Senate Rejects A Loon, er, A Liu

In an historic vote, the Senate has rejected Barack Obama’s nominee for the Ninth Circuit Court of Appeals bench. Goodwin Liu, leftist law professor at UC Berkeley’s Boalt Hall was denied the seat based on his lack of genuine judicial qualifications and extremist views on the Constitution. Senate majority leader, Harry Reid (D-NV) had pushed for cloture so that the Senate could give Liu “the vote he deserves.” Well—he got it.

The vote was 52-43 against cloture. Goodwin Liu is the most doctrinaire, social-engineering, “living constitution” advocate yet put forward by this or any other administration. I have discussed the nomination twice before on this blog, and for a full background on him, go to: A Perfect Nominee and Nomination Drones On. Today I just want to add to and amplify my prior remarks to demonstrate just how far Barack Obama is willing to go to “fundamentally transform America” and its most vital document, the Constitution.

Liu received a rating of “well qualified” from the left-leaning American Bar Association. In doing so, it ignored its own rules. Under the current ABA standards, Liu should have earned a simple “qualified” at best. In order to get a “well qualified" rating, the nominee must have at least twelve years experience in the practice of law and substantial courtroom experience. Though experience as a judge is not required, the highest rating has rarely been given to any nominee who did not have at least some judicial experience. Liu has only been out of law school for twelve years and a member of the State Bar for less than eleven. He practiced law for less than two years and has almost no courtroom experience. He has zero experience as a judge.

Liu has participated in exactly one trial, and his legal practice was otherwise comprised entirely of writing appellate briefs. Since Liu does have some experience in the area of appeals, and the Ninth Circuit Court of Appeals deals with appellate law rather than trial law, that should have gained him a maximum rating of “qualified.” More subtle than that, however, is the fact that trial experience gives a future judge a much better idea of where trial facts separate from legal analysis. Lower courts and juries are the triers of fact, but there are times when facts and law are inextricably intertwined, and sorting them out becomes the role of the appellate court judge. Liu has no discernible record that would indicate that he can make those distinctions.

Another subtle but extremely important part of rating judicial nominees is the vital “judicial temperament” criterion. Liu has demonstrated a complete lack of such temperament. Rather than disagree in a lawyerlike manner with conservative justices Roberts and Alito, he launched personal attacks from a left wing political point of view. He was particularly rabid when he testified against the nomination of Justice Alito saying on the record: “Alito’s vision of America is one where police may shoot and kill an unarmed boy, where federal agents may point guns at ordinary citizens during a raid, where the FBI may install a camera where you sleep, where a black man may be sentenced to death by an all-white jury for killing a white man absent analysis showing discrimination.”

The vast majority of Liu’s positives are purely academic. He is a brilliant if wrong-headed debater on the Constitution. He’s a Rhodes Scholar graduate of Stanford, with an MA from Oxford University and his JD from Yale. It’s hard to argue with those academic credentials. He’s a good politician as evidenced by his position as associate dean of a top-tier law school at a very young age. But just like reading Mechanics Illustrated doesn’t make you a good mechanic, reading law books doesn’t make you a good lawyer, let alone a good judge. Experience in the real world of law is simply an essential ingredient.

But there is also the simple fact that Liu is so far off the mainstream chart of legal views that he needed to be treated as that “extraordinary circumstance” in which a sitting President is denied his choice for a position on the federal bench. Here’s a short and non-exhaustive laundry list of Liu’s radical views:

He is unalterably opposed to the death penalty (for minorities, at least).

He supports the creation of constitutional fundamental rights to gay marriage, welfare, goods, education, shelter, subsistence and (surprise) health care.

He advocates the active use of foreign law in constitutional decisions and has called Americans "parochial" for believing that our Constitution is superior to the laws of other nations.

He believes in perpetual imposition of racial quotas to obtain “just” results.

He believes that all criminal convictions should be subject to appellate review if the defendant was black and the jury was other than black, even if there is no evidence whatsoever of racial bias.

And then there’s an even more practical reason for rejecting Liu. He is very young. That in itself is not the issue. But seats on appellate federal benches are frequent stepping-stones to the Supreme Court. A judge with his radical views could be influencing decisions for thirty or forty years (he’s only thirty-nine). As a Ninth Circuit Appellate Justice he would bring both his personal leftist judicial views and those of the much-reversed Ninth Circuit to the highest (and final) court in the land.

Even if Barack Obama is rejected by the voters in 2012, a Goodwin Liu on the Supreme Court would have carried the Obama flag into the constitutional arena long after many of us have gone on to our eternal reward. After allowing Obama a number of “iffy” judicial nominees, the Senate has at last said “this far, and no farther.” Democrats, including both Senators from California, are threatening that this vote will come back to haunt those who voted against cloture. After the murderous treatment Bush nominees had to put up with, I would call this chickens coming home to roost. How much worse could Democrats treat future Republican nominees than they already have?

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Judiciary Committee Does It Again

Barack Obama, the great constitutional scholar, seems to think the law and the Constitution should be matters of emotion rather than intelligent thought. So rather than use an illustration of what kind of judges he should be presenting to the Senate, I thought I'd use an illustration of the way he thinks the judiciary should operate.

Yesterday, Obama was given his wish by the Senate Judiciary Committee. Of the eleven judges voted on in committee, five were controversial re-appointments who had been previously rejected or stalled by the committee. Four of the five were voted out favorably, and the fifth was postponed. That's the bad news. I'll discuss the five briefly, including the nominee I love to hate (whom I hope you'll recognize from my previous posts).

First--the postponement. Robert Chatigny is Obama's nominee for a seat on the Second District Court of Appeals. He'll have to wait awhile. There was simply too much dissension on the committee, including some Democrats to move his nomination forward to the full Senate. Chatigny loves death-row inmates, and the more perverse the crime, the better Chatigny likes the criminal. His most famous ruling in favor of a subhuman murderer was the case of the "Roadside Strangler," Michael Ross. Instead of finding Ross's sexual sadism as a factor in aggravation (in other words, a higher end of the punishment ladder) as the jury and judge below did, Chatigny found Ross's perversity to be a mitigating factor requiring a reduced sentence.

Ross tortured, raped and murdered six women in Connecticut with ages ranging from fifteen to twenty-five. Chatigny ordered two stays of execution of the Ross death penalty as a district court judge, and both stays were reversed by the appellate court. So Chatigny tried a different course of action. When the case came back to him, he browbeat the defense attorney into filing another death penalty appeal, even though Ross had decided that after twenty years of appeals, he just wanted to get it over with. Chatigny had decided that Ross suffered from "death row syndrome," and thus was no longer competent to make his own decisions. No--I didn't make that up.

And it gets better. In reviewing the case again on appeal from Chatigny's order once again staying the execution, it turned out that the appellate court investigators found out that Chatigny had been a member of Ross's defense team when he was in private practice before being appointed to the bench. He had called his client "the least culpable person on death row." That resulted in successful ethics complaints and one Connecticut Representative calling for Chatigny's impeachment.

His track record on appeal is worthy of the regularly-reversed Ninth Circuit, but that seat already had a nominee. Chatigny did sentencing downward departures in eight out of twelve child pornography cases, and in the remaining four, issued the federal standard sentence. He never issued an upward departure from the basic guidelines in a child pornography case. Maybe Obama felt he needed a friendly judge to protect the Safe Schools Czar from prosecution for his inordinate advocacy of sexual activity for kindergartners and his fondness for child pornography.

Second: The approval of Edward Chen to the federal bench for the Northern District of California (yes, ladies and gentlemen, that's the one located in San Francisco). The vote was 12 to 7 along straight party lines. Chen began his legal distortion career as an ACLU lawyer. While sitting as a federal magistrate (think "judge with limited powers'), Chen said he felt no patriotic pride when hearing America the Beautiful. but rather he felt "ambivalence and cynicism." Well, that was probably the clincher for Michelle Obama, the president's most important adviser.

He has made numerous public and recorded statements which clearly indicate that he would not be a neutral judge. Consider, for instance, that he has stated that he will always rule in favor of affirmative action and against English-only statutes regardless of the law, precedent and points and authorities. In other words, his mind is made up in advance, and nothing as petty as the law is going to get in his way. His position on judicial temperament is "judges have to make determinations that draw not so much upon legal acumen, but on an understanding of people and of human experience." That echoes legal scholar Barack Obama's view of the judiciary, despite it sounding much more like the words of a sociology lecture than a legal one.

He was very emotional about the 9/11 attacks. But not in the way you might think. "One has to wonder whether the seemingly irresistible forces of racism, nativism and scapegoating which has occurred so often in our history can be effectively restrained." Look out, Hussein, they're comin' to getcha. It's a good thing the Ground Zero mosque isn't located in his jurisdiction. He topped the 9/11 statement with his view that "criminalization of illegal immigration is institutionalized racism," and also stated that "the slow response to Hurricane Katrina was due to racism." Well, I guess we know where this civil rights lawyer is headed, don't we?

Third: Sleazebag former ambulance-chasing personal injury attorney Jack McConnell was passed to the full Senate on a 13 to 6 vote. Good ole Jack hates business and espouses the discredited labor theory of value. McConnell was a pioneer in the disreputable practice of private attorneys acting in place of the official advocacy of attorneys general. You see, an attorney general cannot benefit from his position as a public advocate by receiving a contingency fee--but a private attorney can. And what did McConnell do with his ill-gotten gains? You guessed it, he gave large amounts of political cash to the political campaigns of the attorneys general whom he stood in for. Pure coincidence, I'm sure.

If McConnell didn't like the decisions of the courts, he ignored the canons of ethics and publicly attacked the intelligence and integrity of the judges who disagreed with him. In his advocacy of the shaky theory of damages in lead paint cases (well, at least he wasn't channeling dead babies), he was soundly rejected by the Rhode Island Supreme Court. His reasoned judicial approach to the rejection of his outcome-based legal philosophy was to state that the R.I. court was letting "wrongdoers off the hook."

Fourth, we have Obama darling Louis Butler, nominee to the federal bench for the Western District of Wisconsin. It was another party line split of 12 to 7. The Supreme Court in Wisconsin is an elective office, and the Wisconsin voters twice rejected Butler for a seat at that bench. Third time's the charm, and he finally pulled the wool over the eyes of enough voters to get the seat. Well, piffle. Obama wishes to educate the people of Wisconsin by going over their heads and appointing him to the federal bench.

During his stint on the Wisconsin Supreme Court, Butler frequently overrode the legislature and formerly binding precedent to obtain the result he wanted. He arrogantly wrote opinions which said, in essence, that if the legislature couldn't get it right, he would simply use the court to impose his own policies.

Here's a Butler opinion that is absolutely breathtaking in its arrogance and stupidity. Butler stated in a manufacturing liability case that "the manufacturer may or may not have produced [a product] which may or may not have caused the plaintiff's injuries," based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market. Huh?

In another Alice-in-Wonderland decision he wrote that a voter-approved state constitutional amendment clearly written to expand gun-carrying rights instead limited gun-carrying rights. And you'll love this one. Because of his ability to win reversals of criminal convictions on arcane procedural grounds having nothing to do with guilt or innocence, he earned the nickname Loophole Louie.

Fifth and last, but not least, is my previously announced bete noire, Ninth Circuit Court of Appeals nominee Goodwin Liu. This clown is so bad that I did not one, but two posts on him in the past: A Perfect Nominee, and Nomination Drones On. Liu also was passed on to the full Senate by a 12 to 7 party line vote. The short version is that Liu has neither practiced law nor sat on the bench. He has spent his entire career as a law professor, most recently at the University of California Boalt Hall School of Law at Berkeley.

His legal philosophy (which would be no different from his judicial philosophy) is that health care and welfare are constitutional rights. He is an economic ignoramus and a social engineer, opining that "expanded health insurance, child care, transportation subsidies, job training and a robust earned income tax credit are affirmative Constitutional rights." Not that they are a good idea, or might be legal, but that they are constitutional rights.

Liu is enthusiastic about ignoring the Constitution and precedent when foreign law is so much better. He has written articles which either mimic or instruct the Obama legal philosophy: "Judges are not bound to apply the Constitution according to its written meaning, but rather are free to adapt the Constitution in light of changing needs, conditions and understandings of our society." Then why the hell do we need a Constitution in the first place, Mr. Liu?

Instead of being nominated to a federal appellate seat, Liu should be taken out behind the woodshed and beaten into consciousness with a copy of the Constitution and the Federalist Papers. He should then be required to spend at least two hours a day asking himself: "What would James Madison do?"

OK, that was all the bad news. The good news is that there are more Republicans in the Senate than there were when Liu and the others were rejected the first time, Democrats outside the Judiciary Committee are running scared, and it would be nearly impossible to get these law school truants to a vote in the full Senate before the November elections. Only McConnell received a single Republican vote (I don't know which Republican and I hope someone can enlighten me on that). The makeup of the Judiciary Committee probably won't change substantially if the Republicans fail to take control of the Senate, but the greater number of Republicans in the Senate make the confirmation of the radical nominees less likely by the day. Promises of a filibuster of Liu and Chatigny are already in the works.
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Yoo and Liu--A Tale Of Two Lawyers

The University of California at Berkeley, Boalt Hall School of Law currently has two professors who are on the minds of those who are not even lawyers. One is a nominee for a position on the US Ninth Circuit Court of Appeals bench. The other is not. The president announced that he wants an Asian-American on the court. The president has chosen the wrong one.

Barack Obama has nominated Goodwin Liu, a radical, outspoken and very public opponent of constitutional restraint for the spot on the appeals court. He should have appointed John Yoo. But Obama being Obama, he nominated the radical Liu while sicking his attorney general on constitutional scholar and former Bush administration adviser Yoo. I did a post on John Yoo back in July. Although some of the information is now dated (much has happened in the Obama version of law, including Eric Holder's retreat from his attacks on Yoo), you can still familiarize yourself with him here: Yoo Who?.

The more recent post I did on Liu expressed my view of the nominee (A Perfect Nominee). I also discussed the possible future of the Supreme Court in light of the retirement of Justice John Paul Stevens (What's In Store). In an edition of The Wall Street Journal this week, Yoo discussed national security after Stevens leaves, and why the appointment of someone to the Supreme Court with views similar to those of Stevens are a threat. I'm sure that Yoo would agree that someone like Liu would be a danger, but even someone as "moderate" as Stevens would continue the current confused and over-analytical court decisions that leave American soldiers and security operatives exposed overseas.

Professor Yoo points out as a young naval intelligence officer, Justice Stevens was part of a team that heard the Japanese radio transmission which led our pilots to shoot down the plane carrying the mastermind of Pearl Harbor, Admiral Isoroku Yamamoto. In 2006, Stevens told the Fordham Law Review that he regretted that "there wasn't a lot of deliberation before before deciding to go along with the plan--they had no humanitarian concerns at all of the kind that troubled me." Shooting down the plane carrying a high enemy military officer during a time of war without due deliberation bothered Stevens. Nearly 3,000 Americans were killed at Pearl Harbor, and nearly 3,000 were killed in New York City on September 11, 2001. Are you beginning to see the parallel? And the danger of jurists such as Stevens? If they can't see the clear need to kill enemy combatants, what are they going to do with terrorists nine or ten years after the fact if and when they come to trial?

Stevens expanded on his idea of killing Yamamoto. "The targeting of a particular individual with the intent to kill him was a lot different than killing a soldier in battle and dealing with a statistic." Does Stevens think that a soldier in the field, taking aim at an enemy combatant, is planning on killing some abstract "statistic," or that the soldier doesn't have the killing of an individual in mind? Is an enemy combatant on his belly preparing to kill an American soldier any different from a command officer flying to the scene of the next battle he will command? Or for that matter, from the high command officer flying back to his headquarters to plan the next massacre of Americans?

That kind of illogical, unclear, morally-confused and dangerous thinking clouded all of Stevens's decisions about the death penalty, but at least there is a clear delineation between an execution after trial and conviction and the killing of enemy leaders during wartime. But Stevens and his ilk can't even see that clear distinction. Yoo asks: "If Stevens thinks killing Yamamoto raised 'humanitarian concerns [that should have required lengthy deliberations],' can you imagine his view of US Predator drones raining missiles down on the heads of al Qaeda leaders in Afghanistan, Pakistan and Yemen?"

That kind of agonizing deliberation is what costs American lives and loses wars. If our current military can put three Navy SEALs on trial for not treating a terrorist murderer with the proper white gloves, imagine what a Stevens-type Supreme Court could do to soldiers who figured out where bin Laden was hiding, broke in on his planning party, and killed him. Or what that court might consider doing to a president who ordered a drone in to take bin Laden out, particularly if bin Laden were located in an area not deeply within the war zone.

Any nominee of Obama's to replace Stevens is likely to share Stevens's views, or worse. As it is, "Stevens waged a five-year campaign to upend long-held understandings of the Constitution in wartime--as part of a slim 5-4 majority of the Supreme Court" Professor Yoo points out. In 2004, Stevens wanted to free Yaser Hamdi, a Saudi Arabian born in Louisiana who had been captured with an AK-47 fighting with the Taliban in Afghanistan. Stevens failed to get his majority in that case, but later that year put together a 5-4 majority in Rasul v Bush to allow al Qaeda detainees at Guantanamo Bay to seek release in American civil courts.

That latter decision led to the 2006 decision in Hamdan v Rumsfeld which blocked military tribunals from trying al Qaeda terrorists for war crimes. The technicality that the decision rested on was that Congress hadn't specifically authorized such military tribunals, which was corrected by Congress enacting the Military Commissions Act. But even though the military tribunals were blocked in that case only, the decision established the far broader, and never before granted, right to seek habeas corpus by foreign combatants, captured on a battlefield.

In other words, terrorists caught in war zones and detained at Guantanamo now have the right to challenge the legal basis for their detention as any American common criminal in jail has the right to challenge the basis of his arrest and subsequent detention. This is part of the Obama/Stevens thinking that war should be conducted in the same manner as civilian law enforcement, with the same rules and constitutional restraints. Given all the actions of the Obama-Holder Justice Department, there is little reason to believe that Obama will nominate a candidate to the Supreme Court vacancy who is any less "concerned" about terrorist civil liberties.

Professor Yoo points out that prior to the Stevens majorities, "The court deferred to the president and Congress on detention because 'trials would hamper the war effort and bring aid and comfort to the enemy.' Civilian judicial proceedings would create a 'conflict between judicial and military opinion.' Interfere with military operations by recalling personnel to testify, and 'diminish the prestige of a field commander' called to account in his own civil courts, and 'divert his efforts and attention from the military offensive abroad to the legal defensive at home.'"

Those predictions in earlier Supreme Court decisions over a period of nearly two hundred years have proven to be prophetic. The Christmas panty-bomber, Umar Farouk Abdulmutallab, was read his civilian Miranda rights almost immediately after being taken into custody. Attorney General Holder claims that his office did not order that, but it's really not relevant, since the detaining authorities have been so constrained that they believed granting those civilian constitutional rights was required of them, rightly or wrongly. Holder also made the decision that the very architect of the 9-11 mass murder should be tried in a civilian court located within walking distance of the ruins of the World Trade Center. Though massive protests from common citizens and public officials caused Holder to back off on the New York trial of Khalid Sheikh Mohammed, as recently as last week's Senate hearings, Holder has still refused to commit to taking the case out of the hands of civilians and putting it back in the hands of the military where it belongs.

Professor Yoo sums up the danger: "For his presidency to succeed, Mr. Obama must prevail in no less than three wars. He must withdraw American forces from a stable Iraq, defeat a resurgent Taliban in Afghanistan, and crush al Qaeda's remaining elements. Realizing this, the Obama administration has hewed to many of the same legal positions held by the Bush administration. Specifically, it continues to defend the president's constitutional right to detain terrorists without trial, to use military commissions to try them, and to use Predators to target them abroad."

"But if President Obama appoints someone to the Supreme Court who thinks like Justice Stevens, he will be fooling no one. He cannot keep his promise to the American people to fight al Qaeda with all of the tools at the presidency's disposal if he appoints a justice who will continue to obstruct and second-guess the decisions of our military and intelligence officials."

I would point out that by hamstringing our interrogators with narrow rules and "humanitarian concerns," the Obama administration has already taken a major step in hampering our war efforts. But as far as Professor Yoo's overall conclusions go, that's a mere quibble. It only means there is probably one less issue for the Supreme Court to mess with in the event that a Stevens clone, or worse, is appointed to the high court.

Yoo also says: "To satisfy his base, President Obama will have to nominate a justice who is pro-choice, favors racial preferences and likes broad government regulation of the economy. But he also has the flexibility to choose a justice who believes in a return to a restrained judicial role in war and national security. Senate Republicans should support the president's nominee if he does." As much as I admire the good professor, I find that to be rather naive.

The chances of finding a pro-abortion, race-skewing, socialist-statist nominee who also supports the traditional presidential war powers are about as good as locating the leader of Communists for Capitalism. At best, we can hope for a moderate-liberal appointee who will not have the credentials or the smarts to convince four other justices to go along with the judicial usurpation of the powers of the Congress, the president, and the people. As for the loathsome Goodwin Liu, this is a simple reminder that an appointment to the Court of Appeals is one of the best paths to future appointment to the Supreme Court.
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Rebuilding the Republican Party: Judicial Activism

Today we skip ahead a bit in our series on Rebuilding the Republican Party and talk about judicial activism. You’ll be hearing that phrase and its associated concepts (i.e. “compassion”) a lot over the next month, so this is a good time to make sure that our leaders understand what they’re talking about.

As you saw in the re-worked pledge that started this series, Republicans fundamentally oppose judicial activism. But what is judicial activism, why is it intellectually and morally wrong, and how is it dangerous to you?

Judicial Activism Defined

Judicial activism, simply put, occurs when a judge steps beyond the powers given to them by the Constitution, and substitutes their own opinion in place of the law. This can take two forms, and the left loves them both.

In the first form, the judge creates new law by either finding new rights under existing law or by striking down valid laws of which the judge disapproves, so called “legislating from the bench.” The left loves this because they know that the public will never accept their political views, thus they appoint judges who will impose that worldview on the public.

The second form arises when a judge chooses to misapply or ignore a law so as to favor one litigant. This discrimination is usually disguised as appeals to “exercise compassion” or as calls for “fairness” or “justice.” Leftists love the sense of moral superiority they get from discriminating in favor of the “good guy.”

Why Judicial Activism Is Wrong

Both of these forms are morally and intellectually bankrupt. Our government derives its power (and its very existence) from the consent of the people. We the people created that government through the Constitution, in which we ceded certain rights to the government so that it could work toward the public good, but, in so doing, we put clear limitations on those rights. (We will discuss Constitutional interpretation another day.)

One of those limitations is that we clearly defined the roles each branch of government would play in administering the government. The role of the courts under the Constitution is to apply the law in a fair and unbiased manner. The courts are not empowered to create law. That power rests solely within the legislature. If a law must change, it is up the people to demand that change from the legislature, not for a judge to impose it upon the rest of us.

When a judge legislates from the bench, they are tossing aside the limits placed upon them by the Constitution, so that they can substitute their own personal view of what the law should be. They are stealing powers that belong to the legislature, they are frustrating the will of the people, and they are breaking the very agreement under which we gave them a right to exist. That’s arrogant, that’s illegal, that’s tyranny.

The left likes to counter that this is all for the good. But that’s garbage. If this change is so “good” then convince the voters and have the law changed by the legislatures. Even the Constitution itself can be changed if needed, as it has been twenty-seven times.

Moreover, if it is acceptable for judges to exceed their powers “to do the right thing,” then why not let others in on the act? Why not let the Post Master General withhold mail service from businesses that he or she thinks should be banned (e.g. strip clubs, gun shops, abortion clinics)? How about letting the FBI Director decide what constitutes illegal surveillance? The public might not approve, but who cares, right? It’s all for the public good. . .

How Judicial Activism Hurts You

Judicial activism is dangerous and destructive on a personal level as well. As noted above, the left loves to demand fairness and justice and compassion. And that sounds great. Except that these concepts are in the eye of the beholder. When you set judges free to impose their own prejudices rather than following the law, you open a can of worms that will destroy the judicial system.

Leftists like to think that allowing judges to act compassionately will mean that the good guys always benefit. But I’ve actually practiced. I know the reality. I’ve seen the judges who used to work for insurance companies and who see all plaintiffs as malingerers. I’ve see the judges who always favor the husband, or always favor the wife. I’ve seen the judges who always favor the poor criminal suspect, or the judges who always favor their friends the prosecutors.

If you open this flood gate, law will vanish and it will be replaced by personal prejudice. The winner will be the person who hires the attorney with the best relationship with the judge -- and that ain’t you, that’s the guy with the money. Welcome to the banana republic.

Moreover, even if you could take the bias out of it, the problem with basing rulings on compassion rather than law, is that it’s erratic. Whereas the law looks at the facts as they occurred and applies a ruling that all can anticipate (so you can arrange your affairs accordingly), rulings based on compassion become manipulator’s court. Sure, your ex-husband was the world’s biggest ass, and you did everything right under the law, but he’s one heck of a great actor in court. You lose.

You didn’t commit that crime? But the victim’s cries for justice strike our compassionate cords. Hope you like orange jumpsuits. Or maybe you’re the victim, but the judge feels such compassion for the poor criminal, who had such a rough life, and, after all, he killed your mother so long ago. . .

Compassion works fine if every single judge shares your views. But they don’t. If the law lacks compassion, then change the law. Don’t make a mockery of the legal process.

Think Strategically My Republican Friends

So what does the party do? For the reasons outlined herein, Republicans should oppose judicial activism. That’s a no brainer. But, that being said, there is a problem with simply opposing judicial activism.

If the democrats keep moving the ball ten feet left every time they are in power, and the Republicans respond by simply stopping the ball from moving, the democrats will slowly, but surely, get everything they want.

The only way to stop this inevitable march is to get the democrats to abandon the weapon of judicial activism. It’s time to fight fire with fire: appoint reactionary Republican judges. Don’t be obvious about it, but do it. History has shown that when the Republicans adopt a democratic tactic, the democrats scream bloody murder and quickly try to stuff that genie back into the bottle. That will be a victory for us all.
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Turning The Judge Sotomayor Trap

As Obama introduces Judge Sonia Sotomayor today (Red Sonia to her friends), the Republicans are faced with an interesting dilemma. Obama has set a trap for the Republicans, and their natural instincts will be to jump right into that trap. Please don’t. Instead, follow my plan below and you can actually turn his trap against him.

In choosing a nominee who is both female and Hispanic, Obama seemly is attempting to endear himself with both groups. Even the media sees this, though they call it brilliant rather than racist/sexist pandering. But in any event, they miss the real Machiavellian aspect of this selection. Obama is less concerned with pandering than he is with baiting the Republicans.

Obama clearly is hoping that the Republicans will attempt to make race or gender an issue, or that they will make statements that can be characterized as making race or gender an issue. Indeed, the media is giddy with anticipation of such a response. And, as if on cue, John Kyl this weekend stated that the Republicans would oppose any nominee who based their decision on emotions. Nice work Senator, the chicks will dig that.

More interestingly, it is unlikely that Obama would shed too many tears if a handful of conservative democrats joined with the Republicans to blocked Sotomayor. Consider that Obama has now satisfied female and Hispanic pressure groups by making the pick. If she is blocked, he can pick any replacement nominee he wants without offending either group. Moreover, he can accuse the Republicans of being obstructionist, racist and sexist. AND if conservative democrats do join the Republicans, he will have given his left flank ammunition (if you’ll pardon the pun) to use in upcoming primaries against these same conservative democrats who are blocking him on guns and taxes and cap/trade.

So how do the Republicans avoid this trap? Two steps:

First, forget the idea of threatening a filibuster. Republicans will never get the necessary votes, so threatening a filibuster only makes the party look impotent. It will also antagonize the RINOs who like nothing more than standing up to their party. Let them sleep.

Instead, Republicans need to go directly to the people. Highlight the tyrannical nature of her judicial philosophy. Judicial activism is all about a judge willfully ignoring the limits placed on their powers by the Constitution so that they can impose their own will upon the people (more tomorrow). That’s tyranny. Point out her ideas about legislating from the bench. Explain why that is so wrong , and ask what other laws she would be willing to impose upon us in her infinite wisdom? Let the American people hear what this nominee believes?

If this is done right, the public should begin to flood the Senate with angry phone calls and letters. Soon enough, the democrats themselves will (embarrassingly) call for her withdrawal.

Secondly, turn Obama’s trap against him. Go into the Hispanic and female “communities” and let them know how cynical Obama’s pick was:

“Obama didn’t pick her because he wanted an Hispanic female. No, there are many more fine Hispanic/female candidates he could have chosen. He picked Judge Sotomayor because he knew she was unacceptable, because he wanted us to shoot her down. He is using her as bait to gin up anger in your community. That’s what he thinks of you. He is the great manipulator.”

Now go forth and do this thing right.
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