"I have stated over and over again on this floor that I would . . . object and fight against any filibuster on a judge, whether it is somebody I opposed or supported . . ." -- Senator Leahy, Congressional Record, June 18, 1998

Other Democratic senators have had similar changes in belief: Joe Biden and Robert Byrd, Tom Harkin, Ted Kennedy, Joe Lieberman, Pat Leahy, Chuck Schumer and their erstwhile colleagues Lloyd Bentsen, and Tom Daschle have all vigorously opposed the use of the filibuster against judicial nominations. Mr. Schumer was for voting judicial nominations "up or down" without delay.

 

Mr. Leahy flatly opposed a filibuster against Clarence Thomas's Supreme Court nomination: "The president and the nominee and all Americans deserve an up-or-down vote." Mr. Harkin believed "the filibuster rules are unconstitutional," Mr. Daschle declared that "democracy means majority rule, not minority gridlock," and Mr. Kennedy that "senators who believe in fairness will not let the minority of the Senate deny [the nominee] his vote by the entire Senate."

 

But that was then, when Democrats controlled the Senate. Now, they are a frustrated minority and it is different. Mr. Leahy has voted against cloture to end filibusters 21 out of 26 times; Mr. Kennedy, 18 out of 23. Now all these Senators practice and defend the use of filibusters against judicial nominees.

The Constitution requires a two-thirds vote to override a presidential veto, pass a constitutional amendment, approve treaties or expel a member of Congress. But all it says about judges is that they are appointed by the president with "the Advice and Consent of the Senate." Absent a constitutional requirement for a supermajority, a majority vote is sufficient. The U.S. Supreme Court affirmed that principle in 1892.

"Wilson writes, "[n]o one wants to encourage or permit the use of racial epithets in the workplace." Well, I certainly don't want to encourage it, and I wouldn't permit it in my workplace (if I owned or managed a workplace), but I don't agree that it's wrong for the government to ever "permit" it. First, I can easily see circumstances where the use of racial epithets in the workplace, not directed at a particular party, would be privileged by the First Amendment. Moreover, current federal law requires a hostile environment claimant to prove a "severe and pervasive" climate of hostility. A singular use of a racial epithet by a coworker is almost certainly not sufficient to satisfy that standard (though there is a New Jersey case, decided under more expansive state law, that holds that a single use of racial epithet did create an actionable hostile enviroment.)"

A disinformation campaign has already been launched to depict judges who believe in following the written law as being "activist" conservatives, just like liberal activists.

 

Those who play this game of verbal equivalence can seldom, if ever, come up with concrete examples where conservative judges made rulings that went directly counter to what the written law says or who made rulings for which there is no written law.

"The damage that is done by judicial activism extends beyond the particular policies that happen to catch the fancy of judges. Judicial ad-libbing creates a large area of uncertainty, making the law a trap for honest people and a bonanza for the unscrupulous."

"[w]e are living in a world where words have lost their meaning. This is certainly not a new phenomenon. It seems to be an inevitable artifact of cultural disintegration. Thucydides lamented the great changes in language and life that succeeded the Pelopennesian War; Clarendon and Burke expressed similar concerns about the political transformations of their own time.

 

It is always a disorienting experience for a member of the old guard when the entire understanding of the old world is uprooted. As James Boyd White expresses it: "[I]n this world no one would see what he sees, respond as he responds, speak as he speaks,"1 and living in that world means surrender to the near certainty of central and fundamental changes within the self. "One cannot maintain forever one's language and judgment against the pressures of a world that works in different ways," for we are shaped by the world in which we live.

 

This is a fascinating subject which we do not have time to explore more thoroughly. Suffice it to say that this phenomenon accounts for much of the near hysterical tone of current political discourse.

 

Our problems, however, seem to go even deeper. It is not simply that the same words don't have the same meanings; in our lifetime, words are ceasing to have any meaning. The culture of the word is being extinguished by the culture of the camera. Politicians no longer have positions they have photo-ops. To be or not to be is no longer the question. The question is: how do you feel."

Just as suspected, the alleged "chili finger" at a San Jose Wendy's fast food restaurant was no more than a hoax. While questions regarding the severed digit are still being investigated, there are some questions not being asked, or at least, not in the open.

 

***

 

Tort reform will only get us so far. It is clear we've been in the midst of a societal decline that needs its own reform. We need to get back to a society that values morality and respect.

ANYONE still clinging to the notion that cam paign-finance reformers are interested in "clean government" solely for its own sake should take a look at Illinois — specifically a race for a state Supreme Court seat last year that turned into the most expensive judicial contest in U.S. history.

 

The race was a money magnet — with more than $9 million spent by the time the dust cleared. Why? Because tort lawyers from all over the country go to Illinois' Madison County to file lawsuits against deep-pocketed corporations. If Democrat Gordon Maag won the Supreme Court race, the trial-lawyer gravy train would probably keep on rollin'. If Republican Lloyd Karmeier won (he did), he was expected to start hitting the breaks (he has).

 

***

 

"I think they would like to cut anybody out of the debate who disagrees with their agenda," says Edward Murnane, the president of the Illinois Civil Justice League.

 

To bolster his case, he points to the liberal foundation funding behind the Illinois Campaign Reform Coalition, an umbrella group in the state lobbying for sweeping restrictions on political speech. That funding is detailed in another report just released by his group.

 

It turns out that the eight groups under the umbrella (ICPR, the Sunshine Project, the Citizen Advocacy Center, Protestants for the Common Good, the Better Government Association, Common Cause Illinois, Illinois Public Interest Research Group and the League of Women Voters of Illinois) have received about $3 million in grants from George Soros' Open Society Institute and the Joyce Foundation since 1997.

It's easy to want democracy for the Middle East. But what sort of democracy? Should American foreign policy focus on promoting elections, or on checks and balances? Is the crucial question how power is achieved? Or is it how power is exercised?

"I believe there is an important principle at stake," he said. "When senators filibuster a nominee who has a clear majority support, they are in effect trying to establish a 60-vote requirement for confirmation.

A prominent member of the Senate leadership recently described a Supreme Court justice as "a disgrace." An equally prominent member of the leadership of the House of Representatives on the other side of the political aisle has characterized another justice's approach to adjudication as "incredibly outrageous." These excoriations follow other examples of personalized attacks on members of the judiciary by senior political figures. So it is time to take a deep breath, step back, and inject a little perspective into the recent heated rhetoric about judges and the courts.

 

We might start by getting a firm grip on the reality that our independent judiciary is the most respected branch of our government, and the envy of the world.

 

***

 

But, absent lawlessness or corruption in the judiciary, which is astonishingly rare in this country, impeaching judges who render decisions we do not like is not the answer. Nor is the wholesale removal of jurisdiction from federal courts over such matters as prayer, abortion, or flag-burning. While Congress certainly has the constitutional power, indeed responsibility, to restrict the jurisdiction of the federal courts to ensure that judges decide only matters that are properly within their constitutional role and expertise, restricting the jurisdiction of courts in response to unpopular decisions is an overreaction that ill-serves the long-term interests of the nation. As much as we deplore incidents of bad judging, we are not necessarily better off with--and may dislike even more--adjudications made by presidents or this year's majority in Congress.

Olson's condemnation of recent personal attacks on judges is entirely sensible.  Harry Reid's several verbal assaults on Clarence Thomas were well beyond the pale and some criticism of the judiciary in the Schiavo affair was also inappropriate.

Olson also properly criticizes the confirmation process as part of the problem.  If the legislature and participating interest groups view judicial confirmation as an opportunity to take scorched earth stands on the political implications of judicial rulings, why shouldn't judges think and act politically.

But Olson doesn't offer much of a solution either.  Telling politicians to get a "grip" on reality is a nice start, but it won't take us very far.

We need a more fundamental change in our understanding of the judiciary and the way in which judges should work.  That new understanding should not only inform Congress in its judicial confirmations, but should also inform judges in their decisions and deportment.

Judges who view their role as policymakers open the door to the politicization of the judiciary.  Judges who view their role as neutral arbitrators of Constitutional principles have a greater claim to independence.

Fighting financial mismanagement and fraud throughout the agencies of the federal government is an urgent mission if we ever hope to rebalance the budget. The Office of Management and Budget recently found that the Medicare program made $21.7 billion in improper payments to doctors, hospitals and insurers in 2004. Medicaid, with its overlapping state and federal roles, also has rampant fraudulent claims. Unfortunately, the government's efforts at combating erroneous payments are pitifully ineffective, thus encouraging more fraud, fueling medical inflation, and ripping off tens of billions of dollars from taxpayers.

At this moment, it seems likely leviathan will continue to lumber along, picking up ballast and momentum, crushing everything in its path. Some things are apparent. Where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.

 

But what if anything does this have to do with law? Quite a lot, I think. In America, the national conversation will probably always include rhetoric about the rule of law. I have argued that collectivism was (and is) fundamentally incompatible with the vision that undergirded this country's founding.

 

The New Deal, however, inoculated the federal Constitution with a kind of underground collectivist mentality. The Constitution itself was transmuted into a significantly different document.

 

In his famous, all too famous, dissent in Lochner, Justice Holmes wrote that the "constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire."

 

Yes, one of the greatest (certainly one of the most quotable) jurists this nation has ever produced; but in this case, he was simply wrong. That Lochner dissent has troubled me — has annoyed me — for a long time and finally I understand why. It's because the framers did draft the Constitution with a surrounding sense of a particular polity in mind, one based on a definite conception of humanity.

 

In fact as Professor Richard Epstein has said, Holmes's contention is "not true of our [ ] [Constitution], which was organized upon very explicit principles of political theory." It could be characterized as a plan for humanity "after the fall."

"The overriding concern liberals say they have about Janice Rogers Brown is the unsubstantiated claim that she is out of the mainstream," notes Project 21 member Donald Scoggins. "If you look at her life and her achievements, she is well within what anyone could rationally consider mainstream. In fact, she stands out as someone who embodies American ideals."

 

Associate Justice Brown is the daughter of an Alabama sharecropper who began her education in a segregated school. Her family later moved to California where she earned a law degree and spent the last 25 years in public service. After serving in lower state courts, she was appointed to the California Supreme Court in 1996. She was nominated to the D.C. Circuit in July of 2003.

 

On the California Supreme Court, Brown wrote more majority opinions than any of her colleagues in 2001 and 2002. She was retained by California voters with 76 percent of the vote. In a letter signed by 18 of her judicial colleagues, she was described as "a superb judge" who is "extremely intelligent, keenly analytical and very hard-working" and a judge "who applies the law without favor, without bias and with an even hand."

Janice Rogers Brown of the California Supreme Court is equally conservative — she once called the New Deal a "socialist revolution." But however inflammatory her remarks outside the courtroom, Brown's legal opinions show a willingness to vote against conservative views, particularly in criminal cases, when justice demands it.

Will the First Amendment bar your lawsuit?

 

Definitely not. Virtually every court that has considered the matter has concluded that racist speech can create a hostile, abusive and discriminatory work environment, and that when it does so, a court can stop it. No court in recent decades has held that the First Amendment gives people the right to use speech to harass fellow workers on racial or religious grounds at work.

 

Just as a court can order a company to take down a "Whites Only" sign outside its employment office, even though this is "speech," so judges have consistently held that other words can constitute unlawful racial discrimination, and that when they do, the courts must step in and call a halt to such discrimination.

 

That is the established view under American law, supported by years of precedent. But it is not the view of Janice Rogers Brown, President Bush's nominee to the D.C. Circuit U.S. Court of Appeals.

 

This would be damning, if only it were true.

Beth Creighton, the lead plaintiff and a Portland civil rights attorney, said she was infuriated to find out she had to pay $1.25 for returning a late movie after Blockbuster launched it's "No More Late Fees" campaign in January.

"There are people out there who are not savvy enough or strong enough -- or crazy enough, I guess -- to take on this issue, and they're being injured by it," Creighton said. "My philosophy is to stand up for the little guy, be it in my professional life or personal life, and that's what I'm going to do."

In the summer of 2002, after months and months of reports of corporate malfeasance and facing a campaign season in which politicians were being associated with Ken Lay, Bernie Ebbers and the like, Congress passed a sweeping reform bill intended to improve corporate governance.

 

The political and corporate worlds, both eager to restore public confidence in their respective institutions, hailed the Sarbanes-Oxley Act as a cure-all.

 

* * *

 

I've learned two important lessons since coming to Congress. First, Congress simply doesn't work well when driven by crisis. Our hasty efforts to improve airport security after 9/11 gave us tens of thousands of new screeners who are now employees of the federal government but has yielded little in terms of improved passenger and baggage screening. . . .

 

Second, when hastily prepared legislation passes by an overwhelming margin, it is often not because it has been thoroughly vetted and has earned a consensus. I would argue that Sarbanes-Oxley, which passed the House of Representatives 423-3, was as much an attempt to politically inoculate Congress as it was an honest effort to improve corporate governance.

 

When I voted against it, I stated that the bill was so hastily crafted and overreaching that it was sure to create unintended consequences that could actually hamper economic growth. Tens of billions of dollars in compliance costs later, this has most certainly been the case.

The time has come for the Senate to reestablish that tradition [of majority vote on judicial nominations], to end these destructive judicial filibusters and to give all judicial nominees the up-or-down vote they deserve

Republican leaders count only two or three GOP senators who will vote against the efforts to end, by a straight majority vote, filibusters on confirmation of judicial nominations.

 

Sens. Olympia Snowe of Maine and Lincoln Chafee of Rhode Island will not support this move, and they are likely to be joined by Sen. John McCain of Arizona. That would mean 52 senators would go along with the parliamentary maneuver attempting to end filibusters on judges. Only 50 are needed.

"They're ahead of the power curve," Sen. John Thune, R-S.D., said of the orchestrated effort by Democrats and groups such as MoveOn.org and People for the American Way. "I think you'll see a greater, stepped-up message on part of the Republicans, to go on offense on this issues."

 

Senate Majority Leader Bill Frist, after vowing last fall to stop Democrats from blocking the most conservative of President Bush's nominees, will appear in a telecast later this month with leaders of social conservative groups.

“I have read the book, and I am impressed. Among other things, you address the transaction costs of litigation (attorney's fees, expenses, etc.), which is the white elephant in the middle of the living room which few people want to discuss."

Your suggestion of a fee shifting procedure whereby the current offer of judgment rule is modified to include attorney's fees, rather than just court costs, has a great deal of merit. I believe it is far superior than some of the alternative ideas that have been tried . . . .  Your proposal has the advantage of conforming judicial procedure, rather than adding another extra-judicial system, and thus deserves serious consideration.”

Senator's Ross' kind words are very much appreciated.  His description of the political effort behind Mississippi's 2003 tort reform legislation is available here. 

Comments from other early reviewers of Out of Balance should be forthcoming soon. 

If you would like to review Out of Balance, please drop me a line at jbw@jonathanbwilson.com. 

"The state's 227 school districts had classroom instruction spending percentages ranging from 35 percent to 83 percent in the 2003-04 school year, while the classroom spending ranged from 54 percent to 60.9 percent in the nine largest districts in Pima County. The statewide spending average was 58.6 percent, according to the state Auditor General's Office. The national average in the 2002 fiscal year was 61.5 percent.

 

Classroom dollars generally include teacher salaries and benefits, instructional supplies and aids, and activities such as field trips. Costs for administration, food services, support services, transportation and building operations and maintenance are excluded.

 

The Republicans said the mandate would make sure state education dollars are used to improve instruction without being diverted for administrators' salaries and other non-classroom costs"

"School districts across the state have been robbing Peter to pay Paul out of necessity. Now they're going to be required to do it by this ballot measure," said John Wright, president of the 30,000-teacher Arizona Education Association. "They're not funding the system. Moving money around in an underfunded system doesn't improve the system."

"is politically delicious because it unites parents, taxpayers and teachers while, he hopes, sowing dissension in the ranks of the teachers unions, which he considers the principal institutional impediment to improving primary and secondary education. . . .

 

Nationally, 61.5 percent of education operational budgets reach the classrooms. Why make a fuss about 3.5 percent? Because it amounts to $13 billion. Only four states (Utah, Tennessee, New York, Maine) spend at least 65 percent of their budgets in classrooms. Fifteen states spend less than 60 percent. The worst jurisdiction -- Washington, D.C., of course -- spends less than 50 percent."

It's been a busy season already for tort reform, as physicians in four states saw their governors recently sign legislation designed to help ease the burden of rising liability premiums.

Perhaps the outpouring of admiration for Pope John Paul II last week will at long last alert those at the helm of my political party — the Democratic Party — to a truth that has yet to sink in despite the whack to the head administered by last year's election: Cultural values count.

 

***

 

Government serves society, a much larger entity. And society, in turn, is structured and animated by a complex interaction of beliefs, values, symbols and socio-economic forces which, taken cumulatively, we describe as culture.

 

***

 

Today's Democratic Party leaders have apparently forgotten, however, that the social programs that came of age during the New Deal had their origins in Judeo-Christian tradition, even more than in secular humanism. Indeed, it might be argued that popes were as influential as politicians in shaping policy.

 

In 1891, Pope Leo XIII (an Italian count, for goodness sake) helped usher in the modern era of social democratic thinking with his encyclical Rerum Novarum, defending the rights of working people to organize themselves into unions and to achieve a living wage.

 

In 1906, a Catholic priest, John Augustine Ryan, took on the modern American industrial system in his pioneering "A Living Wage: Its Ethical and Economic Aspects," followed by "Distributive Justice: The Right and Wrong of Our Present Distribution of Wealth" (1916).

 

In 1931, Pope Pius XI (a librarian, as well as a champion Alpine mountaineer, for goodness sake) extended Ryan's teachings to the entire church in his encyclical Quadragesimo Anno.

 

In 1933, the pope named Ryan a monsignor, and a newly elected Franklin D. Roosevelt (a scion of the Anglo-Dutch Hudson River aristocracy, for goodness sake) turned increasingly to the social philosophy Ryan represented as he fashioned the policies and programs of the New Deal. Indeed, Ryan became popularly known as the Right Reverend New Dealer.

 

***

 

The Democratic Party, in short, made a powerful alliance with the culture of Ordinary America, including its religious values. True, the party's links to segregationist Dixiecrats caused problems — big problems. But it was two Southerners — Martin Luther King Jr. and Lyndon B. Johnson — who struck the most significant hammer blows against the injustice of that dependency.

 

But now the Democratic Party elite — the activists, the pundits, the big-bucks donors — have succeeded in pitting social democracy against the very values (one is tempted to say the very people) that gave rise to social democracy in the first place.

 

Baffled by such rejection, an ostracized faith community shows every sign of realigning itself politically.

Fail