The GOP Field’s War On The Federal Judiciary

Many of the Republican candidates for President advocate ideas that would restrict the power of the Federal Judiciary.

One of the little noticed things about the current field of Republican candidates, is the extent to which many of them have said truly bizarre things about the Federal Judiciary:

Most of the Republican presidential candidates want to wipe away lifetime tenure for federal judges, cut the budgets of courts that displease them or allow Congress to override Supreme Court rulings on constitutional issues.

Any one of those proposals would significantly undercut the independence and authority of federal judges. Many of the ideas have been advanced before in campaigns to court conservative voters.

This time, though, six of the eight GOP candidates are backing some or all of those limits on judges, even though judges appointed by Republican presidents hold a majority on the Supreme Court and throughout the federal system.

A group that works for judicial independence says the proposals would make judges “accountable to politicians, not the Constitution.”

Here’s a sampling of some of the proposals that some of the candidates have made:

Former House Speaker Newt Gingrich has been the most outspoken critic of the courts. He would summon judges before Congress to explain their decisions and consider impeaching judges over their rulings.

Texas Gov. Rick Perry, in his book “Fed Up,” has called for an end to lifetime tenure for federal judges and referred to the high court as “nine oligarchs in robes.”

Minnesota Rep. Michelle Bachmann, in criticizing Iowa judges who ruled same-sex marriage legal in the state, described judges as “black-robed masters.” Bachmann said Congress should prevent the courts from getting involved in the fight over same-sex marriage, among other high-profile social issues.

Texas Rep. Ron Paul has advocated cutting the jurisdiction of federal courts and has introduced a bill to that effect in the House. A judge’s violation of Paul’s proposed “We the People Act” would be “an impeachable offense.”

Paul told Iowans in March that the country ought to come up with a way for voters to remove federal judges from office, much like several states that have retention elections for state judges

At a Tea Party forum in South Carolina in September, Republican candidate Herman Cain joined Bachmann and Gingrich in endorsing legislation that would overturn the high court’s rulings declaring that women have a constitutional right to abortion. The proposal challenges the widely held view that Congress can’t overrule the court’s constitutional holdings.

Former Pennsylvania Sen. Rick Santorum has been particularly critical of the San Francisco-based 9th U.S. Circuit Court of Appeals, which has a preponderance of Democratic appointees. “That court is rogue. It’s a pox on the Western part of our country,” Santorum said at a Tea Party event in February. He pledged to sign into law a bill abolishing the appeals court.

Gingrich, too, has reserved special criticism for the 9th Circuit, saying that by squeezing its budget, Congress could force the court’s judges to give up their law clerks and even turn off the lights in their courtrooms and offices.

At the Values Voters Summit in Washington in early October, Gingrich also objected to last year’s ruling that struck down a ban on gay marriage that was approved by California voters, and an order by a judge in San Antonio barring public prayer at a high school graduation.

“Now, the idea of an American judge becoming a dictator of words is so alien to our traditions and such a violation of our Constitution … that that particular judge should be removed from office summarily,” Gingrich said to applause.

There’s nothing new about the political branches of government attempting to restrain the control of the judiciary when it has made rulings that some segment of the country objects to. In the early days of the Republic, the newly ascendent Democratic-Republicans impeached Associate Justice Samuel Chase, mostly because he was a Federalist but also in reaction to the Supreme Court’s assertion of the power of judicial review in Marbury v. Madison. Chase was tried by the Senate and acquitted, but the first battle had been fought. During the Civil War, President Lincoln ignored the ruling of Chief Justice Roger Taney, sitting as a trial judge as was the custom at the time, in Ex Parte Merryman that Lincoln’s suspension of the Writ of Habeus Corpus was unconstitutional. When the Supreme Court repeatedly struck down elements of Franklin Roosevelt’s New Deal, he proposed a Court-packing plan that would have let him put enough friendly judges on the Court to out-vote the conservatives, a plan that even his fellow Democrats refused to sign on to. During the Civil Rights Era, Southern Democrats in Congress attempted to put forward a number of plans that would have prevented Federal Courts from ruling on  segregation-related issues in the south, or made those rulings impossible to enforce. Finally, with the advent of cases like Roe v. Wade, the judiciary became a target for the evangelical right and has largely remained so for the past 40 years or so. So, political attacks against the judiciary are as old as the Constitution itself.

The general conservative complaint against the judiciary seems to be that it has done things that restrict the ability of majorities at the state level to enact social legislation like laws against abortion, or the sale of contraceptives, and that it appears to be doing on the verge of doing the same thing when it comes to same-sex marriage. The criticism is cloaked in the language of “original intent” and “judicial restraint,” but the reality is that what they are upset about is the result of the courts’ decisions, not the manner in which they made them.

What’s somewhat ironic about all of this, though, is the manner in which traditional conservative views about the role of government have been turned on their head by those on the right who now criticize the judiciary for flouting the will of the majority. In the Founders Era, and even as recently as the era of William F. Buckley conservatism, majorities were something to be restrained, especially when they sought to pass legislation that sought to restrict the rights of the minority. Constitutional rights were put in place to protect those rights, and the judiciary was created, in part, to protect the minority from the majority. It has not always performed that task correctly, but when it does it doesn’t strike me as valid to say that the Court was wrong because it thwarted majority will. Many times, that is exactly what the Courts are supposed to do.

Some of the proposals that the Republican candidates make might be worthy of consideration. The elimination of life tenure in favor of some kind of set term for Federal Judges is a topic that keeps coming up, for example, but given the difficulties of amending the Constitution one doubts that this will ever be changed. Similarly, the proposals to restrict Federal Court jurisdiction are authorized by the United States Constitution in Article III, Section 2. It is clear, however, that none of the proposals that the Republican candidates are making are being made out of a desire to improve the judiciary. Instead, they are meant to pander to very specific parts of the GOP base who are frustrated by the fact that the Constitution doesn’t let them do what they want to do. In other words, they are made with the intent of giving more power to the majority at the expense of the rights of the minority. That doesn’t sound like limited government to me.

Update: Adam Liptak and Michael Shear also cover this today over at The New York Times.

FILED UNDER: Campaign 2012, Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. NBH says:

    That doesn’t sound like limited government to me.

    When has the GOP ever been for “limited government”? That’s just a code phrase for cutting social safety net programs like welfare, medicare, and social security. Most of the GOP has never met a military or law enforcement project they disliked and is quite happy to inject government as far into the home, bedroom, and doctor’s office of citizens as possible in the name of “upholding christian morals”. “Limited government” has become Orwellian doublespeak.

  2. Jay Tea says:

    FYI, Doug, but some spambot is lifting and reprinting your articles wholesale.

    http://diana.h-info.co.in/

    I picked up on it because you hat-tipped me, and I got the trackback notification.

    J.

  3. ponce says:

    The Republicans share the exact same enemies list as Pol Pot and the Khmer Rouge:

    Judges, Journalists and Teachers.

  4. Those things come and go. And since they’re usually all on servers overseas there’s little that can be done about them

  5. @ponce:

    When the Democrats end up on the losing end of a decade or two of a Republican judiciary, we’ll see similar things from them.

  6. An Interested Party says:

    When the Democrats end up on the losing end of a decade or two of a Republican judiciary, we’ll see similar things from them.

    Oh? So the last few decades have seen a Democratic judiciary? That must be news to all the Reagan, Bush I, and Bush II judicial appointments…

  7. ponce says:

    When the Democrats end up on the losing end of a decade or two of a Republican judiciary, we’ll see similar things from them.

    Yeah, that librul majority on the Supreme Court blocked every single thing George W. Bush tried to do, right Doug?

  8. @An Interested Party and @ponce:

    Well, let’s just sit back and see what happens if SCOTUS just happens to strike down the PPACA’s individual mandate.

  9. CJ Robinson says:

    Instead, they are meant to pander to very specific parts of the GOP base who are frustrated by the fact that the Constitution doesn’t let them do what they want to do.

    Ignorant radicals attacking the foundations of governmental institutions? Yep. Pretty much describes the conservative movement since Goldwater.

  10. Jay Tea says:

    Tell you what: why don’t you super-brilliant folks explain the Constitutional rationales behind two decisions: Roe v. Wade and Kelo v. New London. As in, citing the specific parts of the Constitution that cover both decisions in the way they were ruled.

    J.

  11. ponce says:

    Well, let’s just sit back and see what happens if SCOTUS just happens to strike down the PPACA’s individual mandate.

    Doug,

    Expecting the worst of everybody is rather un-American.

  12. WR says:

    @Doug Mataconis: “When the Democrats end up on the losing end of a decade or two of a Republican judiciary, we’ll see similar things from them.”

    When? You’re kidding, right? The Republicans have been packing the courtswith reactionaries since Reagan’s day. Clinton basically decided not to fight, nominating almost entirely moderates, and Obama has barely nominated anyone. The joke of the right wing whining about the courts is that the majority of them are slaves to the corporatists, anti-labor, anti-individual Federalist Society view of the world.

  13. Jay Tea says:

    @WR: Gee, what a surprise. WR says something stupid.

    This time, he confuses “appointed by a Republican president” with “conservative Justices.” Justices Stevens, Souter, O’Connor, Blackmun, and Brennan are among the leading liberals on the court — and all were appointed by Republicans.

    J.

  14. sam says:

    @Jay Tea:

    Since they’re done deals, why don’t you tell us why Roe and Kelo were wrongly decided? Why don’t you explain to us, for instance, why the Court was wrong in asserting a 14th Amendment due process claim on the part of pregnant women in Roe? (BTW, do you think Griswold was wrongly decided?)

  15. Jay Tea says:

    @sam: We have a philosophical difference here, Sam. I believe in the 10th Amendment, letter and spirit: if something isn’t specifically in the Constitution as the responsibility of the federal government, then it’s not the fed’s business. Abortion, in my opinion, should be something left to the several states. To me, the 10th means that I don’t have to argue that something is not the federal government’s bailiwick; it’s up to others to prove that it is.

    Kelo was an appalling overreach of the takings clause. It’s explicitly stated that takings should be for “the public use.” In Kelo, the property was taken from people and turned over to another private entity, where “the public use” was the alleged greater public benefit by the corporation — which ended up not using it anyway, so the lands currently lie abandoned.

    Back to Roe v. Wade: I don’t think the 14th Amendment applies here. We already have different “rights” in different states, because states have different laws. Some of my favorite examples: age of consent for sex and marriage, consanguinity laws for marriage, and death penalty. One’s “rights” in those areas are not equal, based on the state in which they are located; abortion, it seems to me, is similar.

    J.

  16. sam says:

    @Jay Tea:

    Ah well, you know, the 10th Amendment:

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    I take it you’re not a fan of substantive due process. OK. But if a state encroaches on a right reserved to the people, what recourse do the people have if not the federal courts? As, for example, Griswold. Do you think a state has the right to deny people access to contraceptives? And if such a right inheres in the people under the 10th, where are the people to go to vindicate that right?

    The problem arises as to what liberties and rights do inhere in the people under the 10th. You do see a question arising, I hope, if someone argues, That’s not a right of the people under the 10th because the states, or some states, severely curtailed the practice (that the asserted right implies).

  17. OzarkHillbilly says:

    Abortion, in my opinion, should be something left to the several states.

    Shorter Jay: “Abortion is murder in Kansas…. but in Massachusetts it is OK.”

    Jay…. a question, can you make a stand? Right v. wrong? Do you believe in anything??? Don’t give me any of this 10th amendment crap… either abortion is the killing of a human life….. Or it is the elimination of a cell line. Pick one.

    I await a stand of principle.

  18. An Interested Party says:

    Well, let’s just sit back and see what happens if SCOTUS just happens to strike down the PPACA’s individual mandate.

    That does nothing to prove that there has supposedly been a Democratic judiciary over the past few decades…

  19. That’s not my point AIP. I’m saying let’s see how the left reacts if that happens. We already got some preview of that with the Supreme Court’s recent 2nd Amendment cases

  20. ponce says:

    To me, the 10th means that I don’t have to argue that something is not the federal government’s bailiwick; it’s up to others to prove that it is.

    To me, the 10th Amendment means if something is not the business of the federal government, it’s my business.

    If the states want to stick their noses in, they have to prove they have the right to.

  21. Liberty60 says:

    What’s somewhat ironic about all of this, though, is the manner in which traditional conservative views about the role of government have been turned on their head by those on the right who now criticize the judiciary for flouting the will of the majority.

    OK, could I edit my previous comment on an earlier thread?

    And this concludes Episode XXV, in which our hero Mr. Mataconis discovers “Hey, the Republicans don’t really care about limited government!!”

    And no- this snark isn’t really all that funny.

    It would be funny if Doug weren’t one of millions of people walking around with the fantasy of some respectable version of the Republican Party, that actually believes in limited government, fiscal responsiblity, and personal accountability.

  22. Liberty60 says:

    @ponce:
    That is true, unless you possess a uterus.

    I think the Uterine Exception to the Constitutional limitation of the Federal government’s power was clearly laid out in, er, Marbury vs Madison, or Godzilla vs Mothra, or the Sermon on the Mount as Jesus delivered it at Gettysburg with Edmund Burke nodding in approval.

    But its really in there, trust me. I read it on Newsmax.

  23. What makes you think I have a respectable view of the Republican Parry, Liberty60.

    I have equal contempt for both of our major political parties.

  24. Moosebreath says:

    Doug ,

    “We already got some preview of that with the Supreme Court’s recent 2nd Amendment cases ”

    You mean the one the Democrats have been not running on opposition to? The one that they have not introduced any bills to overturn the result of? The one that they have not introduced any amendment to the Constitution to change the result of? That one?

    “I have equal contempt for both of our major political parties.”

    Which is why you have indicated you will never vote for one of them, and routinely vote for the other.

  25. A voice from another precinct says:

    “What’s somewhat ironic about all of this, though, is the manner in which traditional conservative views about the role of government have been turned on their head by those on the right who now criticize the judiciary for flouting the will of the majority. In the Founders Era, and even as recently as the era of William F. Buckley conservatism, majorities were something to be restrained, especially when they sought to pass legislation that sought to restrict the rights of the minority.”

    What we’re missing in this train of thought is that conservatives believe that they are the majority now. It’s the unspoken premise in all of the “Christian nation/tea party manifesto” schlock that is part of the right’s talking points. They may not be the 99%, but they see themselves as the 51% whose opinions ought to matter more.

    And besides, why do you want to protect the rights of abortion seeking, promiscous, drug and alcohol abusing, ‘Murka hating, athestic, GLBTQ, muslim minorities anyway? Doesn’t the right’s agenda have the best interests of those minorities at heart? It is a Christian agenda, after all.

  26. Moosebreath,

    Unless you have access to voting records that I am unaware of, you have no idea who I vote for.

  27. Eric says:

    To me, what’s gonna be tough to pass laws to restrict the power of the courts is trying to get approval from the courts. Meaning that if Congress and the President somehow pass a law restricting the courts’ power and independence (i.e. whether they can rule on certain issues, tenures, and other powers), I believe judges and courts would fight back.

    The Judicial Branch is very important since it holds the power in deciding whether or not, laws and actions are constitutional or not. Taking away that power leads to bigger government, since it can pass laws and commit actions without consequence as to whether or not it is constitutional. Just like what you have beautifully said, “Constitutional rights were put in place to protect those rights, and the judiciary was created, in part, to protect the minority from the majority.”

    Great Article

  28. WR says:

    @Jay Tea: Congratulations, Jay Tea, you make my point for me while in your confused state think you’re proving me stupid. The “leading liberals” on the court are moderate Republicans appointed by Republican presidents. There are no fiery liberals on the court, no one anywhere as near to the left as Alito, Scalia, Roberts and the loathesome Thomas are to the right. There’s no Thurgood Marshall to fight for individual rights, just a bunch of country club Republicans.

    That you can see them as liberal is just proof of how far right the judiciary has been dragged.

    Geeze, Jay Tea, thanks for proving my point.

  29. Kit says:

    Whether it be the Constitution, the Bible, science, or simply the well being of America, conservatives are masters at throwing up an endless series of arguments. The Left tend to grapple with each issue on the Right’s terms, but almost never realize that their adversaries rarely place much stock in their professed principles. Over the past decade, people who insist on rationality have steadily been pushed leftward, often to their own dismay. In today’s GOP, the arguments of the moment are tomorrow’s liabilities for those unwilling to blow with the political winds.

  30. mike says:

    @Jay Tea: You really need to read Jeffrey Toobin’s book “The Nine” if you want to understand the past 20 years of the SC and how today’s SC was shaped. The fact that you think O’Conner is a liberal sums up your knowledge of the SC.

  31. Jay Tea says:

    Let’s see… I cite two very important examples of why some folks consider themselves “at war” with the federal judiciary, without even bothering to mention the 9th Circuit and their particular strain of lunacy, and challenge folks to give the rationale behind the two cases, and the answer is… well, certainly nothing of substance.

    I really don’t understand Kelo. That one can be spun to appeal to both sides of the political spectrum. On the right, just note that it’s private property being taken away “for the common good,” but failing miserably every step of the way. On the left, it’s the little people losing their property for the benefit of a huge multinational corporation, and Big Pharma to boot. That decision should have been a no-brainer, but it still went through — and the left seemed to stop thinking once they heard the right was opposed it.

    And back to Roe v. Wade — I cited numerous examples where “rights” differ from state to state, including several related to sex. Hell, let me toss in one more — the ages of consent for sex and marriage not only differs by each state, but in some cases by sex, with different ages for males and females. (Normally I despise using “male” and “female,” but in this case we’re dealing with the legal distinction between men/boys and women/girls, so it’s kind of unavoidable.) It seems that the “uterus exemption” cited above is actually on the left — or, at least, not exclusive to the right.

    And the reasoning above is actually fairly consistent with that of the formal Roe v. Wade decision — that it’s based in the “penumbra” of an “implied right.” That’s a third-order derivation from the original document. And that’s too far a stretch for me.

    J.

  32. sam says:

    @Jay Tea:

    And back to Roe v. Wade — I cited numerous examples where “rights” differ from state to state, including several related to sex

    Indeed. The right to marry someone of another race varied from state to state, and while the laws were struck down on equal protection grounds (see, Loving vs. Virginia — the most aptly-named case in the entire history — now and future — of the Supreme Court), at the end of the case, the Court said:

    Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.

    Do you think this is a right ‘based in the “penumbra” of an “implied right.” ‘ And that it is a “third-order derivation from the original document’? Marriage, as we all know, is not mentioned in the Constitution anywhere. Is the right to marry “too far a stretch for” you?

    And please answer the questions I raised in my Sunday, October 23, 2011 at 19:00.

  33. Jay Tea says:

    @sam: I would say that ruling was more about race than marriage — note that it didn’t address other, non-race restrictions on marriage like the ones I’ve cited several times.

    Griswold, I always saw as part of the general demise of “blue laws.” To me, it wasn’t so much a matter of “the people have a right to” as more of “it’s none of the state’s business.” Not so much a specific individual right, but a limit on the government’s authority — and an example of the “or the people” part of the 10th.

    Now, you wanna explain why abortion should be treated differently than the other laws I cited, that are clearly within the bailiwick of the several states? The limits on marriage and differing age of consent laws?

    J.

  34. Moosebreath says:

    Doug,

    “Unless you have access to voting records that I am unaware of, you have no idea who I vote for. ”

    I am just taking your writings here at face value. Are you saying that I shouldn’t do so?

  35. Anderson says:

    @Doug Mataconis:

    I don’t understand Doug’s point. What Democratic outrage was there over Heller?

    Citizens United has led to some Dem pushback, but have there been any serious calls for changes to Article III as a result?

    Then of course there’s Bush v. Gore: if THAT didn’t energize the Dems to reform the Supreme Court, I doubt that anything else will.

  36. Moosebreath,

    I’m pretty sure I’ve made my contempt for current Republican politics clear. So, again, I’m not sure what you’re talking about. Or, why it matters

  37. sam says:

    @Jay Tea:

    Griswold, I always saw as part of the general demise of “blue laws.” To me, it wasn’t so much a matter of “the people have a right to” as more of “it’s none of the state’s business.” Not so much a specific individual right, but a limit on the government’s authority — and an example of the “or the people” part of the 10th.

    Dude, forgive me, but here you’re really trying to make a silk purse out of that sow’s ear of an argument you’re trying to defend.

    Now, you wanna explain why abortion should be treated differently than the other laws I cited, that are clearly within the bailiwick of the several states?

    Because the logic of Roe follows the logic of Griswold.

  38. Jay Tea says:

    @Doug Mataconis: Actually, what comes through clear is your contempt for all Republicans who aren’t Mitt Romney. Or, more precisely, pose a threat to Mitt Romney. You worked your way through Sarah Palin, Michele Bachmann, Rick Perry, and now it’s Herman Cain. You don’t seem to get too worked up about Obama and the rest of the Democrats anywhere near as much as you do about those folks.

    J.

  39. Jay,

    I don’t even like Mitt Romney. Making the rather obvious observation that he seems to be the only Republican candidate capable of winning in November 2012 is not the same thing as endorsing him.

  40. Moosebreath says:

    Doug,

    “I’m pretty sure I’ve made my contempt for current Republican politics clear. So, again, I’m not sure what you’re talking about. Or, why it matters”

    While you occasionally express contempt for current Republican politics, you have also said that you are willing to vote for Republican candidates. While you also occasionally express contempt for current Democratic politics (and often for reasons which are entirely imaginary), you also state you would never vote for a Democrat. Therefore, your contempt for the two parties does not appear to be equal, in spite of your statement to the contrary.

  41. Moosebreath,

    Once Democrats give up their love of government solutions for every problem, and embrace common sense economics, we can talk.

  42. Jay Tea says:

    @sam: No, because in Roe v. Wade, there’s a legitimate question of conflicting rights — the woman’s vs. the fetus. That depends on when you define life as beginning and when the fetus’ right to life outweighs the mother’s right to live her life as she sees fit.

    Roe v. Wade arbitrarily picked to divide pregnancy into trimesters, and applied a sliding scale. Others use “fetal viability” as the determining factor, but that is literally a sliding scale — the age at which fetuses have survived keeps creeping back. I think the current record is around 23 weeks, or well before the third trimester.

    On the issue, you’ll find a few fringe nutjob extremists who will argue that life begins at conception or only upon delivery (and the old Jewish joke that “the fetus only becomes a person when it graduates from medical school”) and demand that the fetus has absolute rights from conception or zero rights until delivery. But the vast majority say it falls somewhere in the middle, and get extremely uncomfortable about defining just when. That’s when they reach for arbitrary standards like trimesters or changeable ones like viability.

    So no, Roe v. Wade is not just like Griswold. Except for the extremists who insist that the fetus is a parasite, a human-shaped tumor, that exists only at the woman’s pleasure until it is born.

    Oh, for the record: I’m “squishily pro-choice.” I’d like to see it made illegal, but 1) I don’t think that’s anywhere near practical and B) I’m not comfortable in my opinion to wish it to be made law.

    My own opinion is that Roe v. Wade is horribly bad law, incredibly flawed in its reasoning, and the matter should be returned to the states, where we can have 50 labs to try to figure out the best way to deal with it. And the people — through their legislatures, which are far more responsive to people than the federal government — can have their say. Some states will ban it, some will put almost no restrictions on it, most will fall in the middle somewhere, and we can all see for ourselves what works.

    J.

  43. Moosebreath says:

    Doug,

    Thanks for proving my point.

  44. Jay Tea says:

    @Doug Mataconis: You don’t like Mitt Romney? Sorry, I got that impression from how you have made your contempt for all the other candidates clear, and declared him inevitable without expressing similar distaste.

    But judging simply by your own words, you dislike him a LOT less than you dislike the other four I mentioned. And I should probably toss in Donald Trump, too.

    J.

  45. sam says:

    @Jay Tea:

    Oh, for the record: I’m “squishily pro-choice.” I’d like to see it made illegal, but 1) I don’t think that’s anywhere near practical and B) I’m not comfortable in my opinion to wish it to be made law.

    Uh, that needs some clarification. Do you mean you’d like it (=abortion) to be legal (reading ‘illegal’ as a a typo)? Or is ‘pro-choice’ the error, and you mean ‘squishly pro-life’?

    And as for your general argument about the difficulties, isn’t that a very, very strong argument for keeping government, at whatever level, the hell out of the decision? The general premise of conservatism, as I understand it, is that government usually fvcks up whatever it gets involved in — except, apparently, when it involves itself in the most intimate details of our private lives.

  46. @Moosebreath:

    That point being what? That libertarians have absolutely nothing in common with Democrats? If nothing,. this administration has proven that in spades

  47. Moosebreath says:

    Doug,

    “That point being what?”

    As I originally said, in response to your statement that ““I have equal contempt for both of our major political parties.”

    Which is why you have indicated you will never vote for one of them, and routinely vote for the other.”

    Or as I said less than an hour ago, “While you occasionally express contempt for current Republican politics, you have also said that you are willing to vote for Republican candidates. While you also occasionally express contempt for current Democratic politics (and often for reasons which are entirely imaginary), you also state you would never vote for a Democrat. Therefore, your contempt for the two parties does not appear to be equal, in spite of your statement to the contrary. ”

    To put it another way, you express the view that because of areas where the Democrats do not follow libertarian beliefs, you are unwilling to _ever_ vote for Democrats. On the other hand, although Republicans do not follow libertarian beliefs in numerous areas, you do not make blanket statements that you are never willing to vote for them.

  48. Moosebreath,

    Except there are people of libertarian leaning beliefs welcome in the GOP. Ron Paul and Gary Johnson to name two. Tom McClintock and Julian Amash to name two more. Additionally, there are some Republican Governors who have excelled at the management of their states such as Bob McDonnell and Mitch Daniels. I’ve also liked a lot of what I’ve heard from Jon Huntsman.

    I cannot think of a single Democratic politician of note that I could put on such a list

    Beyond those names, the number of Republicans I am comfortable voting for starts dwindling down to zero. I didn’t vote Republican in 2008, I probably won’t in 2012. So, I’m not sure what point you think you’re making or why you’re so obsessed over the few Republican politicians I have positive thoughts about.

  49. Liberty60 says:

    I have equal contempt for both of our major political parties.

    Ah, got it.

    The Democrats want to fix the economy and get people working again;
    The Republicans want the misery to extend deeper until they drive Obama from office.

    See? They are both equally guilty!

    The Democrats want to extend unemployment benefits to ease the misery of the jobless;
    The Republicans think the unemployed are like stray dogs and shouldn’t be fed;

    Jeez, they both deserve contempt!

    The Democrats want to extend voting rights to as many people as possible;
    The Republicans long wistfully for the days when only property owning white men voted;

    Fie! A pox on both their houses!

    Really, Doug?
    You are what, a college educated adult, and you are still playing Holden Caufield, arms crossed and lips curled, sulking that all the grownups suck?

  50. When the Democrats actually propose policies that will fix the economy rather than empowering the government, I’ll give them another look.

  51. Jay Tea says:

    @sam: I mean that philosophically, I’m pro-life, but I simply don’t see a pragmatic way to impose a ban. Further, I’m so uncomfortable about the issue that I’m not willing to make my opinions have the force of law. So I’m punting — I say let’s make it real for the first time in 40 years and have each state hash it out.

    In my state, I’d argue for making it legal, with restrictions. But what I really want is all this pointless arguing that we’ve had ever since Roe v. Wade to end — by making the arguments actually mean something.

    J.

  52. Moosebreath says:

    Doug,

    Again, thanks for proving my point. You do not view the parties with equal measures of contempt.

  53. @Jay Tea: Uh, Jay, you know that the SCOTUS just affirmed the Connecticut Supreme Court’s prior ruling in Kelo v. New London, right?

    And you know that if it wasn’t for the doctrine of incorporation and the 14th Amendment, the case would never even had been heard by the SCOTUS? Don’t most Republicans denounce incorporation and/or the 14th Amendment as a violation of “states’ rights”?

  54. Jay Tea says:

    @Timothy Watson: …and all that has precisely what with the rightness or wrongness of the decision?

    It’s not that complicated a case. “The Constitution says private property can be taken by the state if 1) they are justly compensated and B) it is taken for the public good. Does taking a bunch of private homes and giving them to a pharmaceutical company for a new plant fit that?”

    I’ve been through an eminent domain case when the town wanted a sewer easement across my family’s property, and it sucked — but I can see how it made sense. This case, though, the “public good” was “this company will hire people and pay taxes.” And while it’s not that relevant for this case, it’s a hell of a precedent that the plant was never built. So the bad decision can’t even be rationalized by saying “at least there was some benefit for some folks.”

    One of the pro votes was cast by my fellow New Hampshirite David Souter. There was a move afterwards to confiscate his home and build a hotel on top of it. It never went anywhere, but I very much approved of the plan.

    J.

  55. CJ Robinson says:

    @Doug Mataconis:

    Once Democrats give up their love of government solutions for every problem, and embrace common sense economics, we can talk.

    That’s hysterical. I’d take the time to point out which side understands economics, but thankfully, David Frum has already done so:

    Were Our Enemies Right?

  56. Not surprisingly CJ, I think Frum gets it completely wrong there

  57. CJ Robinson says:

    Not surprising in the slightest, but that speaks volumes about your stubbornness, and not exactly kindly about your intellect. Feel free to make the Palinesque “common-sense” argument. Some of us prefer, you know. facts and empiricism.

    For those following along at home, let’s just add Henry Blodget’s exposition on the matter, from yesterday:

    Few economists have been more correct about the economic crisis of the last several years than the proudly liberal Paul Krugman.

    Krugman spotted the “liquidity trap” early on (since the problem with the economy was too much debt, cutting rates and creating easier money would not get us out of it).

    Krugman shot down the hyperventilation about a coming hyper-inflation, arguing that the global labor glut would prevent easy credit from inflating wages.

    Krugman quickly pronounced the Obama Administration’s stimulus as far too small and said it would not get the job done.

    Krugman scoffed at the idea that interest rates were about to skyrocket as our creditors decided en masse that we were so fiscally irresponsible that they couldn’t possibly lend us any more money.

    Krugman has been wrong about some things, but he has been right on all those counts.

    Recently, Krugman has denounced the “austerity” push of the GOP, arguing that tackling our debt and deficit problem right now with spending cuts is the worst move we can make. Such cuts, Krugman argues, will put more people out of work and shrink the economy. And this, in turn, will increase, not decrease, the deficit.

    Krugman thinks we should tackle the debt and deficit problem later, when the economy is on more solid footing. He points to record-low interest rates as a sign that the world is still willing to lend us as much money as we want, practically for nothing. And he argues that, instead of cutting back, we should be using that money to build infrastructure, strengthen the economy, and put more Americans back to work.

  58. @Jay Tea: Actually, Jay, it says no such of a thing. The Fifth Amendment only applied to the federal government originally (see Barron v. Baltimore), and the Fourteenth Amendment states only: “[n]o State shall […] deprive any person of life, liberty, or property, without due process of law“.

    It wasn’t until 1878 that the Supreme Court of the United States limited the taking for “public use” and still didn’t incorporate the “just compensation” clause until 1897.

  59. Jay Tea says:

    @Timothy Watson: Thank you for your correction — that the point I raised wasn’t part of the law for almost 100 years, but has been for the past 110. Kinda makes my disgust with Kelo even more justified.

    The key element here, though, is that the circumstances of Kelo were utterly unprecedented — never before had a government body tried to just take individuals’ property and hand it over to a private concern. And it was a horrible precedent.

    The one thing that gives me comfort is that the backlash was so severe, it should give a lot of other governing bodies serious pause before they try it again.

    J.

  60. @Jay Tea: Jay, how can you complain about judges not supporting original intent when yourself don’t support the original intent of the Constitution? What exactly are judges supposed to do but support whatever political position you support today?

    And how can you say Kelo was unprecedented given the court’s decision in Berman v. Park (1954) and Hawaii Housing Authority v. Midkiff (1984)?

  61. An Interested Party says:

    That’s not my point AIP.

    Well, in the future, you might want to use actual facts to help bolster your points, rather than falsehoods like implying that the last few decades have seen a Democratic judiciary…

    Except there are people of libertarian leaning beliefs welcome in the GOP.

    Welcome, perhaps, but certainly not in any position to set policy…not in Washington, D.C. anyway…

    So I’m punting — I say let’s make it real for the first time in 40 years and have each state hash it out.

    And yet you’re pro-life…if abortion really is murder, how is it that some states should be allowed to enact it while others don’t…