Why We Must Stay & Why We Must Win

Only a few short weeks after urging her caucus to vote against Congressman John Murtha’s plan to withdraw from Iraq, House Minority Leader Nancy Pelosi turned around and endorsed that plan last week. "We should follow the lead of Congressman John Murtha, who has put forth a plan to make America safer, to make our military stronger, and to make Iraq more stable."

With all due respect to Rep. Pelosi and Congressman Murtha, how in the world would abandoning Iraq at this juncture make America stronger and safer and Iraq more stable? How would admitting defeat in the central front in the war against Islamo-fascism in any way accomplish any of these?

Surrender in Iraq would embolden the bin Ladens and Zarqawis, as well as their radical brethren, to extend their reach far beyond Iraq’s borders. There would be an immediate elevation in operations against the United States throughout the world and an invigorated insurgency within Afghanistan would be one of the most obvious and prominent examples of this.

Iraq itself would immediately degenerate into a haven and base for al-Qaeda to launch operations throughout the region and the world. Iraq’s still faceless and fledgling government would be indisposed to combat this and the country would fall into anarchic chaos.

Moreover, America’s foreign enemies and rivals—China, Russia, North Korea, Iran—are closely surveying our actions in Iraq. If we remain until victory is achieved we will demonstrate a strength and resolve they will be hesitant to challenge in the future. If we leave, the opposite will be true. The United States will look increasingly weak and vulnerable at a time when China and even India are burgeoning and asserting themselves increasingly more on the geopolitical stage.

An exodus from Iraq would also shatter all the progress that has been made, both within Iraq and throughout the Middle East.

Iraqis have turned out by the millions, under the shroud of violence and the threat of death, to elect a government to write a constitution and then to ratify that constitution. In little over a week they will go to the polls for the third time this year to elect the new faces that will makeup Iraq’s new constitutional and democratic government.

The trademarks of a democratic society are already there: a free and vibrant press, an independent judiciary, a strong bill of rights. Roads, hospitals, and schools have been and are currently being built.

The Iraqi military grows stronger and more competent everyday. Iraqi forces fight side by side with our own troops and some are even able to operate independently. In his editorial of last week Sen. Joseph Lieberman pointed out that the "Sixth Infantry Division of the Iraqi Security Forces now controls and polices more than one-third of Baghdad on it’s own."

The birth and spread of democracy in Iraq has had repercussions throughout the broader Middle East. Saudi Arabia has held elections at the municipal and provincial levels. Egypt held it’s first multi-party elections earlier this fall. Libya has abandoned it’s nuclear weapons program. Afghanistan has elected a permanent government. Syria has left Lebanon and is increasingly isolated.

None of this progress would have been possible were it not for America’s actions in Iraq, and were America to leave it would all be in jeopardy. Democrats in the region would become isolated. Arabian autocrats and dictators would no longer be under pressure and the prevailing air of democracy would once again be replaced by the stench of despotism and oppression. All momentum would be reversed.

The progress of democracy has only just begun in the Middle East, and there is still much progress to be made. To leave now would set this movement back decades, if not more.

American leftists and their Democratic cohorts in congress often speak of the supposed parallels that exist between Iraq and Vietnam. Well if the United States were to leave Iraq prematurely we would be replicating the same tragedy of Vietnam.

In the twilight of America’s involvement in Vietnam the North Vietnamese, like the insurgency of today, had been mostly defeated. The North’s invasion of the South in 1972, designed to crush public support for the war within America, had been crushed by the South, who had fought bravely with the support of American forces, also like the Iraqi forces of today. On January 23, 1973 the North had even signed an agreement with America ending the war.

However American forces were withdrawn prematurely and congress cut off support for the Southern government. Unable to support themselves, Saigon fell shortly thereafter.

The tragedy of Vietnam was not that nearly sixty thousand Americans died, it was that nearly sixty thousand Americans died for nothing simply because the nation’s political leaders failed to support the people and the government those men had died for the benefit of.

To retreat from Iraq would be to replicate this same tragedy. It would amount to a betrayal of the over two-thousand servicemen and women who have given their lives and the thousands of others who have been injured. These men and women have sacrificed their everything so that Iraq may be free and America may be safer. Should we leave Iraq now they will have died in vain. They will have demonstrated "the last full measure of devotion" for nothing because the country they fought and died for shamefully lacked the courage to honor their sacrifice by finishing the job they had died to carry out.

May we all pray that day never comes, that America will honor her fallen sons and daughters as well as the commitment we have made to the Iraqi people by seeing the task through until the task is done.

We must stay and we must win. The costs of doing otherwise are simply too tragic to bear.

Hat Tip: Victor Davis Hanson, Sen. John Kyl, James Q. Wilson

Sen. McCain & the '08 Election

Sen. John McCain is a political rock star. His penchant for speaking his mind regardless of whether he is toeing the party line or not has endeared him to the national media and the American people. Some might call it shooting from the hip while others may describe it as speaking candidly. Either way his straight-talk is something that clearly resonates with and appeals to the American public.

That Sen. McCain is a virtual lock to win the general election in ‘08 should he indeed run is almost beyond dispute, no matter who the Democratic nominee might be. Sen. McCain appeals to people from all sides of the aisle, and if public perception of the U.S. effort in Iraq continues to remain negative (perception and reality are two different entities in this case) Sen. McCain would be the ideal candidate.

Ross Douthat aptly points out that "when Americans sour on a military conflict, they don’t usually elect outspoken doves—they elect politicians with hawkish credentials who insist they’ll bring the war to a successful conclusion." Sen. McCain fits this mold perfectly—his criticism of the post-war management yet steadfast support of the general war effort gives him this. More on this later.

To ever reach the general election however Sen. McCain will need to earn the support of his own party. Though he is loved by those on the left and center, the right views him tepidly. He has frustrated conservatives and Republicans in the past for a host of reasons. He co-sponsored the McCain-Feingold campaign finance reform bill in 2002, a bill which raised serious First Amendment Concerns. His leadership in the "Gang of Fourteen" deal last spring angered many conservatives anxious to end senate filibusters of President Bush's judicial nominees.

To be fair, the compromise has led to the up-or-down vote and eventual confirmation of many qualified jurists. Nominees such as Priscilla Owen, Janice Rodgers Brown, and William Pryor, having been previously filibustered, now sit on the bench as a result of the compromise.

To be the nominee in ‘08 Sen. McCain will need Republican primary voters to vote strategically. If Republicans fear the Democratic nominee will win the general election Sen. McCain’s stock will soar. The only question is if Republicans will care more about philosophical and ideological purity or winning.

Sen. McCain’s main objective from this point forward, if he is indeed running, is to diminish as much as possible this dilemma. In other words, the less Republicans feel like they are compromising philosophical values for political strategy if and when they cast their vote for Sen. McCain the better. He needs conservatives to be comfortable with him, to view him as more than just the candidate of last resort, as one of them.

If the senator fails to become this he will be a servant of circumstance, his fate resting in areas beyond his control. He will need several dominos to fall into place. The country would have to be dissatisfied with Republicans and at least hospitable to Democrats(the populace is dissatisfied with both parties right now). The GOP field will have to be weak, or perceived to be, and one candidate will have to be steam-rolling through the Democratic primaries, one deemed unstoppable by national Republicans. The national mood will have to be dour and the electoral field conducive to a Democratic victory—i.e. a sluggish economy, trouble in Iraq, Bush fatigue, etc.

The dominos may very well fall into place perfectly like this, but they just as easily may not. Basing one’s presidential aspirations on a series of if’s is certainly not the way to go.

I’m sure Sen. McCain understands this. Just last week he told AP that the Republican party must highlight "progress in Iraq" as well as develop a "comprehensive energy package" and "stop this profligate spending"---words conservatives and Republicans love to hear.

National Republicans and conservatives are frustrated with Washington Republicans as much as the broader American public, especially over shameless federal spending. Come ‘08 they will be looking for the candidate who will promise fiscal discipline and victory in Iraq, as well as nominate constitutionalists to the bench and shore up the Mexican border.

To gain Republicans’ confidence and their nomination though will require much more than paid lip service on these issues. Sen. McCain’s record in the senate will count just as much as his stump speech rhetoric.

On the issue of fiscal responsibility Sen. McCain does have some credibility. He supported a recent amendment sponsored by Sen. Tom Coburn of Oklahoma that would have transferred federal funds from the "Bridge to Nowhere" in Alaska to more important projects along the Gulf Coast. In addition, Sen. McCain has received an 88% rating from the Council for Citizens Against Government Waste.

His obstinance on cutting taxes could prove to be a sticking point however. He has chastised the president and Republicans for cutting taxes in times of war, an unpopular position within a pro-tax cut, pro-growth party. Whether or not he plans to cut taxes or even keep them at current levels is a question that is sure to pop up often on the primary campaign trail.

No one can question Sen. McCain's determination and willingness to stay in Iraq for as long as necessary. He has criticized some of the administration’s post-war management it is true, but his support for the general effort has never wavered and cannot be questioned:

"America's first goal in Iraq is not to withdraw troops, but to win the war. All other policy decisions we make should support, and be subordinate to, the successful completion of our mission. Morality, national security and the honor our fallen deserve all compel us to see our mission in Iraq through to victory."

Critiquing decisions made and strategy employed in Iraq’s post-war management is an entirely legitimate and healthy exercise. I highly doubt conservatives would find Sen. McCain’s call for more troops over there objectionable anyway.

Sen. McCain’s judicial philosophy and the type of judge he would look for if he were president is unclear. For obvious reasons it is impossible to tell what kind of judge he would nominate until he is actually in a position to do so. This issue too will pop up frequently throughout the primaries.

Another liability for the senator may be his border proposal. Republicans are demanding stricter security along the U.S.-Mexican border, the senator’s proposal focuses more on dealing with illegal aliens already in the country as opposed to preventing more from entering. I endorsed the senator’s idea, but concerns that it doesn’t adequately address border security are legitimate.

Whether Sen. McCain is able to overcome this liability and others come Iowa and New Hampshire is the million dollar question. He would be a strong and almost unbeatable general election candidate—any Democrat would be hard-pressed to overcome his across-the-aisle appeal and sheer integrity.

Getting his fellow Republicans to give him their nomination will be the test. Due to growing public concern over Iraq and perceived Republican corruption in congress many analysts believe Sen. McCain’s stock is rising among conservatives and Republicans. Maybe, maybe not. If so, and it is these reasons which are motivating a change of heart, than it is a result of the strategic motivations I highlighted earlier. He is only the pragmatic political choice, not the one whom inspires or captures the imaginations of Republicans.

Time will tell if he can change this.

Extra Hat Tip: Tom Bevan

An Added Focus

The president delivered a speech yesterday regarding illegal immigration and the U.S.-Mexican border. What he offered was not a redaction of his previous plan but a new focus to precede that plan.

Conservatives had opposed his initial plan of creating a guest-worker program not because they necessarily disagreed with the concept, but because the president’s plan ended there. Absent was any mention of shoring up the border to prevent illegal aliens from coming into the country in the first place. A guest-worker program may be the way to go, but before you can create new laws and programs you must enforce the existing ones, making sure that we do a better job of preventing illegal aliens from cutting in line in front of those who come here legally.

Moreover, a guest-worker program does little if anything to address the grave national security threat that arises from having poor border enforcement. A guest-worker program is not going to stop a member of al-Qaeda or someone else interested in harming the United States from crossing the border illegally and undocumented. Only a strong border enforcement will.

Hopefully the president now understands this and is willing to push for it with congress.

The Alito Application

There has been a small controversy over comments Supreme Court nominee Samuel Alito made in a 1985 application for a position in the Reagan Justice Department, a memo in which he essentially said that he was proud to have advocated legal positions which held that the constitution did not permit racial quotas or protect abortion. Senate Democrats were naturally concerned over such a revelation and quizzed Judge Alito as a result. His reported response was that he wrote those comments twenty years ago while applying for a legal advocacy position in a conservative administration. Moreover, he pointed out that he is a judge now and the personal views he expressed then carry no relevance in his current role as a judge.

This response is entirely legitimate and correct, and Democrats would do well to remember the difference between advocate and judge as the confirmation process progresses. All of this aside however Judge Alito was entirely correct in ‘85—the constitution does not protect abortion. What it does protect is the right for every state and the people therein to resolve the issue of abortion, and most other issues for that matter, through the democratic process. The constitution does not make substantive judgments on issues, it provides the framework and protects the right of the people to make the substantive judgments themselves.

Democrats will undoubtedly try to hold the fact that Judge Alito recognizes this against him. To counteract this a sustained and vigorous rebuttal from conservatives will be required.

Cross-posted @ Respectfully Republican

Veterans' Day

A warm thank you to all of our veterans who have worn the uniform and fought under the American flag. I cannot possibly begin to articulate all the gratitude I and every other patriotic American feel on this day. But I can say that we as a nation are all completely aware of the fact that if it weren’t for the brave there would be no land of the free. Thank you once again and God Bless each and every one of you.

The Soldier

It is the soldier, not the reporter, who has given us freedom of the press.

It is the soldier, not the poet, who has given us freedom of speech.

It is the soldier, not the campus organizer, who has given us the freedom to demonstrate.

It is the soldier, not the lawyer, who has given us the right to a fair trial.

It is the soldier, who salutes the flag, who serves under the flag, and whose coffin is draped by the flag, who allows the protester to abuse and burn the flag.

By Charles M. Province

The '05 Elections

The returns are in from yesterday’s election and everything seems to have gone as expected. Mayor Bloomberg won big in Gotham, Sen. Corzine won in New Jersey, Kaine won in the Old Dominion state, and the constitutional ban on gay marriage passed in Texas.

Presumably Democrats will present the gubernatorial victories of Corzine and Kaine as harbingers of more Democratic victories to come in ‘06. Perhaps they will be right, but I hardly see how these results foreshadow such an outcome. Sen. Corzine won in New Jersey because he is an established Democrat in an established Democratic state. Kaine was able to ride the coat-tails of the ever-popular current governor, Mark Warner, whom Kaine served under as lieutenant governor the past four years. Moreover, these victories were simple holds, not pick-ups. Democrats control no more state houses today than they did yesterday.

It is entirely possible that Democrats will enjoy substantial gains in next year’s mid-terms. Republicans are, for various reasons, certainly ripe for defeat. They spend too much, they haven’t addressed the border, we have heard very little about making the tax cuts permanent, and it seems to be business as usual in Washington, which Republicans were supposed to change when they were given control of congress in ‘94.

For the Democrats to capitalize on this however they will need to find some strong leadership and an agenda palatable to the American people. They don’t have either right now, and in fact are just as unpopular as Republicans are. All the Democrats have to offer now is opposition and outright hatred for Republicans and President Bush. That is nothing, and as the Democrats have learned in the past two elections you can’t beat something with nothing. The makeup of congress will change very little unless Democrats correct this.

Twenty-Five Years Ago

It was only twenty-five years ago today that America picked itself up from the ashes and sent Ronald Reagan to the White House. As a result the Cold War has been won, taxes are lower, and America believes in itself once again.

Good But Not Good Enough

The Senate took a step in the right direction yesterday by passing a spending reduction bill amounting to $36 billion. It was only a step however, and a very small step at that. Compared to the sheer size of the federal budget yesterday's cuts were fairly small, and if not followed by further cuts in the future will do little to advance fiscal responsibility within the federal government.

Moreover, even in a bill designed to cut spending Washington lawmakers couldn’t help but throw in a few token pieces of pork. For example, the bill provides $3 billion in federal funds to "subsidize television converter boxes for an upcoming changeover to digital broadcasts." Seriously. The bill may reduce $36 billion in federal spending but in total it introduces other new spending totaling $35 billion. It has gotten so pathetic that even when congress sets out to cut spending it only ends up finding new ways to spend more.

Slight cuts are certainly welcome, but federal spending is still out of control and cutting bits and pieces of spending here and there only to offset those cuts with increased spending elsewhere is going to do very little to solve the federal government’s fiscal challenges. What is needed is a comprehensive budget-reduction effort that will redo and reduce the federal budget from top to bottom. Republicans have been in the majority for over eleven years now and the fact that this has not been accomplished yet should shame every Republican lawmaker into action; serious action that goes much farther than the Senate went yesterday.

That Didn't Take Long...

Sen. Barbara Boxer (D-CA) stated in an interview today on MSNBC at around 12:25 P.T. that Judge Alito would, and I paraphrase, force a woman to consult her husband before receiving an abortion even if she feared him. Sen. Boxer was of course referring to Judge Alito’s dissent in Planned Parenthood v. Casey.

Either willfully or out of ignorance, Sen. Boxer completely distorted not only Judge Alito’s opinion but the Pennsylvania law in question in the case. As Patterico pointed out yesterday in his review of Judge Alito’s dissent, the law in question did not force a married woman to consult her husband if she "ha[d] reason to believe that notification is likely to result in the infliction of injury upon her." Judge Alito acknowledged and cited this in his dissent. Further, all that was required was the woman’s uncorroborated assertion to this effect for her to be able to avoid the requirement. Quite the opposite of Sen. Boxer’s false statement.

Judge Alito’s nomination is only hours old and already Senate Democrats are not only distorting the truth but spreading lies. Unfortunately, Sen. Boxer’s statement is likely only a foretaste of the many distortions to come from her and members of her caucus throughout the nomination process. These tactics do the nominee, the process, the judiciary, and the nation a great disservice and hopefully enough senators from both sides will see fit to rise above them.

Cross-posted @ Respectfully Republican

Announcement Today?

The Washington Post is reporting that the president will likely announce his next Supreme Court nominee today, October 31. The possible nominees are Judge Samuel Alito of the Third Circuit, Judge J. Michael Luttig of the Fourth Circuit, and Judge Alice Batchelder of the Sixth Circuit. Do not be surprised however if the nominee is someone whose name has not been circulating through speculative circles.

If you had asked me who my favorite would have been yesterday I would have told you Judge Luttig with Judge Alito as a close second. Erick Erickson has commented however that there are concerns within some circles that Judge Luttig might possibly "grow in office", the infamous description the media uses for judges and politicians who have grown more liberal and less conservative while in office. I was surprised to learn this; Judge Luttig has had an extensive tenure on the federal bench with a consistent originalist/textualist record. Since Justice O’Connor announced her retirement last July I had favored Judge Luttig precisely because of the assumption that he was the least likely to change his spots if he were to become Justice Luttig.

If however there are legitimate concerns that Judge Luttig might indeed change over time once on the Court than Judge Alito should be the choice, as indications are that he very well might be. Judge Alito is a jurist of the deepest humility and knowledge of the constitution and his practice of judicial restraint is exactly the type of jurisprudence the Supreme Court sorely lacks at the moment.

Irregardless, the three possible nominees all have distinguished records on the bench and I'm sure all three will garner the widespread support of national conservatives that the Miers nomination failed to. Though there is little doubt that Democrats will fight tooth-and-nail against the nominee, whomever it is (they would have done that to Ms. Miers as well if conservatives hadn’t done their jobs for them), I'll hold off on commenting on the political dynamics of the nomination and confirmation process until the actual nominee is announced. I’ll simply say that any one of the three would be an excellent choice and will attract the type of overwhelming conservative support requisite in getting that nominee confirmed and on the Supreme Court.

Moving Forward

The balance of the conservative movement has gotten it’s way and the Miers nomination is a thing of the past. I’ve already shared my thoughts on the subject, in regards to both conservative reaction to and treatment of her and the White House’s handling of her nomination. In the interest of brevity I’ll avoid any repetition of these views and simply say that though I disagreed with many of my fellow conservatives’ opposition to her I hope we can now move forward and create the impetus and momentum needed to accomplish all the aspects of our agenda that remain unaccomplished.

There is still much to be done. Federal spending is out of control and substantial cuts are needed. The U.S.-Mexican border has been neglected for far too long and the border problem is in dire need of attention. The tax-code is too complex and is a burden on the economy. At the very least the code should be dramatically simplified.

The same goes for Social Security, which will be in serious trouble in the not too distant future. To help alleviate the looming crisis congress should stop spending the annual surplus and return the money in the form of personal savings accounts back to whom it belongs—the people. Though the accounts won’t look at all like those the president proposed they will go a long ways towards permanently fixing Social Security once and for all.

None of this is possible however without national conservatives supporting the president and pressuring their representatives in congress to get things done. The Miers debacle was a bitter and divisive affair and now that it is over we should all put the past month or so behind us and move forward. Too much still needs to be done to dwell on any hurt feelings or old scars; it’s time to let bygones be bygones and focus on the next nomination and the yet to be enacted Bush agenda.

NOTE: Indications are that the next nominee might be Judge Samuel Alito of the Third Circuit or Judge J. Michael Luttig of the Fourth Circuit. The internet chatter has been leaning in Alito’s direction. Either man would be a great choice and a nominee whom conservatives could coalesce around.

Cross-Posted @ Respectfully Republican

Straight From CENTCOM

I received an e-mail from First Lieutenant Brian Anderson of U.S. Central Command today asking me to link to a CENTCOM press release regarding the story being put out about bodies being burned in Afghanistan. I'll let the press release speak for itself but Lt. Anderson made it clear in the e-mail that CENTCOM does not condone such activity. Here is the link to the press release:

http://www.centcom.mil/CENTCOMNews/News_Release.asp?NewsRelease=20051071.txt

A Pox On Both Your Houses

Blogging on Redstate.org in regards to the Miers nomination Pejman Yousefzadeh emphatically stated that "the White House has thoroughly botched the mechanics of her [Ms. Mier’s] nomination". This sentiment is widely held throughout the country and in many ways it is correct.

The White House’s attempts at propping up the nominee have been weak and ineffective. We have heard little, if anything about Ms. Mier’s work in the White House the past four and a half years, only the constant recitation of some of her firsts in Texas and the fact that she is a devout evangelical Christian. All interesting facts to know but otherwise irrelevant to her judicial temperament or ability.

It has also slipped out that Ms. Miers really wasn’t the first choice but the replacement for the nominee who opted out at the last minute. Such a revelation can work in no way except to the detriment of Ms. Miers confirmation prospects and her credibility should she be confirmed. The last thing she needs through this whole ordeal is the label of "second choice" hanging over her head like a dark storm cloud.

Equally at fault though have been national conservatives. They have opposed Ms. Miers nomination from the start, rising in righteous indignation with the certainty that they have once again been betrayed by a Republican president. In fact, the tone and volume of conservative reaction has been such that one can sense conservatives were just waiting to be betrayed and are now indulging themselves in self-pity now that their expectations have come to fruition.

This reaction has been knee-jerk. Maybe Ms. Miers will be a terrible disappointment; another O’Connor perhaps. But at the very least she deserves a chance to prove herself, both in her hearings and once she reaches the Supreme Court. In the interest of fairness conservatives should cease this gnashing of teeth for at least five minutes and wait to pass judgment.

The White House has done Ms. Miers few favors since her nomination, but the conservative movement has convicted her a failure in the court of public opinion without the benefit of a fair trial. Ms. Miers has been done a great inservice by all involved in the process.

Iraq Votes

The vote seemed to go fairly smoothly today. There was some scattered instances of violence but not nearly as much as was previously expected or feared, much like the election last January. Turnout was high as well, estimated at or a little over sixty percent.

Indications are that turnout was also high within the Sunni provinces, not at all like last January’s election. Some might fear that high Sunni turnout bodes poorly for the constitution’s chances of ratification. I tend to agree with John Hinderaker of Powerline however that the constitution will be ratified regardless and that Sunni participation in the democratic process should be welcomed and viewed as a positive development. Remember, Sunnis were boycotting the process not too long ago; Sunni involvement in Iraq’s infant democracy is a sign of progress. They now realize the train is leaving the station and they better get on board; good news for Iraq and bad news for the terrorist "insurgency" within that country.

History Repeats Itself

Mort Kondracke pointed out during the panel portion of today’s Special Report W/ Brit Hume that the constitution Iraqis will go to the polls to ratify tomorrow is, in a way, incomplete. The negotiation process has been tricky and contentious between Iraq’s sectarian groups and only this week was a compromise reached between the Sunnis and the Shias and Kurds. Still, a few of the most tricky issues were reportedly put off to the side for the time being, with promises that these issues will be dealt with through the amendment process should the constitution be ratified and the permanent parliament comes into session. In this regard Mr. Kondracke is correct.

It deserves mentioning however that the United States went through a nearly identical situation when writing and ratifying our constitution. A handful of states were wary of the strong centralized government that a new constitution would install. The concern was that such a government would go on to violate individual rights in the same manner King George III and parliament had done prior to the revolutionary war. To placate these concerns leading proponents of the constitution promised that a bill of rights would be ratified in the first congress in return for those states’ support.

So yes the Iraqi constitution is "incomplete", but so was ours. The important thing is that Iraq’s varying factions have reached consensus and agreement and Iraq is on the cusp of ratifying a constitution that will create a permanent democratic government.

Gonzales v. Oregon

The Supreme Court heard oral arguments Wednesday in the case of Gonzales v. Oregon, sure to be one of the most important cases the new Roberts Court will deal with in it’s first term. The question presented is whether the federal government has the authority to preempt the state of Oregon’s assisted suicide law under the Controlled Substances Act. More specifically, can the Justice Department prevent physicians within the state of Oregon from prescribing certain drugs banned under the CSA to terminally ill patients?

The short and simple answer to this question is no, the federal government cannot preempt the Oregon law. Under the Tenth Amendment Oregon can pass and enforce just about any law that it and it’s residents desire.

This does not mean however that the state action in this case is immune from federal influence or interference. If a doctor prescribes a drug that is banned under the CSA, and is or has been in the interstate commercial market, the federal government has the power to step in and prevent that drug from being prescribed and used. In other words, the federal government may act so long as it’s action is a legitimate and valid means in achieving it’s legitimate, constitutionally-authorized end, which in this regard is regulating interstate commerce.

The federal government’s reach and authority ends here though. If the Oregon law in question were to permit doctors to prescribe non-CSA banned drugs and/or those drugs are not tangibly interstate nor commercial----in terms of their cultivation, transport, and consumption----than the federal government has no reach or authority in the matter. Put simply, the federal government cannot substantively prevent Oregon from legalizing doctor-assisted suicide within the state. What it can do, under authority of the Commerce Clause, is prohibit certain drugs from being prescribed for the purpose of assisted-suicide provided those drugs are a tangible aspect of the interstate, commercial drug market. Absent this, the federal government has no leg on which to stand.

The Miers Nomination

Conservatives are panicking. They are in a furious rage. The president promised them a constitutionalist and judges who would never legislate from the bench and he gave them.....Harriet Miers. The reaction to the president’s announcement this morning was fast and furious from the right. Redstate.org opined that Ms. Miers is, as far as they know, "unqualified for the position." Paul Mirengoff of Powerline asserts that Miers would not have been nominated were it not "for her gender" and her "status as a Bush crony". William Kristol, editor of The Weekly Standard, goes so far as to say he is "disappointed", "depressed", and "demoralized" with the Miers selection. The mood within the comment sections of conservative blogs is much harsher.

At first I was not all that enthusiastic about the pick either. As most conservatives, I was enchanted by the prospect of a Luttig, Alito, or Garza joining Justices Scalia, Thomas, and Roberts on the high court. Harriet Miers would not have been my first choice, not even close. But this does not mean that Ms. Miers is not a good choice, or quite possibly, a great choice. Conservatives would do well to desist the hysterical gnashing of teeth they are currently indulging in and keep a few things in mind.

First, the president has not broken his promise to nominate judges in the mold of a Scalia or a Thomas----he has never made such a promise. The president said that Justices Scalia and Thomas were those whom he most admired. What he promised, throughout his presidency and his reelection campaign, was that he will nominate judges who respect the law and will not legislate from the bench.

Ms. Miers is not unqualified. The fact that she has never served on a bench, state or federal, or is not a prominent legal scholar in no way disqualifies her from serving on the U.S. Supreme Court. She has spent her life in private practice, she has served as president of the Texas state bar, and has served in the Bush Administration in it’s entirety. If Ms. Miers’ credentials do not suffice as proper qualification than neither did those of William Rehnquist, the late and great Chief Justice whom all conservatives agree was one of the nation’s greatest.

Neither is Ms. Miers a Bush "crony". The fact that she is a close associate and subordinate of the president should comfort conservatives tepid over her lack of a paper trail or discernible judicial philosophy. The president wants a justice who will exercise judicial restraint and remain faithful to the constitution just as much as anybody. His lower court appointments bear this out. After reviewing all possible candidates his personal association with Ms. Miers convinced him that she will meet this criterion. The president came to the same conclusion in a similar circumstance when selecting his running mate and vice president. Does any conservative dispute his judgment in that instance?

The president knows Harriet Miers, he trusts her with a lifetime appointment to the Supreme Court. In turn, I trust the president; he has never given me, nor any other conservative reason not to.

Hat Tip: John Hinderaker, Patrick Ruffini

UPDATE (4:13 P.M. 10/4/05): Read this.

Public Opinion-The National Judiciary

A new poll released by the American Bar Association shows strong public dissatisfaction with the national judiciary. While I do agree that the judiciary is certainly out of control in many respects, I don’t agree with some of the other sentiments expressed in this poll. For example, "[a] majority of survey respondents agreed with statements that ‘judicial activism’ has reached the crisis stage, and that judges who ignore voters’ values should be impeached".

If judges are to simply stay in line with "voters’ values" and should be impeached if they fail to do so than the dividing line between the judicial branch and the other two political branches no longer exists. Judges must follow the letter and text of the law; following public opinion will only further the current problem.

Hat Tip: Confirm Them

Confirmed and Sworn In

John G. Roberts has been confirmed and sworn in as the seventeenth Chief Justice of the United States. Praising his credentials and qualifications at this point would be repetitive on my part, so I’ll simply state that John Roberts will be a fantastic Chief Justice and his confirmation insures our government’s third branch will be in good hands for many years to come. Congratulations to Chief Justice Roberts on his ascension to the Supreme Court’s center seat and to President Bush for nominating the most qualified man for the job.

The occasion of Chief Justice Robert’s overwhelming confirmation vote also warrants a tip of the cap to the one-half of the Democratic Caucus that voted for the chief, including my state’s senior senator Patty Murray. Granted, Thursday’s Democratic "yea" votes probably weren’t so much an affirmation of support for John Roberts as a strategic move intended to pay dividends in the next confirmation fight, but all that really matters in the end is that Democrats voting in the affirmative did the right thing, not why they did the right thing.

Quit Feeding Porky!

Crises can have one of two effects on a populace and it’s leadership. Either people panic and lose their heads along with their better judgment or they pull together and accomplish feats previously thought impossible. Americans can take pride in the fact that they usually react in the latter manner. When times get tough we the people tend to summon an inner strength and resolve that propels us to rise to the occasion and answer the call. That this has been the case from our founding until now is an incontrovertible truth.

In almost every regard the American people have answered the call once again in light of the nation’s most recent crises-----Hurricane Katrina and her aftermath. The devastation along the gulf coast has been total and millions have been displaced from their homes, left with nothing but the clothes on their back. These millions have needed a helping hand from the their fellow Americans and the American people have offered it. Volunteers from all over the country are assisting in the recovery and rebuilding efforts and donations are flowing in from all over the nation. $5 million alone was raised in the Monday night telethon sponsored by the National Football League. Americans will do all they can to help in any way they can and we will not stop until the region is rebuilt and every displaced American is back in their homes.

Out of character however has been the reaction from some of our political leaders in this unfortunate ordeal. Instead of buckling down and adding a clear-headed approach many on capitol hill are acting hysterically, running around like chickens with their heads severed off. Take Minority Leader Harry Reid for example, who has proposed price controls on energy to curb price "gouging" in the market. With all due respect Mr. Minority Leader, no price "gouging" is occurring. Exorbitant energy prices are a result of the damage to refinery facilities in the gulf and a surge in world energy demand that the market is still adjusting to. Contrary to your instincts sir those evil energy companies are not colluding together to stick it to the American people at an advantageous moment to them.

The hysteria is not exclusive to Democrats either, many Republicans on the hill are beginning to panic as well. A handful of Republican senators have indicated a desire to raise certain taxes in order to cover the costs of Katrina relief, namely the capitol gains tax, currently at 15%. Possibly as much as price controls, hiking taxes would prove disastrous. The federal government will bring in $262 billion more in revenues for fiscal year ‘05 than in the previous year, entirely a result of the Bush tax-cuts which have grown the economy, created more jobs and subsequently more taxpayers. Raising taxes would reverse all of this and eventually result in the decline of federal revenues. Hiking taxes on capitol gains would also, as OpinionJournal has explained in some detail, scare investors at a time when the national economy is tenuously dependent on clear-headed leadership from Washington.

To cover the unanticipated costs of Katrina relief Republicans in Washington should act like Republicans for a change and cut federal spending, an idea completely foreign to most of them these days. A good place to start would be eliminating the type of pork that so riddled the transportation and energy bills. Republicans have allowed Porky the money-eating pig to feast at the federal trough for far too long, and as a result little Porky has grown into a large and odious boar. The free lunch has to stop. It’s time the federal government went on a diet and stopped feeding big ol' Porky.

Hat Tip: OpinionJournal, George Will

To Fight or Not to Fight?

Democratic Minority Leader Harry Reid has signaled his intention to vote against the Roberts’ nomination to be Chief Justice of the United States. What was illuminating about his comments on the Senate floor was not his declared intent to vote "nay", rather his comments following that, which were basically an acknowledgment that Judge Roberts’ confirmation is inevitable and he will not be orchestrating a Democratic filibuster or even encourage his caucus to vote against Judge Roberts. Such an approach is a result of the rock and a hard place he and Senate Democrats find themselves at this juncture. All but the most liberal and partisan have no choice but to admit that, in the words of David Broder, Judge Roberts is "so obviously– ridiculously– well-equipped to lead the government’s third branch" that widespread Democratic opposition is unjustifiable. Yet on the other hand there is the common demand from those far-left interest groups that Senate Democrats fight tooth-and-nail against the judge’s confirmation. Such a tug-of-war is likely to leave us with many more Harry Reid-type positions; acknowledgment that Judge Roberts is supremely qualified and certain to be confirmed but resigned to casting a symbolic but futile vote against him solely to appease the fringe elements of the base.

Why Democrats feel handcuffed in this way is another matter. It is no secret that the real battle over the Supreme Court will be over the president’s next nomination to fill the vacant seat of retiring justice Sandra Day O’Connor. With this in mind why are Democrats spending so much capitol on the current vacancy knowing full well that it is all for naught? They are going to need all the capitol they can get for the upcoming nomination, and then some. So knee-jerk has Democratic opposition to the president’s judicial nominations become that the public now expects Democrats to blindly oppose any nominee regardless of who they might be. A majority of "nay" votes against Judge Roberts only confirms this perception as reality. Further, it diminishes any credibility Democrats presumably would have had when rising in opposition to the next nominee, the one who will truly change the direction of the Court. The fable of "The Boy Who Cried Wolf" comes to mind.

Far be it from me to give advice to the Democrats, but if they want to be in a strong position to stop the president’s second nominee they should rise in support of his current one. Lending overwhelming, bipartisan support to the Roberts nomination will give the Democrats what will be requisite for waging successful opposition down the road-----the illusion of reasonableness and credibility. They don’t have it now and they certainly won’t have it should a majority of the caucus capitulate to the base and vote against John Roberts’ nomination to be the next Chief Justice.

UPDATE (12:45 P.M. 9/21/05): Wise move senator, wise move.

UPDATE (12:53 P.M. 9/21/05): The price of disobeying your master:

When John Roberts becomes Chief Justice and votes to erode or overturn longstanding Supreme Court precedents protecting fundamental civil rights, women's rights, privacy, religious liberty, reproductive rights and environmental safeguards, Senator Leahy's support for Roberts will make him complicit in those rulings, and in the retreat from our constitutional rights and liberties.

--People for the American Way Chairman Ralph Neas

With all due respect Mr. Neas, get a grip.

In Memoriam

In loving memory of all who lost their lives on September 11, 2001. May we never forget the lessons learned that day.

Nomination Politics

John Hinderaker of Powerline has authored an interesting piece in The Daily Standard. He is right about the fact that Democrats were rendered impotent by the president’s nomination of Judge Roberts to replace outgoing justice Sandra Day O’Connor and he is right that now that Judge Robert’s nomination has been elevated from associate to chief justice the Democrats will bring out the guns over the president’s next nominee to replace Justice O’Connor.

Where Mr. Hinderaker errs is in his summation that the nomination of Judge Roberts to chief justice as opposed to associate will be politically deleterious to the president and the nomination process. It won’t.

In Mr. Hinderaker’s esteemed judgment, the politically expedient thing to do would have been to leave things as they were. By nominating Roberts to replace Justice O’Connor the president had artfully insured that Justice O’Connor would be replaced by a nominee who could tilt the court to the right while remaining impervious to liberal attacks. This much is true, for Judge Robert’s brilliant legal intellect, impressive resume, and pragmatic conservatism have made it nearly impossible for the left to demonize him in the same manner they did past nominees to the Supreme Court.

The flaw in this logic however is the assumption that Democrats would have shrugged in defeat and simply said, "Well, you got us" once Judge Roberts was confirmed. Unable to thwart the Robert’s nomination there is no doubt that Democrats would have then centered all their pent-up energy on the next vacancy that they were unable to expend on the previous one. The fact that the president would be then nominating one judicial conservative to replace another for chief justice would not matter, for the Democrats would argue that since the Court’s ideological composition was not maintained in the previous vacancy it must be reinstated with the current one. A fight/debate over the Court’s direction was and is inevitable, the only difference now is that fight will be over O’Connor’s seat as opposed to Rehnquist’s.

Further, the conventional wisdom that the president’s reduced political standing will diminish his ability to win this fight is also wrong. A substantial majority of senators represent conservative-leaning states that cast their electoral votes for the president in last year’s election. One of the main concerns of rank-and-file conservatives is the direction of the federal judiciary, and the judiciary is one of the few issues which motivates conservatives to turnout in droves on election day. Red state senators will vote to confirm judicial conservatives not because of the president’s political capitol or standing, but because doing so is in the best interests of their own political standing back home. Failing to send judicial conservatives to the bench will simply give rank-and-file conservatives already disenchanted with Washington Republicans one more excuse to stay home on election day and make Democrats representing Republican states even more vulnerable than they may already be. Political self-preservation, not the president’s political clout, will carry the day.

The Next Chief Justice

President Bush’s reallocation of the nomination of Judge John Roberts to be chief justice instead of associate justice is, to say the least, a solid move. With the late chief justice’s health declining over the past year and the pending retirement of Justice O’Connor the writing on the wall has been up the entire summer; the president would have two nominations to make. If the president is to nominate a strong, credentialed constitutionalist, such as Judge J. Michael Luttig, along with Judge Roberts than Judge Roberts is the logical choice to become the 17th Chief Justice of the Supreme Court of the United States. His low-key, humble demeanor, leadership skills, legal brilliance, and personal gravity are traits tailor made for the center seat on the Supreme Court, and are all traits held by Judge Robert’s former boss and, almost assuredly, his predecessor.

It has been a rough year for the president, and adding his signature to the pork-laden energy and transportation bills have not been the highlights of his presidency. However as brilliant as Judge Robert’s legal mind and intellect is so to is the president’s selection of Judge Roberts to be chief justice. Assuming the president nominates another constitutionalist to fill Justice O’Connor’s seat, something he can be trusted to do, the Roberts Court should introduce a new, golden age of constitutional jurisprudence. A development constitutionalists such as myself have been waiting for a long time.

ADDED NOTE (9/5/05 12:23 P.M.): The chatter from some of the enlightened punditry in Washington that the president should now nominate a "hurricane pick" to fill the other vacancy on the Court highlights just how disconnected from reality so many in Washington and the establishment really are. Do these pundits honestly think that the thousands of refugees and survivors in the gulf states, having lost homes, property, and even friends and family are going to, in the midst of all this, care one bit right now about a Supreme Court nomination, or even pay a second thought to it? They have more pressing issues confronting them and to think that a Supreme Court nominee has any relevance to any of those issues is an act in the theater of the absurd.

In Memoriam: Chief Justice William Rehnquist

The death of Chief Justice William Rehnquist last night is a significant loss for the Supreme Court, the federal judiciary, and the nation. Chief Justice Rehnquist was an outstanding jurist who respected the written law above all else and applied it consistently and fairly. The Court’s quality would be much improved if there were nine Rehnquists on the bench, and his leadership of the Court and stewardship of the laws of the United States will be greatly missed.

It Was Only A Matter Of Time....

Whether the predominant interest groups on the left would actively seek to defeat the nomination of Judge John Roberts to the Supreme Court was never a question of if but when. Ralph Neas answered that question Wednesday when he announced People for the American Way’s opposition to the Roberts nomination in a harsh condemnation of the judge and his likely role on the Supreme Court.

Mr. Neas’ bit of invective ("I didn’t think that anybody could be to the right of William Bradford Reynolds, Robert Bork, and Ted Olson, but Roberts managed it") should serve as a stern reminder to any conservative that the left, or the far left at least, has every intention of employing the same scorched-earth tactics that became infamous during the Bork and Thomas confirmation process, no matter how unfounded they are. Yes Judge Roberts’ ascension to the Supreme Court is all but guaranteed and no Democrats no longer have the numbers in the Senate to pull off the same character assassination that succeeded in Judge Bork’s nomination and nearly succeeded in Justice Thomas’. But what they can do, and probably will do, is denigrate Judge Robert’s integrity and character, further diminishing the integrity of a process that has already been diminished far too much in the past two decades. Conservatives and Republicans need to be prepared to refute such inflammatory tactics and keep the record straight. Mr. Neas and company shouldn’t be allowed to get away with crying wolf any more.

Hat Tip: Sean Higgins

The Iraqi Constitution

A draft constitution has been submitted to the Iraqi Parliament with a vote being postponed a few days in order to settle some remaining reservations on the part of Sunni factions involved in the process. Though some alterations may still be made there are a few aspects of the draft that are important and deserve mention.

First off, the draft constitution sets up a federalist system of government with a decentralized national government and a substantial degree of autonomy for the separate provinces and regions. Very important, for given Iraq’s diverse and pluralistic regions, and it’s tragic recent experience with centralized government, a federalist system will be a necessity in insuring the new Iraq’s survival and success.

Also included is a proper balance between the role of Islam and minority rights. Islam is "the religion of the state" and "a main source for legislation", an acknowledgment to be expected in a predominantly Islamic nation and entirely acceptable so long as the rights of religious minorities are guaranteed. They are: "This constitution guarantees the Islamic identity of the majority of the Iraqi people and guarantees all religious rights of all persons in the freedom of belief and religious practice." As Paul Mirengoff has pointed out, the fact that Islam is "a main source for legislation" and not "the main source" is indicative of the actual role Islam will play in Iraq’s governance.

Most importantly, the draft institutionalizes all the hallmarks of a stable, peaceful, legitimate, and successful democracy. Those hallmarks, which distinguish a stable and peaceful democracy from the other forms of government, include religious freedom, sovereignty residing with the people, civil control of the military, judicial review, the peaceful transfer of power, etc. That the elected representatives of the Iraqi people included all of these in their draft constitution dismisses any notion that Iraq specifically, and the region as a whole, is ill-prepared or in-conducive to democracy.

Note: The document quoted in this piece is a rough translation provided by The Washington Post and sources close to the drafting process, according to the Post, have verified that it is an accurate representation of the actual draft.

Hat Tip: Paul Mirengoff, Michael Ledeen, The Washington Post

The Transfer Of Gaza

Israeli military posts and settlements are, as we speak, being dismantled and withdrawn from the Gaza Strip. The questions remaining are 1) should Israel be vacating Gaza in the first place? and 2) if so is this the right moment and situation to be doing so?

The answer to the first is probably yes. Gaza was originally and traditionally Palestinian territory and it would probably be prudent to return it to them.

The answer to question two however is no, this is neither the right moment in time nor, and maybe most importantly, the right situation to transfer Gaza to the Palestinians.

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As part of the roadmap to peace, Palestinian dismantling of the terrorist apparatus is a pre-requisite for receiving any territory from the Israelis and, eventually, an independent state. This has not happened. Either by a lack of power or a lack of will PA President Mahmoud Abbas has been able to achieve little else other than meaningless cease-fires that do nothing to achieve the necessary defeat of terror.

Yet for some unexplained reason the transfer of Gaza goes ahead as planned. As it stands now, Gaza is being transferred not to a pacified Palestinian society but to one as infested with terror as ever. Instead of land for peace, Israel is ceding land for nothing in return but the status quo. And what does this achieve? If the PA receives land for nothing than what impetus will they have to defeat the terrorist elements within their society? A pacified Palestinian society assuming control of Gaza is in everyone’s best interest, but unilateral concessions and adherence to the peace-process of this sort only insures that this won’t happen, for now a jubilant Hamas has another base in which to launch further terror against Israel.

If the process is to succeed than Israel, and for that matter the free world, must demand Palestinian reciprocity. The Palestinians will get their land, but only in return for the dismantling of the terrorist groups that currently thrive within their society. Failure to do so will only result in the continued murder of innocent Israelis and the continued misery of the Palestinian people.

You cannot reward terror and complacency, for when you do all you get in return is more of each.

Judge Roberts

A simple word of comfort to any liberal who might be terrified and a word of caution to any conservative who might be ecstatic at the news that John Roberts called abortion a "tragedy" during his time in the Reagan Administration....his personal views don’t matter. His brief tenure on the D.C. Court of Appeals has demonstrated that, if nothing else, he has the judicial integrity to keep his personal beliefs and prejudices out of the legal deliberative process. Judge Roberts is a jurist who will faithfully and impartially follow the law, whether that leads him in a direction which concur with his personal views or not.

If he truly does believe abortion is a "tragedy" then great, so do I. If he doesn’t that’s fine too. The one and only thing I care about is that he recognizes that his role on the federal judiciary is a limited one and that matters of policy creation and execution belong to the elected branches responsive and responsible to the American people. If he does, and of this I am confident, than his tenure on the U.S. Supreme Court will bring to that body what it too often lacks nowadays—judicial modesty.

Washington State '06 Senate Race

New polling numbers were released by Strategic Vision yesterday on the state of public opinion here in Washington State. In regards to the upcoming Senate race in ‘06, Sen. Maria Cantwell has a very soft 47% approval rating. Further, if the election were held today, Sen. Cantwell would defeat SAFECO CEO Mike McGavick, the only Republican to announce an interest in the race so far, 46-38%.

That the senator is ahead by only eight points against a virtual unknown at this early juncture, and is under fifty percent in both approval and in the horse-race numbers, should be of a concern to her. If McGavick does officially enter the race, and barring any significant primary challenge builds some name recognition and credibility with state voters, he will be able to put some pressure on the senator and her underwhelming first term record. Like Sen. Cantwell in 2000, McGavick is wealthy enough to personally fund his campaign as well.

None of this means that we should be writing Sen. Cantwell’s obituary quite yet though, for she is still an incumbent Democratic senator in a reliably left-of-center state. Resentment against the Democrats does exist over last year’s gubernatorial election, but I anticipate that being more of a problem for Governor Gregoire in ‘08 than Sen. Cantwell in ‘06. If I had to, I’d still put money on Sen. Cantwell winning reelection with around fifty percent of the vote. She is the undisputed favorite and it is going to take a heck of an effort by McGavick and state Republicans to unseat her.

Hat Tip: Stefan Sharkansky, Alexander K. McClure

Federal Partial-Birth Abortion Ban

As I have made clear, and more importantly, as the constitution makes clear, the practice of abortion is neither constitutional nor unconstitutional. It is not mentioned, and thus, through the 10th Amendment, regulatory authority over it belongs to the states and the people, not the Federal Government.

Therefore I concur with the 8th Circuit’s ruling invalidating the federal partial-birth abortion ban, albeit for the exact opposite reason.

Faithful to Supreme Court precedent, the Circuit struck down the statute in question due to the absence of any health exception for the mother. Puzzling, for having thoroughly read through the constitution I have failed to find any health exception clause or amendment that would invalidate a federal or state statute prohibiting any form of abortion not containing said exception. Either the Supreme Court is handing down decisions based on a different version of the constitution (which they have taken upon themselves to write) or they are distorting the actual constitution ratified and amended by the people—– probably both.

The actual reason the federal partial-birth abortion ban is unconstitutional is simple— it exceeds congress’ regulatory authority. Article II, Section 8 of the constitution specifically enumerates congress’ powers, which include the power to assume debt, regulate commerce with foreign nations and among the states, coin money, provide for an army and a national defense, establish rules for naturalization, etc. Clearly absent is any authorization or sanction of the powers exercised by congress with the partial-birth abortion ban.

Further, if it is unconstitutional for the congress or the federal government to invalidate state laws prohibiting abortion, which it is, than it must also be unconstitutional for the congress to introduce nationalized limits or prohibitions, which may or may not reflect the desires of an individual state, on the practice as well. There is no question that the federal ban on partial-birth abortion is a good law and the right thing to do. However the legal question the Court must answer is not whether the right call was made, but instead who gets to make the call. The answer to this is simple—each state and the people therein have the sole authority to make the call, not the congress or the Supreme Court.

If the Supreme Court is at all committed to the constitution than they will reaffirm the 8th Circuit’s judgment on these grounds.

Hat Tip: Terry Eastland

The Raich Test

It comes as no surprise that the defining issue in the upcoming confirmation fight will be abortion. Both the Pro-Choice and Pro-Life movements have been girding up for this moment for years, and the difference between support and opposition to Judge Roberts will depend almost entirely on his stance on abortion, or at least his perceived stance.

But should it be this way? Is abortion really the most important issue the court, and if confirmed, Judge Roberts will deal with? It’s important for sure, and the fact that the issue has been put out of reach of the democratic process for thirty years is largely responsible for all of the public acrimony that exists today.

However to define abortion as the biggest issue facing the court would be a stretch, and there are much larger issues, of which abortion is a part, which should be, and in my view are, of greater concern.

Most pertinent are Judge Robert’s views on the larger issues of federalism, enumerated powers, and the court’s role in limiting the exercise of federal power. What, for instance, is Judge Roberts’ Commerce Clause jurisprudence? Does he believe that it serves as a rubber stamp for expansive and intrusive federal regulation, or does he believe it serves as a strict prohibition on such activity?

To be more specific, would he have ruled in Gonzales v. Raich that the Commerce Clause allows congress to regulate activities neither interstate nor commercial, as long as such activity could conceivably affect interstate commerce, as the court did, or would he have sided with Justices Thomas, O’Connor, and Rehnquist and ruled that such interpretation leaves no limit on federal power?

To ask such questions during Judge Robert’s hearing would be inappropriate, and he will almost certainly refrain from answering. So to ascertain the answers we must refer to the judge’s record on the court of appeals, as slim as it may be. His dissent in Rancho Viejo v. Norton suggests that his Commerce Clause jurisprudence, and his views on federalism, more closely fall in line with the three dissenting justices in Raich. In his opinion Judge Roberts opined that congress had no right to order, through the Fish and Wildlife Services, that a property owner remove a fence on his property so as not to inhibit the movement of an endangered species of toad that resided on that property. "The hapless toad," he wrote, "for reasons of it’s own, lives it’s entire life in California", and thus falls outside of congress’ regulatory powers under the Commerce Clause.

This indicates an important understanding of the limitations the Commerce Clause was intended to incur, an understanding that has also been lacking on the court for quite some time. Granted one dissent in one specific case is not much to go on, but it isn’t much of a stretch to assume that Judge Roberts will apply the same jurisprudence in future cases. If so, we can expect that his ascension to the court will bring about a federalist jurisprudence that will serve the court and the country well, and will at least help curb the tide of federalism’s court-subsidized demise.

Hat Tip: OpinionJournal

What Really Matters

In the days and weeks that passed between Justice O’Connor’s announced retirement and the president’s announcement of her successor speculation was justifiably rampant about just who the nominee would be. The relevant question throughout the whole process, in my view at least, was would the president nominate someone in the mold of a Scalia or Thomas, as he had previously indicated he would, or would he nominate a more results-oriented nominee such as the departing Justice O’Connor, thus avoiding a contentious confirmation fight in the Senate?

Instead, the question most commonly chewed on was whether the president was compelled to nominate a woman or a minority to replace the court’s first female justice. It got to the point where any reasonable person could have been forgiven for believing that the president was searching for someone to fill a diversity slot, not an open vacancy on the United States Supreme Court. The dialogue increasingly concerned itself more with identity politics than the more substantive issues it should have concerned itself with.

Now, to the president’s credit he selected the best person available for the job, and substance and merit carried the day, as it always should. He approached the vacancy looking for the person most capable, whose legal credentials, temperament, philosophy, and intellect were best suited for the nation’s highest court. Such an approach is the correct one, and it should be the model for filling any vacancy, Supreme Court or otherwise. Factors such as race, gender, religion, etc., are, for the most part, superficial and irrelevant.

One would also hope that we as a society have matured enough so that the implicit need to nominate someone simply for the purpose of creating an illusion of equality no longer exists. Selecting someone on the basis of race or gender doesn’t bring about equality, it only creates greater inequality, for it automatically results in the exclusion of someone else for the very same reason, leaving us right back where we started.

We all want equality, but there is a right way and a wrong way to achieve it. Equality is completely unattainable except through liberty, the liberty to compete with all others on the basis of your own personal merit and talents. Each individual must be regarded as just that, an individual, and not as some label. Until this standard is reached equality will simply be a dream which we vainly seek but are never able to attain.

Broad Public Support For Roe?

A widely asserted claim by the punditry recently has been that the American public overwhelmingly supports a woman’s right to receive an abortion and opposes any potential reversal of Roe v. Wade. This assertion is based, almost exclusively, on a recent poll taken by the Gallup Organization that has 65% of Americans favoring Roe’s preservation. However other recently released data from Rasmussen Reports, one of the best polling firms in existence, counters this assertion.

While a majority of Americans certainly oppose any complete and unequivocal ban on abortion, they also oppose it’s broad implementation. 52% say abortion is morally wrong most of the time and 53% believe it is too easy to receive one. Only 18% believe it is too hard. Furthermore, 47% believe that the reversal of Roe v. Wade would result in the states deciding the issue themselves, which another 47% of Americans prefer. Just 39% of Americans believe that the Supreme Court should set the rules governing abortion.

While these numbers indicate that only a plurality desire the effects Roe’s reversal would bring, they also refute the notion that Americans broadly support it’s preservation. If anything, the division that exists over abortion and the lack of any clear consensus emphasize the need to return sovereignty over the issue to the states and the people, who can decide for themselves whether the practice is right or not.

The Nominee

The president officially nominated Judge John Roberts Jr. of the D.C. Court of Appeals to be the next Associate Justice on the U.S. Supreme Court tonight. Though other candidates such as J. Michael Luttig, Edith Jones, Emilio Garza, and Janice Rodgers Brown were preferable, Judge Roberts is an excellent choice and there is little doubt that he will markedly improve the quality of the high court. He has a superb, nay brilliant, legal mind and he comes with over twenty years of distinguished public service. Every bit of evidence available suggests that he is a strong "textualist", or someone who believes that a text should be given the meaning it had when it was adopted by the American people. Statements by the punditry that he more closely resembles his former boss Chief Justice Rehnquist than Justices Thomas and Scalia are really irrelevant, for the differences in their jurisprudential philosophies are for the most negligible. As long as his jurisprudence falls in line with those three he has my unreserved support.

UPDATE (11:54 P.M. 7/20/05): Amen.

UPDATE (1:25 A.M. 7/28/05): This guy's for real.

Defeating The Defeatist Mentality

America has never lost a war, and the only time we have been defeated is when we have defeated ourselves, by either losing the will to finish what we started or by simply retreating in the face of adversity. Our enemies in our current war know this, and on this fact their entire strategy in defeating the United States is predicated. Every bomb that explodes in the streets of Baghdad, or in the train tunnels of London for that matter, is targeted not at those that bomb kills or injures, but at the observing public back home, who justifiably cringe every time they view the carnage it inflicts on the nightly news. Al-Qaeda’s only hope of defeating us rests in the prospect that the American people will, after seeing too many of these pictures, lose the will to carry on. For the United States to be defeated the American public will have to conclude that the price simply isn’t worth paying, that if we leave them alone, they will leave us alone.

In this the terrorists are having some minor success, for already we are hearing from some circles that the war in Iraq has created more terrorists than had previously existed, and that the U.S. occupation has become a rallying cry for indoctrinated young Muslims who are swelling the ranks of al-Qaeda. These people believe that as a result of our presence in Iraq we are less secure than we were before, that we are more vulnerable to terrorist attack. Some of the more extreme elements even believe we should simply cut our losses and leave Iraq right away.

However to retreat from the world and the Middle East in defeat would be to fall into the same trap all of us willingly rested in before 9/11. We in the free world invite attack not when we are strong and active, but when we are, or at least are perceived to be, weak and dormant. We weren’t in Iraq or Afghanistan when our embassies in Africa were bombed, or when a boat full of explosives hit the Cole, or when planes were flown into the World Trade Center and the Pentagon. To fall prey to the belief that our actions are the culprit for terrorist acts perpetrated against us is to hand the terrorists the very victory they have been seeking and expecting.

Our main task then becomes not so much defeating the Zarqawi network within Iraq, but defeating the defeatist mentality that Zarqawi and company hope to foster here at home. What our leaders need to do, and specifically what our president needs to do, is come before the American people on a regular basis and reassure the people that what we are doing in the Middle East is right, and that winning in Afghanistan and Iraq is the only long-term solution to ending the type of terror that plagued us in London and New York, and that strikes in Iraq on an almost daily basis.

America and the free world will win this war, and we will defeat Islamic terrorism just as we defeated Communism, Nazism, and Fascism. The only way we can possibly be defeated is if we stop believing in our moral standing and purpose in this endeavor. As Ronald Reagan once said, "no arsenal, or no weapon, in the arsenals of the world, is so formidable as the will and moral courage of free men and women. It is a weapon our adversaries in today’s world do not have." With that will and moral courage there is no one or no thing that can defeat us, without it we become as vulnerable as we were pre 9/11. Our enemies know this, so must we.

Why Roe Should Be Overturned

In the span of it’s existence the U.S. Supreme Court has handed down thousands and thousands of decisions, ranging both in issue and impact. However only a handful of cases have achieved lasting historical impact and defined and influenced the generation in which they were handed down.

Marbury v. Madison stands as the Marshall Court’s most infamous decision, and it was emblematic of that court’s significance in defining the role of the judiciary and the national government in our republic’s infancy. Dred Scott v. Sanford struck down the Missouri Compromise and subsequently the tenuous cease-fire that existed over the issue of slavery, paving the way for the Civil War and slavery’s abolition. Plessy v. Ferguson was instrumental in defining the new order following the Civil War and reconstruction by introducing the age of de jure segregation, an age which mercifully ended with the court’s ruling a generation later in Brown v. Board of Education. And last but not least, the court decision that has largely defined (and divided) this generation was the court’s ruling in Roe v. Wade, which set off a thirty year debate over the issue of abortion that continues to this day.

Personally I believe abortion is a detestable practice that should be limited to only cases of rape, incest, and necessity to the mother’s heath. Abortion takes the gift of life from those it destroys and it robs society and future generations of the unique gifts and talents that each human life possesses. It’s negative effect isn’t limited to the unborn either, for the decision to end the life of their children often afflicts the mother throughout her life.

However none of this carries any relevance in regards to the legal questions involved in Roe v. Wade and ultimately why the case should be overturned. In it’s decision, the court followed the precedent it had set in Griswold v. Connecticut by ruling that although there is no explicit right to privacy written in the constitution, the First, Third, Fourth, and Ninth Amendments constitute a "penumbra" of privacy rights that guarantees the right to receive an abortion. Such reasoning is disturbing, for when issuing a decision the Supreme Court should always follow the text of the constitution and what the framers intended it to mean. I very much doubt that when ratifying the above amendments the framers intended to create a "penumbra" guaranteeing the right to privacy.

Instead, when the framers saw an absolute right to privacy they clearly enumerated that right in the constitution: the right to freely practice religion in the First Amendment, the right to dominion over one’s home in the Third Amendment, and the right to resist intermittent and unreasonable government searches and seizures of one’s personal property in the Fourth Amendment. There are other examples as well, but arguing that these clearly enumerated rights of privacy added together insure a broader right to privacy that includes the universal right to receive an abortion is at best dubious.

Seemingly lost on the court was the clear guidance the framers left future generations in regards to such an issue, for the Tenth Amendment states that all powers not given to the national government, or prohibited to the states, belong to the states, or the people. In essence, when the constitution is silent on who power or jurisdiction belongs to it automatically belongs to the states or the people by default. If anyone doubts this they simply need to refer to the words of the constitution’s father, James Madison, who in Federalist No. 45 stated that the powers of the states are "numerous and indefinite", and include "all objects which, in the ordinary course of affairs; concern the lives, liberties, and properties of the people." This stands in stark contrast to the powers of the national government, whose powers are "few and defined", and which extend mainly to "external objects, as war, peace, negotiation, and foreign commerce".

Nowhere in the constitution is the power to regulate abortion given to the national government, and nowhere in it is it denied to the states. Therefore, the court’s decision, which disregarded and overturned numerous state statutes, was in error and the court’s judgement in Roe v. Wade should be reversed. Abortion is a state issue and the power to decide it’s legality belongs to the states and the sovereign people, not an oligarchy of nine.

SCOTUS Rumors

If the chatter over Chief Justice Rehnquist retiring today is true (some say it is not), than we will have two vacancies on the high court for the first time in over thirty years and the beginning of what is going to be a very interesting summer. Two openings as opposed to one will only further cement the Supreme Court and the Federal Judiciary as the major issue leading up to the '06 mid-terms, at least initially, which will favor Republican candidates in red states and put Democrats having to defend seats in those states, such as Sen. Ben Nelson of Nebraska and Sen. Kent Conrad of North Dakota, in a very uncomfortable position.

UPDATE (4:22 P.M. 7/8/05): It's pretty clear that the chief justice will not be retiring today, but consensus has moved to him retiring within the next couple of days, possibly Monday.

We Stand With You

As Americans we extend our deepest condolences to the people of Great Britain on this tragic day and will continue to stand by those who have so faithfully and honorably stood by us.

Happy Fourth Of July

HAPPY BIRTHDAY TO THE GREATEST NATION ON EARTH

The Clinton-Hatch Allusion

Over the last few weeks we have heard many high-profile Democrats imploring the president to consult with members of both parties within the Senate before selecting a nominee to the Supreme Court . They have argued that consultation is the key towards selecting someone who can gain widespread approval and a smooth confirmation process. As evidence of this, they point to the two Supreme Court vacancies that opened up under President Clinton and the amicable consultation process that existed between him and Sen. Orrin Hatch, then the ranking member on the Senate Judiciary Committee.

However I get the sense that the Democrats who are alluding to these consultations don’t exactly remember how they took place, for they were successful not in the fact that a consensus nominee was agreed to, but because Sen. Hatch understood that a president is entitled to considerable personal deference in selecting a nominee. Sen. Hatch counseled President Clinton on the logistics of the confirmation process, not what judicial philosophy his nominee should hold. In fact, Sen. Hatch recommended two judges who would go on to be President Clinton’s two nominees, Stephen Breyer and Ruth Bader Ginsburg, and two of the court’s most liberal justices. I’m sure President Bush would welcome a similar sense of cooperation as well, but no reasonable person expects Sen. Leahy or Kennedy to afford President Bush the same deference that Sen. Hatch afforded President Clinton.

In contrast, as their statements have already indicated, the Democrats seek to influence what type of judicial philosophy the next nominee will hold. In essence they want a veto. If the president’s nominee isn’t a liberal, results-oriented jurist similar to President Clinton’s two nominees than the Democrats are going to inevitably claim they were never consulted or heard. The president should, and already has, opened up a dialogue with Democratic leaders, but those who expect that dialogue to result in any sense of cooperation or bipartisanship are setting themselves up for disappointment.

Hat Tip: Ed Whelan, Paul Mirengoff

Justice O'Conner Retires

Justice Sandra Day O'Conner submitted her resignation to President Bush this morning and thus ended a twenty-four year stay on the nation's highest court. Let me first congratulate her on her accomplishments during that period and thank her for her service to her country. I and the rest of the nation wish her the very best in her retirement and continued good health for many years to come.

Now to the business at hand, which is finding and confirming her replacement. As my opinions on recent court decisions have shown, I am growing increasingly concerned with the court's troubling disregard for the words and meaning of the constitution. In recent cases they have ruled that the Commerce Clause allows congress to regulate activities that are neither commercial nor interstate, that the Takings Clause allows local governments to seize private property not only for public use, but for public "purpose" as well, and that one ten commandment display in Texas doesn't violate the Establishment Clause while a similar one in Kentucky does. On what constitutional grounds these rulings are based on is unclear to me and many others, conservative and liberal alike.

Frankly it's time to reintroduce the constitution to the Supreme Court, which means sending justices to the court who, when making a ruling, will be guided by the word and intent of the constitution, and not exaggerate those words to mean something completely irreconcilable to it. There are many fine candidates out there who will meet this standard, and the president should have no problem finding a qualified nominee. Hopefully that nominee will receive a fair hearing and up or down vote on the Senate floor, as well as a civil and honest debate. As the president said this morning, that's what the nominee and this country deserve.

UPDATE (9:46 P.M. 7/3/05): The case for a constitutionalist nominee.

In Support Of CAFTA

As all free-trade measures seem to do, the Central American Free Trade Agreement (CAFTA) has met it’s fair share of resistance and opposition in congress. Protectionists argue that the pact will result in more losses in certain agricultural industries here in America, specifically sugar, and greater exploitation of labor in Central American countries. They also argue that CAFTA will bring about a greater trade deficit here at home, and most importantly, will result in more American jobs being outsourced to other countries. All this borders on hysteria, for as history and our current prosperity have shown, free trade is the surest way to grow the economy.

The passage of CAFTA will immediately open up newer markets for American goods, and that infusion will help grow the Central American economies, which will in turn create even greater demand for American products. Furthermore, any jobs that might be lost as a result of freer trade with Central America have already been lost, for 80% of goods from that region arrive here duty free anyway. CAFTA will simply add some reciprocity to the trade situation.

CAFTA’s benefits won’t be simply economic either, for it will provide an invaluable boost to the political situation in that region of the world as well. Increased economic growth in Central America is the most effective means available in strengthening democracy’s hand in that region. To quote Deputy Secretary of State Robert Zoellick, "[n]othing is a more secure anchor for democracy than citizens who are employed and building better lives for their families."

CAFTA enhances our economy as well as our geopolitical interests. It will open up new markets for American business and commerce and it will help improve the neighborhood in which we live. The Senate has already approved the pact, it is now time for the House to step up and do the right thing and approve it as well.

Hat Tip: Daniella Markheim, Robert B. Zoellick

UPDATE ( 10:30 P.M. 7/27/05): CAFTA has passed the House 217-215.

The President's Speech

The president’s speech on Iraq didn’t provide any new strategy or plan, nor any announcement of greater troop levels or shift in administration attitude. It didn’t have to. What the president needed to accomplish last night, and what has been so sorely lacking in recent months, is some context and perspective. All Americans have seen recently, whether it be in their newspaper or on the nightly news, are headlines and images of another car bomb going off and the deaths of more American soldiers and innocent Iraqis. All they’ve heard is hysterical rants from their leaders in congress, whether it be Teddy Kennedy labeling Iraq a "quagmire" and "George Bush’s Vietnam", or Chuck Hagel going so far as to say we are losing there.

What they haven’t seen or heard is what else is going on in Iraq, of all the political and military developments in that country that are making the jihadists so barbarically cruel and desperate. They haven’t heard about the progress that coalition forces are making in training Iraqi defense units, or the progress American forces are making in rounding up and arresting or killing members of Zarqawi’s network. All they have heard is an over emphasization of the terrorist attacks and scarcely a word about why we are over there in the first place and why Americans are sacrificing their time, money, talents, and lives there.

That is exactly what Americans needed to hear from the president last night, the full context of what’s going on there and why we are doing what we are doing. And to the president’s credit, that’s exactly what they did hear.

Goodbye Shelby Foote

Since fifth grade one of my great interests has been American history, especially the American Civil War. I have always been transfixed by that period, one of our nation's most trying and defining times, and better understanding the Civil War has given me an added perspective and context when looking at contemporary issues that would have been previously absent. Though there have been many great works written on the Civil War, the best I have come across has been the Civil War trilogy by Shelby Foote. His excellent use of historical narrative and astonishing depth of knowledge (if the reader didn't know better they'd think Mr. Foote had actually been there) have given me great pleasure and inspiration, and his works have encouraged me to learn all I can on the subject.

It is because of this and other reasons that I looked upon the news of his death today with great sadness. In the coming months and years I look forward to finishing up his Civil War epic and further enjoying his contribution to the Ken Burns Civil War series. Though Mr. Foote is no longer with us, his contribution to Civil War scholarship will continue for many years to come.

Hat Tip: Polipundit

Ten Commandment Cases

On the final day of it’s 2004 session the Supreme Court handed down it’s much anticipated decisions in two cases regarding the constitutionality of public displays of the ten commandments on government grounds. In McCreary County v. ACLU Kentucky the court ruled 5-4 that such a display in a county courthouse violated the Establishment Clause of the 1st Amendment, while in Van Orden v. Perry the court ruled, also in a 5-4 decision, that a similar display on the grounds of the Texas State Capitol did not violate the 1st Amendment’s Establishment Clause. The swing judge in the two cases was Justice Breyer.

Today’s seemingly contradictory rulings are the fruits of it’s inability or refusal to return to the original meaning of "establishment" in the Establishment Clause, which can easily be determined by simply reading the clause’s actual text, which reads: "Congress shall make no law respecting an establishment of religion; or prohibiting the free exercise thereof". In other words, congress is constitutionally prohibited from passing a law that endorses a specific religion or that coerces the people to in some way support a certain religion, through financial contributions or other means. Congress is also prohibited from enacting any measures that would prevent the people from freely practicing the religion of their choice. The text of the clause clearly doesn’t prohibit the placement of a monument or display such as the ten commandments on government property, for a monument or a display is not a law and it certainly doesn’t prevent anyone from freely practicing religion as they see fit.

When the court strays away from the original meaning of the constitution like this it commits itself to passing judgements in areas where it has no business or qualification to. By ruling that certain monuments and displays constitute state establishment of religion, the court establishes itself, as Justice Thomas put it, as a "theological commission", passing judgement on the religious meaning and significance of each and every symbol, monument, display, etc. that exists on any piece of public ground in the nation. To do this is an exercise in futility, for entirely different people will attach entirely different meanings and significance to one single display. Furthermore, as Justice Thomas brilliantly pointed out in his concurrence in Perry, applying such a test, "fails to capture completely the honest and deeply felt offense he (the nonadherent) takes from the government conduct. For the adherent, this analysis takes no account of the message sent by removal of the sign or display, which may well appear to him to be an act hostile to his religious faith." No matter what decision a court makes in a situation like this, either leaving or removing such a monument, they are going to inevitably offend someone.

The court’s two decisions today also fail to apply any cohesive precedent or jurisprudential principle to be used on similar cases in the future. Without any clear definition of the Establishment Clause and it’s meaning, Justice Thomas aptly pointed out that such cases will inevitably be decided by "judicial predilections". If the court had simply followed the meaning of the Establishment Clause than it would have substantiated a precedent lower courts and future Supreme Courts could clearly follow. Instead, by distorting and stretching the meaning of the constitution the court has once again raised more issues than it has settled.