I try to keep personal politics out of blog posts as much as possible. I'm not all that convinced that anyone out there really gives a rat's ass about my take on Roe v. Wade. At the same time, there are certain comments that just automatically evoke the shrill liberal knee-jerk reaction. Nothing accomplishes said effect faster than intellectual dishonesty combined with half-truths and lies. Now the following concerns a segment on Hannity and Colmes on the Fox News Channel, which happens to be the one media outlet that my mind is immunized against. But still...
On Monday, the guest on the show was Mark Levin, author of Men in Black. [Sidenote: Transcript of the show is on Lexis, I will only be pointing to the parts that pissed me off A LOT, but pretty much his entire presence on the show managed to get some sort of a negative reaction out of me]. His main thesis?
LEVIN: Well, if you believe in representative government, and you believe in limits on the three branches, and you believe in checks and balances, Alan, there are no limits on the Supreme Court anymore.I'll let this speak for itself with the one caveat that if posting child porn is protected speech then this is news to me, and it just might help with *cough* my friend's case *cough*. Of course a more accurate statement is that restrictions by Congress on ALL pornsites were held to be too sweeping THREE TIMES. So the fact that one currently does not need a verifiable credit card to access porn will also help said friend. Anyhoo, moving on to the more substantive parts.
It's conferring rights on terrorists detainees. It's conferring benefits on illegal immigrants. It's saying that things like cyber-child pornography is constitutional and protected speech while protesting in front of an abortion clinic is not, or speaking in certain ways, broadcasting before an election is not.
The Supreme Court's all over the map because it's not following the Constitution. You have nine lawyers, six of whom are activists, five of whom who said they will confer with foreign law and foreign courts when interpreting the United States Constitution. If that's not lawless, if that's not undermining the Constitution and the rule of law, I don't know what is.
Levin basically wants Congress to have the power to override any decision of the SCOTUS by some super-majority, presumably 2/3. Anyone who has taken high school government, or the Naturalization exam probably knows that Congress can pass a bill to add or change a statute by a SIMPLE majority. And if the President malevolently sides with those evil justices, then Congress may override that by a 2/3 vote... hence the super majority. But of course Levin wasn't talking about the majority of the SCOTUS's workload (interpretation of statutes) but really those one or two cases each year that deal with constitutional issues with political overtones (think Affirmative Action and sex between consenting adults of the same sex).
This might shock some readers, especially those with a background in law, but apparently there is a process to change those rulings too. I hadn't heard of it myself until Levin inspired me to write to Congress to complain about this injustice. I was kindly referred to Article V of U.S. Constitution by an 18-year old staffer. He had apparently not passed his AP exams but felt vindicated. So as it turns out if 2/3 of both houses (super-majority) propose an amendment and 3/4 of the states (second super-majority) ratify said amendment, then it can overturn ANY decision of the SCOTUS. I wonder why Levin didn't consider this whopper. I like to think that he was just as clueless as I was, but then if I could do such research when thinking about his ideas, why couldn't he?
In truth I think believing too much in representative government is also not a good thing. Why bother with changing something when it's REALLY against the will of the people through the amendment process, when you can take a kind of a short cut? Plus his idea is bullshit since it assumes that Congress actually is occupied by representatives of the people rather than party hacks chosen to run in safe districts to further whatever interests they may have. (All details that the gentle masses don't need to be concerned about.)
I was actually more troubled by his justification for this idea.
LEVIN: Yes. But then again, let's look at the Supreme Court's record, at least three major cases. Slavery, it upheld it in 1856. Segregation, it imposed it and upheld it in 1896. The internment of Japanese-Americans, 1944. Why doesn't the Supreme Court get discredit for its wrong acts? Those are three massively horrific decisions by the Supreme Court.Earlier, Levin criticized the Court for:
COLMES: Look, you talk about the endorsing of terrorism by the Supreme Court. Bob Herbert today in The New York Times wrote about a guy named Rasul, who was among thousands of people rounded up on 9/11. He was actually distributing food and medical supplies to Afghanis on 9/11. And he was held in isolation. He said whatever he needed to say to get out of isolation. Doesn't the Constitution protect persons? And doesn't -- we don't automatic presume somebody is a terrorist because they're rounded up?Alright, so, he wants Congress to have power over the SCOTUS as the representative body, and the President to have power over the SCOTUS as Commander-in-Chief. Well, upon closer examination of his critique of the Court we see something peculiar.
LEVIN: A good question. First of all, I didn't say they endorsed terrorism. What I say is they don't seem to endorse the Constitution, which is why are they ruling on this in the first place? In the 1940s, there was a case involving foreign enemy combatants who were outside the United States, just as Rasul is, and the Supreme Court said, "You know what? You don't get to come to federal court. That's a commander-in- chief's job."
Suddenly, this summer, all of that changed. I don't want to hear Rasul's defense attorney crap, to be perfectly honest with you. Most of these guys are barbarians. We can put out a little bit of information about what he was saying and how he didn't mean what he was saying, but that's not the Supreme Court's decision. It's not Mark's decision or Alan Colmes' decision.
LEVIN: The Constitution leaves that with the executive branch.
COLMES: But when you say the Supreme Court endorses terrorism...
LEVIN: I didn't say it endorses terrorism.
COLMES: Or that it endorses terrorist rights, is what it says on the flap of your book.
LEVIN: It confers terrorists' rights -- it certainly does. Due process, right? We had a federal judge last week who ruled that the due process clause of the Fifth Amendment of the Constitution, that applies to us, now applies to Al Qaeda and Taliban detainees. Nobody believes that except the judges.
Dred Scott v. Sandford: This case is about standing. Specifically, the Court found that as non-citizens, slaves did not have standing in Federal Court (ironically, this means they had no standing for habeas petitions). CONGRESS (the representative body) had failed to extend citizenship to slaves or former slaves (and if I'm not mistaken even descendants of slaves). Same Congress also excluded the Chinese, among many other racist immigration/citizenship laws years later. But the 14th Amendment deals with that by proclaiming, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The SCOTUS applied this even to the children of Chinese immigrants despite an act of Congress. Hmm.
Plessy v. Ferguson: Hardly implemented segregation. What's ironic is that conservatives harp on the judicial activism in Brown v. Board of Ed, the case that overturned Plessy. Which is a great segue to the next topic...overturning bad decisions.
Rasul, meet Korematsu: In WWII, the SCOTUS deferred to the Pres because we were in a war. One result of that is the Korematsu decision which Levin holds against the Court, the other is the Eisentrager, which Levin criticises the Court for partially overturning in Rasul. And don't forget Dred Scott, denying access to Federal Courts CLEARLY has been a great idea in the history of our jurisprudence. Hmm. As I said, facts have no place when you have an agenda. But I think Hannity said that much more eloquently:
HANNITY: ... studying our history. What I like about what you do in the book, Mark, is you make it really readable and understandable for those people that aren't lawyers.
Some post-script random bull shit from Levin (personal favorite: arguing no right to privacy exists because you can't commit murder in your bedroom. Classic. I wonder if that question will ever show up on the LSAT):
HANNITY: There's a lack of accountability, too, because we're talking about lifelong appointments here. As we now go into this year, I think by every objective measure we're going to have an opening or two in the court in the next year. And this is a big battle here. Doesn't this come down to what the left cannot accomplish legislatively, what they can't accomplish at the ballot box, this is where they have put all of their resources, their energy? Explain.
LEVIN: Yes. The left -- present company excluded, but I believe it - - they are able to move their agenda forward through the unelected branch. That's why they are going to fight to the bitter end. They are going to continue their filibusters. Any Bush nominee that comes up, they are going to try and smear. It doesn't matter if they lose senators in red states over it. That's the one branch of government they are comfortable with. It's the one branch of government that, come one election or another, continues to press their agenda.