The Widdershins

Activist Monday:  The Liberation of Lady Justice

Posted on: February 22, 2016

For those tuning in for the sustenance provided by MB, she is surfing atop an avalanche of work.  She will return next week, but for those who need a more immediate fix, this post shares more than a few genetic markers with her post from last Monday – There Went the Judge.Standing

With Justice Scalia’s death and Mitch McConnell’s recalcitrance toward his constitutional responsibility of “advice and consent” in the confirmation process of a new Associate Justice, we will hear lots of talk about a “constitutional crisis”.  Quite honestly, most of this clamor will come from those on “our” side of the issue – so let’s get something out-of-the-way.

The Republican abdication of their responsibilities is not a constitutional crisis – no more than a single off ramp is the most momentous, make-it-or-break-it, part of a cross-country trip.  On such a trip, there are many off ramps, one no more significant than the next – they are all part of the same journey.

The real constitutional crisis has been festering for the past thirty years.  The Right has successfully steered us on a journey where there is contempt, not just for government, but for the act of governance itself.  There is a general despisement for not just regulation, but for being regulated in any fashion.  There is an equally fanatical and fantastic notion that lawlessness will somehow breed spontaneous libertarian legality.  In furtherance of this inanity there is a toolbox of tricks for delegitimizing opponents as dishonest and immoral traitors to the Constitution.

This Court vacancy gives the country an opportunity to correct its course from a smoke and mirrors scheme of constitutional interpretation founded in 1980s political sloganeering – Scalia’s originalism and textualism – back to.  It is time to return to legal interpretation founded in a fact-based world.

In addition, there is the opportunity to once again bring dignity and civility to oral arguments unlike Scalia’s preference for an hour resembling acerbic Jerry Springer wannabes.  Finally, there’s every reason to believe the newly appointed Justice will respect the canons of judicial ethics meaning hunting and political trips with litigants are verboten.

Supreme CourtFortunately, we have two opportunities to save the Court and return it to the normalcy contemplated by the Framers.  The first is the “normal order” of a nomination by President Obama.  This opportunity depends upon Republicans being shamed into giving the nominee a confirmation hearing and a floor vote.  While karma has seen to it that Donald Trump is what the RNC deserves, I would be amazed if Mitch McConnell spontaneously grew a conscience.

The other opportunity is what most of us have been working toward for almost a decade now – the election of Hillary as President with pantsuit tails durable enough to retake the Senate.  Such a turn of events would allow McConnell to continue to stew in his brew of acerbic antagonism without fear of interruption.

This second turn of events would, in all likelihood, result in a more progressive appointment leading to the unceremonious euthanasia of at least seven miscreant legal monstrosities so adored by the oligarchs of the Right.  Here is a brief rundown:

Starting with Citizens United v. F.E.C., which amplified the role of money in politics by declaring money is speech (a career long project of the gaping maw of amorality calling itself Mitch McConnell); then there’s District of Columbia v. Heller, which miraculously found a personal Second Amendment right to keep firearms after just 230 years of examining the Constitution; Shelby County v. Holder, which struck down a key provision of the Voting Rights Act (that meddlesome process so antithetical to Conservative heterodoxy); Glossip v. Gross, which upheld a lethal-injection protocol used in executions (nothing a good vet couldn’t accomplish at a much more reasonable rate); Burwell v. Hobby Lobby, which allowed some corporations a religious exemption from a requirement to provide insurance coverage for contraception (if only you could macramé an I.U.D. Hobby Lobby would sell the kits);  Walmart Stores v. Dukes, which limited the availability of class actions, thereby, causing individual litigants to defy economics by incurring thousands of dollars in legal fees to recover nominal sums; and a personal favorite, the Chamber of Commerce wet dream known as AT&T Mobility v. Concepcion, which upheld ant-scribbled fine-print contracts requiring consumers to arbitrate their cases one-by-one especially after Walmart v. Duke.Sitting

If there were ever a call to action requiring activism, it is this turn of events.  Lady Justice has been a victim of abuse for the past 30 years.  Through activism and good fortune she will be freed from political sloganeering charlatans putting their thumbs on her scales.

Enjoy your day and take the conversation in any direction you might be interested in discussing.

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55 Responses to "Activist Monday:  The Liberation of Lady Justice"

Basically, McConnell and crew just take it as a given, that because Scalia was there for 30 years, only his clone should be considered. Have they suggested someone they think is suitable? How about Chief Justice Roy Moore from Alabama? He said he would refuse to enforce the Supreme Court’s ruling on gay marriage. He sounds right up their alley.

@1, Judge Roy Moore, ambulatory evidence that evolution is way overrated.

@3, That is a great article. What is the most important thing, NV was just like every other primary or caucus to date — turnout is down. The revolution doesn’t seem to hold much interest. In NV, turnout was down by 40K — Bernie’s vanity project is essentially hurting Democratic chance, he has common cause with Karl Rove. He needs to take a powder.

@1, LOL!

@5, Well said!

It’ll be interesting to see the effect of Spring Break on the primaries.

Prolix, awesome post!

I can’t stand The Hill, but the first sentence made me click. “A former CIA officer serving jail time for leaking documents to the NYT accused federal officials of setting a double standard for apparently refusing to aggressively prosecute Hillary Clinton.”

He says “so how should us regular citizens feel especially with heightened concerns about National security?” (He’s serving 3 1/2 years for leaking classified details about Iran’s nuclear program) Umm…dude?

http://thehill.com/policy/national-security/270271-cia-leaker-clinton-given-a-pass-for-emails

@7: I hardly ever read an article from The Hill. I’ve found that more and more of their pieces are just too slanted to the right.

I just got this over the transom — Jeffrey Toobin is always seen as a fair journalist — probably a little too conservative, but I have always respected his opinions about the Supreme Court. Later on tonight I might write up Scalia’s justification for the Heller decision. I saw it over the weekend by one of his best friends who converted to Catholicism late in life as an adult and had asked Scalia to be his godfather. That is where the story comes from.

Here’s the Toobin article:

http://www.newyorker.com/magazine/2016/02/29/antonin-scalia-looking-backward?mbid=nl_022216%20Daily%20remainder&CNDID=39495413&spMailingID=8573754&spUserID=MTE0NTc0NDcwMTIzS0&spJobID=862206036&spReportId=ODYyMjA2MDM2S0

@7, or all the people who say Petraeus was wrongly charged and he didn’t do anything Hillary didn’t do. Well here’s the difference — Petraeus took classified documents years before he started bumping uglies with his chickadee. He even cataloged his stolen documents in notebooks. He knew the documents were classified. He then started the horizontal mambo with Ms. Broadwell (is that not a perfect name for a mistress) and to keep her well-informed and “plugged in”, gave her his notebooks of classified Top Secret material. Then he took new classified documents and gave her. He allowed her to take the documents home. He allowed her to put them in her computer.

So the next time someone says, “Yeah, but Petraeus,” when talking about Hillary receiving emails that were classified after the fact just say to them, “Dude you are stupid.”

@8: Another fine piece of stuff from The Hill.

Why does that publication want to be the mouthpiece of the RNC?

http://thehill.com/blogs/ballot-box/presidential-races/270251-rnc-clintons-only-with-you-when-they-need-you

@11 As if POC will just flock to the Republicans after seeing that ad! Asshats.

I can see this happening if the Republicans don’t get their way:
http://xkcd.com/1607/

Oh my. With the primary one week from tomorrow, Georgia poll has:

Clinton 72%
Sanders 20%
GA has 102 delegates

http://politics.blog.ajc.com/2016/02/22/wsb-tv-poll-hillary-clinton-has-52-point-lead-in-georgia/

@14, according to a Tad Deviant, Bernie is closing strong.

@15 I know Hill is going to win big here, but a 52 point lead? I don’t know…

@14 – 16: But oh wouldn’t it be delicious and delightful. 🙂

Very good article here at The Daily Beast about why it will probably be Bernie who feels the burn.

I just looked at 538, and he has Hillary in the lead for every for every contest up through March 8th. All with high percentage points except Mass. And after March 8th, she is also way ahead, except those are too far out for his “polls-plus” evaluation. Can we be optimistic and say the tide had turned yet? I hope so. Anyway, thank you Nevada Dems and Hillary voters!

Can you believe that California’s Primary isn’t until bloody June? And there isn’t one in May?!? Last…for the Golden State! That makes me grumpy.

Fredster, that Daily Beast article is very good.

annie, I was looking at the 538 probabilities or chances for Hillary in the southern states and they all looked very, very good. I was surprised looking at Fl’s Dem primary. There it’s 49.9 Clinton and 25.8 Sanders. That really surprised me. Now it does say this for FL:

There’s no forecast for Florida yet because there isn’t enough recent polling.

Fredster, great minds think alike! 🙂

annie, I’ve always thought how it must suck to be a voter in CA, because people can be standing in line to vote when the election is called by the media. That’s just not right. (But CA is very important to the overall election)

@17 fredster, if it’s anywhere close to 72-20 at least we’re good for something here in GA. Until the general election rolls around…

@19 annie, Yes! We can be optimistic and say the tide has turned! THE TIDE HAS TURNED!!!! Hil-la-ree! Hil-la-ree! Hil-la-ree!

@9, Earlier today I said I would write this up. I just couldn’t figure a way to get it in the post. This comes from a lifelong friend of Scalia. I have no reason to doubt its truth and veracity.

Contrary to normal procedure, Scalia was assigned D.C. v. Heller the Second Amendment case. Roberts didn’t like assigning Scalia to important cases because he had a singular talent for pissing other Justices off.

Scalia was one of the five or six people who ballyhooed the “originalism/textualism” hoohah horse-hockey in the 1970s-80s. It is nothing more than a method of madness to conveniently circumvent stare decisis or existing/decided case law.

So in the Heller case he began his search for the original meaning of the words and phrases used in the Constitution in accordance with the generalized usage at the time in Revolutionary America.

Now this part comes from Scalia’s lifelong friend. Scalia decided Heller based upon the use of the word “the” before “right to bear arms”. His fantasy reasoning in keeping with his cockeyed political sloganeering of “originalism” was that since the Framers wrote “the right to bear arms” it meant that “right to bear arms” was something commonly understood in colonial times and therefore, incorporated with the common law from England.

Now mind you, from the first Chief Justice John Jay through 2008 when Scalia discovered the word “the” — 220 years or so — no one else had found a personal constitutional right to own guns. Until then! Until Scalia found the word “the”! Until he sanctioned the killing of 33K people a year based upon his finding the use of the definite article “the” ensured every American an unabridged right to own a handgun and unless the local jurisdiction acts, the right to own a 100+ round clip.

I like to believe in government. I like to believe in public servants. This is the kind of thing that is the lowest of base political pandering. This must be why there was the prayer plea during the funeral that “Scalia be judged mercifully.” I hope he is.

Prolix, that is mind blowing.

The “the”. Scalia always found a “the”. I imagine the rest of the court are breathing a sigh of relief they don’t have to put up with his pompous ass anymore. Except for Thomas, who is panicked that he will have to write his own opinions now. I can’t wait to see that.

From your link to NewYorker, I loved this:
“During the oral argument of a challenge to a California law that required, among other things, warning labels on violent video games, Justice Samuel Alito interrupted Scalia’s harangue of a lawyer by quipping, “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?.

IMO, Scalia became so full of himself, he finally exploded. Good. It’s about time.

Prolix, the Toobin piece was just devastating.

@GAgal: ROTFL! Can’t believe we came up with that same one at the same time. I’ll go ahead and delete that part of my comment.

I’m not really one to hold my peace just because some asshole died. When Jesse Helm died, I will never forget my mother did the spit across the room. She said ” He must have woke up this morning and remembered it was the 4th of July and held his breath until he died”. I laughed myself off the couch. I feel the same way for Scalia. Nothing lost. Hopefully, something gained.

@29, 30, 32, the story about “the” came from Judge Martin Feldman, a U.S. District Judge from New Orleans.

http://www.fox8live.com/story/31220375/new-orleans-judge-remembers-best-friend-antonin-scalia

@31, A piece so biting from Toobin is quite unusual. I can’t ever remember him writing something quite that caustic. I have to admit I like it when he gets his pantaloons in a wad.

I like the Toobin article. If anything, I thought he was a bit too restrained! 😉

Remember Roger Stone, who co-authored ‘The Clinton’s War on Women’ and has been hiring women from years ago who accused Bill Clinton of assault? We’ll no longer have to look at that ugly mug on CNN. Finally!

http://mediamatters.org/blog/2016/02/23/cnn-trump-supporter-roger-stone-will-no-longer/208751

@37, good riddance!

@37, evidently there are just some things just too costly in CNN becoming Faux-lite. Let’s hope MSNBC is capable of getting the message.

This is a piece from 2008 by Jeffrey Toobin about Stone. It’s a long read but it’s amazing how much Stone has had a hand into dirty politics over the years.

http://www.newyorker.com/magazine/2008/06/02/the-dirty-trickster

@39: Hell MSNBC would have to fire most of their on-air personalities. Notice I did not use the work “journalist”.

I got a voice mail from Chat. Her wonderful comcast internet service is out. My service has been spotty but we have very nasty, stormy weather in the area also.

CNN is having a Dem town hall but you know…meh. I think the same about the coverage of the Repub caucus. I’m just over the coverage of it.

From Sen. McTurtle: ‘There will not be action taken’ on an Obama Supreme Court pick

Thanks for the consistency here Mitch.

Just watched Hillary’s town hall. She did great as usual. She also looked fantastic in her “Hillary Blue” on that stage! I don’t know how she does it. She looks younger than me and she’s got more than ten years on me. I missed the Bernie segment. I probably wouldn’t have made it very long anyway.

@45: (sigh) I just didn’t want to watch it because I know however well she did, the talking putzes tomorrow will completely spin it another way.

Example: I caught part of morningschmoe this a.m. and #socklessdeadintern and #drunkmika were talking about how it appears that Sanders is not connecting well with A.A. voters (in S.C.?). Anyway they go on and on about how all Bernie has done for 40 years is to fight inequality, blah, blah, blah. I thought “What the fuck do you think Hillary Clinton has been doing????” 👿 Little boy Willie Geist and plagiarist Barnacle were sitting there nodding their heads in agreement so everyone was following their scripts.

I’m so glad this stuff is becoming soooo public. It completely destroys their credibility if they ever had any.

http://mediamatters.org/blog/2016/02/22/8-things-trump-and-morning-joe-hosts-discussed/208731

Meeeka is doing a full one hour interview with Trump’s wife on Morning Joe tomorrow. They just don’t care. Surely, CNN’s New Day can getting higher ratings than them.

I watched CNN a few minutes after the town hall. Smerconish was an a-hole. Axlerod and a woman pundit (don’t know her name) both said Hillary really connected with her questioners and the audience and Sanders did not. A young woman Sanders supporter asked about college loans. They both agreed that Hillary’s answer was so good and detailed it seemed she knew more about the young woman’s loan than she knew herself. They also said that Hillary may have just changed the woman’s mind about voting for Sanders.

Even Van Jones criticized Bernie for spending his time talking about the speech transcripts. He said NOBODY CARES except Bernie and his supporters. Jones said Bernie should have spent that time talking about what’s important to SC and especially the AA community.

Paul Begala, of course, had positive things to say about Hillary. So, not too bad. It was kinda refreshing for once.

I wonder if Ben Carson will drop out if Jeb! ends up with more delegates than him tonight.

@49: Ouuu! Interesting!!

@47: Thanks for the heads up. I wonder if Mika will have her morning pick-me-up before?

GAga, that word had me thrown for a loop but I’m glad that Savage did point out Sanders’ earlier position on gay marriage. Wonder how his supporters explain that one?

The Rude Pundit has a good one up on his site about the Senate Repubs and the vacancy with the Supremes.

Uppity Woman had this on her site and in a tweet.

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