My desire to offer some post-election commentary has been thwarted by bad timing. My submission deadline falls just before the Nov. 2 voting. Possessing neither crystal ball nor much confidence in pre-election polling data, I will have to settle for something other than detailed analysis of the mid-term election results. I will take the long view regarding a perennial concern within U.S. politics.
One of the most closely watched Senate races this season unfolded in Delaware. The Democrats nominated New Castle County Executive Chris Coons (full disclosure: I was once on a college debating team with him). His Republican opponent was the Tea Party-supported consultant Christine O’Donnell. Luckily, the campaign soon moved on past O’Donnell’s dabbling in witchcraft to more substantial topics.
For those outside Delaware, the primary opportunity to assess the candidates was the CNN broadcast of a debate on Oct. 13 (interrupted, to the dismay of few, by breaking news of the rescue of 33 Chilean miners).
As surely as Nascar enthusiasts secretly yearn for multi-car pileups, people watch candidates’ debates to gawk at gaffes. After this debate the moderator, Wolf Blitzer, opined that O’Donnell must be judged the winner simply because she made no major missteps, a solid accomplishment for a less experienced candidate like her.
I strongly disagree with Blitzer’s assessment. The candidate in fact made an egregious gaffe. When asked to name a recent Supreme Court decision with which she disagreed, O’Donnell inexplicably drew a complete blank. Obviously flustered, she promised to post on her Web site right away her answer to that question.
Now we all live in dread of being flummoxed by “gotcha” questions like this. I have been there myself, unable to recall a single title of a favorite novel when a live radio interviewer was making small talk with me on air some years ago. I even tell my students facing job interviews to keep on the tip of the tongue answers to casual questions like “Who is your favorite theologian?” or “What is the best Catholic weekly magazine in the United States?”
By the time you read this, Christine O’Donnell is either a Senator-elect or is looking for work. I nevertheless wish to offer her some advice on this aspect of campaign debate preparation.
If you favor a broad interpretation of the word recent, then consider citing Plessy v. Ferguson, the 1896 case that cemented the principle of “separate but equal” into U.S. law for generations. Or go with Roe v. Wade, the horrific 1973 decision that allowed legal abortion in all states. O’Donnell’s public record attests to her opposition to that Supreme Court blunder.
If the word recent means only this year, there are still many decisions from which to choose. I would identify two that are particularly objectionable. In January the court reached a much criticized decision in the case Citizens United v. Federal Election Commission, which overturned many previous restraints on political advertisements. This raises fears that corporations and special-interest groups can bankroll a range of political activities with little regulation or transparency. Foreign donors seeking to influence American politics are freer than ever to engage in stealth spending.
The other disastrous ruling was in the case Holder v. Humanitarian Law Project. That decision, on June 21, defined all contact with any of the hundreds of groups classified by the State Department as terrorist organizations as constituting material support for enemies of the United States. Main-taining such a broad interpretation of material support precludes constructive initiatives like the creative Track II diplomacy, which has led to peace settlements in Northern Ireland and elsewhere.
While both decisions cite lofty principles (free speech, national security), I predict that the effects of these two rulings will be intolerable. While people of good will might well disagree, I am convinced that each will seriously damage the common good.
Supreme Court decisions have a way of trumping electoral politics and reshaping the structure of the entire political system. A bad ruling may tilt the playing field in ways antithetical to democracy. Every candidate should be poised to identify and oppose decisions with harmful effects that will last long beyond a given election cycle.
My suggestion for an objectionable recent case would be Kelo v. City of New London, the Supreme Court's gift to social engineers everywhere. Kelo rendered the Fifth Amendment protection against unjustified governmental seizure of property practically meaningless. After Kelo, the power of eminent domain is virtually without check.
In the 1950s and 60s, social engineers used the condemnation power of the government to bulldoze thousands of poor but functional neighborhoods in order to erect low income housing projects that quickly became a no-man's land of crime, drug abuse, and fear. The epitome of this approach to "urban renewal," Chicago's Cabrini-Green project, has now been largely torn down, and the city continues to struggle to make the area livable.
In Kelo, the principle was stretched from restoring "blighted" areas to allowing property seizure in the name of "economic development," in this case a development in which a large pharmaceutical company promised to anchor a redevelopment area in which Susette Kelo's home was located. It was a classic inversion of Robin Hood: New London took from the poor to give to the rich. The NAACP, the SCLC and the AARP all opposed the taking, but for naught. The Supreme Court held 5-4 that it was constitutional.
A few years later, Pfizer pulled out of the redevelopment scheme, the whole plan collapsed, and the land on which the Kelo home once stood lies vacant. A fitting testament to the law of unintended consequences, which social engineers seem incapable of understanding.
O'Donnell had learned from her past mistake of taking everything seriously such as the outlandish question of whether she was a witch or whatever. Unfortunately her public statement "I am not a witch" was a self-inflicted injury that she did not recover from. But at least she did not make another error in jugdement by volunteering too much unimportant infromation.
It is the author's mistake to beleive O'Donnell could fnot answer the question or must answer the question. O'Donnell was very strong on issues and had very great detail on issues. She should have stuck to th eissues whcih she is quite good at.
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Some experts assert that the High Court does not actually have the powers it claims, but as long as we are going to play like it does, regarding outcomes, here's the thing... the Court's purpose is to determine whether a particular law or policy is allowed under the Federal Constitution, or to be the arbiter of last resort in a civil case according to existing constitutional laws.
The courts, Supreme included, are ideally blind to outcome. To be otherwise is to be activist, the greatest evil any court can take on over the long run.
Activism is a condition of judicial conduct properly despised by those on both sides of the aforementioned political line.
Certainly judges and justices, if called on, might overturn precedent if now determined to be un-Constitutional or not the "most legal" expression of a situation possible. But only on those grounds. The Supreme (and any) Court properly recognizes no "preferential options." The justices can issue apocryphal counsels against a law or policy, but they might still have to uphold it.
Activism, intuitively, will lead to the greater number of the worst decisions over time, since they would essentially be expressions of the personal whims of a few black-robed folks, who would jam the square legal peg into the round Constitutional hole, invalidly, time and again.
Better if a law turns out badly that we get engaged, as in this previous election cycle, and rely on the imperfect electoral process to change law, remaining on the firmest Constitutional footing possible to survive the courts. We should more properly pray for wisdom for our elected representatives, and
Some experts assert that the High Court does not actually have the powers it claims, but as long as we are going to play like it does, regarding outcomes, here's the thing... the Court's purpose is to determine whether a particular law or policy is allowed under the Federal Constitution, or to be the arbiter of last resort in a civil case according to existing constitutional laws.
The courts, Supreme included, are ideally blind to outcome. To be otherwise is to be activist, the greatest evil any court can take on over the long run.
Activism is a condition of judicial conduct properly despised by those on both sides of the aforementioned political line.
Certainly judges and justices, if called on, might overturn precedent if now determined to be un-Constitutional or not the "most legal" expression of a situation possible. But only on those grounds. The Supreme (and any) Court properly recognizes no "preferential options." The justices can issue apocryphal counsels against a law or policy, but they might still have to uphold it.
Activism, intuitively, will lead to the greater number of the worst decisions over time, since they would essentially be expressions of the personal whims of a few black-robed folks, who would jam the square legal peg into the round Constitutional hole, invalidly, time and again.
Better if a law turns out badly that we get engaged, as in this previous election cycle, and rely on the imperfect electoral process to change law, remaining on the firmest Constitutional footing possible to survive the courts. We should more properly pray for wisdom for our elected representatives, and