Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
From John Yoo, who seems intent on setting a Guiness world record for total lack of self-awareness:
Conservatives should defend the Supreme Court as a place where cases are decided by a faithful application of the Constitution, not personal politics, backgrounds, and feelings. Republican senators will have to conduct thorough questioning in the confirmation hearings to make sure that she will not be a results-oriented voter, voting her emotions and politics rather than the law.
Yeah, cuz that would be crazy and bad. Almost like someone from the Office of Legal Counsel, which is supposed to provide objective advice to the president on the law, instead rubber stamping the president's wishes with an absurdly reasoned legal memo that tells the president that he is free to do whatever he wants, the law notwithstanding. Results-oriented indeed.
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It's not Yoo's fault. His projectionism is a defining mental condition of conservatism. It's far more difficult to find conservatives who do not project.
Posted by: Michael Heath | May 30, 2009 9:56 AM
Everyone engages in some projection now and then--it's only human. But the current crop of Republicans have really raised it to an art form. As I said elsewhere, it's now reached the projection equivalent of, say, a Bach double fugue (in its mastery of the form, that is; certainly not aesthetically).
Posted by: MS | May 30, 2009 10:37 AM
Should we take it that Mr. Yoo would like a pro-choice appointee?
After all, choice is the law & Mr. Yoo wouldn't want to let personal opinion interfer.
Posted by: Rob Jase | May 30, 2009 11:01 AM
Rob Jase,
That may be correct for the lower courts, which are compelled to follow Supreme Court precedence, but not for the Supreme Court. For conservatives (as opposed to legal realists), the real law is what the Constitution means, not what the justices say it is. If that was not their belief, then the critique of results-based judging would have no basis in theory (as distinct from having no basis in fact).
I assume that Yoo believes choice is not the law, because it is not in the Constitution. Therefore, from his perspective and not mine, a pro-choice appointee cannot be anything but a results oriented judge, and an appointee seeking to overturn Roe would be one who is properly following the law.
Posted by: James Hanley | May 30, 2009 11:28 AM
This really seems to be the defining paradign for conservatives: you may not do something unless the law gives you permission to do it. This was Bork's basic position: unless the legislature says that you may do something, you may not do it. Rights are given to you by the law. You have no inherent right to privacy (re: Griswald) or any other rights not explicitly mentinoned in the Constitution or in law.
Such a view basically defeats the entire concept of freedom and limitation of government only to what is absolutely necessary. It is very curious that conservatives who rail against "the size of government" would inherently give it such a broad reach.
Posted by: NJOsprey | May 30, 2009 1:15 PM
Isn't there an amendment that specifically says that if rights aren't enumerated in the Bill of Rights, that doesn't mean they don't exist?
What was Bork's take on this? - curiously DJ
PS Sorry if it's been covered earlier, I just got here myself.
PPS Apologies too, for the triple negative.
Posted by: DingoJack | May 30, 2009 1:22 PM
This was Bork's basic position: unless the legislature says that you may do something, you may not do it.
That could not be more untrue. Have you read any of Bork's books? I don't think any serious commentator on the left or the right would say they believe that. Bork believes that the powers of the federal government are limited to those enumerated in the Constitution. You make him sound like he believes in "limited citizens" instead of limited government, which is what he actually believes in.
Posted by: mroberts | May 30, 2009 1:28 PM
Bork believes citizens generally don't have a right to be treated equally by their government.
As I wrote the other day, in his book The Tempting of America, Bork believes the 14th Amendment really only applies to descendants of slaves. So if your state government wants to discriminate against Latinos or Asians, tough titty.
Read him more closely Mr. Roberts, because that's no an argument in favor of limited government.
Posted by: James Hanley | May 30, 2009 1:33 PM
Dingo,
That's the 9th amendment, which Bork described as an "inkblot" on the Constitution. It's not clear exactly which rights it protects, so he--and many other conservatives--would rather pretend it doesn't really mean anything.
So, contra mroberts foolish claim, Bork would allow government to violate any unenumerated right. Limited government my ass. All conservatives like Bork and mroberts mean by limited government is, "leaves my property and my wallet alone." But they don't really have problems with unleashing it in all other sorts of areas.
Posted by: James Hanley | May 30, 2009 1:36 PM
James Hanley:
Of course you are aware that proving mroberts is wrong is as pointless as an exercise can get. If the facts don't line up with preconceptions, then damn the facts.
Posted by: democommie | May 30, 2009 2:28 PM
James- Thanks, that's kinda the impression I got.
Oh BTW I've discovered the Conservative/Libertarian creed:
Sound like a certain conservative poster we know and love? :D -DJ
Posted by: DingoJack | May 30, 2009 2:57 PM
Many years ago I read about an American jurist who had been studying the legal systems of other countries and had reduced them to a few sound bites:
In Germany, everything is prohibited except that which is permitted.
In France, everything is permitted, except that which is prohibited.
In the USSR, everything is prohibited, including that which is permitted.
In Italy, everything is permitted, especially that which is prohibited.
So our high-RWA personalities (commonly mis-named "conservatives") fall somewhere between Germany and the Soviet Union.
No surprise there.
Posted by: Ktesibios | May 30, 2009 3:00 PM
As I wrote the other day, in his book The Tempting of America, Bork believes the 14th Amendment really only applies to descendants of slaves. So if your state government wants to discriminate against Latinos or Asians, tough titty.
If you believe Bork would think discriminating against Latinos or Asians is constitutional, then you are the one who needs to read him more closely. Bork's issue, like many other originalists, is that the 14th Amendment has been perverted into something that restricts individual freedom and expands the power of government instead of ensuring individual freedom and restricting governmental power. An example of this is with its incorporation into the 1st Amendment, which has been used to stifle religious freedom. The Founders undoubtedly would never have agreed with the kinds of limitations on religious freedom that are commonplace today. Even Thomas Jefferson was OK with a church meeting in the Virginia statehouse, yet that kind of thing is continually deemed unconstitutional by today's courts. The 14th Amendment was intended to clarify that former slaves were now full citizens. It was NOT intended to say that blacks were now special in that they were free from discrimination while asians and latinos were not, as your post implied. So, in a strict sense, yes the 14th was intended to benefit former slaves. However, you are wrong if you think that it was also intended to protect blacks while leaving asians and latinos open to discrimination. That just doesn't make any sense.
Posted by: mroberts | May 30, 2009 3:02 PM
Except that nobody here has even REMOTELY suggested that they believed that - just that they think that Bork - who most people here don't like! - does.
At least try using a little reading comprehension when you think people aren't making sense.
Posted by: Michael Ralston | May 30, 2009 3:30 PM
Except that nobody here has even REMOTELY suggested that they believed that - just that they think that Bork - who most people here don't like! - does.
And they have no basis for thinking that about Bork. You can't read Bork's books and come away with the idea that he thinks the Constitution protects blacks from discrimination and not other races. Neither can you come away with the idea that citizens can only do what the legislature authorizes. Anybody who thinks this about Bork hasn't read his books, period.
Posted by: mroberts | May 30, 2009 3:55 PM
"An example of this is with its incorporation into the 1st Amendment, which has been used to stifle religious freedom. The Founders undoubtedly would never have agreed with the kinds of limitations on religious freedom that are commonplace today."
Once again, mroberts demonstrates his limitless capacity for misunderstanding, mininterpreting and flat out fantasizing the facts that do not line up with his beliefs.
You really ought to move to some wonderful place, like Iran, that HAS a theocratic form of government where the religious ARE the authorities. Whoops, wrong religion for you, though.
Posted by: democommie | May 30, 2009 5:36 PM
An example of this is with its incorporation into the 1st Amendment, which has been used to stifle religious freedom. The Founders undoubtedly would never have agreed with the kinds of limitations on religious freedom that are commonplace today.
Once again, mroberts mindlessly repeats a standard right-wing shrieking-point without citing a single specific example. Oh wait, he does cite ONE example:
Even Thomas Jefferson was OK with a church meeting in the Virginia statehouse, yet that kind of thing is continually deemed unconstitutional by today's courts.
That's IT?! Any church can have any ritual they want, anywhere they want, except in government buildings? If that's the only example of "stifling religious freedom" mroberts can come up with, then he has no case at all, and probably doesn't even know what "stifling religious freedom" really means. (Oh, and there are plenty of publicly-owned facilities that churches CAN use, at least under certain circumstances, so even there mroberts' case is pretty thin.)
mroberts' post proves he's just as clueless and uncaring as Bork.
Posted by: Raging Bee | May 30, 2009 6:33 PM
I'd think from reading these comments that there's actually no such thing as a small-government conservative. What's taking place is the confusion of the vast majority of conservatives with the small vocal extremists.
Just like some of the right wing extremists would assume that Huffpo's "science" is the view held by all liberals.
There are nuts on both sides and I'm sick of them.
Posted by: Donna B. | May 30, 2009 7:25 PM
I'm not familiar with Mr Roberts, but what on earth is he talking about when he says that the 14th Amend. is read through the 1st to restrict religious freedom? Is he one of those who believe that the religious choices of a majority get to trample the minority?
Posted by: PensiveGadfly | May 30, 2009 8:06 PM
Something else disturbing about the story. The cop in the second car said they were using sirens and lights, but witnesses say that is simply untrue.
Cops aren't different from lots of human beings who try to deny personal responsibility by assigning blame to others. But the difference between cops and the rest of humanity is that cops can make shit up, arrest people and ruin their lives in order to avoid full responsibility for their own actions.
Posted by: Dr X | May 30, 2009 9:52 PM
Nevermind the suggestion that I keep hearing from conservatives that the solution to ANY AND ALL legal questions can be found unequivocally in the U.S. Constitution.
Posted by: Hyuga | May 30, 2009 11:17 PM
mroberts,
Read the book. Bork wrote it.
And as others have noted, you're talking nonsense when you say the First Amendment has been used to stifle religious freedom. I'm pretty competent in 1st Amendment jurisprudence, and I have no idea what the hell you're talking about, unless you think prohibiting coerced prayer in public schools is violating someone's religious freedom.
Democommie, yeah, I know. I just can't help it.
Dingo, please, please, please, don't do that "libertarian/conservative" thing. They're not the same, and whatever it is the conservatives want, libertarians are primarily focused on being left alone to make their own choices.
Posted by: James Hanley | May 30, 2009 11:20 PM
P.S., I just checked and see that my college's library has a copy of Bork's book. I'll look at it Monday and post the money quote on this thread.
Posted by: James Hanley | May 30, 2009 11:22 PM
James Hanley:
I know. It's like trying not to look to see what's under the shrouds when you drive past some horrific traffic accident.
Posted by: democommie | May 30, 2009 11:30 PM
Posted by: llewelly | May 30, 2009 11:43 PM
James - with which specific part of "choose one of these two options" are you having difficulty? :)
Bob Barr's "I'm all right Jack, keep your hands off my stack" attitude & attempting to drag America back to the era of the 'Robber Barons' of the 19th Century is what you should be complaining about.
If you don't want to be the unelectable "no care, no responsibility" party, perhaps the right of the party should be asked to leave (and thence slink off into political obscurity) to give those stuck in the early 20th century a (slim) chance. - DJ
Posted by: DingoJack | May 31, 2009 4:21 AM
That's what conservatives SHOULD do, but with people like Thomas, Scalia, Roberts, and Alito on the court it plainly shows that they HAVE NOT.
Posted by: Lisa | May 31, 2009 9:40 AM
Dingo, I'ts just the perpetual linkage of libertarians with conservatives that drives me crazy. Years ago I reacted to conservatism by moving from a "don't know much about politics" stance to a left-wing position. As I learned more I shifted to libertarianism, but still despise conservatives and am more closely aligned with liberals (despite my ferocious battles with them here).
If conservatives were truly the party of small government, I could like them. But a party that tries to regulate people based on sexual identity, gender, and choice of recreational activities, that tries to make my kids say their prayers in school, and that constantly proves it is pro-business, rather than pro-market, by subsidizing and protecting corporations from comptetition, is anathema to real libertarianism.
Re: the Robber Baron era. That era isn't quite accurately understood. In part the Robber Barons weren't as bad as made out to be (Standard Oil dramatically reduced the price of kerosene, the main fuel oil at the time, through its cutthroat competition, making life better for poor people) and in part worse than they were made out to be (the government wasn't just hands-off, back then Senators were selected by state legislatures, and the Robber Barons greased enough palms to buy the votes to have their guys installed in the Senate).
What makes the Robber Baron era appear so bad is two things: First, it was a time of great social upheaval. Any time you have an industrial revolution, that's going to happen. England, for example, about a century earlier than the U.S. It's good in the long run, but harsh in the short run.
The second thing was wide-open immigration, which meant there was an oversupply of labor. The only reason industries could treat their employees so badly back then (besides lack of regulation, obviously) was that they had an endless supply of replacement labor outside their doors in a line stretching around the block. Had the immigration pipeline been shut down and labor become more scarce, the nasty capitalists would have been forced to treat their labor as a valuable commodity.
Supply and demand determine the market value of everything--including labor.
Posted by: James Hanley | May 31, 2009 11:17 AM
@James Hanley #4,
"For conservatives (as opposed to legal realists), the real law is what the Constitution means, not what the justices say it is."
I'm not a legal scholar or anything, but if the Justices don't interpret the Constitution, how do we know what it "means"?
Isn't this just another example of
"judicial activism" = "a decision I don't like"?
As to mroberts' claim that the 1st amendment is being used to stifle religious freedom, that claim only makes sense in light of the idea that one person's religion includes the duty to impose it on everyone else. Does that idea sound familiar?
Posted by: BaldApe | May 31, 2009 2:34 PM
BaldApe,
Well, you're talking to a legal realist here, so I'm mostly in agreement with the puzzlement behind your question. But part of the interpretive debates in American law is whether there is an innate meaning to the Constitution. It could be innate in the very words (a pure textualist approach), or--more often--it's claimed to come from the Founders' meaning.
But the latter assumes three very dubious things. First, it assumes that all the drafters of the Constitution agreed on the meaning of each item, which is demonstrably untrue (can be demonstrated by looking at the notes of the convention and by the ratification debates). Second, it assumes that they actually thought through all the ramifications of each item, which is simply moronic. Third, it assumes we can know what was in their heads.
So the innate meaning argument is, imnsho, bullshit. However I'm not a perfect legal realist. I do think there were general principles that were intended by the Founders, and that some general principles we could dream up are more logically derived from the text than others. So I actually, dare I say it, have a little bit of sympathy with originalist arguments.
Posted by: James Hanley | June 1, 2009 11:52 AM
Thanks much. I think we see things in very much the same way.
Posted by: BaldApe | June 1, 2009 1:14 PM
Above I said I'd provide the money quote from Bork's book on his use of the 14th amendment's equal protection clause. Well, I read it 18 years ago, and my memory didn't really serve me well. Bork does in fact apply the 14th Amendment to all minority groups, so I was wrong on the facts. But at the same time, he doesn't necessarily apply it to any other groups, and that's not only indefensible given the clause's plain language, but he provides an argument for it that he himself refutes elsewhere. Here's the quote, from pp. 65-66 of The Tempting of America:
That almost sounds good, except for two problems. First, he sneaks in the word "subjectively," glossing over the fact that there could be objective grounds for deciding to which classes the EP clause applies. Although it is imperfect, the Court's suspect classification language does create a reasonably objective standard on which to base distinctions.Second, elsewhere Bork himself says that it is silly to think that judges can't make good judgement calls. In criticizing the Texas v. Johnson case's claim that the government should not be permitted to designate specific symbols as protected from desecration because "how would we [the Court] decide which symbols were sufficiently special to warrant this unique status," (p. 127, quoting the opinion in Texas v. Johnson) Bork says:
The clear fact that his rebuttal there equally rebuts his equal protection clause stance seems to have escaped this "distinguished legal scholar and wise judge (from the book jacket's description of Bork). If the Court can make acceptable distinctions about what symbols may and may not be protected from desecration under the 1stAmendment, then certainly the Court can make acceptable distinctions about what types of unequal treatment is and is not allowed under the 14th Amendment.
But notice the effect of Bork's contradiction: in each case his interpretation allows a conservative outcome, either the limitation of equal protection or greater constraint on political speech. If Bork followed a consistent line of reasoning that gave him these results, I might argue that he's wrong, but not that he's a dishonest ass. But given that the contradiction helps his outcome in each case, and given that Bork claims to judge only on neutral principles without concern for the political effects of the case, I do call him a dishonest ass.
Posted by: James Hanley | June 1, 2009 2:16 PM
In my studies on the development of the Constitution, including the 14th Amendment; I consistently see Bork-like arguments miserably fail any investigation into the plain meaning of the text or the stated intent of the authors/leaders advocating passage. These guys were not naive morons, they knew what they were doing when they employed the language they did. Often you can find either drafts or previously used clauses that were far more specific, and therefore more narrowly drawn, yet we instead inherited language conveying a broad principle whose meaning provides ample room for liberty.
Both Barnett and Amar have provided ample evidence for the meaning of both the Bill or Rights and the 14th Amendment and the stated intent of those in power in Congress who created and championed passage of the 14th amendment, including Madison who originally drafted what ended up as the 14th but couldn't gain passage in the 1st Congress.
Posted by: Michael Heath | June 1, 2009 3:40 PM
James Hanley and Michael Heath:
Thank you for your attention to detail and ongoing scholarship.
Unlike both of you, I spent the weekend puttering about the house, drinking my two beers a day (I'm currently "front end loaded" through June 25, 2017) and downloading some "content" so that I might determine whether it is artistic erotica or whanker material (I'm thinking it tends towards the latter). I share this with you only because I want you to know that I appreciate your work, even if the intended recipient of your bons mots, a certain mroberts, has moved on to some other comment thread or blog.
Posted by: democommie | June 1, 2009 4:47 PM
DC, how wonderfully nice of you. If I could do you another favor, I'd be happy to take some beers off you for the next, oh, let's say 6 years? That should get your front-loading down to a reasonable level, without risking you running into a horrifying beer-deficit.
Posted by: James Hanley | June 1, 2009 5:06 PM
James Hanley:
You can haz my beer, when you can pry the can out of my cold, dead, rib grease smeared fingers!
Posted by: democommie | June 2, 2009 7:58 AM
Demo, well, the rib grease out to make it easier to pry them out of your fingers!
Posted by: James Hanley | June 2, 2009 9:23 AM
DC,
You need to learn my trick. I brew my own. It is often low in strength, since I drink it for enjoyment, not to get plastered.
The thing is, my wife thinks that all of my homebrew is low strength. Keeps down the ...uhhh... "constructive criticism."
Posted by: BaldApe | June 2, 2009 10:56 AM