Krauthammer: Courting a Crisis of Legitimacy

Washington Post ^ | 07/04/03 | Charles Krauthammer

[Pokey78]

I once worked in government. On my first day, I raised my right hand and swore to uphold the Constitution. I thought I knew what that meant.

Recently we have gone to war in Afghanistan, Iraq and a few other places, at least in part to advance democracy and promote our kind of constitutionalism. A foreigner might then ask: What exactly is your Constitution? Now we know the answer. The Constitution is whatever Justice Sandra Day O'Connor says it is. On any given Monday.

[arasina]

...Krauthammer stands head and shoulders above the Liliputinas...

Sorry, I know it was a typo, but this had me laughing. Sounds like an Italian restaurant or something. "Bon giorno! Welcome to Liliputinas! You'll have the ravioli today?"

[Rummyfan]

Glad you got a laugh out it! My fingers always betray me on the keyboard.

[Diddle E. Squat]

bump

[ArneFufkin]

Robert Bork has said that the single greatest handicap Conservatives face when important cases reach the Court is that Conservative judges such as Scalia, Rehnquist and Kennedy are almost always unwilling to throw out bad precedent, no matter how badly ruled, meritless in substance and capricious the precedent might be. Liberal judges have no such hesitation or respect for legacy. So, the good precedents get overturned and the bad precedents are accepted as an accomodation. We continue to lose ground case by case.

[Consort]

When I stated a while back that the Constitution is exactly what a majority (5 people) of the Supreme Court interpret it to be regardless of what Congress or the President or the Founding Fathers thought, many posters couldn't deal with that notion.

[ArneFufkin]

That's why this attitude of "I cannot divulge how I would rule on any case that might be brought before me" during confirmation hearings is no longer acceptable. That's how David Souter the cowbird cruised through the process. He didn't know nuthin' bout nuthin'. The Democrats knew. The GOP Senators and H.W. Bush just accepted that ole John Sunnunu wouldn't skin them alive. Sununu is on my "s" list forever, he was the worst thing to EVER happen to the GOP.

Bush's daddy was an honorable man, but he had no clue how to staff, and enforce discipline among, his Cabinet and advisory staff. That's how guys like Souter happen, that's how tax increases happen and that's how he's thrown into a grocery line where he has to prove he knows how much a quart of milk costs. That's how lies about the economy become accepted. That's how a clinically insane meglomaniac like Ross Perot gains credibility. The David Souter nomination will injure us for 20 years hence. That guy was 47 and lived with his mother in her house when he was deemed the rising superstar of jurisprudence. What a gaffe. Sununu was being threatened by the Dixie Mafia, or on Perot's payroll I swear.

Mary Matalin was inner circle. James Carville was Clinton's inner circle. They married soon after the election. That's all you need to know.

[TradicalRC]

It could have been worse; you could've written Liliputana.

[Bullish]

Thanks for the ping Pokey.

[ArneFufkin]

It's been said many times here, but the GOP needs to find a Lee Atwater acolyte. A ruthless, clever bastard. Not for the Bush team, but for the national Parties. Bush wouldn't tolerate a guy like Atwater on his White House team. Bush doesn't go for prima donnas, and Atwater was a self starter.

The GOP needs a guy to give the disaffected Conservative bloc stuff to say "Damn right" "It's about time" and "**** Yeh it is" with gusto. Craft a message that is unapologetic for 2nd Amendment protection, abortion opposition, gay right and environazi fascism abuse, and intolerable illegal immigration. It can be done through advocacy ads, talk show appearances, House legislation, commentaries, State by state grassroots coordination etc. The message of American christian values and individual rights isn't being relentlessly presented right now. Atwater could put that together, he organized the Christian Coalition and Reagan Democrat outreach programs and they produced. He wasn't afraid to be a social and fiscal conservative telling Bill Moyers to kiss his ass. He liked his mean spirit, he was a perfect foil for Reagan and Bush. He was a lousy guitar player, though.

Anyone who thinks we have it bad today need only harken back to 1990-91. Our Congressional leadership was Bob Dole and Bob Michel. John Sununu, David Gergen, Mary Matalin, Bill Kristol, Mike Murphy, Rich Lowery and Frank Luntz were skin tight and in the know. David Souter was the Supreme Court nominee. The House was run by Jim Wright and Dick Gephardt and the Committe chairmen included Henry Gonzales, John Dingell, Dan Rostenkowski, Ron Dellums, John Conyers, Marty Sabo and an Appropriations guy who I'm sure was a disaster as well. George Mitchell, Ted Kennedy, Robert Byrd, Joe Biden and Don Reigle ran the Senate.

John McLaughlin, George Will and Robert Novak were the charismatic voices of the right on TV. William Safire was the print token, until he started obsessing on etymology. Rush Limbaugh heckled Patsy Shroeder. We all did.

Marvin Fitzwater, out there setting it straight until he muddied the water in a drone.

God, that sucked. We're rockin' these days.

[arasina]

LOL! So we'll make sure the restaurant has putanesca sauce.

Did I spell that correctly?

[ArneFufkin]

One of the notable factors is that the Bush Administration is non-commital in these high profile cases. I don't know who is influencing the President in his strategy on presenting these amicus curae filings. It seems the Justices, especially O'Conner, are very desirable of the Bush Administration take on these issues. They respect the President, Gonzalez and especially Ted Olson greatly, and I think Bush could be very influential if he made a passionate argument one way or the other. But, the Justices know he'll make a well considered and pragmatic recommendation that is founded solidly in law. That's Olsen and Gonzalez in action, and people like Kennedy and O'Conner give their arguments major consideration.

It seems that the Court rules pretty much right down the line with what Bush's legal recommendations are. I think that U of M case was pretty much what the White House argued and the outcome they recommended. Same with Campaign Finance Reform and other decisions. They like being in rhythm with the 8 year Executive team who'll be enforcing policy. Sodomy laws were history as soon as they hit the SCOTUS, that one didn't surprise me at all.

This Administration has a pretty solid record in winning challenges to their policies related to holding terror suspects and managing evidentiary security and other challenges to the prosecution of terror suspects. They trust the judgement and care of guys like Bush, Ashcroft, Ridge and Chertkoff.

[esopman]

Your three paragraphs deserve a thread of their own.

The level of strange naivete, wussiness and just plain compromise at the heart of most Republicans trivializes the imagination. I fear that our Republic is in very deep weeds...certainly from a true Constitutional perspective. I used to believe that a turnaround was possible. No more.

At the risk of winning runner-up status in the Freeper tinfoil hat Oscars - I believe that the Matalin/Carville linkage is a type, a paradigm, and most emblematic of the ultimate spiritual bond between the "Two Parties."

[ArneFufkin]

I would just advise George W. Bush to use some of this bountiful political capital to pancake Tom Daschele, Pat Leahy and Robert Byrd.

I suggest next Senate Recess he appoint his filibustered judicial nominations to open slots and worry about the re-certification after the 2004 elections. Put Pickering, Owen and Estrada in plum Districts with high profile jurisdiction.

American citizens are getting ripped off by these undermanned District and Appeals Courts. We are ensured a speedy trial, and every vacant bench erodes that.

Let the Democrats go into seizures. They don't want anyone to know they've been subverting their duty through the first filibuster of a Court nominee ever. Let them defend the thing they've conspired with the media to hide.

And Bush can call Daschele and say ... "Don't eff with me Senator. Do your duty, quit the b.s. gamesmanship. I don't have time for that anymore. You've done a grave disservice to these two fine people letting them hang without a vote for two years. Enough is enough, I have tools of the office too. Now, if you'll excuse me ..."

[Steve Eisenberg]

During a court conference, Jusice Scalia was railing against the evils of affirmative action/quotas, providing an eloquent and impassioned indictment of affimative action both from a practical and constitutional standpoint. When he finished his rather lengthy monologue, O'Connor turned to him with a smile and said, "Why, Nino, how do you think I got this job?"

O'Connor never published in law journals, at least before becoming a Supreme. But Souter didn't have any history of legal scholarship either, just state court opinions of little relevance to Supreme Court practice. The fact is that presidents often nominate those without an impressive history of legal scholarship -- it makes it easier to get them past the Senate. Unfortunately, as the O'Connor and Souter examples suggest, what we don't know may hurt us.

It is silly to suggest that a Supreme Court nomination is a merit position you get for being America's best legal scholar. It is instead a political nomination. (If it is a merit position, I nominate UCLA Law Professor Eugene Volukh. He's only moderately conservative, but still has no chance due to having published too much about too much.)

Lastly, in case anyone is wondering, despite innumeral liberal slanders, Justice Thomas DID have a good pre-nomination history of legal scholarship.

[ArneFufkin]

I believe that the Matalin/Carville linkage is a type, a paradigm, and most emblematic of the ultimate spiritual bond between the "Two Parties."

Don't forget key Bush advisor David Gergen sliding seamlessly into the Clinton Administration as a key advisor.

[esopman]

"Don't forget key Bush advisor David Gergen sliding seamlessly into the Clinton Administration as a key advisor."

True. And then David slid right back out of the Clinton Administration. Quickly. Ever since, I have repeatedly asked myself the question: "What did he learn?" It wasn't nice, that's for sure.

Every time I see David G.'s smarmy face on the tube, I ask that question: "What do you really know, David...and why don't you come clean & tell us." But that will never happen. He is a power-addicted member of the chattering class. He is now up at the Kennedy School at Harvard. Fitting! I once did some interpreting (Russian) at a conference there; a more self-satisfied assemblage of elitists cannot be imagined.

[ArneFufkin]

I can accept that O'Connors political philosophy and personal temperament evolved and changed over 20 years. That's not unusual.

Part of the equation is that she's become, in perception and fact, THE swing vote on that court. She takes that responsibilty seriously, and she has probably become too politically acute because of that. Rehnquist, Kennedy or Olsen needs to talk with her about that friend to friend, professional to professional. She can't be the oracle of our Constitutional integrity. She will always err toward tolerance and half-assed contrivances to forestall any social wildfire. That's not her job.

Souter has been a left wing dolt from day one. What a malfeasence that vetting process was. He has never, in my rememberence, voted differently from Ginsburg. Sununu!!! He was angling for a CNN gig. I've got all kinds of Sununu conspiracy theories.

[ArneFufkin]

I'm thinking he was the chief advocate for the Bush tax increase and the Hillary Health Care commission. Then he recommended that his client introduce "New Coke" and a he persuaded Warners to ink a long term deal with Vanilla Ice. Then the Jerrold Nadler Workout System ....

[Brices Crossroads]

I believe it is best to nominate someone who has experience inside the Beltway. The three conservatives(Rehnquist,Scalia and Thomas) all worked for a considerable period in Washington and thus understood its allures. The other current Republican Justices (Kennedy, O'Connor, Souter and Stevens) had no Washington experience and were appointed from outside the Beltway. They were more susceptible to being courted and reading in the Washington Post how enlightened they were or how much they had grown in office. At least, that is my theory. (BTW, I understand that Thomas does not even read the newspapers in order to escape insofar as is possible their influence.)

[ArneFufkin]

Say no more.

Larry Klayman.