Jason Samuel as Judge Poser

Can you say that...and mean it?

Cindy Sheehan, the woman who lost her soldier son in Iraq, continues her protest at the gates of the Western White Hose.  Story.

"We can be proud of our soldiers and ashamed of our government at the same time," said Tammara Rosenleaf, whose husband is stationed at Fort Hood and is to be deployed to Iraq this fall.

Can you say that?  Surely.  But can you say that while not contradicting yourself or, in the least, sending mixed messages?  I don't believe so.

What does being proud of our soldiers mean?  If we take proud to mean  "[f]eling pleasurable satisfaction over an act," then to be proud of someone may easily mean feeling pleasurable satisfaction from an act of another.  So, when a parent says that she is proud of her son, she means that she's pleasantly satisfied with some act of her son. Perhaps she means her son's grades, or some other achievement of his.  To be proud of of our soldiers means experiencing a pleasurable satisfaction over an act they've done.  It's a reasonable stretch to equate being proud in this sense to an act the soldiers are doing (as opposed to an act they did).

The control and command structure of our armed forces (that is our soldiers) is a responsive one.  It responds to dictates from its commander-in-chief, the president of the United States.  How then could one be proud of our soldiers, but ashamed of our president, the soldier's top commander?  What I do believe the commenter meant was not 'government,' but president.  These protesters are camped out at the Western White House, not 1 First Street, NE.  Unless they're ashamed of the executive in another province of its power (like the regulation of food and drugs), being ashamed at the president's war effort undermines their support for the troops. 

Because you're a Catholic, you must be a "living Constitutionalist"

In a Boston Globe piece, Faithful Interpretations, Drake Bennett attempts to popularize Sanford V. Levinson's taxonomy relating a jurist's religiosity to his interpretive method.  Levinson, a law professor at the University of Texas at Austin,  "argues that the tenets of Catholicism need not be seen merely as a competing set of dictates to be reconciled with constitutional law on fiercely contested issues like abortion, capital punishment, and sodomy."  [Der.]" Instead, he proposes using Catholic ideas about tradition and scripture as a lens through which to examine American attitudes about the Constitution, a founding document that has been venerated and fought over in much the same way that Catholics and Protestants have fought over the Bible." 

Those couple sentences peaked my interest, indeed.  I thought I'd be reading how a jurist's personal beliefs have some bearing on his interpretive method.  While not necessarily the case, I thought, perhaps, there's some correlative relationship between Originalists and Catholicism (err, Thomas and Scalia).  Instead, either though the sloppiness of the author or Levinson, the whole idea of looking to the jurist's religion to explain his interpretive method now seems like a sloppy way to explain what could be an interesting phenomenon.  Levinson's exercise can be reduced to psychologizing jurist's behavior. 

Robert P. George, a juristprudent scholar at Princeton, was quoted in the piece, but only limitedly.  I wish we could have read more of what he had to say.  There's no doubt to me that he had more to say on the topic given his extensive work in this area.  The little Bennett quotes from him, I believe, completely undermines Levinson's project.  Levinson is committing a categorical error really.  The institutions of American law and the Catholic Church are entirely distinguishable.  For that reason, George says, Levinson's project fails.  For it cannot explain how a jurist's religious belief bears on his interpretive method.

Levinson--or Bennett--admits so much in the end: "Levinson readily admits his contrast between legal ''catholics" and ''protestants" is more of a heuristic than ''a hard-and-fast scientific truth." He makes no claim that knowing how a judge spends his Sundays will explain his rulings."

Distinguishing Clinton's Appointees from Bush's

T. More at Ex Post has this to say:

So I will buy that Clinton did not, by and large, appoint terribly left wing people to the judiciary. But I do not accept that he did so because virtue demanded it: he did so because the mainstream is well to the "right" of Senators Schumer and Kennedy, and he was well to the right of them most of the time as well.

Read the post.

Mark Levin makes a good point

Mark Levin makes this point.  I agree.

Link: Bench Memos on National Review Online.

We've discussed at length what should or should not be asked John Roberts, and how he should or should not answer. What bothers me about this nomination is that conservative senators and commentators (not here) are blowing a great opportunity to engage the Left on judicial philosophy. We should engage on the commerce, religion and takings clauses. We should engage on so-called privacy rights and abortion. We should challenge the Left's equal protection jurisprudence (including, in my view, the inevitable decision on same-sex marriage) and Congress's legitimate power to reduce (or expand) judicial jurisdiction. Instead, conservative senators and commentators are surrendering the field with defensive and bureaucratic arguments. We should debate the proper role of the Court, not side-step it. The Court is too powerful and the justices are out of control. From partial birth abortion and eminent domain to foreign law and due process rights for unalwful enemy combatants, the public stands with us.

Kennedy Flip-Flops on Quizzing High Court Nominees -- 07/28/2005

Link: Kennedy Flip-Flops on Quizzing High Court Nominees -- 07/28/2005.

"We have to respect that any nominee to the Supreme Court would have to defer any comments on any matters, which are either before the court or very likely to be before the court," Kennedy said during a 1967 press conference. "This has been a procedure which has been followed in the past and is one which I think is based upon sound legal precedent." See Video

How To Invest Like a Supreme Court Justice - What John Roberts' portfolio reveals about his character. By Henry Blodget

Link: How To Invest Like a Supreme Court Justice - What John Roberts' portfolio reveals about his character. By Henry Blodget.

On the whole, Roberts' investment choices suggest that his financial character is much like his legal one. In investing, he tends to accept prevailing conventional wisdom—which, in the case of the financial markets, often changes and is often wrong—and to apply it with above-average competence.

(HT Acton Power Blog)

Viability Defense--no good.

                                            Blankley: Homosexuals and Feminists En Route to Rendering Roe v. Wade Irrelevant                                                 

Check out this interesting column by Tony Blankley, arguing that the definition of 'viability' used by Justice Blackmun in Roe v. Wade, 410 U.S. 113 (1973), namely "potentially able to live outside the mother's womb, albeit with artificial aid," is poised to be undermined by the very same artificial womb technology championed by homosexuals and feminists to avoid natural pregnancy. Id. at 160.

Two separate advances in this technology, on two different projects, are described by Blankley.

Recently, I had a discussion with some coworkers where we revisited a debate we had on abortion.  One interlocutor this time suggested the viability defense.  I see Blankley reminds us, as did my discussion, that this defense of abortion is still suggested despite what I believe should be obvious shortcomings.

The viability defense seems to ignore the fluidity of viability.  The viability of a fetus determines whether she is a person, entitled to all the rights and privileges of persons, namely the right to life.  So, until a fetus is viable, that is capable of surviving outside of a mother's womb, there is no morally significant reason to consider it a person, and thus protect her life, so the argument goes.  But really, I'm not sure that's how the argument goes.  I'm unsure whether the defense suggests the fetus be able to 'live' outside of a mother's womb or whether the fetus be capable of 'surviving' outside of a mother's womb.  The difference is in whether the child be capable or merely maintaining its own life without any assistance or whether it is capable of merely staying alive, but with assistance, outside of a mother's womb. 

In any case, while this additional uncertainty is worth exploring, my point here was to point out that viability is contingent upon the availability of technology.  So, viability may easily vary because of medical technology's availability or unavailability.  Since the viability of fetuses in less technologically adept locations will come later, it follows that those fetus's personhood will too.  Personhood then, rests on the availability of medical technology.  This seems like a horribly imprecise way to define the human person, let alone hinge a right to life.

(HT Fumare)

                            

The Catholic Question

Recently, but not nearly surprisingly, Senator Dick Durban (D. Il.) made an issue of Roberts' Catholicism, but not really according to the Senator. 

Wendy Long, of Bench Memos, quotes Judge Robert Bork on the relevance of the question of whether a judge's faith would matter were he not Catholic.

[We know the Democrats' scrutiny is mostly a pretext for abortion/Roe.] For a judge critical of Roe, the decision to overturn it could so easily (and reasonably) rest on the case's illogical reasoning that someone like Roberts need not be inspired by his faith to be activist.

Link: Bench Memos on National Review Online.