Wednesday, May 27, 2009

Answering Mark T

Mark T. left a comment at Electric City which was his usual tripe, and I noted how it was as usual, essentially inane. Mark replied
Oh, please, elucidate. Enlighten and inspire me all at once!

While I know that this was phrased in a sarcastic mien, I am still willing to take his challenge. Let's take these a bite at a time. First:
It was “activist” judges who installed Bush as president.
Sorry Mark, but you are a victim of the corporate newsrooms who hide the real information from you in order to obey their masters who control all of our information. Your statement is partly true, in that it was the "activist" Florida Supreme Court that ruled that a statute governing when the election was to be declared didn't mean what it said. If they would have followed the clear law, there would not have been a need to go to the SCOTUS. Even there, the original ruling was 7-2 that the method of counting votes used by Florida was unconstitutional. The 5-4 ruling was whether or not to stop the unconstitutional counting. Your example demonstrated your point, but not in the way that you meant. It was the rejection of activism that disregarded the law that allowed Bush to retain his majority.
Next you said:
This notion that the constitution is a static document that spells out how cases should be determined is utter fantasy. The constitution is a broad outline with a great deal of room for nuance and legitimate disagreement.
The Constitution is the framework under which we have agreed to organize limited government for assistance in our affairs. To call it a living document is the same as saying that the wood that makes up the frame of a house is "living." Law provides its benefit by giving us a sense of certainty. If you go to a lawyer for advice, he or she may tell you that the law is clear, and that you will prevail or not. But if the law is nothing but nuance, everything becomes subject to litigation. And even if you lose, applying nuance would get you into the Supreme Court where the adverse ruling could be overturned. Of course, if you win, the other side could also apply nuance which would get you into the Supreme Court where the adverse ruling could be overturned. In other words, everything has to go to the Supreme Court for final determination, which just bogs down the Supreme Court, and provides no guidance on what the state of the law is except moment to moment.
Applyng Obama's criteria of "empathy" to judging reduces all of the cases to passion plays. And with your background, I am surprised that you don't realize that the wealthy litigants would have the better supply of assets to sway the judge with emotional tugs at their heartstrings.
Next you said:
Furthermore the founders were far from infallible (slavery, women voting, electoral college, appointment of senators).
You are right that the Founders were far from perfect. No human endeavor is ever perfect. But what the Founding Fathers were was incredible. They managed to take 18th Century concepts and used them to create the most incredible document for self governance ever devised. And the most amazing thing is that they created the ability to modify it (slavery, women voting, appointment of senators for example). If you demand perfection, you will achieve it in that you will be perfectly disappointed.
Finally:
On top of that, societal values change - people are more accepting of gays now than ever before in history, and that should be reflected in court rulings.
Yes, American societal values change, but that doesn't mean that the courts are the way to affect change. In fact, the activism of the California Supreme Court led to Proposition 8, which has set back acceptance of gay marriage by at least 15 years. Your lack of willingness to consider the legislative route to societal change reflects poorly on your belief in the essential ability of citizens to respond to societal changes.
I hope that you will consider these points, and if I am wrong, I am willing to listen. But don't rely on common leftist dogma, use facts and real argument.

20 comments:

Dave Budge said...

Steve, I rather expect that Mark won't have the ability to discuss the subject in any meaningful way. I'm sure, if he responds, it will be under the heading of "the Constitution he wants rather than the Constitution we have." That said, I think the SCOTUS erred in Bush V Gore for the following reason. But it's likely I'm wrong and I'd like your take on it.

The Constitution clearly provides for resolution of disputed presidential elections via the House. Although I understand the Court's opinion as to the 14th Amendment I don't understand why the did not just stop the counting but in effect barred further litigation thus "calling the election."

I think there can be an argument made that the Court legislated from the bench. But please correct me.

Max Bucks said...

Mark T. is a scientific curiosity. While everyone agrees he is essentially brain dead, no one can explain how he produces endless reams of texts, which, on superficial reading, have the appearance of thoughtful construction.

Some have suggested that Mark T. is an example of automatic writing: “Automatic writing is the process or production of writing material that does not come from the conscious thoughts of the writer. Practitioners say that the writer's hand forms the message, with the person being unaware of what will be written. In some cases, it is done by people in a trance state. In others, the writer is aware (not in a trance) of their surroundings but not of the actions of their writing hand.” [Wikipedia]

More likely, as I said over at Missoulapolis, Mark T. is merely possessed of some very interesting opinions for a non-historian, non-lawyer, non-psychologist, non-foreign policy expert, and a nonentity.

More on topic, and to sum up this entire, absurd argument about a “living Constitution,” Edward Gibbon laid down the iron law of history and jurisprudence in 1776 when he wrote: “The discretion of the judge is the first engine of tyranny.”

Mark T said...

Geez - Budge got in and responded before I could. Now I don't know what to say.

Anyway, I found your dissertation confusing - you answered questions not asked. I did not say the law was nuanced - the purpose of statutes and court decisions is to provide guidance and specifics - not nuance. I said the constitution was nuanced. So about a third or more of your answer here is off-subject.

I'm in a lawsuit right now (pro se - a fool for a client), and there is very little nuance in the statutes I'm seeking to enforce. But I'm not in court with the Montana constitution in my left hand - I am there with statutes passed by the legislature and that have withstood court challenges.

Anyway, the broad wording of a foundation document is open to wide interpretation - if you want evidence of this, ask yourself why, each year, the Supreme Court is asked to rule on thousands of cases - people are challenging the interpretation of the Constitution by one or another.

Your analogy of the constitution as a house is way off by a factor of ten - the constitution contains the building materials used to build the house, but does not lay out its dimensions other than to say it must comply with certain building and zoning codes. What the house looks like in the end - who's to say?

Regarding Bush v Gore, as an aside, two of the judges who voted to install Bush had conflicts of interest - had they recused themselves, as honest men would have done, Gore would have been president, 9/11 would have happened, we would have Guantanamo and Afghanistan and Iraq and torture ... I am not one who thinks that our democracy functions at all, so this is pretty much counting angels on pinheads.

However, your notion that what Florida was ordered to do by its court doing was "unconstitutional" is a stretch of logic - apologetics in the extreme. They wanted a statewide recount, which Gore would have won, which is why the starting nine intervened. What would have happened in Florida would be very similar to what actually happened in Minnesota - a testy fight, ballot challenges, a long and drawn out process, but a legal one that in the end would have produced a fair outcome. Instead, we were handed the worst president in history on a platter.


Obama's "empathy" comment was useful. Nothing more. One could say that Dredd Scott was a "non-empathetic" decision, Brown v Board of Education "empathetic". Often times, justice and empathy go hand in hand, but not always. And one's view of empathy is subjective at best. In the end, I prefer judges that are sensitive to the needs of disadvantaged classes. I hope Obama is as well.

I do share some of your admiration for the Founding Fathers, products of the Enlightenment that most of them were, many of them Deists, many of them subject to preventive detention and surely aware of torture. They knew what would happen to us if we were to elect someone like King George.

By the way, I'll debate you on "left-wing dogma" anytime, any place. "Dogma" implies knee-jerk reactions without benefit of thought - I get your accusation. I'm up to it. Bring it on, buddy.

I find the events in California interesting. Civil rights should never be put up for vote. I hope, in the end, that it winds up putting the California referendum system in the trash heap of hisotry - good intentions gone awry.

Max Bucks = Peck = Rook = Checker, by teh way. I'm ignoring him now and forever other than to tell him now and then to DSTFU - doubleshutthefuckup.

Mark T said...

Also - Steve - those health care links you're sponsoring here - just so you know - they are paid for sifting through the population to find potentially profitable clients for the health insurance industry. Figures they'd choose a right wing site.

Max Bucks said...

[The forgoing two entries are proof that Mark T. is a medium for automatic writing. There can be no doubt that he is channeling Abbie Hoffman, the great 20th century historian and jurist.]

Steve said...

Dave, the SCOTUS was probably trying to send a message to its inferior court to follow the law that Florida had. A good timeline on what happened is here. As to the House of Representatives deciding the election, that was talked about quite a bit as well, and would also have kept Gore out of office. But politically, everyone was glad that SCOTUS took it from their hands.
One other thing that relates to Mark's point above, the Florida Supreme Court never was requested to have all of the ballots in the state recounted. They only concentrated on the handpicked by the Gore campaign. In fact, there were 14,000 absentee ballots that Gore successfully sued to prevent from being counted. Further evidence that Democrats never meant it when they wanted "every vote counted."

Steve said...

Mark - "I did not say the law was nuanced - the purpose of statutes and court decisions is to provide guidance and specifics - not nuance. I said the constitution was nuanced."

Why would the Constitution be considered nuanced? Are you saying that the right Free Speech or Freedom of Religion are nuanced? They are actually quite clear. It's just that there is no way that the Constitution can address all of the problems that crop up. That is not nuanced.
Just for a refresher, the Constitution is the Supreme Law of the land. But the Constitution also gives the Congress the power to enact laws with the approval of the executive. So the laws enacted are subservient to the Constitution. Courts are used to interpret ambiguous language, but they are supposed to follow the intent when it can be discerned.
As to your comment on my analogy, apparently it missed you. The point is that a framework is needed. Yes, you can remodel or move walls adding or subtracting space. But it should only be done after careful thought and deliberation. Otherwise you start knocking out a wall to expand the house, and because the wall is load bearing, the whole house comes down. In a nutshell, if you consider the Constitution to be a living document, you are willing to destroy the Constitution in order to save it.
I am not sure about your conflict of interests portion, but I think that is just more Leftish wishful thinking. Judges are usually pretty careful about conflicts, and I don't know what they would be that would change the situation.
The Florida Supreme Court wanting a statewide ballot recount has already been addressed in this post. Really, you need to get out a little bit more. Could do you a wonder of good.
The next portion of your comment seems to be dicta, so I will leave it at that. But your comment that "Civil rights should never be put up for vote. I hope, in the end, that it winds up putting the California referendum system in the trash heap of hisotry - good intentions gone awry." is interesting. I would rather have a chance to vote for civil rights than have to go through another civil war.

Finally, I don't select the ads that Google sticks in there. And for you to accuse anyone of being right wing is a pretty much pointless comment.

Dave Budge said...

"As to the House of Representatives deciding the election, that was talked about quite a bit as well, and would also have kept Gore out of office. But politically, everyone was glad that SCOTUS took it from their hands."

But that's exactly my point. IT was a politically expedient decision - which is a good proxy for judicial activism.

Don't get me wrong, I'm convinced that Bush won the election and he would have won in the House. But I guess I stand firm in my thinking that the SCOTUS bypassed the Constitution proving (only to me perhaps) that there are two sides to the activist coin.

I have problems with some conservative ideology on the bench. For example, in the Medial Marijuana Case, Gonzalez v Raich, the swing vote was actually Scalia who voted with the liberal minority to affirm the Federal law that usurped the California statue. In almost every occasion Scalia finds problems with the commerce clause - the basis of his affirmation in this case. So, when the issue concerns something that he approves of he's a federalist, but on the issue of drugs he's a nationalist. I term that a form of activism, don't you?

Mark T said...

Bush v Gore has led to more apologetics among so-called "strict constructionists" than pig-sooies at a hog calling contest. It was an intervention a state contest - Supreme Court decided that entire state should be recounted, but that there just wasn't enough time, and so handed the office to Bush on a party-line vote. Later consortium recounts indicated that Gore won the popular vote in Florida. It was a activist decision with far reaching consequences.

Your whole house analogy fails, in my opinion. The constitution is a foundation document - that ought to serve us well enough. There are wide interpretations of its meaning, and various judges over the years have stretched it beyond the pale, as in granting personhood to corporations, or saying that money and votes are the same, or that slaves are property. The idea that liberals stretch the document is narrow and self-serving. All judges do. You only claim activism when you don't like a certain outcome. When an outcome pleases you, as with Bush v Gore, you go to great lengths to justify it. Nuff said.

Conflicts: While Clarence Thomas was deliberating Bush v Gore, his wife was collecting résumés for appointments in a possible Bush administration. Antonin Scalia's son Eugene was a partner Gibson, Dunn & Crutcher, the lead firm that argued the case. His son was employed by the lead counsel.

As an accountant, I would not be allowed to audit a company where my son was employed, but I guess CPA's are a little more rigorous than Supreme Court justices.

"Why would the Constitution be considered nuanced? Are you saying that the right Free Speech or Freedom of Religion are nuanced? They are actually quite clear. It's just that there is no way that the Constitution can address all of the problems that crop up. That is not nuanced."

So tell me how "prior restraint" is allowed - official state secrets - all that stuff. It requires some interpretation. Congress has made laws abridging freedom of speech, courts have upheld them. Ellsberg got off on a technicality.

Not so simple as you say.


Don't need your refresher.

"The Florida Supreme Court wanting a statewide ballot recount has already been addressed in this post. Really, you need to get out a little bit more. Could do you a wonder of good."

Read Bush v Gore. A statewide recount was the only equitable solution to the problem, but the judges deliberately set aside that option as inconvenient. Get out more, honey.

"...your comment that "Civil rights should never be put up for vote. I hope, in the end, that it winds up putting the California referendum system in the trash heap of history - good intentions gone awry." is interesting. I would rather have a chance to vote for civil rights than have to go through another civil war."

Had a vote been taken at that time, I doubt blacks would have won their freedom. Public opinion is not a gauge of what is just - good grief - have you even even listened to Rush and Sean?

"and for you to accuse anyone of being right wing is a pretty much pointless comment."

I have a notion of what being "right wing" is - it is not just to hold differing views on issues. It goes deeper. It is to be prejudiced, authoritarian, rigid, subject to manipulation by fear, holding double standards and all the same while being submissive to authority and willing to blindly follow.

I don't choose my terms lightly.

Dave Budge said...

"I don't choose my terms lightly."

No, you choose your terms foolishly. This just adds to your latent bigotry, racism and prejudice.

Couldn't those characteristics apply to people on the left as well?

Max Bucks said...

Totally pointless, everything. Why not write about something pragmatic and utilitarian, something everyone can use to improve his daily life? All you are doing here is adding to Mark T’s muddled life, which he has spent the greater part of 20 years trying to straighten out with no success. He relishes being confused and pissing his time away playing with absurdities, so long as he can get attention:

“Look at me everyone! I’m an incoherent bundle of unsubstantiated facts. Can you straighten me out? I dare you.”

I can excuse Steve, since he is a lawyer. But, Dave, what is wrong with you wasting your time on a certified nutcase? Go back to your own blog and publish something that the rest of us can actually use.

Dave Budge said...

OK, Max, point taken. Buy low, sell high (or as I've been doing lately - sell high, buy low.)

Actually I've have neglected my blog and have been working 80 hours a week. I just need a little pointless escape now an then.

Steve said...

This posting seems to be the perfect vehicle. My apologies.

Steve T. said...

Steve-

I saw a Calvin and Hobbes cartoon strip recently that reminded me of you:

Calvin: "Dad, what makes the wind blow?"

Dad: "Trees sneezing."

Calvin: "Is that true?"

Dad: "No, but the truth is more complicated."

This whole argument seems a little too complicated for you. Your views on the courts are as follows:
Liberal Judges = Activists.

The truth may be more complicated, but I'll be damned if you'll ever admit it.

Max/Checker/Rook/LT -

coming from the most prolific troll in the Montana interwebs, your implication that someone ELSE is just seeking attention is truly rich. Truly.

Max Bucks said...

Dave:

As Thomas Mann’s fictionalized grandfather, Johann Budenbrook, used to say, “Work, save, and pray.” (I am not sure if the work part meant 80 hours per week, however.) In any event, I always look forward to your posts on the markets and the general economy, and I always read the links you provide.

PS: I just got a buy signal on GM at Fibonacci 89. That would be 89 cents. Heh heh. Sometimes you cannot take technicals very seriously.

///

Steve:
As a lawyer opposing Mark T., you would probably get a good laugh out of the whole proceeding. But as a judge, you would probably dismiss his case with prejudice and boot him out of your courtroom.

///

Steve T.:

I have always been curious to know if your dad telephones you every time he is being beaten up in a blog.

Mark T said...

Max ahs used five or six pseudonyms on my blog - never his real name. But now I'm a troll ... I self-identify, don't hide behind pseudonyms - have my own blog and write profusely there ... I get out a little more than you in that I actually go to places where I know I will be pummeled. I like it. That's a right wing trait, however, to cloister.

Dave Budge - there is some interesting study going on in Canada - for decades actually - on the nature of right wingers. While it is wrong to ever use the terms all or none or to say that some right wing traits don't apply to lefties too, generally there is a higher correlation between the traits I list -

"prejudiced, authoritarian, rigid, subject to manipulation by fear, holding double standards and all the same while being submissive to authority and willing to blindly follow"

and right wingers.

And - this is really interesting - Gorbachev's perestroika opened up the Soviet Union to similar studies over there, and it turns out that the Russians who were playing the fear game with the U.S. as the bad guy were mirror images of American right wingers.

So anyway, I don't speak lightly or hurl demeaning insults - I am describing reality. Right wingers are a set all their own, mostly not mirrored on the left.

Max Bucks said...

“I am describing reality.” -- Mark T.

Oh, boy.

Have a nice weekend. Be careful on reentry.

Steve said...

Steve T. - Are you ever troubled by your bold assertions? My opposition to judges creating laws from the bench, as Sotomayer is claiming is done, is that it is a complete violation of the separation of powers. The judiciary at the federal level is the only non-political branch. All of the judges are appointed for life in order to insulate them from political pressures. Their job is to apply the law, not create it. When the magistrate creates laws, as in Roe v. Wade or Kelo, or. . . . they are in conflict with the legislative branch.
If there is a problem with the law, the rightful remedy is to have the Congress change the law. To have the judges decide what the law is going to be is to put them into a position of supremacy without review. This is extremely dangerous to our democratic republic.
And I tire of your dad's selective citing studies that reinforce his preconceived notions while ignoring any evidence to the contrary. That is not the mark (pardon the pun) of an open mind. It is instead the branding of a zealot. There is no point discussing anything with zealots.

Steve T. said...

Steve-

You're accusing us of being selective... that's not the case.

Courts make laws all the time. The point is that you're only concerned about it when those laws run counter to your world views.

Not to mention that you guys have not brought up a single example of Judge Sotomayer engaging in some kind of judicial activism - meaning a ruling that makes a law and runs entirely counter to precedent - and she's ruled on over 300 cases. Where you at?

Steve said...

The problem is, that if judicial activism is rejected, and strict application of the laws happen, you will not see it. I know that this is difficult, but it's sort of the dog that didn't bark.
Now, as to activism of Sotomayer? I think that there have been several examples from the shareholders' suit, the baseball ruling, the fireman qualification test. I could google them for you, but I am going to my daughter's for a barbecue. Will check back later.