The Story Not Told as Important as the Story Told: A Case in Point

Earlier today, a pair of stories crossed the AP wire that will probably make most of tomorrow's newspapers. They centered on the future of abortion politics and omitted more than they included.

The first story, "Future of Roe v. Wade abortion decision hinges on Supreme Court makeup," briefly states that even if Chief Justice John Roberts and nominee Samuel Alito both proved to be votes for overturning Roe v. Wade, one additional vote would still be needed to put them into the majority and that vote would likely come from a future nominee replacing one of the liberal justices on the Court. I just mention this story because it leads to the second story.

The second of this pair of stories, "State-by-state battles likely if Supreme Court reversed landmark abortion ruling," omits far more than it really says. This story begins well with its exposition of the intense political battles at the state level should abortion law return to full state control as it was prior to 1973. Then, through both what is in the story and what is not, the media bias shows itself.

Before I dive too deeply into the potential political and legal issues involved, I would be terribly remiss if I did not remind you of the contrasting worldviews that resulting the conflict over abortion. To those of us who are pro-life, abortion is the murder of an unborn child. To those who are pro-choice, this view does not hold and thus the primary moral issue is a woman's control over her body. Thus, given these differences, abortion is bound to always be a controversial issue among those who have taken positions.

If abortion laws are returned to state control, many states--and many more than the reporter would like you to believe--would prohibit abortion except to protect the mother's life or in cases of pregnancies resulting from rape or incest. Some states would restrict abortion to a greater extent than now permitted, but would still generally allow early-term abortions after encountering a few more restrictions. Other states--a list which I submit would include most of the "blue states" but not all of them--would generally allow abortion on demand, at least prior to viability.

Now, the media bias begins. The overt bias is sufficiently easy for an alert reader to detect. Well-to-do adult women from states banning or severely restricting abortion would just travel to California, Illinois, Maryland, New York, or other states with liberal abortion laws. The poor, teenagers, and women in abusive relationships who could not travel would have to get dangerous, back-alley abortions. Although never a part of the formal logic of Roe, these arguments undoubtedly swayed the Supreme Court to seek a rationale for converting its policy preference into legal precedent. On the other side of the equation, there can be no doubt some on the left want to depress conservative enthusiasm for simply returning to pre-1973 case law by instilling a belief that achieving this end would not be worth it.

The second element of the bias is the reporter's deeply embedded thesis that overturning Roe v. Wade would destroy the majority constituency of the Republican Party and the conservative movement in general. I'm sure the press would like to instill some unease among the establishment Republicans of what might happen if we really got our way in the Court. However, this theory still misses the mark: conservatism and the conservative movement--both in politics and in the judiciary--is not a single-issue cause.

If you buy the media's account of this, the GOP and the conservative movement would be finished because if states got the power to outlaw abortion, we would see an uprising of pro-choice voters to defeat those "radical right-wingers" who previously posed no real threat to "choice." Are there really that many people who would vote differently in their state legislative elections if the legality of abortion were an issue and are there enough of them to matter? Also, what about moderate and socially liberal voters who migrated to the Democratic Party? Might they not also reconsider their party allegiances and--seeing that their views will prevail in such socially liberal strongholds as California, New Jersey, New York, and Connecticut, for example--return to the GOP on fiscal issues? This is a two-edged sword that can cut both ways, yet the press sees only one.

I am also sure the media would like to depress conservative enthusiasm for overturning Roe because it would merely return the issue to the states and not--as was primarily advocated in the 1970s and 1980s--ban abortion nationwide. I think most conservatives agree with the statement almost 25 years ago by Judge Bork--for which he was branded as far outside the mainstream and fell victim to the first borking in 1987--that the Constitution is silent on abortion and the underlying issue of a "substantive right to privacy" that forms the basis for Roe. Interestingly enough, the left forgets, is that this was when Bork was testifying against the Human Life Amendment, which would have amended the Constitution to ban abortion nationwide. Absent an arbitrary, constitutionally unfounded, one-size-fits-all standard as is currently in effect, abortion would--at the state level--be tackled in varying manners just as are other moral issues like gambling.

If the states did recover the power to decide their own abortion laws, we would see a political battle over the issue for a while. The most interesting battles would likely be in the states with initiative and referendum, where the question would likely find its way to the ballot and beyond the influence of legislative apportionment, the concentration of more liberal voters in urban areas, and the silence of pro-choice residents of rural areas. Most states would, I believe, decide to directly or effectively prohibit abortion with the 3 major exceptions.

Moving forward, we could see the rise of a new set of constitutional issues that would challenge the political and judicial philosophies of both conservatives and liberals. I believe we could see a real test of the interpretation of the Commerce Clause if Roe v. Wade is overturned. Current case law on the Commerce Clause holds that Congress has broad powers to regulate almost anything in or affecting the stream of commerce between the states or internationally. This is the basis of the vast majority of federal laws that impact us individually. Almost all labor laws, environmental laws, drug laws, and gun control laws are based on regulating interstate commerce.

Suppose the federal government decided to pass federal laws regulating abortion the same way it regulates firearms. Congress has passed certain federal laws to complement state gun control laws. Under federal law, a person cannot buy a handgun outside his state of residence. Long guns cannot be bought outside a person's state of residence unless the legislature of that state has enacted a law authorizing out-of-state long gun purchases. Using this history of legislation and the current case law on the Commerce Clause, suppose Congress passed a law prohibiting the crossing of state lines to obtain an elective abortion and thus limiting a person's ability to obtain an abortion to what can legally be obtained in that person's state of residence just as it has limited one's right to obtain a gun to what the person's state of residence permits. We would undoubtedly generate a new line of cases challenging Congress's powers under the Commerce Clause, putting many people's political preferences & judicial philosophies at odds.

At this point, there are a lot of contingencies that would have to be met. However, let's continue on the presumption that this path is traveled. I believe the Supreme Court incorrectly decided the medical marijuana case earlier this year, even though as a policy matter I would oppose that policy. In that case, the court did so expressly to protect federal powers under the Commerce Clause.

Since I do not believe the Commerce Clause was ever meant by the founding Fathers to accord broad powers to Congress, I support a more narrow interpretation of the Commerce Clause that would eliminate much of the federal government's role in regulatory policy. At this point, we will have a major opportunity to revisit the proper scope of federal power under the Commerce Clause. Since in this hypothetical case, we would be dealing with a direct regulation on actually crossing state lines and not a question on whether a minor connection to a "stream of commerce" triggers the full regulatory authority of the federal government, I cannot predict exactly how the courts should rule on a federal ban on crossing state lines to obtain an abortion in evasion of the laws of a person's state of residence.

All of this depends on whether Chief Justice Roberts, Judge Alito, and the next nominee to the Supreme Court prove to be strong originalist interpreters of the Constitution and determines the Constitution is silent on state abortion laws. However, the fear the left would like to instill among women and its predictions of a GOP/conservative crackup should Roe v. Wade be overturned are both unfounded.

9th Circuit Rules Parents Cannot Sue School for Subjecting 7-Year Olds to Explicit Sex Survey

Just as we're preparing for the battle to confirm Judge Samuel Alito to the Supreme Court, we get this shocking remainder of the need to appoint sane judges to the bench. Out in San Francisco, our friends on the 9th Circuit have ruled a public school can subject 7-year-olds to an explicit sex survey without parental notification or consent.

From the Associated Press:

SAN FRANCISCO (AP) -- A federal appeals court Wednesday dismissed a lawsuit by parents who were outraged that a school district had surveyed their elementary school-age children about sex.

The three-judge panel of the 9th U.S. Circuit Court of Appeals rejected the parents' claim that they have the exclusive right to tell their children about sex.

In upholding a lower court ruling against the parents, Circuit Judge Stephen Reinhardt said "no such specific right can be found in the deep roots of the nation's history and tradition or implied in the concept of ordered liberty.''

This is just nuts. Of course, we must expect nothing less from the judge overruled by the U.S. Supreme Court more than any other judge. In 1997, the Weekly Standard had an article on Judge Reinhardt (appointed in 1980 by Jimmy Carter) that is still quite timely. Click here to read the ruling. While the AP story steers clear of the details of the case, RedState has some truly shocking details that all should know:

The survey asked seven year olds to "rate the following activities" among which were these:

8. Touching my private parts too much
17. Thinking about having sex
22. Thinking about touching other people’s private parts
23. Thinking about sex when I don’t want to
26. Washing myself because I feel dirty on the inside
34. Not trusting people because they might want sex
40. Getting scared or upset when I think about sex
44. Having sex feelings in my body
47. Can't stop thinking about sex
54. Getting upset when people talk about sex

Seven year olds were asked these questions. The parents of the children learned of the survey questions when their children started telling them about the survey. Horrified, the parents complained to the school, arguing that had they know the true nature of the survey, they would have never offered the consent. The school district rebuffed the parents, and the parents sued.

It's OK to Launch Racist Attacks on Your Opponent--as Long as Your Opponent is a Republican

Over in Maryland, Lieutenant Governor Michael Steele is running for the U.S. Senate seat being vacated next year by longtime Senator Paul Sarbanes. Steele is no ordinary politician. He's the first Republican Lieutenant Governor of Maryland and he's the first African-American to be elected to statewide office in the state with the highest black population (percentage-wise) of any state outside the Deep South. As they've done before with other conservatives like Clarence Thomas, liberal Democrats have shown no regard for the racial sensitivity they profess when it comes to attacking conservative minorities.

Today's Washington Times reports:

Black Democratic leaders in Maryland say that racially tinged attacks against Lt. Gov. Michael S. Steele in his bid for the U.S. Senate are fair because he is a conservative Republican.

Such attacks against the first black man to win a statewide election in Maryland include pelting him with Oreo cookies during a campaign appearance, calling him an "Uncle Tom" and depicting him as a black-faced minstrel on a liberal Web log.

Operatives for the Democratic Senatorial Campaign Committee (DSCC) also obtained a copy of his credit report -- the only Republican candidate so targeted.

...

State Sen. Lisa A. Gladden, a black Baltimore Democrat, said she does not expect her party to pull any punches, including racial jabs at Mr. Steele, in the race to replace retiring Democratic U.S. Sen. Paul S. Sarbanes.

"Party trumps race, especially on the national level," she said. "If you are bold enough to run, you have to take whatever the voters are going to give you. It's democracy, perhaps at its worse, but it is democracy."

Delegate Salima Siler Marriott, a black Baltimore Democrat, said Mr. Steele invites comparisons to a slave who loves his cruel master or a cookie that is black on the outside and white inside because his conservative political philosophy is, in her view, anti-black.

"Because he is a conservative, he is different than most public blacks, and he is different than most people in our community," she said. "His politics are not in the best interest of the masses of black people."

During the 2002 campaign, Democratic supporters pelted Mr. Steele with Oreo cookies during a gubernatorial debate at Morgan State University in Baltimore.

In 2001, Senate President Thomas V. Mike Miller Jr. called Mr. Steele an "Uncle Tom," when Mr. Steele headed the state Republican Party. Mr. Miller, Prince George's County Democrat, later apologized for the remark.

"That's not racial. If they call him the "N' word, that's racial," Mrs. Marriott said. "Just because he's black, everything bad you say about him isn't racial."

Click here to read more.

Meet the Alitos

Reuters had this photo of Judge Alito's wife & children from his nomination announcement yesterday at the White House.

Insert Clinton joke here. Also, fellas, don't be a fool: please remember the girl is from New Jersey.

Senate Dems Distort, Divert, and Divide; Next Phase of Rocky's Impeachment Plan Now in Progress

Senate Democrats, seeing the political momentum in Washington swing decisively back to the Republicans, today brought Senate business to a halt and forced a closed-door session at which they bloviated about the investigation of pre-Iraq war intelligence. This move was unprecedented, unannounced, and clearly the next step in a plan to eventually call for the President's impeachment that was first articulated in a 2003 memo by the staff of Senator Jay Rockefeller.

The same Harry Reid that brought the Senate to a standstill today put Senator Byrd to sleep last week.

If you don't remember, two years ago, Rockefailure's staff drafted a strategy memo that outlined a comprehensive strategy toward undermining the legitimacy of the Iraq war. Although the "I" word was never mentioned, there can be no denial that impeachment of the President and/or Vice President would be the remedy sought for any alleged deception for which the left would claim to have proof.

The schemes concocted by the left in this area cannot succeed without weak-spined Republicans on the Hill who go along to get along. Now is not the time for appeasement, even if one supports in concept independent boards of inquiry regarding highly disputed facts of great public consequence. The left has no hard evidence of their suspicions and is seeking a deep sea fishing expedition to propagate the notion the administration was bent on war and was engaged in a relentless campaign to seek or concoct a casus belli.

On this issue, I am in the same camp as Don Surber. We had plenty of reasons to bring regime change to Iraq regardless of weapons of mass destruction. Indeed, the only difficulty in making the case for Iraq regime change was the endless array of reasons for doing so that one would be hard-pressed to condense into a distinct, standalone cause for war.

The benefit of hindsight is guaranteed 20/20 vision. The President sought to build an international coalition to remove Saddam Hussein's Ba'athist regime. Weapons of mass destruction was believed to be the most compelling cause for receiving the support of other countries. Before the war, the international intelligence community was of unanimous opinion: Saddam Hussein had active WMD programs, was seeking to acquire WMD, and he was most definitely not in compliance with the obligation he assumed under the 1991 cease-fire to prove that he not only had no WMD but that he also had no WMD programs and was not seeking in any way to reconstitute his WMD and means of delivery.

Saddam Hussein had 6 months of warning of our invasion. We obviously don't know whether he actually had WMD stockpiles. What we do not know is why there was such a tremendous disconnect between the judgment of all the major intelligence services from countries both for and against the war. Those countries that opposed the war did not dispute the underlying facts, only that war was the answer. I contend that either Saddam Hussein had WMD and hid them in another country during the 6-month warning before the war or he did not have them and was performing an elaborate charade to make everyone think he was not a paper tiger, assuming that demonstrating his full compliance with the 1991 cease-fire would surely invite rebellion or invasion and his reign would end either way.

Despite all the focus on weapons of mass destruction, there were many other reasons for regime change in Iraq. Indeed, Congress had enacted the Iraq Liberation Act in 1998 establishing regime change in Iraq as official U.S. policy. H.J.Res. 114, the Iraq war resolution, cited many causes for war:

Whereas in 1990 in response to Iraq's war of aggression against and illegal occupation of Kuwait, the United States forged a coalition of nations to liberate Kuwait and its people in order to defend the national security of the United States and enforce United Nations Security Council resolutions relating to Iraq;

Whereas after the liberation of Kuwait in 1991, Iraq entered into a United Nations sponsored cease-fire agreement pursuant to which Iraq unequivocally agreed, among other things, to eliminate its nuclear, biological, and chemical weapons programs and the means to deliver and develop them, and to end its support for international terrorism;

Whereas the efforts of international weapons inspectors, United States intelligence agencies, and Iraqi defectors led to the discovery that Iraq had large stockpiles of chemical weapons and a large scale biological weapons program, and that Iraq had an advanced nuclear weapons development program that was much closer to producing a nuclear weapon than intelligence reporting had previously indicated;

Whereas Iraq, in direct and flagrant violation of the cease-fire, attempted to thwart the efforts of weapons inspectors to identify and destroy Iraq's weapons of mass destruction stockpiles and development capabilities, which finally resulted in the withdrawal of inspectors from Iraq on October 31, 1998;

Whereas in Public Law 105-235 (August 14, 1998), Congress concluded that Iraq's continuing weapons of mass destruction programs threatened vital United States interests and international peace and security, declared Iraq to be in `material and unacceptable breach of its international obligations' and urged the President `to take appropriate action, in accordance with the Constitution and relevant laws of the United States, to bring Iraq into compliance with its international obligations';

Whereas Iraq both poses a continuing threat to the national security of the United States and international peace and security in the Persian Gulf region and remains in material and unacceptable breach of its international obligations by, among other things, continuing to possess and develop a significant chemical and biological weapons capability, actively seeking a nuclear weapons capability, and supporting and harboring terrorist organizations;

Whereas Iraq persists in violating resolution of the United Nations Security Council by continuing to engage in brutal repression of its civilian population thereby threatening international peace and security in the region, by refusing to release, repatriate, or account for non-Iraqi citizens wrongfully detained by Iraq, including an American serviceman, and by failing to return property wrongfully seized by Iraq from Kuwait;

Whereas the current Iraqi regime has demonstrated its capability and willingness to use weapons of mass destruction against other nations and its own people;

Whereas the current Iraqi regime has demonstrated its continuing hostility toward, and willingness to attack, the United States, including by attempting in 1993 to assassinate former President Bush and by firing on many thousands of occasions on United States and Coalition Armed Forces engaged in enforcing the resolutions of the United Nations Security Council;

Whereas members of al Qaida, an organization bearing responsibility for attacks on the United States, its citizens, and interests, including the attacks that occurred on September 11, 2001, are known to be in Iraq;

Whereas Iraq continues to aid and harbor other international terrorist organizations, including organizations that threaten the lives and safety of United States citizens;

Whereas the attacks on the United States of September 11, 2001, underscored the gravity of the threat posed by the acquisition of weapons of mass destruction by international terrorist organizations;

Whereas Iraq's demonstrated capability and willingness to use weapons of mass destruction, the risk that the current Iraqi regime will either employ those weapons to launch a surprise attack against the United States or its Armed Forces or provide them to international terrorists who would do so, and the extreme magnitude of harm that would result to the United States and its citizens from such an attack, combine to justify action by the United States to defend itself;

Whereas United Nations Security Council Resolution 678 (1990) authorizes the use of all necessary means to enforce United Nations Security Council Resolution 660 (1990) and subsequent relevant resolutions and to compel Iraq to cease certain activities that threaten international peace and security, including the development of weapons of mass destruction and refusal or obstruction of United Nations weapons inspections in violation of United Nations Security Council Resolution 687 (1991), repression of its civilian population in violation of United Nations Security Council Resolution 688 (1991), and threatening its neighbors or United Nations operations in Iraq in violation of United Nations Security Council Resolution 949 (1994);

Whereas in the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102-1), Congress has authorized the President `to use United States Armed Forces pursuant to United Nations Security Council Resolution 678 (1990) in order to achieve implementation of Security Council Resolution 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677';

Whereas in December 1991, Congress expressed its sense that it `supports the use of all necessary means to achieve the goals of United Nations Security Council Resolution 687 as being consistent with the Authorization of Use of Military Force Against Iraq Resolution (Public Law 102-1),' that Iraq's repression of its civilian population violates United Nations Security Council Resolution 688 and `constitutes a continuing threat to the peace, security, and stability of the Persian Gulf region,' and that Congress, `supports the use of all necessary means to achieve the goals of United Nations Security Council Resolution 688';

Whereas the Iraq Liberation Act of 1998 (Public Law 105-338) expressed the sense of Congress that it should be the policy of the United States to support efforts to remove from power the current Iraqi regime and promote the emergence of a democratic government to replace that regime;

Whereas on September 12, 2002, President Bush committed the United States to `work with the United Nations Security Council to meet our common challenge' posed by Iraq and to `work for the necessary resolutions,' while also making clear that `the Security Council resolutions will be enforced, and the just demands of peace and security will be met, or action will be unavoidable';

Whereas the United States is determined to prosecute the war on terrorism and Iraq's ongoing support for international terrorist groups combined with its development of weapons of mass destruction in direct violation of its obligations under the 1991 cease-fire and other United Nations Security Council resolutions make clear that it is in the national security interests of the United States and in furtherance of the war on terrorism that all relevant United Nations Security Council resolutions be enforced, including through the use of force if necessary;

Whereas Congress has taken steps to pursue vigorously the war on terrorism through the provision of authorities and funding requested by the President to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Whereas the President and Congress are determined to continue to take all appropriate actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Whereas the President has authority under the Constitution to take action in order to deter and prevent acts of international terrorism against the United States, as Congress recognized in the joint resolution on Authorization for Use of Military Force (Public Law 107-40); and

Whereas it is in the national security interests of the United States to restore international peace and security to the Persian Gulf region

Alito Nomination an Outstanding Choice

This morning, President Bush nominated Judge Samuel Alito to the Supreme Court. Alito, who has been a judge of the 3rd circuit Court of Appeals for the last 15 years, has been praised by legal scholars for his superior intellect and conservatives for his originalist interpretation of the Constitution. Alito is already drawing stiff criticism & opposition from leading liberal Democrats, a sure sign the President's new nominee is a great pick.

With this nomination, our country now has an opportunity to have a great debate between the two major schools of thought regarding judicial philosophy. Over the last several decades, the Supreme Court has practiced a brand of unbridled judicial activism that has stood the Constitution on its head, invented new constitutional "rights" from whole cloth, and eviscerated clearly established points in the Constitution like the protection of private property from eminent domain abuses. We now will have a debate over whether the Constitution means what it says and what it originally meant unless amended under Article V or whether we have, as the liberal judicial activists claim, a "living, breathing Constitution" whose meaning changes with the times, public opinion, and--now--global opinion and foreign law.

The courts are the last beachhead of liberalism in American government. Having failed to win at the ballot box and in most legislative chambers, liberals have long sought to impose their policy preferences on this country through creative reinterpretations of the Constitution. While abortion is often cited as the paramount issue in the Supreme Court fight, other issues are also just as important. This fight over the court is not a political fight over a policy issue or two. It is about an entire philosophy regarding the relationship between the government and the governed.

Under the rule of law and our constitutional system of government, there are three branches of government: legislative, executive, and judicial. Each branch has specific powers and responsibilities and ought not encroach upon those of either other branch. All people--from the weakest tot he most powerful--are or should be subject to governance by the rule of law. Under the rule of law, a legislature makes the law, the executive enforces the law, and the judiciary interprets & applies the law in specific cases and controversies. Freedom as it is known in this country and has been expounded by the influential political philosophers in our history cannot exist if people are governed by the arbitrary rule of man and not the rule of law.

The supreme law of the land is the Constitution of the United States. Federal laws, treaties, and state constitutions and laws are all subordinate to it. State laws are also subordinate to state constitutions. The U.S. Constitution and every state constitution have amendment processes specifically detailing the manner of amending the fundamental laws of the country and the various states.

Our Constitution was quite imperfect, yet the Founders designed an amendment process that, although difficult, has permitted the Constitution and our Republic to survive as the longest-lived republic surviving today. By attaining a 2/3 vote of both houses of Congress and the legislatures of 3/4 of the states, we adopted the Bill of Rights. By this process (and tremendous bloodshed), we abolished slavery, made former slaves a whole person under the law, and--although the required implementing laws took nearly a century too long to enact--ended legalized (and in many cases mandated) racial discrimination. By this process, we extended the franchise to former slaves (again, despite the required implementing law taking nearly a century too long to enact), women, and young adults (age 18-20). By this process, we limited presidents to two terms in office and established a process for replacing an incapacitated President and filling vacancies in the vice presidency.

As I write this, I am listening to Dave Peyton, the lovable leftist, bemoaning the Alito nomination and talking about "radical right-wingers" and the agenda he sees us as having for this country. There is a difference between a policy preference and an interpretation of the Constitution.

For example, on abortion, I think Roe v. Wade was bad law and that abortion is wrong and--except in cases of rape, incest, or to save the mother's life--should be regarded in the law as murder on the part of the abortionist (no penalty for a woman seeking or obtaining an abortion). Many disagree with some or all of these positions, but any honest analyst would acknowledge as do I that a vacancy of the Roe precedent would merely return the issue to state legislatures. For many years, the response to Roe v. Wade was to campaign for a constitutional amendment prohibiting abortion nationwide; this approach, despite its nominal inclusion in the national GOP platform, has long been abandoned as a serious remedy for this miscarriage of justice in recognition of the absolute impossibility of ever enacting such an amendment. This unsettles many of us who are pro-life in both personal belief and public policy position, but it's far less troubling than the imposition of this policy by judicial fiat.

For the voluminous comments--for a blog--I have for abortion, that is not the only issue about which I have great feelings. There are many, many other areas where our Constitution has been stood on its head. The Takings Clause has been ignored in favor of allowing governments to force us to sell our property to someone else when that government thinks the other person would put the property to what it sees as a better use. The Commerce Clause has been stretched to be an all-inclusive mode of injecting federal regulation into virtually every aspect of our daily lives. Within the next few years, the Court will decide whether the Equal protection Clause's interpretation should extend to sexual preference and whether same-sex marriage should be mandated via the Full Faith & Credit Clause and same-sex marriages in Massachusetts--which, of course, were imposed by the MA Supreme Court under their state constitution that was written in 1780 without any democratic process.

So, let's have the debate and let us resolve to have a recurrence to our fundamental principles, interpret the Constitution according to its original intent, and leave policymaking to the democratic branches of government and--in many more cases--to the states or the people directly.

Starcher Says Judges are Policymakers

West Virginia Supreme Court Justice Larry Starcher--who has become notorious for his unorthodox public behavior and leniency toward violent criminals--gave a speech Friday at the West Virginia Political Science Association at which he defended the popular election of judges. Nothing wrong here, until you hear his rationale.

Starcher--who is increasingly known as "Let 'em Loose Larry" after casting deciding votes on the court to give a serial child molester probation and reduce a kidnapper's sentence by 2/3--says judges should be elected because they are part of the policymaking process.

In his speech, Starcher said, "Voters should be entitled to choose those that make public policy...Since judges make public policy, it follows that, like other policymakers, they should be accountable to the people in a representative political system. Accountability usually means that those who lead policy-making departments are subject to direct, periodic popular review in elections."

Pardon me if I sound a bit incredulous. Unless we have adopted a new constitution recently, we still have three branches of government--legislative, executive, and judicial--that each exercise separate powers and should not encroach upon those powers reserved to another branch. Of course, Starcher does not share this view. In Larry's World, judges are the law. If you don't like what the law says, just say it's inequitable or that the legislative branch did not foresee a particular set of circumstances and invent a new law from whole cloth. When the legislative branch passes a new law to overrule the judge-made law, invent a new theory of interpreting the Equal Protection Clause or Due Process Clause.

Since we in West Virginia still elect our judges, the people of this state will have an opportunity in 2008 to pass judgment on whether to render the same verdict for Let 'em Loose Larry as they did for Warren McGraw last year. We will consider the cases of Tony Arbaugh and Raymond Richardson and probably other violent criminals whose sentences were greatly reduced by the state Supreme Court from 2001 to 2004. We will consider the many businesses that have avoided doing business in this state because of our reputation as a judicial hellhole. We will consider Justice Starcher's outrageous appearance at the 2004 primary election candidate forum at which he repeatedly heckled Supreme Court candidate Jim Rowe, who remains a circuit judge in Greenbrier County and whose decision are reviewed by Starcher on appeal. We will consider this and more and find that Justice Starcher deserves to be handed a gold watch rather than 12 more years on the bench.

WV Conservative has another good perspective on this.

Are Governor Manchin & Governor Taft Long-Lost Political Twin Brothers?

Political twins, separated at birth?

Gary Abernathy seems to think so, and makes quite a compelling case. How could Governor Manchin--who at a 65% public approval rating and nickname "Governor Mojo"--be compared to the radioactive governor of the Buckeye State--who has tarnished his family's name (think President Taft & Senator Taft) and now has a 15% (that's not a typo) approval rating? Read and see.