Jul 142009

As I watch the Sotomayor confirmation hearings in a live CSPAN web feed,  a thought has occurred to me: not all litmus tests are bad.

Much ado is made with regard to ensuring that judges raised to the Supreme Court bench unbiased and impartial, and that they not be subjected to ideological litmus tests. I agree that justices should judge constitutionality without respect to persons, parties, or extra-constitutional ideologies. First, one must honestly and openly recognize that screening for bias and partiality is itself litmus test. Indeed, it is a right and salutary litmus test. However, it lacks power and significance if one does not ask by what standard a nominee would determine bias and partiality in order to render an opinion according to precedence and the facts in the case. That is, one must know the absolute rules by which a nominee would judge the relative and contextual legal merit of arguments. Put another way, I won’t trust a length measurement unless I am reasonably certain that the ruler or tape used is accurate and sufficiently precise for the scale and purpose of measurement.

This leads me to an ideological litmus test that subsumes that just mentioned and that is entirely appropriate and essential for SCOTUS nominees. That test is whether as a justice he or she would interpret the Constitution and preceding opinions according to a Jeffersonian or Hamiltonian hermeneutic. Jefferson favored a narrow interpretation that would forbid any power to the federal government not explicitly granted to it by the Constitution, thus binding it in tight chains. Hamilton favored a broad interpretation that would grant any power to the federal government not explicitly forbidden by the Constitution, thus hardly binding it at all.

Were I a senator on the Judiciary Committee, I would not vote to confirm any nominee explicitly or tacitly approving of the Hamiltonian hermeneutic. I make no apology for that. Rather, I demand an explanation and apology from those committee members who would not apply such a test.

Jun 292009

There’s been a lot of buzz in the #tlot and #tcot tags on Twitter about the latest SCOTUS ruling. In Ricci v. DeStefano, the Supreme Court court overruled a decision that nominee Sonya Sotomayor contributed to.

“New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.”

I tend to agree that this decision rightly overturned an abuse of the 1964 Civil Rights Act that amounted to reverse discrimination. However, as far as I know libertarians don’t care much for this misnamed (in their view) law (c.f., “Civil Rights Act” search at LewRockwell.com). Continue reading »

Jun 252009

In his dissenting opinion in Safford Unified School District No. 1 v. Redding, Justice Clarence Thomas argued that the strip search of a middle-schooler was justfiable and out of the Supreme Court’s jurisdiction.

“Preservation of order, discipline and safety in public schools is simply not the domain of the Constitution,” he said. “And, common sense is not a judicial monopoly or a constitutional imperative.”

First of all, I don’t believe public education itself is permitted by the Constitution, but I’m sure Justice Thomas would disagree. Secondly, the actions of a school official would not likely be a constitutional issue if the school in question were not public. Thirdly, because the school in question is public, the constitutional protections against unlawful search and seizure ought to apply. After all, the Bill of Rights was intended to protect individuals from the abuses and depredations of the state. Lastly, why the hell would a child not have a reasonable expectation of privacy with regard to undressed body?!

Jun 162009

The Commonwealth of Pennsylvania has some rather intrusive interventionist alcohol laws. Wines and spirits can only be sold in state stores and the distribution of beer is regulated tightly. Tentative efforts taken by the Pennsylvania Liquor Control Board in recent years have sought to expand the range of alcohol retailers in the state. These have included trial exceptions to Sunday sale laws and laws that currently forbid grocery stores and convenience stores from selling alcohol. However, either good intentions have met with entrenched bureaucracy or the PA Supreme Court is playing bad cop to the legislature’s good cop. To wit:

Court OKs beer to-go but Sheetz must also sell on-site

“The Pennsylvania Supreme Court declined to shake up the way beer is sold in the commonwealth yesterday, ruling that a Sheetz store in Altoona cannot sell beer to-go unless it’s also served for on-site consumption. The court took a long drink from the state’s liquor laws and — more than a year after hearing arguments on the case — determined by a 5-1 vote that although the specific language is vague, the writers of the state’s laws on beer distribution did not intend for convenience stores to sell suds.”

I would like to see an end to PA’s bizarre relationship with alcohol sales, but I can respect ruling in its favor for the sake of rule of law. However, I’m not convinced that respect for rule of law guided this decision. What tipped me off:

“The [Sheetz] store began selling take-out six-packs in 2004 after the Pennsylvania Liquor Control Board granted it an ‘eating place malt beverage license.’ The Malt Beverage Distributors Association objected, claiming that such licenses are meant for bars and eating establishments that primarily serve beer to in-house patrons — which the Sheetz did not do. The group argued that the store had become a beer distributor free of the state’s regulations that distributors sell only by the case or keg.”

Gee, we wouldn’t want to allow any new competition for the members of the Malt Beverage Distributors Association, would we?

Ain’t lobbying, favoritism, and collusion grand? :-/