Professor Bainbridge...on law, politics, religion, culture & food

Gotcha Politics in the Supreme Court

The LA Times (R) continues to act as a mouthpiece for left-liberal groups in attacking conservative members of the supreme court over bogus conflict of interest charges. In the latest round, the Times "reports" that the Ohio Supreme Court wanted Chief Justice Rehnquist to speak at its building dedication. The Ohip Supreme Court arranged for Rehnquist to fly on a corporate jet, with the Ohio court reimbursing the firm. Rehnquist had nothing to do with it. In our regulatory state, of course, no corporation can escape the government's web. The firm in question is being sued for Clean Air Act violations. As such, there is the barest (near zero) possibility that the firm may end up before the supreme court at some point. All of which leads the Times to accuse Rehnquist of a conflict of interest for a flight he didn't arrange and for which the inviting agency will pay. Regular readers know that I've been going around with Larry Solum and Randy Barnett recently on the question of judicial activism. This story illustrates precisely why I oppose judicial activism of either the left-liberal or libertarian version. Under either variant, the Supreme Court becomes a super-legislature. Inevitably, the gotcha politics that have pervaded our system since Watergate are being extended to the courts.

James Joyner on Iraq

Making typically good sense:

I’ve never been confident that Western-style democracy was going to be the end game in Iraq, especially in the short term. Not so much because Arabs are somehow unsuited for democracy—although I do think fundamentalist Islam and our vision of democracy are mutually exclusive—but because that change needs to come from internal forces rather than imposed from outside. I thought—and still maintain—that the gamble was worth taking if we were committed to the excercise. President Bush emphasized time and again that this was a long-term struggle and I fully expected us to maintain a heavy presence in Iraq for years to come. The signals have become decidedly mixed on this front in recent weeks, however.

It’s hard to conceive of a situation in Iraq worse than we faced with Saddam or his sons in charge. Regime change was worth the price paid. But we’ve paid a far higher price for the follow-on mission of stabilization and democratization, goals which we are a long way from achieving. I hope our commitment to finishing the job remains strong. I don’t expect to turn Iraq into Norway, but a stable country with a government and some reasonable measure of freedom for its citizens has to be in place before we can leave.

Condi at Vandy

Clayton Cramer has a great post excerpting and commenting on Condalezza Rice's speech at Vanderbilt:

Make no mistake about this. This is not a struggle over money, or oil, or land, or any of a number of relatively minor matters. This is a struggle over whether or not we want to live in a world where Nick Berg's killers continue their operations of death and torture.

Yep. Go read the whole thing. (Please!)

Krispy Sued

Sean Hackbarth on the investor suits against Krispy Kreme:

This suit stems from a company statement last week telling investors that earnings would be "10% lower than previously announced guidance." Krispy Kreme is being sued because they may have misjudged their expansion plans and not realized how much the low-carb craze would effect them. It sounds to me that this is a case of business error. There's a big difference between lying and being wrong ....

It's an old, old story I'm afraid. The top empirical work on private securities litigation is being done by a law prof named Michael Perino, who has documented the existence of a "race to the courthouse," by which he means "class actions filed soon after significant stock price declines, apparently with very little pre-filing investigation" by the plaintiff lawyer. Unfortunately, he's found that the PSLRA hasn't solved the problem.

Porsche upgraded to a buy

With the official announcement of the new 911, stock market analysts have upgraded Porsche to a "buy" recommendation. Meanwhile, I wonder if I can sell enough BlogAds to ... well, you know.

Neuhaus on Graglia

I love First Things, the mostly Catholic opinion journal, not least for Father Richard Neuhaus' monthly Public Square column. Neuhaus has been banging the End of Democracy drum for over a decade, including this December 2003 column. I particularly liked Neuhaus' summary of Texas law professor Lino Graglia's take on the problem:

In instance after instance, [Lino A. Graglia] writes, the Court is addressing not constitutional law but “policy choices,” and, in instance after instance, the Court decides that it knows best. Here is Graglia at cruising speed: “Virtually every one of the Court’s rulings of unconstitutionality over the past fifty years—on abortion, capital punishment, criminal procedure, busing for school racial balance, prayer in the schools, government aid to religious schools, public display of religious symbols, pornography, libel, legislative reapportionment, term limits, discrimination on the basis of sex, illegitimacy, alien status, street demonstrations, the employment of Communist-party members in schools and defense plants, vagrancy control, flag burning, and so on—have reflected the views of this same elite. In every case, the Court has invalidated the policy choice made in the ordinary political process, substituting a choice further to the political left. Appointments to the Supreme Court and even to lower courts are now more contentious than appointments to an administrative agency or even to the Cabinet—matters of political life or death for the cultural elite—because maintaining a liberal activist judiciary is the only means of keeping policymaking out of the control of the American people.”

Graglia notes that in some of its most controversial decisions, the Court appeals to an “emerging democratic consensus.” But, by preempting the role of the legislature, it prevents that putative consensus from being put to the test of democratic debate and vote. Surveying the ways proposed for countering the imperial judiciary, Graglia thinks it comes down to political will: “The system of checks and balances set up by the Constitution has broken down where the Supreme Court is concerned; that institution now checks but is not checked by the other branches. President Lincoln dealt with the abuse of judicial power by announcing that although he would not defy the Court’s Dred Scott decision, neither would he accept it as settling the slavery issue. Congress and the President could similarly make clear that contemporary Supreme Court rulings of unconstitutionality without basis in the Constitution deserve not respect but censure. If the political will were there, means could be found to return the country to the experiment in popular self-government in a federalist system with which we began.”

Yep. I just wish I thought it would be that easy, even if we could find the requisite political will.

Harumph

I do NOT drive like a "drunken teenager." I drive like a sober teenager.

New Porsche 911

Autospies has a three part series on the new Porsche 911: Part 1, Part 2, Part 3. Great pictures of both the 997 series Carrera and Carrera S.