Posted on 11/08/2004 11:16:11 PM PST by Founding Father
An ominous Specter
Thomas Sowell
November 9, 2004
President Bush had barely finished celebrating his election victory when Senator Arlen Specter of Pennsylvania fired a shot across his bow, warning the President not to send judicial nominees before the Senate Judiciary Committee to be confirmed if they were the kinds of judges who might restrict the right to an abortion.
More is involved here than just one headstrong Senator with his own policy litmus test.
After more than half a century of escalating judicial activism -- judges imposing their own beliefs instead of applying the law -- our country is at a crossroads. There is an opportunity -- one that may not come again in this generation -- to make judicial appointments that will restore the rule of law.
The issue is not whether judges will impose liberal policies or conservative policies. The larger issue is whether they will destroy the voting public's control over their own destiny. Too many generations of Americans have fought and died to preserve the right of democratic self-governance to let judges continue to erode that right and become judicial dictators.
Expressions of outrage from many quarters have caused such an uproar over Senator Specter's statements that some have questioned whether he should become chairman of the Senate Judiciary Committee, as he would by seniority in January. These outcries have led the Senator to backpedal from his statements, no doubt to try to save his prospects of becoming committee chairman.
The real question is not what Senator Specter says now but what he would do as chairman of this key committee that judicial nominees pass before during the confirmation process. That committee has become a place for character assassination against judicial nominees who believe in adhering to the written law.
The key turning point was the nomination of Judge Robert Bork to the Supreme Court in 1987 and the massive smear campaign against him. No nominee to the Supreme Court was ever more qualified than Judge Bork but Senator Specter voted against him.
At one crucial point, Senator Pat Leahy took a cheap shot at Judge Bork by saying that he had earned large consulting fees in some years, when he was a law professor, as if that were something dishonorable. What was not revealed to the public was that those were years in which Professor Bork's wife was fatally ill and he needed that money to do all that he could for her.
Judge Bork was obviously deeply distressed by having that painful period in his personal life dragged into the political arena and his actions in those years twisted and distorted beyond recognition. When Judge Bork rested his head in his hands and covered his eyes, Judiciary Committee chairman Joseph Biden -- to his credit -- called a recess.
But, when it was proposed to end the hearings for the day, Senator Arlen Specter refused to agree. He wasn't prepared to wait to get his shots in against Judge Bork. Senator Specter's agenda was more important to him than common decency.
As the hearings went on, it became clear that Senator Specter's agenda was also more important to him than the Constitution's separation of powers, for the Senator was clearly judging Judge Bork not on his high qualifications but on whether or not he was likely to uphold policies that Senator Specter liked.
He demanded to know "where's the predictability in Judge Bork." He asked: "Where's the assurances for this committee and the Senate of where you'll be?"
Judges in general, and Justices of the Supreme court in particular, are supposed to be impartial and independent in judging the specific merits of whatever cases arise -- not predictable. What does the separation of powers mean if one branch of government can prescribe in advance what members of another branch of government must do on specific issues?
Then and now, Senator Specter has been one of those to whom what matters is not a judicial nominee's qualifications but how they are likely to vote on abortion, anti-trust laws, or whatever.
Senator Specter is also one of those people who is often wrong but never in doubt. He has mangled the meaning of such basic concepts as "judicial activism" and "original intent." It would be a tragedy for him to become chairman of the Senate Judiciary Committee, where he could mangle nominees and in the process mangle the Constitution of the United States.
©2004 Creators Syndicate, Inc.
But, when it was proposed to end the hearings for the day, Senator Arlen Specter refused to agree. He wasn't prepared to wait to get his shots in against Judge Bork. Senator Specter's agenda was more important to him than common decency.
I always thought Specter was a low-life b*st*rd. Now I know it.
He destroyed an able and good man because he couldn't risk having his baby killing views overturned by the judicial activism he normally applauds.
Sphincter should now feel the same rejection. But watch the pubbies stick us with this jackal.
Sowell once again demonstrates that he is a national treasure. I did not know of the story of Bork's wife dying of a fatal illness. Specter is a worthless piece of human garbage.
My understanding is that Robert Bork doesn't believe the Second Amendment confers to all free persons the right to individually possess and carry any and all artifacts of a type suitable for use in a well-functioning militia. If that understanding is correct, that would seem a basis for not wanting him on the Court.
Sick beyond words.
I almost can't believe there are FReepers defending this guy.
My how militias have changed over the years.
How is your local militia equipped?
My understanding is that Bork is dead-on right about that. The 2nd Amendment was a guarantee that the federal government wouldn't tell the states how to organize their militias (it couldn't dictate who could keep what weapons where)--but that the states COULD. The 2nd Amendment is not an individual right to keep and bear arms. The Bill of Rights was meant only to apply to the federal government, not the states. Bork is HONEST, he doesn't invent a 2nd Amendment individual right just because he thinks guns are cool and everyone should have the right to them.
Likewise, the 1st, 3rd, 4th, 5th, 6th, 7th, and 8th amendments applied only the federal government and not the states. When the 14th amendment was passed, only the "due process" clause similar to that in the 5th amendment was applied to the states. Over time, judges defined "due process" to mean, among other things, most of the stuff from the the 1st and 3rd-8th amendments as necessary to a just society. The right to keep and bear arms has not been considered one of those rights. Thus, states are still free (as envisioned by the Founding Fathers) to dictate gun laws.
And I should add: this is a classic litmus test. Apparently litmus tests are only invalid when Arlen Specter uses them to protect Roe.
. there are so many reasons this waste of skin should not be given the chairmanship ........ that he chose to evoke Ancient Scottish law to rationalize/weasel away his Constitutional responsibility is reason enough.
Give him the Magic Bullet
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Somebody should send this column to Hugh Hewett, who is doing his best to flak for the GOP establishment as they get ready to anoint Specter - - never mind that Specter doesn't deserve such an honor, after his mistreatment of REAGAN'S nominee for the High Court. Specter didn't just slime Bork, he dishonored Reagan, Bork's sponsor. We shouldn't reward Specter for that perfidy against the greatest Republican president since Lincoln. Tell Hugh Hewett that he needs to learn about honor and justice (justice means giving honors and rewards according to their due, and punishment as due; spector is due punishment, not reward). And tell the seemingly spineless GOP senators the same thing.
STOP THE SPINE-FREE SENATORS FROM GIVING SPECTER A PLACE IN THE SUN!!!!!
You betcha
The 9th Amendment was added as additional reassurance of what all the founding fathers already knew: That We the People individually and as States possess certain UNALIENABLE rights, and that the listing of some rights and protections and limitations in the Constitution does NOT disparage those rights in any way.
Each one of us possesses the UNALIENABLE right to EFFECTIVE SELF DEFENSE both against criminals and, when necessary, against despotic or criminal government at any level. That unalienable right is not disparaged by the Second Amendment or any other portion of the Constitution.
So even if your view is correct (and I suspect many will disagree) no one should take your view to mean that either individual States or the Federal Government may obstruct the right to or the means of effective self defense away from individuals. And the bottom line: Effective self-defense at this time requires nothing less than firearms, and sometime more.
Of course you agree on this basis that even States may not prohibit the personal ownership of firearms, right?
President Bush ran forthrightly on a clear agenda for this nations future, and the nation responded by giving him a mandate. Remarks by Vice President Cheney introducing President Bush for his victory speech, Ronald Reagan Building, November 3, 2004. President Bushs margin of victory proves that we have a narrowly divided country, and thats not a traditional mandate the number-one item on my agenda is to try to move the party to the center. Sen. Arlen Specter, November 3, 2004. Senator Arlen Specter's shocking comments the day after President Bush's decisive re-election raise troubling concersn |
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Specter's record over the last 20 years demonstrated a pattern of very troubling conduct on Judiciary Committee issues
The Chairman of the Senate Judiciary committee must be someone devoted to the Constitution as written and the rule of law
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I do think the biggest challenge to claiming an individual right to firearms ownership is that there is no explicit basis to do so in the text. But there is precedent for recognizing such rights. For instance, SCOTUS recognized a broad array of rights related to raising a family that never appear in the text: SCOTUS found a right to teach your children foreign languages and to send them to religious private schools. SCOTUS found a right to use birth control (Griswold v. Conn.) and a right to avoid sterilization (Skinner v. Oklahoma).
The Court has also found a right to "privacy," although it dresses that up in the fringes of the Bill of Rights rather than as something found in the 9th amendment (which is probably how it should be seen). I don't think anyone could credibly find an individual right to bear arms in the fringes of the 2nd Amendment, even based on the "spirit" of the amendment, or some other such B.S. Since we are conservatives who respect the Constitution, we won't go there.
The right to self-defense is generally accepted as a part of our culture; it would not be difficult at all to claim it as an individual right. But that only gives you the right to hurt someone in certain circumstances, not necessarily to possess the tools for such a purpose. In other words, only that which is fundamental to self-defense would be covered.
But I think just as one could not have a 1st Amendment right to free speech without the right to use publishing tools, one doesn't have an effective right of self-defense without weapons[1]. So some basic tools would have to be guaranteed: handguns and shotguns. In rural areas, people would also have to have rifles, because they might have to engage a threat at longer ranges.
But just as free speech is regulated (in terms of time, place, and manner), the firearms available for self-defense could be severely limited. I think even California's ridiculous gun laws would be legitimate. As long as some basic firearms are available, it should not matter which. Even if the government wanted to ban all Glocks but allowed 1911s, that sort of law would be valid. The right to possess firearms as implements of self-defense would not cover the right to a firearm of your liking, just one that would work well enough. As long as people can still exercise their right to self-defense (which we can, here in CA), it would be acceptable.
So the only actual gun laws I could see being overturned on this Constitutional claim would be those banning all handgun ownership (as far as I know, there are no laws banning shotguns and rifles; I could be mistaken). It seems clear to me that Washington D.C.'s ban on handguns prevents a lot of the most vulnerable people from protecting themselves, as is their right.
A right to carry concealed firearms is more difficult to figure out, because at different times in our history it has been legal, illegal, or just up to the discretion of the local area. In England, Parliament could do as it pleased. Then on the frontier, our government couldn't regulate firearms even if it wanted to. Then over the past century, more and more anti-carry laws were passed. Then over the past decade, more and more right-to-carry laws were passed. So it would be much more difficult to find a cultural right to carry. The right to defend oneself goes all the way back to the Hebrew Bible, and it's been basically unbroken in this country, but the same is not true for a right to carry. At the same time, one could argue it fundamental to self-defense to have weapons ready. So that is a much more difficult question.
[1] One could also claim an equal-protection argument in favor of allowing handguns: If swords and other meelee weapons are the only available tools for self-defense, it would effectively mean only the healthy, physically-fit could exercise their right to self-defense, which is not how it's supposed to be. Self-defense is an individual right, not a privilege.
SPECTRE - the Special Executive for Counterintelligence, Terrorism, Revenge and Extortion
Sowell testified on Bork's behalf at those hearings. Specter's treatment of Sowell during his testimony was disgraceful. I have always respected Sowell a great deal. He's a forthright, courageous man. Specter treated him like dirt. I have despised Specter ever since. Sowell's class shows through in this article--he makes no mention of Specter's behavior towards him, but instead only calls attention to Specter's despicable mistreatment of his friend.
ping
Bork was on the phone yesterday with Hannity. It was evident he was trying to be a gentleman, but between the lines you could read his anger and frustration at his treatment.
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