Activism in the Judiciary

[RightJungle]

Eric Holder's reverse judicial activism...

Smearing Supreme Court Justices

Posted: 20 Jan 2011 07:16 PM PST

(John)

Common Cause started as a bipartisan organization that had considerable merit, but as always seems to happen, it was taken over by the left and is now just another arm of the Democratic Party. Which is why the organization wrote to Attorney General Eric Holder to lodge an ethics complaint against Supreme Court justices Scalia and Thomas. This is the bottom line:

Common Cause hereby formally requests that the Justice Department promptly investigate whether Justices Thomas and Scalia should have recused themselves from the

Citizens United

case under 28 U.S.C. § 455. If the Department finds sufficient grounds for disqualification of either Justice, we request that the Solicitor General file a Rule 60[bee] motion with the full Supreme Court seeking to vacate the judgment.

So, why should Scalia and Thomas have recused themselves? Because they have participated in seminars sponsored by Koch Industries, and Koch Industries has benefited from Citizens United. Seriously, that is the claim. Of course, Common Cause adds a sinister spin:

In October 2010, news reports revealed that Justices Scalia and Thomas have attended one or more invitation-only retreats sponsored by Koch Industries, the second-largest privately held corporation in the United States and a major political player that directly benefited from the

Citizens United

decision.[1]

That revelation comes from a letter and information packet, dated September 24, sent by Koch Industries CEO Charles Koch to potential attendees of the next Koch retreat, planned for January 30-31, 2011 in Palm Springs, California. Common Cause has obtained those materials, attached, courtesy of Think Progress, which broke the story.

The description of the Palm Springs program, entitled "Understanding and Addressing Threats to American Free Enterprise and Prosperity," states that:

This action-oriented program brings together top experts and leaders to discuss -and offer solutions to counter - the most critical threats to our free society. ...Past meetings have featured such notable leaders as Supreme Court Justices Antonin Scalia and Clarence Thomas; Governors Bobby Jindal and Haley Barbour; commentators John Stossel, Charles Krauthammer, Glenn Beck, and Rush Limbaugh; Senators Jim DeMint and Tom Coburn; and Representatives Paul Ryan, Mike Pence, and Tom Price.

The Koch Industries retreats are highly political, and attended by an elite group of Republican donors and officials, conservative leaders, and captains of finance and industry. I happen to know a bit about this, since I was also, several years ago, a speaker at one of the Koch Industries events in Aspen. Common Cause describes them as "highly secretive" "political strategy sessions" which can be attended by invitation only. Based on my experience, I would describe them as extraordinarily high-level seminars that are, indeed, attended by a remarkably distinguished roster of guests. The speakers, with occasional exceptions, are also distinguished. The guy who spoke after me was Arnold Schwarzenegger; this was back in the days when Arnold was a Republican.

Common Cause writes that "no mention of such an event is listed on the Justices' disclosure forms for 2008 and 2009." I assume they are talking about financial disclosure forms, and that the justices' speeches at the Koch seminars weren't listed because they weren't compensated.

So, let's add this up: Justices Thomas and Scalia accepted invitations to give speeches, presumably on legal topics, to a high-level audience of business people and other leaders. They weren't paid for doing so. The events were sponsored by one of America's most respected companies. That company, like every corporation in the United States, had its First Amendment rights confirmed in the Citizens United case. And Common Cause seriously claims that Scalia and Thomas violated ethics rules by failing to recuse themselves from that case?

The claim is risible, but then, Eric Holder is the Attorney General, so perhaps anything is possible.

Adam,

This event sounds like exactly the kind of resource that I would be able to use. I took Michael Stuart Kelley's advice to heart and did a little Googling on Koch Industries and found their downloadable Newsletter called "Discover". That looks like a pretty good place to start gettig to know about them. They are definitely from the White Hat class.

Also thank you for your info on the Common Cause vs. the Justices battle. This is good information for lay people like myself who are seeking to also be a little influential in my community. A couple of the Objectivists of Des Moines group are coming out tomorrow. Between your post and Stephen Boydstun's posts, we will have some good new material to bring to bear on what we are doing.

Thank you for being so thorough in your replys!

Stephen,

I read the Tibor Machan article "Libertarian Justice: A Natural Rights Approach". I like his discussion of rights. I hit one snag, though, that I haven't quite figured out yet. He says, "However, Natural Rights Libertarianism, which is the one richest in normative content, does not regard the rights of human beings as normatively primary." Maybe I need to get out Tara's "Normative Ethics of Ayn Rand.." again so I can check my thinking but I think that I have been treating individual rights as normatively primary in the philosophical area of Politics and Economics. I use statements like "The Individual is the Unit of Value in Politics." Given that the sole purpose of government is the protection of individual rights, wouldn't using individual rights as the value against which all statutes of law are measured make natural rights normative? Ah, I think I just answered my own question. Even though Individual rights pertain to action, they are not a model of behavior. They are the value that the behavior is going to act to gain or keep and thereby provide a way to describe the standard of behavior necessary to protect rights and political freedom. It is the behavior that is normative - that is, it is about normative ethics. Getting there, inch by inch.

There's a scene in "Broken Arrow" when John Travolta is getting all excited about his "project" beginning to come to fruition and, eyes shining and a big smile on his face, he enthuses "Ain't it cool?" Except that my project is of a different nature altogether, I know exactly how that feels.

Objectivist Living is proving to be a great place to visit!

Mary Lee

[Guyau]

Stephen,

I read the Tibor Machan article "Libertarian Justice: A Natural Rights Approach". I like his discussion of rights. I hit one snag, though, that I haven't quite figured out yet. He says, "However, Natural Rights Libertarianism, which is the one richest in normative content, does not regard the rights of human beings as normatively primary." Maybe I need to get out Tara's "Normative Ethics of Ayn Rand.." again so I can check my thinking but I think that I have been treating individual rights as normatively primary in the philosophical area of Politics and Economics. I use statements like "The Individual is the Unit of Value in Politics." Given that the sole purpose of government is the protection of individual rights, wouldn't using individual rights as the value against which all statutes of law are measured make natural rights normative? Ah, I think I just answered my own question. Even though Individual rights pertain to action, they are not a model of behavior. They are the value that the behavior is going to act to gain or keep and thereby provide a way to describe the standard of behavior necessary to protect rights and political freedom. It is the behavior that is normative - that is, it is about normative ethics. Getting there, inch by inch.

There's a scene in "Broken Arrow" when John Travolta is getting all excited about his "project" beginning to come to fruition and, eyes shining and a big smile on his face, he enthuses "Ain't it cool?" Except that my project is of a different nature altogether, I know exactly how that feels.

Objectivist Living is proving to be a great place to visit!

Mary Lee

Mary Lee,

I think what Tibor means is that individual rights are not the base of all moral behavior, but are themselves based on more general moral norms. He thinks they are correctly based on ethical egoism. He would surely agree however, that the concept of individual rights is the formula for proper use of force in interpersonal relations, including the deliberate use of force that is government.

I have not studied this subject for some years, but I expect my own view would come down a bit differently than Tibor’s. I see the circumstances that every individual is an end in himself as issuing the prescription that they should be left free to live as ends in themselves. That is, because the organism is human, he can choose against his nature as an end in himself and against that nature in others. The circumstance that each is rightly an end in himself issues a double normative blast, not two in tandem. The rightness of egoism (of some rational sort) and the rightness of individual rights spring together from the fundamental that individual life is an end in itself. That is putting it all too simply, but hopefully worth adding to the conversation.

It remains that I can agree with Tibor that the normativity of rights derives from more basic ethical norms (deriving from the nature of human life, individual and species). The three of us definitely agree that, as you indicated, respect for individual rights does not exhaust all the ways in which individuals should be treated as ends in themselves and does not exhaust moral behavior.

Stephen

[BaalChatzaf]

Every time stare decisis is applied to a case, judicial activism has occurred.

Ba'al Chatzaf

[Selene]

Every time stare decisis is applied to a case, judicial activism has occurred.

Ba'al Chatzaf

[stare decisis] is a maxim among ... lawyers, that whatever has been done before may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind.

— Jonathan Swift, Gulliver’s Travels.

[Guyau]

. . .

I see the circumstances that every individual is an end in himself as issuing the prescription that they should be left free to live as ends in themselves. That is, because the organism is human, he can choose against his nature as an end in himself and against that nature in others. The circumstance that each is rightly an end in himself issues a double normative blast, not two in tandem. The rightness of egoism (of some rational sort) and the rightness of individual rights spring together from the fundamental that individual life is an end in itself.

There is a fair rough sketch of Rand’s thought on those dual normative projections from the concept of individual life as an end in itself in the paper “Our Unethical Constitution” by Candice Jackson (JARS V6N2). Jackson writes:

For Rand, the proposition that every man is an end unto himself rather than a means to the ends of others is an imperative of both political ethics and personal morality. Not only is it politically unethical to force a man to serve the will of others, it is also personally immoral for a person to voluntarily subjugate his life to the will of others. Objectivism’s defense of the proposition “each man is an end unto himself” in the political context is intertwined with its defense of the same proposition in the personal, moral context. (414)

For Rand, the proposition that every man is an end unto himself finds validity in the political context only as a derivation from defense of the same proposition in the context of personal morality. (414–15)

Jackson attends carefully to the order of the presentation of these ideas as they are introduced in Galt’s speech: first end-in-himself in setting out the virtue of pride; then, immediately, end-in-himself as basic social principle in Rand’s ethics; then to its implication of the basic political principle, the non-initiation of force.

Jackson contrasts Rand’s development of basic political principles, including the concept of individual rights, to Murray Rothbard’s approach. In his approach, an axiom of self-ownership is articulated free of connection to personal morality, particularly an egoistic morality opposing the Judeo-Christian tradition. The Rothbard approach is an example of what Tibor is rejecting by saying that rights are not normatively primary.

Jackson, who is an attorney, goes on to compile the important ways in which the US Constitution is not designed simply to protect individual rights. This is an informative, historically informed, paper.

[Selene]

Mary Lee:

This is another effort to work around "judicial activism" and resurrect the older concept of federalism.

BOISE, Idaho – Republican lawmakers in nearly a dozen states are reaching into the dusty annals of American history to fight President Obama's health care overhaul.

They are introducing measures that hinge on "nullification," Thomas Jefferson's late 18th-century doctrine that purported to give states the ultimate say in constitutional matters.

GOP lawmakers introduced such a measure Wednesday in the Idaho House, and Alabama, Kansas, Maine, Missouri, Montana, Oregon, Nebraska, Texas and Wyoming are also talking about the idea.

http://news.yahoo.co...nullification_3

Edited January 27, 2011 by Selene

[RightJungle]

Adam,

Could you expound on that last post a little? What are your main points and what is your judgment about them?

Edited February 7, 2011 by Mary Lee Harsha

[Selene]

Adam,

Could you expound on that last post a little? What are your main points and what is your judgment about them?

Mary Lee:

I am trying to get my mind around resurrecting nullification and the tenth amendment. Many here will argue that the Civil War settled the issue at great cost to our nation.

Lew Rockwell recommended this website, the Tenth Amendment Center, which I have just joined:

http://www.tenthamendmentcenter.com/

I have been desirous of a better employment of the Ninth and Tenth as a Constitutional method to reduce and eliminate federal power which has become more distant, more oppressive and more anti-founders Constitutional concepts.

"At the core of the debate was the clash between two distinct theories of the Constitution: the nationalists view of a single sovereign people, a modern unitary state were power comes from a central authority, or the compact theorists who believe the United States had been formed when the thirteen original states each acting in its own sovereign capacity ratified the Constitution through STATE ratifying conventions rather than some single American people. Senator Daniel Webster argued that upon entering the Union, states surrender certain powers to the general government and that the general government itself is the final arbiter of their power. However, Senators Calhoun, Haynes and Rowan argued that the states never surrendered, but delegated power to the general government and one does not delegate to a greater authority, but to a lesser one. "

The problem facing us today in advocating for the compact theory and nullification is that we will be tainted with the "slaver" label. Or, what do you want to do repeal the fourteenth amendment which extended federal rights through to the states.

My answer would be, of course not.

I am still wrestling with this concept and I am completely rusty on the case law for the tenth amendment which I will begin to rectify.

Adam

much more to follow

[RightJungle]

O.K., Adam. Your explanation is very helpful. I will start paying attention to all of that as well. Time is the determining factor, but I see a relationship between what you say here and what one of my Iowa tea party felllows said about his view of the 14th amendment as bad. I was surprised, but didn't investigate it yet. Now I will.

Thank you.

[Michael Stuart Kelly]

I have a very simple comment on the reality context of nullification.

Here's the reality of the world:

Big nasty bullies out there who will invade if there is no defense <--------> BLOCK <--------> Solid government

If the solid government permits a method for it's own destruction within its structure, it makes the people under it vulnerable to attack from the big nasty bullies.

(That's even how we settled the frontier in the USA.)

If we can get rid of the big nasty bullies, there is no reason for self-preservation to be a value of the republic. So long as the bullies and takers exist, a constitutional republic that survives is the best protection that has been demonstrated so far and still enjoy freedom as much as possible.

Within that context, I don't see much logic in proposing a system of government that can self-destruct as an issue of right.

I suppose we all have a right to suicide by cop, so I suppose a country has a right to suicide by bully. I see no reason to sanction that with law, though.

Michael

[RightJungle]

Adam,

Could you expound on that last post a little? What are your main points and what is your judgment about them?

Mary Lee:

I am trying to get my mind around resurrecting nullification and the tenth amendment. Many here will argue that the Civil War settled the issue at great cost to our nation.

Lew Rockwell recommended this website, the Tenth Amendment Center, which I have just joined:

http://www.tenthamendmentcenter.com/

I have been desirous of a better employment of the Ninth and Tenth as a Constitutional method to reduce and eliminate federal power which has become more distant, more oppressive and more anti-founders Constitutional concepts.

"At the core of the debate was the clash between two distinct theories of the Constitution: the nationalists view of a single sovereign people, a modern unitary state were power comes from a central authority, or the compact theorists who believe the United States had been formed when the thirteen original states each acting in its own sovereign capacity ratified the Constitution through STATE ratifying conventions rather than some single American people. Senator Daniel Webster argued that upon entering the Union, states surrender certain powers to the general government and that the general government itself is the final arbiter of their power. However, Senators Calhoun, Haynes and Rowan argued that the states never surrendered, but delegated power to the general government and one does not delegate to a greater authority, but to a lesser one. "

The problem facing us today in advocating for the compact theory and nullification is that we will be tainted with the "slaver" label. Or, what do you want to do repeal the fourteenth amendment which extended federal rights through to the states.

My answer would be, of course not.

I am still wrestling with this concept and I am completely rusty on the case law for the tenth amendment which I will begin to rectify.

Adam

much more to follow

How is your study on this coming along? I have to admit that I wandered off into another area trying to make sure that I understood the process of "Objectivity Confirmation" and haven't gotten back to it. I understand "Objectivity" a little better though. Kinda funny, given the name of this forum, isn't it?

[Selene]

Mary Lee:

It is going slowly because of my being distracted by work, pushing the movie and the pace of events in the world. Also, getting out proposals to political campaigns for the 2012 campaign.

However, I will have some more refined ideas real soon. There is a lot of activity on this issue in about twenty states.

Sorry to be slow to this issue since I believe it is critical to the next year politically.

Adam

[RightJungle]

I know what you mean. We did a litle presentation to Governor of Iowa, Terry Branstad today. It took hours to prepare for a 1/2 hour meeting. We've got a pack of politicians coming to Des Moines this Saturday and that will be an all day affair. I'm just a spectator at that. We need to get this country's and our state's politics back on track so we can go do something fun and non-political again.

I will continue to work on it, too when I can. It actually is enjoyable to be learning so much about things that I had not thought much about before. Objectivism makes the study much easier than it would be without those standards.

[Selene]

I know what you mean. We did a litle presentation to Governor of Iowa, Terry Branstad today. It took hours to prepare for a 1/2 hour meeting. We've got a pack of politicians coming to Des Moines this Saturday and that will be an all day affair. I'm just a spectator at that. We need to get this country's and our state's politics back on track so we can go do something fun and non-political again.

I will continue to work on it, too when I can. It actually is enjoyable to be learning so much about things that I had not thought much about before. Objectivism makes the study much easier than it would be without those standards.

Mary Lee:

Well, were you in this crowd?

Adam

[RightJungle]

I know what you mean. We did a litle presentation to Governor of Iowa, Terry Branstad today. It took hours to prepare for a 1/2 hour meeting. We've got a pack of politicians coming to Des Moines this Saturday and that will be an all day affair. I'm just a spectator at that. We need to get this country's and our state's politics back on track so we can go do something fun and non-political again.

I will continue to work on it, too when I can. It actually is enjoyable to be learning so much about things that I had not thought much about before. Objectivism makes the study much easier than it would be without those standards.

Mary Lee:

Well, were you in this crowd?

Adam

That was the Smokey Row meeting for Michele, obviously. I'm not there. I was in Des Moines, but skittered out and home around noon. The big deal is tonight with Newt. Couldn't tolerate that, so here I am at home trying to work up a logo to go with a new internet radio show on Objectivism (I'm such an expert) and maybe a logo for our Rational Patriots arm of The Objectivists of Des Moines group. Believe me, after all the discouraging stories in the Des Moines Register this week, this is way more productive an effort.

[Selene]

I know what you mean. We did a litle presentation to Governor of Iowa, Terry Branstad today. It took hours to prepare for a 1/2 hour meeting. We've got a pack of politicians coming to Des Moines this Saturday and that will be an all day affair. I'm just a spectator at that. We need to get this country's and our state's politics back on track so we can go do something fun and non-political again.

I will continue to work on it, too when I can. It actually is enjoyable to be learning so much about things that I had not thought much about before. Objectivism makes the study much easier than it would be without those standards.

Mary Lee:

Well, were you in this crowd?

Adam

That was the Smokey Row meeting for Michele, obviously. I'm not there. I was in Des Moines, but skittered out and home around noon. The big deal is tonight with Newt. Couldn't tolerate that, so here I am at home trying to work up a logo to go with a new internet radio show on Objectivism (I'm such an expert) and maybe a logo for our Rational Patriots arm of The Objectivists of Des Moines group. Believe me, after all the discouraging stories in the Des Moines Register this week, this is way more productive an effort.

Mary Lee:

I have no doubt that your individual effort is more important than the political dance that has begun once again with a slim chance for effecting the real, dramatic and critical change that we demand.

What "discouraging" stories are you referring to from this week in the Des Moines Register?

Adam

Edited March 27, 2011 by Selene

[RightJungle]

I am going to put them here one at a time as I have time. I really would like to know what non-Iowans think about all of this.

Here is one from Tuesday, March 22 that roused my competitive spirit a little.

Section: Metro & Iowa on Tuesday, March 22, 2011, Page 1 bottom. Headline reads:

Debate on economic development bill likely this week

By Jason Clayworth.

The gist is that last Wednesday the Iowa House debated "a major reorganization of the state's economic development efforts, including creation of a nonprofit group that would operate without the same public scrutiny as typical government bodies. The economic development corporation would be charged with receiving and distributing money from both taxpayer and private sources, to be used to further economic development. It's part of a plan to scrap the state's current Department of Economic Development and restructure it as a public-private entity. (Can we say Agenda 21 boys and girls?)

The corporation would not be considered a state agency and would not have to comply with requirements such as Iowa's open records law. Critics worry that businesses could influence the corporation to help them win millions of dollars in taxpayer subsidies without public disclosure of their ties to the nonprofit corporation.

Advocates say businesses already influence economic development practices (and isn't that what they are supposed to do? except without picking my pocket.) and that the proposed corporation would have distinct duties that would help avoid improper influence. (Really? How?)

Here's a breakdown of House File 590:

BACKGROUND: The bill reflects Gov. Terry Branstad's campaign pledge to reform the state's economic development department, which he called "scandal-ridden" following an audit that found misuse of taxpayer money in an incentive program for moviemakers. The proposed public-private entity would increase flexibility and incorporate a customer-service mentality so Iowa can make the "sale" to keep or create jobs, he said when unveiling the idea last year. Part of what makes this hard for me to accept is that I didn't know he had unveiled this idea during the campaign. I had low expectations and didn't always pay attention. Also, I voted for the Libertarian candidate.

THE BILL: It would scrap the current state Department of Economic Development (this is what the Tea Party members were calling for, not the new organization.) and the Iowa Economic Development Board. It would create the Iowa Partnership for Economic Progress, consisting of a nonprofit economic development authority and a companion economic development corporation. (I immediately thought about the Louisiana Slaughterhouse case. Of course, we now have craven cowards where our State Supreme Court used to be, so there will be no challenge to this in the court system.)

DUTIES: The partnership would work as an advisory body within state government. It would have a seven-member board led by the governor or lieutenant governor and filled with business leaders. The authority would have a nine-member board to oversee incentives.(If Ayn Rand was alive today, she would be rolling over in her grave. Who chooses the lucky ones? A nine member board. Yeah, right.) A third board overseeing the nonprofit corporation (wait a minute – non profit? Where does its financing come from? From us, the funders of Government?) would distribute money from both taxpayer and private sources to further economic development.

CONCERNS: Democrats on Monday said they planned to offer amendments that would require further reporting requirements by the nonprofit corporation. Democrats said they are not out to sink the bill but think more should be done to avoid potential political or financial headaches. (Headaches? How about out and out rights violations?)

QUOTE: "It could lead to some improprieties," said Rep. Roger Thomas of Elkader, the top-ranking Democrat on the House Economic Growth Committee. "In my world, this is a big deal for the state. Who is going to get those incentives?" (Yeah, who? And what is good about Government making those choices?)

ADVOCACY: The bill requires the nonprofit corporation to file an annual report about its activities to the Legislature. Possible financial influence from businesses exists in Iowa's current system and is something that lawmakers must continue to deal with, said Ed Wallace, president of the Iowa Taxpayers Association, a nonpartisan research group in Des Moines that represents more than 150 businesses. (Let me see, Ed represents 150 businesses – private industry – and likes this whole program? But of course. Business is business, right?) But he sees benefit in a nonprofit corporation to help strengthen Iowa's business-building structures, he said.

SAFEGUARDS: Board members of the nonprofit corporation can't sit on the board of the authority, where key decisions are made about how to spend taxpayer money. (Let's see – the authority that oversees the incentives can't also be members of the third board that actually distributes the money. Hmm. Yeah, no chance of the authority overstepping that boundary, huh?) House Republicans are also expected to offer their own amendments to ensure every taxpayer dollar given to the nonprofit corporation is accounted for, said Debi Durha!)m, director of the state's economic development department. Some of the suggestions came from Bill Monroe, Branstad's transparency adviser. The state, upon advice from the Iowa attorney general, cannot prescribe how the corporation would spend its private money without opening taxpayers to liability, Durham said. (Anyone else having trouble understanding what Debi Durham just said? You know what? I don't want my government funding money to be accounted for by these goons. I want it back in my bank account).

QUOTE: "I would stake my reputation that this is far more transparent than what we have today," Durham said." (I wonder what this man's reputation is actually worth. Anyone know?)

Edited March 28, 2011 by Mary Lee Harsha

[caroljane]

As a non-Iowan, if I were dead today I would be rolling on Objectivist Living.

Carol

could not resist, sorry

[RightJungle]

As a non-Iowan, if I were dead today I would be rolling on Objectivist Living.

Carol

could not resist, sorry

I've developed a bad habit of using what is meant to be a funny reference: If so and so was alive today he would be rolling over in his grave. But just as a great many people miss that, I just don't get your reference to rolling on Objectivist Living. I know that having to explain a joke can kill it, but I'm so curious about what you meant.

[caroljane]

As a non-Iowan, if I were dead today I would be rolling on Objectivist Living.

Carol

could not resist, sorry

I've developed a bad habit of using what is meant to be a funny reference: If so and so was alive today he would be rolling over in his grave. But just as a great many people miss that, I just don't get your reference to rolling on Objectivist Living. I know that having to explain a joke can kill it, but I'm so curious about what you meant.

ML,

I was thinking of "on a roll" and "rocking and rolling" - & also the subtext of your own joke, AR is dead but certainly alive here on OL.

Thanks for forgiving my intrusion!

[RightJungle]

As a non-Iowan, if I were dead today I would be rolling on Objectivist Living.

Carol

could not resist, sorry

I've developed a bad habit of using what is meant to be a funny reference: If so and so was alive today he would be rolling over in his grave. But just as a great many people miss that, I just don't get your reference to rolling on Objectivist Living. I know that having to explain a joke can kill it, but I'm so curious about what you meant.

ML,

I was thinking of "on a roll" and "rocking and rolling" - & also the subtext of your own joke, AR is dead but certainly alive here on OL.

Thanks for forgiving my intrusion!

Oh, Thank you. I'm having one of those obtuse days.