Sotomayor Confirmation Hearings: Must Avoid TV?

Since it's a done deal, there seems to be little reason to watch the Sotomayor confirmation hearings either live or on replay. Unless there are some interesting fireworks, it will just be more political theater--and boring at that. Better off watching Animal Planet or NatGeo. One thing is for sure: she will be treated with far more civility by the opposition in stark contrast to the horrible ordeal that Judge Bork, and Justices Thomas, Roberts, and Alito were forced to undergo. And unlike Miguel Estrada, whose federal court nomination was unfairly filibustered by the Democrats into oblivion despite his compelling personal story and superb credentials, she will get an up-or-down vote. [Then-senator Obama voted against both Roberts and Alito, and supported the Estrada filibuster.]

We've already proposed a a few questions to ask the judge. However, Stuart Taylor of the National Journal again does some excellent work in connection with the judge's questionable role in the Ricci appeals court decision:

For all the publicity about the Supreme Court's 5-4 reversal of Judge Sonia Sotomayor's decision (with two colleagues) to reject a discrimination suit by a group of firefighters against New Haven, Conn., one curious aspect of the case has been largely overlooked.

That is the likelihood that but for a chance discovery by a fourth member of the 2nd Circuit Court of Appeals, the now-triumphant 18 firefighters (17 white and one Hispanic) might well have seen their case, Ricci v. DeStefano, disappear into obscurity, with no triumph, no national publicity and no Supreme Court review.

The reason is that by electing on Feb. 15, 2008, to dispose of the case by a cursory, unsigned summary order, Judges Sotomayor, Rosemary Pooler and Robert Sack avoided circulating the decision in a way likely to bring it to the attention of other 2nd Circuit judges, including the six who later voted to rehear the case....

But the case came to the attention of one judge, Jose Cabranes, anyway, through a report in the New Haven Register. It quoted a complaint by Karen Lee Torre, the firefighters' lawyer, that she had expected "'a reasoned legal opinion,' instead of an unpublished summary order, 'on what I saw as the most significant race case to come before the Circuit Court in 20 years.'"

According to 2nd Circuit sources, Cabranes, who lives in New Haven, saw the article and looked up the briefs and the earlier ruling against the firefighters by federal district judge Janet Arterton. He decided that this was a very important case indeed, and made a rare request for the full 2nd Circuit to hold an en banc rehearing.

Cabranes, like Sotomayor a Clinton appointee of Puerto Rican heritage -- and once a mentor to her -- was outvoted by 7-6, with the more liberal judges (including Sotomayor) in the majority. But by publishing a blistering June 12, 2008, dissent Cabranes brought the case forcefully to the attention of the Supreme Court.

Politicized Intelligence Gathering

NationalReview online's Andrew McCarthy calls the blogosphere's attention to the following:

"Had [President Bush's Warrantless Surveillance Program]" been in place before the [9/11] attacks, hijackers Khalid Almidhar and Nawaf Alhazmi almost certainly would have been identified and located."

Another Friday night, another dump by the Obama administration of a report underscoring the vital importance of President Bush's post-9/11 national security tactics.

The above quote about Midhar and Hazmi and is from Gen. Michael Hayden, the former CIA director who was director of the NSA when that agency ran Bush's "Terrorist Surveillance Program." It is a bombshell mentioned in passing on page 31 of the 38-page report filed by five executive-branch inspectors general (from DOJ, DOD, CIA, NSA, and the Office of the Director of National Intelligence) pursuant to Congress's 2008 overhaul of FISA (the 1978 Foreign Intelligence Surveillance Act).

The full report can be found here. In the meantime, AG Holder floats a trial balloon:

Contrary to White House wishes, Attorney General Eric Holder may push forward with a criminal investigation into the Bush administration's harsh interrogation practices used on suspected terrorists.

Holder is considering whether to appoint a prosecutor and will make a final decision within the next few weeks, a Justice Department official told The Associated Press. The official spoke on the condition of anonymity because he was not authorized to speak on a pending matter.

A move to appoint a criminal prosecutor is certain to stir partisan bickering that could create a distraction to President Barack Obama's efforts to push ambitious health care and energy reform.

As we have asked on this blog repeatedly, what is the end game here? This witch hunt/show trial--a stimulus package for lawyers and bureaucrats--will make America safer and stronger how? To some extent, this potential inquiry, and trotting out tired allegations against Cheney, seems like a feeble way to distract the American people away from the Obama administration's failed economic policies. This is a swerve: In general, no one other than the out-of-touch beltway pundits and law school professors cares about any of this.

Memo to Holder and other Obama functionaries: The average American living in the real world cares about whether he or she is going to get pink slipped at work, or how much it costs to fill up their gas tank, or sadly, what's the latest with Paris, Britney, or Lindsay. Actually, spending billions of taxpayer money on a so-called stimulus--that seems to call for an criminal investigation.

Card Check Threatens Employee Privacy

Although it's been placed the backburner, organized labor and their allies in Congress and the White House have been pushing the improbably named Employee Free Choice Act (EFCA). This measure contains a provision known as "card check" which would do away with the secret ballot in union elections.

According to the U.S. Chamber of Commerce...

Under the existing law today, workers have a chance to vote for or against unionization in a private-ballot election that is federally supervised. Under Card Check, if more than 50% of workers at a facility sign a card, the government would have to certify the union, and a private ballot election would be prohibited--even if workers want one. By forcing workers to sign a card in public--instead of vote in private--Card Check opens the door to intimidation and coercion.

This YouTube video summarizes the economic impact of card check:

Isn't the secret ballot one of the cornerstones of democracy? What reasonable person would support a bill that would subject a worker to possible threats from either management or labor (in the contemporary workplace, we know intuitively where most of the intimidation would come from--but either source is unacceptable in a free society)? If, for example, union advocates are so convinced that forming a union is such a great idea, why would they oppose a vote after each side gets a chance to present their case? Card check is a throwback to an era, a world of work, that no longer exists.

Sixty years ago labor laws rightfully helped level the playing field for employees. And yes, as we've pointed out numerous times in this blog, employers continue to make unfair, arbitrary, and irrational decisions in the workplace to the detriment of hard-working employees.

But making it easier to install a corrupt union--which will generally protect featherbedding employees rather than workers with legitimate grievances--won't help. Card check is really more about a money grab--allowing union bosses to confiscate more dues to spend on politics rather than collective bargaining.

Today, politicized and overreaching unions have forced business to go under and have nearly bankrupted states and municipalities (in the case of overpaid, overbenefitted public sector employees). Management has to share a lot the blame by bad decisionmaking including giving away the store to the unions in many instances, and failing to be more aggressive with regard to concessions or give-backs. That aside, with the economy on the brink and many businesses barely holding on, rigid and wasteful union work rules are the last thing a company needs to stay viable and continue to keep workers on the payroll. To survive in this financial climate, business must operate more efficiently than ever. The obsolete union-contract straitjacket "doesn't fit" anymore.

Ironically, union bosses often aren't very keen on collective bargaining when it affects their meal ticket directly. For example:

One of the leading proponents of a bill that would allow workers to form a union by signing authorization cards is being accused by a California health care union of blocking such a card-check election for its members.

In January, the National Union of Healthcare Workers was established by former leaders of the Service Employees International Union-United Healthcare Workers West. They had been removed from SEIU-United Healthcare Workers West executive board and steward positions after accusing the SEIU of centralizing power at its Washington headquarters and making “corrupt deals” with employers.

Since then, about 100,000 health care workers throughout California have petitioned to leave the SEIU and join the new union. The effort has been stymied, according to the National Union of Healthcare Workers, by SEIU tactics that resemble those of businesses that want to prevent unions from forming.

The SEIU has tied up the process by filing charges in court and at the National Labor Relations Board, according to the union. It also has been accused of intimidating workers who want to change union affiliation....

One person involved in the California health care union’s defection from SEIU found it ironic that [SEIU president Andy] Stern would not let the decertification process occur through card check.

“He seems to be an advocate of EFCA except for SEIU members,” said John Borsos, vice president of the National Union of Healthcare Workers.

And if EFCA goes through in some form, what's next--ACORN instead of the NLRB supervising union elections?

Click here for a Federalist Society online debate about EFCA.

Update: George Will weighs in on the Obama-Big Labor connection:

HOW does the Obama administration love organized labor? Let us count the ways it uses power to repay unions for helping to put it in power. It has given the UAW majority ownership of Chrysler. It has sent $135 billion of "stimulus" money to states to protect unionized public-sector employees from layoffs and other sacrifices that private-sector workers are making. It has sedated the Office of Labor-Management Standards, which protects workers against misbehavior by union leaders.

Now it is the Teamsters' turn at the trough. Congress might change labor law to assist UPS, a Teamsters stronghold, by hindering its principal competitor, FedEx.

"Freedom Fighter" Contemplates Life Without Lawyers

After finding himself embroiled for years in bitter patent infringement lawsuits over frequency modulation (FM) royalties with battalions of corporate litigators, inventor Edwin Howard Armstrong famously said that the legal system is "a world where men substitute words for realities and then talk about the words."

[In a 2007 article about then-Congressman Bobby Jindal, National Review Online pointed out that gambling is a crime under the Louisiana constitution, but in 1991, state legislators wrote a law that specifically defined "riverboat gaming" as not gambling.]

Armstrong would have probably appreciated Philip K. Howard's new book Life Without Lawyers (W.W. Norton, 2009). Howard, a prominent lawyer himself, is the founder of Common Good, a nonprofit, nonpartisan legal reform coalition.

Howard's expertly written and documented book argues for a world just the opposite of what Armstrong encountered in his protracted legal struggles: one that would restore freedom, spontaneity, sound decisionmaking, common sense, and economic vitality to individuals and organizations. Howard advocates persuasively for a new, modern legal structure that leaves room for local initiative and authority.

In a book peppered with real-world examples and perceptive quotes from philosophers, the author argues that daily freedom in contemporary America has been undermined by the legal system obsessed with individual rights that ironically infringe on the rights of other individual citizens who operate in good faith. He sums up the thesis of his book as follows: "Freedom can be destroyed by tyrants, by lawlessness--and by too much law." He adds that "to restore our freedom, we have to purge law from most daily activities."

Among other significant issues, Howard describes how law has transformed your local public school into a "regulatory agency" with excessive red tape that prevents removing menacing, violent students or incompetent teachers from the classroom, how negligence lawsuits restrict normal and healthy activities, and employment disputes undermine personal accountability and unleash a wave of unintended negative consequences.

As we pointed out in a previous post, managers often make unfair, arbitrary decisions in the workplace detrimental to hardworking, conscientious employees. By the same token, however, Howard perceptively observes that “law can guard against overt patterns of discrimination, but intervening in specific employment decisions creates a hopeless morass."

Law is supposed to be a structure that promotes our freedom. It does this by setting boundaries that define an open field of freedom. Instead law has moved in on daily life, becoming the arbiter of potentially every disagreement in a free society. We've asked law to do too much--trying to enforce fairness in daily relations is not freedom, but a form of utopia that predictably degenerates into squealing demands for me, me, me.

As we mentioned in a prior post, a court opinion doesn't just decide one case; judicial precedent can have a ripple-effect with broad social ramifications for everyone. With this mind, Howard says that lawmakers should pass the following statute:

Judges shall take the responsibility to draw the boundaries of reasonable dispute as a matter of law, applying common law principles and statutory guidelines. In making these rulings, judges shall consider the potential effects of claims on society at large.

Howard calls Washington a land of "political make believe" obsessed with oneupsmanship and posturing that has "sunk into an ocean of law, rules, and processes." He adds that "American needs to rewrite its legal and regulatory codes. Bulldozing is not too strong a term. Most of the laws and rules long ago lost their connection real problems and real people."

Part of the systemic problem, Howard explains, is that we have evolved into a hyper risk-averse society:

In the age of individual rights, however, American leaders have been told not to focus on the odds. Instead they focus on the effect of one person. No one wants bad things to happen to other people, but in America today we try to make public policy by looking at the effect of one situation on one person. Uncle Sam has become a kind of mad scientist, peering all day through the microscope to identify risks to individuals instead of looking at the effect on everyone. Any risk is cause for a campaign to eradicate it. With enough money and effort, we assume, we can create a world without danger or disappointment….Risk, unfortunately, is inherent in all life choices. Every choice involves a risk. Every movement involves a risk. Doing nothing involves risk. Crossing the street, exercising, taking a job, getting married, all involve risks Risk is just the flip side of opportunity--do away with risks and we lose all chance for accomplishment.

To remedy these problems, Howard advocates targeted courts for areas of special expertise (such as "heath courts" to deal with medical malpractice), more authority vested in local leaders (such as teachers and school principals, and business managers), greater accountability for impossible-to-fire government service employees, and more decentralized civic involvement and accountability brought about by voluntary mediation bodies.

In stressing that accountability should be based on accomplishment rather than legal/bureaucratic conformity, Howard has the right idea in his crusade for responsible personal freedom. Howard expertly diagnoses the flaws in the legal system, but his solutions may be overly optimistic, if not pie in the sky. (We previously expressed similar sentiments in connection with Thane Rosenbaum's otherwise compelling book.) We're also not buying his glowing references to Al Gore's superficial-at-best reinventing government initiative. And as a practical matter, with the Obama administration completely in the tank for the trial lawyers and labor unions, real reform appears unlikely if not impossible, at least in the near term. (Highly politicized judicial appointments have not been in the best interests of our society--how would the health courts, for example, avoid the ideological divisions that permeate the federal and state courts?)

Philip Howard's take on healthcare reform--in which he proposes a complete overhaul of the healthcare system's reimbursement, regulatory, and liability structures--can be found here.

Happy Birthday America!

From the Library of Congress archives: Benjamin Franklin, John Adams, and Thomas Jefferson meet at Jefferson's lodgings in Philadelphia to review a draft of the Declaration of Independence.

Stuart Smalley, The Senator From ACORN

Yesterday's ruling from the Minnesota Supreme Court on the U.S. Senate election contest was not unexpected. While former senator Norm Coleman could have pursued a further appeal in federal court on equal protection grounds, he instead did the statesmanlike thing and conceded the election. Of course, this move may have coincided with preserving Coleman's future political viability. But let's face it; Coleman, who seems to be fine man who may have run a lackluster campaign, was done-in by phantom ballots that appeared after his apparent election night victory. If you separate out the fraudulent votes, Coleman likely would have been reelected. Even with all the ballot stuffing, Stuart Smalley only managed to eke out a 312-vote win.

The guys at PowerLine blog, who followed this court struggle closely, suggest that Coleman's case was sabotaged by bad lawyering on the part of his legal team. But they also add the following:

We are left with the realization that every Republican in a statewide race here in Minnesota starts a few thousand votes in the hole, due to the disparate standards for judging absentee ballots used in Republican-leaning versus Democratic-leaning counties. Of course, that understates the case: the Republican starts out farther behind than that, due to illegal votes that cannot be prevented because of the Democratic Party's blocking of a photo ID requirement. We have no real idea of the magnitude of this disadvantage...The moral of the story, I guess, is that Republican counties should loosen their absentee ballot standards; that is to say, quit following the law.

Isn't it kind of demoralizing in contemporary American that the counties in compliance with the rule of law should no longer do so, otherwise they are put at a fundamental disadvantage?

As an aside, since there were three candidates in this particular election, why not implement an "instant runoff" process like they have in the UK and elsewhere, where you vote for your first choice and your second choice? Under that system, if no candidate makes it to 51% when the first-place votes are counted, the second preference comes into play.

But the larger issue is why in the greatest democracy in the world do we condone such lax if not fraudulent voter registration procedures perpetrated by ACORN and other groups along with their enablers in government? The Bush administration had the bully pulpit for eight years; why not use that to advocate a national law mandating photo ID to vote among other sensible legislative measures to protect ballot integrity? As we mentioned in a previous post, there is no reasonable basis for opposing such a law. Was the administration scared off by the Bush v. Gore controversy? Instead, wasn't that actually a golden opportunity to tighten procedures so that every legal vote is counted? Until the day comes, if ever, that the government creates a hi-tech national voter database that checks your fingerprint or iris when you go to vote on election day, or the equivalent, simply showing your driver's license (which is already required in some states) could be an effective way to protect against voter disenfranchisement.

Again, we'll never understand why the previous administration didn't use its huge megaphone in that instance and others--such as pushing back against misleading media reports on domestic or international issues or fighting to get judicial nominees confirmed over Senate filibusters. In the meantime, close elections will sadly continue to be decided by illegal votes, and judges understandably will be reluctant to overturn the results, even if the results are fishy. In the event of a legal challenge, the court system will likely issue rulings confirming the outcome derived from ideology or make-believe validation of the rigged fact-finding conducted by a lower court or politicized state elections officials.

From the Wall Street Journal:

What Mr. Franken understood was that courts would later be loathe to overrule decisions made by the canvassing board, however arbitrary those decisions were. He was right. The three-judge panel overseeing the Coleman legal challenge, and the Supreme Court that reviewed the panel's findings, in essence found that Mr. Coleman hadn't demonstrated a willful or malicious attempt on behalf of officials to deny him the election. And so they refused to reopen what had become a forbidding tangle of irregularities. Mr. Coleman didn't lose the election. He lost the fight to stop the state canvassing board from changing the vote-counting rules after the fact.

As Joseph Stalin said, "The people who cast the votes decide nothing. The people who count the votes decide everything."

School for Scandal: The Chicago Way

Chicago political corruption (which has been exported to the nation's capital) has been generally well publicized, but who knew that it would compromise graduate school admission--in this instance a top-tier law school?

What does it cost to get an unqualified student into the University of Illinois law school? Five jobs for graduating law students, suggest internal e-mails released Thursday. The documents show for the first time efforts to seek favors -- in this case, jobs -- for admissions, the most troubling evidence yet of how Illinois' entrenched system of patronage crept into the state's most prestigious public university. They also detail the law school's system for handling "Special Admits," students backed by the politically connected, expanding the scope of a scandal prompted by a Chicago Tribune investigation.

Most of us who contemplate law school in general concentrate on practicing for the LSAT, writing good application essays, and burnishing other credentials. Columnist John Kass, who has also been following the Inspector General scandal, writes that this latest scandal has the "old school" stink:

If there were any doubts that Illinois is the diseased poster child of political corruption, those doubts are long gone. Friday's story in the Tribune exposes a widening pattern of corruption at the University of Illinois. This time, with the trading of law school admission for patronage-style jobs. So any doubts about where this state stands should be erased. What remains is the smell.

The state stinks, from Rich Daley's City Hall to Springfield, and now all that's left, for taxpayers, is the smell and the stain. Corruption and patronage, once thought to be the exclusive province of greasy politicians, now reach into the law school of the state's premier public university...

If you've read carefully here and elsewhere, you know about corrupt politicians, corrupt cops, corrupt businesses. But the last line of defense for the corrupt are kinky judges. How do you get such judges? You begin in law school, with university officials establishing corrupt practices, leveraging unqualified lawyers into jobs. Lawyers become judges, don't they?

According to Obama advisor David Axelrod, says Kass, political patronage "is the grease that helps government run smoothly."