The Not-So-Smart-Guy
Every week, Hugh Hewitt—one of our favorite talk show hosts, and a blogger we frequent several times a day—has "The Smart Guys" on. That would be John Eastman, from Chapman University School of Law, and Erwin Chemerinsky, of Duke University Law School, on his show. Now, I like John. He is a good man, and an excellent legal mind. And whereas Erwin is far more educated than myself, I still have to question his Lefty logic. (Yes, I am aware that the concept of "Lefty logic" is an oxymoron, but just bear with me.)
Yesterday drove me up the wall. I was wanting to reach through the radio and just slap Erwin yesterday. This was among the exchange that occurred, as Hugh started his piece with them by playing Ralph Neas insane rant, which is available below.
http://www.radioblogger.com/images/08-24neas.mp3
(If this does not load or play properly, simply click the link at the end to the Radio Blogger site, and Duane has it up.)
HH: John Eastman, I guess we're part of the radical movement conservatives.
JE: Well yeah. You know, I think Mr. Neas needs to go back and revisit his Constitutional Law class. Look, the radicals here are those that actually want to faithfully apply the Constitution. And you know, I remain pretty convinced that when the American people look at the policies Mr. Neas wants to support, and look at what the Constitution actually says, that those that adhere to the Constitution are going to get the overwhelming support of the majority of the population.
HH: Erwin Chemerinsky, we played a lot of the Ralph comments today, because he's lacking on specifics, except Roe V. Wade. And that's because he doesn't have any. The stuff he calls radical is really kind of mainstream stuff. You know, busing doesn't go over well in the United States.
EC: First, I want to take exception to John's characterization. Everybody on both sides claims to be faithful to the Constitution. I believe that my interpretation, William Brennan's interpretation, is just as faithful as John's interpretation, and Antonin Scalia's. We disagree over the meaning of the Constitution, but I take strong exception to the idea that there's one true meaning to a document that's written in such broad terms as the Constitution. Second, I want to largely agree with Ralph Neas. I think that the Reagan administration and the Bush administration were trying to radically change law, but I'll be specific. I think trying to overturn Constitutional protection of privacy, including abortion rights, overturning decades of law, is radical. I think trying to eliminate the wall that separates Church and state, saying that the establishment clause doesn't apply to the states, is a radical change. I think dramatically trying to curtail Congress' powers under the commerce clause as a spending power, is a radical change in the law. You can argue it's correct, and I'll argue that it's incorrect. But I stand with Ralph Neas, that I think this would be a very radical change in the law, and John Roberts was at the epicenter of arguing for it.
Erwin can take exception to John’s comments, but he is right, and Erwin is wrong. One only need to look at the track record of the current Supreme Court to see that the majority of justices are either moderate or liberal in their interpretation to the Constitution. Thomas did a fantastic dissertation of this phenomenon amongst the members of the federal judiciary, especially the high court. Erwin’s interpretation of the Constitution is nowhere near Justice Scalia’s interpretation. Erwin, to my knowledge, still believes that Roe was an appropriate decision.
He also cites that Ralph Neas is correct, in his opinion, is assuming that the Bush Administration is attempting to change the laws. How exactly. They obviously are not doing it through legislation, and to date the two cases the Court has taken up that I disagree with because of the legislative fiat that occurred at the hands of the Court were Hamdi and Kelo. That was not a move made by the "radical right." Those decisions were rendered, in majority, by the more liberal minded justices. And naturally, Erwin jumps right into the talking points Ralph Neas used regarding rights of privacy and abortion rights. Both of which are nowhere in the Constitution, and therefore should not be recognized. But they are, all through precedent.
And what Erwin misses on those particular subjects is that the Supreme Court’s duty is to render a decision on the Constitutionality of the arguments presented to them. They are to use the Constitution to decide that, and any other laws, cases, or documents to render their decision. One such idea that justices like Thomas and Scalia use is whether or not something was considered a "tradition" in the nation. That is a concept cited frequently by them. Subjects like privacy and abortion have less than no tradition in this nation, especially a legally protected decision. It was not as though we are overturning a law that had lasted for hundreds of years. Griswold established the "right to privacy" in 1956, if memory serves me correctly. Roe was established in 1972. The traditions that Erwin may wish to address is the mandate made by the Court up to present times. But neither were inherent at the time of the founding of America.
Further, Erwin comes from the camp—and I have heard him state that he believes this—that the Constitution is a living document, which it is not. It is an evolving document; evolution coming at the behest of the people to formally amend it. But it’s evolution does not come in judicial fiat. Yet, now, during this interview, Erwin seems to have rediscovered his "constitutionalist" hat. Bravo, but it does not excuse the foolishness of the past.
HH: And Erwin, do you think John Roberts is actually going to comment on Morrison and the reach of the interstate clause? He can't. That's prejudging decisions.
EC: Well, I don't believe that announcing one's views on issues is prejudging. We know Antonin Scalia's views say on Roe V. Wade. We know John Paul Stephens. They get to sit in on the case. I think that we need to know John Roberts' views. And I think that there will be Senators, and I know this almost to a fact, that will say that if the White House is going to say that they won't turn over the Solicitor General memos, and if they're going to say that the briefs John Roberts signed onto don't reflect his views, and if John Roberts won't give his views, they will vote against John Roberts. I'm not telling you it's going to be enough to launch a filibuster, but I will say that there will be Democrats who will be outraged by saying that John Roberts won't do anything to indicate his views.
It is pre-judging, and Ginsburg stood against such a move. So did Scalia, and Stephens. There were questions they refused to answer in their hearings. Roberts should be granted the same leeway, especially if there is even the slimmest chance that the case may be revisited by the Court when he is on it. He cannot make a determination one way or another without the case being presented in oral arguments, or through an examination of the Court’s records. It is also wrong because should he make a pre-judged determination, there is nothing to stop a lawyer from requesting that Roberts recuse himself over his case because Roberts would have spoken about it earlier.
No judge coming up for confirmation should ever be forced to give their views on certain issues. Those views are not supposed to figure into the decision. It is only through the era of judicial activism did politicos start demanding such things. Judicial activism is the primary problem with the judiciary as it stands, and it stems from the jurists decision to utilize their personal beliefs rather than adhering to the Constitution, and the letter of the law.
HH: Or on unenumerated rights, either. He's very suspicious of such things.
EC: Right. Justice Scalia believes that judges should be following the original meaning of the Constitution, and he believes he knows the original meaning of the Constitution. I should say, because you refer to the phrase judges legislating from the bench, I have an op-ed piece in today's USA Today that I co-authored, that says it's silly to use the phrase that judges should apply the law, not make the law. Judges make the law all the time. It's silly to say judges shouldn't legislate from the bench, because the reality is judges have discretion, and that form of exercising discretion in inherently setting rules for behavior. And so I think that whether we like John Roberts or dislike John Roberts, a lot of the rhetoric surrounding the nomination we all know is misleading.
This is a money quote, in my opinion, and I am about to make change out of Mr. Chemerinsky’s head. Justice Scalia interprets the Constitution using a method that is proven to be the closest to proper interpretations than I have ever seen from any other justice. He does not simply read the Constitution, he disseminates it, going as far to dig up dictionaries from the time to understand the words used, and what they meant at the time. Evolution of the law comes through the legislative bodies of this nation, not from the bench. Jurists are "making law" from the bench, and it is not proper. They do not have the power.
"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." —Federalist #78, Alexander Hamilton.
That is what is proper for the courts, not, as Thomas put it today, a legislative mandate. Erwin can spin this as judges having such power all he wants, but it is not true. The system the Framers established was that the judiciary would be the weakest and least intrusive to the people, thereby guaranteeing their rights without ever truly threatening them. Marbury v. Madison changed that in establishing judicial review as a precedent, and the judiciary has simply gobbled up power since then.
But let me be clear here: Roberts cannot change anything on his own, and he cannot change anything with a minority. The idea the Left has that the moment he sits down on the court, all their hard-work activism is going straight down the johnny-flusher does not wash. Forgive the pun, but it does not. Overturning precedent for the correct interpretation, and remanding it back to it’s last place of origin does not make a thin illegal. It may in that state, but there is nothing saying that California, New York, or even Arizona could not sit back and say, "no. We WANT abortion legal." Fine. So be it. It is the right of the people to decide that, not be treated as second-class citizens with no voice, and have decisions made for them, which is the side Erwin is consistently on.
The Bunny ;)
(Full transript of this interview is here: http://www.radioblogger.com/#000921 )
Every week, Hugh Hewitt—one of our favorite talk show hosts, and a blogger we frequent several times a day—has "The Smart Guys" on. That would be John Eastman, from Chapman University School of Law, and Erwin Chemerinsky, of Duke University Law School, on his show. Now, I like John. He is a good man, and an excellent legal mind. And whereas Erwin is far more educated than myself, I still have to question his Lefty logic. (Yes, I am aware that the concept of "Lefty logic" is an oxymoron, but just bear with me.)
Yesterday drove me up the wall. I was wanting to reach through the radio and just slap Erwin yesterday. This was among the exchange that occurred, as Hugh started his piece with them by playing Ralph Neas insane rant, which is available below.
http://www.radioblogger.com/images/08-24neas.mp3
(If this does not load or play properly, simply click the link at the end to the Radio Blogger site, and Duane has it up.)
HH: John Eastman, I guess we're part of the radical movement conservatives.
JE: Well yeah. You know, I think Mr. Neas needs to go back and revisit his Constitutional Law class. Look, the radicals here are those that actually want to faithfully apply the Constitution. And you know, I remain pretty convinced that when the American people look at the policies Mr. Neas wants to support, and look at what the Constitution actually says, that those that adhere to the Constitution are going to get the overwhelming support of the majority of the population.
HH: Erwin Chemerinsky, we played a lot of the Ralph comments today, because he's lacking on specifics, except Roe V. Wade. And that's because he doesn't have any. The stuff he calls radical is really kind of mainstream stuff. You know, busing doesn't go over well in the United States.
EC: First, I want to take exception to John's characterization. Everybody on both sides claims to be faithful to the Constitution. I believe that my interpretation, William Brennan's interpretation, is just as faithful as John's interpretation, and Antonin Scalia's. We disagree over the meaning of the Constitution, but I take strong exception to the idea that there's one true meaning to a document that's written in such broad terms as the Constitution. Second, I want to largely agree with Ralph Neas. I think that the Reagan administration and the Bush administration were trying to radically change law, but I'll be specific. I think trying to overturn Constitutional protection of privacy, including abortion rights, overturning decades of law, is radical. I think trying to eliminate the wall that separates Church and state, saying that the establishment clause doesn't apply to the states, is a radical change. I think dramatically trying to curtail Congress' powers under the commerce clause as a spending power, is a radical change in the law. You can argue it's correct, and I'll argue that it's incorrect. But I stand with Ralph Neas, that I think this would be a very radical change in the law, and John Roberts was at the epicenter of arguing for it.
Erwin can take exception to John’s comments, but he is right, and Erwin is wrong. One only need to look at the track record of the current Supreme Court to see that the majority of justices are either moderate or liberal in their interpretation to the Constitution. Thomas did a fantastic dissertation of this phenomenon amongst the members of the federal judiciary, especially the high court. Erwin’s interpretation of the Constitution is nowhere near Justice Scalia’s interpretation. Erwin, to my knowledge, still believes that Roe was an appropriate decision.
He also cites that Ralph Neas is correct, in his opinion, is assuming that the Bush Administration is attempting to change the laws. How exactly. They obviously are not doing it through legislation, and to date the two cases the Court has taken up that I disagree with because of the legislative fiat that occurred at the hands of the Court were Hamdi and Kelo. That was not a move made by the "radical right." Those decisions were rendered, in majority, by the more liberal minded justices. And naturally, Erwin jumps right into the talking points Ralph Neas used regarding rights of privacy and abortion rights. Both of which are nowhere in the Constitution, and therefore should not be recognized. But they are, all through precedent.
And what Erwin misses on those particular subjects is that the Supreme Court’s duty is to render a decision on the Constitutionality of the arguments presented to them. They are to use the Constitution to decide that, and any other laws, cases, or documents to render their decision. One such idea that justices like Thomas and Scalia use is whether or not something was considered a "tradition" in the nation. That is a concept cited frequently by them. Subjects like privacy and abortion have less than no tradition in this nation, especially a legally protected decision. It was not as though we are overturning a law that had lasted for hundreds of years. Griswold established the "right to privacy" in 1956, if memory serves me correctly. Roe was established in 1972. The traditions that Erwin may wish to address is the mandate made by the Court up to present times. But neither were inherent at the time of the founding of America.
Further, Erwin comes from the camp—and I have heard him state that he believes this—that the Constitution is a living document, which it is not. It is an evolving document; evolution coming at the behest of the people to formally amend it. But it’s evolution does not come in judicial fiat. Yet, now, during this interview, Erwin seems to have rediscovered his "constitutionalist" hat. Bravo, but it does not excuse the foolishness of the past.
HH: And Erwin, do you think John Roberts is actually going to comment on Morrison and the reach of the interstate clause? He can't. That's prejudging decisions.
EC: Well, I don't believe that announcing one's views on issues is prejudging. We know Antonin Scalia's views say on Roe V. Wade. We know John Paul Stephens. They get to sit in on the case. I think that we need to know John Roberts' views. And I think that there will be Senators, and I know this almost to a fact, that will say that if the White House is going to say that they won't turn over the Solicitor General memos, and if they're going to say that the briefs John Roberts signed onto don't reflect his views, and if John Roberts won't give his views, they will vote against John Roberts. I'm not telling you it's going to be enough to launch a filibuster, but I will say that there will be Democrats who will be outraged by saying that John Roberts won't do anything to indicate his views.
It is pre-judging, and Ginsburg stood against such a move. So did Scalia, and Stephens. There were questions they refused to answer in their hearings. Roberts should be granted the same leeway, especially if there is even the slimmest chance that the case may be revisited by the Court when he is on it. He cannot make a determination one way or another without the case being presented in oral arguments, or through an examination of the Court’s records. It is also wrong because should he make a pre-judged determination, there is nothing to stop a lawyer from requesting that Roberts recuse himself over his case because Roberts would have spoken about it earlier.
No judge coming up for confirmation should ever be forced to give their views on certain issues. Those views are not supposed to figure into the decision. It is only through the era of judicial activism did politicos start demanding such things. Judicial activism is the primary problem with the judiciary as it stands, and it stems from the jurists decision to utilize their personal beliefs rather than adhering to the Constitution, and the letter of the law.
HH: Or on unenumerated rights, either. He's very suspicious of such things.
EC: Right. Justice Scalia believes that judges should be following the original meaning of the Constitution, and he believes he knows the original meaning of the Constitution. I should say, because you refer to the phrase judges legislating from the bench, I have an op-ed piece in today's USA Today that I co-authored, that says it's silly to use the phrase that judges should apply the law, not make the law. Judges make the law all the time. It's silly to say judges shouldn't legislate from the bench, because the reality is judges have discretion, and that form of exercising discretion in inherently setting rules for behavior. And so I think that whether we like John Roberts or dislike John Roberts, a lot of the rhetoric surrounding the nomination we all know is misleading.
This is a money quote, in my opinion, and I am about to make change out of Mr. Chemerinsky’s head. Justice Scalia interprets the Constitution using a method that is proven to be the closest to proper interpretations than I have ever seen from any other justice. He does not simply read the Constitution, he disseminates it, going as far to dig up dictionaries from the time to understand the words used, and what they meant at the time. Evolution of the law comes through the legislative bodies of this nation, not from the bench. Jurists are "making law" from the bench, and it is not proper. They do not have the power.
"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." —Federalist #78, Alexander Hamilton.
That is what is proper for the courts, not, as Thomas put it today, a legislative mandate. Erwin can spin this as judges having such power all he wants, but it is not true. The system the Framers established was that the judiciary would be the weakest and least intrusive to the people, thereby guaranteeing their rights without ever truly threatening them. Marbury v. Madison changed that in establishing judicial review as a precedent, and the judiciary has simply gobbled up power since then.
But let me be clear here: Roberts cannot change anything on his own, and he cannot change anything with a minority. The idea the Left has that the moment he sits down on the court, all their hard-work activism is going straight down the johnny-flusher does not wash. Forgive the pun, but it does not. Overturning precedent for the correct interpretation, and remanding it back to it’s last place of origin does not make a thin illegal. It may in that state, but there is nothing saying that California, New York, or even Arizona could not sit back and say, "no. We WANT abortion legal." Fine. So be it. It is the right of the people to decide that, not be treated as second-class citizens with no voice, and have decisions made for them, which is the side Erwin is consistently on.
The Bunny ;)
(Full transript of this interview is here: http://www.radioblogger.com/#000921 )
posted by Syd And Vaughn | 8:00 PM
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