Sheridan: Con-Law

THE SUB-PRIME LOAN CLIFF...

...we're about to be thrown off.

Alan S. Blinder, a Princeton professor of economics and public affairs and former vice-chairman of the Federal Reserve System, describes how the problem came about.  He doesn't say we're going to survive it.  I'm not sure we are.  When a fire is small, we can count on the local fire department to put it out.

But when we have a forest fire that gets out of control, all the fire departments in the world cannot put it out.  It just burns.

The national economy and the world economy are bigger than any of the fire departments we've got to control a conflagration:  the U.S. Federal Reserve, the World Bank, the central banks of our trading partners: Britain, China, etc., may not be enough to prevent a recession, or worse.  The sub-prime loan mess, with its use of bad loans as assets to back securities sold on the world market, have infected the world investing system with a bad virus, worse than anything than the ones constantly attacking your computer.

Forest fires require water or flame retardant chemicals to douse the fire by cooling it off.  Financial panics such as the one of 1907 and the Great Depression following the 1929 Stock Market Crash in New York, require money in the form of cash and credit to douse the flames of panic which make depositors rush to their bank to try to retrieve their money before the front door shuts.  Stock pledged as security for loans, or more stock purchases fall in value.  The holders call you up and ask you to pony up cash, which you don't have, otherwise you wouldn't have borrowed to invest in the first place.  So the broker sells you out and you are broke.  Or the bank forecloses on your mortgage and you are out on the street, headed for the promised land, if there is one.  For the farmers of Oklahoma and Arkansas during the Dust Bowl days of the Depression, California was the promised land.  The California Highway Patrol was sent to the border to keep them out.  The case forbidding the practice (as a citizen you have the right to go to any state and be treated like a welcome member of the family) is Edwards v. The People of the State of California (1941)

It is amazing that the Sub-Prime Virus was allowed to get through.  I guess there was so much money in it that the Anti-Virus Police (the researchers for the big investors) looked the other way.

So now your kid can't afford to buy that house anywhere near you or his job.

And those dollars you've got in the bank are worth Canadian dollars now.  If this keeps up, they'll soon be worth Mexican pesos and Mexico will have to build a border fence to keep us out.  I don't think we'll like that, will we. 

"Damn those Mexicans, can't they see I'm only sneaking across the border to try to feed my kids?  What's wrong with those people?  Don't they have any sense of humanity?  Like us?"

The article, from today's NY Times business section, is below.

MYSTERY SOLVED: IT'S ALL SMOKE & MIRRORS

We seem to have gotten ourselves into a bind.  We want fair judges on the Supreme Court but we don't think it right to ask nominees what they truly believe in down deep in their heart.  Why?  Because they're judges and we don't think it right to ask a judge to pre-judge the outcome of a case s/he hasn't yet heard.

That's how we treat jurors who decide cases all the time.

But the Supreme Court, although it decides cases all the time has an added dimension that a trial court judge and jury do not have.  In a trial court, the decision on the facts by the jury and on the law by the judge has significance only for the litigating parties then before it.

The Supreme Court, by contrast, is one of the three policy making branches of our federal government, or four if you count the administrative agencies with rule-making power, of which there are many.

So when nominee-for-Chief-Justice John Roberts declared that he would serve as an umpire, fairly calling balls and strikes, he likened himself to a trial judge who just makes rulings on objections.

That is hugely misleading, for the role of a Supreme Court justice goes far beyond calling balls and strikes.  The job of a justice is to make policy for the nation based on human values, his or her human values, writ large. 

This is why the conservatives want a conservative justice and the liberals want liberal justices, because in the final analysis, the only thing that matters is what is written on the heart of the nominee personally.

When you vote to confirm a nominee, you are voting to install for life one person's heart as policy maker for the nation.

Should blacks go to public school with whites? Yes said the Warren Court, unanimously, in Brown v. Board (1954)

Should forced busing be ordered to achieve public school integration with "all deliberate speed?"  Yes, said the Court in Brown II and Charlotte-Mecklenburg, later.

Should married people have the right to use contraceptives?  Yes, said the Court in Griswold in 1965.

How about extending the right to unmarried people and teenagers, is this okay?  Yes, said the Court in Eisenstadt v. Baird.

Should gays have the right to engage in sexual relations together?  Yes, said the court in Lawrence v. Texas (2003).

Should 'good' racial discrimination be allowed to correct 'bad' racial discrimination?  Yes, said the Court in Grutter v. U. of Michigan (2003), at least for the next 25 years.

These are all policy making decisions.  We don't really care very much about the litigants, do we?  We care about the fact that when the U.S. Supreme Court decides a case on policy making grounds, it affects the rest of us.  The rule for the litigants becomes the rule for the country.

Therefore it is unfair not to explore the heart of a justice-nominee.  It is unfair, not to the litigants but to all of the non-litigants affected by the decision.  The only say that we get in a monumental decision, such as any of the above, is to watch interested organizations submit friend-of-the-court briefs.  We can write letters to the editor, columns wherever we can, march, and picket to our hearts content.  The one thing we cannot do is to ask a nominee what s/he truly believes down deep, where it really counts.

Why?  Because we pretend that the Supreme Court is just an ordinary court instead of what it really is, a super-legislature.

Sure, I like Brown, Griswold, and Lawrence as exercises in liberty, equality and due process (Bolling v. Sharp, the companion to Brown, went off on Due Process because it applied to a federal district, the District of Columbia, i.e. Wash. D.C.).

Those were terrific pieces of national policy making, legislation.

So, to all the conservatives who rail against the Court for acting more as legislators than judges, why don't we face reality and accept what you say as true.  If Supreme Court judges are really legislators, not judges, why isn't it fair for us, the people their decisions affect, to insist on a full exploration of the innermost beliefs of the legislators nominated to serve as justices?

Why should we be forced to accept a-pig-in-a-poke?

Today's San Francisco Chronicle has as the lead editorial a report on Pres. Bush's use of religious code to speak to his religious conservative base.  He tells them "I believe that God wants me to be president."  Maybe his god does, but not mine.  His god may be bigger than mine, however, as George is president and I can't argue with that.  Maybe he could lend me a little divine support.

...It was not surprising at all that Bush might think he could reassure skeptics on the right by simply saying he knew what was in Miers' heart, a phrase that had the ring of code.  This time, however, many are demanding to know much more about her views on Roe and other constitutional issues.  So should all Americans.
                                                                   San Francisco Chronicle, editorial, Oct. 19, 2005

Hence the question:

In light of the fact that the Supreme Court, in the guise of deciding cases, actually sets policy of all sorts, political, social, economic, religious, and regulates the powers of the other two coordinate branches, and only incidentally affects the lives of the litigants before it, and that the policy-making effect of its decisions is far more weighty to the nation than the impact on particular litigants, why isn't it perfectly proper to insist that nominees be subjected to the most searching inquiry into what they truly believe?

I posted the following to the Conlawprofs listserv:

CHENEY: NOMINATION IMPASSE

This from Howard Bashman's How Appealing blog, linked in our margin.

Sunday, October 24, 2004

In Cedar Rapids, Iowa, Vice President and Mrs. Cheney speak about judicial nominations: The following comes from a transcript of remarks at a town hall meeting yesterday afternoon:

Q Mr. Vice President and Lynne, thank you for being here, first of all. My question really is with regards to the Senate rules that are really circumventing the appointments of our President. In doing so, are they really serving their constitutional role? And if not, and there has been some question raised about this by members of the Senate, why has not something been done? And if it is being done, would you speak to that? And is there a serious effort to ameliorate this?

THE VICE PRESIDENT: Talking now about appointments to the federal bench? Yes. Yes, it is a problem. And it has developed just in this last Congress. Specifically, the Constitution provides for us, for the President to nominate judges to go on the federal bench. And the Senate is charged with the responsibility to advise and consent on those nominations. Historically, for nominees to the federal bench, all that was required was a simple majority vote. You get 51 votes in the Senate today, you ought to get confirmed.

What has happened is the Democrats have decided to pick out and oppose a certain number of nominees, and to use the filibuster to block their approval. Filibuster under the Senate rules requires 60 votes, instead of just a simple majority of 51. And so, in effect, they've imposed a new requirement by using the filibuster to block judicial nominees. Historically, that has not been the case. That is the filibuster has generally been viewed as not applying to judicial appointments. And the motive that is behind it, I think, because of the individuals that they've picked out tend to focus on the appellate courts, the circuit courts of appeal around the country. We've worked out arrangements in many cases to get district court judges confirmed. But others we've not been able to get on the circuit court of appeals. And they're keeping some remarkable people off the bench. I can think of Janice Rogers --

MRS. CHENEY: Janice Rogers Brown.

THE VICE PRESIDENT: Janice Rogers Brown from California. She is a member of the California State Supreme Court. She is an African American, the first African American woman on the California State Supreme Court. She's got a great personal story -- daughter of sharecroppers, got an education, worked her way through school, and has done a superb job -- generally viewed as eminently qualified. And they've decided to block her nomination.

MRS. CHENEY: Miguel Estrada.

THE VICE PRESIDENT: Miguel Estrada is another one. Miguel Estrada is a man who was born in Honduras, came to this country, learned English, went to school, worked his way through Harvard Law, was editor of the Harvard Law Review, held a prominent post in the Justice Department under both Clinton and Bush administrations, and he, too, has been blocked from a circuit court appointment requiring a filibuster to let him through. These are people who can easily get 53, 54, 55 votes, but because they can't get 60 votes, because the Democrats have approached it on a block, they're kept from doing it.

A good friend of mine, a man named Bill Myers, used to work for my colleague Al Simpson from Wyoming, has been working in Idaho, was nominated to the Ninth Circuit. He's been blocked. He had 55 votes cold on the floor, but they wouldn't let it come to a vote because they used the filibuster. He was nominated to the Ninth Circuit. The Ninth Circuit was the circuit that recently handed down the decision that said when we pledge allegiance to the flag, we can't say "under God."

AUDIENCE: Booo!

THE VICE PRESIDENT: Yes. Sounds to me like they could use some new judges on that circuit. (Applause.)

There are a couple of solutions. One is elect more Republican senators. I think that helps. (Applause.) There are other -- there are some procedural moves that have been contemplated from time to time, in terms of a challenge on the floor of the Senate that basically would involve moving to change the rules of the Senate and do that by a majority vote, in effect, specifically exempting judicial nominations from the filibuster rule. That would probably -- some people call that the, sort of the nuclear option, that would start an amazing battle on the floor of the Senate. Some of us think there's a certain appeal to that kind of an approach. (Applause.)

***

RS COMMENT:

That's one side of the story.

The current conservative Republican Administration has a constituency it needs to serve for political reasons: it put them in office for a reason, to effect certain changes, and they expect results in return for further support.

In opposition are the Democrats, who also have a constituency to serve for the same reasons.

That's what politics is.

The power to obtain, or block, results.

Litmus test issues today are abortion, repeal of Roe v. Wade, 'liberal' decisions such as freedom for gays, as in Lawrence v. Texas, the sodomy or liberty decision, depending how you care to characterize it.

I prefer liberty, because Lawrence protects all, not just gays, from the tyranny of the majority respecting private consensual intimate adult relations.

Lawrence keeps the long nose of the neighbors, acting through government out.

Government should be too busy dealing with Al Qaeda to have time for Mr. Lawrence.

That bloc of some 45 Democrats is trying to prevent the repeal of Roe v. Wade through the appointment of more Clarence Thomases. Justice Thomas swore he had no position on Roe, which made him either ignorant or lying, and he's far too smart not to have known all about Roe that he needed, to wit: it was the 3rd rail that would derail his candidacy if touched.

The Dems aren't going to let another candidate get away with that ploy; hence the filibuster, to insure moderate candidates.

Does the White House have a litmus test?

Do elephants have four legs and a trunk?