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Geoffrey R. Stone: Sonia Sotomayor and the Hypocrisy of "Conservative" Critics Top
The May 30, 2009, New York Times contains two interesting articles about Sonia Sotomayor. One deals with her views of affirmative action, the other with her views of campaign finance regulation. According to these articles, Judge Sotomayor has been supportive of both policies. What this means in terms of her predicted behavior as a Justice of the Supreme Court is that she will tend to uphold the constitutionality of both policies. The articles report that conservative critics of Judge Sotomayor have begun to attack her for her positions on these issues because, by doing so, she is allegedly making inappropriate policy judgments rather than applying the law in a cautious and respectful manner. This criticism reveals the inconsistency and, dare I say, hypocrisy of the contemporary conservative stance on constitutional interpretation. Conservatives insist that their heroes - Justices Rehnquist, Roberts, Scalia, Thomas and Alito - are judicial "passivists," rather than judicial "activists," who "strictly construe the Constitution," do not substitute their own views for those of the Framers, and generally defer to the judgments of the democratically-elected branches of the government. Most fundamentally, these conservative Justices do not use the power of judicial review (the power to declare laws unconstitutional) to smuggle their own policy preferences into their interpretations of the Constitution. That vice, they say, is the vice of liberal activists. Now, let us consider the debate about affirmative action and campaign finance regulation. What does it mean to say that Judge Sotomayor is "supportive" of affirmative action and campaign finance regulation? It does not mean that Judge Sotomayor would use the power of judicial review to require affirmative action or campaign finance regulation. That is not the issue. What it does mean is that she would be inclined to uphold the power of the democratically-elected branches of government to adopt those policies if they choose to do so . This is not judicial activism, but judicial passivism. It is not free-wheeling interpretation to impose her own views on the nation, but strict construction of the Constitution that takes a modest rather than an aggressive view of judicial power. It is precisely the judicial methodology that conservatives say they admire. What the conservatives commentators really want in a Justice with respect to these issues is not judicial passivism but judicial activism. What they want is not strict construction, but free-wheeling, activist interpretation. What they want is a Justice who will hold unconstitutional programs of affirmative action and campaign finance regulation, which is exactly what they've gotten from Justices Rehnquist, Roberts, Scalia, Thomas and Alito. What they want is conservative activism - the aggressive use of judicial power in order to smuggle conservative political views into the interpretation of the Constitution. Consider affirmative action. The Equal Protection Clause of the Fourteenth Amendment provides that "No State shall deny to any person the equal protection of the laws." What does this mean? It does not mean that all persons must be treated alike in all circumstances. That would be absurd. For example, citizens can vote, aliens cannot; eighteen-year-olds can drive, fourteen-year-olds cannot; lawyers can practice law, doctors cannot; and so on. What is clear from the history of the adoption of the Equal Protection Clause, which was enacted shortly after the Civil War, is that its Framers intended it primarily to protect African-Americans from continued oppression. But the Equal Protection Clause doesn't expressly apply only to African-Americans. So the inevitable question is: Who else does it protect? Over the years, the Supreme Court has held that the Equal Protection Clause also protects other groups who have been historically discriminated against, such as women, illegitimate children, and ethnic minorities. The key question in the affirmative action debate is whether laws designed to benefit racial and ethnic minorities and women are unconstitutional because they disadvantage whites and men. Put differently, are whites and men like blacks and women for purposes of the Equal Protection Clause? The passivist, strict constructionist, originalist answer must be: No. If states want to engage in affirmative action, such programs do not violate the central meaning of the Equal Protection Clause, and they do not violate the intent of its Framers, who never envisioned affirmative action. Nonetheless, Justices Rehnquist, Roberts, Scalia, Thomas and Alito have consistently held affirmative action unconstitutional. Whatever else one might say about those judgments, they do not reflect what are supposed to be "conservative" principles of constitutional interpretation. They represent conservative judicial activism, plain and simple. Similarly, on the issue of campaign finance regulation, the First Amendment provides that "Congress shall make no law abridging the freedom of speech." Campaign finance legislation limits the amount that wealthy individuals and corporations can spend in order to influence the political process. The goal is to reduce the corrupting influence of money on political candidates and officeholders and to create a greater sense of "one person, one voice" in the political process. Think of a presidential debate in which time was not allocated equally, but was sold in ten-minute segments to the highest bidder. Does a regulation that limits the amount individuals and corporations can spend in the political process violate the First Amendment? The passivist, originalist, strict constructionist view must be: No. But Justices Rehnquist, Roberts, Scalia, Thomas and Alito consistently say: Yes. Protecting the interests of wealthy individuals and corporations, they invariably hold that such regulations violate the freedom of speech. Whatever else one might say about those judgments, they do not reflect what are supposed to be "conservative" principles of constitutional interpretation. They represent conservative judicial activism, plain and simple. I don't mean here to say that affirmative action and campaign finance regulation should be constitutional or unconstitutional. (My own view is that the former generally is constitutional while the latter generally is not.) My point, rather, is that the conservative commentators and critics have to be held accountable for their inconsistency and cynicism. If they truly believe in conservative judicial principles, then they should be delighted with Judge Sotomayor's apparent views on affirmative action and campaign finance regulation, for those views reflect precisely the interpretative principles the conservatives say they admire. And, at the same time, they should be furious with Justices Rehnquist, Roberts, Scalia, Thomas and Alito for departing from those principles in order to impose conservative political values on the nation in the guise of constitutional interpretation.
 
Earl Ofari Hutchinson: Picketing President Obama Is the Wrong Way to Get Blacks to Back Gay Marriage Top
The Gay activists that picketed President Obama at a recent fundraising event in Los Angeles for allegedly not doing and saying enough to beat back Proposition 8 must have dropped in from another planet. Obama remains wildly popular among African-American voters and an attack on him for being less than resolute on gay rights does nothing but further tick black voters off. They'll need those voters now more than ever if they plop another initiative on the ballot in 2010. The measure would reverse Proposition 8 and legalize same sex marriage. The Catholic Church and the Mormon groups dumped millions into the Proposition 8 initiative campaign. Yet even with their money and their drum beat media campaign, polls showed that Latinos marginally supported the proposition, Asians voted overwhelmingly against it and whites were split. Polls also showed that a majority of black voters in key parts of the state voted for it. Los Angeles was one. Nearly sixty percent of blacks backed the initiative. The black vote made the crucial difference in passing the initiative. A well-heeled and probably well paid off core of preachers who head fundamentalist leaning, mega and medium-sized black churches held rallies and took to their pulpits and bible thumped their congregations to pass the initiative. Proposition 8 backers shrewdly flooded mailboxes in mostly black neighborhoods with a mailer that featured a stern faced Obama and his horribly out of context quote saying that he opposed gay marriage. Obama vehemently denounced Proposition 8. Even if the ministers hadn't said a word about gay marriage, a significant number maybe even the majority of blacks might still have voted for it. The warning signs that black voters were susceptible to religious and conservative pitches to oppose gay marriage lit up in 1997. Then the late Green Bay Packers perennial all-pro defensive end Reggie White, an ordained fundamentalist minister stirred a firestorm when he took a huge swipe at gay rights and gay marriage in a speech to the Wisconsin state legislature. White became the first celebrity black evangelical to say publicly what many black religious leaders said and believed privately about gay issues. Few blacks joined in the loud chorus that condemned his remarks. A year before White's outburst, a Pew Poll measured black attitudes toward gay marriage and found that blacks by an overwhelming margin opposed it. A CNN poll eight years later showed that anti-gay attitudes among blacks had not changed much since then. At a tightly packed press conference in October 2003, five of Michigan's top black prelates publicly called on the state legislature to amend the state constitution to define marriage as between a man and a woman. The ballot measure passed in November, and more than fifty percent of blacks backed it. The same year the conservative Virginia-based Alliance for Marriage corralled a handful of top black preachers to plop their name on the Alliance's letterhead and tout the Alliance's anti-gay rights agenda. At the NAACP convention in July 2004, there was some talk of taking a delegate vote to put the organization firmly on record backing gay rights. It didn't get far. Reverend Julius Caesar Hope, the head of the NAACP's religious affairs department, warned that a resolution to back gay marriage "would make some serious problems. I would think the membership would be overwhelmingly against it, based on our tradition in the black community." Seven months before the November 2004 presidential election, a legion of black churchmen staged a rally on Capitol Hill, "We believed that we are faced with a challenge," Bishop Paul Morton thundered to the crowd, "God versus same-sex marriage and we will not compromise in that area." A day later an AME convention forbade its ministers from performing same-sex marriages. In nearly every state since then where gay marriage bans have been enacted, conservative church-influenced blacks have been the driving force backing the bans. Christian fundamentalist groups have played hard on that sentiment. At the same time, however, a significant percent of blacks have rejected the bigoted, narrow religious appeals of some black ministers and opposed gay marriage bans. Even in the winning Proposition 8 campaign, forty percent of black voters overall opposed the initiative. Many, perhaps the majority of blacks, can be won to back same sex marriage as a paramount civil rights issue. Because that's what it is. But picketing President Obama is the absolute wrong way to get them to do that. Earl Ofari Hutchinson is an author and political analyst. His weekly radio show, "The Hutchinson Report" can be heard on weekly in Los Angeles at 9:30 AM Fridays on KTYM Radio 1460 AM and live streamed nationally on ktym.com More on Gay Marriage
 
David M. Abromowitz: Who is Wise? Top
A few weeks before Sonia Sotomayor was nominated to the Supreme Court, a Princeton alumnus of the Class of 1945 complained in a letter to the Princeton Alumni Weekly: "But the feminization of Princeton seems to be pervasive, invading all activities so that Princeton now seems almost to be a women's college with a good-sized male contingent. Gone is the distinct masculine flavor of an all-male college. The maleness of the Nassau Inn's Tap Room has been replaced by a female, dainty, tearoom atmosphere." The author was not the first, and certainly he will not be the last, defender of the sanctity of male exclusiveness ranting against the erosion of the supposedly higher standards of yore. What is more remarkable is that in 2009, public figures like Limbaugh, Gingrich , Buchanan, Tancredo , Barnes and Rove articulate their attacks on Judge Sotomayor by loudly echoing the cranky elitists from a bygone era, who apparently can't stand that one half of America might be just as well qualified to runs things as are they. These conservative icons perpetuate views that were rampant - and openly expressed -- on campus when Sotomayor enrolled in 1972. In February 1973, the magazine of the Concerned Alumni of Princeton carried an article by one of the group's founders lamenting about co-education: "The makeup of the Princeton student body has changed drastically for the worse." That Judge Sotomayor earned summa cum laude honors in this sometimes hostile atmosphere was doubly impressive. No one with a shred of decency would claim that her professors, some of whom certainly shared the feelings of the Concerned Alumni, were handing out "As" to her as a gift. She was even awarded the highest honor Princeton bestows on any undergraduate, the Pyne Prize, recognizing the member of the senior class whose performance "manifested in outstanding fashion...excellent scholarship and effective support of the best interests of Princeton University." If only all that were going on in the attacks on her credentials were nostalgia for the supposedly good old days of an all-male Tap Room, or even an all-male Supreme Court. But the view that only a certain kind of person belongs in the club is closely linked to the false argument that the Constitution reveals fixed, clear "law" that only some people (read: traditionalists and conservatives) truly understand and respect. Others outside this club (read: women, liberals, minorities) are always cast as trying to subvert the true meaning of the law when they acknowledge that experience and empathy inevitably play a part in human decision making. Deciding a Constitutional case - unlike being a baseball umpire - demands that you wrestle with open-ended terms and consider what is a "reasonable" search, or "equal", or "due" process. How can that be done without reference to life experience and differing views shaped at least in part by that experience - or by hearing and appreciating another's views so shaped? If the meaning of the Constitution is so clear, why not have only one really smart Justice? Or at this point, couldn't we just program a computer with all the precedents to tell us the answer? The Court is not a representative body, but if an ancient sage was right in saying , "Who is wise? He who learns from all men", broadening the range of experience on the Supreme Court can only enrich and strengthen it. Some conservatives - notably Justice Scalia -- choose a line of argument that masks their own bias, often called "originalism ." This approach is asserted as neutral and legitimate, by claiming that deciding a case today merely requires divining what a clause of the Constitution originally meant. But doing so intentionally limits questions to inherent views and biases of the all white male property owners of 1789 sitting around the Tap Room of their era. Would outlawing sexual harassment be seen as a valid exercise of federal Congressional power? Probably not to the Framers, who gave women neither a vote nor full property rights. And even if originalism were a valid approach - which many Constitutional scholars doubt - then the logical outcome is that the next Supreme Court justice should be an historian, not a lawyer. Since long before Galileo theorized that the world was round, there have been cranky old guys arguing that the person bringing change is the radical, citing everything from tradition to Divine immutable law as proof of their own superior wisdom. Putting down the Latina from the Bronx, then, is just the latest illustration of the time honored die hard resistance to change and inclusion. When Sonia Sotomayor entered Princeton in 1972, the percentage of women undergraduates was roughly equivalent to the percentage of women there will be on the Supreme Court when she takes her seat. One hopes this Court and those observing its workings will offer a more hospitable atmosphere. David Abromowitz is a Senior Fellow at the Center for American Progress, www.americanprogress.org. More on Sonia Sotomayor
 
Tony Sachs: Happy Birthday To The King Of Swing: Benny Goodman Turns 100 Top
May 30th marks the hundredth anniversary of the birth of Benny Goodman. The "King Of Swing"'s centennial hasn't garnered the same hoopla as those of, say, Duke Ellington or Louis Armstrong, at least not among the part of the population that doesn't love vintage jazz. If you want to know why, look at a picture of Benny next to the Duke or Satchmo. Goodman looks more like an accountant than a jazz musician. It also doesn't help that the clarinet as a jazz instrument is a hard sell, lacking the power of brass instruments like the trumpet or saxophone. In the wrong hands, it can be a whiny, almost comical instrument. Even when played by a master, it can sound dated, quaint, unfashionable to untutored ears. Simply put, Benny Goodman isn't hip, certainly not by early 21st century standards. Benny's image, or lack thereof, is probably why a lot of people forget that he was the Elvis of the big-band era. "Hot" jazz had been popular for a decade by the mid '30s, and Goodman had been on the scene almost that long. But the title "The King Of Swing" wasn't simply bestowed on him because he was white and popular. He earned it the night his band turned his brand of music into a full-fledged phenomenon. According to legend, the spark became a flame on August 21, 1935 during a broadcast from the Palomar Ballroom in Los Angeles, when the crowd went berserk and the Swing Era began. For the next few years, Benny Goodman was the most popular bandleader in the country, and his music helped to pull the record industry back from the brink of extinction in the middle of the Great Depression. In 1938, the Goodman outfit took over Carnegie Hall and helped to prove that jazz wasn't just music, it was art. But of course, it was art that you could jitterbug to, and the recording of the legendary concert reveals instances of the audience screaming and whooping like they were at a rock club. Swing wasn't always the mannered music of nostalgia that our grandparents dance to at weddings. Benny Goodman's music was wild, rebellious, and pissed off parents the same way Elvis or the Rolling Stones did decades later. To dig what the fuss was all about seven-plus decades ago, just put on one of Goodman's records. His band -- which over the years included legends like Bunny Berigan, Gene Krupa, Harry James, Lionel Hampton and Teddy Wilson, and featured arrangements by the brilliant Fletcher Henderson -- was able to swing with the power of a blast furnace, but with a lightness and fleetness that makes it damn near impossible not to get your feet moving. They rock out, but with a precision and economy that also marks the playing of Goodman himself. As amazing as his big-band records are, his small-group "chamber jazz" recordings from the '30s, featuring Teddy Wilson on piano, Lionel Hampton on vibes and Gene Krupa on drums, are to my ears even better. The music is witty and elegant but it swings, and swings hard. Goodman may be the leader of the group, but he doesn't step on the toes of the other players. The songs are perfectly crafted miniatures, where every note makes sense, and the overall effect sets the blood to pumping and the toes to tapping. And let it not be forgotten that Goodman had the guts to put together an interracial quartet in 1935, back when even jazz groups were almost completely segregated. Goodman's music never really progressed beyond the swing era; except for a half-hearted stab at bebop in the late '40s, he didn't really explore the new frontiers of jazz that emerged between the end of the swing era and his death in 1986 (although he did regularly dabble in classical music). But he kept making brilliant records into the '60s; his 1963 reunion album with Wilson, Hampton and Krupa packs almost as much punch as their records of a quarter century earlier. And he kept kicking ass onstage right up to the end, thanks in part to a fanatical practice regime. Frank Sinatra said he once asked Goodman why he practiced so much. Benny's response was, "This way, even when I'm not great, I'm still good." If you like jazz -- or 20th century American music, for that matter -- then you owe it to yourself to check out Benny Goodman. And if you're already a convert, put on "Let's Dance" or "Stompin' At The Savoy" or the 1938 Carnegie Hall album or any one of Goodman's thousands of classic recordings, and pay respect to one of the greatest musicians of the last 100 years. Happy birthday, your majesty!
 
Petraeus Made Secret Visit To Pakistan Top
US Central Command chief Gen David Petraeus paid a secret visit to Islamabad on Tuesday to allay Pakistan's concerns that the military build-up in Afghanistan by the United States would add to its woes. More on Afghanistan
 
Whales Killed At Kommitjie In South Africa (VIDEO) Top
CAPE TOWN, South Africa (AP) -- Authorities shot dozens of exhausted whales that beached on a shore near South Africa's storm-lashed southern tip Saturday amid scenes of grief and despair from volunteers who had tried to save them. Fifty-five false killer whales washed up on the shores of Kommitjie, near the Cape of Good Hope, in the early morning, prompting a massive all-day rescue effort. Hundreds of locals wearing wet suits or shorts braved high winds and rough waves to try to push the massive mammals from knee-deep water back into the open sea. To no avail. "I feel quite sad, but it is the right thing to do," Nan Rice, head of the Dolphin Action and Protection Group, told the South African Press Association. "They are huge animals and are stranded over a vast area. Unfortunately they (the volunteers) couldn't do it." One woman suffered suspected fractured ribs after being pinned between a whale and rocks. A number of volunteers had to be rescued from the surf while trying to swim the whales beyond the breaking waves, according to Ian Klopper of the National Sea Rescue Institute. Cape Town authorities mobilized the police, fire brigade, navy, lifeboat services, disaster management teams and expert divers as part of the rescue operation. They brought in six bulldozers to try to move the whales, which were about 3 meters (10 feet) long, back to sea. But the whales _ part of the dolphin family _ kept swimming back to shore and became increasingly stressed. Plans to transport the whales by road to the nearby deep-water naval base in Simons Town were shelved when it was decided that their health had deteriorated too much. Scientists then decided there was no alternative but to kill about 35 whales to prevent further suffering. A further 10 died of stress. And it was feared that the whales that did manage to escape were too exhausted to survive, according to Klopper. "The most humane way to perform euthanasia on whales is to shoot them through the brain and this was successfully performed on those whales suffering on the beach. We wish to stress emphatically that the most humane effort was employed to prevent further suffering of these animals," he said. Television footage of the scenes on the desolate beach was interspersed by the sound of gunshots. "One shot, one whale. Another shot, another whale," said the commentator. The bulldozers brought in to push the whales out to sea were used to clear the carcasses from the seaweed-strewn sand. Police desperately tried to clear the beach of dozens of families who had flocked to the shores in hope of a happy ending which turned nightmarish. There were also minor scuffles between officials and distraught volunteers trying to protect the whales. Klopper said authorities were urging those who had young children there to seek trauma counseling. "Despite many theories on why marine animals beach it has not been determined what caused these whales to beach today," he said. The South African coast is renowned for its whale watching during the winter season, which is in progress. But mass beachings are rare. More on South Africa
 
GOP Belittles Democrats' Climate Change Proposal Top
WASHINGTON — The climate change proposal developed by congressional Democrats and endorsed by President Barrack Obama does little to reduce global warming and saddles Americans with high energy costs, Republicans said Saturday. Indiana Gov. Mitch Daniels, in the GOP's weekly radio and Internet address, said the House's climate bill was "a classic example of unwise government." The address culminated a week of coordinated Republican attacks on the Democratic proposal, which would require the first nationwide reductions in carbon dioxide and other greenhouse gases blamed for global warming. GOP House members used the weeklong Memorial Day break recess to drum up voter opposition to the Democratic bill. The governor's criticism echoed Republican lawmakers' arguments at "energy summits" in Pennsylvania, Indiana and California and at other forums during the week. The proposal to cap greenhouse emissions "will cost us dearly in jobs and income and it stands no chance of achieving its objective of a cooler earth" because other nation's such as China and India will not have to follow, Daniels said. "The cost for all American taxpayers will be certain, huge, and immediate. Any benefits are extremely uncertain, minuscule, and decades distant," he contended. The bill would require a 17 percent reduction in greenhouse gases by 2020 and 83 percent reduction by midcentury. It advanced from the House Energy and Commerce Committee shortly before lawmakers left Washington for their holiday break, getting only one GOP vote. House Speaker Nancy Pelosi, D-Calif., has said she wants to take up the measure in the full House this summer. "The national energy tax imposed by Speaker Pelosi's climate change bill would double electric bills here in Indiana, working a severe hardship on low income families, but that's only where the damage starts," Daniels said. "In a state where we like to make things, like steel and autos and RVs, it would cost us countless jobs. ... Our farmers and livestock producers would see their costs skyrocket. and our coal miners would be looking for new work." Daniels made no mention of compromises by the bill's chief Democratic sponsors _ Reps. Henry Waxman of California and Edward Markey of Massachusetts _ aimed at easing the economic costs on energy-intensive industries such as steel and automobiles, and on regions heavily dependent on coal for electricity generation. Under a cap-and-trade provision, polluters would be able to buy and sell emission allowances to ease the cost of the reduction. Initially free emission allowances would be provided to electric utilities and other energy-intensive industries facing unfair competition from abroad. Waxman and Markey have argued that much of the higher fuel costs would be offset by increased energy efficiency and rebates _ using money from the sale of emission allowances _ to people facing higher energy costs. But Daniels said there's a better approach than the cap-and-trade government mandate and "protect the environment, lower energy costs and create jobs at the same time all without raising taxes." He cited Indiana's production of ethanol and biodiesel, efforts to develop less polluting coal plants, expansion of wind power and conservation programs. Congressional Republicans said that instead of a mandatory cap on pollution, they want to expand domestic oil and gas development, using some of the proceeds for renewable energy development, expansion of nuclear energy and more support for research into ways to capture carbon from coal burning. The Democratic bill also would devote billions of dollars to carbon capture research and would require utilities to generate at least 12 percent of their power from renewable energy. ___ On the Net: Video of address: http://www.youtube.com/watch?vDktew1-s4V0 More on GOP
 
Chopard Robbed In Paris By Daring Jewel Thief Top
Jewellery worth more than 6m euros (£5m, $8m) has been stolen from an exclusive Paris store in broad daylight by a lone gunman, police sources say. More on Crime
 
Revenue-Hungry States Are Raising Taxes on Their Wealthiest Residents Top
Forbes 400 member B. Thomas Golisano built his fortune in New York and has run for governor there three times. In May he changed his official residency to Naples, Fla. Why? In April New York socked millionaires with a 31% tax hike--raising the tax rate on income over $500,000 from 6.85% to 8.97%. (It also added a 7.85% rate for income over $300,000 for a couple.) Florida has no state income tax. More on Taxes
 

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