle with this as a concept. Desperate to think of themselves as inspired, original and above all, self-made, they are at pains to deny that their script has been partially penned by anyone other than themselves. Their reluctance is understandable: who would voluntarily cede editorial control over their own lives?

And yet it is really only possible to imagine for those who have power and refuse to interrogate it. The man in high office is never asked how he balances work and family, and the straight person is never asked when they realised they were straight. But just because the issue of their identity never really materialises doesn't mean they don't have one, let alone many.

Those who insist that their opinions and emotions are independent of their experiences and identities ultimately reveal not originality but conceit: having deluded themselves into believing that they do not involuntarily belong to anything, they start to assume that everything belongs to them.

Herein lies the root of the rightwing attacks on Barack Obama's nominee to the US supreme court, Sonia Sotomayor, that have wavered over the past two weeks between febrile and juvenile.

Of the 110 supreme court justices that have ever been confirmed, more than 98% have been white and more than 98% male. For the first 178 of its 220 years, the court was completely dominated by white men. At present, seven of nine of the justices are white men. Now one of them is leaving and Obama has had the audacity to nominate a Latina. Suddenly, conservatives are concerned about meritocracy, racism and the prospect of minorities getting a fair shake before the law. And that minority would be white men.

"God help you if you're a white male coming before her bench," said the Republican leader Michael Steele.

Fulminating against the shortlist from which Sotomayor was picked, conservative crusader Pat Buchanan said: "You got down to four women, not a single white male – all women … Probably half of the great lawyers and judges are white males in this country. To rule them out, why? Because of sex and because of their race is wrong, I think."

"This is pure, pure, pandering to the Hispanics," claimed CNN's Poujadist anchor, Lou Dobbs.

It's not difficult to see why they're so frustrated. Sotomayor, 54, has a compelling biography. Raised in the Bronx housing projects by Puerto Rican parents, her father, a factory worker, died when she was nine. Her mother was a nurse. As a child she was diagnosed with diabetes. But still managed to win scholarships to Princeton, where she graduated top of her class, and from there to Yale, where she edited the Yale Law Journal. After a brief stint in private practice she was nominated to the federal bench, where she spent five years before being nominated to the court of appeals. Her record on both courts reveals a centrist, pragmatic, liberal judge unworthy of a conservative hate campaign.

With her stellar academic achievements and a moderate judicial record, the right has had to concentrate not on what she has done but who she is, claiming she was only picked because she is a Latina and reviling her as a hater of white men.

The fact that she is a Latina is certainly relevant. Given the court's im balances, her gender and ethnicity are no accident. Nor are these kinds of considerations new. Historically, court appoint ments have always been made with diversity in mind – to make sure certain regions, religions and immigrant groups were represented.

Research shows that this diversity is no mere window dressing. A 2005 Yale Law Journal study found not only that "female judges were significantly more likely than male judges to find for plaintiffs in sexual harassment cases" but also that "the presence of a female judge significantly increased the probability that a male" on a three judge panel "would find for the plaintiff".

And yet to suggest she was only nominated because she is a Latina detracts from her considerable achievements. No white man with her qualifications would be accused of that, even though that is precisely how things have worked for most of the last two centuries. If anyone on that bench has earned the right to be there, she has.

The notion she would discriminate against white men stems from a speech made in Berkeley, California, in 2001 during which she said: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

The statement is problematic. Evoking a wealth of experiences to inform an argument makes sense. But to substitute those experiences for the argument itself fetishises identity and mistakes it for intellect. Moreover, neither gender nor ethnicity has a monopoly on wisdom. A wise white man, almost by definition, would reach smart conclusions too, while there are plenty of black and brown men and women who don't.

After all, her future colleague would be the ultra-conservative justice Clarence Thomas. Like Sotomayor, he grew up non-white and poor – but they agree on little and he has proven himself to be anything but wise.

The entire speech, and others she has given elsewhere, offers more nuance than the ­soundbite and gives a nod to some of these arguments, making it far more sophisticated than an essentialist tirade. But notwithstanding its flaws, the basic point that judges come to cases with personal baggage is almost unarguable.

In other circumstances, such statements have raised few eyebrows. When the conservative judge Samuel Alito was being confirmed in 2006, he confessed that being the son of Italian immigrants had an impact on his rulings. "When a case comes before me involving, let's say, someone who is an immigrant, I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position."

So, far more stunning than Soto mayor's speech itself has been the conser vative response to it. Sotomayor has been branded a "bigot", a "racist", and a "reverse racist" by men like Rush Limbaugh and Glenn Beck who – without any sense of irony – are attacking identity politics in a bid to defend white masculinity.

"Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority," claims Stuart Taylor in the National Journal. In a world where seven Latinas were on the supreme court and a white man was being nominated for the first time they might even have a point. That, however is not the world we live in.

• guardian.co.uk © Guardian News and Media Limited 2009

Have We Got a Deal For You

Have We Got a Deal For You
George Will
Sunday, June 07, 2009

WASHINGTON -- "I," said the president, who is inordinately fond of the first-person singular pronoun, "want to disabuse people of this notion that somehow we enjoy meddling in the private sector." He said that in March, when the government already owned 80 percent of AIG, Fannie Mae and Freddie Mac. "When a difficult decision has to be made on matters like where to open a new plant or what type of new car to make, the new GM, not the United States government, will make that decision." But the government is GM's largest shareholder, customer, tax collector, regulator, partner in determining employees' compensation, protector of dealers and pension guarantor. GM's other large owner, the United Auto Workers, is increasingly a government dependant.

Yet Steve Rattner and Ron Bloom, two of the president's fixers of Detroit, recently wrote in USA Today that government "will play no role" in running GM. They were not under oath.

"What we are not doing -- what I have no interest in doing -- is running GM," says the president who, when not firing GM's CEO, purging its board of directors and picking new members, is designing new products (imposing fuel economy requirements that will control size, weight, passenger capacity and safety). The president, overcoming his professed reluctance to run GM, resembles the journalist Don Marquis when, after a month on the wagon, he ordered a double martini and exclaimed: "I've conquered my goddam willpower."

Washington mandates that Detroit must build cars for which there is much less demand than Washington demands that there be. Then Washington tries to manufacture demand with a $7,500 tax credit for purchasers of the electric Chevrolet Volt, supposedly GM's salvation. So, GM is to be saved by a product people will not buy without a cash incentive larger than the income tax paid by 83.4 percent of America's families.

It is reasonable to assume that GM will become profitable -- if you make unreasonable assumptions about annual vehicle sales and GM's share of the market. Besides, the government that runs Amtrak (which has lost $23 billion, in today's dollars, just since 1990) vows to make GM efficient.

But one reason Amtrak runs on red ink is that legislators treat it as their toy train set, preventing it from cutting egregiously unprofitable routes. Will Congress passively accept auto plant-closing decisions? Rattner says Washington's demure vow is: "No plant decisions, no dealer decisions, no color-of-the-car decisions." He is one-third right. Last week, under the headline "Senators Blast Automakers Over Dealer Closings," The Washington Post reported, "Because the federal government is slated to own most of General Motors and 8 percent of Chrysler, some of the senators said they have a responsibility, as major shareholders do, to review company decisions."

The pressure to politicize the economy is spreading. John Sweeney, head of the AFL-CIO, and Gerald McEntee, head of the American Federation of State, County and Municipal Employees -- which is government organized as an interest group to lobby itself -- have demanded the resignation of two directors of Citigroup. Their premise is that businesses receiving direct government subventions should conform to the wishes of the president's allies.

GM is adopting new ways to lose money: Responsive to its UAW masters, GM is moving from China to America the production of some components of one Chevrolet model. Says UAW President Ron Gettelfinger, "It should be built here if it's going to be sold here." That principle, now successfully asserted, means economic autarky -- the end of international trade, and of prosperity.

The government's $50 billion -- so far -- acquisition of the shadow of GM will injure, with unfair financial advantages, the surprisingly healthy U.S. auto company, Ford. Of course, the government does not intend that injury, any more than it intended to cause protests in Mexico over the high price of corn tortillas, a result of Washington's mandate that Americans burn corn (ethanol) in their cars.

Washington's "rescue" of GM began because GM is "too big to fail," and bankruptcy is (well, was) "unthinkable." Big? GM's market capitalization, $375.8 million on Wednesday, is about the size of California Pizza Kitchen's ($340 million) -- is it too big to fail? -- and one-eleventh that of Harley-Davidson ($4.3 billion). Fail? If GM has not already failed, New Coke was a success.

The administration is determined to prop up GM as a jobs program for the UAW and Midwestern states rich in electoral votes. This frenzy will intensify as the administration's decisions deepen the debacle.

GM - Government Motors

---

June 2, 2009

OP-ED COLUMNIST

The Quagmire Ahead

By DAVID BROOKS

On Jan. 21, 1988, a General Motors executive named Elmer Johnson wrote a brave and prophetic memo. Its main point was contained in this sentence: “We have vastly underestimated how deeply ingrained are the organizational and cultural rigidities that hamper our ability to execute.”

On Jan. 26, 2009, Rob Kleinbaum, a former G.M. employee and consultant, wrote his own memo. Kleinbaum’s argument was eerily similar: “It is apparent that unless G.M.’s culture is fundamentally changed, especially in North America, its true heart, G.M. will likely be back at the public trough again and again.”

These two memos, written by men devoted to the company, get to the heart of G.M.’s problems. Bureaucratic restructuring won’t fix the company. Clever financing schemes won’t fix the company. G.M.’s core problem is its corporate and workplace culture — the unquantifiable but essential attitudes, mind-sets and relationship patterns that are passed down, year after year.

Over the last five decades, this company has progressively lost touch with car buyers, especially the educated car buyers who flock to European and Japanese brands. Over five decades, this company has tolerated labor practices that seem insane to outsiders. Over these decades, it has tolerated bureaucratic structures that repel top talent. It has evaded the relentless quality focus that has helped companies like Toyota prosper.

As a result, G.M. has steadily lost U.S. market share, from 54 to 19 percent. Consumer Reports now recommends 70 percent of Ford’s vehicles, but only 19 percent of G.M.’s.

The problems have not gone unrecognized and heroic measures have been undertaken, but technocratic reforms from within have not changed the culture. Technocratic reforms from Washington won’t either. For the elemental facts about the Obama restructuring plan are these: Bureaucratically, the plan is smart. Financially, it is tough-minded. But when it comes to the corporate culture that is at the core of G.M.’s woes, the Obama approach is strangely oblivious. The Obama plan won’t revolutionize G.M.’s corporate culture. It could make things worse.

First, the Obama plan will reduce the influence of commercial outsiders. The best place for fresh thinking could come from outside private investors. But the Obama plan rides roughshod over the current private investors and so discourages future investors. G.M. is now a pariah on Wall Street. Say farewell to a potentially powerful source of external commercial pressure.

Second, the Obama plan entrenches the ancien régime. The old C.E.O. is gone, but he’s been replaced by a veteran insider and similar executive coterie. Meanwhile, the U.A.W. has been given a bigger leadership role. This is the union that fought for job banks, where employees get paid for doing nothing. This is the organization that championed retirement with full benefits at around age 50. This is not an organization that represents fundamental cultural change.

Third, the Obama approach reduces the fear that impels change. The U.S. government will own most of G.M. It would be politically suicidal for the Democrats, or whoever is in power, to pull the plug on the company — now or ever. Therefore, the current managers can rest assured that they never need to fear liquidation again. There will always be federal subsidies for their own mediocrity.

Fourth, the Obama plan dilutes the company’s focus. Instead of thinking obsessively about profitability and quality, G.M. will also have to meet the administration’s environmental goals. There is no evidence G.M. is good at building the sort of small cars the administration demands. There is no evidence that there is a large American market for these cars. But G.M. now has to serve two masters, the market and the administration’s policy goals.

Fifth, G.M.’s executives and unions now have an incentive to see Washington as a prime revenue center. Already, the union has successfully lobbied to move production centers back from overseas. Already, the company has successfully sought to restrict the import of cars that might compete with G.M. brands. In the years ahead, G.M.’s management will have a strong incentive to spend time in Washington, urging the company’s owner, the federal government, to issue laws to help it against Ford and Honda.

Sixth, the new plan will create an ever-thickening set of relationships between G.M.’s new owners — in government, management and unions. These thickening bonds between public and private bureaucrats will fundamentally alter the corporate culture, and not for the better. Members of Congress are also getting more involved in the company they own, and will have their own quaint impact.

The end result is that G.M. will not become more like successful car companies. It will become less like them. The federal merger will not accelerate the company’s viability. It will impede it. We’ve seen this before, albeit in different context: An overconfident government throws itself into a dysfunctional culture it doesn’t really understand. The result is quagmire. The costs escalate. There is no exit strategy.

Criticize, then Confirm

Sotomayor: Criticize, then Confirm
Charles Krauthammer
Friday, May 29, 2009

WASHINGTON -- Sonia Sotomayor has a classic American story. So does Frank Ricci.

Ricci is a New Haven firefighter stationed seven blocks from where Sotomayor went to law school (Yale). Raised in blue-collar Wallingford, Conn., Ricci struggled as a C and D student in public schools ill-prepared to address his serious learning disabilities. Nonetheless he persevered, becoming a junior firefighter and Connecticut's youngest certified EMT.

After studying fire science at a community college, he became a New Haven "truckie," the guy who puts up ladders and breaks holes in burning buildings. When his department announced exams for promotions, he spent $1,000 on books, quit his second job so he could study eight to 13 hours a day, and, because of his dyslexia, hired someone to read him the material.

He placed sixth on the lieutenant's exam, which qualified him for promotion. Except that the exams were thrown out by the city, and all promotions denied, because no blacks had scored high enough to be promoted.

Ricci (with 19 others) sued.

That's where these two American stories intersect. Sotomayor was a member of the three-member circuit court panel that upheld the dismissal of his case, thus denying Ricci his promotion.

This summary ruling deeply disturbed fellow members of Sotomayor's court, including Judge Jose Cabranes (a fellow Clinton appointee) who, writing for five others, criticized the unusual, initially unpublished, single-paragraph dismissal for ignoring the serious constitutional issues at stake.

Two things are sure to happen this summer: The Supreme Court will overturn Sotomayor's panel's ruling. And, barring some huge hidden scandal, Sotomayor will be elevated to that same Supreme Court.

What should a principled conservative do? Use the upcoming hearings not to deny her the seat, but to illuminate her views. No magazine gossip from anonymous court clerks. No "temperament" insinuations. Nothing ad hominem. The argument should be elevated, respectful and entirely about judicial philosophy.

On the Ricci case. And on her statements about the inherent differences between groups, and the superior wisdom she believes her Latina physiology, culture and background grant her over a white male judge. They perfectly reflect the Democrats' enthrallment with identity politics, which assigns free citizens to ethnic and racial groups possessing a hierarchy of wisdom and entitled to a hierarchy of claims upon society.

Sotomayor shares President Obama's vision of empathy as lying at the heart of judicial decision-making -- sympathetic concern for litigants' background and current circumstances, and for how any judicial decision would affect their lives.

Since the 2008 election, people have been asking what conservatism stands for. Well, if nothing else, it stands unequivocally against justice as empathy -- and unequivocally for the principle of blind justice.

Empathy is a vital virtue to be exercised in private life -- through charity, respect and lovingkindness -- and in the legislative life of a society where the consequences of any law matter greatly, which is why income taxes are progressive and safety nets built for the poor and disadvantaged.

But all that stops at the courthouse door. Figuratively and literally, justice wears a blindfold. It cannot be a respecter of persons. Everyone must stand equally before the law, black or white, rich or poor, advantaged or not.

Obama and Sotomayor draw on the "richness of her experiences" and concern for judicial results to favor one American story, one disadvantaged background, over another. The refutation lies in the very oath Sotomayor must take when she ascends to the Supreme Court: "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich. ... So help me God."

When the hearings begin, Republicans should call Frank Ricci as their first witness. Democrats want justice rooted in empathy? Let Ricci tell his story and let the American people judge whether his promotion should have been denied because of his skin color in a procedure Sotomayor joined in calling "facially race-neutral."

Make the case for individual vs. group rights, for justice vs. empathy. Then vote to confirm Sotomayor solely on the grounds -- consistently violated by the Democrats, including Sen. Obama -- that a president is entitled to deference on his Supreme Court nominees, particularly one who so thoroughly reflects the mainstream views of the winning party. Elections have consequences.

Vote Democratic and you get mainstream liberalism: A judicially mandated racial spoils system and a jurisprudence of empathy that hinges on which litigant is less "advantaged."

A teaching moment, as liberals like to say. Clarifying and politically potent. Seize it.

Who does Sotomayor empathize with? Who cares!

This idea of judicial "empathy" is driving me nuts.  We are trying to find a US Supreme Court Justice, not a personal life coach.  These are the folks who are supposed to interpret the law, not twist the law to accommodate those who are worthy of empathy.  As John Roberts said,  "Somebody asked me, you know, 'Are you going to be on the side of the little guy?' And you obviously want to give an immediate answer. But as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that 'I'll look out for particular interests.' . . . The oath is to uphold the Constitution and laws of the United States, and that's what I would do."

Exactly.

Commentary: Who does Sotomayor empathize with?

By Leslie Sanchez

WASHINGTON (CNN) -- The Obama administration has no intention of pushing comprehensive immigration reform any time soon, but with his nomination of Judge Sonia Sotomayor to the Supreme Court, the president may have found a suitable consolation prize for the Hispanic community.

A prize is due. Hispanics gave 67 percent of their votes to President Obama, delivering key states like Colorado, Nevada and New Mexico to his electoral column, and sending him two new Democratic senators and three new House Democrats from those states alone.

But the problem with identity politics is that not just any Hispanic will do. Obama made clear he wanted to pick a justice who would have empathy for those whose cases come before the court.

As impressive as Sotomayor's life story is, it remains to be seen whether she truly has the much-talked-about "empathy" for Hispanic values and dreams.

If Sotomayor is truly representative of our values, she will understand that the entrepreneurial spirit is alive and well in the Hispanic community and is our best hope for moving Hispanic households solidly into the ranks of the American middle class.

In a study earlier this year, HispanTelligence, the research arm of Hispanic Business magazine, confirmed that there are at least 2.2 million Hispanic-owned businesses in the U.S., generating about $388 billion in combined revenue.

Empathy with the lives of millions of Hispanics today means that she must appreciate the impact of federal, state and municipal tax and regulatory schemes on individuals and small businesses alike. Her writings should reflect the view that access to the marketplace is a constitutional guarantee no less important than freedoms of speech, religion or assembly.

If she understands the hopes and aspirations of the Hispanic community, she should have a record of interpreting the Commerce Clause of the Constitution in ways that encourage individual risk-taking, free enterprise and job creation, not in ways that discourage it.

Likewise, Sotomayor should show evidence of being suspicious of government's power. Many Hispanics are fresh from regimes where the rule of law has been crushed or never existed; we know that with centralized power comes arrogance, and that bureaucracies inevitably become cold, callous, unyielding and corrupt.

She should be imbued with a core appreciation that our Constitution establishes a government of limited, enumerated powers, and should have a record of writings and decisions that support the conclusion that she will err on the side of limiting, not expanding, the powers and influence of government.

Like all other immigrants, Hispanics came here with the hope of acquiring property for themselves and their children. We treasure as sacred our own homes, farms and land, and we know there is often little practical difference between broad government restrictions on the use and enjoyment of that property and its being taken outright.

As a Supreme Court justice, Sotomayor should believe, as we Hispanics do, that the Constitution affords us due process and just compensation in either case -- and that no property should be taken unless there is a legitimate public use.

As everyone knows, at the core of the Hispanic experience are our families and the opportunity to freely exercise our religion. The next justice, if she is empathetic to our lives and values, will protect the sanctity of the family and of life itself.

Obama's nomination of the first Latina to the Supreme Court is a historic moment that has moved each of us, but our pride will be fleeting if she doesn't really share Hispanic values.

The opinions expressed in this commentary are solely those of Leslie Sanchez. 

"Empathy" vs. the Law

"Empathy" Versus Law
Thomas Sowell
Tuesday, May 05, 2009

Justice David Souter's retirement from the Supreme Court presents President Barack Obama with his first opportunity to appoint someone to the High Court. People who are speculating about whether the next nominee will be a woman, a Hispanic or whatever, are missing the point.

That we are discussing the next Supreme Court justice in terms of group "representation" is a sign of how far we have already strayed from the purpose of law and the weighty responsibility of appointing someone to sit for life on the highest court in the land.

That President Obama has made "empathy" with certain groups one of his criteria for choosing a Supreme Court nominee is a dangerous sign of how much further the Supreme Court may be pushed away from the rule of law and toward even more arbitrary judicial edicts to advance the agenda of the left and set it in legal concrete, immune from the democratic process.

Would you want to go into court to appear before a judge with "empathy" for groups A, B and C, if you were a member of groups X, Y or Z? Nothing could be further from the rule of law. That would be bad news, even in a traffic court, much less in a court that has the last word on your rights under the Constitution of the United States.

Appoint enough Supreme Court justices with "empathy" for particular groups and you would have, for all practical purposes, repealed the 14th Amendment, which guarantees "equal protection of the laws" for all Americans.

We would have entered a strange new world, where everybody is equal but some are more equal than others. The very idea of the rule of law would become meaningless when it is replaced by the empathies of judges.

Barack Obama solves this contradiction, as he solves so many other problems, with rhetoric. If you believe in the rule of law, he will say the words "rule of law." And if you are willing to buy it, he will keep on selling it.

Those people who just accept soothing words from politicians they like are gambling with the future of a nation. If you were German, would you be in favor of a law "to relieve the distress of the German people and nation"? That was the law that gave Hitler dictatorial power.

He was just another German chancellor at the time. He was not elected on a platform of war, dictatorship or genocide. He got the power to do those things because of a law "to relieve the distress of the German people."

When you buy words, you had better know what you are buying.

In the American system of government, presidential term limits restrict how long any given resident of the White House can damage this country directly. But that does not limit how long, or how much, the people he appoints to the Supreme Court can continue to damage this country, for decades after the president who appointed them is long gone.

Justice John Paul Stevens virtually destroyed the Constitution's restrictions on government officials' ability to confiscate private property in his 2005 decision in the case of "Kelo v. New London"-- 30 years after President Ford appointed him.

The biggest danger in appointing the wrong people to the Supreme Court is not just in how they might vote on some particular issues-- whether private property, abortion or whatever. The biggest danger is that they will undermine or destroy the very concept of the rule of law-- what has been called "a government of laws and not of men."

Under the American system of government, this cannot be done overnight or perhaps even during the terms in office of one president-- but it can be done. And it can be done over time by the appointees of just one president, if he gets enough appointees.

Some people say that who Barack Obama appoints to replace Justice Souter doesn't really matter, because Souter is a liberal who will probably be replaced by another liberal. But, if no one sounds the alarm now, we can end up with a series of appointees with "empathy"-- which is to say, with justices who think their job is to "relieve the distress" of particular groups, rather than to uphold the Constitution of the United States.

Part II

The great Supreme Court justice Oliver Wendell Holmes is not the kind of justice who would have been appointed under President Barack Obama's criterion of "empathy" for certain groups.

Like most people, Justice Holmes had empathy for some and antipathy for others, but his votes on the Supreme Court often went against those for whom he had empathy and for those for whom he had antipathy. As Holmes himself put it: "I loathed most of the things in favor of which I decided."

After voting in favor of Benjamin Gitlow in the 1925 case of Gitlow v. People of New York, Holmes said in a letter to a friend that he had just voted for "the right of an ass to drool about proletarian dictatorship." Similarly, in the case of Abrams v. United States, Holmes' dissenting opinion in favor of the appellants characterized the views of those appellants as "a creed which I believe to be the creed of ignorance and immaturity."

By the same token, Justice Holmes did not let his sympathies with some people determine his votes on the High Court. As a young man, Holmes had dropped out of Harvard to go fight in the Civil War because he opposed slavery. In later years, he expressed his dislike of the minstrel shows that were popular at the time "because they seem to belittle the race."

When there were outcries against the prosecution of Sacco and Vanzetti in the 1920s, Holmes said in a letter, "I cannot but ask myself why this so much greater interest in red than black. A thousand-fold worse cases of negroes come up from time to time, but the world does not worry over them."

Yet when two black attorneys appeared before the Supreme Court, Holmes wrote in another letter to a friend that he had to "write a decision against a very thorough and really well expressed argument by two colored men"-- an argument "that even in intonation was better than, I should say, the majority of white discourses that we hear."

Holmes understood that a Supreme Court justice was not there to favor some people or even to prescribe what was best for society. He had a very clear sense of what the role of a judge was-- and wasn't.

Justice Holmes saw his job to be "to see that the game is played according to the rules whether I like them or not."

That was because the law existed for the citizens, not for lawyers or judges, and the citizen had to know what the rules were, in order to obey them.

He said: "Men should know the rules by which the game is played. Doubt as to the value of some of those rules is no sufficient reason why they should not be followed by the courts."

Legislators existed to change the law.

After a lunch with Judge Learned Hand, as Holmes was departing in a carriage to return to work, Judge Hand said to him: "Do justice, sir. Do justice."

Holmes had the carriage stopped. "That is not my job," he said. "My job is to apply the law."

Holmes wrote that he did not "think it desirable that the judges should undertake to renovate the law." If the law needed changing, that was what the democratic process was for. Indeed, that was what the separation of powers in legislative, executive and judicial branches by the Constitution of the United States was for.

"The criterion of constitutionality," he said, "is not whether we believe the law to be for the public good." That was for other people to decide. For judges, he said: "When we know what the source of the law has said it shall be, our authority is at an end."

One of Holmes' judicial opinions ended: "I am not at liberty to consider the justice of the Act."

Some have tried to depict Justice Holmes as someone who saw no need for morality in the law. On the contrary, he said: "The law is the witness and external deposit of our moral life." But a society's need to put moral content into its laws did not mean that it was the judge's job to second-guess the moral choices made by others who were authorized to make such choices.

Justice Holmes understood the difference between the rule of law and the rule of lawyers and judges.

Part III

There is a reason why the statue of Justice wears a blindfold. There are things that courts are not supposed to see or recognize when making their decisions-- the race you belong to, whether you are rich or poor, and other personal things that could bias decisions by judges and juries.

It is an ideal that a society strives for, even if particular judges or juries fall short of that ideal. Now, however, President Barack Obama has repudiated that ideal itself by saying that he wants to appoint judges with "empathy" for particular groups.

This was not an isolated slip of the tongue. Barack Obama said the same thing during last year's election campaign. Moreover, it is completely consistent with his behavior and associations over a period of years-- and inconsistent with fundamental principles of American government and society.

Nor is this President Obama's only attempt to remake American society. Barack Obama's vision of America is one in which a President of the United States can fire the head of General Motors, tell banks how to bank, control the medical system and take charge of all sorts of other activities for which neither he nor other politicians have any expertise or experience.

The Constitution of the United States gives no president, nor the entire federal government, the authority to do such things. But spending trillions of dollars to bail out all sorts of companies buys the power to tell them how to operate.

Appointing judges to the federal courts-- including the Supreme Court-- who believe in expanding the powers of the federal government to make arbitrary decisions, choosing who will be winners and losers in the economy and in the society, is perfectly consistent with a vision of the world where self-confident and self-righteous elites rule according to their own notions, instead of merely governing under the restraints of the Constitution.

If all this can be washed down with pious talk about "empathy," so much the better for those who want to remake America. Now that the Obama administration has a Congressional majority that is virtually unstoppable, and a media that is wholly uncritical, the chances of preventing the president from putting someone on the Supreme Court who shares his desire to turn America into a different country are slim or none.

The only thing on the side of those who understand this, and who oppose it, is time. Reshaping the Supreme Court cannot be done overnight, the way Congress passed a vast spending bill in two days.

Replacing Supreme Court justices is something that can only be done one at a time and at unpredictable intervals. What this means is that Senators who do not have enough votes to stop an Obama nominee for the High Court from being confirmed nevertheless have an opportunity- and a duty-- to alert the public to the dangers of what is being done.

This does not mean turning confirmation hearings into a circus or a kangaroo court with mud-slinging at judicial nominees, the way Robert Bork and Clarence Thomas were smeared. But it also does not mean taking the path of least resistance by quietly voting for people like Ruth Bader Ginsberg and Stephen Breyer, who treat the Constitution as a grant of arbitrary power to themselves, rather than a restriction of power on the government as a whole.

It is all too easy to say "a president has a right to appoint the kind of people he wants on the Supreme Court." He does. But that does not mean that those who don't have the votes to stop dangerous nominees from being confirmed are obliged to vote for them or to stand mute.

Since Justice David Souter is likely to be replaced by another liberal, it is all too easy to say that it is no big deal. But with all the indications already as to how the Obama administration is trying to remake America on many fronts, the time to begin alerting the public to the dangers is now.

Given the age and health of other Supreme Court justices, more replacements are likely during Obama's time in the White House. Time is an opportunity to mobilize public opinion and perhaps change the composition of the Senate that confirms judicial nominees.

But time by itself does nothing. It is what we do with time that matters.

The International Community

The What Of Nations?

A pandering Obama praised Europe's 'leading role in the world.' Actually, Europe exercises almost no leadership, even in Europe.

George F. Will

NEWSWEEK

From the magazine issue dated Apr 20, 2009

"He's a man way out there in the blue, riding on a smile and a shoeshine. And when they start not smiling back—that's an earthquake." 
—Arthur Miller, "Death of a Salesman"

President William Howard Taft understood how political cant can bewitch the speaker's mind. Listening to an aide natter on about "the machinery of government," Taft murmured, "The young man really thinks it's a machine." The current president's U.N. ambassador, Susan Rice, was on Sunday television recently explaining why she thinks Iran, now several decades into its pursuit of nuclear weapons and close to consummation, might succumb to the siren song of sweet reason and retreat from success. Doing so, she said, would enable Iran "to be a responsible member of the international community"—perhaps not the highest priority for a regime that denies the Holocaust happened, and vows to complete it—and "enter the community of nations." Otherwise Iran will face "the full force of the international community."

Rice really thinks there is a community out there. To believe that is to believe, as liberals do, that harmony is humanity's natural condition, so discord is a remediable defect in arrangements.

Regarding North Korea's missile launch, Rice was very stern. She said the U.N. Security Council would "meet," and there would be "consultation with our partners," who "all need to come together" and "add to" the 2006 U.N. resolution that North Korea had just disregarded, the one that demanded a halt to future missile-related activity, including launches. The Security Council met. It could not even bring itself to say North Korea's launch had violated the resolution against launches.

In the 1950s, conservatives vowed to "roll back" the Iron Curtain. Rice spoke of "ensuring that we roll back" North Korea's nuclear program. She took heart from what she called "some serious dismantlement" of North Korea's principal reactor. Actually, the reactor was not dismantled but disabled, an easily reversible act. Fuel rods were removed and the cooling tower was destroyed. The rods can be reinserted. The reactor can operate without the cooling tower—warm water would be released, which might kill lots of wildlife, but, then, the regime kills lots of North Koreans, even though that supposedly causes frowns to crease the faces of the supposed community of nations.

Perhaps Rice thinks the mere existence of the U.N. proves the existence of an international community. If so, she should spend some communitarian time with our allies the Saudis. The Obama administration has decided to join them as members of the U.N. Human Rights Council, which the Bush administration boycotted because it includes despotic regimes that are ludicrous auditors of other nations' respect for human rights.

An unmarried 23-year-old Saudi woman became pregnant when abducted and gang-raped. She was convicted of adultery and sentenced to a year in prison—and to a perhaps fatal 100 lashes after her child is born. Another woman was visited by two men—one had been breast-fed by her; the other was bringing her bread. Convicted of the crime of being in the presence of men who are not family members, she was sentenced to 40 lashes, which is perhaps a death sentence for a 75-year-old. The "community of nations" that liberals like Rice believe in certainly has what liberals celebrate: diversity.

If there is a "community of nations," then "Yes, we can" do this and that. But if not?

During Barack Obama's trip abroad, during which he praised himself by disparaging his predecessor and deploring America's shortcomings, he took pandering to a comic peak, combining criticism of America with flattery of Europe, when he deplored America's "failure to appreciate Europe's leading role in the world." Actually, as the crisis of aggression and ethnic cleansing in the Balkans demonstrated a decade ago, Europe plays almost no leadership role, even in Europe, which remains a geographical rather than a political denotation.

Europe's collective existence through NATO might be ending. Afghanistan, the supposed "graveyard of empires," might be the burial ground of NATO, which is 60 years old and showing signs of advanced senescence. Officially, NATO says the Afghanistan campaign is vital; actually, it promises a mere 5,000 more troops, none of them for combat. Most of the NATO nations that grudgingly send dribs and drabs of troops to Afghanistan send them enveloped in caveats that virtually vitiate their usefulness, including the stipulation that they shall not be put in harm's way. Tom Korologos, who was U.S. ambassador to Belgium from 2004 to 2007, recalls that when Belgium finally agreed to send a few hundred troops from its unionized "army"—average age: 40—other caveats concerned bottled water, a certain ratio of psychiatrists to troops and a requirement that dust be kept to a minimum.

In Europe, during his first star turn on the world stage, the president learned, or should have, that charm and two euros will almost get him a copy of the International Herald Tribune. Out there in the blue, flying high, selling himself, he found out how far he can go on a smile and a shoeshine.

America's enemies are not smiling back. Those are smirks, not smiles.

Credit Card "Bill of Rights"

I agree with most of what John says here.

Credit cards are often the lender of last resort, giving individuals the means to spend money for things they need now while giving them the flexibility to pay later.  In exchange for this temporary loan, banks charge an interest rate on unpaid balances.  These rates are based on historical behavior and the likelihood that the borrower will repay their debt. 

These rates are not randomly assigned; they are reflective of the borrower's credit history.  High rates that are accepted in advance by the borrower are not predatory, they are the fair market value for money loaned to that specific individual.  Politicians who think forcing banks to offer lower rates will help "protect" those who need these funds most are clearly misguided.  Banks won't offer the mandated lower rate.  For those people whose credit histories require a higher rate than the maximum allowed by the new government rule, those people will be denied outright.  The unintended consequence will be fewer credit cards for those who need them most.  These people will be forced to turn to payday loans - a source of funds imposing even higher rates on borrowers.

John and I disagree on the matter of banks changing the interest rate on existing balances.  Allowing banks to do this is like allowing them to readjust fixed rate mortgages after the loan has been agreed to by both parties.  This practice should be abolished.  Banks should be free to change the interest rate on future balances, but existing balances should remain at the previously contracted rate.  

Government Help Hurts
John Stossel
Wednesday, April 29, 2009

"Rate hikes and late fee traps have to end. No more fine print, no more confusing terms and conditions", said President Obama last week when advocating another big-government solution -- this time to evils committed by credit-card companies.

Credit cards are a demagogue's dream come true. What better way to win public affection than to rail against banks for their harsh terms? In the politicians' morality play, creditors are the villains and debtors their helpless victims.

A little context first: No one has a natural right to a credit card. Someone has to be willing to undertake the risk in issuing it. Banks issue cards in their quest for profits. Nothing wrong with that.

Think about what a credit card is. It's convenient access to unsecured loans, permitting consumers to buy things large and small -- not to mention emergency services -- without cash. Pay the bill promptly, and you enjoy a fantastic service for virtually nothing. If circumstances prevent you from paying the bill in full, you can set your own payment schedule, realizing there is a minimum payment and that you will be charged interest on the unpaid balance. No surprise there.

To appreciate credit cards, it is worth recalling that before they came along, people got personal loans from banks, finance companies, pawnshops and loan sharks. Such loans were less convenient, and repayment was less flexible. Some people bought things on layaway, which meant they didn't take the goods home until they were paid for. Loan sharks sometimes broke people's legs.

Credit cards didn't create consumer debt -- they are merely a superior alternative to older methods.

As President Obama and other politicians demagogue this issue, keep two things in mind: Life would be more difficult without credit cards, and banks don't have to keep issuing them. Be careful what you ask for.

Politicians are too short-sighted and vote-hungry to say such things. They want a "credit card holders' bill of rights" that would prohibit certain billing practices, like raising interest rates on existing balances. The House could approve the "bill of rights" this week.

Understandably, these billing practices endear themselves to no one, but competition makes the worst of them far less common. And as for raising rates, revolving credit means that a balance is a fresh loan each month; as the terms state, the rate can change. If issuers can never raise rates on existing balances, even when economic conditions change, they will be likely to charge everyone a higher rate to make up for the risk.

Todd Zywicki, a professor at George Mason University Law School and an expert on consumer credit, points out that the credit-card industry is highly competitive. The web is full of sites that permit easy comparison shopping. Competition has driven banks to more precisely match consumer costs to individual risk. In earlier days, every cardholder paid higher interest rates than today and an annual fee (a way around usury laws). Now, annual fees are largely gone. Rates are lower. Late and over-the-limit fees are unpleasant, but they aren't charged until a cardholder's conduct triggers them. This is not to say credit-card companies never abuse customers, but as Zywicki notes, "[T]here are ample tools for courts and regulators to attack deceptive and fraudulent practices on a case-by-case basis."

Politicians assume we are ignorant about credit-card terms. However, Zywicki points to evidence that people who carry credit-card balances are aware of the interest rate they're paying, and "those who carry larger balances are even more likely to ... comparison shop."

The "bill of rights" seems designed to prevent people from getting themselves in over their heads. That motive is honorable, but government has never been very good at such protection. The law of unintended consequences cannot be repealed, and what government gives with one hand, it inadvertently takes away with the other. Increasing the banks' costs will make it harder for poorer people to get credit cards, and that will only push them into costlier forms of debt, like payday lenders.

I've never understood how the poor are helped by limiting their choices. 

Thank you, George Will

The Wreck of the Racial Spoils System

George Will
Sunday, April 26, 2009

WASHINGTON -- Wednesday morning, a lawyer defending in the Supreme Court what the city of New Haven, Conn., did to Frank Ricci and 17 other white firemen (including one Hispanic) was not 20 seconds into his argument when Chief Justice John Roberts interrupted to ask: Would it have been lawful if the city had decided to disregard the results of the exam to select firemen for promotion because it selected too many black and too few white candidates?

In 2003, the city gave promotion exams -- prepared by a firm specializing in employment tests, and approved, as federal law requires, by independent experts -- to 118 candidates, 27 of them black. None of the blacks did well enough to qualify for the 15 immediately available promotions. After a rabble-rousing minister with close ties to the mayor disrupted meetings and warned of dire political consequences if the city promoted persons from the list generated by the exams, the city said: No one will be promoted.

The city called this a "race-neutral" outcome because no group was disadvantaged more than any other. So, New Haven's idea of equal treatment is to equally deny promotions to those who did not earn them and those, including Ricci, who did.

Ricci may be the rock upon which America's racial spoils system finally founders. He prepared for the 2003 exams by quitting his second job, buying the more than $1,000 worth of books the city recommended, paying to have them read onto audiotapes (he is dyslexic), taking practice tests and practice interviews. His studying -- sometimes 13 hours a day -- earned him the sixth-highest score on the exam. He and others denied promotions sued, charging violations of the 1964 Civil Rights Act and the Constitution's guarantee of equal protection of the law.

The city claims that the 1964 act (BEG ITAL)compelled(END ITAL) it to disregard the exam results. The act makes it unlawful for employers to discriminate against an individual regarding the "terms, conditions, or privileges of employment because of such individual's race." And two Senate supporters of the 1964 act, both of them leading liberals (Pennsylvania Democrat Joseph Clark and New Jersey Republican Clifford Case), insisted that it would not require "that employers abandon bona fide qualification tests where, because of differences in background and educations, members of some groups are able to perform better on these tests than members of other groups."

In a 1971 case, however, the Supreme Court sowed confusion by holding that the 1964 act proscribes not only overt discrimination but also "practices that are fair in form, but discriminatory in operation." But what New Haven ignored is that the court, while proscribing tests that were "discriminatory" in having a "disparate impact" on certain preferred minorities, has held that a disparate impact is unlawful only if there is, and the employer refuses to adopt, an equally valid measurement of competence that would have less disparate impact, or if the measurement is not relevant to "business necessity." One of the city's flimsy excuses for disregarding its exam results was that someone from a rival exam-writing firm said that although he had not read the exam the city used, his company could write a better one.

New Haven has not defended its implicit quota system as a remedy for previous discrimination, and has not justified it as a way of achieving "diversity," which can be a permissible objective for schools' admissions policies, but not in employment decisions. Rather, the city says it was justified in ignoring the exam results because otherwise it might have faced a "disparate impact" lawsuit.

So, to avoid defending the defensible in court, it did the indefensible. It used anxiety about a potential challenge under a statute to justify its violation of the Constitution. And it got sued.

Racial spoils systems must involve incessant mischief because they require a rhetorical fog of euphemisms and blurry categories (e.g., "race-conscious" measures that somehow do not constitute racial discrimination) to obscure stark facts, such as: If Ricci and half a dozen others who earned high scores were not white, the city would have proceeded with the promotions.

Some supporters of New Haven, perhaps recognizing intellectual bankruptcy when defending it, propose a squishy fudge: Return the case to the trial court to clarify the city's motivation. But the motivation is obvious: to profit politically from what Roberts has called the "sordid business" of "divvying us up by race."

Budget Alternatives

More facts about GM

I really like his point about the government only agreeing to bailout Chrysler if they are taken over by Italian automaker fiat.  At the least this seems a little inconsistent with President Obama's "America First" approach to manufacturing...

P.S. - Did you know the Prius sells at a loss?  Funny, you don't hear that part of the story very often...

Car Designer in Chief
George Will
Sunday, April 05, 2009

WASHINGTON -- The Constitution enumerates three requirements of those who would be president (they must be natural-born citizens, at least 35 and a resident within the country for 14 years) and now the government's thrashing about in the economy imposes a fourth: Presidents must be able to speak pluperfect nonsense with a straight face, lest the country understand what the government is doing. Obfuscation serves political salvation when what the government is doing includes promising that if Chrysler will sell itself to Fiat, U.S. taxpayers will lend that Italian firm $6 billion.

Barack Obama displayed reality-denying virtuosity last week when, announcing the cashiering of General Motors' CEO, and naming his replacement, and as the government was prompting selection of a new majority of GM's board of directors, and as the government announced the next deadline for GM to submit a more satisfactory viability plan than it submitted at the last faux deadline, and as the government kept the billions flowing to tide GM over until, well, whenever, the president said: "The United States government has no interest in running GM."

Actually, his administration prefers to do that rather than allow bankruptcy to infuriate the United Auto Workers union, which was pre-emptively grateful to Obama's administration with lavish contributions to candidate Obama. The president supposedly showed "toughness" in sacking a conspicuous member of a particularly unpopular little cohort, CEOs of big corporations. He will need more grit if, as his administration hints, this time it is serious, that its patience is wearing thin, that someday GM could face "controlled" or "prepackaged" or "surgical" bankruptcy. One suspects that those adjectives intimate that it will be faux bankruptcy, gentle in dealing with the UAW.

Last November, five months and $17.4 billion in auto bailouts ago, this column noted: "Some opponents of bankruptcy say: GM must not be allowed to fail before it perfects batteries for its electric-powered Volt, which supposedly is a key to the company's resurrection. This vehicle was concocted to serve GM's prolonged attempt to ingratiate itself with the few hundred environmentally obsessed automotive engineers in Congress. They have already voted tax credits of up to $7,500 for purchasers of such cars -- bribes that reveal doubts about consumer enthusiasm for them at a price that would reflect cost."

In December, GM, by then a mendicant groveling before its congressional masters, ran a full-page newspaper ad apologizing for having "disappointed" everyone, vowing to stop selling so many "pickups and SUVs" (which were 11 of GM's 20 most profitable products in 2008), and promising "revolutionary new products like the Chevrolet Volt." Another ad, which appeared before December and is still running, features a car attached to an electric cord, and says the Volt amounts to "reinventing the automobile."

Last week, in an unenthralled summary of GM's "viability" plan, Obama's administration said: "GM earns a large share of its profits from high-margin trucks and SUVs, which are vulnerable to a continuing shift in consumer preference to smaller vehicles. Additionally, while the Chevy Volt holds promise, it will likely be too expensive to be commercially successful in the short term."

The stunning shift in consumer preferences that should make the White House's freshly minted auto experts feel vulnerable has been reported under headlines such as "Like a Rock: Hybrid Car Sales Plummet" (Wall Street Journal, Dec. 9) and "Hybrid Car Sales Go from 60 to 0 at Breakneck Speed" (Los Angeles Times, March 17). Absent $4 gasoline, customers, those nuisances with their insufferable preferences, do not want the vehicles the politicians want them to want, even with manufacturers now offering large rebates and other incentives.

The two best-selling vehicles in America this year are large pickup trucks (Ford F-Series and Chevy Silverado). In February, Toyota sold 13,600 Tundra and Tacoma pickups and 7,232 Priuses. It sells the Prius at a loss, which it can afford to do because it makes pots of money selling pickups. Has the Car Designer in Chief, aka the president, considered the possibility that what he calls "the cars of tomorrow" will forever be that?

His administration cannot be faulted for failing to do well what cannot be done well -- industrial policy, wherein the political class, with negligible experience in commerce, flounders. The administration can, however, be faulted for trying. The government's wallow in the automobile industry, under this and the previous administration, merits a hockey coach's evaluation of his team: "Everyday you guys look worse and worse. And today you played like tomorrow."