Another War of Jenkins' Ear

Resist The Pointless

Posts Tagged ‘tea party

Stupid Twitter Comment of the Day

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The Constitution is unconstitutional:



Brett M. Wilcox Makes a Funny

Brett M. Wilcox Makes a Funny

When people ask from now on why I occasionally engage the glibertarian and tea bagger trolls on twitter, it’s because it inevitably leads to gold like this.

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Written by John Whitehouse

March 12, 2011 at 2:02 pm

Scalia Takes on John Jay

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Antonin Scalia Disagrees With Founder John Jay!

Justice Scalia has recently accepted an offer by Michele Bachmann to teach some sort of Constitutional seminar to the Tea Party caucus. I’m not asking why Bachmann asked. I am wondering why in the world that Scalia, a noted Constitutional orginalist who prides himself in following the views of the founders, would dare accept.

The Supreme Court has a long and distinguished history of not giving opinions in advisory roles, even in extreme circumstances. The reasoning goes back to John Jay’s letter to George Washington in response to his asking for an advisory opinion. When pressed, Jay and other justices responded, and discussed their reasoning at some length (see bottom of the page here):

    These being in certain respects [470 U.S. 675, 728] checks upon each other, and our being judges of a court of the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the executive departments.
    “We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States.

Now, obvious this was directed at the executive branch, and not the legislative branch. And this was asking for a formal decision, not something informal.

But neither of those distinctions is decisive in terms of the principle here. The Constitution requires that legislators as much as members of the executive branch exert their own “prudence, decision and firmness.” In short, the separation of powers inherent in the Constitution requires that members of the legislative branch act make their own decisions, free from the Constitutional advice of the other branches. (or even shorter: Michele Bachmann does not know the Constitutional well enough to know that her request highlights her ignorance. It’s like irony squared).

As for formality, this is not mere advice or insight. This is a formal group within Congress being taught the Constitution by a sitting member of of the Supreme Court. This is unprecedented. Perhaps the most comparable situation is Chief Justice Fred Vinson advising Truman that it would be legal to seize the steel mills during the Korean War. This has been looked back since as a reckless legal position and questionable ethics at best. And worse, it turned out to be epically wrong, as not only did the Court find the seizure unconstitutional, but Justice Jackson wrote perhaps the most important legal decision of the past century, and certainly the most important concurring opinion of all time. But even if Vinson had been right, the Constitution trusts the President (and in this instance Congress) to make their decisions, and for the Supreme Court to judge these decisions only when it is pressed upon them in a case or controversy.

This is why we don’t have justices answer every single question during appointment hearings: we don’t want their objectivity in future cases to be in question. We do want potential justices to discuss their philosophy, but only to the extent that Congress can vet them… that is their Constitutional role. In the view of the Constitution, it is crucial that Congress itself have Constitutional views in approving justices. Having justices teach the Constitution to Congress only creates a self-reinforcing truism. Scalia teaches Congress -> Congress appoints people with the same views -> those people teach the next Congress, etc. What Scalia is doing is essentially reputing any public role in Constitutional interpretation, particularly one firmly established within the framework of the Constitution. This is extremely dangerous and authoritarian.

Another argument may be that this is no different than a bipartisan group, the Congressional Caucus on the Judicial Branch, occasionally hearing from Supreme Court justices. That argument does not hold up to the smallest scrutiny. The purpose of the group and Sotomayor’s speech were not to educate members on the Constitution in general (or worse, a specific view of the Constitution) but rather to just promote communication between the branches, and if anything, to focus on structural problems of federal courts (such as chronic understaffing). Indeed, the stated purpose, from Republican Judy Biggert, is not to deal with pressing Constitutional issues, but to just have a broad free ranging discussion.

That does not sound at all like the seminar described by Bachmann that Scalia will be doing, as instead Scalia will be teaching the Constitution to members – at least that’s the stated purpose. This is far more dangerous.

First, the Court has a long history of officially staying away from Constitutional discussions that are not necessary for them to decide. See, for instance: the political question doctrine, ripeness, mootness, standing, Pullman abstentions, etc. Not to mention cases where the Court simply declines cert.

Second, the Court can be wrong. This cannot be overstated, and would apply just as much as if it were a liberal justice teaching the seminar as a conservative justice. The comparison

In a recent article, Dahlia Lithwick and Sonja West discuss how often a Justice should speak out on issues, concluding that they should do more off the bench then they do while on it. I’m only concerned with the latter here (if Scalia were retired, I would have no issue here). Lithwick and West describe the basic contours of judicial ethics:

One viewpoint—let’s call it the old school—holds that justices should say nothing that isn’t contained within the four corners of a written opinion. When justices pontificate off the bench, it sows confusion and controversy and undermines the impression that jurists all float above the fray. The other side holds that transparency is always better than mystification and that so long as there is no real threat to the court’s impartiality in a particular case, there is great value in lifting the veil of secrecy around the workings of the court and revealing the men and women hiding out behind the red velvet curtain.

. . .

Even outside the courthouse, however, sitting justices should exercise serious caution before going off-script. The more the commentary involves matters that have been, are, or may be before the court, the more suspect it becomes. Caution lights should flash over any remarks that cast doubt on the validity of a decision, a colleague, or the judicial process. Whether it’s an interview, book, or speech, these nine jurists represent the court, regardless of where they are and to whom they are speaking. They should also consider that they represent that court whether or not the proceedings are recorded, televised, or just tweeted by someone in the audience. We mere mortals might get to blab about what the court should or shouldn’t do, but we have no real power—the justices do. And as Spider-Man continues to remind us, with great power comes great responsibility, and sometimes that responsibility is to hold your Article III tongue, even when you’d rather not. …

What Scalia is doing here throws these principles (and the entire historical divide) out the window. Teaching the Constitution to a political group politicizes the entire judicial process (or rather, continues that process which began in Bush v. Gore, but that’s another issue entirely and this post is already too long). Anyone upset with Bush v. Gore should be just as upset here.

The only other judge to approach this level of partisanship that comes to mind is Samuel Chase – a firebrand who ended up being impeached for severe partisanship (such as campaigning so much that Court sessions had to be delayed. But his impeachment (though he was not convicted) was surely an ethical sanction of his conduct.

Lastly and importantly, there’s only one defense to these charges: that the classes are so basic and banal as to be harmless regarding any ethical or separation of powers issues. But if that’s the case, isn’t Bachmann just saying that the Tea Party Caucus is a bunch of idiots?

Scalia Should Be Worried

Written by John Whitehouse

December 17, 2010 at 2:05 pm

Facts About the Tea Party Movement

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It seems that there is lack of clarity – even in the Tea Party itself! – about what it is the Tea Party is and what it stands for. I’m here to clean that up ass much as possible. Here’s some facts about Tea Parties and tea party speakers:

We have tea party demographics: To quote Matt Yglesias, the Tea Party movement is “disproportionately composed of individuals who have higher-than-average incomes. It’s also disproportionately composed of men. And disproportionately composed of white people. And disproportionately composed of self-identified conservatives.”

A speaker at a Washington State tea party called for Sen. Patty Murray to be lynched.

Roy Moore, a speaker at the Tea Party Convention had previously called for homosexuals to be executed. Another speaker at the convention got rousing applause for speaking against gays and lesbians.

There is a large number of birthers in the Tea Party movement, including the birther-in-chief as well as the birther general; Redstate.com has enough integrity to ban them. Popular Politicians who align themselves with the Tea Party movement? Not so much. That dirty work is left for the likes of Andrew Breitbart.

The Tea Party movement is roughly as popular as the movement to legalize marijuana, and at least 20-25% less popular than the movement to let gays serve in the military (or 40%, if you look at other polls).

Most are not aware that the stimulus plan included a tax cut.

There’s a predilection towards the stars and bars at some Tea Party rallies.

Prominent conservative pundits realize that the solutions proposed by the Tea Party are, at best, incoherent.

A Republican House candidate in Indiana is running as a Tea Party conservative, but does not mention that he was the choice of the establishment in the 1992 primary that he lost … to an upstart. And then blamed the party boss for. “Beers thought he had found another young talent in 1992 in law student Phil Troyer. While Troyer went to school downstate, a renegade named Chuck Pierson campaigned at gun and knife shows and won a shocking upset. In a burst of election night angst, the schoolboy candidate blasted Beers for the defeat. When I told the old chairman what the upstart Troyer had said, Beers was incredulous. “He really said that?”” (Indianapolis Star, 11/2/01, Lexis)

A tea party candidate in South Carolina (see also Herald-Journal of Spartanburg who is a college professor was fired as House historian by Newt Gingrich after only two weeks for arguing that Nazi views were not fairly represented in a class for 8th and 9th graders; she still says her remarks were taken out of context.

A tea party candidate had the former job of “government and industry relations communications consultant” for Wells Fargo. Reminder: these Tea Parties first spring up in response to TARP, which was money to the banks to preserve the financial system. She was also a former staffer for Christopher Cox, best known as the the SEC Chairman that nobody liked during the crisis.

A Tea Party activist was arrested for stockpiling weapons in preparation for martial law.

A Tea Party candidate running to be Texas Governor was exposed as being open to the fact that the US government had a role in 9/11 – or in common parlance, is a truther. SHe was not fringe either; just before saying that, she was actually leading in the polls.

Alex Jones, a speaker at the national Tea Party Convention, has a documentary arguing that the Obama Administration is a plot by the “New World Order” to “con the American people into accepting global slavery.”  The endgame is a worldwide dictatorship run out of the UN headquarters.

The tea party movement is grounded in paranoia and unrealistic fears.

Another speaker at the Convention argued that liberals intentionally caused the crash to destroy the dollar and to create an alternative currency called the Amero, that also includes worrying about the North American Union.

The Tea Party in South Carolina flat out merged with the Republican Party in the state.

Tea Party candidates are opposing Ron Paul because he doesn’t take enough federal aid and doesn’t support wars overseas. There is substantial evidence that social conservatism is the  driving force of the movement. Included in that evidence is that “divine intervention” is a serious plank in the pplan of the Tea Party’s preferred candidate.

Former Congressman Tom Tancredo, in addressing the tea party convention, called for some sort of literacy or citizenship test for people to be able to vote. That did not go over well with people familiar with the history of the racist usage of such tests.

There is official Tea Party jewelry.

The Tea party Convention was too sketchy for Michelle Bachmann. Yes, Michelle Bechmann.

Ana Puig thinks that Obama is turning America into a Banana Republic and that Obama is also a Marxist dictator.

Randy Hultgren, a tea party candidate in Illinois won the Republican primary. He has previously argued against hospitals providing information about contraceptives to rape victims (Chicago Daily Herald, 10/23/04, Lexis), On th other hand, Hultgren has stated in the past that he voted against state buget proposals because not enough money was provided for children. “Hultgren said another reason he voted against the budget was because it didn’t have enough money for children and families.  ‘If we can’t find money out of a $50 billion budget for our children, we should all be fired,’ he said.” (Chicago Daily Herald, 10/1/02, Lexis). Regarding the health care proposal, Hultgren was even more blunt, saying “Literally, I promise you, it will kill people. … It will cost lives. That is not the America that I want to live in.” (Chicago Daily Herald, 11/16/09, Lexis).

A tea party candidate in Indiana threatened that “if we don’t see new faces [in Congress after the 2010 elections], I’m cleaning my guns and getting ready for the big show.”

Secessionists and extreme states rights advocates are regulars.

A tea party candidate in Nevada is unknown even among other members of the tea party, to the point of worrying that the entire thing is a scheme by Harry Reid.

A tea party wanted to burn a Representative in effigy (don’t worry, they cancelled it).

Someone renown for holding up a sign with the N-word on it is treated as a serious Tea Party leader by the Wasshington Times, while being slammed by a tea party group in Houston.

A tea party strategy memo indicated disruption of town hall meetings was the goal.

Alan Keyes is involved.

Angela McGlowan spoke at the National Tea Party Conference and elsewhere in the Tea Party movement. She’s a regulator contributor to Fox, but the low point of her tenure there was endorsing the push polling that Bush did against McCain in South Carolina in 2000 in real time. Following the Republican debate, Mcglowan stated on The Edge with Paula Zahn:

“Well, I think to answer about the debate, the winner was clearly Alan Keyes. When he made the comment that each candidate should stay on message, both Bush and McCain broke Ronald Reagan’s 11th commandment, and that was dealing with negative campaigning. But at the end of the day, there are four dynamics in politics. That’s money, message, momentum and messenger. Bush clearly has the money, which will help him with push polling, which will help him create the message. Then he can do more campaign ads. But John McCain has momentum. And he’s the greatest messenger. People like him because he comes across as a straight shooter. He has not won the Miss Congeniality contest in Washington, DC. But that make him more authentic and more against the status quo. Dick Morris put it best. And I think it was in the “New York Post” today that historically the front-runner will be the nominee. And Bush is clearly the front-runner. So at the end of the day, Bush is going to win South Carolina.” (The Edge with Paula Zahn, 2/15/00, Lexis).

My point is not to impugn anyone associated with the Tea Party movement. (Indeed, I know some good people involved, and in doing research came across a number of others whose intentions seemed well enough.)

I have two separate points. First, the Tea Party movement is a magnet for extreme views; some libertarian, some social conservative, some complete crackpot (truthers, North American Union people, people firing a dictatorship or martial law, etc.). Second, that no other movement of comparable size or popularity would be able to maintain basic public credibility despite the above incidents. Barack Obama attended one meeting in the house of Bill Ayers and was smeared for an entire campaign; all of these incidents have surfaced mostly in the past month with almost no repercussions nationally. In fact, at some point, something similar to all of these has become a major political issue over the past 15-20 years. Yet one movement contains all of this and is still portrayed largely as “regular America”. It’s absurd and wrong. (Of course, if David Gregory takes the legalize pot movement as serious as the Tea Party movement, that would undermine my entire point. Please send me proof of that if it exists. I’m not expecting imminent email on it.)

Where should we go from here? Just stop giving people credit for a label they attach to a group – that only legitimizes everyone under that. Instead, let’s judge ideas and issue groups for what they are. Say what you will about Grover Norquist, for instance, at least you know exactly what he stands for. I didn’t like liberals just shouting at Bush in the last decade either; what was useful were constructive ideas, or at least focused rage (I don’t know what the answer is to X problem, but I’m damn sure upset about it!) Instead, the movement has degenerated into a means for bad ideas to become legitimized. It’s time for that to end. Forward this list; I’m sure I left things out – leave notes in the comments and I’ll add them.

Written by John Whitehouse

February 18, 2010 at 4:22 am

Posted in Economics, Politics

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