Constitutionalism a la carte

I've written before that constitutionalists, originalists and so-called strict constructionists are trying to force the constitution into such a tight mold that it is functionally ineffective.  But that's not the only problem. These ideologues have a tendency to cherry pick.  Their judicial opinions often appear almost arbitrary in terms of application of an ideology.  Their arbitrariness allows them great discretion to the point where they can rewrite the constitution by choosing when to acknowledge the rights it grants the people and when to shut their eyes to those rights.

In yet another example of why originalists are full of beans - please see the Clarence Thomas dissent in  the June 27 decision on  Brown v Entertainment Merchants Association.

California wanted to ban the sale of very violent video games to young children.   The video game vendors sued.  The Supreme Court supported the vendors.  J. Scalia, who claims to be an originalist, does actually stick to literal text of the first amendment when writing for the majority.  They find the violent video games worthy of free speech protection - beyond the reach of parents seeking to protect their children (by penalizing merchants who would sell these games to minors).  Scalia notes the video games often are like stories, with characters, plots, themes and ideas.    Scalia writes: "Like the protected books, plays, and movies
that preceded them, video games communicate ideas—and
even social messages." California tries to find safe harbor for the law in obscenity restrictions. Historically obscenity is considered unprotected speech. But Scalia thinks only sexual matters should fall under the obscenity category. Violence in itself is not obscene.
All this is nice and good.


But it's too much for Clarence Thomas to stomach.

He thinks the justices should be more concerned with the rights of parents to protect their children from noxious influences than be attentive to the ideas inherent in the video games themselves. He concludes:
“The freedom of speech,” as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians.  He says this as if children were owned by their parents, as if children were property.   If we accept his conclusion, the First Amendment does not apply to children.  It sounds good, but it's dangerously arbitrary. This kind of thinking would set precedent for parents to restrict their children from exposure to other ideas. What if these video games were promoting revolution, or evolution? Thomas gives parents absolute, unfettered power to censor the information that reaches their children.  It's a power many parents crave -but is it fair to children? Is it constitutional? Thomas thinks so.  He supports his position with history books about parenting and writes: "Parents had total authority over what their children
read."  He notes the constitution prevents minors from voting or serving on juries. His examples are inapposite. Jury duty and voting involve making decisions about the Republic's future. Playing a video game is not making a decision about the nation's future - but sometimes playing a video game can expose a young mind to new ideas. One creative programmer designed a nifty game about terrorism. The player shoots and kills as many terrorists as he can - but every time he kills a terrorist, more terrorists spring out to replace the deceased. This free video game is violent - but it conveys an important idea - that killing terrorists simply breeds more terrorists and that violence is not an effective solution to terrorism.   Under Clarence Thomas' interpretation of the First Amendment - minors might not have the freedom to play a game like that, or be exposed to an idea like that.


Thomas professes to take the constitution literally - to refuse to read into it - but he butted heads with Scalia about whether free speech that depicts violence qualifies for protection.  Thomas said the founders always contemplated that parents could protect their children from harm and the ban on violent video games fell into that safe harbor. Personally, I agree with that assessment. But there is no way that can be considered "originalism."   The founders did not write any clauses with exceptions into the First Amendment, but somehow Thomas has found them.  These exceptions to free speech protection are not in the constitution, they are in Thomas' own conceptions of right and wrong, his personal conceptions based on society's values. This is exactly what he professes to oppose.

It's even more amusing that other members of the court's conservative wing use the same tack as Thomas - even though they concur with the majority.  They arrive at the same conclusion using a different strategy, they argue that California did not give constitutents proper notice and would strike down the ban on those grounds.  But part of their strategy involves looking at the matter through historical lens - not simply taking the text of the First Amendment literally.


J. Alito writes, "For better or worse, our society has long regarded many depictions of killing and maiming as suitable features of popular entertainment, including entertainment that is
widely available to minors."

The best critique I've seen comes from Garrett Epps in The Atlantic. (Link here)  Here's an excerpt from the article:


"In nine cases out of ten, "originalists" are the ones employing free-form interpretive techniques, applying them to carefully selected historical materials rather than to the text and structure of the Constitution. The result is a claim that ancestral voices have told them how to resolve present legal disputes.  Justice Thomas's dissent should stand, for a while, as the most egregious example of this voices-in-my-head originalism."

What Epps is too nice to say (but I'm not) is that originalists are usually arbitrary and often render arbitrary opinions. The only thread of consistency is that their opinions are consistent with their personal values, quirks and personalities.

Is Clarence Thomas Above the Law?

      Challenges to the nation's most significant attempt at universal health care, the Patient Protection and Affordable Care Act, will soon arrive at the steps of the Supreme Court. That presents a problem for at least one sitting justice. 

     Based on a number of recent reports and disclosures, Associate Justice Clarence Thomas could be facing potentially serious consequences if he does not recuse himself from deciding on the health reform law. Thomas  has not reported his wife's earnings in her lobbying efforts against this particular law. He had not reported noninvestment income earned by Virginia Lamp Thomas(which added up to more than $1 million) for years on required disclosure documents.  Thomas filed amended disclosure forms for the years 2009 to 1989 in Jan. 2011 shortly after Common Cause asked Attorney General Holder to investigate.  

     Thomas filed amended financial disclosure forms for 2010 on May 27, just before the Memorial Day weekend - when the press corps off to their beach barbecues.

     Thomas' 2010 disclosure form describes him as an investor in Liberty Consulting - his wife's group. But it does not say how much he invested in it - or how much she earned.  This is why Congressman Weiner was needling Thomas on Twitter about the disclosures just before Memorial Day weekend.   Weiner's questions were based on the research Common Cause did on Thomas' disclosure forms and his wife's lobbying. What Common Cause found set in motion a number of complaints by citizens and legislators, but strangely, not by the courts. Is it strange, though, considering that Thomas is, effectively, their boss.

     Common Cause filed a complaint in January based on a section of law governing judges and conflicts of interest: 28 U.S.C. § 455 which states:

a) Any justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following
circumstances:
(1) Where he has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding;

     § 455 (b)(4) specifically expands potential conflict of interest to cases that could bring financial benefit to the spouse or child of a judge. The Ethics in Government Act (5 U.S.C. § 102(e)(1)(A)) also requires federal officials, including Supreme Court justices, to disclose spousal income.  

     Virginia Thomas earned more than $680,000 between 2003 and 2007 from Heritage Foundation and Clarence Thomas reported his spouse had no noninvestment income in his financial disclosure forms. She received more than $500,000 when she started Liberty Central and fought health care reform - but he didn't report that income either.(LA Times story here)  Common Cause made public its complaint on Jan. 11 and Thomas filed amended financial disclosures from 1989 to 2009 - 20 years of disclosures - on Jan. 22, 2011. Jonathan Turley, a law professor at George Washington University, conferred with Common Cause about Thomas' issue and raised concerns about potential violations to Government Ethics Act. He wrote about some of his concerns in the LA Times.

     When U.S. Rep. Anthony Weiner started needling Thomas on Twitter about Thomas' discrepancies in financial reporting at the end of May - he was immediately pounced on by Andrew Breitbart over sexual shenanigans. (You can still see Weiner's appeal to the public over Clarence Thomas on his congressional web page.  Dave's Corner Tavern sums up the situation beautifully in a post called  "While You Were Sleeping.").  The largest media outlets focused on the more sordid story about sexting. Weiner sexted. He lied about sexting. He's sorry about both. Weiner's case has no bearing on the viability of rule of law in the United States.

     I'm much more interested in the issue Rep. Weiner raised before he was so unfortunately distracted from his mission. Others that have raised the issue include Common Cause and a watchdog group called Protectourelections.org.  In addition to Weiner, 73 members of Congress signed a letter recommending Thomas recuse himself from any decisions on the Patient Protection and Affordable Care Act because of his conflicts of interest.

     On February 8, 2011, Protectourelections.org filed a complaint with the Board of Responsibility of the Washington, DC Court of Appeals alleging professional misconduct by Thomas.  Protectourelections.org alleged that Thomas did not truthfully report his wife's noninvestment earnings on AO Financial Disclosure Forms and made decisions that benefited his wife financially. 

     A Twitter petition has emerged from Orange County, Calif. calling on House Minority Leader Nancy Pelosi to initiate congressional hearings on Thomas' alleged financial reporting discrepancies. You can sign the petition here.

     Protect Our Elections bases its complaint on ethics law and the state rules of conduct for attorneys. Lawyers are required to report colleagues for professional misconduct under the Rules of Professional Conduct for each state.  Under the Rules of Professional Conduct, misconduct misconduct cannot be overlooked - not even by friends and close associates. Lawyers who decline to file complaints about misconduct have been sanctioned for their failure to incriminate their colleagues. This is serious business. 

     The text of the Protect Our Elections complaint is as follows: "Clarence Thomas breached his legal duty and violated the D.C. Rules of Professional Conduct by knowingly and willfully failing for 20 years to state truthfully on required AO 10 Financial Disclosure Forms that his wife Virginia earned non-investment income.  Clarence Thomas further made rulings that his wife benefited from financially and professionally, and by extension, that benefited him.  In short, this unethical and criminal conduct violates the Rules of Professional Conduct, and undermines the rule of law, respect for the law and confidence in the law."

     Protectourelections.org says Thomas didn't disclose his wife's income for 20 years. Part of that income was from lobbying against the Affordable Care Act as unconstitutional.  Constitutional cases, of course, end up at the Supreme Court.

     Is it a crime for a sitting judge to make decisions that financially benefit his wife and not disclose his wife's wages in mandatory financial reports?

     If so, can the American system of justice survive a gross violation on our highest court. Do the sitting justices of the Supreme Court know about this. If it is so, how do they preserve the integrity of our legal system?

    Maybe Clarence Thomas really didn't know what he was doing or what laws he was breaking. But this seems like Ethics 101.Thomas' wife, Virginia, received more than a de minimis amount. According to the complaint: 

Virginia Thomas has received non-investment income since l989, and she worked at the Heritage Foundation from 2003 through 2009, earning at least $120,000 each year,
according to the foundation's IRS Form 990s.
She then went to work for Liberty Central in a paid position.
http://www.nytimes.com/2010/10/09/us/politics/09thomas.html Exhibit 12 She has now
launched a new consulting service called Liberty Consulting Inc.
http://www.rawstory.com/rs/2011/02/justices-wife-ambassador-tea-party/ Exhibit 13."

      All of these positions listed as held by Virginia Thomas are essentially lobbying. She specifically lobbied against the Affordable Care Act - the country's first attempt to make health insurance universal.  Now several cases on the constitutionality of the Affordable Care Act are winding their way up to the Supreme Court. 

    The complainant in this case argues Thomas cannot be impartial:  "it appears that Justice Thomas had a reason for not disclosing that his wife was working for a conservative think tank and a conservative 501c(4) group; he did not want litigants who had cases pending before the Supreme Court to have information that could be used to disqualify him from hearing those cases, and he wanted his family to benefit financially from his decisions. "

     This is not the first time questions of this nature have been raised in regard to Thomas.  In 2009, when the Supreme Court was deciding Citizens United, Thomas' wife's Liberty Central (which she created) received a $550,000 donation. She did not disclose the identity of the donor. The court ruled in favor of Citizens United. Common Cause asked Attorney General Eric Holder to investigate several issues related to the case. It had concerns about the discrepancies in Thomas' financial reports about his wife's earnings and concerns about his impartiality along with that of Associate Justice Anthony Scalia.  The group chargd that both Scalia and Thomas were allegedly participating in political strategy sessions to help Citizens United. 

     The letter Common Cause sent to Holder specifically identified how Citizens United enabled Mrs.Thomas to receive more funding for the group she started:

     "The Supreme Court’s decision in Citizens United, issued on January 21, 2010, provided a substantial benefit to Liberty Central while Ms. Thomas was its CEO by enabling it to raise and spend corporate funds directly advocating the defeat or election of political candidates for the first time in more than 60 years. According to a story in the Los Angeles Times, Ms. Thomas stated that Liberty Central “would accept donations from various sources – including corporations – as allowed under campaign finance rules recently loosened by the Supreme Court.”

     The private funding for that organization was considerable.  The statement above shows Ms. Thomas acknowledging she will receive a personal financial benefit from a case which her husband decided.  That's not all. Later Thomas invested in that same group.  A blogger at Theoldredneckspeaks.blogspot.com points out that she started the group based on her belief that she would be able to get money for it because of the outcome of Citizens United - he describes as "judicial insider trading."

     That's a troubling concept. One I had not considered before. Thomas' lack of candor with regard to his wife's finances has raised some very unsettling issues. These go beyond his personal views.  They go to honor of our judicial system.  In a nation with rule of law, we need to be able to trust the integrity of our courts.  Is Clarence Thomas above the law?

Economists start facing reality

I just read a powerful post by Harvard economist Dani Rodrick who was floored by a paper that told him what all working people have known for years.  Productivity is way up, and pay is way down. Working people are not sharing in the gains to which they contribute.

"Labor productivity increased by 78 percent between 1980 and 2009, but the median compensation (including fringe benefits) of 35-44 year-old males with high school (and no college) education declined by 10 percent in real terms," Rodrick writes.


The paper Rodrick cites is "Addressing the Problem of Stagnant Wages" by MIT professors Frank Levy and Tom Kochan. They call for a new social compact to save the middle class. Their paper contains everything conservative Republicans have been militantly denying.

• The link between productivity and compensation has been broken. The people earning the most are not necessarily productive, let alone most productive. 
• Education and training are necessary for higher wages, but not sufficient.
• Declining wages are one potential cause of divorce and single parent families. (Where is the religious right - hello? Can we get some help here?)
• Since the 1970s the US has largely deregulated large corporations (little guys are still heavily regulated) - By deregulation I mean declining to enforce labor laws, denying federal increases to the minimum wage, and prioritizing shareholders over other stakeholders in companies.

A paragraph on the fourth page of this paper really burned in my skull: "Prior to these changes, American business practiced a managerial capitalism that shared the returns on investments in new goods and services among the firms' investors, science and engineering professionals, and other employees. Today American business emphasizes a form of financial capitalism that rewards financial innovations, financial transactions and restructuring. As a result of this shift, a disproportionate share of the gains have gone to those in the financial sector who engineered the shift and to the top executives in corporations who applied these principles in their firms."

These are shell games, not true productivity increases.  As corporations leveraged themselves, they leveraged the country. We have not really seen any benefits from it. America has succeeded in spite of, not because of, the laissez-faire market.


I encourage everyone to look at the first graph in the paper. So few economists pay attention to more than gross profits these days.  Let's pay respect to economists being intellectually honest.   A few of the comments on Rodrick's page were less than encouraging. One poster actually said that these workers deserved to earn less because all the productivity gains were coming from the executives. Sure.  Their golf scores are AMAZING.


Anyway, take a look at Dani Rodrick's blog.
If you have time, read the paper published March 17 by the Employment Policy Research Network - it's 30 pages long, but well worth the time.

Jesus Christ or Ayn Rand - The economic conservative's conflict

      

Alan Greenspan, Ayn Rand follower and former Chairman of the Federal Reserve, uses a passerby's back to write a note May 19, 2011 inside Union Station, Washington D.C. 

      Many Republican Conservatives claim to be very religious - they spouse the evangelical Christian faith or publicly embrace traditional values.   This crowd has really taken to Ayn Rand lately.  Rand was known for writing racy novels and "The Virtue of Selfishness."  She isn't taken seriously by philosophers, although she did try to create a philosophy based on selfishness, which she called "objectivism."  Rand used objectivism to promote her belief in unregulated markets and total laissez-faire free market capitalism.

      Followers of Rand's objectivism believe if their actions benefit themselves, it is morally acceptable. Objectivism gives people permission to be utterly irresponsible for others. As Cain once asked "Am I my brother's keeper." Rand's answer is a resounding no. 

     I thought it might be helpful for conservatives to see the contrast between the teachings of Jesus on self, money, and the concept of eternal life with those of Ayn Rand.  Christ seems beyond politics. I would not hang a label on him. He is neither conservative nor liberal. Yet his teachings make it clear that we are our brother's keeper.  

The values of Jesus Christ vs. The values of Ayn Rand

Topic	Ayn Rand wrote:	Jesus Christ says:
Ego	“I swear by my life, and my love of it, that I will never live for the sake of another man, nor ask another man to live for mine.” (Atlas Shrugged)	“I am not seeking glory for myself” John 8:50 “Whoever wants to be great among you must be your servant and whoever wants to be first must be slave of all. For even the Son of Man did not come to be served, but to serve, and to give his life as a ransom for many.” Mark 10:43-45.
Eternal Life	“Ask yourself whether the dream of heaven and greatness should be waiting for us in our graves - or whether it should be ours here and now and on this earth”	“I am the resurrection and the life. He who believes in me will live, even though he dies; and whoever lives and believes in me will never die.” John11:25 “What good can it be for a man if he gains the whole world yet forfeits his soul? For what can a man give in exchange for his soul?” Matthew 16:26 “I tell you the truth, whoever hears my word and believes him who sent me has eternal life and will not be condemned, he has crossed over from death to life.” John 5:24 “Whoever serves me must follow me; and where I am my servant will also be. My father will honor the one who serves me.” John 12: 26
Money	“Money is the barometer of a society's virtue.” “Run for your life from any man who tells you that money is evil. That sentence is the leper's bell of an approaching looter.”	“Watch out. Be on your guard against all kinds of greed; a man’s life does not consist in the abundance of his possessions.” Luke 12:14 “Blessed are you who are poor, for yours is the kingdom of God.” Luke 6:20 “Do not store up for yourselves treasures on earth, where moth and rust destroy, where thieves break in and steal. But store up for yourselves treasures in heaven... For where your treasure is, there your heart will be also.” Matthew 6:19-21 “No man can serve two masters. Either he will hate the one and serve the other, or he will be devoted to the one and despite the other. You cannot serve both God and money.” Luke 16:15 “But woe to you who are rich, for you have already received your comfort. Woe to you who are well-fed now, for you will go hungry.”  Luke 6:24-25 “How hard it is for the rich to enter the kingdom of God.” Mark 10:23
God	“Do you believe in God, Andrei? No. Neither do I. But that's a favorite question of mine. An upside-down question, you know. What do you mean? Well, if I asked people whether they believed in life, they'd never understand what I meant. It's a bad question. It can mean so much that it really means nothing. So I ask them if they believe in God. And if they say they do—then, I know they don't believe in life. Why? Because, you see, God—whatever anyone chooses to call God—is one's highest conception of the highest possible. And whoever places his highest conception above his own possibility thinks very little of himself and his life.”   Source: We The Living Part One Chapter 9	“God is spirit and his followers must worship in spirit and in truth.” John 4:24

     How is Ayn Rand's philosophy of selfishness having an impact on our society today?  Alan Greenspan, former chairman of the Federal Reserve, embraced this philosophy and was a devoted personal acquaintance of Rand. (See "All the Devils are Here: The Hidden History of the Financial Crisis" by Bethany McLean and Joe Nocera, p.85)  Despite repeated warning about excess credit, the credit bubble,  and horrible abuses in mortgage lending, Greenspan declined to take any action.  Many of his decisions to avoid regulation can be attributed to his adherence to Rand's teachings.  Paul Ryan, the Republican trying to eviscerate Medicare for our seniors, is another of Rand's devotees.   Rand prioritized property rights equally with human rights.  In Rand's eyes, if humans suffer, so be it, they have to rescue themselves or perish.  Associate Justice Clarence Thomas, is a devotee (he has told a number of magazines and written about it in his autobiography), as is his wife Virginia, a Tea Party Queen and anti-universal health care lobbyist. 

     If anyone would like to add quotes or comparisons to the chart above, please feel free. Thanks. 

Fake Constitutionalism: How Republicans use the Courts to Disempower the American People

    Today's Republicans believe the key to power in the United States is controlling the judiciary. To that end, during Republican administrations they appoint young conservative judges, even if unqualified (See Clarence Thomas*) and stonewall judge appointments during Democrat administrations.

     Think Progress has a great article about this, noting that only 58% of Obama's judicial appointments have been confirmed, the lowest of any president by far.  Alliance for Justice has detailed reports on pending nominees and vacancies.Apparently, Democrats are much more willing to support conservative judges than Republicans are to support Democratic-leaning judges. 

     Conservatives are appalled when one of their own appointees actually judges fairly. Justice David Souter, a typical New Hampshire Republican, stunned right wingers with his integrity. Souter in turn was baffled when they turned on him. This may be why Souter stepped down from the court. He was unaccustomed to the animosity and to being described in a way that did not fit him at all.  Souter is simply not a liberal, no matter how the Republicans howl. He's a New Hampshire conservative (Most New Englanders will understand what I mean.)

     Souter does not abide by what conservatives - such as the radical right wing racialist American Thinker - call constitutionalism. Their version of constitutionalism - a kind of legal formalism - actually is a fake constitutionalism. I say this because the conservatives use formalist "strict construction" readings in a way to subvert the law's intent, purpose and meaning.  Legal formalism is what the US Supreme Court employed in Plessy v. Ferguson, in the Dredd Scott decision, and in other holdings that stripped Americans of rights. Michael Klarman,  a legal historian at Yale, has done substantial scholarship on how the courts used formalism to permit states to deny black voters the right to vote despite the 14th and 15th amendment.  His article "The Plessy Era" published in the 1998 Supreme Court Review is particularly eye-opening. Klarman todays argues for a living constitution. If you disagree, remember that under the original constitution, black Americans counted as only three-fifths of a person. The South didn't want black Americans to vote, but they wanted to use their slaves to increase the number of votes they had in Congress. It's important to honor the law by obeying its purpose, not reading it so narrowly as to prevent it from being enacted.**

     Souter, on the other hand, contemplated the nuances of the law.  He took the purpose of the law into consideration when writing his opinions. He was sensitive to the criticism lodged against him for his fair-minded approach.  He encountered what he perceived as "criticism that the court is making up the law, that the court is announcing constitutional rules that cannot be found in the Constitution, and that the court is engaging in activism to extend civil liberties."


     Conservatives who label themselves constitutionalists (which they are not) argue that using such an analysis to arrive at decisions can comprise a kind of law making. The constitution clearly sets aside the lawmaking power for Congress alone.  We don't want the courts making new laws. But we do want court's interpreting the laws fairly and honoring the purpose of the laws.

      Souter took on the fake constitutionalists when he addressed graduates at Harvard University's 359th commencement last year.

      I'll directly quote him because the language is so beautiful.   (He really is a fine craftsman with words)  This is directly from a copy of his speech printed verbatim by the Harvard Gazette May 27, 2010.

          "The charges of lawmaking and constitutional novelty seem to be based on an impression of the Constitution, and on a template for deciding constitutional claims, that go together something like this.  A claim is made in court that the government is entitled to exercise a power, or an individual is entitled to claim the benefit of a right, that is set out in the terms of some particular provision of the Constitution.  The claimant quotes the provision and provides evidence of facts that are said to prove the entitlement that is claimed.  Once they have been determined, the facts on their face either do or do not support the claim.  If they do, the court gives judgment for the claimant; if they don’t, judgment goes to the party contesting the claim.  On this view, deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively.

          There are, of course, constitutional claims that would be decided just about the way this fair reading model would have it.  If one of today’s 21-year-old college graduates claimed a place on the ballot for one of the United States Senate seats open this year, the claim could be disposed of simply by showing the person’s age, quoting the constitutional provision that a senator must be at least 30 years old, and interpreting that requirement to forbid access to the ballot to someone who could not qualify to serve if elected.  No one would be apt to respond that lawmaking was going on, or object that the age requirement did not say anything about ballot access.  The fair reading model would describe pretty much what would happen.  But cases like this do not usually come to court, or at least the Supreme Court. And for the ones that do get there, for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality.
          Even a moment’s thought is enough to show why it is so unrealistic.  The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches.  These provisions cannot be applied like the requirement for 30-year-old senators; they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.
           But this explanation hardly scratches the surface.  The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time.  Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony.  Yet another reason is that the facts that determine whether a constitutional provision applies may be very different from facts like a person’s age or the amount of the grocery bill; constitutional facts may require judges to understand the meaning that the facts may bear before the judges can figure out what to make of them."

***********************

      Conservative Republicans excel at marketing - they often use terms in an Orwellian sense - and when they say Constitutionalism, they generally mean playing word games to subvert rights guaranteed by the Constitution.  Why would anyone do this? Being a conservative Republican has been very lucrative for otherwise banal people. Witness Clarence Thomas, our nation's most famous affirmative action recipient. (He hates knowing that, and knowing that everyone knows it, and opposes affirmative action, yet will not step down). He was 43 when named to the nation's highest office and he had suddenly groomed for the post. They plucked from the EEOC and set him up as an Appeals Court judge. Most Appeals Court judges rise through the ranks and spend some time learning the ropes as Federal District Court judges. Conservative Republicans wanted someone willing to use the the nation's top court to disenfranchise minorities. Who better than Thomas, an outspoken conservative Republican who happens to be black.  They had seen him in action at the EEOC, effectively working against his own  Thomas' wife has made three-quarters of a million dollars now in her quest against universal health care and the Affordable Health Care Act and her husband is on the court that will decide whether the Affordable Health Care Act. He has been greatly enriched by opposing the Affordable Health Care Act but he has not recused himself. The New York Times ran an interesting article about the problem in February. (Read it yourself, link here) Velvet Revolution called for an FBI investigation link here.  Congressman Anthony Weiner, D-NY, has a petition demanding Thomas stop delaying filing his current financial disclosure forms (currently overdue).  If Thomas and the court strike down the Affordable Care Act, which was passed by Congress, are they not taking upon themselves lawmaking powers. The very lawmaking powers that the Constitution has reserved for Congress alone. As constitutionalists, shouldn't they oppose any such action to overturn the will of congress because they happen to disagree? Well, there you have it. Constitutionalism, as a movement promoted by Clarence Thomas,  is a fraud, a chicanery, and a marketing term for conservative Republicans who oppose the constitution.

     I suspect that New Hampshire Republicans, like Souter, will remain committed to seeking fair application, fair judgment and intellectual integrity in the judicial process.  Souter, by the way, although retired,  continues to serve on the Appeals Court.

     Constitutionalism must be exposed for what it is. It has already cost the American people one of their finest judges, David H. Souter, and burdened them with one of the worst, Clarence Thomas.

     Today's Democrats ignore the judicial confirmation process at their peril.  The conservative Republicans know that they can use the judiciary to subvert democracy and the Constitution. The number of vacancies in the nation's high courts show that Obama has been virtually powerless to appoint judges.

     In every state, there is a judicial committee to nominate judges. This is how the pipeline to presidential nomination starts. I recommend you get involved now. Make some phone calls. Find out how to get on that committee. Talk to the people on that committee. Get involved.

     Next, send a few emails to your Democratic Party leaders explaining the problem. Brainstorm ways to get around the conservative blockade. The future of our nation's children future depends on you.


 * Thomas was on the appellate bench 15 months before Bush nominated him to the nation's highest court. Prior to that he had been head of the Equal Employment Opportunity Commission, where he was well known for NOT investigating allegations of discrimination. Cornell West  in Race Matters (p. 23) alleges that Thomas left 13,000 age discrimination complaints to "dying on the vine for lack of investigation" during his 8 years at the EEOC. Even today, Thomas deals with the reality that most people know his ultraconservative law clerks do much of his writing and research. He seems quite defensive about it too: http://www.washingtonpost.com/wp-dyn/articles/A22779-2004Oct10.html
 
**That's what today's conservative Republicans have been fighting for - strict readings that actually disempower Americans. Across the nation, Republicans have launched new proposals for laws (often drafted by a sinister group named ALEC) that make it more difficult for young people and minorities to vote. If those laws go to conservative judges - well, we will probably see more decisions reasoned the way the Supreme Court did in Plessy v. Ferguson.