Tuesday, November 01, 2005

It's been a rough few weeks...

I was on vacation in Palm Springs, I was coping with a death in the family (my dad), and I was dealing with some personal medical issues (as I write this, I am in bed with my good cat by my feet and an ice pack on my man parts- you don't want to know). I wonder if I've missed anything....

So Harriet Miers got shaq-fu'd by the far right. The Administration really miscalculated here- in their strong desire to avoid a major showdown, they sent up an unknown quantity with immense personal loyalty to the President. The activists in the party, however, wanted the very showdown the WH sought to avoid. The far right wants someone who will not mince words, who will take firm positions, who will state what he believes and force the other side to make a move (i.e. filibuster).

I think they got their man. Samuel Alito, AKA "Scalito," is an avowed conservative with impeccable credentials. Yale Law School, Third Circuit, US Attorney, Solicitor General's office- no question that he has the background. I worry about his judicial philosophy, however. He wrote an opinion upholding Pennsylvania's repressive and bizaare abortion law- which opinion was overturned by the Supreme Court in Planned Parenthood v. Casey. The President introduced him as someone who would not "legislate from the bench," and would "strictly interpret" the Constitution.

However, I have read a number of his opinions this morning. He has overturned murder convictions, upheld free speech and free press rights, and generally seems to get things right. Is this an instance in which a mid-level appellate judge is simply following precedent with which I agree, or is it a sign that terms like "conservative" and "liberal" are too imprecise to be meaningful when it comes to the judiciary?

The bottom line is that I don't know. I remember that I thought Justice Souter was going to be a yes-man for G.H.W. Bush- I could not have been more wrong. Souter was described as a judicial conservative during his tenure on the New Hampshire Supreme Court, and indeed he was. Remember, however, what judicial conservatism means- respect for precedent, and respect for the legislature. New Hampshire is known to be a somewhat right leaning state (by New England standards at least). Respect for a right leaning legislature, and respect for precedent equals a general distaste for broad policy making from the bench.

Once elevated to SCOTUS, however, Justice Souter remained a judicial conservative, but with considerably more lefty precedent before him. Certainly, Justice Souter is not afraid to overturn legislation or to overrule precedent- he is just reluctant to do so. I cannot recall him writing a major, world turning opinion. That is not his style; and that is the essence of judicial conservatism.

"Strict constructionism" is a buzzword, an imprecise description for a number of judicial theories that do not mean the same thing, and that do not always coem to the same conclusions Scalia's originalism, Thomas' naturalism, and Black's literalism both fall under the rubric of strict contructionism, but sometimes arrive at differing results.

What will Judge Alito do on the big bench? I don't know. Will he rewrite the rules to suit his whim, or will he do so only when it is necessary? Whatever he is, I doubt that he will simply be a yes man. He has too many years on the bench behind him, and too much respect for the Court to do that. I know that he will be confirmed, and I am slowly beginning to think that he should be confirmed- despite my reservations.

TOLD YA SO- So it's official: 2005 is now the worst Atlantic hurricane season on record. We have run out of names-resorting to the use of Greek letters- and we have a month to go before it ends. As I wrote after Katrina, it is more than a coincidence that hurricane activity has been on the rise in the past ten to fifteen years. Global warning is real and it is dangerous. Cities have been destroyed and lives are in real danger. It has crossed the threshold from environmental concern to national security concern. The administration constantly sides with business over people, with profits over security. And the profits are immense.

Leadership is the ability to foresee circumstances and adapt, it is the ability to get your people on board before there is even a board to jump on, and it is the ability to do what is right- even if it is unpopular.

By those standards, we have no leadership.

3 comments:

Andrew said...

Are we therefore to conclude that 1950, the year of the previous record, was also a year of runaway global warming?

Charlie said...

Not necessarily- there have been exceptional hurricane seasons in the past. However, when you consider that 6 of the last 10 hurricane seasons rank in the top 10 by cyclonic energy, and that five of the 10 most intense hurricanes in history have occurred since 1998, and that EVERY YEAR since 2000 has been in the top 10 in total storms, I think it is apparent that we are trending toward more intense and frequent tropical cyclones. And what is the most important factor in cyclone formation- warm water.

These things don't form by accident- we are trending warmer, we are trending to more intense storm activity. The two are related.

Andrew said...

I can see all of that...but what's the solution? I'm not convinced that this is entirely or even chiefly a man-made phenomenon.