1. No "Empathy" for Property Owners Richard Epstein—a conservative law professor who is a prominent advocate of taking property rights, and their constitutional protection, seriously—has provided the most relevant review of President Obama's new Supreme Court nominee, Sonia Sotomayor.
Epstein points to a particularly awful 2006 eminent domain ruling—a case even worse than Kelo—in which eminent domain power was basically used to extort money from property owners on behalf of a private developer. (Epstein provided more commentary on the case earlier this year.)
Sotomayor was one of the three judges on the appeals panel which upheld the original judge's refusal to defend property rights.
Epstein correctly points to why this case is so important: the arbitrary abuse of power by politicians who believe they have a right to dispense of other people's property is precisely Obama's own modus operandi—and this is what the Supreme Court will be called upon to check. In effect, Obama is nominating a judge who will give him free reign to shake down AIG executives and Chrysler creditors.
A number of commentators have noted that when Obama talks about the importance of a judge having "empathy," this is really a code-word for the "liberal" agenda. I think that's too narrow. "Empathy" is a code-word for altruism—which, in practice, means that anyone deemed to be wealthy, successful, or independent deserves no empathy and is fair game to be sacrificed.
That's why Obama's new Supreme Court nominee has no "empathy" for property owners.
"The Sotomayor Nomination," Richard A. Epstein, Forbes, May 26 We have already seen a president whose professed devotion to the law takes a backseat to all sorts of other considerations. The treatment of the compensation packages of key AIG executives (which eventually led to the indecorous resignation of Edward Liddy), and the massive insinuation of the executive branch into the (current) Chrysler and (looming) General Motors bankruptcies are sure to generate many a spirited struggle over two issues that are likely to define our future Supreme Court's jurisprudence. The level of property rights protection against government intervention on the one hand, and the permissible scope of unilateral action by the president in a system that is (or at least should be) characterized by a system of separation of powers and checks and balances on the other.
Here is one straw in the wind that does not bode well for a Sotomayor appointment. Justice Stevens of the current court came in for a fair share of criticism (all justified in my view) for his expansive reading in Kelo v. City of New London (2005) of the "public use language."… But he was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion—one that makes Justice Stevens look like a paradigmatic defender of strong property rights.
I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The "or else" was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: "We agree with the district court that [Wasser's] voluntary attempt to resolve appellants' demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."
Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court…. Indeed, the threats that Wasser made look all too much like the "or else" diplomacy of the Obama administration in business matters.
2. The Pragmatist Constitution There are serious problems with conservative judicial theory, but there is at least a glimmer of sanity in the view that we should stick to the "original intent" of the Constitution—which would be great, if the conservatives were consistently willing to recognize that the original intent of the Constitution was to protect individual rights.
But there is nothing redeeming in the judicial theory of the left. The long New York Times Magazine article linked to below describes the latest variant of the subjectivist "living Constitution" doctrine. While this new theory is billed as less radical than the old version, its essence is the same.
The basic idea is that are no objective limits on the power of government. The only limit on judges is their need to stay within the mainstream of a broader political consensus—but as that consensus moves, they should follow it wherever it goes.
This is the Constitution filtered through the philosophy of Pragmatism—a constitution with no fixed principles, whose meaning is determined by an ever-shifting social consensus. The left refers to this judicial philosophy as "democratic"—which it is, in the sense of the old line about two people on a desert island voting to cook and eat the third.
In fact, the job of a Supreme Court Justice is not to show "deference" to the elected branches of government. Precisely the opposite: the court's job is to keep the elected leaders in check by enforcing the Constitution's limits on their power.
"What's a Liberal Justice Now?" Jeffrey Rosen, New York Times, May 26 When talking about the Supreme Court, Barack Obama has resisted the familiar ideological categories that have defined our judicial battles for the past several decades. He has made clear that despite his progressive inclinations, he is not a 1960s-style, Warren Court liberal—someone who believes that the justices should boldly define constitutional rights in an effort to bring about social change….
"Ultimately, though, I have to side with Justice Breyer's view of the Constitution—that it is not a static but rather a living document, and must be read in the context of an ever-changing world."
By tipping his hat to Breyer, Obama acknowledged one of the two liberal justices appointed to the court during Bill Clinton's presidency. (The other is Ruth Bader Ginsburg.) In different ways and to different degrees, each of them has championed yet another conception of the judiciary: one in which the courts, in most cases, should play only a "minimalist" role in America's democracy, generally preferring deferential and narrow rulings to broad ones…. By so doing, the theory goes, the courts can avoid getting too far ahead of the will of the people and their elected representatives, and preserve judicial legitimacy in the process….
[S]everal scholars…have helped articulate the position now known as "democratic constitutionalism." One of its core ideas is that courts should pursue many of the same social-justice ends that the Warren Court sought to advance, only using more modest, less uniformly activist means—always acting in conjunction with progressive political movements. Unlike the minimalists, the democratic constitutionalists don't maintain that courts should always prefer "nudges over earthquakes"; but unlike Warren Court partisans, they don't suggest that the courts are always entitled to have the first (or last) word in promoting social progress. "Decisions made by legislatures and executive officials about our rights are just as important" as judicial decisions, if not more so, Balkin and Siegel write in an introductory essay to "The Constitution in 2020."
But though the courts ought to take their cues from representatives of the people—and from popular political movements—judges still have important work to do in giving convincing legal expression to those sentiments. "In a democratic society," Balkin and Siegel write, "courts best perform their institutional role as partners in a larger dialogue: they respond to popular visions of the Constitution's values and help to translate these values into law."
3. Going Galt The headline of the article below refers to "missing millionaires"—which, of course, should immediately make you think of Atlas Shrugged, in which the central mystery is the disappearance of businessmen, investors, entrepreneurs, and men of talent.
In this case, the cause of the disappearance is the same: producers are fleeing a system that exists to loot and exploit them. But it is not much of a mystery: the article below describes how the Maryland legislature drastically raised state income taxes on millionaires—only to see a third of the state's millionaires disappear, leaving fewer victims to pay this special penalty on success.
The wider context for this story is the massive fiscal crisis of the state governments. An MSNBC report describes how 48 of 50 state governments are now running ruinous budget deficits. But as with most modern reporting, this article starts in mid-stream by reporting the crisis but giving us no idea what previous events caused it.
The real story is that state and local governments expanded relentlessly during the boom times, increasing their budgets faster than the growth in population or the growth of the economy. This was a vast local and state revenue "bubble," fueled by greed—the politicians' lust to seize and distribute the wealth of their constituents. When the recession hit, this bubble of "infectious greed" burst.
"Millionaires Go Missing," The Wall Street Journal, May 27 Maryland couldn't balance its budget last year, so the state tried to close the shortfall by fleecing the wealthy. Politicians in Annapolis created a millionaire tax bracket, raising the top marginal income-tax rate to 6.25%. And because cities such as Baltimore and Bethesda also impose income taxes, the state-local tax rate can go as high as 9.45%. Governor Martin O'Malley, a dedicated class warrior, declared that these richest 0.3% of filers were "willing and able to pay their fair share."…
One year later…One-third of the millionaires have disappeared from Maryland tax rolls. In 2008 roughly 3,000 million-dollar income tax returns were filed by the end of April. This year there were 2,000, which the state comptroller's office concedes is a "substantial decline." On those missing returns, the government collects 6.25% of nothing. Instead of the state coffers gaining the extra $106 million the politicians predicted, millionaires paid $100 million less in taxes than they did last year—even at higher rates.
No doubt the majority of that loss in millionaire filings results from the recession….
The Maryland state revenue office says it's "way too early" to tell how many millionaires moved out of the state when the tax rates rose. But no one disputes that some rich filers did leave…. Christopher Summers, president of the Maryland Public Policy Institute, notes: "Marylanders with high incomes typically own second homes in tax friendlier states like Florida, Delaware, South Carolina, and Virginia. So it's easy for them to change their residency."
4. "There's No Reason for Kim Jong-Il Not to Pee on Our Rug." Over the weekend, North Korea celebrated the new Obama era of peace and love by testing a nuclear bomb—and the missiles needed to deliver those bombs to their targets in South Korea, Japan, and the rest of the Pacific Rim.
The Washington Times report on the test offers some airy speculation that this might indicate a succession struggle as North Korean dictator Kim Jong-Il's health fades. But it also offers some more substantial information, including an administration official's announcement that the North Korean bomb was another semi-fizzle, yielding a much smaller explosion than advertised.
The power of Monday's underground explosion remained in question, with Russia claiming the North had achieved an explosion comparable to the atomic bombs dropped on Hiroshima and Nagasaki—in the 10- to 20-kiloton range. But after studying seismic data and other intelligence, a senior White House official issued a statement indicating that the explosion was much smaller. "The characteristics suggest a man-made event with an explosive yield of approximately a few kilotons [of] TNT."
This article is also notable for the outstanding metaphor provided by retired Special Forces Lt. Col. Gordon Cucullu, who declares that North Korea is "like a dog," he said. "If you feed him every time he pees on the rug, then he'll continue to pee on the rug. There's no reason for Kim Jong-il not to pee on our rug."
Meanwhile, a very busy Gordon Chang writes in the Wall Street Journal that the new test is a sales demonstration for North Korea's business of selling nuclear technology to the bad guys—its role in the famous Axis of Evil.
The official Korean Central News Agency said this immediately after the detonation: "The results of the test helped satisfactorily settle the scientific and technological problems arising in further increasing the power of nuclear weapons and steadily developing nuclear technology." This is sales talk. North Korea appears set to go into high gear and merchandise its nuclear arsenal.
But Chang's comment below in Forbes is more important, because it names one of the primary reasons we have not yet blocked North Korea's nuclear program or toppled its regime: the North Korean regime is sponsored by China, which likes to keep alive a regime that causes trouble for the West.
"We Have A Chinese Problem, Not A North Korean One," Gordon S. Chang, Forbes, May 25 Today, China supplies about 90% of North Korea's oil, 80% of its consumer goods and 45% of its food. Beijing is Pyongyang's only formal military ally and its primary backer in the United Nations Security Council and other diplomatic forums. If it weren't for the Chinese, there would be no North Korean missile program, no North Korean nuclear program, and no North Korea.,,,
For the last eight years, the United States has had a Korea policy that can be described in one word: China. President Bush looked to Beijing to contain Pyongyang and disarm Kim. Yet during his administration the Chinese gave the North Korean leader the one thing he needed most to develop nuclear weapons and the missiles to deliver them: time. The Chinese counseled patience while the so-called six-party talks, which began in 2003, dragged on, but they failed to broker a solution even though they could have done so.
Many Chinese officials, especially in the Foreign Ministry, know their country's Korea policy is counterproductive in the long run because it will eventually lead to the nuclearization of the region and thereby the marginalization of Beijing's relative power. Yet there is no consensus in the upper echelons of the Communist Party and the People's Liberation Army to change long-held policies. Apparently, President Hu Jintao finds Kim useful in the short-term for keeping Japan and South Korea off-balance and in extracting concessions from the United States.
Today, President Obama said North Korea's acts "pose a grave threat to the peace and stability of the world." So what should his administration do? From all accounts, his senior Asia officials feel the United States has no leverage on Beijing. That assessment could not be more wrong. The legitimacy of the Chinese political system rests largely on the continual delivery of prosperity, and that prosperity depends on access to the American market.
President Obama will never have a successful Korea policy until he has a successful Chinese one.
5. The Nation Obama is Ready to Confront The Obama administration is not being totally passive in its foreign policy. It is vigorously seeking to browbeat Israel into remaining passive against the threat of an Iranian nuclear weapon. That's the news about recent messages between the Obama administration and the Netanyahu administration in Israel, according to Caroline Glick (by way of Dick Morris, below).
"The Death of Israel," Dick Morris and Eileen McGann, DickMorris.com, May 24 From Caroline Glick, deputy editor and op-ed writer for the Jerusalem Post, comes alarming news. An expert on Arab-Israeli relations with excellent sources deep inside Netanyahu's government, she reports that CIA chief Leon Panetta, who recently took time out from his day job (feuding with Nancy Pelosi) to travel to Israel "read the riot act" to the government warning against an attack on Iran.
More ominously, Glick reports (likely from sources high up in the Israeli government) that the Obama administration has all but accepted as irreversible and unavoidable fact that Iran will soon develop nuclear weapons. She writes, "…we have learned that the [Obama] administration has made its peace with Iran's nuclear aspirations. Senior administration officials acknowledge as much in off-record briefings. It is true, they say, that Iran may exploit its future talks with the US to run down the clock before they test a nuclear weapon. But, they add, if that happens, the US will simply have to live with a nuclear-armed mullocracy."
She goes on to write that the Obama administration is desperate to stop Israel from attacking Iran…. She notes that American officials would regard any harm to American interests that flowed from an Israeli attack on Iranian nuclear facilities as Israel's doing, not Iran's.
6. "A Quadruple Axis of Evil" In addition to the possibility that Israel will stop Iran's nuclear program, the other sign of hope in the Middle East—because it will embolden the Israelis—is a curious shift in Arab commentary on Iran. Noticing that they are immediate targets of Iran's dreams of world domination, a number of Arab countries—most notably Egypt—have begun to align with Israel against Iran.
Thus, while the leaders of Iran and Syria fantasize about themselves as the heads of a "new world order," an Egyptian government-run newspaper runs an editorial denouncing Iran and its minions, including the Palestinians, as a "new Axis of Evil."
"Editor of Egyptian Government Daily: Al-Qaeda, Iran, Palestinian Extremists—A New Axis of Evil," Middle East Media Research Institute, May 26 "The capture of the terrorist cell associated with the explosions in a square near the Al-Hussein mosque [in Cairo] last February brought to light two new matters of utmost importance. The first is that this cell was discovered through the Internet; the second is that Al-Qaeda had for the first time carried out an operation inside Egypt….
"The fact that Al-Qaeda has entered the fray indisputably confirms the strong connections between this terrorist organization and Iran, Hizbullah, and extremists within the Palestinian resistance. This is a quadruple axis of evil, whose four components were melded together in a single crucible. It's impossible now to tell which of them is hoisting the banner of international terrorism, which is bandying the slogans of Islam and instigating hate towards Israel, and which is extolling resistance in Lebanon or Gaza. The four have become one.
"The target, too, has become one—namely Egypt, its land, its people, its history, its civilization, its economy, [and] its past, present, and future."
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