More discussion of Obama and the court

Here is a message/comment chain from my Facebook page in response to yesterday’s post on Obama and the court. I thought it was worth sharing here (w/out the names):

1. I think ost of the Warren Court decisions were just fine, but there were occasions when they did indeed overreach in the name of a greater notion of justice.

2. I think Obama is mainly still responding to the Citizen United campaign finance opinion when he warns about judicial activism. He still doesn’t have a majority on the Court, and he still does in Congress, so encouraging deference to legislative intent is still in his political self-interest. We’ll see if the rhetoric changes after mid-term … See Moreelections and the death or retirement of a conservative Justice.

I do agree with 1. that there was some overreaching judicial activism on the left. On criminal procedure for example. That being said, I’m confident Obama will nominate a liberal who he believes supports Roe v. Wade, affirmative action, and campaign finance reform.

3. Not to mention the ability of the feds to do things like the healthcare bill.

Me: I think, in the end, he will nominate a perfectly useful liberal judge in the Clinton-appointee mold. But I don’t think we should let him off the hook for using conservative rhetoric and playing to a conservative argument. It is a dangerous gambit, if it is only tactical, and much more troubling if it is philosophical.

I think we also have to be … See Morecareful about the Stevens replacement because anything other than a true liberal — someone to the left of Breyer — would push the court to the right. And let’s face it, he is not going to have a shot at replacing a conservative until his second term, if he gets one. The next justice to go will be Ginsberg, most likely, meaning he will be in a position to replace the three most liberal justices on the court on the day he was sworn in.

That makes appointing a true liberal justice imperative.

Plus, and I think this is key, the court is a co-equal branch. It is not to usurp the legislative role, but it has a responsibility to ensure that any action taken by the other two branches — or by the states — meets the guidelines set out in the Constitution and the amendments. That gives the court, I think, the responsibility to overrule the legislature when the legislature overreaches — a point that no one ever seems to talk about. If the judiciary can overreach, so can the other two branches, as we learned to the nation’s detriment during the Bush years.

As for the 60s-70s courts, I’m not sure which specific criminal procedure rulings you’re talking about. You’ll have to be more specific.

And so it goes. Any other thoughts?

Email me at grassroots at comcast dot net.

Doggie diaries: The story of Rosie and Sophie Just hanging in the backyard

We had the yard regraded and drainage installed to address a flooding problem that had been getting progressively worse since last summer.

As part of the project, we had some sod installed — which the dogs (Rosie pictured) view as a very comfortable outdoor rug.

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So much for the great liberal hope. Again.

There are only two explanations for what Barack Obama said this week about the Supreme Court: He believes that the court — and not just the current, rightwing incarnation, but the liberal court of the ’60s and ’70s — has been too activist in its approach, or he is attempting to defang the right as he moves to replace Justice John Paul Stevens.

Here is what he said on Air Force One on Wednesday about the court (I saw this initially on Glen Greenwald’s blog, but the quote is from the Atlanta Journal Constitution):

THE PRESIDENT: Well, I mean, here’s what I will say. It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically. And in the ’60s and ’70s, the feeling was, is that liberals were guilty of that kind of approach.

What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error. And I think rather than a notion of judicial restraint we should apply both to liberals and conservative jurists, what you’re seeing is arguments about original intent and other legal theories that end up giving judges an awful lot of power; in fact, sometimes more power than duly-elected representatives.

And so I’m not looking at this particular judicial nomination through that prism alone, but I think it is important for us to understand that judicial — the concept of judicial restraint cuts both ways. And the core understanding of judicial restraint is, is that generally speaking, we should presume that the democratic processes and laws that are produced by the House and the Senate and state legislatures, et cetera, that the administrative process that goes with it is afforded some deference as long as core constitutional values are observed.

Liberals need to read these comments closely. The president appears to be endorsing a very narrow view of the judiciary’s role, though it is possible he just chose his words without the requisite care. In any case, as Greenwald points out, the president should have been asked to explain what he meant and to offer examples of the kind of overreach he seems to be criticizing.

For liberals, this is important because the decisions made by the court in the 1960s and 1970s “form the bedrock of progressive legal thought regarding the Constitution and the Supreme Court,” and his comments are consistent with other cases in which he made a “typical effort to show how fair-minded he is by attacking the Dreaded Left.”

I’ve pointed this out before. Going after one’s base is foolish, but it is tried-and-true extablishment liberalism that dates back to the Clinton years, the willingness to sacrifice political principles to maintain some sort of legislative, electoral or public relations advantage. And it is something the president has proven himself adept at doing.

The problem, of course, is that doing so undercuts the very people who helped put him in office, which only contributes to the mix of apathy and anger out there that is moving us inexorably toward a political implosion. The scales used to address the big issues have been weighed down by a conservative thumb.

But that in and of itself is not the only criteria by which I’m making selections on judges.

Email me at grassroots at comcast dot net.

Drill, baby, drill — or, more accurately, boom, baby, burn

The explosion in the Gulf — along with the lost lives and the damage that it is doing the region’s economy — should be enough to get President Obama to a abandon his off-shore drilling plan. I said “should,” because it is not clear that anyone is ready to stand up to corporate American on the issue.

Email me at grassroots at comcast dot net.

Placing a cap on sanity

Property tax caps do not work. Ask the people in Colorado Springs who are doing without street lights. Hell, ask the people right here in New Jersey what happens when a cap is imposed, even when it is a rather loose 4 percent.

The Center on Budget and Policy Priorities, a liberal Washington think tank, sums up the problem pretty straightforwardly: Caps. CBPP says, “may hold down property taxes,” but “they are likely to impair local governments’ ability to provide education, public safety, and other services residents demand and need. They also are likely to make the local revenue system more regressive.”

Property tax caps do nothing to change the main drivers behind higher property taxes. They cannot slow the increase in the cost of health care or fuel, for example, which reflects forces outside of the control of local officials. Nor do they change the demand for local public services, such as quality K-12 education, public safety, and good roads.

There are ways of mitigating these problems — replacing property taxes with state funding, giving citizens a right to override caps at the ballot box, shifting revenue from property taxes to other sources — but they rarely are invoked and when they are tend to exacerbate the impact of the cap. (Richer communities can afford to override, while lower-income communities cannot; sales tax and use fees tend to hit lower-income residents hardest.)

Academic studies have found that in most cases, property tax limits have led not to a shrinkage in the public sector but instead to a shift to other revenue sources, such as state aid and fees. In places where the caps have had an effect, however, the outcome has been negative.

And yet, Gov. Chris Christie is still pushing this dubious notion, telling New Jersey mayors to expect his proposed 2.5 percent tax levy cap to gain passage (it has to be approved by the state Legislature and then by voters in November).

Christie said he will propose legislation next week to put a constitutional amendment instituting the cap on the November ballot. If legislators pass the ballot question and it’s approved by voters, municipalities will have to hold their property tax growth 2.5 percent a year unless voters overrule it by referendum. Under Christie’s proposal, if a town raises property taxes less than the capped level one year, it will be able to bank those savings and exceed the cap in future years if necessary.

New Jersey residents already have dysfunctional government, including too many different government entities and too great a reliance on property taxes. But there remains some flexibility in the system, unlike the travesty that California and Colorado governments have become. Do we really want to fix our problems by making them worse?

Email me at grassroots at comcast dot net.